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HomeMy WebLinkAbout2019-04-23 Work Session & Regular Meeting PacketTHE CITY OF Anna AGENDA City Council Work Session Tuesday, April 23, 2019 @ 6:30 P M Anna City Hall, Council Chambers 111 N. Powell Parkway, Anna, Texas 75409 The City Council of the City of Anna will meet in Work Session at 6:30 PM, on April 23, 2019, at the Anna City Hall, Located at 111 North Powell Parkway (Hwy 5), to consider the following items. 1. Call to Order, Roll Call and Establishment of Quorum 2. 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). Consultant Contract, Meeting Procedures, zoning ordinance b. Discuss or deliberate the purchase, exchange, lease, or value of real property (Tex. Gov't Code §551.072); city facilities; acquisition of easements c. Discuss or deliberate Economic Development Negotiations: (1) To discuss or deliberate regarding commercial or financial information that the City has received from a business prospect that the City seeks to have locate, stay, or expand in or near the territory of the City of Anna and with which the City 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); possible incentive agreements with property developers; pending negotiations on development agreements. 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. 3. Consider/Discuss/Action on any items listed on any agenda —work session, regular meeting, or closed session —that is duly posted by the City of Anna for any City Council meeting occurring on the same date as the meeting noticed in this agenda. (If there is no need to address any other such agenda item, the Mayor shall adjourn this meeting). 4. Adjourn. There being no further business before the Council, we will consider this meeting adjourned at p.m. This is to certify that I, Carrie L. Smith, 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. on April 18, 2019. Carrie L. Smith, 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 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. AGENDA THE CITY OF Regular City Council Meeting AAAa Tuesday, April 23, 2019 @ 7:00 P M Anna City Hall, Council Chambers 111 N. Powell Parkway, Anna, Texas 75409 The City Council of the City of Anna will meet in Regular Session at 7.00 PM, on April 23, 2019, at the Anna City Hall, Located at 111 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 wish 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, Roll Call and Establishment of Quorum. 2. Invocation and Pledge of Allegiance. 3. Citizen Comments. Citizens are allowed three 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. 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 an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; 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. a. Proclamation recognizing Mayas Brain Injury Awareness Month b. Proclamation recognizing May 5 - 11 as Municipal Clerks Week c. Proclamation recognizing May 6 - 11 as Economic Development Week d. Proclamation recognizing May 12-18 National Police Week e. Receive Fire Department Needs Assessment Report from UT Dallas MPA Capstone Class. (Chief Ray Isom) 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 Meeting Minutes for April 9, 2019. (Carrie Smith) b. Review minutes of the Park Board (Maurice Schwanke) - October 15, 2018 - March 18, 2019 c. Review Minutes of the January 3, 2019 Economic Development Corporation Meeting. (Joey Grisham) d. Review Minutes of the February 13, 2019 Economic Development Corporation meeting. (Joey Grisham) e. Review Minutes of the March 7, 2019 Economic Development Corporation Meeting. (Joey Grisham) f. Review Minutes of the March 7, 2019 Community Development Corporation Meeting. (Joey Grisham) g. Review Quarterly Investment Report (Dana Thornhill) 6. Discuss the effectiveness of the existing outdoor warning system and the proliferation of modern technologies that provide substantial improvement in services. (Chief Isom) 7. Consider/Discuss/Action regarding a Resolution authorizing the City Manager to execute a contract with KI K Underground, LLC of Richardson, Texas for the Suzie Lane Water Line Project. (Joseph Johnson) 8. Consider/Discuss/ Action on an Ordinance amending Temporary Bicycle Restrictions. (Lt. Pete Copin) 9. Consider/Discuss/Action approving an Ordinance amending Part IV Schedule of Fees, Section 10 of The Anna City Code of Ordinances. (Maurice Schwanke) 10. Consider/Discuss/Action on a Resolution recommending an appointment of a Representative to the North Texas Groundwater Conservation District Board. (Jim Proce) 11. Consider/Discuss/Action regarding a Resolution approving a contract for sale and leaseback of real property owned by Joiner Construction Company, Inc., for construction of Municipal Complex Facilities. (Jim Proce) 12. Approve Resolution Authorizing a Subdivision Improvement and Economic Development Incentive Agreement with North Texas Surgery Real Estate, LLC.(Joey Grisham) 13. Approve Resolution Authorizing an Agreement for Partial Assignment of Roadway Impact Fee Credits with North Texas Surgery Center Real Estate, LLC and One Anna Two, Ltd. (Joey Grisham) 14. 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). Consultant Contract, Meeting Procedures, zoning ordinance b. Discuss or deliberate the purchase, exchange, lease, or value of real property (Tex. Gov't Code §551.072); city facilities; acquisition of easements c. Discuss or deliberate Economic Development Negotiations: (1) To discuss or deliberate regarding commercial or financial information that the City has received from a business prospect that the City seeks to have locate, stay, or expand in or near the territory of the City of Anna and with which the City 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); possible incentive agreements with property developers; pending negotiations on development agreements. 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. 15. Consider/Discuss/Action on any items listed on any agenda —work session, regular meeting, or closed session —that is duly posted by the City of Anna for any City Council meeting occurring on the same date as the meeting noticed in this agenda. (If there is no need to address any other such agenda item, the Mayor shall adjourn this meeting). 16. Adjourn. There being no further business before the Council, we will consider this meeting adjourned at p.m. This is to certify that I, Carrie L. Smith, 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. on April 18, 2019 Carrie L. Smith, 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 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. THE CITY OF AiAtia AGENDA ITEM: Proclamation recognizing Mayas Brain Injury Awareness Month SUMMARY: STAFF RECOMMENDATION: ATTACHMENTS: Description Proclamation Item No. 4.a. City Council Agenda Staff Report Meeting Date: 4/23/2019 Upload Date Type 4/16/2019 Presentation Citp of Anna, Texas Prodamatt"On BRAIN INJURY AWARENESS MONTH May 2019 WHEREAS, acquired brain injury is often overlooked and underfunded, and affects thousands of Texans each year; and WHEREAS, a traumatic brain injury (TBI) is caused by a bump, blow, or jolt to, or penetration of, the head that disrupts the normal function of the brain; and WHEREAS, roughly half a million Texans are currently living with a disability from a TBI and WHEREAS, falls are a leading cause of brain -related injuries; they can also be the result of motor vehicle crashes, assaults, sports -related injuries, occupational -related injuries, or opioid overdoses. WHEREAS, 30 percent of sports -related injuries happen among youth five and 19 years of age, and, because the signs of brain injury are not always well recognized, youth may put themselves at risk for another injury and potentially fatal second -impact syndrome; and WHEREAS, an estimated 3.8 million mild traumatic brain injuries, often called concussions, occur in the United States per year during competitive sports and recreational activities; and WHEREAS, as many as 50 percent of mild traumatic brain injuries go unreported or undetected; and WHEREAS, a stroke is also considered an acquired brain injury and an estimated 795,000 Americans suffer a stoke each year. WHEREAS, an injury that happens in an instant can bring a lifetime of physical, cognitive, and behavioral challenges; and WHEREAS, early and adequate intervention, especially cognitive rehabilitation, will greatly increase the quality of life and enable individuals with brain injury to return to home, school, work, or their communities; and WHEREAS, March has been designated as National Brain Injury Awareness Month to promote awareness of the extent, consequences, causes, treatments, and prevention of acquired brain injuries; and WHEREAS, the Brain Injury Association of America and Brain Injury Association of Texas are dedicated to Changing Minds about Brain Injury; NOW, I Nate Pike, Mayor of the City of Anna, do recognize May 2019 as BRAIN INJURY AWARENESS MONTH in Anna, Texas and urge all citizens to recognize this month by dedicating ourselves to the task of improving the quality of life for all children and families. o7n witness, when-of7 hane hamunto set in hand this 23rd dap fblpril, 2019 and called thin seal t& be a ed Nate Pike, Mayor THE CITY OF AiAtia AGENDA ITEM: Proclamation recognizing May 5 - 11 as Municipal Clerks Week SUMMARY: STAFF RECOMMENDATION: ATTACHMENTS: Description Proclamation Item No. 4.b. City Council Agenda Staff Report Meeting Date: 4/23/2019 Upload Date Type 4/16/2019 Presentation Citp of Rena, Eexa.5 Proclamation 50th ANNIVERSARY OF MUNICIPAL CLERKS WEEK May 5-11,2019 Whereas, The Office of the Municipal Clerk, a time honored and vital part of local government exists throughout the world, and Whereas, The Office of the Municipal Clerk is the oldest among public servants, and Whereas, The Office of the Municipal Clerk provides the professional link between the citizens, the local governing bodies and agencies of government at other levels, and Whereas, Municipal Clerks have pledged to be ever mindful of their neutrality and impartiality, rendering equal service to all. Whereas, The Municipal Clerk serves as the information center on functions of local government and community. Whereas, Municipal Clerks continually strive to improve the administration of the affairs of the Office of the Municipal Clerk through participation in education programs, seminars, workshops and the annual meetings of their state, provincial, county and international professional organizations. Whereas, It is most appropriate that we recognize the accomplishments of the Office of the Municipal Clerk. Now, Therefore, I, Nate Pike, Mayor of the City of Anna, do recognize the week of May 5 through May 11, 2019, as Municipal Clerks Week, and further extend appreciation to our Municipal Clerk, Carrie L. Smith and to all Municipal Clerks for the vital services they perform and their exemplary dedication to the communities they represent. 67n witness where f67 have hereunto set my hand this 23rd dap of,-Apnl, 2019 and called this sm-1 to be affired Nate Pike, Mayor THE CITY OF AiAtia AGENDA ITEM: Proclamation recognizing May 6 - 11 as Economic Development Week SUMMARY: Item No. 4.c. City Council Agenda Staff Report Meeting Date: 4/23/2019 The 2019 Economic Development Week is being held from May 6-11, 2019. Now in its fourth year, #EconDevWeek promotes awareness of local economic development programs that generate jobs, advance career development opportunities, and create vibrant communities. Keep an eye out for the IEDC's 2019 #EconDevWeek Toolkit in the new year, and get an early start planning your campaign! The toolkit includes resources that your EDO can build from such as: - Special ways to engage your elected officials -A press release template - Electronic and print advertising templates - City, county, and state resolutions templates - Social media marketing sample promotional messaging - Social media content matrix for easier message compilation and sharing - Event ideas - #EconDevWeek Excellence in Economic Development Week Awards details STAFF RECOMMENDATION: Proclaim May 6-11, 2019 as Economic Development Week in the City of Anna. ATTACHMENTS: Description Upload Date Type Proclamation 4/18/2019 Presentation Citp of Anna, Texas Prodamatton Economic Development Week May 6-11, 2019 WHEREAS, the International Economic Development Council is the largest professional economic development organization dedicated to serving economic developers; and WHEREAS, the International Economic Development Council provides leadership and excellence in economic development for communities through conferences, training, advisory services, research, in-depth publications and public policy advocacy; and WHEREAS, economic developers promote economic well-being and quality of life for their communities by creating jobs that facilitate growth, enhance wealth and provide a stable tax base; and WHEREAS, economic developers engage in a variety of business attraction, retention and expansion activities to establish the next generation of new businesses, which is the hallmark of the American economy; and WHEREAS, economic developers facilitate business initiatives in a wide variety of settings, local, state and federal governments, public -private partnerships, chambers of commerce, universities, and a variety of other institutions; and WHEREAS, economic developers promote vibrant communities and improve the quality of life in their regions; and WHEREAS, the City Council has made Economic Development a top priority and created an Economic Development Department to fortify the economy, provide employment opportunities and bring businesses to Anna desired by the community; and WHEREAS, the Community and Economic Development Corporations work closely with the City Council to facilitate projects and programs that lead to increased investment by new and expanding businesses; NOW, THEREFORE, BE IT PROCLAIMED that the Mayor and City Council of the City of Anna do hereby Recognize May 6 - 11, 2019 as "National Economic Development Week" in the City of Anna and remind individuals of the importance of this week which supports business growth and quality of life CJ7n witness whereof C�7hare hereunto set mp hand this 23rd dap f_Apn1,, 2019 and called this seal to be a Zred Nate Pike, Mayor About Economic Development Week: Economic Development Week is an event created by the International Economic Development Council to celebrate the achievements of economic developers. THE CITY OF AiAtia AGENDA ITEM: Proclamation recognizing May 12-18 National Police Week SUMMARY: STAFF RECOMMENDATION: ATTACHMENTS: Description Proclamation Item No. 4.d. City Council Agenda Staff Report Meeting Date: 4/23/2019 Upload Date Type 4/17/2019 Presentation Citp of 01nna, Eexag Proclamation Proclamation for National Police Week 2019 To recognize National Police Week 2019 and to honor the service and sacrifice of those law enforcement officers killed in the line of duty while protecting our communities and safeguarding our democracy. WHEREAS, there are approximately 900,000 sworn law enforcement officers serving in communities across the United States, including the dedicated members of the Anna Police Department WHEREAS, over 60,000 assaults against law enforcement officers were reported last year, resulting in approximately 17,000 injuries; WHEREAS, since the first recorded death in 1791, more than 21,000 law enforcement officers in the United States have made the ultimate sacrifice; WHEREAS, approximately 160 law enforcement officers are killed in the line of duty each year; WHEREAS, the names of these dedicated public servants are engraved on the walls of the National Law Enforcement Officers Memorial in Washington, D.C.; WHEREAS, new names of fallen heroes are being added to the National Law Enforcement Officers Memorial each spring and there are currently more than 21,910 names engraved on the walls of the National Law Enforcement Officers Memorial; WHEREAS, the service and sacrifice of all officers killed in the line of duty will be honored during the National Law Enforcement Officers Memorial Fund's 31't Annual Candlelight Vigil, on the evening of May 12, 2019; WHEREAS, the Candlelight Vigil is part of National Police Week, which takes place this year from May 12-18; WHEREAS, May 15th is designated as Peace Officers Memorial Day, in honor of all fallen officers and their families; THEREFORE, BE IT RESOLVED that the City Council formally designates May 12-18, 2019, as Police Week in Anna, and publicly salutes the service of law enforcement officers in our community and in communities across the nation. c7n witness where f 67hane hereunto set mp hard thu 23rd dq f�pnl2019 and caa-lled thu sed to be ed Nate Pike, Mayor THE CITY OF AiAtia AGENDA ITEM: Item No. 4.e. City Council Agenda Staff Report Meeting Date: 4/23/2019 Receive Fire Department Needs Assessment Report from UT Dallas MPA Capstone Class. (Chief Ray Isom) SUMMARY: The UT Dallas Masters in Public Affairs capstone class will present it's findings and recommendations regarding a Needs Assessment conducted over the previous four months. The final report, which will be submitted to the city in the near future, represents several hundred hours of work and will result in an extremely informative and objective third -party analysis. This presentation highlights the findings of the coming report. STAFF RECOMMENDATION: ATTACHMENTS: Description Upload Date Type Presentation 4/18/2019 Presentation 4/18/2019 The City of Anna Fire Department "5 Year Strategic Plan" Prepared by: The University of Texas at Dallas School of Economic, Political and Policy Sciences Charlie Salazar Noel Saldivar Avery Atkins Hunter Stephens Jason Hickman Faith Kashaa DL James Harrington Introduction o James Harrington - PhD Associate Professor — UTD, 6 years O Charlie Salazar - Deputy Chief - Dallas Fire Rescue, 25 years O Hunter Stephens - Asst. Director of Public Works - City of Richardson, 14 years o Noel Saldivar - Captain - Richardson Fire Dept., 22 years O Avery Atkins - Firefighter/Paramedic - Richardson Fire Dept., 4 years o Jason Hickman - IT Specialist Garland ISD, 14 years O Faith Kashaa - UT Southwestern Senior Immigration Specialist, 4 years 2 4/18/2019 Overview o Introduction o Project Background o Identify Anna FD Challenges o Index Cities — Prosper, Celina o Deliverables and Recommendations o Conclusion 9 The Challenge .r "As the City of Anna continues to grow, the Anna Fire Department will face a multitude of challenges including increased workload, longer response times, and safety issues for firefighters and the citizens they're sworn to protect. It's incumbent upon city leadership, and the Fire Chief, to respond to this ever -changing landscape with progressive and professional organizational growth, top tier training, versatile facilities and apparatus in order to deliver the services citizens expect." 4 2 4/18/2019 G 0 Index Citv Information o Celina o City Size — 2018 Pop. 9,836, 14.2 sq. miles o Fire District near 80 sq miles o Fire Dept, — 1 Station, MTCU o St. 2 now, 36 FTE's, estimating 12 Stations o Prosper o City Size — 2018 Pop. 20,312, 22.8 Sq. Miles o Fire Dept. — 2 Stations, 2 MICU's 0 36 FTE's o Anna •. Wan st ` Wa•tmininste,er ♦ 1 �4 7L o City Size — 2018 Pop. 14,000, City limits plus ETJ is 44 sq miles o Future fire district to be over 65 sq miles o Fire Dept. — 1 Station, no MICU, 11 FTE's Deliverable Items *Projected population growth *Fire department staffing o Fire department facilities o Fire/EMS apparatus needs 3 4/18/2019 Anna, TX - Growth Projections o NCTCOG 2018 population est. 14K o Projected steady growth of 7-10% per year 0 1,170 residential lots under construction 0 2,594 in the planning/design phase o Construction of 300 new single-family homes (2019) Growth Proiections cunt. o Collin County ranks 10t' in population growth o Population growth - 25,000 by 2025 o Anna ISD Demographic Report o Indicates 8,000 lots planned in the next few years o Estimated increase by 5,600 students in 10 years o Student projections in 2028-2029 — l0k o AISD is planning for the future 0 t,M 4/18/2019 ANNA, TX 36,000 POPULATION ESTIMATE BY YEAR 35,400 34,000 32,000 30,000 Population ® Annual Growth 28,000 26,000 25,200 24,000 Population 22,000 20,000 18,000 18,000 16,000 14,000 10,596 12,753 14,000 11,513 12,147 10,000 8,257 8,443 8,556 9,597 8,000 6,000 4,0002,000 1 2010 2011 2012 2013 2014 2015 2016 2017 2018 2020 2025 2030 Year 9 Projection of Emergency Incidents 2500 Total — Total Predict 2024, 2143 2000 2018, 1747 2022,1944 1500 2020,1746 U � 1000 2016, 1287 U 2014, 1134 500 0 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 YEAR 672 4/18/2019 Deliverable - Staffing o Currently understaffed o Primary Goal: Meet NFPA 1710 for career O 4 Firefighter Engine Co. - 24 hrs/day o Additional Goals: o Increase staffing to provide EMS O Staff Fire Station #2 01 Quint, I Ambulance 11 "Quint" ❖ Engine & Truck combination 12 ❖ Provides versatility for crews on emergency incidents 4/18/2019 AFD - Staffing Plan YEAR 1 YEAR 2 CURRENT FY20 FY21 FY19 (16 FTEs) (23 FTEs) (10 FTEs) Reserve (3 PTEs) 1 ADMIN ASSIST 1 EMS Staff Captain 1 EMS Staff Captain 5 FT Us 6 FT Us 3 Driver/Engineer Positions YEAR 3 YEAR 4 YEAR 5 FY22 FY23 FY24 (29 FTEs) (35 FTEs) (41 FTEs) Quint 6 FT Us to fully staff FIRE St. 2 OPENS 6 FT -FFs Engine and Quint 2nd ambulance 3 Capt. Position Quint to Station 2 3 Driver -Engineer Spots 6 FT FFs 1 Organizational Charts CURRENTFire Chief YEAR ndminutwthR awmrt Flre Prevention Ixl Opentiwn Assist Gptiln Chkf (1) I ( Ill ( Fire Prevention �pensdonsksslst I Caprtiln chieflt1 � Ix! AShdftC�itain o5�,a;Captain e-Shihcapnin (l) lil Ill I I AJShet Captain I B-Shgs Uptifn ( I GShet Upbin I � CMS Gpfeln C Ixl � [al Ixl Ill Fug Time FF Fpu Time Ff Full Time FF I (11 I I 12l ` ( Ill I diver Fs>gineer AlverE�kxser �dver Engineer I I I Izl I I lzl I I {xl Pit4tiine FF Firt•IIme FF Pirt-time FF FmA-Time FFs FvlkTime FF7 Ful4Time FFs Ill I � Ill I I fil I I lil � I Igl I I IeI 14 rM 4/18/2019 Deliverable - Facilities Facilities o New Station #1 - 2020 o Future Station #2 - West of 75 (yr. 5) O Living arrangement considerations — male/female accommodations O 3-4 apparatus bay considerations for EMS/growth o Training capabilities for CE & Fire Commission requirements City of Anna - Projected Station Locations r � r 16 City of Anna with projected future ETJ map M. 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PROUD TO SERVE �4 4/18/2019 Budget o Index City comparison o Fire Department Budget Comparison - 2019 o Prosper 7.7 Million - 25.2% of Budget o Celina 3.05 Million - 18.7 % of the Budget o Anna 1.5 Million - 18.3%© of the Budget a City Population Growth Comparison - last 10 years o Prosper -10 yr population growth 9.4k - 25.6k o Celina - 10 yr population growth 6k - 1 Ok o Anna - 10 yr population growth 8.2k - 14k 19 PROSPER $7,675,378 CELINA $31056107 Fire-25.20% Fire-18.7% $1,538,002 ANNA 20 Fire-18.4% 7- 7 000 10 4/18/2019 5yr Estimated BudgetImpact 21 FY 20 FY21 FY22 FY23 FY24 5-Year Total Staff Increase 6 7 6 6 6 31 Staff Cost -(90%) 420,000 490,000 420,000 420,000 420,000 2,170,000 Equipment - (5%) Other - (5%) 23,000 23,000 27,000 27,000 23,000 23,000 23,000 23,000 23,000 23,000 119,000 119,000 Total Operating 466,000 544,000 466,000 466,000 466,000 $2,408,000 Fire Station Fire Apparatus -Ambulance *Quint 30% 27% 300,000 18% 1,300,000 15% 15% 3,500,000 300,000 3,500,000 600,000 1,3ogoao Total Capital 300,000 1,300,000 3,800,000 $5,400,000 Total Expenditures 7 808 000 Budget cant. o Budget Considerations/Assumptions o Increase revenue distribution for Fire from 15% - 17.5% o Assuming population growth, Assuming revenue growth 16.1% (5-Yrs) 22 Fire De artment Change in Operating Expense b Year FY19 FY20 FY21 FY22 FY23 FY24 Operating Expense 1,538,000 2,004,000 2,548,000 3,014,000 3,480,000 $3,946,000 Increase from previous FY 30% 27% 18% 15% 13.30% Projected Revenues vs Public Safety Expenses Expenses based on 3-year trend modified accrual FYI (actual) FY20 FY21 FY22 FY23 FY24 Revenues assuming 16% increase FY 10,400,000 12,064,000 13,994,240 16,233,318 18,830,649 21,843,553 Public Safety % of Revenue 35% 35% 35% 35% 35% 35% Public Safety Expenses 3,640,000 4,222,400 4,897,984 5,681,661 6,590,727 7,645,244 Fire Dept % of Revenue 14.79% 17.50% 17.50% 17.50% 17.50% 7.50% Fire Dept Operating Ex ense 1,537,952 2,111,200 2,448,992 2,840,831 3,295,363 El,822,622 11 4/18/2019 23 Additional Considerations o ISO — maintaining a "2" is important for attracting businesses o staffing is a very critical component o Recruiting and Retention — must be competitive with salary/benefits 0 our staffing recommendation is based on best practices and NFPA Standard recommendations, but can be scaled to fit budget and timeline considerations Summary 0 overview Q Summary of Recommendations o FD staff, apparatus, facilities o Q&A 12 4/18/2019 Thank You The University of Texas at Dallas Economic, Political and Policy Sciences Charlie Salazar Noel Saldivar Avery Atkins Hunter Stephens Jason Hickman Faith Kashaa Dr. James Harrington 13 THE CITY OF AiAtia AGENDA ITEM: Approve City Council Meeting Minutes for April 9, 2019. (Carrie Smith) SUMMARY: STAFF RECOMMENDATION: ATTACHMENTS: Description Work Session Regular Session Item No. 5.a. City Council Agenda Staff Report Meeting Date: 4/23/2019 Upload Date Type 4/16/2019 Exhibit 4/16/2019 Exhibit ANNACITYCOUNCIL MINUTES WORK SESSION April 9, 2019 The City Council of the City of Anna met in Work Session on the above date at Anna City Hall, located at 111 North Powell Parkway (Hwy 5), to consider the following items. 1. Call to Order, Roll Call and Establishment of Quorum Mayor Pike called the meeting to order at 6:30 p.m. Council Member's Beazley and Reeves were absent. 2. 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). Consultant Contract, Meeting Procedures, zoning ordinance b. Discuss or deliberate the purchase, exchange, lease, or value of real property (Tex. Gov't Code §551.072); city facilities; acquisition of easements C. Discuss or deliberate Economic Development Negotiations: (1) To discuss or deliberate regarding commercial or financial information that the City has received from a business prospect that the City seeks to have locate, stay, or expand in or near the territory of the City of Anna and with which the City 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); possible incentive agreements with property developers; pending negotiations on development agreements. d. Discuss or deliberate personnel matters (Tex. Gov't Code §551.074); City Attorney Annual Review; Boards and Commissions MOTION: Council Member Tutson moved to enter closed session. Council Member Miller seconded. Motion carried 4-1. Bryan opposed. Mayor Pike recessed the meeting at 6:33 p.m. Mayor Pike reconvened the meeting at 7:16 p.m. 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. 3. Consider/Discuss/Action on any items listed on any agenda —work session, regular meeting, or closed session —that is duly posted by the City of Anna for any City Council meeting occurring on the same date as the meeting noticed in this agenda. None. 4. Adjourn. There being no further business before the Council, we will consider this meeting adjourned at p.m. Mayor Pike adjourned the meeting at 7:16 p.m. Approved on the April 23, 2019. Mayor Nate Pike ATTEST: City Secretary Carrie L. Smith ANNA CITY COUNCI L MINUTES REGULAR SESSION April 9, 2019 1. Call to Order/Roll Call and Establishment of Quorum Mayor Pike called the meeting to order at 7:16 p.m. 2. Invocation and Pledge of Allegiance. Mayor Pike led the invocation and pledge. 3. Citizen Comments. Citizens are allowed three 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. Chase Wantland - expressed concerns with the Massage business off FM 455. 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 an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; 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. a. New Police Officers Swearing -I n Ceremony (Lt. Copin) 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 Meeting Minutes: March 14, 2019 March 16, 2019 March 19, 2019 March 26, 2019 b. Review minutes of the March 4, 2019 Planning and Zoning Meeting. (Maurice Schwanke) c. Approve a Resolution approving the Gonzalez Development Plat. (Maurice Schwanke) The development plat for your approval is located within Anna's extra territorial jurisdiction and is located on the South side of FM 2862. The tract is in the James Fisher Survey, Abstract No. 305 and contains 30.649 acres of land. The owner is proposing to put a new home on the property. The submittal meets the City of Anna development plat requirements. A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING THE GONZALEZ DEVELOPMENT PLAT d. Approve a Resolution approving the One Anna Two Addition Final Plat. (Maurice Schwanke) The One Anna Two Addition Final Plat is located in the W. S. Rattan Survey, Abstract No. 752 and Thomas Rattan Survey, Abstract No. 782. The plat contains approximately 23.914 acres covering a section of land West of Highway 75 and North of the future Suzie Lane that will consist of 3 lots. A drainage letter is attached. A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING A FINAL PLAT OF ONE ANNA TWO ADDITION. e. Approve a Resolution approving the PPROM Concrete Recycling Development Plat. (Maurice Schwanke) The development plat for your approval is located within Anna's extra territorial jurisdiction and is generally known as 4745 FM 2862. The tract is in the Mark Roberts Survey, Abstract No. 742 and contains 34.485 acres of land. The owner is proposing to build a Concrete Recycling facility that will include an office, parking, maintenance and repair shop, and a trailer for an additional office. We do not have any land use control in the ETJ, however we want to point out that the proposed buildings are being built within the floodplain-Zone A. Regardless, the submittal meets the City of Anna development plat requirements. A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING THE PPROM CONCRETE RECYCLING DEVELOPMENT PLAT f. Approve a Resolution approving the Robertson Estates Minor Plat. (Maurice Schwanke) The minor plat for your approval is located within Anna's extra territorial jurisdiction and is located off of the North side of County Road 424. One of the proposed lots within the plat has an address of 6959 County Road 424. The tract is in the John Rowland Survey, Abstract No. 784 and contains 24.166 acres in total. The son of one of the owners of the property, Cody Robertson, has submitted a Minor Plat to create 4 lots on the property instead of 3 and to transfer some land between the owners for an access to a lot. This submittal meets the City of Anna requirements. A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING THE ROBERTSON ESTATES MINOR PLAT g. Approve a Resolution approving the West Crossing Phase 8, 10, & 12 Preliminary Plat. (Maurice Schwanke) The West Crossing Phase 8, 10, & 12 preliminary plat contains 49.916 acres located in the Henry Brantly Survey, Abstract No. 71 and the G. Morrison Survey, Abstract No. 559. This tract is located on the Southeast corner of Rosamond Pkwy and West Crossing Blvd, just North of West Crossing Phase 6. The preliminary plat is for 222 residential lots and 3 HOA lots. The tract of land is zoned as a Planned Development allowing for Single Family Residential Homes with a minimum lot size of 6,000 SF and 7,200 SF. A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING A PRELIMINARY PLAT OF WEST CROSSING PHASE 8, 10, & 12. h. Approve Acting City Manager Designation. (Jim Proce) MOTI ON: Council Member Bryan moved to approve the consent agenda. Council Member Miller seconded. Motion carried 5-0. 6. Briefing/Discussion regarding the FY 2020 Budget Calendar (Dana Thornhill) 7. Consider/Discuss/Action regarding approval of Resolution authorizing nomination of a Texas Department of Transportation (TxDOT), Transportation Alternatives Set -Aside Program Project. (Joseph Johnson) Staff has identified a sidewalk/trail project that is eligible for the Texas Department of Transportation (TxDOT), Transportation Alternatives Set -Aside Grant Program. The sidewalk/trail project being proposed would provide new connectivity at FM 455 for pedestrians and bicycle traffic between important community destinations like schools, neighborhoods, employment centers, shopping, and recreational areas. Additionally, the project would allow pedestrians to cross under FM 455 allowing pedestrians/cyclists a safer alternative to crossing FM 455 at -grade. Our engineering group (Hayter Engineering) has provided a cost estimate for the project and total construction costs are anticipated to be approximately $743,386. If awarded, the City's financial obligation would be to: 1. Provide a cash match covering 20% of the construction cost ($148,680). The cash match would be required over the course of construction and would not be a pre -project lump sum. 2. Cover engineering costs for survey, design, and environmental review ($96,640). 3. Pay an administration/management fee to TxDOT equaling 15% of construction costs ($111,508). The total estimated cost to the City for this $951,534 project would be approximately $356,828, effectively 35% of the total estimated cost. If the project is awarded, the City is not obligated to accept funds, but not accepting them could lower chances for future funding opportunities. The project, if awarded, will be funded from Park Fees collected and deposited in the Park Trust Fund. Alternatively, funding could be requested from Collin County by submitting the project for the portion of the Collin County 2018 Bond allocated for parks -related projects. Preliminary applications are due April 12, 2019 with detailed applications due by August 15, 2019. Projects are expected to be awarded in December 2019. A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING AND AUTHORIZING NOMINATION OF A TEXAS DEPARTMENT OF TRANSPORTATION, TRANSPORTATION ALTERNATIVES SET -ASIDE PROGRAM PROJECT. MOTION: Council Member Toten moved to approve. Council Member Bryan seconded. Motion carried 5-0. 8. Consider/Discuss/Action regarding an Ordinance adopting the 2019 Water Conservation Plan and the 2019 Water Resource and Emergency Management Plan. (Joseph Johnson) The Texas Commission on Environmental Quality (TCEQ) governs the development of water conservation plans for municipal uses by public water suppliers under Title 30, Chapter 288, Subchapter A, Section 288.2 of the Texas Administrative Code JAC). A water conservation plan is a strategy or combination of strategies for reducing the volume of water withdrawn from a water supply source, for reducing the loss or waste of water, for maintaining or improving efficiency in the use of water, and for increasing the recycling and reuse of water. The TCEQ also governs the development of drought contingency plans (also Water Resource and Emergency Management Plan) under Title 30, Chapter 288, Section 288.20 of the TAC. The purpose of a drought contingency plan is to create and implement a strategy for temporary supply and demand management responses to temporary and potentially recurring water supply shortages and other water supply emergencies. The TAC requires that the plans be updated at least once every five years. Over the past several months, staff has worked closely with North Texas Municipal Water District (NTMWD) and the Greater Texoma Utility Authority (GTUA) to develop the draft plans. The City's plan must closely follow the GTUA plan which, in turn, follows the NTMWD plan. AN ORDINANCE ADOPTING THE 2019 WATER CONSERVATION PLAN AND THE 2019 WATER RESOURCE AND EMERGENCY MANAGEMENT PLAN FOR THE CITY OF ANNA, TEXAS TO PROMOTE RESPONSIBLE USE OF WATER AND TO PROVIDE FOR PENALTIES AND/OR THE DISCONNECTION OF WATER SERVICE FOR NONCOMPLIANCE WITH THE PROVISIONS OF THE WATER CONSERVATION PLAN. MOTION: Mayor Pike moved to approve. Council Member Bryan seconded. Motion carried 5-0. 9. Discuss/Consider/Action on a Resolution establishing the official name of what was once commonly know as Sherley Field to Sherley Heritage Park. (Maurice Schwanke) The Parks Board is recommending to the City Council that the area that was Sherley Field to be more accurately named Sherley Heritage Park as the area does have the historical Anna Depot located on it and there will be future improvements and additions that will lend itself to this name. The Parks Board and staff have been unofficially referring to the property as Sherley Heritage Park. A RESOLUTION OF THE CITY OF ANNA, RENAMI NG SHERLEY FI ELD TO SHERLEY HERITAGE PARK. MOTION: Council Member Miller moved to approve. Council Member Toten seconded. Motion carried 5-0. 10. Consider/Discuss/Action on an Ordinance Amending FY 2019 Budget. (Maurice Schwanke) At previous City Council meetings it has been discussed and the staff has been instructed to proceed with improvements to the Sherley Heritage Park as shown on the attached park concept plan. Those improvements include a pavilion, trails, a train track, a playground, improved bathroom facilities and lowering (burying) of the power lines on the west side of the park. Additionally, a replica Collin McKinney house is to be recreated. To facilitate moving this into reality, a budget amendment is necessary to move forward. We have received cost estimates for the pavilion ($134,000), the playground ($140,000), the restroom improvements ($11,000) the underground power lines ($55,000), and the tracks ($30,000). A subsequent budget amendment will be needed for the remaining items once the critical items have been constructed, which can be done at a later date suitable to the City Council. Constructing improvements at Sherley Heritage Park has been identified as a an action item under Goal 3: Making Anna a Great Place to Live, from the to -be approved City of Anna Strategic Plan 2019-2024. AN ORDINANCE AMENDING ORDINANCE NO. 783-2018 ADOPTING THE BUDGET FOR THE 2018-2019 FISCAL YEAR; PROVIDING FOR SAVINGS, SEVERABILITY AND REPEALING CLAUSES; PROVIDING FOR AN EFFECTIVE DATE; AND PROVIDING FOR THE PUBLICATION OF THE CAPTION HEREOF AND AUTHORIZING THE CITY MANAGER TO EXECUTE NECESSARY PURCHASE AGREEMENTS. MOTION: Council Member Toten moved to approve. Council Member Tutson seconded. Motion carried 5-0. 11. A. Conduct Public Hearing on adopting an ordinance amending the Juvenile Curfew Law (208-2005) (Lt. Copin) B. Consider/Discuss/Action adopting an ordinance amending the Juvenile Curfew Law (208-2005) (Lt. Copin) In 2005, the City adopted an ordinance that governed juvenile curfew. Per state law, every third year following the adoption of the ordinance, the City must hold a public hearing and establish the need for its continuance. At that time, the council may choose to abolish, continue, or modify the ordinance accordingly. If none of the above occur, the ordinance automatically expires. The renewal of this ordinance was scheduled to occur in December 2017. With the changes in city administration that occurred during that time, this ordinance was overlooked, and therefore expired. Because the ordinance expired, we must hold a public hearing on whether or not the ordinance should be reinstated. Based on the increase in juvenile crimes during the time periods listed in the ordinance, we believe it is in the best interest of public safety to reinstate this ordinance with the revised provisions. Mayor Pike opened the public hearing at 7:53 p.m. No comments. Mayor Pike closed the public hearing at 7:53 p.m. AN ORDINANCE OF THE CITY OF ANNA, TEXAS, ESTABLISHING A NEW CURFEW FOR MINORS; DEFINING TERMS; CREATING OFFENSES FOR MINORS, PARENTS AND GUARDIANS OF MINORS, AND BUSINESS ESTABLISHMENTS VIOLATING CURFEW REGULATIONS; PROVIDING DEFENSES; PROVIDING FOR ENFORCEMENT BY THE POLICE DEPARTMENT; PROVIDING FOR WAVIER BY THE MUNICIPAL COURT OF JURISDICTION OVER A MINOR WHEN REQUIRED UNDER THE TEXAS FAMILY CODE; PROVIDING FOR REVIEW OF THIS ORDINANCE WITHIN THREE YEARS AFTER THE DATE OF INITIAL ENFORCEMENT; PROVIDING A PENALTY NOT TO EXCEED $500; PROVIDING A SAVI NGS CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING AN EFFECTIVE DATE; AND PROVIDING FOR THE PUBLICATION OF THE CAPTION HEREOF. MOTION: Council Member Miller moved to approve. Council Member Bryan seconded. Motion carried 5-0. 12. Consider/Discuss/Action on an Ordinance authorizing TMRS Restricted Prior Service Credits (RPSC) (Jim Proce) Revise City of Anna Ord: 809-2019 to show effective date of May 1, 2019. TMRS requested that we revise the effective date as the first of the month. The prior action had an immediate effective date. Restricted Prior Service Credit Establishing Restricted Prior Service Credit (RPSC) helps employees reach vesting and retirement eligibility sooner. Only the service time is counted under RPSC. Employees/retirees do not receive any monetary credit (no buyback is involved). To be eligible to get Restricted Prior Service Credit, the City must offer this option. RSPC may be established if you have previous full-time employment with any of these entities: • A public authority or agency created by the U.S. government • A U.S. state or territorial government • Any political subdivision of any state in the U.S. • Any public agency or authority created by a state or territory of the U.S. • Any law enforcement entity that employed you as a college campus security employee at a Texas institution of higher education • Any of the Statewide Proportionate Retirement Systems in which you have refunded your account The benefits to the City of providing this option to employees and to prospective employees are as follows: • The City would be in alignment with most TMRS agencies in the region that provide this option as part of their retirement plan, ensuring that we can remain competitive in the recruitment market • It can be used as a recruitment tool, to attract folks who would otherwise pass on Anna, since they can get this benefit at other TMRS cities. • It can be used as employee retention tool, to keep existing employees from going to other agencies with the intent to acquire service credits to reach the 20 year threshold sooner. AN ORDINANCE AUTHORIZING AND ALLOWING, UNDER THE ACT GOVERNING THE TEXAS MUNICIPAL RETIREMENT SYSTEM, RESTRICTED PRIOR SERVICE CREDIT TO EMPLOYEES WHO ARE MEMBERS OF THE SYSTEM FOR SERVICE PREVIOUSLY PERFORMED FOR VARIOUS OTHER PUBLIC ENTITIES FOR WHICH THEY HAVE NOT RECEIVED CREDITED SERVICE; AND ESTABLISHING AN EFFECTIVE DATE FOR THE ORDINANCE. MOTION: Mayor Pike moved to approve. Council Member Tutson seconded. Motion carried 5-0. 13. 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). Consultant Contract, Meeting Procedures, zoning ordinance b. Discuss or deliberate the purchase, exchange, lease, or value of real property (Tex. Gov't Code §551.072); city facilities; acquisition of easements C. Discuss or deliberate Economic Development Negotiations: (1) To discuss or deliberate regarding commercial or financial information that the City has received from a business prospect that the City seeks to have locate, stay, or expand in or near the territory of the City of Anna and with which the City 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); possible incentive agreements with property developers; pending negotiations on development agreements. d. Discuss or deliberate personnel matters (Tex. Gov't Code §551.074); City Attorney Annual Review, Boards and Commissions None. 14. Consider/Discuss/Action on any items listed on the posted agenda or any closed session occurring during this meeting, as necessary None. 15. Adjourn. Mayor Pike adjourned the meeting at 7:59 p.m. Approved on the April 23, 2019. Mayor Nate Pike ATTEST: City Secretary Carrie L. Smith THE CITY OF AiAtia AGENDA ITEM: Review minutes of the Park Board (Maurice Schwanke) - October 15, 2018 - March 18, 2019 SUMMARY: STAFF RECOMMENDATION: ATTACHMENTS: Description October 15 Minutes March 18 Minutes Item No. 5.b. City Council Agenda Staff Report Meeting Date: 4/23/2019 Upload Date Type 4/18/2019 Backup Material 4/18/2019 Backup Material MINUTES ANNA PARK BOARD MEETING October 15, 2018 The Park Board of the City of Anna held a regular scheduled meeting on Monday, October 15, 2018 at 7:00 p.m. at the Community Room of Anna City Hall Administration Building, located at 111 North Powell Parkway (Hwy 5), to consider the following items. 1. Call to order and establishment of quorum. The meeting was called to order at 7:00 p.m. Members present were Andy Michrina, Aubrey Johnson, Eirik Hansen, Judith Waldrop, Ginny Finan and Kirby Barrett. Staff present was Maurice Schwanke and Matt Lewis. Danna Ward was absent from meeting. 2. Consider/Discuss/Action on Anna City Dog Park. Following discussion, a motion was made by Judith Waldrop seconded by Ginny Finan to recommend to Council approval to have a dog park at slayter creek park. Motion Carried 3. Consider/Discuss/Action on all City Parks. Mr. Schwanke provided updates regarding all Parks. Mention was made that the City may want to put Christmas lights on the proposed locomotive. No action was taken. 4. Discussion: Boating rules for water bodies in Anna. No Action was taken on the above item. 5. Park Minutes - September 17, 2018 A motion was made by Ginny Finan, seconded by Judith Waldrop to approve Minutes of the September 17, 2018 meeting. Motion Carried 6. Adjourn A motion was made by Ginny Finan, seconded by Judith Waldrop to adjourn meeting. The meeting adjourned at 7:30 p.m. Maurice Schwanke Director of Planning & Development ATTEST: 6::;;; A V MINUTES ANNA SPECIAL PARK BOARD MEETING March 18th, 2019 The Park Board of the City of Anna held its special meeting on Monday, March 18th, 2019 at 7:00 p.m. at the Community Room of Anna City Hall Administration Building, located at 111 North Powell Parkway (Hwy 5), to consider the following items. 1. Call to Order and Establishment of Quorum The meeting was called to order at 7:00 p.m. Members present were Ginny Finan, Kirby Barrett, Aubrey Johnson, Andy Michrina, Eirik Hansen and Judith Waldrop. Staff present was Maurice Schwanke, Matt Lewis and Ashley Stathatos. Danna Ward was absent from meeting. 2. Consider/Discuss /Action concerning the recommendation of officially changing the name of Sherley Field to Sherley Heritage Park. Following discussion, a motion was made by Judith Waldrop, seconded by Eirik Hansen to approve changing Sherley Field park to Sherley Heritage Park. Motion Carried 3. Consider/Discuss/Action concerning the recommendation of a concept plan for Sherley Heritage Park. No action was taken on the above agenda item. 4. Park Minutes A. February 25, 2019 A motion was made by Judith Waldrop, seconded by Eirik Hansen, seconded by to approve Minutes of the February 25, 2019 meeting. Motion Carried 5. Adjourn A motion was made by Judith Waldrop, seconded by Eirik Hansen to adjourn meeting. The meeting adjourned at 8:09 p.m. 'Maurice Schwanke Director of Planning & Development ATTEST: THE CITY OF AiAtia AGENDA ITEM: Item No. 5.c. City Council Agenda Staff Report Meeting Date: 4/23/2019 Review Minutes of the January 3, 2019 Economic Development Corporation Meeting. (Joey Grisham) SUMMARY: The January 3, 2019 meeting minutes are enclosed for review. STAFF RECOMMENDATION: Review the January 3, 2019 Economic Development Corporation meeting minutes. ATTACHMENTS: Description Upload Date Type January 2019 E D C Minutes 4/17/2019 Staff Report Anna Economic Development Corporation Meeting Minutes Thursday, January 3, 2019 at 6:30 pm Anna City Hall, Council Chambers IWAMM ECONOMIC 111 N. Powell Parkway, Anna, Texas 75409 DEVELOPMENT CORPORATION CDC Board Members Present: Anthony Richardson, Josh Vollmer, Bruce Norwood, Stan Carver, CDC Board Members Absent: Shelby Miles, Jim Gurski, Rocio Gonzalez Staff Present: Jessica Perkins, Ashley Stathatos 1. Call to Order, Roll Call and Establishment of Quorum. Anthony Richardson called the meeting to order at 7:36 pm. 2. Citizen Comments. No citizens came forward to speak at citizen comments. 3. Consider/Discuss/Action regarding obtaining an appraisal for the Inc -Cube building located at 312 North Powell Parkway. A recommendation was made to obtain an appraisal later in the process. An offer on the property and building has not been received, yet. No action taken. 4. Consider/Discuss/Action regarding minutes from November 1, 2018. Stan Carver made a motion to approve the minutes as submitted. Jim Gurski seconded the motion. All were in favor. Motion passed. 5. Adjourn. A motion was made by Antho meeting at 7:50 pnyl APPROVED: Anthony Richard: President of EDC chardson and seconded by Josh Vollmer to adjourn the ED: rr Jim Gu ki Secret ry of EDC 'NOTICE REGARDING MEETING TIME: In the event that the Anna Economic Development Corporation meets at the same time and place scheduled for this meeting, then this meeting will be delayed and will begin immediately after the conclusion of the meeting of the Anna Community Development Corporation. IMPORANT LEGAL NOTICE: The Corporation may vote and/or act upon each of the items listed in this agenda. The Corporation 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 Meetings Act. Disabled person who want to attend the meeting and 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. 1-3-2019 Reg EDC Meeting — Page 1 THE CITY OF AiAtia AGENDA ITEM: Item No. 5.d. City Council Agenda Staff Report Meeting Date: 4/23/2019 Review Minutes of the February 13, 2019 Economic Development Corporation meeting. (Joey Grisham) SUMMARY: The February 13, 2019 meeting minutes are enclosed for review. STAFF RECOMMENDATION: Review the February 13, 2019 Economic Development Corporation meeting minutes. ATTACHMENTS: Description Upload Date Type February EDC Meeting Minutes 4/17/2019 Staff Report Anna Economic Development Corporation Meeting Minutes Thursday, February 13, 2019 at 6:30 p.m. Anna City Hall, Council Chambers EC NU IC 111 N. Powell Parkway, Anna, Texas, 76409 DEVELOPMENT ia3RPORATI ON CDC Board Members Present: Anthony Richardson, Josh Vollmer, Jim Gurski, Shelby Miles, Bruce Norwood, Stan Carver, Rocio Gonzalez Staff Present: Jim Proce, Joey Grisham, Ashley Stathatos 1. Call to Order, Roll Call and Establishment of Quorum. Anthony Richardson called the meeting to order at 10:40 pm. 2. Citizen Comments. No citizens came forward to speak at citizen comments. 3. Consider and Discuss Loopnet Subscription. Loopnet is one of the most frequented commercial real estate listing sites. The cost to list Anna Business Park on Loopnet is $69 a month. 4. Consider/Discuss/Action approving a resolution authorizing payment for Loopnet Subscription. Stan Carver made a motion, and the motion was seconded by Jim Gurksi to approve the resolution authorizing payment for a Loopnet Subscription to list Anna Business Park. All in favor. None opposed. Consider/Discuss/Action regarding approving a resolution authorizing changes to the EDC Bylaws. The following changes have been made to the EDC Bylaws: -Regular meetings can be called without passing a resolution -The Mayor, City Council and City Manager may attend executive session, closed meetings of the Board -Amendments within the EDC funds may be approved by the Chief Administrative Officer if the overall budget is not increased -Reasonable and customary travel expenditures are permitted It was pointed out that there is a typo on Page 8 in section #5 that needs to be fixed. A motion was made by Jim Gurski and seconded by Shelby Miles to approve the resolution authorizing changes to the EDC Bylaws. All in favor. None opposed. 6. Consider/Discuss/Action regarding approving the minutes from January 2019. The January 2019 minutes will be provided at the next EDC meeting. IMPORTANT LEGAL NOTICE: The Corporation may vote and/or act upon each of the items listed in this agenda. The Corporation 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 Meetings Act. Disabled persons who want to attend this meeting and 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. 7. Adjourn. A motion was made by Anthony Richardson and seconded by Josh Vollmer to adjourn the meeting at 10:50 pm. APPROVED: TESTS 1 Anthony 'chardso i Gurski President of EDC ecretary of EDC IMPORTANT LEGAL NOTICE: The Corporation may vote and/or act upon each of the items listed in this agenda. The Corporation 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 Meetings Act. Disabled persons who want to attend this meeting and 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. THE CITY OF AiAtia AGENDA ITEM: Item No. 5.e. City Council Agenda Staff Report Meeting Date: 4/23/2019 Review Minutes of the March 7, 2019 Economic Development Corporation Meeting. (Joey Grisham) SUMMARY: The March 7, 2019 Economic Development Corporation meeting minutes are enclosed for review. STAFF RECOMMENDATION: Review the March 7, 2019 Economic Development Corporation meeting minutes. ATTACHMENTS: Description Upload Date Type March 2019 EDC Minutes 4/17/2019 Staff Report Anna Economic Development Corporation Meeting Minutes Thursday, March 7, 2019 at 6:30 pm Anna City Hall, Council Chambers 111 N. Powell Parkway, Anna, Texas 75409 EDC Board Members Present: Anthony Richardson, Shelby Miles, James Gurski, Rocio Gonzalez, Stan Carver, Bruce Norwood, Josh Vollmer. No Board Members were absent. Staff Members present: Jim Proce (City Manager), Joey Grisham (EDC Director), Ashley Stathatos (CAO) and CDC/EDC Legal Counsel Clark McCoy. 1. Call to Order, Roll Call and Establishment of Quorum. Board President Anthony Richardson called the meeting to order at 8:35 pm. 2. Citizen Comments. No citizens came forward to speak at citizen comments. 3. Consider/Discuss/Action regarding approving the minutes from January and February 2019. Josh Vollmer made a motion to table the minutes from the January and February 2019 meetings so that a few errors could be corrected. Bruce Norwood seconded the motion. All were in favor. Motion passed. 4. Provide update on real estate proposals for representing/listing Anna Business Park. Joey Grisham stated that he was soliciting proposals from real estate brokers for the Anna Business Park and that he expected at least five firms to submit. He expects to be making a recommendation at the April EDC Meeting. 5. CLOSED SESSION (exceptions): a. Consult with legal counsel 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); b. Discuss or deliberate Economic Development Negotiations: 1 NOTICE REGARDING MEETING TIME: In the event that the Anna Economic Development Corporation meets at the same time and place scheduled for this meeting, then this meeting will be delayed and will begin immediately after the conclusion of the meeting of the Anna Community Development Corporation. IMP ORANT LEGAL NOTICE: The Corporation may vote and/or act upon each of the items listed in this agenda. The Corporation 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 Meetings Act. Disabled person who want to attend the meeting and 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. 3-7-19 Reg EDC Meeting — Page 1 (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) Anna Business Park Property; potential retail projects. The EDC Board did not go into closed session. 6. Act on closed session items. No action was taken. 7. Adjourn. Bruce Norwood made a motion to adjourn the meeting at 8:54 pm. Jim Gurski seconded the motion. All were in favor. Motion passed. 1 APPROVED: ' T TED: ` Anthony Ric ardso Jim u ski President of EDC Secre ary of EDC 'NOTICE REGARDING MEETING TIME: In the event that the Anna Economic Development Corporation meets at the same time and place scheduled for this meeting, then this meeting will be delayed and will begin immediately after the conclusion of the meeting of the Anna Community Development Corporation. IMPORANT LEGAL NOTICE: The Corporation may vote and/or act upon each of the items listed in this agenda. The Corporation 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 Meetings Act. Disabled person who want to attend the meeting and 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. 3-7-19 Reg EDC Meeting —Page 2 THE CITY OF AiAtia AGENDA ITEM: Item No. 5.f. City Council Agenda Staff Report Meeting Date: 4/23/2019 Review Minutes of the March 7, 2019 Community Development Corporation Meeting. (Joey Grisham) SUMMARY: The March 7, 2019 meeting minutes are enclosed for review. STAFF RECOMMENDATION: Review the March 7, 2019 Community Development Corporation meeting minutes. ATTACHMENTS: Description Upload Date Type March 2019 CDC Minutes 4/17/2019 Staff Report Anna Community Development Corporation Meeting Minutes Thursday, March 7, 2019 at 6:30 pm Anna City Hall, Council Chambers 111 N. Powell Parkway, Anna, Texas 75409 CDC Board Members Present: Anthony Richardson, Shelby Miles, James Gurski, Rocio Gonzalez, Stan Carver, Bruce Norwood, Josh Vollmer. No Board Members were absent. Staff Members present: Jim Proce (City Manager), Joey Grisham (EDC Director), Ashley Stathatos (CAO), and Clark McCoy (CDC/EDC Legal Counsel) 1. Call to Order. Roll Call and Establishment of Quorum. The meeting was called to order by Anthony Richardson, Board President, at 6:37 pm. 2. Invocation and Pledge. Invocation and pledge of allegiance led by Anthony Richardson. 3. Citizen Comments. No citizens came forward for citizen's comments. 4. Consider/Discuss/Action approving minutes from the CDC meeting from January and February 2019. Josh Vollmer made a motion to approve the minutes from the January and February 2019 meetings. Jim Gurksi seconded the motion. All were in favor. Motion passed. 5. Consider and Discuss Residential Strategies Market Summary Reports. Joey Grisham stated that the CDC had commissioned a MetroStudy report in 2018 and that the CDC needs more updated housing data including housing starts, active subdivisions, vacant lots, future lots, occupied homes, and median home price. This info is supplied to developers, brokers, prospective businesses and home builders and is especially useful when recruiting retailers and restaurants. Mr. Grisham recommended using a different firm called Residential Strategies, which looks at a larger trade area than MetroStudy. The cost of the report is $1,750. 6. Consider/Discuss/Action approving a resolution authorizing payment for Residential Strategies Reports. Stan Carver made a motion to approve the resolution authorizing an agreement and expenditure of funds for a residential market summary report with Residential Strategies. Jim Gurski seconded the motion. All were in favor. Motion passed. IMPORTANT LEGAL NOTICE: The Corporation may vote and/or act upon each of the items listed in this agenda. The Corporation 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 Meetings Act. Disabled persons who want to attend this meeting and 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. 7. Consider and Discuss Real Massive to finish out the CDC's online property database. Joey Grisham provided an overview of Real Massive, which is an online real estate solutions company that provides an extensive listing of commercial properties. He stated that the Zoom Prospector tool that the CDC uses provides the platform and Real Massive populates it with commercial properties allowing us to finish out the CDC's online property database. Real Massive works closely with real estate brokerage firms and others to maintain an accurate database of properties and updates them twice weekly. 8. Consider/Discuss/Action approving a resolution authorizing payment for Real Massive. Anthony Richardson made a motion to approve the resolution authorizing an agreement and expenditure of funds on a quarterly basis, subject to approval by legal counsel, with Real Massive to provide commercial real estate listing data. Josh Vollmer seconded the motion. All were in favor. Motion passed. 9. Consider and Discuss Community & Economic Development marketing pieces. Joey Grisham and Ashley Stathatos both stated that the CDC needs several marketing tools including a new website, brochures, trade show booth, promotional items, professional photos, and updated aerial maps. At the last meeting, staff requested that $15,000 be released to begin the creative work, however, after reassessing the phasing of design work, interviewing additional firms, and receiving more quotes, staff is requesting that the remaining unallocated promotional funds be released. Ashley Stathatos said that $90,000 was allocated in the FY 2019 budged for promotional expenses and that approximately $45,000 was available. She also stated that staff would research how much the CDC and EDC had in unexpended promotional funds in past years which by law can used with approval from the Board and City Council. Lastly, staff believed that Misfit Brands had the most thorough proposal and offered the most experience in dealing with Economic Development Corporations and Cities. 10. Consider/Discuss/Action approving a resolution authorizing payment for the design of new marketing pieces. Josh Vollmer made a motion to approve the resolution authorizing an agreement and expenditure of funds not to exceed $45,000 for marketing and promotional purposes to provide professional graphic design services. Shelby Miles seconded the motion. All were in favor. Motion passed. 11. Consider/Discuss/Action on ICSC RECON. Joey Grisham reminded the Board that the ICSC RECON Show was coming up in May which is the world's largest retail real estate convention. He stated that in the FY 2019 budget, only two people were budgeted to attend and that additional funds would need to be identified if more people were to attend. He also stated that he needs to know soon who would be attending so that travel arrangements could be made. No action was taken. IMPORTANT LEGAL NOTICE: The Corporation may vote and/or act upon each of the items listed in this agenda. The Corporation 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 Meetings Act. Disabled persons who want to attend this meeting and 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. 12. CLOSED SESSION (exceptions): Consult with legal counsel 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); b. 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) Anna Business Park Property; potential retail projects. The CDC Board did not go into closed session. 13. Act on closed session items No action was taken. 14. Announcements: Ashley Stathatos stated that city board member applications were due on April V. 15. Adjourn. Anthony Richardson made a motion to adjourn the meeting at 8:28 pm. Stan Carver seconded the motion. All were in favor. Motion.passed. Anthony Richardson President of CDC ATTESTED: Jim ski Secr tary of CDC IMPORTANT LEGAL NOTICE: The Corporation may vote and/or act upon each of the items listed in this agenda. The Corporation 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 Meetings Act. Disabled persons who want to attend this meeting and 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. THE CITY OF AiAtia AGENDA ITEM: Review Quarterly Investment Report (Dana Thornhill) SUMMARY: Item No. 5.g. City Council Agenda Staff Report Meeting Date: 4/23/2019 In accordance with the Public Funds Investment Act, the City of Anna is required to submit a quarterly report on the investment of all Public Funds held by the City. The report includes the following: • Review of the City's holdings • Comparison of book vs. market value • Allocation information • Other information related to the PFIA The City's portfolio as of quarter ending March 31, 2019 earned an average yield of 2.36% and a year to date average yield of 2.31 %. The total year to date interest earnings are $598,612. The yield is up substantially from March 2018 where the average yield for the quarter was 1.00% and .73% for the year to date. This is due to the consolidation of bank accounts allowing the City to invest more funds in local government investment pools, certificates of deposits, and money market accounts, as well as obtaining an increased interest rate with funds held at the bank's depository. The Quarterly Investment Report for March 31, 2019 is attached for review. STAFF RECOMMENDATION: No action by the City Council is required. ATTACHMENTS: Description Upload Date Type Quarterly Investment Report for Quarter Ending March 4/15/2019 Staff Report 31, 2019 THE CITY OF manna QUARTERLY INVESTMENT REPORT For the Quarter Ended March 31, 2019 The investment portfolio of the City of Anna is in compliance with the Public Funds Investment Act and the Investment Policy and Strategies. City Manager Finance Director Accountant 11 Summary Investment Report January 1, 2019 to March 31, 2019 Quarter End Results by Investment Category: Asset Type Ave. Yield Bank DDA 1.92% Money Market 2.52% Texpool 2.40% CDs 2.75% Totals Current Quarter Average Yield Total Portfolio 2.36% March 31, 2019 Book Value Market Value $ 11,784,945 $ 11,784,945 $ 7,069,501 $ 7,069,501 $ 29,979,572 $ 29,979,572 December 31, 2018 Book Value Market Value $ 10,172,014 $ 10,172,014 $ 7,026,022 $ 7,026,022 $ 29,802,778 $ 29,802,778 $ 6,833,653 $ 6,833,653 $ 8,801,774 $ 8,801,774 $ 55,667,670 $ 55,667,670 $ 55,802,588 $ 55,802,588 Quarterly Interest Income $324,465 Year-to-date Interest Income $598,612 Fiscal Year -to -Date Average Yield Total Portfolio 2.31 % Investment Report January 1, 2019 to March 31, 2019 Summary of Total Investment Book Value by Fund Group 3/31119 General Fund $ 7,226,969 Debt Service Funds 722,309 General Capital Projects Non Bond 1,842,240 General Capital Projects Bond 30,452,354 Special Revenue Funds 2,664,032 Water & Sewer Fund 3,303,328 Utilities Funds - Restricted 8,562,349 EDC 213,045 CDC 681,043 TOTAL $ 55,667,670 12/31 /18 $ 6,505,998 1,504,848 2,165,436 31,805,802 2,407.290 4,607,505 5,879,470 212,074 714,165 $ 55,802,588 Investment Holdings Investment Report January 1, 2019 to March 31, 2019 Maturity Purchase March 31, 2019 December 31, 2018 Qtr to Qtr Description Yield Date Date Book Value Market Value Book Value Market Value Change Independent Bank 1.92% 1/1/2019 $ 11,784,945 $ 11,784,945 $ 10,172,014 $ 10,172,014 $ 1,612,931 Landmark Bank 2.52% 1/1/2019 $ 7,069,501 $ 7,069,501 $ 7,026,022 $ 7,026.022 $ 43,479 TexPool 2.40% 1/1/2019 $ 29,979,572 $ 29,979,572 $ 29,802,778 $ 29,802,778 $ 176,793 Legacy Texas CD #6092 2.45% 3/20/2019 9/20/2018 $ - $ - $ 2,013,559 $ 2,013,559 $ (2,013,559) Landmark Bank CD #8451 2.53% 5/7/2019 11/7/2018 $ 504,991 $ 504.991 $ 501,872 $ 501,872 $ 3,119 American Nat'l Bank CD #1729 2.55% 6/20/2019 9/20/2018 $ 2,026,688 $ 2.026.688 $ 2,014,112 $ 2,014,112 $ 12,576 American Nat'l Bank CD #2891 2.64% 8/1/2019 11/1/2018 $ 505,425 $ 505,425 $ 502.170 $ 502,170 $ 3,255 American Nat'l Bank CD #1737 2,66% 9/19/2019 9/19/2018 $ 253,498 $ 253,498 $ 251,858 $ 251,858 $ 1,640 American Nat'l Bank CD #2883 2.84% 11/1/2019 11/1/2018 $ 2,023,342 $ 2,023,342 $ 2,009,337 $ 2,009,337 $ 14,005 American Nat'l Bank CD #1745 2.86% 3/20/2020 9/20/2018 $ 253,742 $ 253,742 $ 251,978 $ 251,978 $ 1,764 American Nat'l Bank CD #2875 2.94% 5/1/2020 11/1/2018 $ 1,012,082 $ 1,012,082 $ 1,004,833 $ 1,004,833 $ 7,249 Legacy Texas CD #6094 2.97% 9/21/2020 9/20/2018 $ 253,885 $ 253,885 $ 252,055 $ 252,055 $ 1,830 TOTAL $ 55,667,670 $ 55,667,670 $ 55,802,688 $ 55,802,588 $ (134,917) Portfolio Comparison Money Market Bank IaL MBank ■CD ■Pools ■Money Market Total Portfolio 60,000,000 50,000,000 40,000,000 30,000,000 20,000,000 10,000,0000 I I I I h6 h'1 ,y1 ,y1 ,y'1 ,y0 h6 'y4 h0 h9 Total Portfolio Performance 3 2.5 2 1.5 _...... 1 _... _._.... _..... 0.5 _.. 0 Dec-16 Mar-17 Jun-17 Sep-17 Dec-17 Mar-18 Jun-18 Sep-18 Dec-18 Mar-19 —Texpool —Weighted Average Yield THE CITY OF AiAtia AGENDA ITEM: Item No. 6. City Council Agenda Staff Report Meeting Date: 4/23/2019 Discuss the effectiveness of the existing outdoor warning system and the proliferation of modern technologies that provide substantial improvement in services. (Chief Isom) SUMMARY: During the most recent monthly test of the siren system, an inoperable radio resulted in the loss of remote activation capabilities. Repairs were hindered by the age and quality of the components that comprise the current transmitting arrangement. On -site manual activation is cumbersome and adds unacceptable risk to staff when attempting to activate during a storm. Due to budgetary constraints over the years, temporary solutions have been utilized to maintain functionality. A combination of makeshift repairs and sub -par transmitting equipment inevitably caused a one-dimensional activation procedure which limited contingency options. Antiquated equipment, lack of communication capabilities (multiple failure points), ineffective procedures, and unplanned repair costs are a less than ideal configuration in which to operate these devices. The sirens themselves implement an outdated technology that is not effective in relaying specific messages to our community causing confusion to those who hear the sirens. Monthly testing also results in misunderstandings and unattainable expectations. New siren installations are expensive; approximately $37,300 per siren if upgraded to a digital platform. The cost for a total digital conversion with expanded diagnostics is approximately $12,000. The annual service agreement costs $2,825 but only includes battery replacement. Costs for mechanical repairs, radios, transmitters, and replacement equipment are not included. Labor expenses are $125 per hour plus travel costs and there are a shortage of qualified technicians. This places technicians in high demand which increases repair response times. Future expansion of the system will require the installation of a large and expensive infrastructure and support platform. Given the proliferation of new and more advanced technologies, the effectiveness of an outdoor warning system must be closely examined. The fire department is requesting direction on the future of this system as a reassessment of priorities is needed. STAFF RECOMMENDATION: Consider the cost benefits of the existing system and the possibility of implementing more effective technologies. THE CITY OF AiAtia AGENDA ITEM: Item No. 7. City Council Agenda Staff Report Meeting Date: 4/23/2019 Consider/Discuss/Action regarding a Resolution authorizing the City Manager to execute a contract with KI K Underground, LLC of Richardson, Texas for the Suzie Lane Water Line Project. (Joseph Johnson) SUMMARY: Council previously granted authorization to solicit competitive sealed proposals for the East-West Collector Water Line Project, now called the Suzie Lane Water Line Project. The project is generally located near the northwest corner of US 75 and FM 455 and includes 1,565 linear feet of 12" water line and appurtenances. The proposed line will connect to an existing 12" line on the east side of US 75, run under US 75, then extend through a planned commercial site with the line terminus at a future large residential development. On March 28, 2019 at 3:00 PM, competitive sealed proposals were publicly opened and read for the project. Six proposals were received. A committee subsequently evaluated the proposals and each committee member independently ranked the proposals based on a standard weighted scoring matrix. Our engineering consultant (Birkhoff, Hendricks & Carter) has evaluated the proposals received, checked references, contractor's qualifications, contractor's ability to perform the project, and reviewed the committee's scoring matrices. The consultant has subsequently recommended that the City accept the proposal from KI K Underground, LLC and award them a contract in the amount of $319,003.00. Funding is available for the project in collected water impact fees assigned for this purpose. STAFF RECOMMENDATION: Staff recommends approval of the Resolution authorizing the City Manager to execute a contract with KI K Underground, LLC of Richardson, Texas for the Suzie Lane Water Line Project. ATTACHMENTS: Description Upload Date Type Resolution 4/16/2019 Resolution Exhibit A - Contract 4/16/2019 Exhibit Contract Award Recommendation Letter 4/16/2019 Backup Material Bid Summary 4/16/2019 Backup Material Bid Tabulation 4/16/2019 Backup Material CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT WITH KIK UNDERGROUND, LLC OF RICHARDSON, TEXAS FOR THE SUZIE LANE WATER LINE PROJECT. WHEREAS, the Suzie Lane Water Line Project (the "Project") is necessary to facilitate commercial development and provide adequate looping in the water system; and, WHEREAS, the City Council of the City of Anna, Texas (the City Council) has previously authorized the City Manager to solicit competitive sealed proposals for the Project; and, WHEREAS, the City of Anna, having solicited competitive sealed proposals in accordance with State law, received and opened six competitive sealed proposals on March 28, 2019 at 3:00 P.M.; and, WHEREAS, a committee evaluated and scored said proposals, each member reviewing the proposals independently utilizing a standard weighted scoring matrix; and, WHEREAS, KIK Underground, LLC of Richardson, Texas submitted a project bid as part of their proposal having submitted a bid of $319,003.00; and, WHEREAS, the City of Anna's consulting engineer, having evaluated the committee's scoring matrices, contractor proposals, and contractor qualifications has recommended award of the contract to KIK Underground, LLC in the amount of $319,003.00; and, WHEREAS, there are funds available for the Project in collected water impact fees, said funds being assigned for this purpose; and, WHEREAS, the City Council desires to authorize the City Manager to award the Project bid to and execute a contract with KIK Underground, LLC 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. Authorization of Contract Award. The City Council hereby approves the contract agreement (the Agreement) with KIK Underground, LLC of Richardson, Texas, for the Project, attached hereto as Exhibit A, and authorizes, ratifies and approves the City Manager's execution of the same subject to final legal review and approval by the City Attorney. The City Manager is hereby authorized to Resolution No. PAGE 1 OF 2 Suzie Lane Water Line Contract Award 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 23rd day of April 2019. ATTEST: APPROVED: City Secretary Carrie L. Smith Mayor Nate Pike Resolution No. Suzie Lane Water Line Contract Award PAGE 2OF2 QUALIFICATION STATEMENT OF BIDDERS SUBMITTED TO: City of Anna Reviewed by: Date Received: Contractor: CIRCLE ONE: ❑ Sole Proprietor Name: Address: City: Phone: Principal Place of Business: ❑ Partnership ❑ Corporation ❑ Joint Venture 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 BEHALF OF CORPORATION. - Name: Address: Title: Phone: City State Zip Names of Officers: (If Applicable) List Number of Employees Working For Contractor: LIST ALL EQUIPMENT TO BE USED ON THIS PROJECT: (Please Use Attachment) Number of Years li Business as a General Contractor on Projects similar to this Project: TYPE(S) OF WORK DONE: (CIRCLE) ❑ Asphalt Paving ❑ Storm Sewer ❑ Water & Sanitary Sewer Lines ❑ Concrete Paving ❑ Earth Work ❑ Steel Erection ❑ Misc. Concrete ❑ Bridge Work ❑ Painting ❑ Channel Lining ❑ Demolition ❑ Fog Seal ❑ Pump Stations ❑ Landscaping ❑ Chip Seal Concrete Structures: Inlets, Box Culverts, Junction Boxes Other: Comments: j1clerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contraetk05-qualification statement docx - 9 - Qualification Statement CONTRACTOR QUALIFICTIONS Provide Only Five Separate Municipal Projects: Experience shall be on Water Line Projects. All projects must have been completed in the past 5-years. Project 1: (Limit description to 300-words): Project Description: Owner/Agency: Contract Price: Contact Person: Phone: Date Started: Date Completed: Project 2: (Limit description to 300-words): Project Description: Owner/Agency: Contract Price: Contact Person: Date Started: Project 3: (Limit description to 300-words): Project Description: Phone: Date Completed: Owner/Agency: Contract Price: Contact Person: Phone: Date Started: Date Completed: i lcleriraltanna}2098- i 30 e-w collector (suzia lane water Iine)4specslcontractiC5-qualification statement aacx - 1 O - Qualification Statement Project 4: (Limit description to 300-words): Project Description: Owner/Agency: Contract Price: Contact Person: Date Started: Project 5: (Limit description to 300-words): Project Description: Owner/Agency: Contract Price: Contact Person: Date Started: Phone: Date Completed: Phone: Date Completed: • Provide total number of Municipal Water Line Projects that your company has completed: • List total number of projects completed with City of Anna: • List all worker days lost due to job site safety and/or accidents within last 5-years: • Provide summary of safety program and name of Safety Officer: (USE ATTACHMENTS IF NECESSARY) jiclerical\anna\2016-130 a-w collector (suzie lane water line)\specs\contract\05-qualification statement.docx - 11 - Qualification Statement If Company is under new mans. ement. please list names of staff and qualification and/or experience of said persons. (please use attachment.) Have you or any present Partner(s) or Officer(s) 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: Other Credit References: Name: Address: 1 I IVI Il+. City: State: Position: Phone: Name: Address: Phone: "1,- Claims and Suits (If the answer to any of the questions is yes, please attach details): on separate sheet of paper: Has your organization ever failed to complete any work awarded to it? ❑ Yes ❑ No Are there any judgments, claims, arbitration proceedings, or suits pending or outstanding against your organization or its officers? ❑ Yes ❑ No Has your organization filed any lawsuits or requested arbitration with regard to construction contracts within the last five years? ❑ Yes ❑ No Within the last five years, has any officer or principal of your organization ever been an officer or principal of another organization when it failed to complete a construction contract? ❑ Yes ❑ No j:\clerical\annM2018-130 a-w collector (suzie lane water line)\specs\contract\05-qualification statement docx - 1 2 - Qualification Statement 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: Phone: Address: City: State: jAclencat\anna\2016-130 a-w collector (suzie lane water line)\specs\contract\05-qualification statement.docx - 1 3 - Qualification Statement QUALIFICATION STATEMENT OF BIDDER'S SURETY SUBMITTED TO: City of Anna BIDDER: KIK Underground, LLC ADDRESS: P.O. Box 850787 PHONE: 214 507-8465 1. Has this surety furnished contract bonds on contracts now complete? 2- Has this surety furnished contract bonds on contracts now incomplete? 3. 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: Philadelphia Indemnity Insurance Company SIGNED: Michael B. Hill TITLE: Attome -in-Fact ADDRESS: One Bala Plaza E., Suite 100 CITY: Bala Cynwyd STATE: PA ZIP: 19004-1403 PHONE: (610) 206-7836 (IN DUPLICATE) j:\clerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\05-qualification statement docx - 1 4 - Qualification Statement PREVAILING WAGE RATES FOR MUNICIPAL CONSTRUCTION IN ANNA, TEXAS General Decision: TX190018 TX18 Date: 01 /04/2019 Construction Types: Heavy Counties: Collin, Dallas, Denton, Ellis, Kaufman and Rockwall Counties in Texas. Rates are for Heavy — Water & Sewer Lines / Utilities (including Related Tunneling where the Tunnel is 48" or less in diameter) construction projects only. For other wage rates or for updated rates, please the Texas General Decision County Index located at hit ://www. o. ov/davisbacon/tx.html jAclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\06a-wage rates.docx - 1 5 - Prevailing wage Rates 302019 ntlpea`hvw m4kLgaVlwdcUscailealdsvisbacwlTX1&cNb?v=p General Decision Number: TX190018 01104/2019 TX18 Superseded General Decision Number: TX29180028 State: Texas Construction Type; Heavy Counties: Collin, Dallas, Denton, Ellis, Kaufman and Rockwall Counties in Texas. Water and Sewer Lines/Utilities (Including Related Tunneling Where the Tunnel is 48" or Less in Diameter) Note: under Executive order (E©) 13658, an hourly minimum wage of $10.60 for calendar year 2019 applies to all contracts subject to the Davis -Bacon Act for which the contract is awarded (and any solicitation was issued) on or after 3anuary 1, 2015. If this contract is covered by the 50, the contractor rust pay all workers in any classification listed on this wage determination at least $10.60 per hour (or the applicable wage rate listed on this wage determination, if it is higher) for all hours spent performing on the contract in calendar year 2019. If this contract is covered by the Ed and a classification considered necessary for performance of work on the contract does not appear on this wage determination, the contractor must pay workers in that classification at least the wage rate determined through the conformance process set forth in 29 CPR Sv5(a)(1)(ii) (or the E4 minimum wage rate, If it is higher than the conformed wage rate). The to minimum wage rate will be adjusted annually. Please note that this EQ applies to the above -mentioned types of contracts entered into by the federal government that are subject to the Davis -Bacon Act itself, but it does not apply to contracts subject only to the Davis -Bacon Related Acts, including those set forth at 29 CFR 5.1(a)(2)-(60). Additional Information on contractor requirements and worker protections under the EQ is available at www,dol.gav/whd/govcontracts. Modification Number Publication Date a 01104/2019 * PLLM0100-002 11/01/2017 Rates Fringes plumbers and Pipefitters... ,, _ $ 30.84 11.51 ............................................. SUTX1991-004 99123/1991 Rates Fringes Laborers: Common......................3 7.25 Utility .....................$ 7.467 Ripelayer .............4........... 7,828 Power equipment operators: hnpe:lAwww.wdoLgovPv"i3cat4awd avlebecon,TX 18.dva7v=O 1A jAclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\06a-wage rates docx - 1 6 - Prevailing Wage Rates 3MM19 httpaIMfwwltbaLgowlwd&scailegMaosbaeoeiiTX18.Oyb7voO Backhoe.....................$ 10.8" Crane .......................$ 10.942 Front End Loader......,....,$ 9.163 Tunneling Machine (48" or less) .......................$ 9,163 TRUCK DRIVER__ ................$ 8,528 ---------------------------------------------------------------- WELDERS - Receive rate prescribed for craft performing operation to which welding is incidental. Note. Executive Order (ED) 137e6, Establishing Paid Sick Leave for Federal Contractors applies to all contracts subject to the Davis -Bacon Act for which the contract is awarded (and any solicitation was issued) on or after January 1, 2017, if this contract is covered by the ED, the contractor must provide employees with 1 hour of paid sick leave for every 30 hours they work, up to 56 hours of paid sick leave each year. Employees must be permitted to use paid sick leave for their own illness, injury or other health -related needs, including preventive care; to assist a family member (or person who is like family to the employee) who is ill, injured, or has other health -related needs, including preventive care; or for reasons resulting from, or to assist a family member (or person who is like family to the employee) who is a victim of, domestic violence, sexual assault, or stalking. Additional information on contractor requirements and worker protections under the EO is available at www.dol.govlwhdlgowcontracts. Unlisted classifications needed for work not included within the scope of the classifications listed may be added after award only as provided in the labor standards contract clauses (29CFR S.5 (a) (1) (ii)). The body of each wage determination lists the cla55ification and wage rates that have been faund to be prevailing for the cited types) of construction in the area covered by the wage determination. The classifications are listed in alphabetical order of "identifiers" that indicate whether the particular rate is a union rate (current union negotiated rate for local), a survey rate (weighted average rate) or a union average rate (weighted union average rate). union Rate identifiers A four letter classification abbreviation identifier enclosed in dotted lines beginning with characters other than "Su" or "UAVG- denotes that the union classification and rate were prevailing for that classification in the survey. Example; PLUM8198-005 07/01/2014. PLUM is an abbreviation identifier of the union which prevailed in the survey for this classification, which in this example would be plumbers. 01118 Indicates the local union number or district council number where applicable, i.e., Plumbers Local 8198. The next number, @@S in the example, is an internal number used in processing the wage determination, 07101/2014 is the effective date of the mast current negotiated rate, which in this example is 3uly 1, 2014. hnps;rf wee.wdcL4ov.WdAscailesidavlebecorvTiSl9.dv0v=0 '>J4 jAclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\06a-wage rates. does - 1 7 - Prevailing wage Rates 31712018 frt�ls�'�wWw�,v�rtlgavJ�rrd�sesltlaShlsNabaennlTXl��b7v�0 Union prevailing wage rates are updated to reflect all rate changes in the collective bargaining agreement (CBA) governing this classification and rate. Survey Rate Identifiers Classifications listed under the "SU" identifier indicate that no one rate prevailed for this classification in the survey and the published rate is derived by computing a weighted average rate based on all the rates reported in the survey for that classification, As this weighted average rate includes all rates reported in the survey, it may include both union and non -union rates. Example: SULA2012-007 5/13/2014. SU indicates the rates are survey rates based on a weighted average calculation of rates and are not majority rates, LA indicates the State of Louisiana. 2012 is the year of survey on which these classifications and rates are based. The next number, 007 in the example, is an internal number used in producing the wage determination. 5/13/2014 indicates the survey completion date for the classifications and rates under that identifier. Survey wage rates are not updated and remain in effect until a new survey is conducted. Union Average Rate Identifiers Classifications) listed under the UAVG identifier indicate that no single majority rate prevailed for those classifications; however, 100t% of the data reported for the classifications was union data. EXAMPLE: UAVG-0H-ee10 08124/2014. UAV(5 indicates that the rate is a weighted union average rate, OH indicates the state, The next number, e010 in the example, is an internal number used in producing the wage determination. 08/29/2014 indicates the survey completion date for the classifications and rates udder that identifier. A UAVG rate will be updated once a year, usually in January of each year, to reflect a weighted average of the current negotiated/CBA rate ,of the union locals from which the rate is based. WAGE DETERMINATION APPEALS PROCESS l.) 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 ratter a conformance (additional classification and rate) ruling On survey related matters„ initial contact, including requests for summaries of surveys, should be with the page 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, hnps: l www&wdcLgov wdci'ecat6Bwdavlebacan(T.%1 A.dw?u=o .V4 jAclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\06a-wage rates docx - $ - Prevailing Wage Rates 3002019 IMgejhvwwaidoLgwmdc&scadawdavlbmomMla.Wb?vuo With regard to any other hatter not yet ripe for the formal process described here, initial contact should by 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 (these 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 290 Constitution Avenue, N.W. Washington, DC 20210 4.) All decisions by the Administrative Review Board are final. END OF GENERAL DECISION hnpa;i w+ mwdoLgovM"acaMwdavlsbacarirr t18.dW?v=0 44 j:\clerical\anna\2018-130 a-w collector (smie lane water 1ine)\specs\contract\06a-wage rates docx - 1 9 - Prevailing wage Rates 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 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: KIK Underground, LLC By: Tom Koble Company: (please print) Address: P.O. Box 850787 Signature: Richardson, Texas 75085 Title: Manager City State Zip (please print) Phone: (214) 507-8465 THIS FORM MUST BE RETURNED WITH YOUR QUOTATION jAclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\07-vendors compliance.doc - 20 - Vendors Compliance to Stare Law CONFLICT OF INTEREST QUESTIONNAIRE jklerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\08-conflict of interest doc - 21 - Conflict of Interest 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. 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 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 awa re 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. 21 Name of person who has a business relationship with local governmental entity. 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th business day after the date 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? ElYes 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? l7 Yes a 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? El 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 06/29/2007 jAclerical\anna\2018-130 e-w collector (suzie lane water line)\specs\contract\08-conflict of interest doc - 22 - Conflict of Interest AFFIDAVIT AGAINST PROHIBITED ACTS 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 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. Tom Koble, Manager KIK Underground, LLC A I I t5 I (it corporation) uate Date jAclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contractC09-affidavit doc - 23 - Affidavit Against Prohibited Acts PROPOSAL AND BID FORM jAclericaRanna\2019-130 a-w collector {suzie lane water line}\specs\contract\10-p&bs-1 doc - 24 - Proposal and Bid Form PROPOSAL AND BID FORM Proposal of: KIK Underground, LLC (hereinafter called "Bidder"). Address: P.O. Box 850787, Richardson, Texas 75085 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., March 28, 2019 Date of Sealed Bid Opening: 3:00 p.m., March 28, 2019 Gentlemen: The Bidder, in compliance with your invitation for bids for the construction of: SUZIE LANE WATER LINE 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 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: jiclerical\anna\201 B-130 a-w collector (suzie lane water line)\specs\contracl\10-p&bs-1 doc - 25 - Proposai and Bid Form AMOUNT OF CONTRACT Less than $25,000.00 $25,000.00 to $99,999.99 $100,000.00 to $999,999.99 More than $1,000,000.00 AMOUNT OF LIQUIDATED DAMAGES $100.00 Per Day $500.00 Per Day $500.00 Per Day $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. j:\clerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\10-p&bs-1 doc - 26 - Proposal and Bid Form 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. jAclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\10-p&bs-1 doc - 27 - Proposal and Bid Form CITY OF ANNA, TEXAS Suzie Lane Water Line BED SCHEDULE Item Estimated Price in Extended No. Quantity Unit Description and Price in Words Figures Amount Furnish & Install 12-Inch Water Line w/ 1 1,115 L.F. Embedment by Open Cut $ 50.00 $ 55,750.00 complete in place, the sum of Fifty Dollars and No Cents per Linear Foot Furnish & Install 12-Inch Water Line w/ 24-Inch Steel Encasement Pipe (1/4-Inch Thick Wall) by 2 450 L.F. Other Than Open Cut $ 490.00 $ 220,500.00 complete in place, the sum of Four Hundred Ninety Dollars and No Cents per Linear Foot Furnish & Install Fire Hydrant Assembly, including 6-Inch Lead and 6-Inch R.S. Gate 3 1 Ea. Valve $ 4,400.00 $ 4,400.00 complete in place, the sum of Four Thousand, Four Hundred Dollars and No Cents per Each 4 9 Ea. Furnish & Install 12-Inch R.S. Gate Valve $ 2,750.00 $ 24,750.00 complete in place, the sum of Two Thousand, Seven Hundred Fifty Dollars and No Cents per Each Connect to Existing 12-Inch Water Line, 5 1 Ea. including Dewatering $ 1,645.00 $ 1,645.00 complete in place, the sum of One Thousand, Six Hundred Fo -Five Dollars and No Cents per Each J:\CLERICAL\Anna\2018-130 F-W Collector (Suzie Lane Water Line)\Specs\Contract\1 I-P&BS-2 xlsx - 28 - Proposal and Bid Form Item Estimated IPrice in Extended No. Quantity Unit Description and Price in Words TFigures Amount 6 1 L.S. Furnish Traffic Control Plan $ 375.00 $ 375.00 complete in place, the sum of Three Hundred Seventy -Five Dollars and No Cents per Lump Sum 7 1 L.S. Implement Traffic Control Measures $ 3,200.00 $ 3,200.00 complete in place, the sum of Three Thousand, Two Hundred Dollars and No Cents per LUMPAUM 8 1 L.S. Furnish Trench Safety Plan $ 450.00 $ 450.00 complete in place, the sum of Four Hundred Fifty Dollars and No Cents per Lump Sum Furnish, Install, Implement & Remove Trench 9 1 L.S. Safety Measures $ 375.00 $ 375.00 complete in place, the sum of Three Hundred Seventy -Five Dollars and No Cents per Lump Sum 10 1 L.S. Furnish Erosion Control Plan $ 1,000.00 $ 1,000.00 complete in place, the sum of One Thousand Dollars and No Cents per Lump Sum Furnish, Install, Maintain & Remove Erosion 11 1 L.S. Control Measures $ 1,500.00 $ 1,500.00 complete in place, the sum of One Thousand, Five Hundred Dollars and No Cents per Lump Sum 1:\CLERICAL\Anna\2018-i30 E-W Collector (Suzie Lane Water Line)\Specs\Contract\I I-P&BS-2 xlsx - 29 - Proposal and Bid Fonn Item Estimated Price in Extended jL No. Quantity Unit Description and Price in Words Figures Amount 12 1,686 S.Y. Furnish, Water and Establish Hydromulch $ 3.00 $ 5,058.00 complete in place, the sum of Three Dollars and No Cents per Square Yard TOTAL AMOUNT BID (Items I Through 12) $ 319.003.60 JACLERICAL\Anna\2018-130 E-W Collector (Suzie Lane Water Line)\Specs\Contract\l I-P&BS-2 xlsx - 30 - Proposal and Bid Form BID PROPOSAL FOR SUZIE LANE WATER LINE Recapitulations TOTAL BID: Three Hundred Nineteen Thousand, Three Dollars and 00/100 ($319,003.00) Notice of award will be mailed to the undersigned at the following addresses: KIK Underground, LLC Contractor Tom Koble, Manager P.O. Box 850787, Richardson, Texas 75085 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. Date: No. Date: No. Date: List Subcontracts (Company name, contact number and type of work): jiclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\1.2-p&bs-3.doc - 31 - Proposal and Bid Form 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: SUZIE LANE WATER LINE The undersigned Contractor hereby requests a Certificate of Exemption from the Texas Limited Sales, Excise, and Use Tax in the amount of Three Hundred Nineteen Thousand, Three Dollars and 00/100 ($319,003.00), 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. (Seal if a Corporation) Signature: Title: KIK Underground, LLC Company Tom Koble (please print) Manager P.O. Box 850787 Address Richardson, Dallas County, Texas 75085 City, County, State and Zip (214) 507-8465 Telephone Fax jAclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\12-p&bs-3 doe - 32 - Proposal and Bid Form CONTRACT AGREEMENT THIS Suzie Lane Water Line 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 KIK Underground, LLC ("Contractor"), located at P.O. Box 850787, Richardson, Texas 75085. WITNESSETH: WHEREAS, the City wishes to contract for the project identified as Suzie Lane Water Line (the "Project"); and WHEREAS, the Project shall include all work and activities necessary to complete the following scope of work (hereinafter referenced as "Work"): SUZIE LANE WATER LINE 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; jAclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\13-agreement doc CA-1 Contract Agreement Form 1295 — Certificate of Interested Parties; Construction Staking Certification; Notice to Proceed; Any executed Change Orders; Supplementary General Provisions and Technical Specifications; and, Plans, Specifications, Drawings and all other documents made available to bidder for his inspection in accordance with Invitation to Bid,' 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 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. 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. jiclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\13-agreement.doc CA-2 Contract Agreement 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. j:\clerical\anna\2016-130 a-w collector (suzie lane water line)\specs\contract\13-agreement doc CA-3 Contract Agreement 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 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 Ten (10) 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 The Contractor shall pay the City the sum of $500 per day for each and every calendar day of unexcused delay in achieving Substantial Completion beyond the date set forth herein for Substantial Completion. 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 jAclencal\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\13-agreement doc CA-4 Contract Agreement 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. 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 jAclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\13-agreement doc CA-5 Contract Agreement 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. 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 Three Hundred Nineteen Thousand, Three Dollars and 00/100 ($319,003.00). 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 5.02 above for anticipated liquidated damages. jAclerical\anna\2018-130 a-w collector (suzie lane water line)lspecs\contract\13-agreement doc CA-6 Contract Agreement (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 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, 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: j1clerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\13-agreement doc CA-7 Contract Agreement (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. 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 jAclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\13-agreement doc CA-8 Contract Agreement 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. jAclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\13-agreement doc CA-9 Contract Agreement 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; 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 jAclerical\anna\201 B-130 a-w collector (suzie lane water line)\specs\contract\13-agreement doc CA-10 Contract Agreement 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. jAclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\13-agreement.doc CA-11 Contract Agreement 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. jAclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contrac013-agreement doc CA-12 Contract Agreement Section 10. INDEMNITY Except for expenses or liabilities arising from the negligence of the City, the Contractor hereby, expressly a rees 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 attorne 's fees litigation, _arbitration, mediations appeal expenses incurred in any matter, including a proceeding to enforce this Section 10) which in whole or in part are caused by the nepliaence, 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. 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; jAclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\13-agreement doe CA-13 Contract Agreement 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 jAclericahanna\201 B-130 a-w collector (suzie lane water line)\specs\contract\13-agreement doc CA-14 Contract Agreement 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 not -to -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 for 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. jAclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\13-agreement doe CA-15 Contract Agreement 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 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. jAclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\13-agreement doc CA-16 Contract Agreement 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)z + 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 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 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. jAclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\13-agreement doc CA-17 Contract Agreement 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 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 jAcleric0anna\2018-130 a-w collector (suzie lane water line)\specs\contract\13-agreement doc CA-18 Contract Agreement 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 assume possession of the Project site and of all materials and equipment at the site and may complete the work. jAclenral\anna12018-130 a-w collector (suzie lane water line)\specs\conlract\13-agreement doc CA-19 Contract Agreement 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 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. jAclericakanna12018-130 a-w collector (suzie lane water line)%specslcontract%13-agreement doc CA-20 Contract Agreement 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 endorsement(s) 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 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 j:\clerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\13-agreement doc CA-21 Contract Agreement 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. 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. j:\clerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\13-agreement doc CA-22 Contract Agreement 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 a City -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: KIK Underground, LLC Attn: Tom Koble, Manager P.O. Box 850787 KIK Underground, LLC jAclerical\annaQ018-130 a-w collector (suzie lane water line)\specs\contract\13-agreement doc CA-23 Contract Agreement 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 person(s) 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 Jim Proce, City Manager ATTEST: Carrie L. Smith, City Secretary (SEAL) KIK UNDERGROUND, LLC (Contractor) BY: ATTEST: bEGRETARY (SEAL) Tom Koble, Manager j:\clerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\13-agreement.doc CA-24 Contract Agreement BIDDER'S BOND KNOW ALL MEN BY THESE PRESENTS, that KIK Underground, LLC (hereinafter called the Principal(s)), as Principal(s), and Philadelphia Indemnity Insurance Company (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 Five Percent of Greatest Amount Bid Dollars (5% G.A.B.) (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: SUZIE LANE WATER LINE 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. j:\clerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\14-bonds doc B-1 Bonds IN WITNESS WHEREOF, the said Principal(s) and Surety(s) have signed and sealed this instrument this 28th day of March , 20 19 . Philadelphia Indemnity Insurance Company KIK Underground, LLC Surety By. Print Name: Michael B. Hill Title: Attorney -in -Fact Address: One Bala Plaza East Suite 100 Bala Cynwyd, PA 19004-1403 Phone/Fax: 610-206-7836 Principal By: — - ) X" Print Name: Title: M, w : ,w 4 Address: PO Box 850787 Richardson, TX 75085 Phone/Fax: 214-507-8465 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 William D. Baldwin an agent resident in Dallas 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. Philadelphia Indemnity Insurance Company Surety _ By: Print Name: Br d y K. C x Address: 5930 Preston View Blvd Suite 200 Dallas, Texas 75240 Ph one/Fax: 972-644-2688/972-644-8035 NOTE: If signed by an officer of the Surety Company, there must be on file a certified extract from the by-laws showing that this person has authority to sign such obligation. If signed by an Attorney -in -Fact, we must have a copy of the Power of Attorney for our files, AND ATTACHED TO THIS BOND. jAclericoltannsM18-130 e-w collector water linelspecsttech•spe614.Donds.doc B-2 Bonds IMPORTA14T NOTICE To obtain information or make a complaint: You may call the Surety's toll free telephone number for information or to make a complaint at: 1-877-438-7459 You may also write Philadelphia Indemnity Insurance Company at: One Bata Plaza, Suite 100 Bala Cynwyd, PA 19004 Attention. Senior Vice President and Director of Surety You may contact the Texas Department of Insurance to obtain information on companies, coverage, rights or complaints at: 1-800-252-3439 You may write the Texas Department of Insurance at: P.C. Box 149104 Austin, TX 78714-9104 Fax# 512475-1771 Web. http:li"www.ttli.state.tx.us Email: ConsumerProtection@tdi.state.tx.us PREMIUM OR CLAIM DISPUTES: Should you have a dispute concerning your premium or about a claim, you should contact the Surety first. If the dispute is not resolved, you may contact the Texas Department of Insurance. ATTACH THIS NOTICE TO YOUR BOND: This notice is for information only and does not become a part or condition of the attached document, ADVISO IMPORTANTE Para obener informacion o para someter una queja: Usted puede llamar at numero de telefono gratis de para informacion o para someter una queja at: 1-877-438.745E Usted tanbien puede escribir a Philadelphia Indemnity Insurance Company. One Bala Plaza., Suite 100 Bala Cynwyd, PA 19004 Attention. Senior Vice President and Director of Surety Puede comunicarse con el Departamento de Seguros de Texas para obtener informacion acerca de companias, coberturas, derechos o quejas at: 1-900-2524439 Puede escrrbir at Departmento de Seguros de Texas: P.O Box 149104 Austin, TX 78714-9104 Fax* 512-475-1771 Web. httP-/1www,tdi,state.tx.us Email: Consume rProtection(a7tdi.state.tx.us DISPUTAS SOBRE PRIMAS O RECiAMOS: Si tiene una disputa concemiente a su prima o a un reclamo, debe eomunicarse con el Surety primero, Si no se resuelve la disputa, puede entonces comunicarrse con el departamento, (TDI). UNA ESTE AVISO A SU PIANZA DE OARANTIA: Este aviso es solo para proposito de informacion y no se convierte en parte o condicion del dooumento adjunto. 17737 PHILADELPHIA INDEMNITY INSURANCE COMPANY One Bala Plaza, Suite 100 Bala Cynwyd, PA 19004-0950 Power of Attorney KNOW ALL PERSONS BY THESE PRESENTS: That PHILADELPHIA INDEMNITY INSURANCE COMPANY (the Company), a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, does hereby constitute and appoint William D. Baldwin, Blaine Allen, Brent Baldwin, Brock Baldwin, Michael B. Hill, Brady K. Cox, and/or Russ Frenzel of Baldwin -Cox Agency LLC, its true and lawful Attomey-in-fact with full authority to execute on its behalf bonds, undertakings, recognizances and other contracts of indemnity and writings obligatory in the nature thereof, issued in the course of its business and to bind the Company thereby, in an amount not to exceed $50,000,000. This Power of Attorney is granted and is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of PHILADELPHIA INDEMNITY INSURANCE COMPANY on the 14"' of November, 2016, RESOLVED: That the Board of Directors hereby authorizes the President or any Vice President of the Company: (1) Appoint Attorney(s) in Fact and authorize the Attomey(s) in Fact to execute on behalf of the Company bonds and undertakings, contracts of indemnity and other writings obligatory in the nature thereof and to attach the seal of the Company thereto; and (2) to remove, at any time, any such Attorney -in -Fact and revoke the authority given. And, be it FURTHER RESOLVED: That the signatures of such officers and the seal of the Company may be affixed to any such Power of Attorney or certificate relating thereto by facsimile, and any such Power of Attorney so executed and certified by facsimile signatures and facsimile seal shall be valid and binding upon the Company in the future with respect to any bond or undertaking to which it is attached. IN TESTIMONY WHEREOF, PHILADELPHIA INDEMNITY INSURANCE COMPANY HAS CAUSED THIS INSTRUMENT TO BE SIGNED AND ITS CORPORATE SEALTO BE AFFDCFD BY ITS AUTHORIZED OFFICE THIS 27r" DAY OF OCTOBER, 2017. A (Seal) Robert D, O'Leary Jr., President & CEO Philadelphia Indemnity Insurance Company On this 27a' day of October, 2017, before me came the individual who executed the preceding instrument, to me personally known, and being by me duly sworn said that he is the therein described and authorized officer of the PHILADELPHIA INDEMNITY INSURANCE COMPANY; that the seal affixed to said instrument is the Corporate seal of said Company; that the said Corporate Seal and his signature were duly affixed. Ow—v V a Notary Public: +hca...asoa L.4,, ri w.rar n, residing at: (Notary Seal) My commission expires: Bala Cynwyd, PA S tember 25 2021 r I, Edward Sayago, Corporate Secretary of PHILADELPHIA INDEMNITY INSURANCE COMPANY, do hereby certify that the foregoing resolution of the Board of Directors and this Power of Attorney issued pursuant thereto on this 27's day of October, 2017 are true and correct and are still in full force and effect. I do further certify that Robert D. O'Leary Jr., who executed the Power of Attorney as President, was on the date of execution of the attached Power of Attorney the duly elected President of PHILADELPHIA INDEMNITY INSURANCE COMPANY. In Testimony Whereof I have subscribed my name and affixed the facsimile seal of each Company this day of . 20 1. i I Edward Sayago, Corporate Secretary PHILADELPHIA INDEMNITY INSURANCE COMPANY PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS, that KIK Underground, LLC (hereinafter called the Principal(s)), as Principal(s), and Philadelphia Indemnity Insurance Company (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 Three Hundred Nineteen Thal,sand Three and 00/100 Dollars ($319,003.00) 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 , 20 , for the following project: SUZIE LANE WATER LINE 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)' 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. 1 Not applicable for federal work. See "The Miller Act," 40 U.S.C. S270- jAclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\14-bonds. doc B-3 Bonds IN WITNESS WHEREOF, the said Principal(s) and Surety(s) have signed and sealed this instrument this day of , 20 Philadelphia Indemnity Insurance Company _ Surety By: Print Name Michael B. Hill Title: Attorney -in -Fact Address One Bala Plaza E., Suite 100 Bala Cynwyd, PA 19004-1403 Phone/Fax: (610) 206-7836 KIK Underground, LLC Principal Print Name Tom Koble Title: Manager Address: P.O. Box 850787 Richardson. Texas 75085 Phone/Fax: 214) 507-8465 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 William D. Baldwin , an agent resident in Dallas 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. Philadelphia Indemnity Insurance Company Surety Print Name: Brady K. Cox Address: 5930 Preston View Blvd., Suite 200 Dallas, Texas 75240 Phone/Fax: (972) 644-2688 Fax: (972) 644-8035 NOTE: If signed by an officer of the Surety Company, there must be on file a certified extract from the by-laws showing that this person has authority to sign such obligation. If signed by an Attorney -in -Fact we must have a copy of the Power of Attorney for our files, AND ATTACHED TO THIS BOND. j1clerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\14-bonds doc B-4 Bonds PAYMENT BOND KNOW ALL MEN BY THESE PRESENTS, that KIK Underground, LLC (hereinafter called the Principal(s)) as Principal(s), and Philadelphia Indemnity Insurance Company (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: Three Hundred Nineteen Thousand Three and 00/100 Dollars ($319,003.00) 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 , 20 , for the: SUZIE LANE WATER LINE 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. jklericahanna\2018-130 a-w collector (suzie lane water line)\specslcontrachlzl-bonds doe B-5 Bonds IN WITNESS WHEREOF, the said Principal(s) and Surety(s) have signed and sealed this instrument this day of , 20 Philadelphia Indemnity Insurance_ Company_ Surety 1-32 Print Name: Michael B. Hill Title: Attorney -in -Fact Address: One Bala Plaza E., Suite 100 Bala Cynwyd, PA 19004-1403 Phone/Fax: (610) 206-7836 KIK Underground, LLC Principal Print Name: Tom Koble Title: Manager Address: P.O. Box 850787 Richardson, Texas 75085 Phone/Fax: 214) 507-8465 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 Treasu[y list of approved sureties, and hereby designates William D. Baldwin , an agent resident in Dallas 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. Philadelphia Indemnity Insurance Company Surety Print Name: Brady K. Cox Address: 5930 Preston View Blvd., Suite 200 Dallas, Texas 75240 Phone/Fax: (972) 644-2688 Fax: (972) 644-8035 NOTE: If signed by an officer of the Surety Company, there must be on file a certified extract from the by-laws showing that this person has authority to sign such obligation. If signed by an Attorney -in -Fact we must have a copy of the Power of Attorney for our files AND ATTACHED TO THIS BOND. j:\clerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\14-bonds doc B-6 Bonds MAINTENANCE BOND KNOW ALL MEN BY THESE PRESENTS: THAT KIK Underground, LLC as PRINCIPAL, and Philadelphia Indemnity Insurance Company, a CORPORATION organized under the laws of the Commonwealth of Pennsylvania , 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 Three Hundred Nineteen Thousand, Three Dollars and No Cents ($319,003.00) 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 KIK Underground, LLC, the Contractor, did on , 20 enter into a written Contract Agreement with the said City of Anna to build and construct: SUZIE LANE WATER LINE 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. j1clerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\14-bonds doc B-7 Bonds IN WITNESS WHEREOF, the said KIK Underground, LLC, (Contractor) has caused these presents to be Philadelphia Indemnity Insurance Company, (Surety Co.) executed by its ATTORNEY -IN -FACT Michael B. Hill, and the said ATTORNEY -IN -FACT Michael B. Hill, has hereunto set his hand this the day of , 20 Philadelphia Indemnity Insurance Company Surety Print Name: Michael B. Hill Title Attorney -in -Fact Address: One Bala Plaza E., Suite 100 Bala Cynwyd, PA 19004-1403 Phone/Fax: (610) 206-7836 KIK Underground, LLC Principal Print Name: Tom Koble Title: Manager Address: P.O. Box 850787 Richardson, Texas 75085 Phone/Fax: (214) 507-8465 NOTE: If si ned by an officer of the Surety Company, there must be on file a certified extract from the by-laws showing that this person has authority to sign such obligation. If signed by an Attorney -in -Fact, we must have a copy of the Power of Attorney for our files AND ATTACHED TO THIS BOND. j:\clerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\14-bonds doe B-8 Bonds CERTIFICATE OF INSURANCE jAclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\15-insurance.doc CI- I Certificate of Insurance CERTIFICATE OF INSURANCE TO: CITY OF ANNA ANNA, TEXAS THIS IS TO CERTIFY THAT DATE: PROJECT: Suzie Lane Water Line (Name and Address of Insured) is, at the date of this certificate, insured by this Company with respect to the business operations hereinafter described, for the types of insurance and in accordance with the provisions of the standard policies used by this Company, and further hereinafter described. Exceptions to standard policy noted hereon. TYPE OF INSURANCE i. _-. l Policy No. Workmen's Compensation j Effective Expires Limits of Liability Per Person $ Per Occur. $ Property Damage $ Per Person $ Per Occur. $ Property Damage $ Per Person $ Per Occur. $ Property Damage $ Per Person $ Per Occur. $ _ Property Damage $ Per Person $ Per Occur. $ Property Damage $ Per Person $ Per Occur. $ Property Damage $ Per Person $ Per Occur. $ 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 jAclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\15-insurance doc CI-2 c;eroncare or insurance 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 By: Title: Address: Phone/Fax: (Name of Insurer) j:\clerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\15-insurance.doc CI-3 Certificate of Insurance FORM 1295 INSTRUCTIONS Certificate of Interested Parties www. ethics. state.tx.us/File 1295 Information Page 1 of 2 Implementation of House Bill 1295 Certificate of Interested Parties (Form 1295): In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the Government Code. The law states that a governmental entity or state agency may not enter into certain contracts with a business entity unless the business entity submits a disclosure of interested parties to the governmental entity or state agency at the time the business entity submits the signed contract to the governmental entity or state agency. The law applies (with a few exceptions) only to a contract between a business entity and a governmental entity or state agency that either (1) requires an action or vote by the governing body of the entity or agency before the contract may be signed or (2) has a value of at least $1 million. The disclosure requirement applies to a contract entered into on or after January 1, 2016. Changed or Amended Contracts: Form 1295 is only required for a change made to an existing contract in certain circumstances: (1) if a Form 1295 was not filed for the existing contract, then a filing is only required if the changed contract either requires an action or vote by the governing body or the value of the changed contract is at least $1 million; or (2) if a Form 1295 was filed for the existing contract, then another filing is only required for the changed contract if there is a change to the information disclosed in the Form 1295, the changed contract requires an action or vote by the governing body, or the value of the changed contract increases by at least $1 million. As required by law, the Commission adopted the Certificate of Interested Parties form (Form 1295) on October 5, 2015. The Commission also adopted rules (Chapter 46) to implement the law. The Commission does not have any additional authority to enforce or interpret section 2252.908 of the Government Code. Filing Process: A business entity must use the Form 1295 filing application the Commission created to enter the required information on Form 1295 and print a copy of the completed form. Once entered into the filing application, the completed form will include a unique certification number, called a "certification of filing." An authorized agent of the business entity must sign the printed copy of the form affirming under the penalty of perjury that the completed form is true and correct. The completed, printed, and signed Form 1295 bearing the unique certification of filing number must be filed with the governmental body or state agency with which the business entity is entering into the contract. Acknowledgement by State Agency or Governmental Entity: https:Hwww.ethics.state.tx.us/tec/1295-Info.htm 8/1/2018 1295 Information Page 2 of 2 The governmental entity or state agency must acknowledge receipt of the filed Form 1295 with the certification of filing, using the Commission's filing application, not later than the 30th day after the date the governing body or state agency receives the Form 1295. The Commission will post the completed Form 1295 to its website within seven business days after the governmental entity or state agency acknowledges receipt of the form. Additional Information: Section 2252.908, Government Code. Certificate of Interested Parties (Form 1295)** **This is a sample form for illustration purposes only. DO NOT FILL OUT THIS SAMPLE FORM. Form 1295 MUST BE FILED ELECTRONICALLY! Paper copies and PDF copies of this sample form are not accepted! Chapter 46, Ethics Commission Rules (includes new rule 46.4, regarding changes to contracts, which went into effect on January 1, 2017) Frequently Asked Questions Lust Revision: December 21, 2017 https://www.ethics.state.t,.us/tec/1295-Info.htm 8/1/2018 CERTIFICATE OF INTERESTED PARTIES FORM 1295 OFFICE USE ONLY Complete Nos. 1 - 4 and 6 if there are interested parties. Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties. ' 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. 2 Name of governmental entity or state agency that is a party to the contract for which the form is being filed. 3 Provide the identification number used by the governmental entity or state agency tot kpoidentify the contract, and provide a description of the services, goods, or other property to be provided e contract. 4 City, State, Country(place ,Nature of Interest (check applicable) Name of Interested Party of business) Controlling Intermediary 5 Check only if there& I terested Party. 6 UNSWORN DECi N My name is ' _. and my date of birth is My addre (street) (city) (state) (zip code) (country) d nder penalty of perjury that the foregoing is true and correct. Executed in County, State of _ on the day of 20,-- (month) (year) Signature of authorized agent of contracting business entity (Declarant) ADD ADDITIONAL PAGES AS NECESSARY Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised 12/22/2017 CONSTRUCTION STAKING CERTIFICATION CONSTRUCTION STAKING Control for the project has been set by the Engineer and control is shown in the Construction Plans. Contractor shall complete all construction staking. Cut sheets shall be provided to the inspector. Prior to commencement of the work by the Contractor, the Contractor shall submit a digital file containing a minimum of two Birkhoff, Hendricks & Carter, L.L.P. control points and a certification that the construction staking is tied to the project control points established in the Plans. The Engineer will review Contractor's electronic survey file to verify that the survey file is tied to the project control. I, (Surveyor's Name of construction staking is tied to the project control system. (Company) certifies that all Signature Date Printed Name Note: To be submitted when construction staking control and cut sheet staking commences. j Aclerical\anna\2018-130 a-w collector (suzie lane water line)\specs\contract\19-construction staking docx BIRKHOFF, HENDRICKS & CARTER, L.L.P. PROFESSIONAL ENGINEERS 11910 Greenville Ave., Suite 600 JOHN W BIRKHOFF, RE GARY C. HENDRICKS, P.E. JOE R. CARTER, P E. MATT HICKEY, P.E. ANDREW MATA, JR., P.E. JOSEPH T. GRAJEWSKI, III, P.E. DEREK B. CHANEY, P E. CRAIG M. KERKHOFF, P.E. Mr. Joseph Johnson, CPM Director of Public Works City of Anna 3223 N. Powell Parkway Anna, Texas 75409 Dallas, Texas 75243 Fax (214) 461-8390 Re: Suzie Lane Water Line — Bid Award Recommendation Dear Mr. Johnson: April 16, 2019 Phone (214) 361-7900 We have checked and evaluated the competitive proposals received at 3:00 p.m., Thursday, March 28, 2018, for the Suzie Lane Water Line project. We are enclosing the Bid Summary and Itemized Bid Tabulation. The bids were evaluated by the committee in the manner as described within the bidding documents and summarized below: Factors Considered Bid Amount Quality of Bidder's previous dunicipal Projects of similar nature Bidder's past relationship with the Citv record of the Bidder % Weight Given 60% 25% 10% 5% KIK Underground, LLC of Richardson, Texas submitted a bid in the amount of $319,003.00. KIK Underground, LLC meets the qualification requirements of the bid documents and has a satisfactory record of completing similar projects throughout North Texas. Accordingly, based on the information we have available to us, we recommend that the City accept the bid from KIK Underground, LLC and award them a contract in the amount of $319,003.00. We are available to discuss our recommendation further at your convenience. Sincerely, Craig M. r�hoff,.E., C.F.M. Enclosures TBPE Firm 526 ACEC Wellness Firm =;� Better Decisions -Better Designs TBPLS Firm 100318-00 j:\clerical\anna\2018-130 a-w collector (suzie lane water line)Uetters\k\bid award recommendation docx CITY OF ANNA, TEXAS Suzie Lane Water Line BID SUMMARY Bids Received at 3:00 p.m., Thursday, March 28, 2019 Contractor Total Amount Bid 1. KIK Underground, LLC. P.O. Box 850787 Richardson, Texas 75085 $ 319,003.00 2. Dickerson Construction Company, Inc. P.O. Box 181 Celina, Texas 75009 $ 331,619.00 3. Lynn Vessels Construction, LLC P.O. Box 1212 Sherman, Texas 75091-1212 $ 362,240.70 4. FM Utilities LLC 4911 Redbird Trail Midlothian, Texas 76065 $ 370,700.33 5. Interstate Pipeline Utility Construction, LLC. P.O. Box 152957 Dallas, Texas 75315 $ 384,496.30 6. Atkins Bros. Equip Co Inc.* P.O. Box 990 Midlothian, Texas 76065 $ 422,983.00 * On Bid Item No. 1, the Engineer determined the amount in words on the Contractor's Bid Form is clearly a clerical error. The amount in figures was used. JACLERICAL\Anna\2018-130 E-W Collector (Suzie Lane Water Line)\Specs\Tech-Spec\11-P&BS-2.x1sx TABULATION OF BIDS Date: March 28, 2019 Project: CITY OF ANNA, TEXAS BIRKHOFF, HENDRICKS & CARTER, L.L.P. Suzie Lane Water Line PROFESSIONAL ENGINEERS Dallas, Texas BID OF KIK Underground, LLC. P.O. Box 850787 Richardson, Texas 75085 BID OF Dickerson Construction Company, Inc. P.O. Box 181 Celina, Texas 75009 BID OF Lynn Vessels Construction, LLC P.O. Box 1212 Sherman, Texas 75091-1212 Item No. Approximate Quantities Unit Description Unit BidUnit Price Extension Bid Price Extension Unit Bid Price Extension 1 1,115 L.F. Furnish & Install 12-Inch Water Line w/ Embedment by Open Cut $50.00 $ 55,750.00 $75.00 $ 83,625.00 $79.00 $ 88,085.00 2 450 L.F. Furnish & Install 12-Inch Water Line w/ 24-Inch Steel Encasement Pipe (1/4-lnch Thick Wall) by Other Than Open Cut $490.00 $ 220,500.00 $445.00 $ 200,250.00 $510.00 $ 229,500.00 3 1 Ea. Furnish & Install Fire Hydrant Assembly, including 6-Inch Lead and 6-Inch R.S. Gate Valve $4,400.00 $ 4,400.00 $4,500.00 $ 4,500.00 $4,350.00 $ 4,350.00 4 9 Ea. Furnish & Install 12-Inch R.S. Gate Valve $2,750.00 $ 24,750.00 $2,500.00 $ 22,500.00 $2,350.00 $ 21,150.00 5 1 Ea. Connect to Existing 12-Inch Water Line, including Dewatering $1,645.00 $ 1,645.00 $4,500.00 $ 4,500.00 $5,000.00 $ 5,000.00 6 1 L.S. Furnish Traffic Control Plan $375.00 $ 375.00 $500.00 $ 500.00 $500.00 $ 500.00 7 1 L.S. Implement Traffic Control Measures $3,200.00 $ 3,200.00 $1,500.00 $ 1,500.00 $3,100.00 $ 3,100.00 8 1 L.S. Furnish Trench Safety Plan $450.00 $ 450.00 $1,000.00 $ 1,000.00 $800.00 $ 800.00 9 1 L.S. Furnish, Install, Implement & Remove Trench Safety Measures $375.00 $ 375.00 $2,500.00 $ 2,500.00 $1,225.00 $ 1,225.00 10 1 L.S. Furnish Erosion Control Plan $1,000.00 $ 1,000.00 $500.00 $ 500.00 $1,400.00 $ 1,400.00 11 1 L.S. Furnish, Install, Maintain & Remove Erosion Control Measures $1,500.00 $ 1,500.00 $3,500.00 $ 3,500.00 $3,000.00 $ 3,000.00 12 1,686 S.Y. Furnish, Water and Establish Hydromulch $3.00 $ 5,058.00 $4.00 $ 6,744.00 $2.45 $ 4,130.70 TOTAL AMOUNT BID (Items 1 Through 12) $ 319 003.00 $ 331619.00 $ 362,240.70 JACLERICAL\Anna\2018-130 E-W Collector (Suzie Lane Water Line)\Specs\Tech-Spec\11-P&BS-2.xlsx Page I of 2 TABULATION OF BIDS Date: March 28, 2019 Project: CITY OF ANNA, TEXAS BIRKHOFF, HENDRICKS & CARTER, L.L.P. Suzie Lane Water Line PROFESSIONAL ENGINEERS Dallas, Texas BID Or FM Utilities LLC 4911 Redbird Trail Midlothian, Texas 76065 BID OF Interstate Pipeline Utility Construction, LLC. P.O. Box 152957 Dallas, Texas 75315 BID OF Atkins Bros. Equip Co Inc.* P.O. Box 990 Midlothian, Texas 76065 Item No. Approximate Quantities Unit Description Unit BidUnit Price Extension Bid Price Extension Unit Bid Price Extension 1 1,115 L.F. Furnish & Install 12-Inch Water Line w/ Embedment by Open Cut $71.87 $ 80,135.05 $86.00 $ 95,890.00 $125.00 $ 139,375.00 2 450 L.F. Furnish & Install 12-Inch Water Line w/ 24-Inch Steel Encasement Pipe (1/4-Inch Thick Wall) by Other Than Open Cut $512.00 $ 230,400.00 $453.00 $ 203,850.00 $525.00 $ 236,250.00 3 1 Ea. Furnish & Install Fire Hydrant Assembly, including 6-Inch Lead and 6-Inch R.S. Gate Valve $5,250.00 $ 5,250.00 $6,230.00 $ 6,230.00 $5,000.00 $ 5,000.00 4 9 Ea. Furnish & Install 12-Inch R.S. Gate Valve $3,500.00 $ 31,500.00 $2,450.00 $ 22,050.00 $2,500.00 $ 22,500.00 5 1 Ea. Connect to Existing 12-Inch Water Line, including Dewatering $6,500.00 $ 6,500.00 $2,575.00 $ 2,575.00 $5,000.00 $ 5,000.00 6 1 L.S. Furnish Traffic Control Plan $3,500.00 $ 3,500.00 $3,865.00 $ 3,865.00 $1,000.00 $ 1,000.00 7 1 L.S. Implement Traffic Control Measures $1,500.00 $ 1,500.00 $2,890.00 $ 2,890.00 $3,000.00 $ 3,000.00 8 1 L.S. Furnish Trench Safety Plan $500.00 $ 500.00 $1,750.00 $ 1,750.00 $2,000.00 $ 2,000.00 9 1 L.S. Furnish, Install, Implement & Remove Trench Safety Measures $2,230.00 $ 2,230.00 $1,000.00 $ 1,000.00 $2,000.00 $ 2,000.00 10 1 L.S. Furnish Erosion Control Plan $5,575.00 $ 5,575.00 $1,750.00 $ 1,750.00 $800.00 $ 800.00 11 1 L.S. Furnish, Install, Maintain & Remove Erosion Control Measures $1,115.00 $ 1,115.00 $9,685.00 $ 9,685.00 $1,000.00 $ 1,000.00 12 1,686 S.Y. Furnish, Water and Establish Hydromulch $1.48 $ 2,495.28 $19.55 $ 32,961.30 $3.00 $ 5,058.00 TOTAL AMOUNT BID (Items 1 Through 12) $ 370 700.33 $ 384,496.30 $ 422,983.00 11 * On Bid Item No. 1, the Engineer determined the amount in words on the Contractor's Bid Form is clearly a clerical error. The amount in figures was used. JACLERICAL\Anna\2018-130 E-W Collector (Suzie Lane Water Line)\Specs\Tech-Spec\11-P&BS-2.xlsx Page 2 of 2 THE CITY OF AiAtia AGENDA ITEM: Item No. 8. City Council Agenda Staff Report Meeting Date: 4/23/2019 Consider/Discuss/Action on an Ordinance amending Temporary Bicycle Restrictions. (Lt. Pete Copin) SUMMARY: The original ordinance # is 267-2006 which was passed after it was determined that bicycles could not be safely operated on FM 455. Bicycles were deemed unsafe for several reasons for example, 2 lanes with no shoulder, speed and limited visibility, due to hills and curves. This change will remove the restrictions for cyclists traveling on White Street/FM 455 from the East Frontage Road of US 75 east, but it will remain in place banning use of bicycles from the East Service Road of US 75 in a westerly direction to East Fork Circle. With the widening of White Street between Powell Pkwy and US 75, citizens can now safely ride bicycles in this section of White Street safely. By removing this restriction it will allow our citizens to utilize bicycles as transportation in this portion of the city. This ordinance has not and will not be in place for FM 455 east of highway 5. STAFF RECOMMENDATION: Staff recommends approval of an Ordinance amending Temporary Bicycle Restrictions. ATTACHMENTS: Description Upload Date Type Temporary Bicycle restrictions Ordianance 4/17/2019 CITY OF ANNA, TEXAS ORDINANCE NO. AN ORDINANCE OF THE CITY OF ANNA, TEXAS AMENDING SECTION 5 (TEMPORARY RESTRICTION OF BICYCLES ALONG FM 455) TO PART II, ARTICLE 29 OF THE ANNA CITY CODE OF ORDINANCES; PROVIDING FOR A PENALTY FOR VIOLATION OF THIS ORDINANCE; PROVIDING FOR SAVINGS, REPEALING AND SEVERABILITY CLAUSES; PROVIDING FOR PUBLICATION OF THE CAPTION HEREOF AND AN EFFECTIVE DATE. WHEREAS, the City of Anna, Texas ("the City") has previously adopted an ordinance imposing restrictions on bicycle traffic on certain roadways in the City; and WHEREAS, some or all of those restrictions were intended to be temporary in nature, lasting during the period of increased danger presented by road construction on the highway at issue; and WHEREAS, the City Council of the City of Anna ("City Council") has investigated and determines that as the road construction in the affected areas has progressed, the hazard to cyclists has diminished and the restrictions codified at Section 5 to Part II, Article 29 ("General Offenses") of the Anna City Code of Ordinances ("Anna Code") can now be lessened, and it would be advantageous and beneficial to the City and its citizens to amend the Anna Code accordingly; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS: Section 1. Recitals Incorporated. The above -referenced recitals are incorporated herein as if set forth in full for all purposes. Section 2. Amendment. In accordance with Part II, Article I, Section 9 of the Anna Code, the City Council hereby amends Part Il, Article 29, Section 5 of the Anna Code to read as follows, with added language shown in underlined text (example) and deleted language shown in strikethrough text (example): Section 5. Temporary Restriction of Bicycles Along FM 455 (a) From and after the effective date of this section it shall be unlawful for any person to ride on or operate a bicycle on the following roads or highways within the CITY OF ANNA, TEXAS ORDINANCE NO. PAGE 1 OF 3 corporate boundaries of the City of Anna, Texas, to the following extent: Street Farm to Market Road 455 (W. White Street) (Ord. No. -2019, adopted / /2019) Section 3. Penalty. Extent Beginning at ,State Highway SS Powell Parthe east service road of US 75 and continuing in a westerly direction to East Fork CircleCreek A violation of any of the terms of this ordinance, whether herein denominated in this ordinance as unlawful or not, shall be deemed a misdemeanor. Any person convicted of any such violation shall be fined in an amount not to exceed $200 for each incidence of violation. Each day of continuance of such violation is considered a separate offense and will be punished separately. Section 4. Savings, Severability and Repealing Clauses. All ordinances of the City in conflict with the provisions of this ordinance are repealed to the extent of that conflict. If any provision of this ordinance shall be held to be invalid or unconstitutional, the remainder of such ordinance shall continue in full force and effect the same as if such invalid or unconstitutional provision had never been a part hereof. The City declares that it would have passed this ordinance, and each section, subsection, sentence, clause, or phrase thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, and phrases be declared unconstitutional or invalid. Section 5. Publication of the Caption Hereof and Effective Date. This ordinance shall be in full force and effective upon the posting and/or publication, if required by law, of its caption and the City Secretary is hereby directed to implement such posting and/or publication. PASSED by the City Council of the City of Anna, Texas, on this the day of , 2019. CITY OF ANNA, TEXAS ORDINANCE NO. PAGE 2 OF 3 ATTESTED: "i• City Secretary, Carrie L. Smith Mayor, Nate Pike CITY OF ANNA, TEXAS ORDINANCE NO. PAGE 3 OF 3 THE CITY OF AiAtia AGENDA ITEM: Item No. 9. City Council Agenda Staff Report Meeting Date: 4/23/2019 Consider/Discuss/Action approving an Ordinance amending Part IV Schedule of Fees, Section 10 of The Anna City Code of Ordinances. (Maurice Schwanke) SUMMARY: The Parks Advisory Board received comments concerning the provision of an Adult Softball league in the City at its April 15, 2019, regularly scheduled meeting. The name of the group is "Anna Adult Softball League" and they used the City's fields last year in a very successful way. The City does not have a fee schedule for field use that fits league play. The fee schedule is currently geared toward tournament and individual game rentals. At this time, staff is in support of a recommendation from the Parks Advisory Board to set the fees for league play and to allow the City's fields to be used by the "Anna Adult Softball League" and other adult leagues that do not interfere with the Anna Sports Group. The recommended fee structure would be to allow the league to rent two fields one day a week for the entire length of the season for $1,000 or two days a week for the season for $2,000. The use of the concession stand would be included. STAFF RECOMMENDATION: Staff recommends approval of an Ordinance amending the Schedule of Fees Section 10. ATTACHMENTS: Description Letter to Mayor Ordinance League Expenses Umpire Pay Sheet Upload Date Type 4/17/2019 Backup Material 4/16/2019 Ordinance 4/17/2019 Backup Material 4/17/2019 Backup Material Dear Mayor Nate Pike and council, I, Logan Jacobs, a resident of Anna am writing this letter to address and officially propose an Adult Summer League for the city of Anna. Last summer I created an adult softball league to bring an activity to adults in the community that was family friendly and utilized our park resources. I worked with Maurice Schwanke and Matt Lewis to determine a schedule for the season and kept constant communication. The league was very successful, and it brought neighboring town families to the city of Anna. I am currently developing plans for this year's season with a larger interest from Anna residents. I am asking the city council to consider my proposal of a $2,000 rental fee for two (2) fields 2 days a week (Thurs/Fri) for nine (9) weeks at Slayter Creek Park. This fee would cover the rental and light usage for 2.5 hours every evening as well as the rental of the concession stand. I have attached a spreadsheet which breaks down the expenses that will be inquired through out the season. Thank you, Expense Breakdown: $2,000- Fields (Payable to City of Anna) $8,640- @ $480 - Umpires $500 Championship trophies & shirts $300 Chalk Total Expense: $11,440 $715/ Team Direct cost per player $60.00 (—$59.58) Per player fee will cover 16 regular season games plus an end of season tournament. Note: These numbers are based on the possibility of two divisions (Thurs/Fri). CITY OF ANNA, TEXAS ORDINANCE NO. AN ORDINANCE OF THE CITY OF ANNA, TEXAS, AMENDING THE ANNA CITY CODE OF ORDINANCES BY AMENDING PART IV; SCHEDULE OF FEES SECTION 10 PARK AND FIELD RESERVATION FEES, AND PROVIDING FOR A PENALTY FOR ANY VIOLATION OF THIS ORDINANCE NOT TO EXCEED $500; PROVIDING FOR SAVINGS, SEVERABILITY, AND REPEALING CLAUSES; PROVIDING FOR AN EFFECTIVE DATE; AND PROVIDING FOR THE PUBLICATION OF THE CAPTION HEREOF. WHEREAS, the City of Anna, Texas ("the City") has previously adopted ordinances, rules and regulations governing Schedule of Fees; and WHEREAS, the City of Anna, Texas City Council has investigated and determined that it would be advantageous and beneficial to the City and its citizens to amend Part IV Schedule of Fees, Section 10 to allow for the rental of sports fields for Adult League Play; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS, THAT: Section 1. Recitals Incorporated. The above -referenced recitals are incorporated herein as if set forth in full for all purposes. Section 2. Amendment. In accordance with Part II, Article 1, Section 9 of Anna, the following amendments are made to Part IV Schedule of Fees Section 10 by adding Adult League Play into the Schedule of Fees: Section 10. Park and Field Reservation Fees Slayter Creek Park Pavilion Reservation Anna Resident $10.00/Hour Non -Resident $20.00/Hour Gazebo Reservation Anna Resident $5.00/Hour Deposit $50 Non -Resident 10.00/Hour Deposit $50 Baseball fields/Multipurpose Fields Charge Anna Resident $15/hour (2 hour min.) plus $10/hour Field Lights Charge if lights used (2 hour minimum) Non -Resident $25/hour (2 hour min.) plus $20/hour Field Lights Charge if lights used (2 hour minimum) Tournament (3 or more teams) $40/Team plus $25/hour Field Lights Charge if lights used (2 hour minimum) Adult League Play (multiple weeks) To reserve one day a week for the entire length of the season = $1,000 (two days a week for the season = $2,000 etc.). Concession Stand included. Clean up deposit (refundable upon approved clean-up $200.00 Inspection) Section 3. Penalty. Any violation of any of the terms of this ordinance, whether denominated in this ordinance as unlawful or not, shall be deemed a misdemeanor. Any person convicted of any such violation shall be fined in an amount not to exceed $500 for each incidence of violation. Each violation is considered a separate offense and will be punished separately. Section 4. Savings, Severability and Repealing Clauses. All ordinances of the City in conflict with the provisions of this ordinance are repealed to the extent of that conflict. If any provision of this ordinance shall be held to be invalid or unconstitutional, the remainder of such ordinance shall continue in full force and effect the same as if such invalid or unconstitutional provision had never been a part hereof. The City declares that it would have passed this ordinance, and each section, subsection, clause, or phrase thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, and phrases be declared unconstitutional or invalid. Section 5. Publication of the Caption Hereof and Effective Date. This ordinance shall be in full force and effective from and after its passage and upon the posting and/or publication, if required by law, of its caption and the City Secretary is hereby directed to implement such posting and/or publication. PASSED by the City Council of the City of Anna, Texas, this 23,d day of April 2019. ATTESTED UJOBOTO-71wil City Secretary, Carrie L. Smith Mayor, Nate Pike EXPENSE BUDGET Anna Softball League Expense Category Field Rental Operating Umpire Costs Operating Field Lime Operating End of Season Supplies Operating Total Expenses Budget Actual $2,000 $8,640 $300.00 $500.00 11,440.00 $ Difference ($) $ 2,000.00 $ 8,640.00 $ 300.00 $ 500.00 $ 11,440.00 4/17/2019 Difference (%) 100% 100% 100% 100% 100.00% Anna Softball League- Summer 2019 Note: Pay $30 per game Name I Time In Time Out # Games Total Pay Signature THE CITY OF AiAtia AGENDA ITEM: Item No. 10. City Council Agenda Staff Report Meeting Date: 4/23/2019 Consider/Discuss/Action on a Resolution recommending an appointment of a Representative to the North Texas Groundwater Conservation District Board. (Jim Proce) SUMMARY: Maurice Schwanke has been on Board of Directors to the North Texas Groundwater Conservation District filling the unexpired term of Philip Sanders since January 1, 2018. A new term of service will begin on June 1, 2019. Since Anna is the largest groundwater producer in the region it is important that we are well represented on this Board. Once a nomination is made we will need to provide the nomination to the Collin County Commissioners Court for selection. Attached is a letter from Drew Satterwhite concerning the appointment. STAFF RECOMMENDATION: The City Manager recommends a Resolution nominating Ryan Henderson to serve on the North Texas Groundwater Conservation District Board of Directors. ATTACHMENTS: Description Upload Date Type Resolution 4/16/2019 Resolution Letter 4/16/2019 Backup Material CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS, RECOMMENDING AN APPOINTMENT TO THE NORTH TEXAS GROUNDWATER CONSERVATION DISTRICT BOARD OF DIRECTORS WHEREAS, on May 27, 2009 Governor Perry signed SB 2497 into law which authorized the creation of the North Texas Groundwater Conservation District ("the District"); and WHEREAS, the District encompasses Collin, Cook, and Denton Counties; and WHEREAS, the District is governed by a of nine -member Board of Directors appointed by the Commissioners Court of each participating County; and WHEREAS, one director shall be selected from a slate of not more than three nominees submitted by the largest municipal groundwater producer in each county; and WHEREAS, the City of Anna is the largest municipal groundwater producer in Collin County; and NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, THAT: Section 1 The City Council hereby nominates Ryan Henderson to be considered by the Collin County Commissioners Court to fill a term beginning June 1, 2019 on the North Texas Groundwater Conservation District Board of Directors reserved for the largest municipal ground water producer in Collin County; PASSED AND APPROVED by the City Council of the City of Anna, Texas, on this the 9th day of April 23, 2019. ATTEST: APPROVED: Carrie L. Smith, City Secretary Nate Pike, Mayor CITY OF ANNA, TEXAS RESOLUTION NO PAGE 1 OF 1 CIDN TEXAS i'GNORTH GROUNDWATER CONSERVATION D I STRICT COLLIN COUNTY CC)C)KE COUNTY DENTON COUNTY March 14, 2019 The Honorable Nate Pike, Mayor City of Anna PO Box 776 Anna, TX 75409 RE: North Texas Groundwater Conservation District Board Representation Dear Mayor Pike, The legislation which created the North Texas Groundwater Conservation District in 2009 contains a provision for one representative to be appointed by the largest municipal groundwater producer in Collin County, which is the City of Anna. This appointment expires June 1, 2019. The new term will be for a four year period expiring June 1, 2023. The appointment is currently being filled by Mr. Maurice Schwanke, Director of Planning and Development for the City of Anna. Mr. Schwanke has been an active participant on the Board of Directors. I would like to request that you place an item on the next City Council agenda to provide an appointment to the Board of Directors. This appointment must be confirmed by the Collin County Judge. Once we receive notification from you, we will provide this to the Judge for consideration. Respectfully submitted, Drew Satterwhite, P.E. General Manager North Texas Groundwater Conservation District North Texas Groundwater Conservation District PO Box 508 Gainesville, Texas 76241 (855) 426-4433 www.northtexasgcd.ora THE CITY OF Minna AGENDA ITEM: Item No. 11. City Council Agenda Staff Report Meeting Date: 4/23/2019 Consider/Discuss/Action regarding a Resolution approving a contract for sale and leaseback of real property owned by Joiner Construction Company, I nc., for construction of Municipal Complex Facilities. (Jim Proce) SUMMARY: For a number of months staff has negotiated with Joiner Construction Company, Inc. for acquisition of certain property necessary for completion of the proposed Municipal Complex Project which includes a new City Hall, Police Station, and Fire Station. The proposed agreement provides the terms by which the property may be acquired and also provides for a "leaseback" of a certain portion of the property for a period of 12 months. Additionally, the agreement provides that a segment of property already owned by the City be leased to Joiner Construction Company, Inc. for the same period. Funding is available for purchase of the property in the City of Anna 2018 Certificate of Obligation Bond issue. STAFF RECOMMENDATION: Staff recommends approval of the Resolution approving a contract for sale and leaseback of real property owned by Joiner Construction Company, Inc., for construction of Municipal Complex Facilities. ATTACHMENTS: Description Resolution Purchase and Sale Agreement Leaseback Agreement Leaseback Area Upload Date Type 4/16/2019 Resolution 4/16/2019 Backup Material 4/16/2019 Backup Material 4/16/2019 Backup Material CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY OF ANNA, TEXAS, APPROVING A CONTRACT FOR SALE AND LEASEBACK OF REAL PROPERTY OWNED BY JOINER CONSTRUCTION COMPANY, INC., FOR CONSTRUCTION OF MUNICIPAL COMPLEX FACILITIES WHEREAS, the City Council of the City of Anna, Texas ("City Council'), has found that the real property owned by Joiner Construction Company, Inc. ("Joiner") located at 206 E. 7th Street, Anna, Texas 75409 (the "Property") is needed for the municipal complex project; and WHEREAS, Joiner is willing to sell the Property to the City; and WHEREAS, the City is willing to temporarily lease a portion of the Property to Joiner; 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. Authorization to purchase property and execute agreement. The City Council hereby approves, subject to approval by the City Attorney as to legal form, the Contract for Sale and Leaseback of Real Property (the "Contract") and authorizes acquisition of fee simple title of the Property by warranty deed and the City Council further hereby authorizes, approves, and ratifies the City's duly authorized agents, including the Mayor or City Manager, to execute or to have executed all required instruments and related documents necessary to accomplish the land purchase and leaseback identified in this resolution. PASSED AND APPROVED by the City Council of the City of Anna, Texas, on this the 23rd day of April 2019. ATTEST: APPROVED: City Secretary, Carrie L. Smith Mayor, Nate Pike CONTRACT FOR SALE AND LEASEBACK OF REAL PROPERTY This Contract for Sale and Leaseback of Real Property (this "Agreement") is made on the day of , 2019 by Joiner Construction Company, Inc., a Texas corporation with its principal place of business at 11408 Chairman Drive, Dallas, Texas 75243 ("Joiner"), and the City of Anna, Texas, a home -rule municipality located at 111 N. Powell Parkway, Anna, Texas 75409 (the "City"). Recitals Joiner is the owner of real property located in the Anna Original Donation, Collin County, and includes Anna Original Donation (Can), Blk 2, Lot 1-5 8 9 & ABS-71 Henry Brantley Sur., Tr. 147, Anna, Collin Co., Texas (collectively, the "Property"), located at the street address commonly known as 206 E. 71' Street, Anna, Texas 75409. Joiner desires to sell and the City desires to purchase the Property in fee simple on the terms stated below, with conveyance to be made by general warranty deed. The City and Joiner desire that Joiner lease and occupy a certain portion of the Property (the "Leaseback") for a certain period of time after the City purchases the Property on the terms stated below and in the Leaseback. The effective date of this Agreement is the date first stated above (the "Effective Date"). Therefore, Purchaser and Seller contract as follows: Section I. Purchase Price The purchase price of the Property is $1,300,000 (the "Purchase Price") Section II. Terms of Payment, Taxes, 1031 Exchange On the execution of this Agreement, the City or Joiner may deliver a copy of same to Red River Title Company at 805 W. White St. #300, Anna, Texas 75409 (the "Title Company"). At Closing (as defined in Section VI of this Agreement), the City will pay the full amount of the Purchase Price to Joiner with the passing of title of the Property to the City as specified in this Agreement. The Purchase Price shall be paid in U.S. dollars in the form of a cashier's check or other form acceptable to Joiner. Joiner shall be solely responsible to timely pay or cause to be paid all 2019 ad valorem taxes and all previous years' ad valorem taxes on the Property. Notwithstanding the foregoing, Joiner contemplates closing this transaction as a 1031 like -kind exchange and the City agrees to execute all documents reasonably required to support such an exchange; provided, however, that the City shall not be required to undertake any act that would require the City to: (1) incur material costs ("material" for the purposes of this paragraph means costs over $100 total); or (2) stipulate to or represent facts or circumstances that are false or that are not within the City's personal knowledge. Section III. Surveys Not later than 30 days after the execution of this Agreement, the City, at its sole cost, will furnish Joiner and the Title Company with an updated survey of the Property. The survey shall be a current on -the -ground survey that substantially complies with the requirements of a Category IA, Condition I or II (as applicable) survey in the Manual of Practice for Land Surveying in the State of Texas promulgated by the Texas Board of Professional Land Surveying, as amended, and shall be adequate to enable the CONTRACT FOR SALE AND LEASEBACK OF REAL PROPERTY PAGE 1 Title Company to delete the survey exception in the Title Policy (except for "shortages in area"), at the City's expense. Section IV. Titles and Title Investigation Title Commitment. Within 15 days of receipt of the survey, the title officer shall have examined the abstracts covering the Property and shall have furnished: (1) the City with a Title Commitment for title to the Property and legible copies of the instruments referenced in said Title Commitment. "Title Commitment" means a Commitment for Issuance of a Title Policy, stating the condition of title to the Property. The "effective date" stated in the Title Commitment must be after the Effective Date of this Agreement. "Title Policy" means an Owner Policy of Title Insurance issued by Title Company, in conformity with the last Title Commitment delivered to and approved by the respective parties to this Agreement. The City shall pay all costs associated with any Title Commitment issued to the City under this Agreement. Title Objections. Within 15 days of the date that the City receives the Title Commitment ("Title Objection Deadline") the City shall have reviewed the Title Commitment and City Survey and notify Joiner and Title Company of its objections to any of them ("Title Objections"). The City will be deemed to have approved all matters reflected by the Title Commitment to which the City has made no Title Objection by the Title Objection Deadline. The matters that the City either approves or is deemed to have approved are "Permitted Exceptions." If the City notifies Joiner of any Title Objections, Joiner has fifteen (15) days from receipt of the Title Objections to notify the City whether Joiner agrees to cure the Title Objections before Closing ("Cure Notice"). If Joiner does not timely provide its Cure Notice or timely gives its Cure Notice but does not agree to cure all the Title Objections before Closing, the City may, within five days after the deadline for the giving of the Cure Notice (said five-day period being referenced herein as the "City Notice Deadline"), notify Joiner that either this Agreement is terminated or the City will proceed to close, subject to such objections, which the City shall accept and to which Joiner has no responsibility to cure. Section V. Leaseback Simultaneously with Closing and transfer of title of the Property to the City, Joiner and the City shall execute and deliver the Leaseback of the Property with City as lessor and Joiner as lessee, in the form and content set forth in Exhibit A attached to this Agreement. The Leaseback shall terminate upon the expiration of 12 full months after the month in which Closing occurs or earlier if terminated earlier in accordance with the terms of the Leaseback. Section VI. Closing of Title The Closing of the purchase and sale of the Property under this Agreement ("Closing") shall occur on or before the expiration of 20 days after the City Notice Deadline or another date as may be mutually agreed to in writing by the City and Joiner; provided, however, that Closing shall occur on or before May 31, 2019 or this Agreement shall terminate. Each party shall pay their own closing costs and attorney fees in this transaction. Section VII. Miscellaneous 1. Notices. Any notice required by or permitted under this Agreement must be in writing. Any notice required by this Agreement will be deemed to be delivered (whether actually received or not) when deposited with the United States Postal Service, postage prepaid, certified mail, return receipt requested, and addressed to the intended recipient at the address shown in this Agreement. Notice may also be given by regular mail, personal delivery, courier delivery and will be effective when actually received. Any address for notice may be changed by written notice delivered as provided herein. To the City: City Manager CONTRACT FOR SALE AND LEASEBACK OF REAL PROPERTY PAGE 2 City of Anna, Texas 111 N. Powell Parkway Anna, Texas 75409 With a copy to: Clark McCoy Wolfe, Tidwell & McCoy, LLP 2591 Dallas Parkway, Suite 300 Frisco, Texas 75034 To Joiner: Frank B.Joiner Joiner Construction Co., Inc. 11408 Chairman Drive Dallas, Texas 75243 2. Entire Contract. This Agreement, together with its recitals, exhibits, and any documents required to be delivered at Closing constitute the entire agreement of the parties concerning the purchase and sale of the Property and the sale, purchase, and Leaseback of the Property. There are no oral representations, warranties, agreements, or promises pertaining to the subject of this Agreement not incorporated in writing in this Agreement. 3. Amendment. This Agreement may be amended only by an instrument in writing signed by all parties. 4. Assignment. This Agreement shall not be assigned by either party without the other party's written consent for assignment to a specific buyer. 5. Survival. The obligations of this Agreement that cannot be performed before termination of this Agreement or before Closing will survive termination of this Agreement or Closing, and the legal doctrine of merger will not apply to such obligations. 6. Choice of Law; Venue; Alternative Dispute Resolution. This Agreement will be construed under the laws of the state of Texas, without regard to choice -of -law rules of any jurisdiction. Exclusive venue for any dispute arising under, in connection with, or in any manner related to this Agreement is in Collin County, Texas. Time permitting, the parties will submit in good faith to a nonbinding alternative dispute resolution process before filing a suit concerning this Agreement. The parties shall not under any circumstances be required to submit any dispute to arbitration. 7. Waiver of Default. It is not a waiver of default if the nondefaulting party fails to declare or delays declaring a default or delays taking any other action with respect to the default. 8. No Third -Party Beneficiaries. There are no third -party beneficiaries of this Agreement. 9. Severability. The provisions of this Agreement are severable. If a court of competent jurisdiction finds that any provision of this Agreement is unenforceable, the remaining provisions will remain in effect without the unenforceable parts. 10. Ambiguities Not to Be Construed against Party Who Drafted Contract. The rule of construction that ambiguities in a document will be construed against the party who drafted it will not be applied in interpreting this Agreement. 11. No Special Relationship. The parties' relationship is an ordinary commercial relationship, and they do not intend to create the relationship of principal and agent, partnership, joint venture, or any other special relationship. CONTRACT FOR SALE AND LEASEBACK OF REAL PROPERTY PAGE 3 12. Counterparts. If this Agreement is executed in multiple counterparts, all counterparts taken together will constitute this Agreement. 13. Confidentiality. The parties will keep confidential this Agreement, this transaction, and all information learned in the course of this transaction, except to the extent disclosure is required by law or court order or to enable third parties to advise or assist Buyer to investigate title or either party to close this transaction. 14 Attorneys' Fees. The prevailing party in any proceeding brought to enforce this Agreement, or brought relating to the transaction contemplated by this Agreement, will be entitled to recover, from the non -prevailing party, court costs, reasonable attorneys' fees and all other reasonable related expenses. 15. Contract as Offer. The execution of this Agreement by the first party to do so constitutes an offer to purchase or sell the Property. If the other party does not accept that offer by signing this Agreement and delivering a fully executed copy to the first party within ten (10) days after the date this Agreement is executed by the first party, then the first party may withdraw that offer by delivering a written notice to the other party. 16. Commission. The parties hereby represent to each other that neither has entered into any agreement or understanding that would give rise to a real estate commission being owed in connection with this Agreement or the conveyance of the Property, and each of the parties shall indemnify and hold the other harmless against any commission, payment, interest or participation claimed on account of this Agreement with any party under any alleged agreement or understanding entered into on that party's behalf with the person or entity claiming the commission, payment, interest or participation. 17. CONDITION OF PROPERTY. THE CITY UNDERSTANDS AND ACKNOWLEDGES THAT IF IT CLOSES ON THE PROPERTY IT WILL ACCEPT THE PROPERTY WITHOUT RECOURSE, REPRESENTATION OR WARRANTY (EXCEPT AS SPECIFICALLY SET OUT IN THIS AGREEMENT) OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY AND JOINDER IS SELLING THE PROPERTY AS IS, WHERE IS, AND WITH ALL FAULTS, AND WITHOUT REPRESENTATIONS OR WARRANTY (ALL OF WHICH JOINER HEREBY DISCLAIMS) AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, LAYOUT, FOOTAGE, PHYSICAL CONDITION, OPERATION, COMPLIANCE WITH SPECIFICATIONS, ABSENCE OF LATENT DEFECTS, OR COMPLIANCE WITH LAWS AND REGULATIONS. THE CITY HEREBY ASSUMES ALL RISK AND LIABILITY (AND AGREES THAT JOINER SHALL NOT BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, OR OTHER DAMAGES) RESULTING OR ARISING FROM OR RELATING TO THE OCCUPANCY, CONSTRUCTION, USE, CONDITION, LOCATION, MAINTENANCE, REPAIR, OR OPERATION OF THE PROPERTY. In witness of their agreement, the parties have executed this Agreement on the date(s) shown below. [REMAINDER OF PAGE LEFT BLANK. SIGNATURE PAGES FOLLOW.] CONTRACT FOR SALE AND LEASEBACK OF REAL PROPERTY PAGE 4 THE CITY OF ANNA, TEXAS By: Printed Name: Title: Date: STATE OF TEXAS § COUNTY OF COLLIN § Before me, the undersigned notary public, on the day of , 2019, personally appeared 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 and on behalf of Notary Public, State of Texas JOINER CONSTRUCTION COMPANY, INC. Frank B. Joiner, its President STATE OF TEXAS § COUNTY OF COLLIN § Before me, the undersigned notary public, on the day of , 2019, personally appeared Frank B. Joiner 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 Joiner Construction Company, Inc. Notary Public, State of Texas Title Company Receipt Title Company acknowledges receipt of a copy of this Agreement executed by both Buyer and Seller. [name of title company] BY: Printed Name: Title: Date: .2019. CONTRACT FOR SALE AND LEASEBACK OF REAL PROPERTY PAGE 5 EXHIBIT A LEASE AGREEMENT THIS LEASE AGREEMENT (this "Lease") is entered into by and between the City of Anna, Texas, a Texas home -rule municipality ("Landlord") and Joiner Construction Company, Inc., a Texas corporation ("Tenant"). For valuable consideration the parties agree and act as follows: 1. Definitions. The following terms have the meanings set forth below: (a) City Council. The City Council of the City of Anna, Texas. (b) Effective Date. The effective date of this Lease and the date upon which this Lease shall take effect is the date of the Closing, as that term is defined in Section VI of that certain Contract for Sale and Leaseback of Real Property ("Conveyance Agreement") under which fee simple title to the Property was sold and conveyed by Tenant to Landlord. (c) Leased Premises. The Leased Premises is located in the City of Anna, Collin County, Texas and solely includes: (1) an approximately acre portion of the Property ("Lease Area 1") including only those structures and appurtenances existing thereon as of the Conveyance Date ("Existing Improvements"), said Lease Area 1 being more particularly described and depicted in the attached Exhibit 1; and (2) an approximately acre portion of real property owned by Landlord that adjoins the Property ("Lease Area 2") said Lease Area 2 being more particularly described in the attached Exhibit 2. (d) Lease Term. Unless terminated sooner in accordance with the terms of this Lease, a term commencing upon conveyance of the Property from Tenant to Landlord ("Conveyance Date") under the Conveyance Agreement and ending on the expiration of the last day of the month that is 12 full months after the month during which the Conveyance Date occurred. (e) Permitees. All officials, officers, directors, employees, agents, contractors, customers, visitors and invitees of Tenant at the Leased Premises. (f) Permitted Exceptions. The conditions, restrictions, easements and encumbrances, if any, affecting title to the Leased Premises set forth in the owner's title of policy insurance obtained by Landlord pursuant to the Conveyance Agreement. (g) Pro e . The real property located in the Anna Original Donation, Collin County, including Anna Original Donation (Can), Blk 2, Lot 1-5 8 9 & ABS-71 Henry Brantley Sur., Tr. 147, Anna, Collin Co., Texas, said tract(s) being located at the street address commonly known as 206 E. 71 Street, Anna, Texas 75409. (h) Specific Use. The use by Tenant or a sublessee of Tenant of the Leased Premises solely as the site of. (1) a steel fabrication business including the onsite fabrication of heavy structural steel on Leased Area 1; and (2) parking of Permittee vehicles on Lease Area 2. 2. Demise, Lease Term. (a) Demise and Grant of Leased Premises. Landlord hereby leases to Tenant and Tenant accepts from Landlord under the terms, provisions and conditions of this Lease the Leased Premises solely for the Specific Use commencing on the Effective Date hereof and continuing until the expiration of the Lease Term or earlier termination as hereinafter provided. The Lease Term and this Lease shall automatically expire immediately if. (1) the Leased Premise is used for any purpose other than the Specific Use; or (2) the Specific Use is not continued for a period more than 30 consecutive days. (b) Quiet Enjoyment. Upon Tenant's payment of all rent hereunder as same becomes due and observance and performance of the covenants, terms and conditions to be observed and performed by Tenant pursuant to this Lease, Tenant shall have throughout the Lease Term, peaceful, quiet and undisturbed use and possession of the Leased Premises solely for the Specific Use and all rights and privileges appertaining thereto, subject to the terms, conditions and provisions of this Lease. (c) Landlord's Title, Subordination. Landlord covenants, represents and warrants to Tenant as follows: (1) Title. Landlord hereby represents and warrants that it owns good and indefeasible fee simple title in and to the Leased Premises, subject only to the Permitted Exceptions, and has full right and authority to make this Lease. (2) No Actions. There are no actions, suits or proceedings pending or to the best of Landlord's knowledge, threatened against Landlord and affecting any portion of the Leased Premises, at law or in equity, or before any federal, state, municipal or other governmental court, department, commission, board, bureau, agency or instrumentality, domestic or foreign. (3) Authority. The execution and consummation of this Lease by Landlord has been duly authorized and does not result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, agreement, instrument or obligation to which Landlord is a party or by which the Leased Premises or any portion thereof is bound. However, notwithstanding the foregoing or any term or provision of this Lease, any and all rights and obligations of Landlord and Tenant hereunder are subject to and shall not be effective unless and until there has been formal approval or conditional approval by the City Council of this Lease at a duly noticed public meeting. (f) Condition of Leased Premises. TENANT UNDERSTANDS AND ACKNOWLEDGES ITS ACCEPTANCE OF THE LEASED PREMISES IS WITHOUT RECOURSE, REPRESENTATION OR WARRANTY (EXCEPT AS SPECIFICALLY SET OUT HEREIN) OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY AND LANDLORD IS LEASING THE LEASED PREMISES AS IS, WHERE IS, AND WITH ALL FAULTS, AND WITHOUT REPRESENTATIONS OR WARRANTY (ALL OF WHICH LANDLORD HEREBY DISCLAIMS) AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, LAYOUT, FOOTAGE, PHYSICAL CONDITION, OPERATION, COMPLIANCE WITH SPECIFICATIONS, ABSENCE OF LATENT DEFECTS, OR COMPLIANCE WITH LAWS AND REGULATIONS. TENANT HEREBY ASSUMES ALL RISK AND LIABILITY (AND AGREES THAT LANDLORD SHALL NOT BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, OR OTHER DAMAGES) RESULTING OR ARISING FROM OR RELATING TO THE OCCUPANCY, CONSTRUCTION, USE, CONDITION, LOCATION, MAINTENANCE, REPAIR, OR OPERATION OF THE LEASED PREMISES. TENANT ACKNOWLEDGES THAT TENANT HAS INSPECTED THE LEASED PREMISES AND ACCEPTS THE LEASED PREMISES "AS IS," "WHERE IS" AND "WITH ALL FAULTS." 3. Rent and Taxes. Tenant shall pay Landlord the following amounts: (a) Rent. (1) Tenant shall pay to Landlord as rent ("Rent") for the Leased Premises for the Lease Term, a single lump sum payment of $10, the receipt and sufficiency of which is hereby acknowledged. (2) If Tenant occupies or possesses the Leased Premises or any portion thereof after the expiration of the Lease Term for any reason, the Rent shall increase to $5,000 per month or partial month (with no proration) due on the fifth day of each month beginning with the month following expiration of the Lease Term. (b) Taxes. Tenant shall be liable to timely pay or reimburse Landlord for any taxes that may become due during the Lease Term on a pro rata basis calculated as a percentage of the tax liability for the number of days in the applicable tax year during which Tenant occupies the Property under this Lease. Either Landlord or Tenant may dispute taxation of the Leased Premises or any portion thereof. 4. Improvements, Additions and Repairs. LEASE AGREEMENT PAGE 2 (a) Delivery of Leased Premises. Landlord shall deliver exclusive possession of the Leased Premises to Tenant upon the beginning of the Lease Term, subject only to the provisions and terms of this Lease and the Permitted Exceptions. (b) Alterations and Improvements. With the exception of signs erected in conformance with applicable laws and ordinances, and construction of Improvements as approved in writing by Landlord and, set forth on one or more site plans submitted to and formally approved by the City Council during a duly posted meeting, and constructed in accordance with construction plans submitted to and approved in writing by the City or City staff, Tenant may not at any time construct, alter, change, expand any Improvements now or hereafter situated on the Leased Premises; provided, however, that with the written permission of the City Manager and in accordance with all applicable laws and ordinances, Tenant shall be permitted to demolish and remove any and all Improvements and/or portions thereof located on the Leased Premises. If any such new construction by Tenant is at any time approved: (1) All such work shall be performed in a good and workmanlike manner, in accordance with accepted standards of engineering and architecture, if applicable, and in accordance with local, state and federal law, including but not limited to the Americans with Disabilities Act; and (2) Such construction, alteration, additions, changes or demolishment shall be in compliance with all applicable building codes, zoning, rules, regulations and ordinances affecting construction of such alterations, additions, and changes and shall be commenced only after Tenant has been duly granted all legally required permits for same. (c) No Mechanic's Liens. Tenant shall not permit any mechanic's or materialman's liens to be filed against Landlord's interest in the Leased Premises arising out of the Tenant Improvements (unless the same are fully bonded so as to cause same to be removed in accordance with applicable law), and Tenant shall indemnify, defend (using counsel acceptable to Landlord in its reasonable discretion), and hold harmless Landlord from and against any costs, liability or expense, including attorneys fees and related expenses, attributable to any such liens. Tenant's obligations under this paragraph 4(c) shall expressly survive the expiration or earlier termination of this Lease. (d) Environmental. Tenant or any sublessee of Tenant shall use the Leased Premises solely for the Specific Use, shall conduct its business in a lawful manner and shall not make or permit any unlawful use of the Leased Premises. Tenant will, at its own expense, promptly comply with all laws, regulations, and ordinances affecting the Leased Premises and the cleanliness, safety, occupancy, and use thereof. TENANT SHALL INDEMNIFY, DEFEND (USING COUNSEL ACCEPTABLE TO LANDLORD IN ITS REASONABLE DISCRETION) AND HOLD HARMLESS LANDLORD FROM AND AGAINST ANY COST, LIABILITY OR EXPENSE ARISING OUT OF OR ATTRIBUTABLE TO ANY CLAIMS, DEMANDS, CAUSES OF ACTION, FINES, PENALTIES, LIABILITY OR EXPENSES (INCLUDING ATTORNEY FEES, RELATED EXPENSES, AND COURT COSTS) ARISING OUT OF OR RELATED TO THE EXISTENCE, REMOVAL OR DISPOSAL OF ANY TOXIC OR HAZARDOUS SUBSTANCES OR MATERIALS WITHIN OR UPON THE LEASED PREMISES CAUSED BY TENANT, ITS EMPLOYEES, OFFICERS, AGENTS, SUBLESSEES OR REPRESENTATIVES BEFORE OR DURING THE LEASE TERM. FOR PURPOSES HEREOF, THE PHRASE "TOXIC OR HAZARDOUS SUBSTANCES OR MATERIALS" SHALL INCLUDE ITEMS COVERED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980,42 U.S.C. §§9601-75(1986), AS AMENDED BY THE SUPERFUND AMENDMENT AND REAUTHORIZATION ACT, PUB. L. NO. 99-499, 100 STAT. 1613 (1986) ("CERCLA"), THE TOXIC SUBSTANCES CONTROL ACT, 15 U.S.C. §2601 ET SEQ., THE CLEAN WATER ACT, 33 U.S.C. § 1251 ET SEQ., THE SAFE DRINKING WATER ACT, 42 U.S.C. §§300(f)-3000), AND OTHER FEDERAL, STATE AND LOCAL LAWS NOW OR HEREAFTER IN EFFECT GOVERNING THE EXISTENCE, REMOVAL OR DISPOSAL OF TOXIC OR HAZARDOUS SUBSTANCES OR MATERIALS. Tenant's obligations under this paragraph 4(d) shall expressly survive the expiration or earlier termination of this Lease. (e) Repairs. Tenant shall, at its sole cost and expense, perform all repairs and preventative maintenance necessary to maintain the Leased Premises in good condition and repair, ordinary wear and tear excepted, and keep the Leased Premises in compliance with applicable law throughout the Lease Term. The foregoing shall not in any LEASE AGREEMENT PAGE 3 way impair or limit Tenant's right to make alterations or additions to the Leased Premises as set forth in paragraph above. Tenant's obligations under this paragraph 4(e) shall expressly survive the expiration or earlier termination of this Lease. (f) Tenant's Fixtures. Notwithstanding any provision of this Agreement, Tenant may install in or upon the Leased Premises such trade fixtures and equipment as Tenant deems desirable, provided that Tenant does so in accordance with a written plan demonstrating the size and configuration of such fixtures and equipment upon the Leased Premises. All of said items shall remain Tenant's property whether or not affixed or attached to the Leased Premises. Tenant may remove such items from the Leased Premises at any time during the Lease Term. Nothing contained in this paragraph 4(f) shall diminish Tenant's obligations to maintain the Leased Premises pursuant to paragraph 4(e). (g) Platting, Site Plans, Approvals. Landlord and Tenant acknowledge that it may be necessary, from time -to -time, for Landlord or Tenant to seek governmental approvals with respect to platting, zoning, site plans, permitting and/or obtaining other permits in connection with its use and occupancy of the Leased Premises for the uses permitted hereby (collectively, "Approvals"). Landlord agrees to reasonably cooperate with Tenant and Tenant agrees to reasonably cooperate with Landlord with respect to its obtaining the Approvals and to execute such documents as may be required in order for Landlord and/or Tenant to obtain such Approvals. Tenant expressly understands and agrees that approval by the City Council of this Lease does not constitute the City Council's granting of an Approval and does not bind the City Council to grant or approve any other Approvals. 5. Utilities. Tenant shall at its own expense arrange with the appropriate utility suppliers for services to the Leased Premises, pay all connection, meter and service charges and deposits required to connect utilities to the Leased Premises, and pay such utility suppliers directly for such services. Landlord shall not pay any sum in connection with utility installation or service on the Leased Premises. 6. Use, Transfers, or Assignments. (a) Tenant's Use. Except as prohibited or restricted by the Permitted Exceptions, Tenant may use the Leased Premises solely for the Specific Use, provided that such purpose and use is in conformity with all applicable site plans, zoning, and Approvals, and other restrictions set forth in this Lease and which may otherwise apply to the Leased Premises. (b) Assignment, Subletting. Tenant shall not assign all or any part of this Lease or sublet all or any part of the Leased Premises without Landlord's written consent; provided, however, that Tenant may sublease the Leased Premises to Wells/McCoy Steel Services, Inc. for the Specific Use, which such sublease shall: (1) be in a written form approved by Landlord without unreasonable denial or delay; and (2) terminate automatically at the expiration of the Lease Term or earlier termination as provided in this Agreement. In the case of any assignment or sublease permitted by Landlord, Tenant shall not be released from any liability. 7. Indemnification, Insurance. (a) Indemnification. IN ADDITION TO ANY OTHER PROVISIONS OF THIS LEASE, TENANT SHALL INDEMNIFY, HOLD HARMLESS, AND, AT LANDLORD'S OPTION, DEFEND (USING COUNSEL ACCEPTABLE TO LANDLORD IN ITS REASONABLE DISCRETION) LANDLORD AND ITS OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES (COLLECTIVELY, THE "INDEMNIFIED PARTIES") FROM AND AGAINST ANY AND ALL LIABILITY, LIENS, CLAIMS, DEMANDS, DAMAGES, EXPENSES, FEES, COSTS, REASONABLE ATTORNEY FEES AND LITIGATION COSTS, FINES, PENALTIES, SUITS, PROCEEDINGS, ACTIONS AND CAUSES OF ACTION OF ANY AND EVERY KIND AND NATURE ARISING OUT OF OR RELATING IN ANY WAY TO TENANT'S USE, OCCUPANCY, CONSTRUCTION, MANAGEMENT, CONTROL OR SUBLEASE OF THE LEASED PREMISES, IMPROVEMENTS OR TENANT'S OPERATIONS, CONDUCT OR ACTIVITIES, UNLESS AND TO THE EXTENT THE SAME IS DUE TO THE NEGLIGENCE, GROSS NEGLIGENCE, OR INTENTIONAL ACTS OR OMISSIONS OF LANDLORD, ITS AGENTS, EMPLOYEES OR CONTRACTORS. TENANT'S OBLIGATIONS UNDER THIS LEASE AGREEMENT PAGE 4 PARAGRAPH 7(a) SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THE LEASE TERM. (b) Tenant's Insurance. Tenant shall, at its expense, obtain comprehensive general liability insurance against all claims on account of bodily injury, personal injury or property damage, for which Tenant may, as a result of its operations or other use of the Leased Premises, become liable. At a minimum, the insurance policies to be held by the Tenant shall be in effect at all times during the Lease Term, and shall include: (a) workers compensation insurance if required by applicable law in the amount required by law; and (b) general liability insurance including personal injury liability, premises operations liability, and contractual liability, covering, but not limited to, the liability assumed under any indemnification provisions of this Agreement, with limits of liability for bodily injury, death and property damage of not less than $1,000,000.00. Coverage must be on a "per occurrence" basis. All such insurance shall: (i) be issued by a carrier which is rated "A 1" or better by A.M. Best's Key Rating Guide and licensed to do business in the State of Texas; and (ii) name the Landlord as an additional insured and contain a waiver of subrogation endorsement in favor of the Landlord. Upon request by the Landlord, the Tenant shall provide to the Landlord certificates of insurance evidencing such insurance coverage together with the declaration of such policies, along with the endorsement naming the Landlord as an additional insured. Each such policy shall provide that, at least 30 days prior to the cancellation, non -renewal or modification of the same, the Landlord shall receive written notice of such cancellation, non -renewal or modification." (c) Workers Compensation. Tenant shall maintain workers compensation or similar insurance affording not less than Texas statutory coverage minimums and providing not less than statutory limits or benefits for all employees of Tenant employed at the Leased Premises. (d) Scope. The insurance or risk pool policies or duly executed certificates thereof, together with satisfactory evidence that the premium has been paid, shall be provided to Landlord on or before the Effective Date of this Lease; and, thereafter, evidence of continuing insurance and premium payment shall be delivered to Landlord not less than 30 days prior to the expiration of each policy required to be in force hereunder. If Tenant fails to maintain the required insurance or to deliver evidence of same this Lease will continue in full force and effect; provided, however, that Landlord may, but shall not be obligated to, obtain such insurance and be reimbursed by Tenant upon demand. (e) Waiver of Subro ag tion. Landlord shall not be liable by way of subrogation or otherwise to Tenant or to any insurance company insuring Tenant for any loss or damage to any of the property of the Landlord or Tenant covered by insurance even though such loss or damage might have been occasioned by the negligence of: (1) Landlord or its officers, directors, employees, agents, contractors, customers, or visitors and invitees of Landlord at the Leased Premises; or (2) Tenant or its Permitees. This waiver shall be in effect only so long as the applicable insurance or risk pool policies shall contain a clause or endorsement to the effect that the waiver shall not affect the right of the insured to recover under such policies. Tenant shall use its best efforts, including payment of any additional premium, to have its insurance policies contain the standard waiver of subrogation clause. In the event Tenant's insurance carrier declines to include in such carrier's policies a standard waiver of subrogation clause, Tenant shall promptly notify Landlord. S. Destruction, Condemnation. (a) Destruction. (1) Cancellation. If any portion of the Improvements situated on the Leased Premises shall be damaged or destroyed, this Lease shall continue in full force and effect and shall not be affected thereby. (2) Restoration. In the event of unintended damage or destruction, Tenant shall remove any debris and cause the Leased Premises to be repaired or restored as Landlord may permit in writing, but in any event the Leased Premises shall be repaired or restored to a safe and sightly condition in compliance with all applicable laws. LEASE AGREEMENT PAGE 5 (3) Insurance Proceeds. All of Tenant's insurance proceeds payable with respect to damage or destruction of the Improvements shall be retained by and be the property of Tenant. (b) Condemnation. (1) Taking of Parking or Access. In the event of a taking by the power of eminent domain or conveyance in lieu thereof ("Taking") of the whole or any part of the Leased Premises, this Lease shall terminate as to the portion so taken but shall remain in full force and effect as to the balance of the Leased Premises. (2) Awards. All compensation awarded for any Taking of the Leased Premises, including any interest of Landlord or Tenant therein, shall be the property of Landlord, and Tenant hereby assigns to Landlord all of Tenant's rights, title and interest in and to any and all such compensation. (3) Restoration. If there is a Taking of all or part of the Leased Premises, Tenant, at its sole discretion and expense, shall restore and rebuild the Leased Premises, in such manner as Landlord may permit in writing, provided that the same shall be in accordance with all applicable laws. 9. General Provisions. (a) Notice. "Notice" shall mean any notice, notification, consent, approval, request, designation, submission, specification, election or other communication required or permitted under this Lease. All notices required by or permitted under this Agreement must be in writing. Any notice required by this Agreement will be deemed to be delivered (whether actually received or not) when deposited with the United States Postal Service, postage prepaid, certified mail, return receipt requested, and addressed to the intended recipient at the address shown in this Agreement. Notice may also be given by regular mail, personal delivery, courier delivery and will be effective when actually received. Any address for notice may be changed by written notice delivered as provided herein. To the City: City Manager City of Anna, Texas 111 N. Powell Parkway Anna, Texas 75409 With a copy to: Clark McCoy Wolfe, Tidwell & McCoy, LLP 2591 Dallas Parkway, Suite 300 Frisco, Texas 75034 To Joiner: Frank B.Joiner Joiner Construction Co., Inc. 11408 Chairman Drive Dallas, Texas 75243 (b) Entire Agreement. This Lease embodies the entire agreement and understanding between the parties as to the lease of the Leased Premises by Tenant and supersedes all prior negotiations, agreements and understandings pertaining to such lease. Any provision of this Lease may be modified, waived or discharged only by an instrument in writing signed by the party against which enforcement of such modification, waiver or discharge is sought. This Lease is not intended to be nor shall it be construed as a service contract or contract for the sale of goods by Landlord to Tenant. Landlord does not by entering into this Lease waive any immunities it may have under common law or statute. LEASE AGREEMENT PAGE 6 (c) Commission. Tenant and Landlord hereby represent to each other that neither has entered into any agreement or understanding that would give rise to areal estate commission being owed in connection with this Lease, and each of Landlord and Tenant shall indemnify and hold the other harmless against any commission, payment, interest or participation claimed on account of this Lease with any party under any alleged agreement or understanding entered into on that party's behalf with the person or entity claiming the commission, payment, interest or participation. (d) Force Majeure. Each party shall be excused from performing an obligation or undertaking provided for in this Lease for so long as such performance is prevented, delayed, retarded or hindered by an Act of God, fire, earthquake, flood, explosion, action of the elements, war, invasion, insurrection, riot, mob violence, sabotage, strike, lockout, action of labor unions, requisitions, laws, or orders of government or civil or military authorities. (e) Surrender. Upon the expiration of the Lease Term or earlier termination of this Lease ("Surrender Date"), Tenant shall surrender the Leased Premises to Landlord. Prior to surrender, Tenant may remove all Personal Property, all fixtures (including without limitation trade fixtures installed by Tenant), and all other installations or improvements, structures, buildings, HVAC equipment, paneling, partitions, railings, mezzanine floors, galleries and other structural features on the Property (collectively, "Tenant Removable Fixtures/Equipment"); provided, however, that Tenant may not at any time remove public infrastructure including water, sewer or drainage infrastructure. Any Tenant Removable Fixtures/Equipment not removed from the Property on or before the Surrender Date shall be and become the property of Landlord and shall be surrendered with the Leased Premises at the expiration or termination of this Lease unless Landlord notifies Tenant to the contrary in writing, in which event Tenant may thereafter remove such property at its expense. Any property not promptly removed by Tenant under the provisions of this subparagraph may, at Landlord's option, be deemed to have been abandoned by Tenant and may be retained by Landlord without any claim by Tenant. Tenant shall in any event repair any damage to the Leased Premises caused by Tenant's removal of any property. (f) Applicable Law, Construction. The laws of the State of Texas shall govern the validity, performance and enforcement of this Lease. The invalidity or unenforceability of any provision of this Lease shall not affect or impair any other provision. If any provision of this Lease is capable of two constructions, one of which would render the provision invalid and the other of which would make the provision valid, the provision shall have the meaning which renders it valid. The submission of this document for examination does not constitute an offer to lease, this document being effective only upon the conditions stated herein. (g) Time of the Essence. Time is of the essence with respect to each provision, term and covenant of this Lease. (h) Captions. The captions are for convenience and do not limit or define the provisions of this Lease. (i) Gender, Number. Whenever the sense of this Lease requires it, the use of (1) singular number shall be deemed to include the plural, (2) the masculine gender shall be deemed to include the feminine or neuter gender, and (3) the neuter gender shall be deemed to include the masculine and feminine gender. 0) Counterparts. This Lease may be executed in multiple counterparts, each of which shall be an original, but all of which shall constitute one instrument. (k) Contract Interpretation. This Lease 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 language in dispute. (1) No Joint Venture. It is acknowledged and agreed by the parties that the terms hereof are not intended to and shall not be deemed to create a partnership or joint venture among the parties. LEASE AGREEMENT PAGE 7 (m) Binding Effect. All provisions of this Lease shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. LANDLORD: THE CITY OF ANNA, TEXAS By: Printed Name: Title: Date: STATE OF TEXAS COUNTY OF COLLIN Before me, the undersigned notary public, on the day of , 2019, personally appeared 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 and on behalf of Notary Public, State of Texas TENANT: JOINER CONSTRUCTION COMPANY, INC. RE Frank B. Joiner, its President STATE OF TEXAS COUNTY OF COLLIN Before me, the undersigned notary public, on the day of , 2019, personally appeared Frank B. Joiner 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 Joiner Construction Company, Inc. Notary Public, State of Texas LEASE AGREEMENT PAGE 8 EXHIBIT 1 DESCRIPTION/DEPICTION OF LEASE AREA 1 EXHIBIT 2 DESCRIPTION/DEPICTION OF LEASE AREA 2 0 . 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W = to O C� Y ■ m1 grave W ■ r-�� - -- -- -- -- -- - -- 10' LANDSCAPE BUFFER, TYP. 8"W 615.48' FOP® 3HO 2,�G 2' G — "G 3H SSMH I I WM gravel WM G 3HO ib I V ,MOSS ■ 1■■■■■■■■■■ ■■■■■■■■■■ ■ ■■■■■■■■■■■ L oil sn A I ■■■■■■■■■■■ 00000001001 Pu■■■■■■■0a AP "TRICAL EASEMENT I k0l Ar 1��� ® .. ��♦_ Q UP 9_0 It_ 0 9 / _ .I I. LEASE ARE 0111111 rizi 10 W12. TP sumNONE 107T A r ,I I, 00 OHE OHE GM 0 i Q m I Z I.7 1\I GRAPHIC SCALE 30 0 15 30 1 inch = 30 ft. Texas811 NOTIFICATION CENTER (Prev. DigTESS) 811 or 1-800-545-6005 or 1-800-DIG-TESS LONESTAR 811 NOTIFICATION CENTER: 1-800-669-8344 All excavators must call one of the above notification centers prior to digging. Call not earlier than 14 days before or later than 2 working days (48-hours) before the date the excavation is to begin, excluding weekends and legal holidays. One Call Notification Center covers all underground utilities except water, sewer and slurry. The Excav- ator shall notify these operators directly. 1 IMPORTANT NOTE: EXISTING UNDERGROUND UTILITY LOCATIONS ARE APPROXIMATE. CONTRACTOR SHALL LOCATE ALL EXISTING UNDERGROUND UTILITIES PRIOR TO START AND NOTIFY THE ENGINEER OF ANY DIFFERENCES BETWEEN ACTUAL LOCATIONS AND THE LOCATIONS SHOWN HEREON. BLENDED TRANSITIONAL WITH CURB CUT OR BLENDED 2x6 TRANSITION WARNING SURFACE LEGEND Al BI EXISTING BUILDING 7 EXISTING LARGE STORM DRAIN LINE EXISTING STORM DRAIN LINE W/ SIZE EXISTING WASTEWATER LINE W/ SIZE EXISTING WATER LINE W/ SIZE EXISTING UNDERGROUND TELEPHONE OHE EXISTING OVERHEAD ELECTRIC LINE C 3"G EXISTING GAS LINE W/ SIZE — NEW LARGE STORM DRAIN LINE �❑ NEW STORM DRAIN INLET ® NEW STORM DRAIN HEADWALLS 6"W NEW WATER LINE W/ SIZE 8"WW NEW WASTEWATER (SANITARY) LINE W/ SIZE G NEW GAS LINE UE NEW UNDERGROUND ELECTRIC LINE NEW BUILDING SETBACK LINE OR BUFFER LINE NEW FIRE LANES CONSTRUCTION LIMITS General Construction Notes: 1. REFER TO SHEET C-001 - GENERAL NOTES AND ABBREVIATIONS FOR GENERAL CONSTRUCTION NOTES. 2. REFER TO SHEETS C-002 - EXISTING CONDITIONS FOR IMPORTANT INFORMATION REGARDING EXISTING SITE CONDITIONS. 3. ALL PAVING IN CITY R.O.W. SHALL COMPLY WITH CITY OF ANNA NOTES, SPECIFICATIONS, AND DETAILS. 4. REFER TO SHEET C-601 - PAVING DETAILS FOR PAVING NOTES AND EARTHWORK REQUIREMENTS. 5. THE CONTRACTOR IS RESPONSIBLE FOR LOCATING UTILITIES AND STORM DRAINS AND REPORTING ANY POTENTIAL CONFLICTS TO THE ENGINEER PRIOR TO CONSTRUCTION. SURVEYOR'S NOTES Temporary Benchmarks: TBM #1: Mag Nail Set in the center of a concrete headwall, at the southeasterly intersection of State Highway No. 5 and 5th Street. Elevation=702.33' TBM #2: Mag nail set in concrete, in the northerly line of 7th Street, being approximately 250' east of the approximate centerline of State Highway No. 5. Elevation=701.91' Notes: 1. According to the Flood Insurance Rate Map of Collin County, Texas, Map No. 48085CO160J, Map Revised June 02, 2009, the herein described property is located in Zone "X", described by said map to be, "areas determined to be outside the 0.2% annual chance floodplain". 2. The surveyor has relied on the herein described subject deed with regard to any easements, restrictions, or rights —of —way affecting the above described Property. No additional research regarding said easements, restrictions or rights —of —way has been performed by the surveyor. 3. Bearings are based on the northerly line of that tract of land described by deed to Chris Cashdollar and Jacque Cashdollar, as recorded under Document No. 20091020001289220, of the Official Public Records, Collin County, Texas. DI El RANDAL L S C OTT ARCHITECTS ARCHITECTURE 1 INTERIORS I PLANNING 2140 LAKE PARK BLVD. SUITE 300 RICHARDSON, TX. 75080 PHONE: 972.664.9100 WWW.RSARCHiTECTS.COM THE CITY OF manna PROJECT TEAM PRINCIPAL: PROJ. DIR.: PROJ. MGR. DRAWN BY: Q.C.: Charles Gojer and Associates, Inc. Consulting Engineers Texas Firm Registration No. F-697 11615 Forest Central Dr. Suite 303 Dallas, Texas 75243 (214) 340-1199 JOB NO. 18-126 100% DESIGN DEVELOPMENT DOCUMENTS ISSUED FOR INTERIM REVIEW THIS DOCUMENT IS NOT TO BE USED FOR CONSTRUCTION, BIDDING OR PERMIT PURPOSES. CHRISTOPHER M. WALTON, P.E. TEXAS REG'N. # 92645 DATE: 11 APRIL 2019 ISSUE DATE: © FEBRUARY 8, 2019 WELLS-MCCOY DEMO EXHIBIT SHEET NO. 1110 111110 PROJECT NO.: 1816.10 THE CITY OF AiAtia AGENDA ITEM: Item No. 12. City Council Agenda Staff Report Meeting Date: 4/23/2019 Approve Resolution Authorizing a Subdivision Improvement and Economic Development Incentive Agreement with North Texas Surgery Real Estate, LLC. (Joey Grisham) SUMMARY: North Texas Surgery Center, LLC is planning to develop 4.775 acres just north of the NWC of US 75 and FM 455. Their plans are to build a medical facility and outpatient surgery center. The Agreement with North Texas Surgery Center, LLC is outlined below: -Allows for the issuance of a Building Foundation Only Permit prior to a final plat being filed and prior to all public improvements being constructed. -Prohibits construction of any structural improvement above the slab level until a general building permit has been issued. -Provides financial security in the amount of 110% of an estimated cost of the public improvements. -Grants the deferment of Impact Fees for a period of twenty-four (24) months in the amount of $207,999. -All other development and permit and inspection fees are due in the amounts and times normally required by the city. -The outpatient surgery center must be complete and ready for a Certificate Of Occupancy within 18 months after the passage of this agreement. The medical facility and outpatient surgery center is anticipated to have a significant positive impact on the community. Neighbors will be able to get medical care right here in Anna and not have to drive outside the city. Likewise, neighbors from surrounding communities will come to Anna to get medical care, eat at restaurants and shop at businesses in the community. The project will increase synergy on the NWC of US 75 and FM 455 bringing additional medical facilities and businesses in the future as well. STAFF RECOMMENDATION: Approve Resolution Authorizing a Subdivision Improvement and Economic Development Incentive Agreement with North Texas Surgery Real Estate, LLC. ATTACHMENTS: Description Upload Date Type Resolution Doctor's 4/18/2019 Staff Report SIA.EIA Doctor's 4/18/2019 Staff Report RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS APPROVING A SUBDIVISION IMPROVEMENT AND ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT WITH NORTH TEXAS SURGERY REAL ESTATE, LLC AND THE CITY OF ANNA, COLLIN COUNTY, TEXAS WHEREAS, North Texas Surgery Real Estate, LLC desires to develop 4.775 acres of land in the City of Anna; and WHEREAS, North Texas Surgery Real Estate, LLC intends to use the property for a medical facility for the performance of surgical procedures and operations; and WHEREAS, the operation of the medical facility will create a significant number of new jobs in the community; and WHEREAS, the City Council of the City of Anna has determined that it would be beneficial for the City to provide North Texas Surgery Real Estate, LLC a deferment of the time at which a certain portion of impact fees shall be due and payable to the City; and WHEREAS, the City is authorized to grant the deferment under Chapter 380 of the Texas Local Government Code; NOW, THEREFORE, BE IT RESOLVED BY 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 Project and Agreement The CITY COUNCIL OF THE CITY OF ANNA hereby approves the SUBDIVISION IMPROVEMENT AND ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT with North Texas Surgery Real Estate, LLC and the City of Anna, Texas attached hereto, incorporated herein for all purposes, and authorizes the Mayor to execute same on its behalf, subject to approval as to form by legal counsel for the City, said Agreement to be effective upon its approval by the City of Anna City Council and as set forth in said Agreement. Section 3. Administration The City hereby authorizes the City Manager or his designee to administer the Agreement. PASSED AND APPROVED by the City Council of the City of Anna on this 23th, day of April 2019. City of Anna, Texas Mayor Nate Pike North Texas Surgery Real Estate, LLC Manager SUBDIVISION IMPROVEMENT AND ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT This Subdivision Improvement and Economic Development Incentive Agreement (this "Agreement") is entered into between the City of Anna, Texas (the "City") and North Texas Surgery Real Estate, LLC, a Texas limited liability company ("Owner"). WHEREAS, Owner and the City are sometimes collectively referenced in this Agreement as the "Parties," or, each individually, as "Party"; and WHEREAS, unless the context clearly indicates to the contrary, certain capitalized terms used in this Agreement have the meanings provided in these recitals, in Section 2 of this Agreement, or as otherwise expressly set forth in this Agreement; and WHEREAS, Owner owns and desires to develop a parcel or parcels of real property (the "Property") in Collin County, Texas, which is composed of approximately 4.775 acres of land 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 Property is currently undeveloped and the Owner plans to develop the Property and use the Property solely as the site for a medical facility for the performance of surgical procedures and operations (the "Medical Facility"); and WHEREAS, a proposed site plan of the Property is attached hereto as Exhibit B, which sets forth the layout of parking lots, traffic areas, fire lanes, buildings, and other development aspects planned for development of the Property; and WHEREAS, the City currently lacks an establishment similar to the Medical Facility to provide for surgical needs of citizens of the City and nearby areas; and WHEREAS, it is projected that the location and operation of the Surgical Center in the City will directly create a significant number of new jobs in the City; and WHEREAS, the City recognizes the positive economic impact that Medical Facility will bring to the City through development and diversification of the economy, reduction of unemployment and underemployment through the production of new jobs, the attraction of new businesses, and the additional tax revenue; and WHEREAS, as an incentive to develop the Medical Facility, the Owner has requested a deferment of the time at which a certain portion of Impact Fees assessed on the new development on the Property shall be due and payable to the City and the City is willing to grant the Deferment under and subject to the terms and conditions of this Agreement.; and WHEREAS, the City is authorized to grant the Deferment under Chapter 380 of the Texas Local Gov't Code and Chapter 395 of the Texas Local Gov't Code; and WHEREAS, as of the Effective Date: (1) Owner has commenced grading of the Property but has SUBDIVISION IMPROVEMENT AND ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT Page 1 not commenced construction of the Public Improvements; and (2) a final plat of the Property has not been recorded in the Land Recordings of the Collin County Clerk's Office; and WHEREAS, the City Code generally requires that a final plat be recorded in the Land Recordings of the Collin County Clerk's Office before any building permit may be issued for construction of structures on property covered by such final plat (the "Plat Recordation Requirement"); and WHEREAS, Owner desires that the City issue a Building F.O. Permit before a final plat of the Property is recorded in the Land Recordings of the Collin County Clerk's Office; and WHEREAS, under Article 6, Section 9.01 of Part III -A (Subdivision Regulations) of the City Code, there is an exception to the Plat Recordation Requirement that allows the City to issue a Building F.O. Permit permitting construction of building foundations before a final plat is recorded in the Land Recordings of the Collin County Clerk's Office; and WHEREAS, under said exception to the Plat Recordation Requirement, the City may not issue a Building F.O. Permit unless and until the City is provided with a guarantee and sufficient financial security, as set forth under Article 6, Section 2 of said Subdivision Regulations, in to ensure that all necessary public improvements will timely be constructed; and WHEREAS, the City is willing to issue to the Owner a Building F.O. Permit for the Development provided that: (1) Owner submits to the City for approval by the City Engineer the Cost Estimate; (2) the City Engineer approves the Cost Estimate based on the estimated costs shown therein; and (3) Owner provides the City with financial security satisfactory to the City in the amount of 110% of the full dollar amount of the Cost Estimate (the "Financial Security"); and WHEREAS, the Financial Security may be in the form of a letter of credit acceptable to the City; and WHEREAS, it is the Parties' mutual intent that this Agreement shall govern only the subject matter specifically set forth herein and shall supersede any previous agreement between the Parties and City Regulations only to the extent that any such agreements or City Regulations directly conflict with the terms of this Agreement; and WHEREAS, Owner acknowledges that the obligations undertaken under this Agreement are primarily for the benefit of the Property; and WHEREAS, Owner understands and acknowledges that acceptance or enforcement of this Agreement is not an exaction demanded by the City but rather is an undertaking of Owner's desire and voluntary design to ensure consistency, quality, and adequate infrastructure that will benefit Owner's development of the Property; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Parties agree as follows: SUBDIVISION IMPROVEMENT AND ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT Page 2 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 Owner and the City. SECTION 2. DEFINITIONS Building F.O. Permit means a building "foundation only" permit, which, if issued by the City under this Agreement will: (1) allow Owner to construct the slabs for the planned structures of the Development and associated appurtenances; and (2) prohibit construction of any structural improvement above slab level until such time that a general building permit has been issued. City Attorney means the law firm of Wolfe, Tidwell & McCoy, LLP. Ci Code means the Anna City Code of Ordinances. City Manager means the current or acting City Manager of the City of Anna or a person designated to act on behalf of the City Manager if the designation is in writing and signed by the current or acting City Manager. City Engineer means the engineering firm of Birkhoff, Hendricks & Carter, L.L.P. City Regulations mean City Code provisions, ordinances, design standards, uniform codes, and other applicable policies duly adopted by the City. Cost Estimate, with respect to each category of Public Improvements, means the Owner's estimated dollar amount to fully fund the design and construction of each such category. Deferment means a temporary postponement —lasting until the expiration of the Deferment Period —of the Owner's obligation to pay Impact Fees assessed on the Property. Deferment Period means 24 months after the Effective Date. Development means the new development on the Property that is the subject of this Agreement. Effective Date means the date described in Section 10 of this Agreement. Financial Security means a letter of credit as described in Section 4 of this Agreement. Impact Fees means the fees adopted by the City under Chapter 395 of the Texas Local Government Code and assessed on the Property. Public Improvements mean, collectively, the following categories of improvements that Owner shall construct and dedicate to the City: Sanitary Sewer Facilities, Stormwater/Drainage Facilities, Water Facilities, and any and all other public improvements necessary to serve the Property. SUBDIVISION IMPROVEMENT AND ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT Page 3 Sanitary Sewer Facilities mean the 10" sanitary sewer main and the associated appurtenances described and depicted in further detail in Exhibit C, said facilities to be constructed by the Owner in accordance with design/construction plans as approved by the City. Stormwater/Drainage Facilities mean the public storm sewer main, the detention pond, and the associated appurtenances described and depicted in further detail in Exhibit D, said facilities to be constructed by the Owner in accordance with design/construction plans as approved by the City. Water Facilities mean the 12" water main, the 8" water main, and the associated appurtenances described and depicted in further detail in Exhibit E, said facilities to be constructed by the Owner in accordance with design/construction plans as approved by the City. SECTION 3. TERM AND TERMINATION (a) Term. The term of this Agreement shall commence on the Effective Date and it shall continue in effect until such time as the parties have fulfilled their obligations hereunder, unless terminated earlier under the provisions of this Agreement. (b) Termination. This Agreement and all obligations of the Parties hereto shall terminate upon full performance of the Parties' respective obligations under this Agreement. The City may, at its sole discretion, terminate this Agreement if Owner defaults by failing to timely commence construction, construct, or cause to be constructed, the Public Improvements or the Medical Facility, in accordance with Section 7 of this Agreement, as applicable, or otherwise breaches its obligations or warranties under this Agreement. If this Agreement is terminated by the City under this paragraph, the Deferment Period shall be deemed to have expired upon the effective date of the termination and Owner shall have an unconditional obligation to immediately repay the City the full amount of all Impact Fees assessed on the Property, as said term is defined herein. The City may cause this Agreement to terminate by following the notice and cure provisions set forth in Section 12 of this Agreement. Notwithstanding the foregoing or any other provision of this Agreement, the City's right to draw on the Letter of Credit in order to fund its completion of the Public Improvements shall survive the termination of this Agreement and Owner's duty to indemnify, hold harmless, and defend the City as set forth in this Agreement shall survive the termination of this Agreement. SECTION 4. COST ESTIMATE AND FINANCIAL SECURITY (a) Submission of Cost Estimate. Before the City may issue a Building F.O. Permit for the Development, Owner's engineer must submit to the City Engineer a Cost Estimate in the form of an opinion of probable costs including and broken down into line item costs for design, materials and labor with both hard and soft costs as a good -faith and reasonable estimate of the full cost for design and construction of each category of Public Improvements. (b) City Engineer's Review of Cost Estimate. The City's Engineer shall review the Owner's submission of the Cost Estimate and determine if the Cost Estimate contains sufficiently detailed information to enable the City Engineer to confirm the Cost Estimate. The Owner SUBDIVISION IMPROVEMENT AND ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT Page 4 shall supply any additional information and/or documentation (including but not limited to design and construction plans and drawings) reasonably requested by the City Engineer to allow the City Engineer to confirm the Cost Estimate. In order to confirm the Cost Estimate, the City Engineer must determine that the Cost Estimate is a good -faith and reasonable estimate of the full cost for design and construction of each category of Public Improvements. If and when the City Engineer confirms the Cost Estimate, the City Engineer will provide written notice to the Owner of such confirmation including the specific dollar amounts estimated for design and construction of each category of Public Improvements. The City Engineer's confirmation of the Cost Estimate is not a guarantee of actual costs of the Public Improvements and the Owner shall at all times be solely responsible to pay all actual costs of the Public Improvements. (c) Owner's Provision of Financial Security. Promptly upon receipt of the City Engineer's written notice to the Owner confirming the Cost Estimate, Owner shall provide the City with Financial Security to ensure completion of construction of the Public Improvements. By entering into this Agreement, Owner agrees that the City shall have the right to use any form of Financial Security provided under this Agreement to the full extent necessary to fund any portion of the Public Improvements that the Owner fails to complete within the time periods provided for in Section 7 of this Agreement. The Financial Security shall be in the dollar amount that is 110% of the Cost Estimate. The Financial Security shall be in the form of one or more letters of credit. The Financial Security shall be in a form that is satisfactory to the City Manager, the City Engineer, and the City Attorney. (d) Letter of Credit. The letter(s) of credit referenced in subsection (c), above, must: (a) be irrevocable; (b) be for a term sufficient to cover the completion, maintenance and warranty periods, but in no event less than 12 months from the date or respective dates that the letter(s) of credit is issued; (c) require only that the City present the issuer with a signed draft and a certificate signed by an authorized representative of the City certifying that the Owner is in default of its obligations under this Agreement and that the City has the right to draw funds under the letter of credit; and (d) be issued by a financial institution acceptable to the City. The City agrees that Landmark Bank of Sherman, Texas is a financial institution acceptable to City for the issuance of letters of credit contemplated in this Agreement. The letter of credit shall be substantially in the form attached hereto as Exhibit F. SECTION 5. ISSUANCE OF BUILDING F.O. PERMIT Upon receipt by the City of the Financial Security in a form and amount acceptable to the City, the City shall issue Building F.O. (foundation only) Permits properly applied for by the Owner. The Owner acknowledges and agrees that —regardless of the form or content of the written Building F.O. Permit issued by the City —that said permit shall solely allow Owner to construct the foundation slabs and associated appurtenances for the planned structures of the Development and that said permit shall prohibit construction of any structural improvements above slab level until such time that a general building permit has been issued. The City may revoke any Building F.O. Permit if the terms of such permit are being violated or if Owner is in violation of this Agreement. SUBDIVISION IMPROVEMENT AND ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT Page 5 SECTION 6. DEFERMENT OF IMPACT FEES Provided that the City has not terminated this Agreement under Section 3 of this Agreement before the expiration of the Deferment Period, the City hereby grants the Deferment to the Owner. Upon the expiration of the Deferment Period for any reason, the Owner shall immediately pay all Impact Fees to the City. SECTION 7. CONSTRUCTION OF PUBLIC IMPROVEMENTS AND MEDICAL FACILITY (a) Sanitary Sewer Facilities. (1) Owner is solely responsible for funding and construction of all sanitary sewer improvements required to serve the property, including but not limited to the Sanitary Sewer Facilities. (2) Owner agrees to complete in a good and workmanlike manner construction of the Sanitary Sewer Facilities within a time period that allows recordation of the final plat of the Development in the Land Records of the Collin County Clerk's Office within nine months of the Effective Date. (b) Stormwater/Drainage Improvements. (1) Owner is solely responsible for funding and construction of all stormwater and drainage improvements required to serve the property, including but not limited to the Stormwater/Drainage Improvements. (2) Owner agrees to complete in a good and workmanlike manner construction of the Stormwater/Drainage Improvements within a time period that allows for recordation of the final plat of the Development in the Land Records of the Collin County Clerk's Office within nine months of the Effective Date. (c) Water Improvements. (1) Owner is solely responsible for funding and construction of all water improvements required to serve the property, including but not limited to the Water Improvements. (2) Owner agrees to complete in a good and workmanlike manner construction of the Water Improvements within a time period that allows for recordation of the final plat of the Development in the Land Records of the Collin County Clerk's Office within nine months of the Effective Date. (d) Right of City to Construct. Notwithstanding the foregoing or any other provision in this Agreement, the City may construct any portion of the Public Improvements if Owner fails to construct or cause to be constructed any portion of the Public Improvements within the time periods set forth in subsections (a) — (c), above. In the event that the City constructs any portion of the Public Improvements, the City may fund such construction with proceeds of all or any part of the Financial Security. In the event that the actual costs expended by the SUBDIVISION IMPROVEMENT AND ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT Page 6 City for a Public Improvement exceed the proceeds available to the City from the Financial Security for such improvement, the Owner shall be liable to reimburse the City for such excess amount upon 10 days after the City invoices Owner for such reimbursement. Upon completion by the City of such construction, Owner shall undertake all necessary actions to dedicate all Public Improvements to the City that have not already been dedicated to the City. (e) Medical Facility. The Medical Facility shall be located within the Property consistent with the site plan attached hereto as Exhibit B and other plans and submittals approved by the City. Construction work on buildings and site improvements, and all other actions necessary or required by the City Regulations for issuance of a Certificate of Occupancy for the Medical Facility, must be complete within 18 months after the Effective Date. The Deadline to Commence Construction of the Medical Facility is nine months after the Effective Date of this Agreement. SECTION 8. ADDITIONAL OBLIGATIONS (a) Performance Bond, Payment Bond and Other Security. For each construction contract for any part of the Public Improvements, Owner or Owner's contractor must execute a performance bond in favor of the City and a payment bond for the construction and work covered by those contracts, which bonds shall be in accordance with Texas Government Code, Chapter 2253 and applicable City Regulations. For each construction contract for any part of the Public Improvements, Owner or Owner's contractor further must execute a Maintenance Bond in accordance with applicable City Regulations that guarantees the costs of any repairs which may become necessary to any part of the construction work performed in connection with the Public Improvements, arising from defective workmanship or materials used therein, for a full period of two (2) years from the date of final acceptance of the Public Improvements constructed under such contract. (b) Public Improvements, Generally. Except as otherwise expressly provided for in this Agreement, Owner shall provide all Public Improvements, including streets, utilities, drainage, sidewalks, trails, street lighting, street signage, and all other required improvements, at no cost to the City except as provided herein, in accordance with City Regulations, and as approved by the City's engineer or his or her agent. Owner shall cause the installation of such improvements within all applicable time frames in accordance with the City Regulations unless otherwise approved herein. Owner shall provide engineering studies, plan/profile sheets, and other construction documents at the time of platting as required by City Regulations. Such plans shall be approved by the City's engineer or his or her agent prior to approval of a Final Plat. Construction of such improvements shall not be initiated until a pre -construction conference has been held regarding the proposed construction and City has issued a written notice to proceed. Notwithstanding any provision of this Agreement to the contrary, Owner and City acknowledge and agree that no streets, street lighting, street signage or other roadway improvements are included in the Public Improvements to be constructed or provided by Owner under this Agreement. (c) Acceptance of Public Improvements and Owner's RemedX. It shall not be a breach or violation of the Agreement if the City withholds City utility services of any type that it is SUBDIVISION IMPROVEMENT AND ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT Page 7 obligated to provide under this Agreement or otherwise obligated to provide until all required Sanitary Sewer Facilities and Water Facilities are properly constructed according to the approved engineering plans and City Regulations, and until such Sanitary Sewer Facilities and Water Facilities are dedicated to and accepted by the City. From and after the inspection and acceptance by the City of the Public Improvements and any other dedications required under this Agreement, such improvements and dedications shall be owned by the City. Owner's sole remedy for nonperformance of this Agreement by the City shall be to seek specific performance and payment pursuant to the terms of this Agreement. (d) Approval of Plats/Plans/Submittals. Approval by the City, the City's Engineer or other City employee or representative, of any plans, designs, specifications, cost estimates, or other submittals submitted by Owner pursuant to this Agreement or pursuant to City Regulations shall not constitute or be deemed to be a release of the responsibility and liability of Owner, his engineer, employees, officers or agents for the accuracy and competency of their design, specifications or estimates. Further, any such approvals shall not be deemed to be an assumption of such responsibility and liability by the City for any defect in the design, specifications or estimates prepared by Owner's engineer, his officers, agents, servants or employees, it being the intent of the parties that approval by the City's engineer or other agent signifies the City's approval on only the general design concept of the improvements to be constructed. (e) Insurance. Owner or its contractor(s) shall acquire and maintain, during the period of time when any of the Public Improvements are under construction (and until the full and final completion of the Public Improvements and acceptance thereof by the City: (a) workers compensation insurance in the amount required by law; and (b) commercial general liability insurance including personal injury liability, premises operations liability, and contractual liability, covering, but not limited to, the liability assumed under any indemnification provisions of this Agreement, with limits of liability for bodily injury, death and property damage of not less than $1,000,000.00. Such insurance shall also cover any and all claims which might arise out of the Public Improvements construction contracts, whether by Owner, a contractor, subcontractor, materialman, or otherwise. Coverage must be on an "per occurrence" basis. All such insurance shall: (i) be issued by a carrier which is rated "A-1" or better by A.M. Best's Key Rating Guide and licensed to do business in the State of Texas; and (ii) name the City as an additional insured and contain a waiver of subrogation endorsement in favor of the City. Upon the execution of Public Improvement construction contracts, Owner shall provide to the City certificates of insurance evidencing such insurance coverage together with the declaration of such policies, along with the endorsement naming the City as an additional insured. Each such policy shall provide that, at least 30 days prior to the cancellation, non -renewal or modification of the same, the City shall receive written notice of such cancellation, non -renewal or modification. (f) Indemnification and Hold Harmless. OWNER COVENANTS AND AGREES TO INDEMNIFY AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED SUBDIVISION IMPROVEMENT AND ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT Page 8 (INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND OTHER CONSULTANTS) ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE NEGLIGENT OR OTHERWISE WRONGFUL ACTS OR OMISSIONS OF OWNER, ITS AGENTS, SERVANTS, CONTRACTORS, SUBCONTRACTORS, MATERIAL MEN OR EMPLOYEES IN CONNECTION WITH THE DESIGN, CONSTRUCTION OR INSTALLATION OF THE PUBLIC IMPROVEMENTS, INCLUDING BUT NOT LIMITED TO INJURY OR DAMAGE TO CITY PROPERTY. SUCH INDEMNITY SHALL SURVIVE THE TERM OF THIS AGREEMENT. AT NO TIME SHALL THE CITY HAVE ANY CONTROL OVER OR CHARGE OF THE OWNER'S DESIGN, CONSTRUCTION OR INSTALLATION OF ANY OF THE PUBLIC IMPROVEMENTS THAT ARE THE SUBJECT OF THIS AGREEMENT, NOR THE MEANS, METHODS, TECHNIQUES, SEQUENCES OR PROCEDURES UTILIZED FOR SAID DESIGN, CONSTRUCTION OR INSTALLATION. THIS AGREEMENT DOES NOT CREATE A JOINT ENTERPRISE BETWEEN THE CITY AND OWNER. EACH OWNER FURTHER COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY AGAINST ANY AND ALL CLAIMS OR SUITS, 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 UPON THAT OWNER'S REPRESENTATIONS IN THIS AGREEMENT; (2) RELATE IN ANY MANNER OR ARISE IN CONNECTION WITH THIS AGREEMENT OR IN CONNECTION WITH OWNERSHIP OF THE PROPERTY; OR (3) ARISE IN ANY WAY FROM THE CITY'S APPROVAL OF ANY TYPE OF DEVELOPMENT APPLICATION OR SUBMISSION WITH RESPECT TO THE PROPERTY. THE OWNER'S DUTY TO THE CITY TO INDEMNIFY, HOLD HARMLESS, AND DEFEND, AS SET FORTH IN THIS PARAGRAPH, SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. SECTION 9. DEVELOPMENT FEES Except as otherwise expressly stated in this Agreement, Owner shall pay all applicable development and permit application fees and inspection fees (collectively the "Applicable Fees") in the amounts and at the times as required under generally applicable City Regulations that are in effect at the time each required development or permit application for the Property is accepted as substantially complete by the City. Notwithstanding any provision of this Agreement or the City Regulations to the contrary, Owner and City acknowledge and agree that the dollar amount of the development, permit, inspection and impact fees that apply to the Property during the 24 months commencing on the Effective Date are set forth on Exhibit G attached hereto and made a part hereof and such Applicable Fees shall not change during such period unless agreed in writing by the Owner and the City. SECTION 10. 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 public notary. The City's duties and obligations hereunder shall not arise unless and until the City SUBDIVISION IMPROVEMENT AND ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT Page 9 Manager has executed this Agreement and Owner has duly executed and delivered this Agreement to the City Manager. SECTION 11. WARRANTIES (a) The accuracy of the warranties set forth in this section are conditions for the Deferment to continue to be in effect. Owner shall notify the City if and when any of the following warnings are no longer accurate. The failure to so notify the City is a material breach of this Agreement. Owner warrants and represents to the City the following. (b) Owner is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Texas. Owner has all corporate power and authority to carry on its business as presently conducted in the State of Texas. (c) Owner has the authority to enter into and perform, and will perform, the terms of this Agreement to the best of its ability. (d) Owner has timely filed and will timely file all local, State, and Federal tax reports and returns required by law to be filed and all taxes, assessments, fees, and other governmental charges related to the Development, including applicable ad valorem taxes, have been timely paid, and will be timely paid, during the term of this Agreement. (e) Any entity(ies)/individual(s) executing this Agreement on behalf of Owner are duly authorized to execute this Agreement on behalf of Owner. (f) In accordance with Chapter 2264 of the Texas Government Code, Owner certifies that neither it, nor a branch, division, or department of Owner, will ever knowingly employ an undocumented worker and that if, after receiving any public subsidies under this Agreement, Owner, or a branch, division, or department of Owner, is convicted of a violation under 8 U.S.C. § 1324a(f), as amended or recodified, Owner shall repay the total amount of all public subsidies and/or incentives theretofore received under this Agreement with interest at two percent (2%) per annum not later than the 120th day after the date the City notifies Owner in writing of the violation. The Owner does not boycott Israel and will not boycott Israel during the term of this Agreement. (g) No litigation or governmental proceeding is pending or, to the knowledge of Owner and its general partner and officers, is threatened against or affecting Owner, or the Development or the Property, that may result in any material adverse change in Owner's business, properties or operation. (h) Owner shall not be in breach of any other contract by entering into and performing this Agreement. Owner shall amend or enter into any other contract that may be necessary for Owner to fully and timely perform its obligations under this Agreement. SUBDIVISION IMPROVEMENT AND ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT Page 10 SECTION 12. SUCCESSORS AND ASSIGNS (a) All obligations and covenants of Owner under this Agreement shall constitute covenants running with the land and shall bind Owner and each successive owner of all of any portion of the Property. (b) Without limiting the generality of the foregoing and except as otherwise provided in this paragraph, Owner has the right (from time to time upon delivery of 14 days' 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. Further, 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. 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 required by this that such Assignee fails to satisfy the City's 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 be binding on the Parties. If a Party refuses to mediate, then the decision of the Party willing to mediate shall be binding. (c) 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. Further, 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 13. DEFAULT, NOTICE, AND CURE (a) Events of Default by Owner. In addition to other events of default by Owner set forth in this Agreement, each of the following events constitute a default of this Agreement by Owner: SUBDIVISION IMPROVEMENT AND ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT Page 11 (1) The City reasonably and in good faith determines that any representation or warranty on behalf of Owner contained in this Agreement or in any financial statement, certificate, report, or opinion submitted to the City in connection with this Agreement was incorrect or misleading in any material respect when made. (2) Any attachment or other levy against the Development or any portion thereof with respect to a claim, excluding mechanic's and materialman's liens, remains unpaid, undischarged, or not dismissed for a period of 90 days. (3) Owner makes an assignment for the benefit of creditors. (4) Owner files a voluntary petition in bankruptcy or is adjudicated insolvent or bankrupt. (5) If taxes owed to the City by Owner become delinquent, and Owner fails to timely and properly follow the legal procedures for protest or contest. (6) Owner fails to timely, fully and completely comply with any one or more of the material requirements, obligations, duties, terms, conditions or warranties of this Agreement. (b) Notice of Default. Should the City determine that Owner is in default according to the terms of this Agreement, the City shall notify Owner in writing of the event of default, and provide 30 days from the date of the notice ("Cure Period") for Owner to cure the event of default; provided, however, in the event that such event of default is not able to be cured within such 30-day period, Owner shall be permitted additional time to effectuate such cure, provided, that in no event shall the Cure Period exceed 60 days from the date of notice from the City. Should the City fail to timely, fully and completely comply with any one or more of its obligations under this Agreement, such failure shall be an act of default by the City and the City shall have sixty 60 days to cure and remove the Default after receipt of written notice to do so from Owner. (c) Results of Uncured Default by Owner. After exhausting good faith attempts to address any default during the Cure Period, and taking into account any extenuating circumstances that might have occurred through no fault of Owner, as reasonably determined by the City, the Owner shall immediately pay all Impact Fees and shall pay the City reasonable attorney fees and costs of court to collect amounts due to City if the Impact Fees are not immediately repaid upon demand from the City. Neither the City nor Owner may be held liable for any special or consequential damages. Owner's sole remedy as against the City is to seek specific performance and shall not be entitled to an award of attorney's fees nor monetary damages. SECTION 14. MISCELLANEOUS PROVISIONS (a) Authority to execute contract. The undersigned officers and/or agents of the parties hereto are the properly authorized officials and have the necessary authority to execute this Agreement on behalf of the parties hereto, and each party hereby certifies to the other that any necessary resolutions or other act extending such authority have been duly passed and are now in full force and effect. SUBDIVISION IMPROVEMENT AND ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT Page 12 (b) Notice. 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 given by hand delivery or 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 written notice to the other parties in accordance with this notice provision. If to the City: City of Anna Attn: City Manager P.O. Box 776 111 N. Powell Parkway Anna, TX 75409 If to Owner: North Texas Surgery Real Estate, LLC Attn: Manager 1625 Hwy 75 North Sherman, Texas 75090 With copy to: Greg McGaw Republic Health Group 1437 Sussex Drive Plano, Texas 75075 (c) Complete Agreement. This Agreement embodies the entire Agreement between the Parties and cannot be varied or terminated except as set forth in this Agreement, or by written agreement of the City and Owner expressly amending the terms of this Agreement. (d) Applicable Law and Venue. This Agreement shall be performable and all compensation payable in Collin County, Texas. Venue and exclusive jurisdiction under this Agreement lies in a court of competent jurisdiction in Collin County, Texas. (e) Severability. If any clause, paragraph, section or portion of this Agreement shall be found to be illegal, unlawful, unconstitutional or void for any reason, the balance of the Agreement shall remain in full force and effect and the unlawful provision shall be replaced with a provision as similar in terms and effect to such unlawful provision as may be valid, legal and enforceable. (f) Representation. Each signatory representing this Agreement has been read by the party for which this Agreement is executed and that such Party has had an opportunity to confer with its counsel. (g) Consideration. This Agreement is executed by the Parties hereto without coercion or duress and for substantial consideration, the sufficiency of which is hereby acknowledged. (h) Waiver. Waiver by either Party of any breach of this Agreement, or the failure of either Party to enforce any of the provisions of this Agreement, at any time, shall not in any way SUBDIVISION IMPROVEMENT AND ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT Page 13 affect, limit or waive such Party's right thereafter to enforce and compel strict compliance of this Agreement. (i) Force Majeure. The time frames for Owner's performance as set forth in this Agreement shall be extended by time frames equal to any delays caused by events of Force Majeure which include an act of God, fire, earthquake, floods, explosion, adverse weather, war, terrorism, invasion, insurrection, riot, mob violence, sabotage, inability to procure or general shortage of labor, equipment, facilities, materials or supplies in the open market for reasons other than cost increases, failure of transportation, strikes, lockouts, action of labor unions, condemnation, laws, orders of governmental or civil military or naval authorities, governmental delays in approving plans and issuing permits in cases where same are ultimately approved or issued, when the foregoing causes are not within the control of Owner. (j) Miscellaneous Drafting Provisions. This Agreement was drafted equally by the Parties hereto. The language of all parts of this Agreement 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. Headings in this Agreement are for the convenience of the Parties and are not intended to be used in construing this document. (k) No Other Beneficiaries. This Agreement is for the sole and exclusive benefit of the City, Owner and Payee and is not intended to and shall not confer any rights or benefits on any third party not a signatory hereto. (1) Binding Effect. ffect. This Agreement shall bind and inure to the benefit of the City and Owner and to any successor owner/developer of the Property, may be recorded in the Collin County property records, and runs with the land. City agrees to execute documents in recordable form evidencing completion of one or more Public Improvements once completed in accordance with this Agreement. (m) Counterparts. This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. [SIGNATURES PAGES FOLLOW, REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] SUBDIVISION IMPROVEMENT AND ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT Page 14 OWNER: NORTH TEXAS SURGERY REAL ESTATE, LLC Manager IN WITNESS WHEREOF: STATE OF TEXAS COUNTY OF Before me, the undersigned notary public, on the day of , 2019, personally appeared , 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/she executed the same in his capacity as a Manager of North Texas Surgery Real Estate, LLC, a Texas limited liability company. Notary Public, State of Texas SUBDIVISION IMPROVEMENT AND ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT Page 15 CITY OF ANNA Jim Proce, City Manager IN WITNESS WHEREOF: STATE OF TEXAS COUNTY OF Before me, the undersigned notary public, on the day of , 2019, personally appeared Jim Proce, 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, Texas. Notary Public, State of Texas SUBDIVISION IMPROVEMENT AND ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT Page 16 ATTACHMENTS Exhibit A — Legal Description of the Property Exhibit B — Site Plan Exhibit C —Sanitary Sewer Facilities Exhibit D — Stormwater/Drainage Facilities Exhibit E — Water Facilities Exhibit F — Letter of Credit with Draft, Certificate, and Notice of Dishonor Exhibit G — Applicable Fees SUBDIVISION IMPROVEMENT AND ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT Page 17 Exhibit A Legal Description of the Property 4.775 Acres Lot 2, Block A One Anna Two Addition Exhibit B Site Plan Exhibit C Sanitary Sewer Facilities Exhibit D Stormwater/Drainage Facilities ------------ I ��I I � I clll� 2 �� aD II 7z O O o•y o D 2 ;7 o D r Z O mN -m �'- °a m m X W f�Tl o" o a D C m 0 O N 0 Exhibit E Water Facilities 13$h oo i / AP � I 1 a i I = }2• IdF I I I 1 I I 1 p 11 1 1 'I � I o ' I I � I t I 1 `�� I yly I 1 11 1 on 1 � 1 I V I 1 1 a�m2 - •H.x I I I 11 I I B I I I ICI I I II `> Z A Z n D 4F =i K m N � om EZgP`� D X s ^a3asnZ �D 7 �o Z 0� M A g;. m m m on o S X a cN-> m y A r m 0 Z N O 0 Exhibit F Letter of Credit with Draft, Certificate, and Notice of Dishonor [Bank letterhead] Irrevocable Letter of Credit No. [number] Beneficiary: The City of Anna, Texas Date of Letter of Credit: To the City of Anna, Texas: We hereby establish, at the request and for the account of [developer] our irrevocable letter of credit No. (the "Letter of Credit') in the amount of $ ("Letter of Credit Amount') effective immediately and expiring twelve (12) months after the date of this Letter of Credit (the "Expiration Date"). We hereby irrevocably authorize you to draw upon us, in an amount not to exceed the Letter of Credit Amount and in accordance with the terms and conditions as herein set forth in one or more drawings by your draft(s) in the form of "Exhibit A" attached hereto (the "Draft"), drawn upon us, payable at sight on a Business Day accompanied by a completed certificate in substantially the form of "Exhibit B" attached hereto (the "Certificate"), which Draft and Certificate shall be in writing and signed by you. As used in this Letter of Credit, the term "Business Day" means any day other than a Saturday, Sunday or a day on which banking institutions in Anna, Texas, are authorized by law to close. Funds under this Letter of Credit are available to you against your Draft and Certificate. The Draft and Certificate shall be dated the date of its presentation, and shall be presented with this Letter of Credit to our office located at [address], Attention: Letter of Credit Department (or at any other office in [city], Texas, which may theretofore have been designated by us by written notice delivered to you). If we receive this Letter of Credit together with your Draft and Certificate at such office, all in strict conformity with the terms and conditions of this Letter of Credit, on or prior to the Expiration Date, we will honor the same after presentation thereof in accordance with the provisions hereof. If we receive this Letter of Credit, the Draft and Certificate at such office on or before 5:00 p.m. CST, on a Business Day, we will honor the same by 5:00 p.m. CST on the third Business Day after presentation thereof. If a demand for payment delivered to us pursuant to the foregoing paragraph does not conform to the terms and conditions of this Letter of Credit, we will notify you in writing in substantially the form of "Exhibit C" attached hereto (the "Notice of Dishonor") not later than 5:00 p.m., CST, on the third Business Day after presentation thereof. Upon being notified that the purported negotiation was not effective in conformity with this Letter of Credit, you may attempt to correct any such nonconforming demand for payment if, and to the extent that, you are entitled (without regard to the provisions of this sentence) and able to do so. Only you may make drawings under this Letter of Credit. Upon the payment(s) to you or your account of the Letter of Credit Amount in one or more drafts, which in sum total equal the Letter of Credit Amount, we shall be fully discharged on our obligation under this Letter of Credit, and we shall not thereafter be obligated to make any further payments under this Letter of Credit. Drafts made under this Letter of Credit shall be in minimum amounts of This Letter of Credit shall be deemed to be a contract under and shall be governed by and constructed in accordance with the laws of the State of Texas as applicable, including without limitation Chapter Five of the Uniform Commercial Code as in effect or as may hereafter be amended. This Letter of Credit sets forth in full our undertaking, and such undertaking shall not in any way be modified, amended, amplified or limited by reference to any document, instrument or agreement, whether or not referenced herein, except only the Certificate, the Draft, and the Notice of Dishonor referred to herein; and any such reference shall not be deemed to incorporate herein by reference any document, instrument or agreement except for the Certificate, the Draft, and the Notice of Dishonor. Very truly yours, [Issuing bank] By: Name: Title: Exhibit F Letter of Credit with Draft, Certificate, and Notice of Dishonor 1WMII -]kiiT_� DRAFT [Dollar Amount] [City], Texas [Date] At sight pay to the order of the City of Anna, Texas, the sum of ([amount in words] [amount in numbers]). Drawn under [Bank] Irrevocable Letter of Credit No. [number] [dated]. [Beneficiary] By: Name: Title: To: [Bank] Exhibit F Letter of Credit with Draft, Certificate, and Notice of Dishonor EXHIBIT "B" CERTIFICATE The undersigned, a duly authorized officer of the City of Anna, Texas, hereby certifies to [the "Bank' J, with reference to Irrevocable Letter of Credit No.[number] [the "Letter of Credit'] (the terms defined, therein and not otherwise defined herein being used herein as therein defined), issued by the Bank in favor of the City of Anna, Texas, that [developer] has defaulted in the performance of its obligation(s) resulting in a monetary amount payable to the City of Anna, Texas [the amount requested pursuant to the Draft which accompanies this certificate] which is due to Beneficiary pursuant to the said Letter of Credit. The City has the right to draw said funds under the Letter of Credit. IN WITNESS WHEREOF, Beneficiary has executed and delivered this certificate as of the [day] of [month], [year]. [Beneficiary] By: Name: Title: Exhibit F Letter of Credit with Draft, Certificate, and Notice of Dishonor EXHIBIT "C" NOTICE OF DISHONOR [Date] [Name and address of beneficiary] Irrevocable Letter of Credit No.[number] Ladies and Gentlemen: You are hereby notified that we will not honor your demand for payment under the above -referenced Letter of Credit as evidenced by [your demand for payment date], which demand was not made in accordance with the terms and conditions of such Letter of Credit because: [list reasons]. We [herewith return, or, are holding at your disposal] [such demand for payment]. [Bank] By: Name: Title: Exhibit G Applicable Fees Surgery Center of North Texas PLLC Water Fees 2" Water Meter [deposit (domestic) 50G-00 2" deter Set fee 85(-GG Z' Water Meter [deposit Irrigation 5GG-00 2" deter 'Set Fee 85G-00 2,700.00 2" Impact Fees (water) 23,903_00 2" Impact Fee (sewer) 21,609_00 2" Impact Fee Irrigation (water) 23,903_00 Thoroughfare Impact Fees $ 58,9G4.56 23,329 sf divided by 1000 ft gfa x2.79 service units x $905 S 128,319.56 Building Permit S8,000,000 valuation divided by 1443 x 7.5 $60,000.00 Building Plan review -Mechanical, Electrical, Plumbing @ $ 16,430.30 $1 OG minimum plus $0-7 sq ft of building (23,329 ft) Inspection fees -Mechanical, Electrical, Plumbing @ S100 each $ 300.00 Irrigation $ 100.00 Sewer Camera Fee S 50.00 Certificate of Occupancy S 100.00 $76,980.30 THE CITY OF Minna AGENDA ITEM: Item No. 13. City Council Agenda Staff Report Meeting Date: 4/23/2019 Approve Resolution Authorizing an Agreement for Partial Assignment of Roadway I mpact Fee Credits with North Texas Surgery Center Real Estate, LLC and One Anna Two, Ltd. SUMMARY: North Texas Surgery Real Estate, LLC is developing a medical facility and outpatient surgery center on 4.775 acres just north of the northwest corner of US 75 and FM 455. Just south of the future development, Stacy Standridge owns 48.8106 acres, and he intends to develop it as future retail and restaurants. Stacy Standridge has plans to construct Standridge Boulevard which is a roadway included on the City's CIP Plan. Once Stacy Standridge constructs the roadway, he will be entitled to receive roadway impact fee credits. Through this agreement, the City is facilitating the partial assignment of an apportionment of these roadway impact fee credits to Stacy Standridge and North Texas Surgery Real Estate, LLC. Upon completion of Standridge Boulevard and acceptance by the City, 70% of Standridge Boulevard Impact Fee Credits will be apportioned to Stacy Standridge, and 30% will be apportioned to North Texas Surgery Real Estate, LLC. The agreement does not have an end date. It remains in effect until all obligations are fulfilled. STAFF RECOMMENDATION: Approve Resolution Authorizing an Agreement for Partial Roadway Impact Fee Credits with North Texas Surgery Center Real Estate, LLC and One Anna Two, Ltd. ATTACHMENTS: Description Roadway impact Fee Agreement Roadway Impact Fee Resolution Upload Date Type 4/18/2019 Staff Repor 4/18/2019 Staff Report AGREEMENT FOR PARTIAL ASSIGNMENT OF ROADWAY IMPACT FEE CREDITS This Agreement for Partial Assignment of Roadway Impact Fee Credits (this "Agreement") is entered into between and amongst the City of Anna, Texas (the "City"), North Texas Surgery Real Estate, LLC, a Texas limited liability company ("Owner") and One Anna Two, Ltd. ("Standridge"). WHEREAS, the City, Owner, and Standridge are sometimes collectively referenced in this Agreement as the "Parties," or, each individually, as "Party"; and WHEREAS, Owner owns and desires to develop a parcel or parcels of real property for use as a place for surgery procedures and operations (the "Medical Property") in Collin County, Texas, which is composed of approximately 4.775 acres of land 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, Standridge owns and desires to develop a parcel or parcels of real property in close proximity to the Medical Property (the "Standridge Property") in Collin County, Texas, which is composed of approximately 48.8106 acres of land located entirely within the corporate limits of the City of Anna and is more particularly and separately or jointly described in the attached Exhibit B and WHEREAS, Standridge Boulevard is a planned public roadway that is included on the City's adopted Capital Improvement Plan (the "CIP") and Standridge intends to construct a certain portion of said roadway (the "Standridge Boulevard Segment"); and WHEREAS, the general location and depiction of the Standridge Boulevard Segment is as shown on the attached Exhibit C; and WHEREAS, under City regulations governing impact fees (the "Impact Fee Regulations"), Standridge shall become entitled to receive roadway impact fee credits or reimbursements (collectively, "Standridge Boulevard Impact Fee Credits") in the event that Standridge does in fact construct the Standridge Boulevard Segment; and WHEREAS, Standridge and Owner desire that the Medical Property is developed and that the Standridge Boulevard Segment is constructed as soon as is practicable; and WHEREAS, Standridge and Owner have determined that development of the Medical Property can be expedited depending on various sources of funding becoming available for the Medical Property; and WHEREAS, as a source of such funding, Standridge is willing to assign to Owner a certain percentage of any Standridge Boulevard Impact Fee Credits to which Standridge may become entitled; and AGREEMENT FOR PARTIAL ASSIGNMENT OF ROADWAY IMPACT FEE CREDITS Page 1 WHEREAS, the City desires to facilitate such partial assignment by apportioning the Standridge Boulevard Impact Fee Credit to Standridge and to Owner according the percentage retained by Standridge and the percentage assigned to Owner under this Agreement; and NOW, THEREFORE, in consideration of the mutual 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 Owner and Standridge. SECTION 2. ASSIGNMENT OF STANDRIDGE BOULEVARD IMPACT FEE CREDITS To the extent that Standridge constructs the Standridge Boulevard Segment and becomes entitled to Standridge Boulevard Impact Fee Credits, Standridge hereby irrevocably assigns and conveys to Owner the right and entitlement to 30% of the Standridge Boulevard Impact Fee Credits and Standridge expressly retains and reserves its right and entitlement to 70% of the Standridge Boulevard Impact Fee Credits. SECTION 3. DETERMINATION OF COSTS OF CONSTRUCTION OF STANDRIDGE BOULEVARD SEGMENT Upon completion of construction of the Standridge Boulevard Segment, Standridge shall submit to the City for the City Engineer's review the final actual cost of design and construction of the Standridge Boulevard Segment (the "Final Actual Construction Costs") and shall include in said submission documentary proof of such costs, which said proof shall include but not be limited to construction contracts and change orders, as -built drawings, invoices, statement of costs and evidence of payments made. Such proof must be sufficient in the judgment of the City Engineer to reasonably allow the City Engineer to determine the reasonableness of the Final Actual Construction Costs. If the City Engineer determines that the Final Actual Construction Costs are reasonable then the City Engineer shall promptly notify the City of such determination and the dollar amount of the Final Actual Construction Costs shall be deemed to be the dollar amount of the Standridge Boulevard Impact Fee Credits. If there is any dispute over whether the Final Actual Construction Costs are reasonable, a final decision will be made by the City of Anna City Council and the dollar amount determined to be reasonable by the City Council shall be deemed to be the dollar amount of the Standridge Boulevard Impact Fee Credits. SECTION 4. APPORTIONMENT OF STANDRIDGE BOULEVARD IMPACT FEE CREDITS (a) If and when construction of the Standridge Boulevard Roadway Segment has been completed by Standridge and has been inspected and accepted by the City, and the dollar amount of the Standridge Boulevard Impact Fees has been determined under Section 3, the AGREEMENT FOR PARTIAL ASSIGNMENT OF ROADWAY IMPACT FEE CREDITS Page 2 City shall apportion the Standridge Boulevard Impact Fee Credits as between Owner and Standridge in accordance with the percentages set forth in Section 2 of this Agreement. (b) The City shall apply the Standridge Boulevard Impact Fee Credits assigned to Owner solely to offset roadway impact fees assessed on the Medical Property; provided, however, that if roadway impact fees assessed on the Medical Property have been actually collected by the City, then such collected fees shall be reimbursed to Owner in an amount not to exceed the amount of the Standridge Boulevard Impact Fee Credits assigned to Owner. Whether Owner receives the Standridge Boulevard Impact Fee Credits assigned to Owner in the form of credits (offsets) or reimbursements, or a combination of credits and reimbursements, in no event shall the total combined amount apportioned to Owner exceed the dollar amount representing the Standridge Boulevard Impact Fee Credits assigned to Owner under this Agreement. In no event shall the City be obligated to credit and/or reimburse Owner in any amount in excess of the dollar amount representing the Standridge Boulevard Impact Fee Credits assigned to Owner, even if the roadway impact fees assessed on the Medical Property exceed the amount of Standridge Boulevard Impact Fee Credits assigned to Owner. (c) The City shall apply the Standridge Boulevard Impact Fee Credits retained by Standridge solely to offset roadway impact fees assessed on the Standridge Property; provided, however, that if roadway impact fees assessed on the Standridge Property have been actually collected by the City, then such collected fees shall be reimbursed to Standridge in an amount not to exceed the amount of the Standridge Boulevard Impact Fee Credits retained by Standridge. Whether Standridge receives the Standridge Boulevard Impact Fee Credits retained by Standridge in the form of credits (offsets) or reimbursements, or a combination of credits and reimbursements, in no event shall the total combined amount apportioned to Standridge exceed the dollar amount representing the Standridge Boulevard Impact Fee Credits retained by Standridge under this Agreement. In no event shall the City be obligated to credit and/or reimburse Standridge in any amount in excess of the dollar amount representing the Standridge Boulevard Impact Fee Credits retained by Standridge, even if the roadway impact fees assessed on the Standridge Property exceed the amount of Standridge Boulevard Impact Fee Credits retained by Standridge. SECTION 5. TERM The term of this Agreement shall commence on the Effective Date and it shall continue in effect until such time as the parties have fulfilled their obligations hereunder, unless terminated earlier under the provisions of this Agreement. 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 public notary. The City's duties and obligations hereunder shall not arise unless and until the City Manager has executed this Agreement and Owner and Standridge have duly executed and delivered this Agreement to the City Manager. AGREEMENT FOR PARTIAL ASSIGNMENT OF ROADWAY IMPACT FEE CREDITS Page 3 SECTION 7. SUCCESSORS AND ASSIGNS (a) All obligations and covenants of Owner and Standridge under this Agreement shall constitute covenants running with the land and shall bind Owner and each successive owner of all of any portion of the Property. (b) Owner has the right (from time to time upon delivery to the City of a true, correct and complete copy of the written assignment made) 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 Medical Property or that is an entity that is controlled by or under common control with Owner. Further, 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. Each such 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. Further, 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. (c) Standridge has the right (from time to time upon delivery to the City of a true, correct and complete copy of the written assignment made) to assign this Agreement, in whole or in part, and including any obligation, right, title, or interest of Standridge under this Agreement, to any person or entity (an "Assignee") that is or will become an owner of any portion of the Standridge Property or that is an entity that is controlled by or under common control with Standridge. Further, no assignment by Standridge shall release Standridge from any liability that resulted from an act or omission by Standridge that occurred prior to the effective date of the assignment unless the City approves the release in writing. Each such assignment shall be in writing executed by Standridge 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 Standridge 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, Standridge shall not be released until the City receives an executed copy of such assignment. Further, no assignment by Standridge shall release Standridge from any liability that resulted from an act or omission by Standridge that occurred prior to the effective date of the assignment unless the City AGREEMENT FOR PARTIAL ASSIGNMENT OF ROADWAY IMPACT FEE CREDITS Page 4 approves the release in writing. Standridge shall maintain written records of all assignments made by Standridge 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 8. MISCELLANEOUS PROVISIONS (a) Authority to execute contract. The undersigned officers and/or agents of the parties hereto are the properly authorized officials and have the necessary authority to execute this Agreement on behalf of the parties hereto, and each party hereby certifies to the other that any necessary resolutions or other act extending such authority have been duly passed and are now in full force and effect. (b) Notice. 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 given by hand delivery or 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 written notice to the other parties in accordance with this notice provision. If to the City: City of Anna Attn: City Manager P.O. Box 776 111 N. Powell Parkway Anna, TX 75409 If to Owner: North Texas Surgery Real Estate, LLC Attn: Manager 1625 Hwy 75 North Sherman, Texas 75090 With copy to: Greg McGaw Republic Health Group 1437 Sussex Drive Plano, Texas 75075 If to Standridge: Stacy O. Standridge Standridge Companies 15640 Quorum Drive Addison, TX 75001 (c) Complete Agreement. This Agreement embodies the entire Agreement between the Parties and cannot be varied or terminated except as set forth in this Agreement, or by written agreement of the City, Owner and Standridge expressly amending the terms of this Agreement. AGREEMENT FOR PARTIAL ASSIGNMENT OF ROADWAY IMPACT FEE CREDITS Page 5 (d) Applicable Law and Venue. This Agreement shall be performable and all compensation payable in Collin County, Texas. Venue and exclusive jurisdiction under this Agreement lies in a court of competent jurisdiction in Collin County, Texas. (e) Severability. If any clause, paragraph, section or portion of this Agreement shall be found to be illegal, unlawful, unconstitutional or void for any reason, the balance of the Agreement shall remain in full force and effect and the unlawful provision shall be replaced with a provision as similar in terms and effect to such unlawful provision as may be valid, legal and enforceable. (f) Representation. Each signatory representing this Agreement has been read by the party for which this Agreement is executed and that such Party has had an opportunity to confer with its counsel. (g) Consideration. This Agreement is executed by the Parties hereto without coercion or duress and for substantial consideration, the sufficiency of which is hereby acknowledged. (h) Waiver. Waiver by either Party of any breach of this Agreement, or the failure of either Party to enforce any of the provisions of this Agreement, at any time, shall not in any way affect, limit or waive such Party's right thereafter to enforce and compel strict compliance of this Agreement. This Agreement is not an agreement for the City's procurement of goods or services. The sole remedy for breach or nonperformance by the City as relates to this Agreement is enforcement by seeking specific performance and in no event shall the City be liable for attorney fees or damages, or any other monetary amounts other than the monetary amounts that the City is expressly required to pay under the terms of this Agreement. The City's immunity from suit and liability is not otherwise waived. (i) Force Majeure. The time frames for performance as set forth in this Agreement shall be extended by time frames equal to any delays caused by events of Force Majeure which include an act of God, fire, earthquake, floods, explosion, adverse weather, war, terrorism, invasion, insurrection, riot, mob violence, sabotage, inability to procure or general shortage of labor, equipment, facilities, materials or supplies in the open market for reasons other than cost increases, failure of transportation, strikes, lockouts, action of labor unions, condemnation, laws, orders of governmental or civil military or naval authorities, governmental delays in approving plans and issuing permits in cases where same are ultimately approved or issued, when the foregoing causes are not within the control of Owner. (j) Miscellaneous Drafting Provisions. This Agreement was drafted equally by the Parties hereto. The language of all parts of this Agreement 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. Headings in this Agreement are for the convenience of the Parties and are not intended to be used in construing this document. (k) No Other Beneficiaries. This Agreement is for the sole and exclusive benefit of the City, Owner and Payee and is not intended to and shall not confer any rights or benefits on any third party not a signatory hereto. AGREEMENT FOR PARTIAL ASSIGNMENT OF ROADWAY IMPACT FEE CREDITS Page 6 (1) BindingEffect. ffect. This Agreement shall bind and inure to the benefit of the City and Owner and to any successor owner/developer of the Property, may be recorded in the Collin County property records, and runs with the land. City agrees to execute documents in recordable form evidencing completion of one or more Public Improvements once completed in accordance with this Agreement. (m) Counterparts. This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. [SIGNATURES PAGES FOLLOW, REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] AGREEMENT FOR PARTIAL ASSIGNMENT OF ROADWAY IMPACT FEE CREDITS Page 7 OWNER NORTH TEXAS SURGERY REAL ESTATE, LLC , Manager IN WITNESS WHEREOF: STATE OF TEXAS COUNTY OF Before me, the undersigned notary public, on the day of , 2019, personally appeared , 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/she executed the same in his capacity as a Manager of North Texas Surgery Real Estate, LLC, a Texas limited liability company. Notary Public, State of Texas AGREEMENT FOR PARTIAL ASSIGNMENT OF ROADWAY IMPACT FEE CREDITS Page 8 STANDRIDGE ONE ANNA TWO, LTD. By: One Anna Two GP, Inc., a Texas corporation, its general partner C Stacy Standridge, its President IN WITNESS WHEREOF: STATE OF TEXAS COUNTY OF Before me, the undersigned notary public, on the day of 12019, personally appeared Stacy Standridge 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/she executed the same in his capacity as President of One Anna Two GP, Inc. a Texas corporation as general partner of and on behalf of One Anna Two, Ltd. Notary Public, State of Texas AGREEMENT FOR PARTIAL ASSIGNMENT OF ROADWAY IMPACT FEE CREDITS Page 9 CITY OF ANNA Jim Proce, City Manager IN WITNESS WHEREOF: STATE OF TEXAS COUNTY OF Before me, the undersigned notary public, on the day of 92019, personally appeared Jim Proce, 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, Texas. Notary Public, State of Texas AGREEMENT FOR PARTIAL ASSIGNMENT OF ROADWAY IMPACT FEE CREDITS Page 10 ATTACHMENTS Exhibit A — Legal Description of Medical Property Exhibit B — Legal Description of Standridge Property Exhibit C — Location and Depiction of Planned Standridge Boulevard Segment AGREEMENT FOR PARTIAL ASSIGNMENT OF ROADWAY IMPACT FEE CREDITS Page 11 Exhibit A Legal Description of Medical Property 4.775 Acres Lot 2, Block A One Anna Two Addition Exhibit B Legal Description of Standridge Property f It e� ruw+cwcw€eic� oru caua�.Tana nnraa. n J ��W.an��HmTsaa>eT�:eH,�,��a,.AmarHa ,>Q w I� m�aom, TTaa�N�9orn de n"e+Jti�B.amLd md�rlc da Ma T�,u4:®duo, maa.n��me No< I � � mrwm a 18ta�t �Imomre,0. 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Tao a€saa"ma.�e n.naam reawe aa.avzre,tm a�aq:„a� na.e m a ra�emelma. srwanartem, wr cerrlm�wr+>!mr.rmm amaonoan arty. EXHIBIT IIBI" 4SZ106 ACRES W. S. RATTAN SURVEY ABSTRACT NO.752 THOMAS RATTAN SURVEY ABSTRACT NO.782 CITY OF ANNA COLLIN COUNTY, TEXAS Exhibit C Location and Depiction of Planned Standridge Boulevard Segment w � ' ww 4 J III its 4 7a I Ir Ir I Io II 1 it W I }. 7 i4 r 11LO - LL wl II `I I I LO �• rG r II I LL y i 4 0 y, I' Jflr 1p YI f pyM P s I p I I I f 1 I � a�w�„►�Icsel� I - �� i �� RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS APPROVING AN AGREEMENT FOR PARTIAL ASSIGNMENT OF ROADWAY IMPACT FEE CREDITS WITH NORTH TEXAS SURGERY REAL ESTATE, LLC, ONE ANNA TWO, LTD. AND THE CITY OF ANNA, COLLIN COUNTY, TEXAS WHEREAS, North Texas Surgery Real Estate, LLC plans to develop 4.775 acres of land in the City of Anna for a medical facility and outpatient surgery center; and WHEREAS, One Anna Two, Ltd. owns and desires to develop 48.8106 acres of land close to the medical facility; and WHEREAS, One Anna Two, Ltd. plans to construct a portion of Standridge Boulevard included on the City's adopted Capital Improvement Plan; and WHEREAS, One Anna Two, Ltd. will be eligible for impact fee credits for the portion of Standridge Boulevard that he intends to construct; and WHEREAS, the City desires to facilitate a partial assignment by apportioning the Standridge Boulevard Impact Fee Credit to One Anna Two, Ltd. And North Texas Surgery Real Estate, LLC; and NOW, THEREFORE, BE IT RESOLVED BY 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 Project and Agreement The CITY COUNCIL OF THE CITY OF ANNA hereby approves the AGREEMENT FOR PARTIAL ASSIGNMENT OF ROADWAY IMPACT FEE CREDITS with North Texas Surgery Real Estate, LLC, One Anna Two, Ltd. and the City of Anna, Texas attached hereto, incorporated herein for all purposes, and authorizes the Mayor to execute same on its behalf, subject to approval as to form by legal counsel for the City, said Agreement to be effective upon its approval by the City of Anna City Council and as set forth in said Agreement. Section 3. Administration The City hereby authorizes the City Manager or his designee to administer the Agreement. PASSED AND APPROVED by the City Council of the City of Anna on this 23th, day of April 2019. City of Anna, Texas Mayor Nate Pike North Texas Surgery Real Estate, LLC Manager