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HomeMy WebLinkAboutCCpkt2017-02-28Y{OUR} HOMETOWN AGENDA Regular City Council Meeting Tuesday, February 28, 2017 @ 7:30 PM 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 7:30 PM, on February 28, 2017, 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. 5. Consent Items. These items consist of non -controversial or "housekeeping" items required by law. Items maybe considered individually by any Council member making such request prior to a motion and vote on the Consent Items. a. Approve city council minutes for: February 10th and 11 th 2017 Workshop February 14, 2017 Work and Regular Session February 17th and 18th, 2017 workshop (City Secretary) b. Resolution authorizing the distribution of contingency appropriation. (Dana Thornhill) 6. Consider/Discuss/Action regarding a Resolution authorizing the City Manager to execute a Texas Risk Reduction Program Restrictive Covenant for a 0.792 acre tract of land located on S. Powell Parkway. (City Manager) 7. Consideration/Action on appointments to the EDC and CDC. (City Secretary) 8. Consider/Discuss/Action on a Resolution instituting Annexation proceedings and setting the dates, times and places for public hearings for the annexation of a 466 acre tract of land located in the J. Chalmers Survey, Abstract No. 0233 and the S. Craft Sr. Survey No. 0165. (Maurice Schwanke) 9. Consider/Discuss/Action regarding a Resolution approving an Automatic Aid Agreement with the Westminster Volunteer Fire Department. (Chief Gothard) 10. Consider/Discuss/Action regarding a Resolution approving a Chapter 380 Economic Development Grant Agreement with Bloomfield Homes, LP and authorizing the City Manager to execute the Agreement. (Jessica Perkins) 11. Consider/Discuss/Action regarding a Resolution authorizing the City Manager to execute a contract with Axis Construction, L.P. for the Water Disinfection System Upgrade Project. (Joseph Johnson) 12. Consider/Discuss/Action regarding a Resolution authorizing the City Manager to execute a Professional Services Agreement with Kimley-Horn and Associates, Inc. for the Sanitary Sewer Inflow and Infiltration Analysis Project. (Joseph Johnson). 13. Consider/Discuss/Action regarding a Resolution approving a Facilities Use Agreement with the Anna Sports Group for 2017. (Maurice Schwanke) 14. CLOSED SESSION (EXECEPTIONS) 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). b. Discuss or deliberate the purchase, exchange, lease, or value of real property (Tex. Gov't Code §551.072); acquisition of right-of-way, easements, and land for parks and municipal facilities. 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. 16. Adjourn. 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 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. AGENDAITEM: Approve city council minutes for: February 10th and 11 th 2017 Workshop February 14, 2017 Work and Regular Session February 17th and 18th, 2017 workshop (City Secretary) SUMMARY: Presented are the proposed minutes for your consideration. STAFF RECOMMENDATION: Approve all sets of minutes. ATTACHMENTS: Description Proposed 2/10 -11th Minutes Proposed 2/14/2017 Minutes Proposed 2/17 -18th Minutes Item No. 5.a. City Council Agenda Staff Report Meeting Date: 2/28/2017 Upload Date Type 2/24/2017 Backup Material 2/24/2017 Backup Material 2/24/2017 Backup Material ANNA CITY COUNCIL MINUTES Special Meeting February 10 & 11, 2017 The City Council of the City of Anna met in a special meeting on the above date at Collin College Central Park Campus, Conference Center, Room F-122, 2200 W. University, McKinney, Texas, regarding the following items: 1. Call to Order. February 10 - Mayor Crist called the meeting to order at 8:00 AM. Pelham and Bryan were absent. 2. The City Council will participate in discussion and educations activities related to team building and leadership training. 3. Adjourn. February 10 - Council Member Beazley moved to adjourn. Council Member Miller seconded. Motion carried 5-0. Mayor Crist adjourned the meeting at 4:00 PM. February 11, 2017 1. Call to Order. February 11 - Mayor Crist called the meeting to order at 8.00 AM. Pelham, Bryan and Martinez were absent. 2. The City Council will participate in discussion and educational activities related to team building and leadership training. 3. Adjourn. February 11 - Council Member Miller moved to adjourn. Council Member Beazley seconded. Motion carried 4-0. Mayor Crist adjourned the meeting at 12:13 PM. Approved on the 28tb day of February, 2017. /_rIIIIIlr:1101111 City Secretary Carrie L. Smith Mayor Mike Crist February 10 & 11 `h, 2017 CCmin2017-02-10&11 ANNA CITY COUNCI L MINUTES WORK SESSION February 14, 2017 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 Crist called the meeting to order at 6:30 PM. Council Members Burr and Martinez were absent. Council Member Burr arrived at 6:39 PM. 2. Briefing/Discussion regarding improvements to the Council Chamber AV system. (City Manager) Pathway Communications representative, provided the Council with a brief overview the proposed AV system. No action taken. 3. CLOSED SESSION (EXCEPTIONS) Under Tex. Gov't Code Chapter 551, the City Council may enter into closed session to discuss any items listed or referenced on this agenda under the following exceptions: 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). discuss subdivision and HOA issues. b. 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); discuss potential use tax agreement. CCmin2017-02-14 Page 1 of 8 C. Discuss or deliberate the purchase, exchange, lease, or value of real property (Tex. Gov't Code §551.072); acquisition of right-of-way, easements, and land for municipal facilities. MOTION: Council Member Beazley moved to enter executive session. Council Member Pelham seconded. Motion carried 6-0. Mayor Crist recessed the open meeting at 6:52 PM. Mayor Crist reconvened the open meeting at 7:15 PM. 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. 4. 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. MOTION: Council Member Beazley moved to take no action. Council Member Bryan seconded. Motion passed 6-0. 5. Adjourn. MOTION: Council Member Beazley moved to adjourn. Mayor Crist seconded. Motion passed 6-0. Mayor Crist adjourned the meeting at 7:17 PM. CCmin2017-02-14 Page 2 of 8 ANNA CITY COUNCI L MINUTES REGULAR SESSION February 14, 2017 Call to Order/Roll Call and Establishment of Quorum Mayor Crist opened the meeting at 7:30 PM. Council Member Martinez was absent. 2. Invocation and Pledge of Allegiance. Mayor Crist 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. No comments. 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. No reports. 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. Council removed items f and g from the consent agenda. a. Approve meeting minutes for 1 /24/2017 Council Meeting. CCmin2017-02-14 Page 3 of 8 b. Review minutes from the Anna Community Development Corporation special meeting of November 22, 2016 and the regular meeting from January 5, 2017. c. Review minutes of the Anna Economic Development Corporation from January 5, 2017. d. Review Quarterly Investment Report. (Dana Thornhill) e. Ordinance calling for a May 2017 General Election; approving a Election Service Contract with Collin County; and approving a Joint Election Agreement with Anna Independent School District. (City Secretary) ORDINANCE NO. 739-2017 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS, ORDERING A GENERAL ELECTION TO BE HELD ON MAY 6, 2017 FOR THE PURPOSE OF ELECTING TWO (2) CITY COUNCIL MEMBERS; DESIGNATING POLLING PLACES; ORDERING NOTICES OF ELECTION TO BE GIVEN; AUTHORIZING EXECUTION OF JOINT ELECTION CONTRACTS; PROVIDING A REPEALING CLAUSE; PROVIDING A SEVERABI LITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. f. Resolution approving a Facilities Use Agreement with the Anna Sports Group for 2017. (Maurice Schwanke) Item f. was removed from the consent agenda. MOTION: Council Member Pelham moved to table. Council Member Bryan seconded. Motion carried 6-0. g. Resolution authorizing the the Anna Community Development Corporation and the Anna Economic Development Corporation to enter into a professional services agreement with Funderburgh Real Estate for project management and real estate representation for the Anna Business Park property. (Jessica Perkins) Item g. was removed from the consent agenda. RESOLUTION NO. 2017-02-280 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA APPROVING AND AUTHORIZING THE EXPENDITURE OF FUNDS BY THE ANNA COMMUNITY DEVELOPMENT CORPORATION AND THE ANNA ECONOMIC DEVELOPMENT CORPORATION RELATED TO A PROFESSIONAL SERVICES AGREEMENT FOR PROJECT MANAGEMENT AND REAL ESTATE REPRESENTATION WITH FUNDERBURGH REAL ESTATE INVESTMENTS MOTION: Mayor Crist moved to approve with modifications requiring a quarterly CCmin2017-02-14 Page 4 of 8 report be presented to Council. Council Member Bryan seconded. Motion carried 6-0. h. Resolution authorizing the Anna Economic Development Corporation to expends funds for Engineering Services related to the design and construction of a waterline on the Anna Business Park Property. (Jessica Perkins) RESOLUTION NO. 2017-02-281 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA APPROVING AND AUTHORIZING THE EXPENDITURE OF FUNDS BY THE ANNA ECONOMIC DEVELOPMENT CORPORATION FOR ENGINEERING SERVICES FOR THE DESIGN AND INSTALLATION OF A WATER LINE FOR THE ANNA BUSINESS PARK PROPERTY MOTION: Mayor Crist moved to approve consent items a-e and h. Council Member Bryan seconded. Motion passed 6-0. 6. Consider/Discuss/Action regarding a Resolution establishing a Comprehensive Plan Advisory Committee. (Maurice Schwanke) One of the City Council's strategic goals is to review and update the City's Comprehensive Plan that was adopted in 2010. The attached Resolution creates a citizen committee that will provide input and serve in an advisory capacity to the Planning department staff throughout the process of updating the existing Comprehensive Plan. The composition of the proposed 13-member Committee is similar to the committee that assisted with the development of the current Comprehensive Plan. The Mayor would preside over and be a voting member of the Committee. Six members of the Committee would be appointed by the Mayor including: *one (1) member of the City Council; -two (2) members of the Planning & Zoning Commission; ,one (1) member of the Anna Community Development Corporation Board of Directors; *one (1) staff member of the Anna Independent School District recommended by the AISD Superintendent; and *one (1) member of the City of Anna Parks Advisory Board. In addition, each member of the City Council, other than the Mayor, would appoint one (1) person who is a qualified voter in the City to serve on the Committee. All appointees would need to be ratified by the City Council. The participants will need to make a commitment for this project that may take over a year to complete with monthly meetings anticipated. Staff is requesting that the Council submit their nominations to the City Secretary within the next four (4) weeks so that the appointments can be ratified in late March or early April. It is recommended that the persons nominated for appointment CCmin2017-02-14 Page 5 of 8 complete the attached Board and Commission application. Mayor Crist allowed public comments: Jim Luscombe, 1303 W. Foster Crossing, located in the City of Melissa's ETJ, spoke in favor of creating a committee and requested property owners from the ETJ be allowed an opportunity to serve on the committee. Christine Lewis, 8108 Red Fox, located in the City's ETJ, would like to be allowed to serve on city boards and committees. RESOLUTION NO. 2017-02-282 A RESOLUTION OF THE CITY OF ANNA, TEXAS CREATING A COMPREHENSIVE PLAN ADVISORY COMMITTEE. MOTION: Council Member Pelham moved to approve. Mayor Crist seconded. Council Member Beazley requested the motion to include at least one property owner from the ETJ. Council Member Pelham amended his motion to include two (2) ex-officio members from the City's ETJ. Council Member Crist seconded. Motion carried 6- 0. 7. Consider/Discuss/Action regarding a Resolution approving a Subdivision Improvement Agreement with LGI Homes -Texas LLC for Northpointe Crossing Phases II -IV. (Maurice Schwanke) The Northpointe Crossing Subdivision is connected to the City's water distribution system at one location at the southern end of the property on CR 376 and State Highway 5 (Powell Parkway). In order to improve the reliability of service and provide a looped water system, the Northpointe Crossing Developers (LGI Homes) have agreed to construct a new water line along CR 1106 that will provide a second connection to the City's water distribution system. This new water line is on the Water System Capital Improvement Plan and is therefore eligible for water impact fee credits. This waterline will be constructed in connection with Phase III of Northpointe Crossing. RESOLUTION NO. 2017-02-282 A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING A SUBDIVISION IMPROVEMENT AGREEMENT WITH LGI HOMES -TEXAS LLC FOR NORTHPOINTE CROSSING, PHASES II -IV. MOTION: Council Member Pelham moved to approve subject to legal form. Council Member Bryan seconded. Motion carried 6-0. 8. Consider/Discuss/Action regarding a Resolution setting a Public Hearing for the purpose of amending the City's Capital Improvements Plan, Land Use Assumptions and Impact Fees. (Joseph Johnson) CCmin2017-02-14 Page 6 of 8 Impact fees are authorized under Chapter 395 of the Texas Local Government Code and may be imposed upon new developments to fund both existing and proposed infrastructure that is necessary to provide service to a development. Our last water and wastewater impact fee update was completed in 2014. By statute the City is required to review the Land Use Assumptions and Capital Improvement Plan (CIP) at least once every 5 years but may update them sooner as growth patterns, land use and infrastructure needs change. Many of the projects on our adopted CIP have been constructed or will begin construction soon and over the last 2-3 years new infrastructure needs have become apparent. Over the past several months staff has worked with our engineering consultant to identify water and wastewater infrastructure projects that should be added to our CIP. Subsequently, land use assumptions, population projections and calculated maximum fees were evaluated with new recommendations for the population projections, and calculated maximum fees. RESOLUTION NO. 2017-02-284 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS, SETTING A DATE FOR A PUBLIC HEARING FOR THE PURPOSES OF AMENDING THE CITY'S CAPITAL IMPROVEMENTS PLAN, LAND USE ASSUMPTIONS AND IMPACT FEES. MOTION: Council Member Beazley moved to approve a public hearing to be held 7:30 PM on March 28, 2017 at Anna City Hall, 111 N. Powell Parkway. Mayor Crist seconded. Motion carried 6-0. 9. CLOSED SESSION (EXECEPTIONS) 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) discuss subdivision and HOA issues. b. 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); discuss potential use tax agreement. c. Discuss or deliberate the purchase, exchange, lease, or value of real property (Tex. Gov't Code §551.072); acquisition of right-of-way, easements, and land CCmin2017-02-14 Page 7 of 8 for municipal facilities. No Closed Session. 10. Consider/Discuss/Action on any items listed on the posted agenda or any closed session occurring during this meeting, as necessary No Action. 11. Adjourn. Council Member Pelham moved to adjourn. Council Member Burr seconded. Motion carried 6-0 Mayor Crist adjourned the meeting at 8:18 PM. Approved on the February 28, 2017. Mayor Mike Crist ATTEST: City Secretary Carrie L. Smith CCmin2017-02-14 Page 8 of 8 ANNA CITY COUNCIL MINUTES Special Meeting February 17 & 18, 2017 The City Council of the City of Anna met in a special meeting on the above date at Collin College Central Park Campus, Conference Center, Room F-122, 2200 W. University, McKinney, Texas, regarding the following items: 1. Call to Order. February 17 - Mayor Crist called the meeting to order at 8:00 AM. 2. The City Council will participate in discussion and educational activities related to team building and leadership training. 3. Adjourn. February 17 - Council Member Beazley moved to adjourn. Council Member Bryan seconded. Motion carried 7-0. Mayor Crist adjourned the meeting at 3:00 PM. February 18, 2017 1. Call to Order. February 18 - Mayor Crist called the meeting to order at 8:00 AM. Burr and Martinez were absent. 2. The City Council will participate in discussion and educational activities related to team building and leadership training. 3. Adjourn. February 18 - Council Member Miller moved to adjourn. Council Member Beazley seconded. Motion carried 5-0. Mayor Crist adjourned the meeting at 12:00 PM. Approved on the 28th day of February, 2017. ATTEST: City Secretary Carrie L. Smith Mayor Mike Crist CCmin2017-02-17&18th i Item No. 5.b. City Council Agenda Staff Report Meeting Date: 2/28/2017 YOUR} HOMETOWN AGENDAITEM: Resolution authorizing the distribution of contingency appropriation. (Dana Thornhill) SUMMARY: Because of recurring difficulties with the sound system in the Council Chambers, Staff has solicited proposals to upgrade and replace as necessary, the sound system in the Council Chambers. The proposal reviewed by the City Council on February 14 will cost $11,370. Funds from the contingency appropriation will be used to pay for these improvements. Consistent with Section 7.08 of the Anna City Charter, the 2016-2017 fiscal year budget includes a contingency appropriation of $180,654. Such contingent appropriation may be distributed by the City Manager only after prior approval by the City Council. STAFF RECOMMENDATION: Staff recommends approval of the attached Resolution which will transfer $11,370 from the FY 2016-2017 General Fund Contingency Appropriation to the General Fund Administration department, maintenance and repair of buildings account 10-400-6303. ATTACHMENTS: Description Contingency Resolution Audio Upgrade Proposal Upload Date Type 2/22/2017 Resolution 2/22/2017 Backup Material CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING AND AUTHORIZING THE CITY MANAGER TO DISTRIBUTE A PORTION OF THE FY 2016-2017 CONTINGENCY APPROPRIATION WHEREAS, The City has solicited proposals to upgrade the audio system in the City Hall City Council Chambers located at 111 N. Powell Parkway. WHEREAS, funds are available for this project in the City's General Fund contingency appropriation subject to approval of the City Council; 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. Contingency Appropriation Consistent with Section 7.08 of the Anna City Charter, the City Council hereby authorizes the City Manager to transfer $11,370 from the FY 2016-2017 General Fund Contingency Appropriation to the General Fund Administration department, Maintenance and Repair of Buildings account 10-400-6303. PASSED AND APPROVED by the City Council of the City of Anna, Texas, on this 28t" day of February, 2017. ATTEST: APPROVED: Carrie L. Smith, City Secretary Mayor, Mike Crist Pathway Communications LTD. 720 Valley Ridge Circle #13 Lewisville, Texas 75057 Texas Office (972) 436-6161 Fax (972) 436-0421 Nevada Office (702) 568-6517 Fax (702) 446-0325 Customer: City of Anna Quote: 20170119JS-06 Date: 1 /19/2017 Quote by: John Spaeth Phone# 972.436.6161 Delivery: 3-4 weeks ARO entail johns pcomus.com • • - Audio System and Clock Upgrades for City Council Chambers Audio Upgrades Extron 60-1512-01 12x8 ProDSPTm Digital Matrix Processors 1 $ 1,818.00 $ 1,818.00 Extron 42-141-03 Full -Range Flat Field® Speakers with Low Profile Enclosure and 70/100 V Transformer (Pair) 3 $ 295.00 $ 885.00 Extron 60-1284-02 5" Wall Mount Touchl-ink Pro Controller w/ Surface Mount Box 1 $ 1,483.00 $ 1,483.00 Extron 60-845-01 Mono 70/100 V Amplifier - 40 Watts 1 $ 265.00 $ 265.00 Shure MX412D/C Cardioid-12" Desktop Gooseneck Condenser Microphone 11 $ 248.00 $ 2,728.00 Pathway Shielded 18/2 and 22/2 cabling for MIC and Speaker installation 1 $ 177.00 $ 177.00 Pathway Miscellaneous Installation Materials (j-hooks, connects, Velcro, labels, etc.) 1 $ 174.00 $ 174.00 $ - $ - Digital Clock 4" Tall Digital Countdown Clock 2 $ 129.00 $ 258.00 Miscellaneous Installation Materials (IR Extension cabling, anchors, etc.) 1 $ 89.00 $ 89.00 $ - $ - LaborOrder Materials SUB -total Shipping and Materials total $ 7,877.00 $ 316.00 $ 8,193.00 Installation of new Desktop microphones and cabling 11 $ 98.00 $ 1,617.00 Installation of new head -end equipment 1 $ 325.00 $ 325.00 Installation of new Countdown Clock 2 $ 65.00 $ 130.00 Programming of Audio Control Touch panel with Clock Control and Setup on Customer provided iOS or Android Tablet 1 $ 910.00 $ 910.00 Training of new Audio System 1 $ 195.00 $ 195.00 $ - Labor and Processing $ - Terms, condlitlons, special notes (fees Total $ 3,177.00 Materials Total $ 8,193.00 Sub Total $ 11,370.00 AX 0.00% $ 11,370.00 i Item No. 6. City Council Agenda Staff Report Meeting Date: 2/28/2017 YOUR} HOMETOWN AGENDAITEM: Consider/Discuss/Action regarding a Resolution authorizing the City Manager to execute a Texas Risk Reduction Program Restrictive Covenant for a 0.792 acre tract of land located on S. Powell Parkway. (City Manager) SUMMARY: In connection with the purchase of the Anna Grain property last year, the City hired a firm to perform a comprehensive environmental survey of the property. On June 14 last year, our environmental engineer presented a brief summary of the findings and an outline of the proposed remediation strategy. The study found elevated levels of arsenic in the soil in the suspected area of a former cotton gin. While the levels exceed the EPA standard for residential use, they did not exceed the standard for commercial use. Based on the recommendation of our environmental engineer, the City submitted a corrective action plan to the TCEQ that included a proposal to deed restrict the affected property for commercial uses. On February 16, 2017 the TCEQ issued a letter approving the City's proposed corrective action plan to deed restrict the portion of the property that is affected by elevated levels of arsenic. The attached Resolution would authorize the City Manager to execute the Texas Risk Reduction Program Restrictive Covenant attached as Exhibit 1 to the Resolution. Our environmental engineer will be at the meeting to answer any questions the Council may have. STAFF RECOMMENDATION: Staff recommends approval of the attached Resolution. ATTACHMENTS: Description Upload Date Type Restrictive Covenant Resolution 2/22/2017 Resolution Exhibit 1, Restrictive Covenant 2/21/2017 Exhibit CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY OF ANNA, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A TEXAS RISK REDUCTION PROGRAM RESTRICTIVE COVENANT FOR A 0.792 ACRE TRACT OF LAND LOCATED ON S. POWELL PARKWAY WHEREAS, the City of Anna, Texas (the "City") owns a certain parcel or parcels of land located on State Highway 5 (Powell Parkway) commonly referred to as the Anna Grain property (the "Property); and WHEREAS, an environmental survey of the Anna Grain site found elevated levels of arsenic in the soil in the suspected area of a former cotton gin; and WHEREAS, the levels or arsenic exceeded the EPA standard for residential use, they do not exceed the standard for commercial use; and WHERAS, based on the recommendations of our environmental engineer, the City submitted a Response Action Plan to the TCEQ that included a proposal to deed restrict the affected property for commercial uses; and WHEREAS, on February 16, 2017 the TCEQ issued a letter approving the City's Response Action Plan to deed restrict the portion of the Property that is affected by elevated levels of arsenic. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS, THAT: Section 1. Recitals Incorporated. The recitals above are incorporated herein as if set forth in full for all purposes. Section 2. Approval of Restrictive Covenant The City Council hereby approves the Texas Risk Reduction Program Restrictive Covenant attached hereto as Exhibit 1, and ratifies and approves the City Manager's execution of the same. The City Manager is hereby authorized to execute all documents and to take all other actions necessary to carry out the Response Action Plan for the Property dated July 18, 2016. PASSED AND APPROVED by the City Council of the City of Anna, Texas, on this 28t" day of February, 2017. ATTEST: APPROVED: Carrie L. Smith, City Secretary Mayor, Mike Crist Bryan W. Shaw, Ph.D., P.E., Chairman I is 0� Toby Baker, Commissioner Jon Niermann, Commissioner Richard A. Hyde, P.E., Executive Director TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by Reducing and Preventing Pollution February 16, 2017 Mr. Philip Sanders City Manager City of Anna 111 N. Powell Parkway Anna, Texas 75409 Re: Approval of Remedy Standard A - Commercial/Industrial Response to Comments, dated October 25, 2016 Anna Grain Property, 211 W. 51h Street, Anna, Texas; TCEQ Facility ID No. T3285; Customer No. CN600737134; Regulated Entity No. RN109250738 Dear Mr. Sanders: The Texas Commission on Environmental Quality (TCEQ) has reviewed the above referenced submittal, dated October 25, 2016. The document is submitted in response to the September 14, 2016 TCEQ letter regarding the Affected Property Assessment Report (AFAR) dated May 31, 2016 and Response Action Plan (RAP) dated July 18, 2016. The Response to Comments provided additional sampling data to complete delineation of the residential protective concentration level (PCL) exceedance zone for arsenic in soils in the suspected area of the former cotton gin, a legal description to serve as attachment to the deed notice proposed in the RAP dated July 18, 2016, and documentation of the plugging and abandonment of the on -site cistern/well. The TCEQ concurs that the shallow groundwater unit at the site is appropriately classified as a Class 3 groundwater resource. Based on the TCEQ review of the Response to Comments as well as the APAR, Texas Risk Reduction Program (TRRP) Remedy Standard A Commercial/Industrial PCLs have been achieved such that no post -response action care is required. However, proof of institutional controls under TRRP is required. In order to attain Remedy Standard A - Commercial/Industrial under TRRP, all industrial solid waste and municipal hazardous waste and waste residues must be removed or decontaminated from affected media (i.e., soil, surface water, groundwater, air) to applicable human health and ecological based standards and criteria as specified in 30 TAC §350.32. The RAP contained a document that is proposed to fulfill the requirements of 30 TAC §350.111 relating to institutional controls. As specified in §350.111, please submit proof of filing of the institutional control(s) to the TCEQ within ninety (90) days from the date of this letter. Please be aware that it is the continuing obligation of persons associated with a site to ensure that municipal hazardous waste and industrial solid waste are managed in a manner which does not cause the discharge or imminent threat of discharge of waste into or adjacent to waters in the state, a nuisance, or the endangerment of the public health and welfare as required by 30 TAC §335.4. If the response actions described in the RAP fail to comply with these requirements, please take any necessary and authorized action to correct such P.O. Box 13o87 • Austin, Texas 78711-3o87 • 512-239-1000 • tceq.texas.gov How is our customer seivice? tceq.texas.gov/customersurvey printed on recycled paper using vegetable -based ink Mr. Philip Sanders Page 2 February 16, 2017 TCEQ Facility ID No. T3285 conditions. A TCEQ field inspector may conduct an inspection of your site to determine compliance with the RAP. Questions concerning this letter should be directed to me at (512) 239-2961. When responding by mail, please submit an original and one copy of all correspondence and reports to the TCEQ Remediation Division at Mail Code MC- 127 with an additional copy submitted to the local TCEQ Region Office. The information in the reference block should be included in all submittals. Sincerely, R. Stuart Goldsmith, Project Manager Team 1, VCP-CA Section Remediation Division Texas Commission on Environmental Quality RSG/mdh cc: Mr. Sam Barrett, Waste Section Manager, TCEQ Region 4 Office, Dallas/Fort Wort Texas Risk Reduction Program Restrictive Covenant STATE OF TEXAS COUNTY OF COLLIN This Restrictive Covenant is filed to provide information concerning certain environmental conditions and use limitations pursuant to the Texas Commission on Environmental Quality (TCEQ) Texas Risk Reduction Program Rule (TRRP) found at 30 Texas Administrative Code (TAC), Chapter 350, and affects the real property (Property) described as follows: The Institutional Control Area as referenced in the attached Exhibit A is incorporated herein by reference. The proposed restriction applies to Institutional Control Area. Portions of the soils of the Property contain certain identified chemicals of concern causing those portions of the Property to be considered an Affected Property as that term is defined in the TRRP. The property referenced in Exhibit A is formally defined as the Affected Property. The compound identified in soil that exceeds Residential Critical Protective Concentration Levels is arsenic. This Restrictive Covenant is required for the following reasons: The Affected Property currently meets TRRP standards for commercial/industrial use. Based on the reports, the chemicals of concern pose no significant present or future risk to humans or the environment based on commercial/industrial land use. No further remediation of the Affected Property is required by the TCEQ as long as the Affected Property is not to be used for residential purposes as the property may not be protective for residential use. If any person desires in the future to use the Affected Property for residential purposes, the TCEQ must be notified at least 60 days in advance of such use and additional response actions may be necessary before the property may be used for residential purposes. Persons contemplating a change in land use for the Affected Property are encouraged to review the definitions for commercial/industrial and residential land use contained in TRRP as the definition of residential land use is broad. As of the date of this Restrictive Covenant, the record owner of fee title to the Property is City of Anna with an address of 111 North Powell Parkway, Anna, Texas 75409. In consideration of the Response Actions by City of Anna, approval of the Response Action Completion Report, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Owner has agreed to place the following restrictions on the Property in favor of the TCEQ and the State of Texas, to -wit: 1. The Property shall not be used for any purposes other than commercial/industrial uses, as defined in 30 Texas Administrative Code, Chapter 350, Section 350.4(a)(13). 2. These restrictions shall be a covenant running with the land. For additional information contact: TCEQ Central Records 12100 Park 35 Circle, Building E Austin, Texas 78753 Mail: TCEQ-MC 199 P.O. Box 13087 Austin, Texas 78711-3087 TCEQ Program and Identifier No.: T2431 This Restrictive Covenant may be rendered of no further force or effect only with the written approval and consent of the TCEQ or its successor agencies and filed in the same Real Property Records as those in which this Restrictive Covenant is filed. 2 Property Owner (Signature) (Printed Name) (Title) State of Texas County of SUBSCRIBED AND SWORN before me on this the day of , 20 , to which witness my hand and seal of office. Notary Public in and for the State of Texas Accepted as Third Party Beneficiary this day of , 20 Texas Commission on Environmental Quality (Signature) (Printed Name) (Title) State of Texas County of SUBSCRIBED AND SWORN before me on this the day of , 20 , to which witness my hand and seal of office. Notary Public in and for the State of Texas 3 PROPERTY INFORMATION AND "AFFECTED PROPERTY" EXHIBIT "A" LEGAL DESCRIPTION INSTITUTIONAL CONTROL AREA BEING 0.792 acre of land located in the HENRY BRANTLEY SURVEY, Abstract No. 71, City of Anna, Collin County, Texas, and being a portion of the tract of land conveyed to Chris Cashdollar and wife Jacque Cashdollar, by the deed recorded in County Clerk's File No. 20091020001289220, of the Deed Records of Collin County, Texas, and a portion of the tract of land conveyed to the City of Anna, by the deed recorded in Volume 4868, Page 6683, of the Deed Records of Collin County, Texas. Said 0.792 acre of land being more particularly described by metes and bounds as follows: BEGINNING at a point in the West boundary line of said Cashdollar Tract, lying in the East right-of-way line of Powell Street or State Highway No. 5 (an 80 foot wide public right-of-way), and being located S 03' 44' 16" W 117.56 feet, from the Northwest corner of said Cashdollar Tract; THENCE S 880 13' 27" E 226.56 feet, to a point; THENCE S 010 07' 59" W 150.03 feet, to a point; THENCE N 880 13' 27" W at 74.02 crossing the East boundary line of said City of Anna Tract, and continuing in all 233.39 feet, to a point in the East right-of-way line of said State Highway No. 5; THENCE N 030 44' 16" E along the East right-of-way line of said State Highway No. 5 and the West boundary line of Cashdollar Tract, at 20.0 feet, passing the North boundary line of said City of Anna Tract, and in all 150.11 feet, to the POINT OF BEGINNING, containing approximately 0.792 acre of land. This document was prepared under 22 TAC 663.21, does not reflect the results of an on the ground survey, and is not to be used to convey or establish interests in real property except those rights and interest implied or established by the creation or reconfiguration of the boundary of the political subdivision for which it was prepared. AUGUST 17, 2016 G:\2016\LEGALS\M-GEO ANNA OR TOWN-MSD.doc ILOT 1 &4 i INDEPENDENT BANK ADDITION CAB. P, PG. 209 z 3 P.R.C.C.T. Q i i o Y TLEY SURVEY �ABST CT N0. 71 w LOT 2 LOT 3 LOT 4 (~ z 5TH STREET I80' RIGHT-OF-WAY POINT OFI� BEGINNINJ COPYRIGHTS: BRITTAIN & CRAWFORD LAND SURVEYING & TOPOGRAPHIC MAPPING FIRM CERTIFICATION# 1019000 TEL (817) 926-0211 — FAX (817) 926-9347 BLOCK 4 P.O. BOX 11374 * 3908 SOUTH FREEWAY FORT WORTH, TEXAS 76110 EMAIL: admin@brittain—crawford.com 15 I; 16 2 --'---- --- 140'_- 0.792 ACRE OF LAND INSTITUTIONAL CONTROL AREA S 88013'27"E 226.56' MOST WESTERLY SW CORNER O 6R3j� QG OELG CARCLLARAT • N 88013'27W 1-4 O I.03' 233.39' ON 4 g6a*s G��� Ov? G• ' CHRIS CASHDOLLAR & b8 `j0� ORG� JACQUE CASHDOLLAR CC# 20091020001289220 D.R.C.C.T. 7 6 O JOINER CONSTRUCTION COMPANY, INC VOL. 1952, PG. 538 VOL. 2250, PG. 244 8 D.R.C.C.T. (1984) G� s E: U � L J Lfl Q N' rl 4 z v Y M Q Z ~ V wmF7 p V o U M ,..� Z^MQ3 J3 Op N W -ON 2 ma E- Z z U c� U p O )RMER 6TH ST. 80' R.O.W. \ OF OWNERSHIP IN QUESTION 5 4 BLOCK 2 3 w Q.' 0 W 2 9 O\�OOwN20F ANNA W ORIGINP 1 F-+ 7TH STREET 80' RIGHT-OF-WAY --------- \P� STERF°° f KRYSTIAN°GOLEBIEWSKI EXHIBIT MAP OF: ........................... 400° .. �a°`� 0.792 ACRE q�o,°E s s°,° °°l0 s�P' INSTITUTIONAL CONTROL s����sl� AREA LOCATEDIN NAD 83: TX83—NCFI HENRY BRANTLEY SURVEY, 0 120' 240' ABSTRACT No. 71, CITY OF ANNA, COLLIN COUNTY, TEXAS NW I..L Q J O/ L.L z O U J Q z O_ D U) z i Item No. 7. City Council Agenda Staff Report Meeting Date: 2/28/2017 YOUR} HOMETOWN AGENDAITEM: Consideration/Action on appointments to the EDC and CDC. (City Secretary) SUMMARY: There are two vacancies on the EDC/CDC interviews. STAFF RECOMMENDATION: Applicants will be present at the meeting for Staff recommends the appointment of Attorney Pam Evers and Retired Corporate and Field Marketing Administrator James Gurski as they feel these professions would be beneficial to the board. ATTACHMENTS: Description Upload Date Type i Item No. 8. City Council Agenda Staff Report Meeting Date: 2/28/2017 YOUR} HOMETOWN AGENDAITEM: Consider/Discuss/Action on a Resolution instituting Annexation proceedings and setting the dates, times and places for public hearings for the annexation of a 466 acre tract of land located in the J. Chalmers Survey, Abstract No. 0233 and the S. Craft Sr. Survey No. 0165. (Maurice Schwanke) SUMMARY: This proposed annexation involves approximately 466 acres of land within the J. Chalmers Survey, Abstract No. 0233 and the S. Craft Sr. Survey No. 0165. The area contains 26 parcels of property with 5 single family homes, 18 manufactured homes, and two commercial buildings under construction and is bounded on the south by the Sam Rayburn Memorial Hwy. and is traversed by F.M. 2862 and County Road 526. The north Boundary is County Road No.525. The Resolution (if approved) would initiate or begin annexation proceedings of the area shown on the attached Exhibit 1. If the Resolution is adopted, the City will schedule two public hearings that will be held during the regular City Council Meetings on April 11 th and April 25th. During the first public hearing, Staff will present a plan that will explain how the city will fulfill its obligation to extend full municipal services to the properties being annexed. A final vote on the annexation would be scheduled on May 23rd. Prior to annexing properties that are appraised for property tax purposes as land for agricultural, wildlife management use, or as timber land (as defined in Subchapter C, D, or E Chapter 23, Tax Code) the City is required to offer to make a development agreement with the landowner. Such a development agreement would: 1. guarantee the continuation of the extraterritorial (outside the city limits) status of the property for a period of time; and 2. authorize the enforcement of all regulations and planning authority of the city that do not interfere with the use of the property for agriculture, wildlife management, or timber. The City could elect to proceed with annexation of property with a qualifying tax exemption if the owner declines a development agreement offer extended by the City. The Council may elect to extend the same development agreement offer to the owners of properties that do not have a qualifying tax exemption. The attached Resolution directs the City Manager offer the Development Agreement referenced in the Resolution as Exhibit 2 to all the property owners within the area proposed for annexation regardless of whether their property has a qualifying tax exemption. The proposed Development Agreement (if executed by the property owner & approved by the Council) would guarantee that the property would remain outside the city limits for one (1) year. At the conclusion of the one-year period, the property owner would consent to voluntary annexation in 2018. STAFF RECOMMENDATION: Staff recommends approval of the attached Resolution authorizing notification of involved property owners of two public hearings and the potential for annexation and/or acceptance of a development agreement. ATTACHMENTS: Description Upload Date Type Resolution on Annexation Procedings 2/23/2017 Resolution Exhibit 1 2/22/2017 Exhibit Exhibit2, Pre -Annexation Development Agreement 2/22/2017 Exhibit CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION INSTITUTING ANNEXATION PROCEEDINGS AND SETTING THE DATES, TIMES AND PLACES FOR PUBLIC HEARINGS FOR THE ANNEXATION OF 466 ACRES OF LAND LOCATED IN THE J. CHALMERS SURVEY, ABSTRACT NO. 0233 AND THE S. CRAFT JR. SURVEY, ABSTRACT NO. 165; AND DIRECTING THE CITY MANAGER TO OFFER ON BEHALF OF THE CITY TO MAKE A DEVELOPMENT AGREEMENT WITH THE OWNERS OF PROPERTY WITHIN THE AREA PROPOSED FOR ANNEXATION. WHEREAS, in order to better protect the health, safety, and welfare of the citizens of Anna, and in order to plan for the long-term welfare of the City, the City Council of the City of Anna, Texas (the "City Council") wishes to consider annexation of certain property described in Exhibit 1; and WHEREAS, said territory lies adjacent or contiguous to the present boundaries of the City of Anna, Texas; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS, THAT: Section 1. The recitals above are incorporated herein as if set forth in full for all purposes. Section 2. Public hearings regarding the proposed annexation of the property described in Exhibit 1 are hereby scheduled as follows: 1st Public Hearing — April 11, 2017 at 7:30 p.m. in the City Council Chambers at the Anna City Hall Administrative Building, 111 N. Powell Pkwy, Anna, TX 2nd Public Hearing — April 25, 2017 at 7:30 p.m. in the City Council Chambers at the Anna City Hall Administrative Building, 111 N. Powell Pkwy, Anna, TX Section 3. The City Council hereby directs the City Manager to prepare a service plan that provides for the extension of full municipal services as required and appropriate for the area shown in Exhibit 1. Section 4. The City Council hereby directs the City Manager to offer on behalf of the City, to make the Development Agreement, attached hereto as Exhibit 2, with the owners of all properties located within the area proposed for annexation, including the owners of any properties that are appraised for property tax purposes as land for agricultural, wildlife CITY OF ANNA, TEXAS RESOLUTION NO. PAGE 1 OF 2 management use, or as timber land (as defined in Subchapter C, D, or E Chapter 23, Tax Code). PASSED AND APPROVED by the City Council of the City of Anna, Texas, on this the 28t" day of February, 2017. ATTEST: APPROVED: Carrie L. Smith, City Secretary Mike Crist, Mayor CITY OF ANNA, TEXAS RESOLUTION NO. PAGE 2 OF 2 a U � m Ul m � m ommo® ®o HHEE E F52 424 121 2862 513 STATE OF TEXAS ) COUNTY OF COLLIN ) CHAPTER 43 & CHAPTER 212 TEXAS LOCAL GOVERNMENT CODE DEVELOPMENT AGREEMENT This Agreement is entered into pursuant to Sections 43.035 and/or 212.172 of the Texas Local Government Code by and between the City of Anna, Texas (the "Cit and the undersigned property owner(s) (the "Owner"). The term "Owner" includes all owners of the Property. WHEREAS, Owner and the City are sometimes collectively referenced in this Agreement as the "Parties" or, each individually, as "Party"; and WHEREAS, the Owner owns a parcel or parcels of real property(s) (the "Property") in Collin County, Texas and further described in the attached Exhibit "A"; and WHEREAS, the Owner desires to have the Property remain in the City's extraterritorial jurisdiction, in consideration for which the Owner agrees to enter into this Agreement; and WHEREAS, this Agreement is entered into pursuant to Sections 43.035 and/or 212.172 of the Texas Local Government Code, in order to address the desires of the Owner and the procedures of the City; and WHEREAS, the Owner and the City acknowledge that this Agreement is binding upon the City and the Owner and their respective successors and assigns for the Term (defined below) of this Agreement; and WHEREAS, this Development Agreement is to be recorded in the Real Property Records of Collin County; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows: Section 1. IMMUNITY FROM ANNEXATION The City guarantees the continuation of the extraterritorial status of the Owner's Property, its immunity from annexation by the City, and its immunity from City property taxes, for the Term of this Agreement, subject to the provisions of this Agreement. Except as provided in this Agreement, the City agrees not to annex the Property, agrees not to involuntarily institute proceedings to annex the Property, and further agrees not to include the Property in a statutory annexation plan for the Term of this Agreement. However, if the Property is annexed pursuant to the provisions of this Agreement, then the City shall provide services to the Property pursuant to Chapter 43 of Texas Local Government Code. Section 2. OWNER OBLIGATIONS (a) Owner covenants and agrees not to use the Property for any use other than for the Existing Land Uses or for agriculture, wildlife management, and/or timber land consistent with Chapter 23 of the Texas Tax Code, without the prior written consent of the City. 1. Existing Land Uses mean the legal uses of the Property in existence as of the Effective Date of this Agreement. (b) Owner covenants and agrees that the Owner will not file any type of subdivision plat or related development document for the Property with Collin County or the City until the Property has been annexed into, and zoned by, the City. (c) Owner covenants and agrees not to construct, or allow to be constructed, any building on the Property that would require a building permit if the Property were in the city limits, until the Property has been annexed into, and zoned by, the City. (d) Owner acknowledges that each and every owner of the Property must sign this Agreement in order for the Agreement to take full effect, and the Owner who signs this Agreement covenants and agrees, jointly and severally, to indemnify, hold harmless, and defend the City against any and all legal claims, by any person claiming an ownership interest in the Property who has not signed the Agreement, arising in any way from the City's reliance on this Agreement. (e) Owner acknowledges that if any plat or related development document is filed in violation of this Agreement, or if the Owner commences development of the Property in violation of this Agreement, then in addition to the City's other remedies, such act will constitute a petition for voluntary annexation by the Owner, and the Property will be subject to annexation at the discretion of the City Council. The Owner agrees that such annexation shall be voluntary and the Owner hereby consents to such annexation as though a petition for such annexation had been tendered by the Owner. If annexation proceedings begin pursuant to this Section 2(e), the Owner acknowledges that this Agreement serves as an exception to Local Government Code Section 43.052, requiring a municipality to use certain statutory procedures under an annexation plan. Furthermore, the Owner hereby waives any and all vested rights and claims that they may have under Section 43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any actions Owner has taken in violation of Section 2 herein. The Owner further agrees that the Owner will not in any manner contest any annexation of the Property initiated by the City under this Section 2(e) or any annexation of the Property completed by the City after the Term of this Agreement. Section 3. CITY REGULATIONS AND PLANNING AUTHORITY Pursuant to Sections 43.035(b)(1)(B) of the Texas Local Government Code, the City is authorized to enforce all of the City's regulations and planning authority that do not materially interfere with the uses of the Property authorized under Section 2(a) of this Agreement. Section 4. EFFECTIVE DATE The "Effective Date" of this Agreement is the date that the last of the Parties' signatures to this Agreement is fully and properly affixed to this Agreement and acknowledged by a notary public. The City's duties and obligations hereunder shall not arise unless and until the City Council has duly adopted this Agreement and Owner has duly executed this Agreement and delivered same to the City. Section 5. TERM (a) The term of this Agreement (the "Term") is one (1) year from the Effective Date. (b) The Owner, and all of the Owner's heirs, successors and assigns shall be deemed to have filed a petition for voluntary annexation before the end of the Term, for annexation of the Property to be completed on or after the end of the Term. Prior to the end of the Term, the City may commence the voluntary annexation of the Property. In connection with annexation pursuant to this Section 5(b), the Owners hereby waive any vested rights they may have under Section 43.002(a)(2) and Chapter 245 of the Texas Local Government Code that would otherwise exist by virtue of any application, plan, plat or construction any of the Owners may submit or initiate during the time between the expiration of this Agreement and the institution of annexation proceedings by the City. Section 6. TEMPORARY ZONING Property annexed pursuant to this Agreement shall be temporarily classified as SF-E Single Family Residential — Large Lot District until permanent zoning is established by the City Council pursuant to the City's Code of Ordinances, pending determination of the Property's permanent zoning in accordance with the provisions of applicable law and the City's Code of Ordinances. Section 7. MISCELLANEOUS PROVISIONS (a) Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give written notice of this Agreement to the prospective purchaser or grantee. (b) This Agreement shall run with the Property and be recorded in the real property records of Collin County, Texas. (c) If a court of competent jurisdiction determines that any covenant of this Agreement is void or unenforceable, including the covenants regarding involuntary annexation, then the remainder of this Agreement shall remain in full force and effect. (d) This Agreement may be enforced by any Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the provisions of this Agreement thereafter. (e) No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the properties covered herein pursuant to the terms of this Agreement. (f) Exclusive jurisdiction and venue for disputes arising out of or related in any way to this Agreement shall be in Collin County, Texas. (g) This Agreement may be separately executed in individual counterparts and, upon execution, shall constitute one and same instrument. (h) This Agreement shall survive its termination to the extent necessary for the implementation of the provisions of Sections 2(e) and 5(b) herein. Entered into this day of , 2017. Philip Sanders City Manager, City of Anna, Texas THE STATE OF TEXAS } COUNTY OF COLLIN } This instrument was acknowledged before me on the _ by Philip Sanders, City Manager, City of Anna, Texas. Notary Public, State of Texas day of , 2017, Owner 1 Printed Name: THE STATE OF TEXAS) COUNTY OF } This instrument was acknowledged before me on the _day of 2017, by , Owner 1. Notary Public, State of Texas Owner 2 Printed Name: THE STATE OF TEXAS) COUNTY OF } This instrument was acknowledged before me on the _day of 2017, by , Owner 2. Notary Public, State of Texas Owner 3 Printed Name: THE STATE OF TEXAS) COUNTY OF } This instrument was acknowledged before me on the _day of 2017, by Owner 3. Notary Public, State of Texas Owner 4 Printed Name: THE STATE OF TEXAS) COUNTY OF } This instrument was acknowledged before me on the _day of 2017 , by Owner 4. Notary Public, State of Texas AGENDAITEM: Item No. 9. City Council Agenda Staff Report Meeting Date: 2/28/2017 Consider/Discuss/Action regarding a Resolution approving an Automatic Aid Agreement with the Westminster Volunteer Fire Department. (Chief Gothard) 6*11hT1 hT 1_ YA In order to enhance firefighter and citizen safety in both jurisdictions, the City of Anna has negotiated an Automatic Aid Agreement with the Westminister Volunteer Fire Department. Through this Agreement, both the City of Anna and the Westminster Volunteer Fire Department agree to provide the automatic response of at least one fire engine company to all first alarm structural fires occurring in either the Jurisdictional Limit of the Westminster Volunteer Fire Department or the City of Anna, except when it is impossible for the Assisting Party to render aid because all of its available resources are required for an existing or simultaneous Emergency. STAFF RECOMMENDATION: Staff recommends approval of the attached Resolution and Automatic Aid Agreement. ATTACHMENTS: Description Upload Date Type Resolution approving Automatic Aid Agreement 2/23/2017 Resolution Exhibit 1, Automatic Aid Agreement 2/23/2017 Exhibit CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING AN AUTOMATIC AID AGREEMENT WITH THE WESTMINSTER VOLUNTEER FIRE DEPARTMENT AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAME WHEREAS, the City Council of the City of Anna, Texas (the "City Council") recognizes the vulnerability of the people and communities located within the fire districts of the City of Anna and the Westminster Volunteer Fire Department to damage, injury and loss of life and property resulting from structure fires, and recognize that structure fires may present equipment and manpower requirements beyond the capacity of each individual party; and WHEREAS, the City Council finds and determines that approval of an Automatic Aid Agreement with the Westminster Volunteer Fire Department will enhance the City's ability to preserve and protect the public health and safety of the residents of the City of Anna; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS, THAT: Section 1. Recitals Incorporated. The recitals above are incorporated herein as if set forth in full for all purposes. Section 2. Approval of Automatic Aid Agreement The City Council hereby approves the Automatic Aid Agreement attached hereto as Exhibit 1, and ratifies and approves the City Manager's execution of the same. The City Manager is hereby authorized to execute all documents and to take all other actions necessary to act under and enforce the Agreement. PASSED AND APPROVED by the City Council of the City of Anna, Texas, on this 28t" day of February, 2017. ATTEST: APPROVED: Carrie L. Smith, City Secretary Mayor, Mike Crist AUTOMATIC AID AGREEMENT FOR WESTMINSTER VOLUNTEER FIRE DEPARTMENT AND CITY OF ANNA, TEXAS State of Texas H County of Collin H This Automatic Aid Agreement ("Agreement") is entered into by the Westminster Volunteer Fire Department ("WVFD") and the City of Anna ("Anna" or "AFD"), all located in Collin County (individually and collectively, the "Parties". RECITALS WHEREAS, the Parties recognize the vulnerability of the people and communities located within the Parties' fire districts to damage, injury and loss of life and property resulting from structure fires and recognize that structure fires may present equipment and manpower requirements beyond the capacity of each individual party; and WHEREAS, the Parties recognize that, today and in the past, the concept of automatic aid by both parties is a matter of practice today; and WHEREAS, the officials of the Parties desire to secure and extend the provisions of automatic aid and protection of life and property in the event of a structure fire; and WHEREAS, the Parties wish to make suitable provisions for furnishing automatic aid in coping with structure fires; and WHEREAS, the Parties recognize that a formal agreement for automatic aid would allow for better coordination of effort, would provide that adequate equipment and manpower is available, and would help ensure that automatic aid is accomplished in the minimum time possible in the event of a structure fire; and WHEREAS, it is expressly understood that this Agreement does not in any way modify the provisions of and/or obligations set forth in the Inter -Jurisdictional Mutual Aid Agreement for Collin County, Texas, by and among all cities within or partially within Collin County dated on or about October 3, 2005 (the "Mutual Aid Agreement"). NOW, THEREFORE, the Parties agree as follows: SECTION 1. RECITALS The recitals set forth above are true and correct. SECTION 2. DEFINITIONS For purposes of this Agreement, the terms listed below will have the following meanings: A. Agreement means this Automatic Aid Agreement, duly executed. B. Automatic Aid means and includes, but is not limited to, such resources as facilities, equipment, services, supplies and personnel. C. Assisting Party means the Party furnishing equipment, supplies, facilities, services and/or manpower to the Requesting Party. D. Emergency means any occurrence, or threat thereof, whether natural or caused by man, in war or peace, which results in substantial injury or harm to the population, or substantial damage to or less of property. E. Jurisdictional Limit for the City of Anna means the Anna corporate limits and the fire district for the AFD as established by the Collin County Fire Marshall. F. Jurisdictional Limit for the Westminster Volunteer Fire Department means the fire district for the WVFD as established by the Collin County Fire Marshall. G. Requesting Party means the Party requesting aid in the event of a first alarm structure fire. SECTION 3. PROCEDURES FOR REQUESTS AND PROVISIONS OF AUTOMATIC AID WVFD and AFD agree to provide the automatic response of at least one fire engine company to all first alarm structural fires occurring in either Jurisdictional Limit of the Westminster Volunteer Fire Department or the City of Anna, except when it is impossible for the Assisting Party to render aid because all of its available resources are required for an existing or simultaneous Emergency. Additional apparatus and staffing may be requested on second alarms as part of the existing Mutual Aid Agreement. Except as otherwise provided herein, each Assisting Party will automatically respond to all first alarm structural fires. SECTION 4. SUPERVISION AND CONTROL When providing assistance under the terms of this Agreement and when the Requesting Party has qualified personnel at the site of the Emergency, the Assisting Party will be under the general operational control of the Requesting Party, which shall be organized and functioning within an Incident Command System (ICS) or Unified Command System (UCS) format. However, direct supervision and control of personnel, equipment and resources and personnel accountability of the Assisting Party shall remain with the Assisting Party. The Assisting Party shall maintain personnel time records, material records, and a log of equipment hours; be responsible for the operation and maintenance of the equipment and other resources furnished by the Assisting Party; and shall report work progress to the Requesting Party. The Assisting Party's personnel and other resources shall remain subject to recall by the Assisting Party at any time, subject to reasonable notice to the Requesting Party. SECTION 5. COMMUNICATIONS Unless specifically instructed otherwise, the Requesting Party shall have the responsibility for coordinating communications between the personnel of the Assisting Party and the Requesting Party. Assisting Party personnel shall maintain communications among their respective operating units, if such is practical. SECTION 6. RIGHTS AND PRIVILEGES Personnel who are assigned, designated or ordered to perform duties pursuant to this Agreement shall continue to receive the same wages, salary, pension, and other compensation and benefits for the performance of such duties, including injury or death benefits, disability payments, and workers' compensation benefits, as though the service had been rendered within the limits of the jurisdiction where the personnel are regularly employed. SECTION 7. TERMS OF DEPLOYMENT The initial duration of a request for assistance will be specified by the Requesting Party, to the extent possible based on the situation. SECTION 8. COSTS All costs associated with the provision of Automatic Aid rendered pursuant to this Agreement, including but not limited to, compensation for personnel; operation and maintenance of equipment; damage to equipment; medical expenses; and food, lodging and transportation expenses shall be borne by the Assisting Party for the first 48 hours that assistance is provided. Thereafter, all costs associated with the provision of Automatic Aid, including but not limited to compensation for personnel; operation and maintenance of equipment, damage to equipment, medical expenses, and food, lodging and transportation expenses shall be paid for by the Assisting Party and reimbursed — at actual cost — by WVFD when the AFD is the Assisting Party or by Anna when WVFD is the Assisting Party. Requests for reimbursement must be submitted within ten working days of the return of all personnel deployed under this Agreement. Such requests shall specifically identify each service, labor, or equipment provided and the unit and total costs associated with each. The Assisting Party shall be responsible for creating and maintaining for a period of three years a record of all costs incurred, both reimbursed and unreimbursed costs, in providing aid under this Agreement. Such costs and reimbursements and any other payments made under this Agreement shall be paid from current funds of the respective Party. All Parties acknowledge that unreimbursable costs incurred during the initial 48- hour period will not be subject to reimbursement with any available federal funds. SECTION 9. INSURANCE A. WORKER'S COMPENSATION COVERAGE. Each Party shall be responsible for its own actions and those of its employees and is responsible for complying with the Texas Worker's Compensation Act. B. AUTOMOBILE LIABILITY COVERAGE. Each Party shall be responsible for its own actions and those of its employees and is responsible for complying with the Texas motor vehicle financial responsibility laws. C. GENERAL LIABILITY, PUBLIC OFFICIAL'S LIABILITY AND LAW ENFORCEMENT LIABILITY. To the extent permitted by law and without waiving sovereign immunity, each Party shall be responsible for any and all claims, demands, suits, actions, damages, and causes of action related to or arising out of or in any way connected with its own actions, and the actions of its personnel in providing Automatic Aid assistance rendered or performed pursuant to the terms and conditions of this Agreement. Each Party agrees to obtain general liability, public official's liability and law enforcement liability, if applicable, or maintain a comparable self-insurance program. D. OTHER COVERAGE. The Assisting Party shall provide and maintain their standard packages, if any, of medical and dental and death benefit insurance coverage while their personnel are assisting the Requesting Party. SECTION 10. WAIVER OF CLAIMS AGAINST PARTIES; IMMUNITY RETAINED Each Party hereto waives all claims against the other Party hereto for compensation for any loss, damage, personal injury, or death occurring as a consequence of the performance of this Agreement, except those caused in whole or in part by the negligence of an officer, employee, or agent of another Party. No Party waives or relinquishes any immunity or defense on behalf of itself, its officers, employees and agents as a result of the foregoing sentence or its execution of this Agreement and the performance of the covenants contained herein. SECTION 11. EXPENDING FUNDS Each Party that performs services or furnished aid pursuant to this Agreement shall do so with funds available from current revenues of the Party. No Party shall have any liability for the future to expend funds to provide aid hereunder. SECTION 12. TERM This Agreement shall become effective as to each Party on February 28, 2017 and shall continue in force and remain binding on each Party for 12 months from the effective date. This Agreement shall renew automatically for one year upon the completion of the initial term and each subsequent term unless and until a Party terminates its participation in the Agreement pursuant to Section 18 of this Agreement. SECTION 13. ENTIRETY This Agreement contains all commitments and agreements of the Parties with respect to Automatic Aid to be rendered hereunder during or in connection with a structure fire. SECTION 14. STATUTORY PROVISIONS The Parties agree that Automatic aid in the context contemplated herein is a "governmental function and service" and that: (1) AFD is an "emergency service provider" as that term is defined in Texas Civil Practice and Remedies Code 101.001; and (2) WVFD is a volunteer fire department as that term is defined in Texas Civil Practice and Remedies Code 78.101. SECTION 15. SEVERABILITY If a provision contained in this Agreement is held invalid for any reason, the invalidity does not affect other provision of the Agreement, that can be given effect without the invalid provision, and to this end the provisions of this Agreement are severable. SECTION 16. VALIDITY AND ENFORCEABILITY If any current or future legal limitations affect the validity or enforceability of a provision of this Agreement then the legal limitations are made a part of this Agreement and shall operate to amend this Agreement to the minimum extent necessary to bring this Agreement into conformity with the requirements of the limitations, and so modified, this Agreement shall continue in full force and effect. SECTION 17. AMENDMENT This Agreement may be amended only by the written mutual consent of the Parties. SECTION 18. TERMINATION Any Party may at any time by resolution or notice given to the other Party decline to participate in the provision of Automatic Aid. Anna or WVFD may decline to participate by resolution, and must give notice of termination of participation in this Agreement and submit a certified copy of such resolution to all other Parties. Anna or AFD may decline to participate by submitting written notice of its decision not to participate to all other Parties. Such termination shall become effective not earlier than 30 days after the filing of such notice. SECTION 19. THIRD PARTIES This Agreement is intended to inure only to the benefit of the Parties hereto. This Agreement is not intended to create, nor shall be deemed or construed to create, any rights in third parties. SECTION 20. NOTICE Any notice required or permitted between the Parties must be in writing, and shall be delivered in person, or mailed certified mail, return receipt requested, as follows: Notice to WVFD: Westminster Volunteer Fire Department Attn: Board of Directors, Chairman Mark Griffin P. O. Box 691 Westminster, Texas 75485 Notice to Anna: City of Anna Attn: City Manager P. 0. Box 776 Anna, Texas 75409 With a mandatory copy to: Anna Fire Department Attn: Fire Chief Tim Gothard P. 0. Box 487 Anna, Texas 75409 SECTION 21. WARRANTY This Agreement has been officially authorized by the governing or controlling body or agency of each Party hereto by order, ordinance or resolution and each signatory to this Agreement guarantees and warrants that the signatory has full authority to execute this Agreement and to legally bind the respective Party to this Agreement. SECTION 22. GOVERNING LAW AND VENUE The laws of the State of Texas shall govern this Agreement and exclusive venue shall lie in Collin County, Texas. SECTION 23. HEADINGS The headings at the beginning of the various provisions of this Agreement have been included only in order to make it easier to locate the subject covered by each provision and are not to be used in construing this Agreement. EXECUTED by the Parties hereto, each respective entity acting by and through its duly authorized official as required by law, on multiple counterparts each of which shall be deemed to be an original, on the date specified on the multiple counterpart executed by such entity. City of Anna, Texas Name: Philip Sanders Title: City Manager, City of Anna, Texas r_A11*19 Date: Name: Carrie Smith Date: Title: City Secretary, City of Anna, Texas Westminster Volunteer Fire Deoartment Name: Mark Griffin Date: Title: Chairman i Item No. 10. City Council Agenda Staff Report Meeting Date: 2/28/2017 YOUR} HOMETOWN AGENDAITEM: Consider/Discuss/Action regarding a Resolution approving a Chapter 380 Economic Development Grant Agreement with Bloomfield Homes, LP and authorizing the City Manager to execute the Agreement. (Jessica Perkins) SUMMARY: Background: Staff was recently contacted by Doug Duff ie, CPA, who proposed a Chapter 380 Agreement for sharing his client's (Bloomfield Homes, LP) use tax paid in connection with building materials used by Bloomfield to build new homes in Anna. A Texas Direct Payment Permit (ie: use tax permit) allows a Texas taxpayer to self -assess and pay use taxes on materials purchased for use or consumption as opposed to paying sales taxes directly to suppliers based on suppliers' place of business (primarily in larger metropolitan cities). Bloomfield anticipates applying for a Texas Direct Payment Permit and paying use taxes each month directly to the Comptrollers Office according to the locations where materials are used at job sites. Since Bloomfield Homes will pay 100% of the system, accounting, audit defense and other ongoing administrative costs tied to paying use taxes; and since none of the upfront or ongoing tax compliance costs will be paid by the City; Bloomfield Homes has requested a grant based of 64% of City of Anna's 1.25% General Fund City Use Tax that will be paid on materials used in the construction of new homes constructed by Bloomfield within the City of Anna. The Community Development Corporation (CDC) will collect the the full 0.75% Use Tax on those same purchases. Based on Bloomfield's suppliers' current places of business, the City is not receiving any local sales tax revenue from Bloomfield's suppliers today. This approach will generate net new tax revenue for the City without incurring any new costs. In order to limit administrative costs for the City, Bloomfield is required to pay use taxes monthly, but will request semi-annual grants based on payments received by the City from January — June, then again for the period from July — December during the term of the Agreement. This allows the City to verify receipt of all local use taxes received prior to payment of any grant. New local use taxes will be able to be independently verified by comparing a copy of Bloomfield's individual monthly use tax returns related to the City of Anna with amounts received from the Comptrollers Office that were attributed to Bloomfield Homes, L.P. The primary Agreement deal points are: a. Per state law, the City may offer economic incentives through a Chapter 380 Agreement. b. The City will pay Bloomfield Homes 64% of the City's 1.25% General Fund use tax generated and paid by the builder for the term of the Agreement. C. The City may terminate the Agreement if state or federal law renders the Agreement ineffectual or illegal. d. The Agreement may be terminated if Bloomfield Homes suffers an Event of Bankruptcy or insolvency. Estimated Benefits: Based on Bloomfield Homes' 850 undeveloped lots in Anna, the company anticipates each new home will generate roughly $480 in net City / CDC tax revenues (net of Grants) and $320 in net benefits for Bloomfield Homes that will be used to recover the company's costs for use tax compliance. Over the build -out period of the new homes in Anna, and presuming no inflation in the cost of building materials, Anna's net City tax revenues (after Grants payment) are anticipated to be $153,000 for the General Fund plus $255,000 for the CDC (total of $408,000). If building material costs increase during the term of the Agreement or if Bloomfield purchases new undeveloped lots in Anna and builds incremental new homes in the City, the benefits could increase further. Financial Considerations: The City will retain 36% of the 1.25% General City use taxes collected and remitted for materials used on 850 homes to be built in Anna plus 100% of the incremental .75% CDC Use tax. STAFF RECOMMENDATION: Staff recommends approval of the attached Resolution and Agreement. ATTACHMENTS: Description Upload Date Type Resolution Approving 380 Agreement 2/23/2017 Resolution Exhibit 1, 380 Agreement Bloomfield Homes 2/22/2017 Exhibit CITY OF ANNA, TEXAS RESOLUTION NO. RESOLUTION APPROVING A CHAPTER 380 ECONOMIC DEVELOPMENT GRANT AGREEMENT BETWEEN THE CITY OF ANNA AND BLOOMFIELD HOMES, LP WHEREAS, the City Council of the City of Anna and Bloomfield Homes, LP desire to enter into a Chapter 380 Economic Development Grant Agreement; and WHEREAS, the City Council of the City of Anna, Texas (the "City Council") finds that approval of the Agreement is in the best interest of the citizens of Anna; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS THAT: Section 1. Recitals Incorporated The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. Approval of Agreement The City Council hereby approves the Chapter 380 Economic Development Grant Agreement, attached hereto as Exhibit 1, incorporated herein for all purposes, and ratifies and approves the City Manager's execution of the same. The City Manager is hereby authorized to execute all documents and to take all other actions necessary to finalize, act under, and enforce the Agreement. PASSED AND APPROVED by the City Council of the City of Anna, Texas, on this 28`h day of February, 2017. ATTEST: APPROVED: Carrie L. Smith, City Secretary Mayor, Mike Crist CITY OF ANNA, TEXAS RESOLUTION NO. PAGE 1 OF 1 CHAPTER 380 GRANT AGREEMENT BY AND BETWEEN THE CITY OF ANNA, TEXAS AND BLOOMFIELD HOMES, L.P. This CHAPTER 380 GRANT AGREEMENT ("Agreement") is made by and between The City of Anna, Texas ("City", also referred to as "Grantor") and Bloomfield Homes, L.P. (the "Company"), acting by and through their respective authorized officers and representatives. WHEREAS, the City Council of the City of Anna, Texas ("City Council") has investigated and determined that it is in the best interest of the City and its citizens to encourage programs, including programs for making loans and grants of public money to promote local economic development and stimulate business and commercial activity in the City pursuant to Chapter 380, Texas Local Government Code, as amended ("Chapter 380"); and WHEREAS, the Company will be engaged in the business of purchasing building materials for its use on construction projects within the City; and WHEREAS, the Company has advised that it would like to partner with the City, and that a contributing factor that would induce the Company to purchase items using a Texas Direct Payment Permit and generate economic development and local use tax revenue for the City, that would otherwise not be available to the City, would be an agreement by the Grantor to provide an economic development grant to the Company; and WHEREAS, the Company desires to purchase and use new building materials within the City that will generate additional economic development and use tax revenue for the City; and WHEREAS, the City Council has investigated and determined that the Company meets the criteria for providing the grants (hereinafter defined), pursuant to Chapter 380, based on, among other things, the Company: (i) acquiring properties for development, and constructing improvements; (ii) adding taxable improvements to real property in the City; and (iii) creating employment opportunities for the citizens of Anna ("Approved Project"); and WHEREAS, the City has concluded that the Approved Project qualifies for a Grant under Chapter 380; and WHEREAS, with the approval of this Agreement, the City hereby establishes a program authorized by Chapter 380 of the Texas Local Government Code to encourage and induce the generation of local use tax; and WHEREAS, the Grantor has determined that making an economic development grant to the Company in accordance with this Agreement will further the objectives of the Grantor, will benefit the City and the City's inhabitants and will promote local economic development and stimulate business and commercial activity in the City; CHAPTER 380 GRANT AGREEMENT BY AND BETWEEN THE CITY OF ANNA AND BLOOMFIELD HOMES, L.P. - PAGE 1 NOW THEREFORE, in consideration of the foregoing, and on the terms and conditions hereinafter set forth, the sufficiency of which is hereby acknowledged, the parties agree as follows: ARTICLE I DEFINITIONS 1.01 For purposes of this Agreement, each of the following terms shall have the meaning set forth herein unless the context clearly indicates otherwise: "City" and "Grantor" shall mean The City of Anna, Texas. "Commencement Date" shall mean March 1, 2017. "Company" shall mean Bloomfield Homes, L.P. "Direct Payment Permit" also referred to herein as a "Texas Direct Payment Permit" shall mean that permit issued by the State of Texas authorizing Company to self - assess and pay applicable state and local use taxes directly to the State of Texas related to selected portions of Company's taxable purchases. Section 3.288 of Title 34 of the Texas Administrative Code defines the requirements and responsibilities of Texas Direct Payment Permit holders along with any amendments, permutations, or recodifications of such section whether renaming such permits or otherwise modifying such provisions. "Effective Date" shall mean March 1, 2017. "Event of Bankruptcy or Insolvency" shall mean the dissolution or termination (other than a dissolution or termination by reason of a party merging with an affiliate) of a party's existence as a going business, insolvency, appointment of receiver for any part of a party's property and such appointment is not terminated within ninety (90) business days after such appointment is initially made, any general assignment for the benefit of creditors, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against a party and in the event such proceeding is not voluntarily commenced by the party, such proceeding is not dismissed within ninety (90) business days after the filing thereof. "Force Majeure" shall mean any delays due to strikes, riots, acts of God, shortages of labor or materials, war, terrorism, governmental approvals, laws, regulations, or restrictions, or any other cause of any kind whatsoever which is beyond the reasonable control of the party. "Grant Period" shall mean consecutive six (6) month periods during the term of this Agreement, except that the first Grant Period shall begin on the Effective Date and continue through and include the last day of June 2017 following the Effective Date. For CHAPTER 380 GRANT AGREEMENT BY AND BETWEEN THE CITY OF ANNA AND BLOOMFIELD HOMES, L.P. - PAGE 2 illustration purposes, assume the Effective Date is March 1, 2017 then the first Grant Period would begin on March 1, 2017 and continue through and include June 30, 2017. The next Grant Period would begin on July 1, 2017 and continue through and include December 31, 2017. The final Grant Period for the initial 10-year term of the Agreement would be from January 1, 2027 and end on February 28, 2027. "Impositions" shall mean all use taxes that may be imposed by public or governmental authority on the Company or any taxable items purchased and used by Company within the City. "Pry" shall mean the economic incentive program established by the City pursuant to Chapter 380 of the Texas Local Government Code together with any amendments, permutations, or recodifications of such Code provisions whether renaming such economic incentive or other modifications thereof. "Program Grant" shall mean the periodic payments paid by the City to the Company in accordance with Article 3 of this Agreement. "Taxable Items" shall have the same meaning assigned by Sections 151.009, 151.010 and 151.0101, TEX. TAX CODE, as amended. "Use Tax Certificate" shall mean a certificate or other statement in a form reasonably acceptable to the Grantor setting forth the Company's collection of use tax imposed by and received by the Grantor from the State of Texas, for the use of Taxable Items by Company in the City for the applicable calendar month during a Grant Period which are to be used to determine Company's eligibility for a Grant, together with such supporting documentation required herein, and as Grantor may reasonably request. "Use Tax Receipts" shall mean the Grantor's net receipts from the State of Texas from the collection of one and one -quarter percent (1.25%) general City use tax imposed by the City pursuant to Chapter 321 of the Texas Tax Code, attributed to the collection of use tax by Company associated with the issuance of Company's Texas Direct Payment for Taxable Items used or consumed in the City. ARTICLE II TERM 2.01 Term. The term of this Agreement shall begin on the Effective Date and continue for a ten (10) year period. 2.02 This Agreement shall remain in effect until Grantor has made the Program Grants set forth in Article 3 of the Agreement, or until otherwise terminated under the provisions of this Agreement. 2.03 This Agreement may be extended for an additional period of time on terms mutually acceptable to both parties by a written agreement executed by both parties. CHAPTER 380 GRANT AGREEMENT BY AND BETWEEN THE CITY OF ANNA AND BLOOMFIELD HOMES, L.P. - PAGE 3 ARTICLE III ECONOMIC DEVELOPMENT GRANT 3.01 Grant. Subject to the Company's continued compliance of all the terms and conditions of this Agreement, the Grantor agrees to provide Company with an economic development grant from lawful available funds payable as provided herein in an amount equal to 64% of the Use Tax Receipts, as previously defined herein (the "Grant"). The Grant will be paid semi-annually at the end of June and the end of December with the potential exception of the final Grant Period during the ten (10) year period following the execution of the Agreement, commencing March 1, 2017. If this Agreement is not extended pursuant to Section 2.03, then the final Grant Period shall be deemed to end on February 28, 2027. The Grant will never include any monies the Company pays or owes to the State of Texas for any penalties for late payments, failures to report in a timely manner, and the like, related to the Us[e Tax Receipts. 3.02 Grant Payment. Grantor shall pay the Grant for the applicable Grant Period within forty-five (45) days after receipt of a Use Tax Certificate from Company following the end of each Grant Period, pursuant to Section 4.01. Company shall submit Use Tax Certificates to Grantor within thirty (30) days following the end of the applicable Grant Period, beginning with the first Grant Period. For illustration purposes, assume the first Grant Period begins on March 1, 2017 and continues through and includes June 30, 2017. Company would submit a Use Tax Certificate to Grantor for the first Grant Period by July 30, 2017 and Grantor would pay the first Grant within forty-five (45) days after receipt of the Use Tax Certificate and after receiving all of the net Use Tax Receipts within the Grant Period. Further assume that the Use Tax Receipts for the first Grant Period equal Five Thousand Dollars ($5,000.00), then the amount of the first Grant would be Three Thousand Two Hundred Dollars ($3,200.00). 3.03 Amended Returns and Audits. In the event the Company files an amended use tax return, or report, or if additional use tax is due and owing, as a result of an audit conducted by the State of Texas that increases the Use Tax Receipts for a previous period covered within the term of this Agreement, the Grant payment for the Grant Period immediately following such State approved amendment shall be adjusted accordingly, provided the Grantor must have received the Use Tax Receipts attributed to such adjustment. As a condition precedent to payment of such adjustment, Company shall provide Grantor with a copy of such amended use tax report, tax return or audit adjustment, and the approval thereof by the State of Texas. 3.04 Refunds. In the event the State of Texas determines that the City erroneously received Use Tax Receipts, or that the amount of use tax paid to the City exceeds the correct amount of use tax for a previous Grant paid to the Company, the Company shall, within thirty (30) days after receipt of notification thereof from the City specifying the amount by which such Grant exceeded the amount to which the Company was entitled pursuant to such State of Texas determination, pay such amount to the Grantor. The Grantor may at its option adjust the Grant payment for the Grant Period immediately following such State of Texas determination to deduct there from the amount of the overpayment. As a condition precedent to payment of such refund, the City shall provide Company with a copy of such determination by the State of Texas. CHAPTER 380 GRANT AGREEMENT BY AND BETWEEN THE CITY OF ANNA AND BLOOMFIELD HOMES, L.P. - PAGE 4 ARTICLE IV DOCUMENTATION SUPPORTING THE ECONOMIC DEVELOPMENT GRANT The conditions contained in this Article IV are conditions precedent to the Grantor's obligation to make any Grant payment. 4.01 Use Tax Certificate. During the term of this Agreement, the Company shall within thirty (30) days after the end of each Grant Period, provide the Grantor with a Use Tax Certificate relating to Use Tax Receipts paid during the Grant Period. The Grantor shall have no duty to calculate the Use Tax Receipts or determine Company's entitlement to any Grant for a Grant Period, or pay any Grant during the term of this Agreement until such time as Company has provided the Grantor a Use Tax Certificate for such Grant Period and the Grantor has received the actual Use Tax Receipts from the State of Texas attributable to such calendar months within the Grant Period. Company shall provide such additional documentation as may be reasonably requested by Grantor to evidence, support and establish the use tax paid directly to the State of Texas pursuant to Company's Direct Payment Permit. The Use Tax Certificate for each Grant Period shall at a minimum contain, include or be accompanied by the following: a. A copy of all Texas Direct Payment Permit and self -assessment use tax returns and reports during the applicable Grant Period, use tax audit assessments or credits, including amended use tax returns or reports, filed by the Company during the Grant Period showing use tax paid directly to the State of Texas related to Company's operations for the Grant Period; and b. Information concerning any refund or credit received by the Company of use tax paid by the Company which has previously been reported by the Company as use tax paid for a previous Grant Period within the term of this Agreement. Company will provide to Grantor the Use Tax Certificates from time to time pursuant to the terms of the Agreement, which are confidential ("Confidential Information") and, except as otherwise provided herein, may not be disclosed to a third party without the Company's consent. To the extent that any disclosure of the Confidential Information may be required by law, Grantor will use reasonable efforts to inform Company of the request in sufficient time for Company to assert any objection it may have to such disclosure to an appropriate judicial or administrative body; 4.02 Grantor must have received a Use Tax Certificate for the months within the Grant Period for which payment of a Grant is requested, and Grantor must have received the actual Use Tax Receipts for all calendar months within the Grant Period. 4.03 The Company intends to issue its Texas Direct Payment Permit to specific suppliers or vendors that provide large quantities of building materials or other tangible personal property. CHAPTER 380 GRANT AGREEMENT BY AND BETWEEN THE CITY OF ANNA AND BLOOMFIELD HOMES, L.P. - PAGE 5 4.04 The Company shall provide the Grantor with a true and correct copy of its Texas Direct Payment Permit, which permit shall be kept in full force and effect throughout the term of the Agreement. 4.05 Company or the City shall not have an uncured material breach or default of this Agreement. ARTICLE V TERMINATION 5.01 This Agreement may be terminated upon any one of the following: (a) by mutual written agreement of the parties; (b) by Grantor or Company, respectively, if the other party defaults or breaches any of the terms or conditions of this Agreement in any material respect and such default or breach is not cured within thirty (30) days after written notice thereof by the Grantor or Company, as the case may be; (c) by Grantor, if any Impositions owed to the Grantor or the State of Texas by Company shall have become delinquent (provided, however, Company retains the right to timely and properly protest and contest any such Impositions); (d) by Grantor, if Company suffers an Event of Bankruptcy or Insolvency; (e) by Grantor or Company, respectively, if any subsequent Federal or State legislation or any decision of a court of competent jurisdiction declares or renders this Agreement invalid, illegal or unenforceable; or (f) by Company, if the City does not pay the applicable Grant amount within 45 days of receipt of the Use Tax Receipts as required herein covered by a valid Use Tax Certificate issued by Company or fails to cure this breach within an additional 30 days and so long as the Company is not in default, or; (g) expiration of the term, or any subsequent renewal of the term. The rights, responsibilities and liabilities of the parties under this Agreement shall be extinguished upon the termination of this Agreement except for any rights, responsibilities and/or liabilities that accrued prior to such termination. CHAPTER 380 GRANT AGREEMENT BY AND BETWEEN THE CITY OF ANNA AND BLOOMFIELD HOMES, L.P. - PAGE 6 ARTICLE VI MISCELLANEOUS 6.01 Binding Agreement. The terms and conditions of this Agreement are binding upon the parties to this Agreement and their respective successors and permitted assigns. This Agreement may not be assigned without the express written consent of Grantor, which consent shall not be unreasonably withheld or delayed. 6.02 Limitation on Liability. It is understood and agreed between the parties that the Company and Grantor, in satisfying the conditions of this Agreement, have acted independently, and Grantor assumes no responsibilities or liabilities to third parties in connection with these actions. The Company agrees to defend, indemnify and hold harmless the Grantor from all such claims, suits, and causes of actions, liabilities and expenses, including reasonable attorney's fees, of any nature whatsoever by a third party arising out of the Company's performance of the conditions under this Agreement. 6.03 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 or enterprise between the parties. 6.04 Authorization. Each party represents that it has full capacity and authority to grant all rights and assume all obligations that are granted and assumed under this Agreement. 6.05 Notice. Any notice required or permitted to be delivered hereunder shall be deemed received three (3) days thereafter sent by United States Mail, postage prepaid, certified mail, return receipt requested, addressed to the party at the address set forth below (or such other address as such party may subsequently designate in writing) or on the day actually received if sent by courier or otherwise hand delivered. CHAPTER 380 GRANT AGREEMENT BY AND BETWEEN THE CITY OF ANNA AND BLOOMFIELD HOMES, L.P. - PAGE 7 If intended for City, to: Philip Sanders Anna City Manager I I 1 North Powell Parkway Anna, TX 75409 With a copy to: Wolfe, Tidwell & McCoy, LLP Attn: Clark McCoy 2591 Dallas Parkway, Suite 300 Frisco, TX 75034 If intended for the Company: Attn: Accounting Department Don Dykstra President Bloomfield Homes, L.P. 1050 East Hwy 114, Ste. 210 Southlake, TX 76092 With a copy to: Attn: 6.06 Entire Agreement. This Agreement is the entire Agreement between the parties with respect to the subject matter covered in this Agreement. There is no other collateral oral or written Agreement between the parties that in any manner relates to the subject matter of this Agreement. 6.07 Governing Law. The laws of the State of Texas shall govern the Agreement and this Agreement is fully performable in Anna, Collin County, Texas with exclusive venue for any action concerning this Agreement being in a court of competent jurisdiction in Collin County, Texas. 6.08 Amendment. This Agreement may only be amended by the mutual written agreement of the parties. 6.09 Legal Construction. In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, CHAPTER 380 GRANT AGREEMENT BY AND BETWEEN THE CITY OF ANNA AND BLOOMFIELD HOMES, L.P. - PAGE 8 such invalidity, illegality, or unenforceability shall not affect other provisions, and it is the intention of the parties to this Agreement that in lieu of each provision that is found to be illegal, invalid, or unenforceable, a provision shall be added to this Agreement which is legal, valid and enforceable and is as similar in terms as possible to the provision found to be illegal, invalid or unenforceable. 6.10 Recitals. The recitals to this Agreement are incorporated herein. 6.11 Counterparts. This Agreement may be executed in counterparts. Each of the counterparts shall be deemed an original instrument, but all of the counterparts shall constitute one and the same instrument and any such counterparts shall be deemed to be incorporated herein. 6.12 Survival of Covenants. Any of the representations, warranties, covenants, and obligations of the parties, as well as any rights and benefits of the parties, pertaining to a period of time following the termination of this Agreement shall survive termination. 6.13 Sovereign ImmunitX. The parties agree that the City has not waived its sovereign immunity by entering into and performing its obligations under this Agreement. 6.14 Dispute Resolution. Any controversy or claim arising from or relating to this Agreement or a breach thereof shall be subject to non -binding mediation, as a condition precedent to the institution of legal or equitable proceedings by any party unless the institution of such legal or equitable proceeding is necessary to avoid the running of an applicable statute of limitation. The parties shall endeavor to resolve their claims by mediation. Grantor and Company shall share the costs of mediation equally. The mediation shall be held in Anna, Texas, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof, subject to approval of the Anna City Council. [SIGNATURE PAGES FOLLOW) CHAPTER 380 GRANT AGREEMENT BY AND BETWEEN THE CITY OF ANNA AND BLOOMFIELD HOMES, L.P. - PAGE 9 EXECUTED as of the ATTEST: Carrie L. Smith, City Secretary EXECUTED as of the day of 12017. THE CITY OF ANNA, TEXAS Philip Sanders, City Manager day of 92017. Bloomfield Homes, L.P. a Texas Limited Partnership By: Bloomfield Properties, Inc. a Texas Corporation, its General Partner By: Name: Don Dykstra Title: President CHAPTER 380 GRANT AGREEMENT BY AND BETWEEN THE CITY OF ANNA AND BLOOMFIELD HOMES, L.P. - PAGE 10 ACKNOWLEDGMENTS STATE OF TEXAS § CITY OF ANNA § This instrument was acknowledged before me on the day of , 2017 by Philip Sanders, City Manager of The City of Anna, Texas, on behalf of said city. Name: Notary Public, State of Texas My commission expires: STATE OF TEXAS § CITY OF SOUTHLAKE § This instrument was acknowledged before me on the day of , 2017 by Don Dykstra, President of Bloomfield Properties, Inc., General Partner of Bloomfield Homes, L.P., a limited partnership, on behalf of said limited partnership. Name: Notary Public - State of Texas CHAPTER 380 GRANT AGREEMENT BY AND BETWEEN THE CITY OF ANNA AND BLOOMFIELD HOMES, L.P. - PAGE 11 i Item No. 11. City Council Agenda Staff Report Meeting Date: 2/28/2017 YOUR} HOMETOWN AGENDAITEM: Consider/Discuss/Action regarding a Resolution authorizing the City Manager to execute a contract with Axis Construction, L.P. for the Water Disinfection System Upgrade Project. (Joseph Johnson) SUMMARY: Council previously granted authorization to bid the Water Disinfection System Upgrade Project. The project includes the purchase, installation and programming of equipment necessary in order to begin using chloramination for water disinfection. Chloramines are a blend of chlorine and a liquid ammonium solution. This method is approved by the Texas Commission on Environmental Quality (TCEQ) and reduces chlorine odor, results in a more stable and manageable disinfection process, and reduces disinfection byproducts. On December 29, 2016 at 2:30 PM, bids were opened for this project. Two bids were received with Axis Construction, L.P. having the low base bid of $593,400. Our engineering consultant has reviewed the bids received, checked references, assessed the contractor's ability to perform the project and has subsequently recommended that the City accept the base bid from Axis Construction, L.P. The City has also negotiated a deductive change order which would reduce the contract by $73,500. The deductive change order essentially lowers the cost by using existing equipment at each of the sites. If approved, the City Manager will execute the contract and the change order simultaneously resulting in a contract amount of $519,900. Funding is available for the project using funds allocated for that purpose in the 2014 Certificate of Obligation. STAFF RECOMMENDATION: Staff recommends approval of the Resolution authorizing the City Manager to execute a contract with Axis Construction, L.P. for the Water Disinfection System Upgrade Project. ATTACHMENTS: Description Upload Date Type Resolution 2/23/2017 Resolution Contract 2/23/2017 Exhibit Bid Tabulation 2/23/2017 Exhibit Bid Award Recommendation Letter 2/23/2017 Exhibit Draft Change Order 2/23/2017 Exhibit 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 AXIS CONSTRUCTION, L.P. FOR THE WATER DISINFECTION SYSTEM UPGRADE PROJECT. WHEREAS, the Water Disinfection System Upgrade Project (the "Project") is necessary in order to upgrade the City's water disinfection process to chloramination; and, WHEREAS, the City Council of the City of Anna, Texas (the City Council) has previously authorized the City Manager to solicit competitive bids for the Project; and, WHEREAS, the City of Anna, having solicited competitive bids in accordance with State law, opened said bids on December 29, 2016 at 2:30 P.M.; and, WHEREAS, Axis Construction, L.P. submitted the low base bid having submitted a bid of $593,400.00; and, WHEREAS, the City of Anna's consulting engineer, having reviewed said bids and bidder's qualifications has recommended award of the contract to Axis Construction, L.P.; and, WHEREAS, staff has negotiated a deductive change order in the amount of $73,500 which will be executed simultaneously with the contract; and, WHEREAS, there are funds available for this Project designated for this purpose in the 2014 Certificate of Obligation; and, WHEREAS, the City Council desires to authorize the City Manager to award the Project bid to and execute a contract with Axis Construction, L.P. 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 with Axis Construction, L.P. 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 execute all documents and to take all other actions necessary to finalize, act under, and enforce the Agreement. RESOLUTION: Water Disinfection System Upgrade Bid Award PAGE I OF 2 2/28/17 PASSED AND APPROVED by the City Council of the City of Anna, Texas, on this 28th day of February 2017. ATTEST: APPROVED: City Secretary Carrie L. Smith Mayor Mike Crist RESOLUTION: Water Disinfection System Upgrade Bid Award PAGE 2 OF 2 2/28/17 BIRKHOFF, HENDRICKS & CARTER, L.L.P. PROFESSIONAL ENGINEERS 11910 Greenville Ave., Suite 600 Dallas, Texas 75243 JOHN W. BIRKHOFF, P.E. GARY C. HENDRICKS, P.E. JOE R. CARTER, P.E MATT HICKEY, PE, ANDREW MATH, JR„ P.E. JOSEPH T. GRAJEWSKI, III, P.E. DEREK B. CHANEY, P.E. CRAIG M. KERKHOFF, PE. Axis Construction, LP P.O. Box 77916 Fort Worth, Texas 76177 Re: City of Anna, Texas Water Disinfection System Upgrade Gentlemen: Phone (214) 361-7900 February 23, 2017 www.bhcllp.com The City of Anna's City Council, at their regularly scheduled meeting on ; 2017, accepted your proposal for the Water Disinfection System Upgrade project and awarded you a contract in the amount of $593,400.00 for Site Nos. 1, 2, 3 and 4. We are enclosing for your execution, six (6) copies of the following documents: • Qualification Statement of Bidders • Qualification Statement of Bidder's Surety • Vendors Compliance to State Law • Conflict of Interest Questionnaire • Affidavit Against Prohibited Acts • Proposal and Bid Form • Contract Agreement • Bidder's Bond • Performance Bond • Payment Bond • Maintenance Bond Upon completion, please return all copies to our office for further execution by the Owner. Also please provide a certificate of insurance in accordance with Item 1.04 — Limitation of Liability, Indemnification & Insurance of the Supplementary General Provisions (with the City of Anna as insured and the Engineer, their agents and employees as additional insureds). We are also enclosing one (1) set of plans and specifications for your use. If you have questions concerning any of this information, please give me a call. Sincerely, Craig M. Kerkhoff, P.E. Enclosures cc: TBPE Firm 526 ACEC Wellness Firm ---* Better Decisions - Better Designs TBPLS Firm 100318-00 j:lclericaAanna\2015-112 water disinfection sys upgraddletters%contracts to axis,docx QUALIFICATION STATEMENT OF BIDDERS SUBMITTED TO: City of Anna Reviewed by: Date Received: CONTRACTOR Axis C �nst -tiction LP -- CIRCLE ONE: ❑ Sole Proprietor ®Partnershi p ❑Corporation El Joint Venture NAME: Axis Construction, LP ADDRESS: P.O. Box 77916 CITY: Fort Worth, TX 76177 PHONE 817 439-0709 PRINCIPAL PLACE OF BUSINESS: Tarrant Texas COUNTY STATE PARTNER: Axis Service Compan ADDRESS: P.O. Box 77916 CITY: Fort Worth. TX 76177 PHONE: _ (817) 439-0709 PRINCIPAL PLACE OF BUSINESS: Tarrant Texas COUNTY STATE IF THE CONTRACTOR IS A CORPORATION, FILL OUT THE FOLLOWING: STATE OF INCORPORATION: LOCATION OF PRINCIPAL OFFICE: CONTACT PERSONS AT OFFICE: Texas Haslet, TX oe Swinnea PERSON EXECUTING CONTRACTS ON BEHALF OF CORPORATION: NAME: Joseph Swinnea ADDRESS: P.O. Box 77916 TITLE: Limited Partner Fort Worth TX 76177 PHONE: 817 439-0709 CITY STATE ZIP NAMES OF OFFICERS: (IF APPLICABLE) N/A LIST NUMBER OF EMPLOYEES WORKING FOR CONTRACTOR: LIST ALL EQUIPMENT TO BE USED ON THIS PROJECT: (PLEASE USEAnACHmmr) See AttachmentA NUMBER OF YEARS IN BUSINESS AS A GENERAL CONTRACTOR ON PROJECTS SIMILAR TO THIS PROJECT: 14+ TYPE(S) OF WORK DONE: (CIRCLE) ❑ Asphalt Paving ® Concrete Paving ® Misc. Concrete ❑ Channel Lining ❑X Pump Stations ® Storm Sewer © Earth Work ❑ Bridge Work ® Demolition ❑ Landscaping jAdericaIlam MIS-t 12 water disinfection sys LoWedeAV8m tedr-gMd0&quaYk2Wn sfaWrwA doe ❑X Water & Sanitary Sewer Lines ❑X Steel Erection ❑X Painting ❑ Fog Seal ❑ Chip Seal - 9 - Qua/ification Statement Concrete Structures: Inlets, Box Culverts, Junction Boxes Other: N/A COMMENTS: Electrical Work to be by H&H Electrical Contractor, SCADA Work and Equipment to be furnished by RLC. Concrete will be furnished by Hope Concrete out of Sherman, TX. LIST RECENTLY COMPLETED PROJECTS OF THE TYPE OF WORK QUALIFYING FOR OR SIMILAR WORK, PLUS THE FOLLOWING INFORMATION FOR EACH PROJECT: PROJECT: City of Cedar Hill -Water Quality & Mixing Systems Improvements for Parkerville & US 67 E OWNER/ENGINEER: City of Cedar Hill/Deltatek _ YEAR BUILT: 2014 CONTRACT PRICE: $494,950 CONTACT PERSON: James Kuykendall PHONE: (972) 291-5126 PROJECT: City of Duncanville -Water Quality Improvements at River Oaks 1.OMG EST OWNER/ENGINEER: City of Duncanville/Deltatek YEAR BUILT: 2013 CONTRACT PRICE: $335,194 CONTACT PERSON: John Fields PHONE: (214) 770-7647 PROJECT: City of Anna, TX - "Emergency" Installation of Owner Supplied Chlorination Equipment OWNER/ENGINEER: City of Anna / In -House Special Project YEAR BUILT: 2015 CONTRACT PRICE: $7,160 CONTACT PERSON: Joseph Johnson PHONE: (469) 712-9574 PROJECT: City of Haslet, TX -Furnish & Install Tank Mixing System at 1,000,000 GalloHarmon Road EST OWNER/ENGINEER: City of Haslet/ In -House Special Project { YEAR BUILT: 2016 CONTRACT PRICE: $21,380 CONTACT PERSON: James Tucker PHONE: (817) 829-4415 (USE ATTACHMENTS IF NECESSARI9 LIST INCOMPLETE PROJECTS, PLUS THE FOLLOWING INFORMATION FOR EACH PROJECT LISTED: PROJECT: City of Plano-Parkwood Elevated Tank Painting Project No. 6655; Gen. Contractor-J.R. Stelzer Company OWNER/ENGINEER: City of Plano/Birkhoff, Hendricks & Carter, LLC T PERCENT COMPLETE: 10% CONTRACT PRICE: $220,230 CONTACT PERSON: James Stelzer PHONE: (402) 770-0726 PROJECT: City of Waco -Zebra Mussel Chlorination Piping OWNER/ENGINEER: City of Waco / In -House Special Project PERCENT COMPLETE: 15% CONTRACT PRICE: $35,260 CONTACT PERSON: David Kerr PHONE: (254) 709-0053 r%cWcW%wnan 015-11z waWdairdecbon sys k"mda%specsitedrapevio5-WMff 8bM smemw*doc -10 - Qualification Statement PROJECT: Mt. Peak SUD Woodbine Well at Water Plant No.1; Gen. Contractor-THI Water Well OWNER/ENGINEER: Mt. Peak SUD/Childress Engineers PERCENT COMPLETE: 10% CONTRACT PRICE: $55,360 CONTACT PERSON: Kent Meyerhauffer PHONE: (817) 223-6874 PROJECT: Town of Flower Mound-2.0 MG Brutan Orand EST Rehabilitation; Gen. Contractor-Utilily Service Co. OWNER/ENGINEER: Town of Flower Mound/Kimley-Horn PERCENT COMPLETE: 5% CONTRACT PRICE: $49,200 CONTACT PERSON: linimy Asher PHONE: (2811 255-3541 (USE ATTACHMENTS IF NECESSARI7 IF COMPANY IS UNDER NEW MANAGEMENT, PLEASE LIST NAMES OF STAFF AND QUALIFICATION AND/OR EXPERIENCE OF SAID PERSONS. (PLEASE USEATTACHMENT.) N/A HAVE YOU OR ANY PRESENT PARTNER(S) OR OFFICER(S) FAILED TO COMPLETE A CONTRACT? No IF SO, NAME OF OWNER AND/OR SURETY: CONTACT PERSON: PHONE: ARE THERE ANY UNSATISFIED DEMANDS UPON YOU AS TO YOUR ACCOUNTS PAYABLE? No IF SO, GIVE NAMES, AMOUNTS, AND EXPLANATIONS: BANK REFERENCE: Bank: Southstar Bank Address: 101 Gassaway City: Lott State: TX Zip: 76656 Contact Person: Billy Fleming Phone: (254) 422-1500 - - '- MUNICIPALITY REFERENCE: City: City of Rockwall, TX Contact Person: Jerry Strouse _ Position Address: 385 S. Goliad, Rockwall, TX 75087 Phone: OTHER CREDIT REFERENCES: Name: City Concrete Address: 90776 E. Hwv. 114 Rhome, TX 76078 Phone: 817 636-2690 Water Supt. (972) 771-7730 Name: Sunbelt Rentals, Attu Kathy Address: P.O. Box 409211 Atlanta, GA 30384 Phone: (877) 223-7368 ext. 4169 } %d&1cellanne12015412 water Osmbchan sys uprpede iecebw steternentdoc - 11 - 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 furnish such i formation to you. Signed: Title: Limited Partner Company: tAxo construction, LP Date: December 29, 2016 COPY TO LOCAL UNDERWRITING OFFICE OF PROPOSED SURETY Name: Bancorp South Insurance Services, Inc. Phone: (903) 593-6468 Address: 3301 Golden Road #400 City: Tyler rkiencal%anni=15-112 water disinfection eys Wrade"ecelted"peM q Aftaban Memenldoc - 12 - State: Tx Qualifica8on Statement Attachment A: List of All Equipment to be used on this Project Bidder: Axis Construction, LP Phone (817) 439-0709 Project: City of Anna, TX Water Disinfection System Upgrade Equipment to be used on Project: 1) Bobcat T-220 Skid Loader 2) 10,000 LB Track Excavator QUALIFICATION STATEMENT OF BIDDER'S SURETY SUBMITTED TO: City of Anna BIDDER: 41'.� ,. Lei ADDRESS: f?(a. 6W9�Gn i�r PHONE: 8/7-113-7_ 10 1. Has this surety furnished contract bonds on contracts now complete? Yes 2. Has this surety furnished contract bonds on contracts now incomplete? Yes 3. What is the maximum bonding capacity of this Contractor? $600,000 4. Is the current financial information on this Contractor satisfactory? Yes 5. Does information obtained indicate accounts are paid when due? Yes If not, give detalis: 6. Is it your opinion that the bidder has sufficient experience and financial resources to satisfactory perform the contract? Yes 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? yes REMARKS: SURETY: Rli Insurance Company SIGNED: YLG TITLE: Attorney in Fact ADDRESS: P.O. Box 631202 CITY: Nacogdoches STATE i PHONE: 936-564-0221 (IN DUPLICATE) TX ZIP: 75963 PREVAILING WAGE RATES FOR MUNICIPAL CONSTRUCTION IN ANNA, TEXAS General Decision: TX150028 TX28 Date: 01 /02/2015 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 http://www.gpo.gov/davisbacon/tx.htmi jAclerical\anna\2015-112 water disinfection sys upgrade\specs\contract\06-wage rates docx - 1 4 - Prevailing wage Bates Page 1 of 4 General Decision Number: TX160028 09/16/2016 TX28 Superseded General Decision Number: TX20130028 State: Texas Construction Type: Heavy Counties: Collin, Dallas, Denton, Ellis, Kaufman and Rockwall Counties in Texas. Water and Sewer Lines/Utilities (Including Related Tunneling Where the Tunnel is 48" or Less in Diameter) Note: Under Executive Order (EO) 13658, an hourly minimum wage of $10.15 for calendar year 2016 applies to all contracts subject to the Davis -Bacon Act for which the solicitation was issued on or after January 1, 2015. If this contract is covered by the EO, the contractor must pay all workers in any classification listed on this wage determination at least $10.15 (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 2016. The EO minimum wage rate will be adjusted annually. Additional information on contractor requirements and worker protections under the EO is available at www.dol.gov/whd/govcontracts. Modification Number 0 1 2 3 Publication Date 01/08/2016 03/18/2016 05/06/2016 09/16/2016 * PLUM0100-002 07/01/2016 Rates Plumbers and Pipefitters......... $ 27.11 SUTX1991-004 09/23/1991 Rates Laborers: Common......................$ 7.25 Utility .....................$ 7.467 Pipelayer ........................$ 7.828 Power equipment operators: Backhoe.....................$ 10.804 Crane .......................$ 10.942 Front End Loader ......... ...$ 9.163 Tunneling Machine (4811 or less) .......................$ 9.163 TRUCK DRIVER ..................... $ 8.528 Fringes 10.02 Fringes http://www.wdol.gov/wdol/scafiles/davisbacon/TX28.dvb'?v=3 12/6/2016 jAcledcal\anna\2015-112 water disinfection sys upgrade\specs\contract\06-wage rates docx -15- Prevailing Wage Rates Page 2 of 4 WELDERS - Receive rate prescribed for craft performing operation to which welding is incidental. Unlisted classifications needed for work not included within the scope of the classifications listed may be added after award only as provided in the labor standards contract clauses (29CFR 5.5 (a) (1) (ii)) . The body of each wage determination lists the classification and wage rates that have been found to be prevailing for the cited type(s) of construction in the area covered by the wage determination. The classifications are listed in alphabetical order of "identifiers" that indicate whether the particular rate is a union rate (current union negotiated rate for local), a survey rate (weighted average rate) or a union average rate (weighted union average rate). Union Rate Identifiers A four letter classification abbreviation identifier enclosed in dotted lines beginning with characters other than "SU" or "UAVG" denotes that the union classification and rate were prevailing for that classification in the survey. Example: PLUM0198-005 07/01/2014. PLUM is an abbreviation identifier of the union which prevailed in the survey for this classification, which in this example would be Plumbers. 0198 indicates the local union number or district council number where applicable, i.e., Plumbers Local 0198. The next number, 005 in the example, is an internal number used in processing the wage determination. 07/01/2014 is the effective date of the most current negotiated rate, which in this example is July 1, 2014. Union prevailing wage rates are updated to reflect all rate changes in the collective bargaining agreement (CBA) governing this classification and rate. Survey Rate Identifiers Classifications listed under the rrSUrr 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 http://www.wdol.gov/wdol/scafiles/davisbacon/TX28.dvb?v=3 12/6/2016 j:\clerical\anna\2015-112 water disinfection sys upgrade\specs\contract\06-wage rates docx - 1 6 - Prevailing wage Rates Page 3 of 4 wage determination. 5/13/2014 indicates the survey completion date for the classifications and rates under that identifier. Survey wage rates are not updated and remain in effect until a new survey is conducted. Union Average Rate Identifiers Classification(s) listed under the UAVG identifier indicate that no single majority rate prevailed for those classifications; however, 100% of the data reported for the classifications was union data. EXAMPLE: UAVG-OH-0010 08/29/2014. UAVG indicates that the rate is a weighted union average rate. OH indicates the state. The next number, 0010 in the example, is an internal number used in producing the wage determination. OB/29/2014 indicates the survey completion date for the classifications and rates under that identifier. A UAVG rate will be updated once a year, usually in January of each year, to reflect a weighted average of the current negotiated/CBA rate of the union locals from which the rate is based. WAGE DETERMINATION APPEALS PROCESS 1.) Has there been an initial decision in the matter? This can be: * an existing published wage determination * a survey underlying a wage determination * a Wage and Hour Division letter setting forth a position on a wage determination matter * a conformance (additional classification and rate) ruling On survey related matters, initial contact, including requests for summaries of surveys, should be with the Wage and Hour Regional Office for the area in which the survey was conducted because those Regional Offices have responsibility for the Davis -Bacon survey program. If the response from this initial contact is not satisfactory, then the process described in 2.) and 3.) should be followed. With regard to any other matter not yet ripe for the formal process described here, initial contact should be with the Branch of Construction Wage Determinations. Write to: Branch of Construction Wage Determinations Wage and Hour Division U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 2.) If the answer to the question in 1.) is yes, then an interested party (those affected by the action) can request review and reconsideration from the Wage and Hour Administrator (See 29 CFR Part 1.8 and 29 CFR Part 7). Write to: http://www.wdol.gov/wdol/scaftles/davisbacon/TX28.dvb?v=3 12/6/2016 j:\clerical\anna\2015-112 water disinfection sys upgrade\specs\contract\06-wage rates docx - 1 7 - Prevailing wage Rates Page 4 of 4 Wage and Hour Administrator U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 The request should be accompanied by a full statement of the interested party's position and by any information (wage payment data, project description, area practice material, etc.) that the requestor considers relevant to the issue. 3.) If the decision of the Administrator is not favorable, an interested party may appeal directly to the Administrative Review Board (formerly the Wage Appeals Board). Write to: Administrative Review Board U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 4.) All decisions by the Administrative Review Board are final. END OF GENERAL DECISION http://www.wdol.gov/wdol/scafiles/davisbacon/TX28.dvb' v=3 12/6/2016 jAclerical\anna\2015-112 water disinfection sys upgrade\specs\contract\06-wage rates.docx - 1 8 - 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. ❑x Our principal place of business or corporate office is in the State of Texas. BIDDER/OFFEROR: Axis Construction, LP Company: Address: P.O. Box 77916 Fort Worth TX City State Phone: (817) 439-0709 76177 Zip By: Joseph Swinnea Signature: Title: Limited Partner N. print) THIS FORM MUST BE RETURNED WITH YOUR QUOTATION i:+a a 015-11z waW deinftalon sye +specsu9c,}sp,d47-y coVrWM.aoc - 19 - Vendors Compliance to State Law CONFLICT OF INTEREST QUESTIONNAIRE j:\clerical\anna\2015-112 water disinfection sys upgrade\specs\contract\08-conflict of interest.doc - 20 - 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 andthe person meets requirements undersection 176.006(a). By law this questionnaire must be filed with the records administrator of the local governmental entity not later than the 7th business day after the date the person becomes 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. 1 Name of person who has a business relationship with local governmental entity. N/A z ❑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. N/A 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? aYes ® 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? OYes ® No C Is the filer of this questionnaire employed by a corporation or other business entity vvith respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? Yes AI 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 j:\clerical\anna\2015-112 water disinfection sys upgrade\specs\contract\09-conflict of interest.doc - 21 - 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. ATTEST (if corporation) December 29, 2016 Date December 29, 2016 Date J:%aew.WUmaW 5112 weW 6alnre0on sys upgradetsPDMUea-spee%09aMdeviLdoc - 22 - Affidavit Against Prohibited Acts PROPOSAL AND BID FORM jAclerical\anna\2015-112 water disinfection sys upgrade\specs\contract\10-p&bs-1 doe - 23 - Proposal and B►d Form Proposal of: PROPOSAL AND BID FORM Axis Construction, LP Address: P.O. Box 779161Fort Worth, Texas 76177 (hereinafter called "Bidder"). To the Honorable Mayor and City Council City of Anna, Texas (hereinafter called "Owner") Deadline for Submission of Sealed Competitive Bid: 2:30 p.m., Thursday, December 29, 2016 Date of Sealed Bid Opening: 2:30 p.m., Thursday, December 29, 2016 Gentlemen: The Bidder, in compliance with your invitation for bids for the construction of: WATER DISINFECTION SYSTEM UPGRADE 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 One Hundred Twenty (120) 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: j1clerical\anna\2015-112 water disinfection sys upgrade\specs\contract\10-p&bs-1 doc -24- Proposal 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:\clericahanna\2015-112 water disinfection sys upgrade\specs\contract\10-p&bs-1 doc -25- 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. j:Werica1\anna\2015-112 water disinfection sys upgrade\specs\contract\10-p&bs-1 doc - 26 - Proposal and Bid Form CITY OF ANNA, TEXAS Water Disinfection System Upgrade BID SCHEDULE SITE NO. 1 - WEST CROSSING Item Estimated Price in Extended No. Quantity Unit Descri tion and Price in Words Figures Amount Install Water Disinfection System, including Chlorine & Ammonia Systems, all Piping and Control Valves. Furnish & Install Resin Sheds, with Vents & Fans, Concrete Walks & Pads, Mounting System, Electrical & Plumbing required to complete 101 1 L.S. the Installation and Make Operational $ 88,700.00 $ 88,700.00 complete in place, the sum of Eighty -Eight Thousand, Seven Hundred Dollars and No Cents per Lump Sum For Furnishing Regal Gas Chlorination System, Switchover Unit, 100-PPD Maximum Capacity, 102 1 L.S. Model216 $ 12,650.00 $ 12,650.00 complete in place, the sum of Twelve Thousand, Six Hundred Fifty Dollars Bid Allowance and No Cents per Lump Sum For Furnishing Prominent Las Feed System (West 103 1 L.S. Crossing - Ground Wells) $ 9,550.00 $ 9,550.00 complete in place, the sum of Nine Thousand, Five Hundred Fifty Dollars Bid Allowance and No Cents per Lump Sum For Furnishing Regal Gas Chlorination System, Switchover Unit, 100 PPD Maximum Capacity, 104 1 L.S. Model216 $ 18,300.00 $ 18,300.00 complete in place, the sum of Eighteen Thousand, Three Hundred Bid Allowance Dollars and No Cents per Lump Sum For Furnishing Prominent Las Feed System (West 105 1 L.S. Crossing - Surface Water) $ 21,700.00 $ 21,700.00 complete in place, the sum of Twenty -One Thousand, Seven Hundred Dollars Bid Allowance and No Cents per Lump Sum AMOUNT BID: SITE NO. 1 -WEST CROSSING Items 101 Through 105 $ 150,900. 00 �.4-A :MCAIA .2015 !12Wtv_ U ,.t_e op. S,,. U . mdc\s't ­41&[is_'! - 27 - Proposal and Bid Form SITE NO. 2 - SHERLEY Item Estimated I Price in Extended No. Quantity Unit Description and Price in Words Figures Amount Install Water Disinfection System, including Chlorine & Ammonia Systems, all Piping and Control Valves. Furnish & Install Resin Sheds, with Vents & Fans, Concrete Walks & Pads, Mounting System, Electrical & Plumbing required to complete 201 1 L.S. the Installation and Make Operational $ 106,100.00 $ 106,100.00 complete in place, the sum of One Hundred Six Thousand. One Hundred Dollars and No Cents er Lump Sum For Furnishing Regal Gas Chlorination System, Switchover Unit, 100 PPD Maximum Capacity, 202 1 L.S. Model216 $ 15,950.00 $ 15,950.00 complete in place, the sum of Fifteen Thousand, Nine Hundred Fifty Dollars Bid Allowance and No Cents er Lump Sum For Furnishing Prominent Las Feed System 203 1 L.S. (Sherley - Ground Wells) $ 9,600.00 $ 9,600.00 complete in place, the sum of Nine Thousand, Six Hundred Dollars Bid Allowance and No Cents per Lump Sum For Furnishing Regal Gas Chlorination System, Switchover Unit, 100 PPD Maximum Capacity, 204 1 L.S. Model216 $ 19,500.00 $ 19,500.00 complete in place, the sum of Nineteen Thousand, Five Hundred Dollars Bid Allowance and No Cents er Lum Sum For Furnishing Prominent Las Feed System 205 1 L.S. (Sherley - Surface Water) $ 21,700.00 $ 21,700.00 complete in place, the sum of Twenty -One Thousand, Seven Hundred Dollars Bid Allowance and No Cents per Lump Sum AMOUNT BID: SITE NO. 2 - SHERLEY Items 201 Through 205 $ 172,850.00 J:\CLERICAL\Anna\2015-112 Water Disinfection Sys Upgrade\Specs\Contract\l l a-P&BS-2 xlsx - 28 - Proposal and Bid Form SITE NO. 3 - POWELL Item Estimated Lunit Price in Extended No. Quantity Description and Price in Words Figures Amount Install Water Disinfection System, including Chlorine & Ammonia Systems, all Piping and Control Valves. Furnish & Install Resin Sheds, with Vents & Fans, Concrete Walks & Pads, Mounting System, Electrical & Plumbing required to complete 301 1 L.S. the Installation and Make Operational $ 99,000.00 $ 99,000.00 complete in place, the sum of Ninety -Nine Thousand Dollars and No Cents per Lump Sum For Furnishing Regal Gas Chlorination System, Switchover Unit, 100 PPD Maximum Capacity, 302 1 L.S. Model216 $ 12,950.00 $ 12,950.00 complete in place, the sum of Twelve Thousand, Nine Hundred Fifty Dollars Bid Allowance and No Cents per Lump Sum For Furnishing Prominent Las Feed System 303 1 L.S. (Ground Wells) $ 9,600.00 $ 9,600.00 complete in place, the sum of Nine Thousand, Six Hundred Dollars Bid Allowance and No Cents per Lump Sum For Furnishing Regal Gas Chlorination System, Switchover Unit, 100 PPD Maximum Capacity, 304 1 L.S. Model216 $ 19,500.00 $ 19,500.00 complete in place, the sum of Nineteen Thousand, Five Hundred Dollars Bid Allowance and No Cents per Lump Sum For Furnishing Prominent Las Feed System 305 1 L.S. (Surface Water) $ 21,700.00 $ 21,700.00 complete in place, the sum of Twenty -One Thousand, Seven Hundred Dollars Bid Allowance and No Cents per Lump Sum .AMOUNT BID: SITE NO. 3 - POWELL Items 301 Through 305 $ 162,750.00 JACLGR[CAL\Anna\2015-112 Water Disinfection Sys Upgrade\Specs\Contract\1 la-P&BS-2 xlsx - 29 - Proposal and Bid Form SITE NO. 4 - GRAYSON Item Estimated I Price in Extended No. Quantity Unit Description and Price in Words Figures Amount 11 Install Water Disinfection System, including Chlorine & Ammonia Systems, all Piping and Control Valves. Furnish & Install Resin Sheds, with Vents & Fans, Concrete Walks & Pads, Mounting System, Electrical & Plumbing required to complete 401 1 L.S. the Installation and Make Operational complete in place, the sum of Eighty -Two Thousand, One Hundred $ 82,100.00 1 $ 82,100.00 and No Cents per Lump Sum For Furnishing Regal Gas Chlorination System, Switchover Unit, 100 PPD Maximum Capacity, 402 1 L.S. Model216 $ 15,200.00 $ 15,200.00 complete in place, the sum of Fifteen Thousand, Two Hundred Dollars Bid Allowance and No Cents per Lump Sum 403 1 L.S. For Furnishing Prominent Las Feed System $ 9,600.00 $ 9,600.00 complete in place, the sum of Nine Thousand, Six Hundred Dollars Bid Allowance and No Cents er Lum Sum ,AMOUNT BID: SITE NO. 4 - GRAYSON (Items 401 Through 403) 1 $ 106,900. 01 JACLERICAL\Anna\2015-112 Water Disinfection Sys Upgrade\Specs\Contract\l la-P&6S-2 xlsx - 30 - Proposal and Bid Form CITY OF ANNA, TEXAS Water Disinfection System Upgrade SUMMARY OF BID AMOUNT BID: SITE NO. 1 -WEST CROSSING (Items 101 Through 105) AMOUNT BID: SITE NO. 2 - SHERLEY (Items 201 Through 205) AMOUNT BID: SITE NO. 3 - POWELL (Items 301 Through 305) AMOUNT BID: SITE NO. 4 - GRAYSON (Items 401 Through 403) 'AL AMOUNT OF BID (Sites No. 1 + No. 2 + No. 3 + No. 4) $ 150,900.00 $ 172, 850.00 $ 162,750.00 $ 106, 900.00 $ 593,400.00 NOTE: Refer to Pages 32 through 35 of the Proposal and Bid Form for the "Description of Items". „_,Q,.1,_ Waz D:sl, o�,�_ .y� � ��,_ ,.c. �. _ra,, � �a �:; 2, .4�X - 31 - Proposal and Bid Form CITY OF ANNA, TEXAS Water Disinfection System Upgrade SUMMARY OF BID AMOUNT BID: SITE NO. 1 -WEST CROSSING (Items 101 Through 105) $ 150,900.00 AMOUNT BID: SITE NO. 2 - SHERLEY (Items 201 Through 205) $ 172,850.00 AMOUNT BID: SITE NO. 3 - POWELL (Items 301 Through 305) AMOUNT BID: SITE NO. 4 - GRAYSON (Items 401 Through 403) $ 162,750.00 $ 106, 900.00 TOTAL AMOUNT OF BID (Sites No. 1 + No. 2 + No. 3 + No. 4) $ 593,400.00 NOTE: Refer to Pages 32 through 35 of the Proposal and Bid Form for the "Description of Items JACLERICAL\Anna\2015-112 Water Disinfection Sys 1Jpgrade\Specs\Contract\1la-P&BS-2 xisx - 31 - Proposal and Bid Form DESCRIPTION OF ITEMS SITE 1: WEST CROSSING -GROUND WELLS 102. For Furnishing Regal Gas Chlorination System, Switchover Unit, 100-PPD Maximum Capacity, Model 216. System to Include: (2) Vacuum Regulators with Built -In Switchover (1) Remote Meter Panel, 50-PPD (1) A-930 High/Low Ejector (1) Regal Smartvalve 7001 (Flow) (1) Scaletron Dual Digital Cylinder Scale, 2350 (1) 1" NPT Corp Stop Diffuser (1) 1" NPT 2-Way Solenoid Valve (1) 1' NPT, PVC Wye Strainer (2) 2.5" Liquid Filled Pressure Gauges, 0-160 (1) Regal Single Point Gas Detector 103. For Furnishing Prominent Las Feed System to Include: (1) GALA1605 NPE 200 UDC 13100 Pump (1) Single Wall Skid System (1) Drum Storage Containment (1) Corporation Stop (1) Eyewash Stand (1) Startup and Training West Crossing - Surface Water 104. For Furnishing Regal Gas Chlorination System, Switchover Unit, 100 PPD Maximum Capacity, Model 216. System to Include: (2) Vacuum Regulators with Built -In Switchover (1) Remote Meter Panel, 50 PPD (1) A-930 High/Low Ejector (1) Regal Smartvalve 7009 (Residual/Compound Loop) (1) Scaletron Dual Digital Cylinder Scale, 2350 (1) 1" NPT Corp Stop Diffuser (1) 1" NPT 2-Way Solenoid Valve (1) 1" NPT, PVC Wye Strainer (2) 2.5" Liquid Filled Pressure Gauges, 0-160 (1) Regal Single Point Gas Detector (1) Prominent DMTA Total Chlorine Analyzer 105. For Furnishing Prominent Las Feed System to Include: (1) GALA1605 NPE 200 UDC 13100 Pump (1) Single Wall Skid System (1) Drum Storage Containment (1) Corporation Stop (1) Prominent NH3 Analyzer jAclerical\anna\2015-112 water disinfection sys upgrade\specs\con tract\ 11 b-description of items docx - 32 - Proposal & Bid Form SITE 2: SHERLEY - GROUND WELLS 202. For Furnishing Regal Gas Chlorination System, Switchover Unit, 100 PPD Maximum Capacity, Model 216. System to Include: (2) Vacuum Regulators with Built -In Switchover (1) Remote Meter Panel, 50 PPD (1) A-930 High/Low Ejector (1) Regal Smartvalve 7001 (Flow) (1) Scaletron Dual Digital Cylinder Scale, 2350 (1) 1" NPT Corp Stop Diffuser (1) 1" NPT 2-Way Solenoid Valve (1) 1" NPT, PVC Wye Strainer (2) 2.5" Liquid Filled Pressure Gauges, 0-160 (1) Regal Single Point Gas Detector (1) SCBA with Wall Mount Enclosure 203. For Furnishing Prominent Las Feed System to Include: (1) GALA 1605 NPE 200 UDC 13100 Pump (1) Single Wall Skid System (1) Drum Storage Containment (1) Corporation Stop (1) Eyewash Stand (1) Startup and Training Sherley - Surface Water 204. For Furnishing Regal Gas Chlorination System, Switchover Unit, 100 PPD Maximum Capacity, Model 216. System to Include: (2) Vacuum Regulators with Built -In Switchover (1) Remote Meter Panel, 50 PPD (1) A-930 High/Low Ejector (1) Regal Smartvalve 7009 (Residual/Compound Loop) (1) Scaletron Dual Digital Cylinder Scale, 2350 (1) 1" NPT Corp Stop Diffuser (1) 1" NPT 2-Way Solenoid Valve (1) 1" NPT, PVC Wye Strainer (2) 2.5" Liquid Filled Pressure Gauges, 0-160 (1) Regal Single Point Gas Detector (1) Prominent DMTA Total Chlorine Analyzer 205. For Furnishing Prominent Las Feed System to Include: (1) GALA 1605 NPE 200 UDC 13100 Pump (1) Single Wall Skid System (1) Drum Storage Containment (1) Corporation Stop (1) Prominent NH3 Analyzer jAclerical\anna\2015-1 l2 water disinfection sys upgrad6specs\contract\1 lb -description of items docx - 33 - Proposal & Bid Form SITE 3: POWELL - GROUND WELLS 302. For Furnishing Regal Gas Chlorination System, Switchover Unit, 100 PPD Maximum Capacity, Model 216. System to Include: (2) Vacuum Regulators with Built -In Switchover (1) Remote Meter Panel, 50 PPD (1) A-930 High/Low Ejector (1) Scaletron Dual Digital Cylinder Scale, 2350 (1) 1" NPT Corp Stop Diffuser (1) 1" NPT 2-Way Solenoid Valve (1) 1" NPT, PVC Wye Strainer (2) 2.5" Liquid Filled Pressure Gauges, 0-160 (1) Regal Single Point Gas Detector (1) SCBA with Wall Mount Enclosure 303. For Furnishing Prominent Las Feed System to Include: (1) GALA 1605 NPE 200 UDC 13100 Pump (1) Single Wall Skid System (1) Drum Storage Containment (1) Corporation Stop (1) Eyewash Stand (1) Startup and Training Powell - Surface Water 304. For Furnishing Regal Gas Chlorination System, Switchover Unit, 100 PPD Maximum Capacity, Model 216. System to Include: (2) Vacuum Regulators with Built -In Switchover (1) Remote Meter Panel, 50 PPD (1) A-930 High/Low Ejector (1) Regal Smartvale 7009 (Residual/Compound Loop) (1) Scaletron Dual Digital Cylinder Scale, 2350 (1) 1" NPT Corp Stop Diffuser (1) 1" NPT 2-Way Solenoid Valve (1) 1" NPT, PVC Wye Strainer (2) 2.5" Liquid Filled Pressure Gauges, 0-160 (1) Regal Single Point Gas Detector (1) Prominent DMTA Total Chlorine Analyzer 305. For Furnishing Prominent Las Feed System to Include: (1) GALA 1605 NPE 200 UDC 13100 Pump (1) Single Wall Skid System (1) Drum Storage Containment (1) Corporation Stop (1) Prominent NH3 Analyzer ., . k /'-i Lon 11 amd:, p wcs _l; t,[u I �0 Asc' p.' 1 c ;!�m'.s Ct.'' - 34 - Proposal & Bid Form SITE 4: GRAYSON - GROUND WELLS 402. For Furnishing Regal Gas Chlorination System, Switchover Unit, 100 PPD Maximum Capacity, Model 216. System to Include: (2) Vacuum Regulators with Built -In Switchover (1) Remote Meter Panel, 50 PPD (1) A-930 High/Low Ejector (1) Regal Smartvalve 7001 (Flow) (1) Scaletron Dual Digital Cylinder Scale, 2350 (1) 1" NPT Corp Stop Diffuser (1) 1" NPT 2-Way Solenoid Valve (1) 1" NPT, PVC Wye Strainer (2) 2.5" Liquid Filled Pressure Gauges, 0-160 (1) Regal Single Point Gas Detector (1) SCBA with Wall Mount Enclosure 403. For Furnishing Prominent Las Feed System to Include: (1) GALA 1605 NPE 200 UDC 13100 Pump (1) Single Wall Skid System (1) Drum Storage Containment (1) Corporation Stop (1) Eyewash Stand (1) Startup and Training 1_12 mete, t "i"fecIio" upg5adc };ccSAco I,aCO, i Ib-dcncnption of =;emstic, ex - 35 - Proposal & Bid Form BID PROPOSAL FOR WATER DISINFECTION SYSTEM UPGRADE Notice of award will be mailed to the undersigned at the following addresses: Axis Construction, LP Contractor Joseph Swinnea, General Partner P.O. Box 77916, Fort Worth, Texas 76177 Principal Place of Business (Corp. Seal if Bidder is Corporation) Attest: Secretary: Tressa Swinnea Acknowledgment is hereby made of receipt of the following Addenda, if any: No. Addendum No. 1 Date: December 22, 2016 No. Date: No, Date: List Subcontracts (Company name, contact number and type of work): jAclerical\anna\2015-112 water disinfection sys upgrade\specs\contract\12-p&bs-3 doc - 36 - Proposal and Bid Form REQUEST FOR CERTIFICATE OF EXEMPTION FROM TEXAS LIMITED SALES, EXCISE AND USE TAX Date: December 29, 2016 TO: City of Anna, Texas Municipal Building 111 N. Powell Parkway Anna, TX 75409 RE: WATER DISINFECTION SYSTEM UPGRADE The undersigned Contractor hereby requests a Certificate of Exemption from the Texas Limited Sales, Excise, and Use Tax in the amount of Five Hundred Thousand Dollars ($ 500,000.00 _ }, 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) Axis Construction, LP 0 Sigrn Title. P.O. Box 77916 Company Address Fort Worth, Tarrant, TX 76177 City, County, State and Zip (817) 439-0709 Telephone Fax 1:WmicnAwrooU015-112 wMer disiftction sp uvgrade+specsuedi- l2-p&bs-ldoc - 37 - Proposal and Bid Form CONTRACT AGREEMENT THIS Hackberry Elevated Storage Tank Contract (hereinafter this "Contract Agreement") entered into this day of , 2017 by and between the CITY OF ANNA, TEXAS, a Texas municipal corporation, ("City") and Axis Construction, LP ("Contractor"), located at P.O. Box 77916, Fort Worth, Texas 76177. WITNESSETH: WHEREAS, the City wishes to contract for the project identified as Hackberry Elevated Storage Tank (the "Project"); and WHEREAS, the Project shall include all work and activities necessary to complete the following scope of work (hereinafter referenced as "Work"): WATER DISINFECTION SYSTEM UPGRADE 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; Federal Labor Standards Provisions (HUD-4010 Form) City of Anna Resolution, Adopting A Contractor Locality Local Opportunity Plan Equal Opportunity Guidelines for Construction Contractors Contract Agreement; Bidders Bond; Performance Bond; Payment Bond; jAclerical\anna\2015-112 water disinfection sys upgrade\specs\contract\16-agreement doe CA-1 Contract Agreement Maintenance Bond; Certificate of Insurance; Notice to Proceed; Any executed Change Orders; Supplementary General Provisions; Materials & Construction Methods; Technical Specifications; and Plans, Specifications and 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. j:\clerical\anna\2015-112 water disinfection sys upgrade\specs\contract\16-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. jAclericallannat2015-112 water disinfection sys upgrade\specslcontract116-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 One Hundred Twenty (120) consecutive 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 jAclerical\anna\2015-112 water disinfection sys upgrade\specs\contract\16-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\2015-112 water disinfection sys upgrade\specs\contract\16-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 Five Hundred Ninetv-Three Thousand, Four Hundred Dollars and 001100 t$593,404.001. 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. jAc1erica1\anna\2015-112 water disinfection sys upgrade\specs\contract\16-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: jAclerical\anna\2015-112 water disinfection sys upgrade\specs\contract\16-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 jlclerical\anna\2015-112 water disinfection sys upgrade\specs\contract\16-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\anna12015-112 water disinfection sys upgrade\specs\contract\16-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 j:\clerical\anna\2015-112 water disinfection sys upgrade\specs\contract\16-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; j:\clerical\anna\2015-112 water disinfection sys upgrade\specs\contract\16-agreement doc CA-11 Contract Agreement 9.11 At all times relevant to the Contract, the Contractor shall permit the City and its consultants to enter upon the Project site and any offsite lay down areas, safety permitting, and to review or inspect the work and any materials on any such site, without formality or other procedure. 9.12 The Contractor recognizes that the City may enter into other contracts to perform work relating to the Project, or to complete portions of the Work itself. The Contractor shall ensure that its forces reasonably accommodate the forces of the City and other contractors hired by the City. The Contractor shall coordinate its schedule with the work of other contractors. If the Contractor 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 jAclerical\anna\2015-112 water disinfection sys upgrade\specs\contract\16-agreement doc CA-12 Contract Agreement required by the Owner, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. Section 10. INDEMNITY Except for expenses or liabilities arising from the neciligence of the City, the Contractor_ hereby expressly agrees to indemnify and hold the City harmless against any and all expenses and liabilities arising out of the performance or default of the Contract as follows: 10.01 Contractor shallindemnify, and hold harmless, to the maximum extent permitted by law, City and its officers, agents, employees and consultants from and against any and all liability,_ damages, losses, (whether in contract or in tort, including personal injury, accidental death or property damage, and regardless, of whether the allegations are false, fraudulent or groundless), and costs (including reasonable attorney's fees, litigation._ arbitration, mediation, appeal expenses incurred in any matter, including a proceeding to enforce this Section 10) which in whole or in part are caused by the negligence, recklessness or intentional wrongful misconduct of the Contractor and persons employed by or utilized by the Contractor in Contractor's performance of this Contract Agreement. 10.02 Contractor's obligation to indemnify, defend and hold harmless shall remain in effect and shall be binding upon Contractor whether such ni_ury 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 jAclerical\anna\2015-112 water disinfection sys upgrade\specs\contract\16-agreement doc CA-13 Contract Agreement 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; 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; 11.06 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). jAclerical\anna\2015-112 water disinfection sys upgrade\specs\contract\16-agreement doc CA-14 Contract Agreement 13.02 One or more changes to the work within the general scope of the Contract may be ordered by Change Order. The City may also issue written directions for minor changes in the Work and may issue Construction Change Directives, as set forth below. The Contractor shall proceed with any such changes or Construction Change Directives without delay and in a diligent manner, and same shall be accomplished in strict accordance with the following terms and conditions: 13.03 Change Order shall mean a written order directed to the Contractor executed by the City after execution of the Contract, directing a change in the work. A Change Order may include a change in the Contract Price, (other than a change attributable to damages for delay as provided in Section 6 hereof), or the time for the Contractor's performance, or any combination thereof. Where there is a lack of total agreement on the terms of a Change Order or insufficient time to execute a bilateral change, the City may also direct a change in the Work in the form of a Construction Change Directive, which will set forth the change in the Work and the change, if any, in the Contract Price or time for performance, for subsequent inclusion in a Change Order; Construction Change Directives shall include a 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. jAc1ericaRanna\2015-112 water disinfection sys upgrade\specs\contract\16-agreement doc 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. j:\clerical\anna\2015-112 water disinfection sys upgrade\specs\contract\16-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)2 + 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\2015-112 water disinfection sys upgrade\specs\contract\16-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 j:\clerical\anna\2015-112 water disinfection sys upgrade\specs\contract\16-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. jAclerical\anna\2015-112 water disinfection sys upgrade\specs\contract\16-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. j:\clerical\anna\2015-112 water disinfection sys upgrade\specs\contract\16-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 jAclericallanna12015-112 water disinfection sqs upgrade\specs\contract\16-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. jAclerical\anna\2015-112 water disinfection sys upgrade\specs\contract\16-agreement doc CA-22 Contract Agreement Section 21. SUCCESSORS AND ASSIGNS Each party binds itself, its successors, assigns, executors, the other party hereto and to successors, assigns, executors, such other party in connection with all terms and conditions assign the Contract without prior written consent of the City. Section 22. MISCELLANEOUS PROVISIONS administrators or other representatives to administrators or other representatives of of the Contract. The Contractor shall not 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: Axis Construction, LP Attn: Joseph Swinnea P.O. Box 77916 Fort Worth, Texas 76177 (817) 439-0709 jAclerical\anna\2015-112 water disinfection sys upgrade\specs\contract\16-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 Philip Sanders, City Manager ATTEST: Carrie Smith, City Secretary (SEAL) AXIS CONSTRUCTION, LP Contractor A Print Name: Joseph Swinnea Title: General Partner ATTEST: Tressa Swinnea, Office Manager (SEAL) jAc1erica1\anna\2015-112 water disinfection sys upgrade\specs\contract\16-agreemenldoc CA-24 Contract Agreement BIDDER'S BOND KNOW ALL MEN BY THESE PRESENTS, that Axis Construction, LP (hereinafter called the Principal(s)), as Principal(s), and RLI 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 of 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: WATER DISINFECTION SYSTEM UPGRADE 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, jAclerical\anna\2015-112 water disinfection sys upgrade\specs\contract\17-bonds doc B-1 Bonds IN WITNESS WHEREOF, the said Principal(s) and Surety(s) have signed and sealed this instrument this day of , 20 RLI Insurance Company Surety Print Name: Denise Moreau Title: Attorney -in -Fact Address: P.O. Box 631202 Nacogdoches, Texas 75963 Phone/Fax: (936) 564-0221 Axis Construction, LP Principal Print Name: Joseph Swinnea Title: General Partner Address: P.O. Box 77916 Fort Worth, Texas 76177 Phone/Fax: (817) 439-0709 / (817) 439-1608 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 BancorpSouth Insurance Services Inc. an agent resident in Nacogdoches 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. ou rely By: Print Name: Address: Phone/Fax: 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:lclerical\anna\2015-112 water disinfection sys upgrade\specs\contract\17-bands doc B-2 Bonds RLI c261C an RLI Company 9025 N. Lindbergh Dr. I Peoria, IL 61615 Phone: (800)645-2402 1 Fax: (309)689-2036 Know All Men by These Presents: POWER OF ATTORNEY RLI Insurance Company Contractors Bonding and Insurance Company That this Power of Attorney is not valid or in effect unless attached to the bond which it authorizes executed, but may be detached by the approving officer if desired. That this Power of Attorney may be effective and given to either or both of RLI Insurance Company and Contractors Bonding and Insurance Company, required for the applicable bond. That RLI Insurance Company and/or Contractors Bonding and Insurance Company, each Illinois corporations (as applicable), each authorized and licensed to do business in all states and the District of Columbia do hereby make, constitute and appoint: Gary L. LaFour. Trent J. Sandahl. Denise Moreau, Rene' Beaubouef, Elizabeth Shaddox, iointly or severally _ in the City of Nacogdoches . State of Texas , as Attorney in Fact, with full power and authority hereby conferred upon him/her to sign, execute, acknowledge and deliver for and on its behalf as Surety, in general, any and all bonds, undertakings, and recognizances in an amount not to exceed Ten Million Dollars ( $10,000,000.00 ) for any single obligation. The acknowledgment and execution of such bond by the said Attorney in Fact shall be as binding upon this Company as if such bond had been executed and acknowledged by the regularly elected officers of this Company. RLI Insurance Company and Contractors Bonding and Insurance Company, as applicable, have each further certified that the following is a true and exact copy of the Resolution adopted by the Board of Directors of each such corporation, and now in force, to -wit: "All bonds, policies, undertakings, Powers of Attorney or other obligations of the Corporation shall be executed in the corporate name of the Corporation by the President, Secretary, any Assistant Secretary, Treasurer, or any Vice President, or by such other officers as the Board of Directors may authorize. The President, any Vice President, Secretary, any Assistant Secretary, or the Treasurer may appoint Attorneys in Fact or Agents who shall have authority to issue bonds, policies or undertakings in the name of the Corporation. The corporate seal is not necessary for the validity of any bonds, policies, undertakings, Powers of Attorney or other obligations of the Corporation. The signature of any such officer and the corporate seal may be printed by facsimile or other electronic image." IN WITNESS WHEREOF, RLI Insurance Company and/or Contractors Bonding and Insurance Company, as applicable, have caused these presents to be executed by its respective Vice President with its corporate seal affixed this 24th day of August, 2015. rrrr ' ►J.... 9 . 4 p PFY '9T , C,O a� , .dap . L i i4 r, SEAL SEAL ;4_ �' State of Illinois • .... • SS 1tunlo�s `� Lr! County of Peoria On this 24th day of _ August 2015 before me, a Notary Public, personally appeared _ Barton W. Davis who being by me duly swum, acknowledged that he signed the above Power of Attorney as the aforesaid officer of the RLI Insurance Company and/or Contractors Bonding and Insurance Company, and acknowledged said instrument to be the voluntary act and deed of said corporation. M. �3.AG1.C' "OFFICIAL SEAL" 7iGlAPY IPURNIr JACOUELINE rN.. SOCKLER trMt COMMISSION EXPIRES 01114118 RLI Insurance Company Contractors Banding and Insurance Company Barton W. Davis Vice President CERTIFICATE I, the undersigned officer of RLI Insurance Company, and/or Contractors Bonding and Insurance Company, each Illinois corporations, do hereby certify that the attached Power of Attorney is in full force and effect and is irrevocable; and furthermore, that the Resolution of the Company as set forth in the Power of Attorney, is now in force. In testimony whereof, I have hereunto set my hand and the seal of the RLI Insurance Cos andlar ggtract rs a ding and Insurance Company this/` � day of [ irvL}� V RLI Insurance Company Notary Public Contractors on ing and Ins rance Company KVi kl- Barton W. Davis Vice President 4270049020212 A0059115 RL I ® RLIInsurance Company P.O P.O. Box 3967 Peoria, IL 61612-3967 Phone:309-692-1000 Fax:309-683-1610 IMPORTANT NOTICE To obtain information or make a complaint: TEXAS COMPLAINT NOTICE You may call RLI Insurance Company's toll free telephone number for information or to make a complaint at 800-645-2402. You may also write to RLI Insurance Company at: 9025 N. Lindbergh Drive Peoria, IL 61615 FAX # 309-683-1610 You may contact the Texas Department of Insurance to obtain information on companies, coverages, rights or complaints at 1-800- 5 -3439 You may write the Texas Department of Insurance: P.O. Box 149104 Austin, TX 78714-9104 FAX # (512) 475-1771 Web: h2p://www.tdi.state.tx.us E-mail: ConsumerProtection(a,tdi.state.tx.us PREMIUM OR CLAIM DISPUTES: Should you have a dispute concerning your premium or about a claim, you should contact RLI Insurance Company first. If the dispute is not resolved, you may contact the Texas Department of Insurance. ATTACH THIS NOTICE TO YOUR POLICY: This notice is for information only and does not become a part or condition of the attached document. UW 1042-S (02/10) M4201210 PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS, that Axis Construction, LP (hereinafter called the Principal(s)), as Principal(s), and RLI 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 Hundred Ninety -Three Thousand Four Hundred Dollars and 00/100 ($593,400.00) 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 , 2017 for the following project: WATER DISINFECTION SYSTEM UPGRADE 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. j:\clericalkanna\2015-112 water disinfection sys upgradetspecslconkrachl7-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 RLI Insurance Company Surety Print Name: Denise Moreau Title: Attorney -in -Fact Address: P.O. Box 631202 Nacogdoches, Texas 75963 Phone/Fax: (936) 564-0221 Axis Construction, LP Principal Print Name: Joseph Swinnea Title: General Partner Address: P.O. Box 77916 Fort Worth, Texas 76177 Phone/Fax: 817) 439-0709 / (817) 439-1608 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 BancorpSouth Insurance Services, Inc. , an agent resident in Nacogdoches 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. Su rety By: Print Name: Address: Phone/Fax: NOTE: If signed by an officer of the Suretv Companv, 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\2015-112 water disinfection sys upgrade\specs\contract\17-bonds doc B-4 Bonds PAYMENT BOND KNOW ALL MEN BY THESE PRESENTS, that Axis Construction, LP (hereinafter called the Principal(s)) as Principal(s), and RLI 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 Hundred Ninety -Three Thousand, Four Hundred Dollars and 00/100 ($593,400.00) 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 , 2017 for the: WATER DISINFECTION SYSTEM UPGRADE 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. j:\clerical\anna\2015-112 water disinfection sys upgrade\specs\contract\17-bonds doc B-5 Bonds IN WITNESS WHEREOF, the said Principal(s) and Surety(s) have signed and sealed this instrument this day of , 20 RLI Insurance Company Surety By: Print Name: Denise Moreau Title: Attorney -in -Fact Address P.O. Box 631202 Nacogdoches, Texas 75963 Print Name Axis Construction, LP Principal Joseph Swinnea Title: General Partner Address: P.O. Box 77916 Fort Worth, Texas 76177 Phone/Fax: (936) 564-0221 Phone/Fax: 817) 439-0709 / (817) 439-1608 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 BancorpSouth Insurance Services, Inc. , an agent resident in Nacogdoches 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. ourery By: Print Name Address.- Phone/Fax: NOTE: If signed by an officer of the Suretv 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. jlclerical\anna\2015-112 water disinfection sys upgrade\specs\contract\17-bands doc B-6 Bonds MAINTENANCE BOND KNOW ALL MEN BY THESE PRESENTS: THAT Axis Construction, LP as PRINCIPAL, and RLI Insurance Company a CORPORATION organized under the laws of 1 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 Five Hundred Ninety -Three Thousand, Four Hundred Dollars and 00/100 ($593,400.00) 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 Axis Construction, LP, the Contractor, did on , 2017 enter into a written Contract Agreement with the said City of Anna to build and construct: WATER DISINFECTION SYSTEM UPGRADE 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. jklerical\anna\2015-112 water disinfection sys upgrade\specs\contract\17-bonds doc B-7 Bonds IN WITNESS WHEREOF, the said Axis Construction, LP , (Contractor) has caused these presents to be RLI Insurance Company , (Surety Co.) executed by its ATTORNEY -IN -FACT Denise Moreau and the said ATTORNEY -IN -FACT Denise Moreau has hereunto set his hand this the day of 20 RLI Insurance Company S u rety la Print Name: Denise Moreau Title: Attorney -in -Fact Address: P.O. Box 631202 Nacogdoches, Texas 75963 Phone/Fax: (936) 564-0221 Axis Construction, LP Principal Print Name: Joseph Swinnea Title: General Partner Address: P.O. Box 77916 Fort Worth, Texas 76177 Phone/Fax: 817) 439-0709 / (817) 439-1608 NOTE: If signed by an officer of the Suretv Companv, there must be on file a certified extract from the by-laws showing that this person has authority to sign such obligation. If signed bV 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\2015-112 water disinfection sys upgrade\specs\contract\17-bonds doc B-8 Bonds CITY OF ANNA, TEXAS Water Disinfection System Upgrade BID SUMMARY Bids Received at 2:30 p.m., Thursday, December 29, 2016 Contractor Site No. 1 West Crossing 101 -105 Site No. 2 Sherley 201 - 205 Site No. 3 Powell 301 - 305 Site No. 4 Grayson 401 - 403 TOTAL AMOUNT BID Sites 1, 2, 3 & 4 1. Axis Construction, LP P.O. Box 77916 Fort Worth, Texas 76177 $ 150,900.00 $ 172,850.00 $ 162,750.00 $ 106,900.00 $ 593,400.00 2. Mitchell Enterprises, Ltd. 700 N. Crockett Sherman, Texas 75090 $ 236,973.00 1 $ 239,136.00 $ 250,076.00 $ 182,210.00 $ 908,395.00 J:ACLERICALVAnnaA2015-112 Water Disinfection Sys UpgradeASpecs\Tech-SpecAl I a-P&BS-2.xlsx TABULATION OF BIDS Date: December 29, 2016 Project: CITY OF ANNA, TEXAS BIRKHOFF, HENDRICKS & CARTER, L.L.P. Water Disinfection System Upgrade PROFESSIONAL ENGINEERS Dallas, Texas BID OF Axis Construction, LP P.O. Box 77916 Fort Worth, Texas 76177 BID OF Mitchell Enterprises, Ltd. 700 N. Crockett Sherman, Texas 75090 Item No. Approximate Quantifies Unit Description Unit Bid L Price Extension Unit [aid Price Extension SITE NO. 1 - WEST CROSSING 101 1 L.S. Install Water Disinfection System, including Chlorine & Ammonia Systems, all Piping and Control Valves. Furnish & Install Resin Sheds, with Vents & Fans, Concrete Walks & Pads, Mounting System, Electrical & Plumbing required to complete the Installation and Make Operational $88,700.00 $ 88,700.00 $174,773.00 $ 174,773.00 102 1 L.S. For Furnishing Regal Gas Chlorination System, Switchover Unit, 100-PPD Maximum Capacity, Model 216 $12,650.00 $ 12,650.00 $12,650.00 $ 12,650.00 103 1 L.S. For Furnishing Prominent Las Feed System (West Crossing - Ground Wells) $9,550.00 $ 9,550.00 $9,550.00 $ 9,550.00 104 1 L.S. For Furnishing Regal Gas Chlorination System, Switchover Unit, 100 PPD Maximum Capacity, Model 216 $18,300.00 $ 18,300.00 $18,300.00 $ 18,300.00 105 1 L.S. For Furnishing Prominent Las Feed System (West Crossing - Surface Water) $21,700.00 $ 21,700.00 $21,700.00 $ 21,700.00 AMOUNT BID: SITE NO. 1 -WEST CROSSING (Items 101 Through 105) $ 150 900.00 $ 236 973.00 SITE NO. 2 - SHERLEY 201 1 L.S. Install Water Disinfection System, including Chlorine & Ammonia Systems, all Piping and Control Valves. Furnish & Install Resin Sheds, with Vents & Fans, Concrete Walks & Pads, Mounting System, Electrical & Plumbing required to complete the Installation and Make Operational $106,100.00 $ 106,100.00 $172,386.00 $ 172,386.00 202 1 1 L.S. For Furnishing Regal Gas Chlorination System, Switchover Unit, 100 PPD Maximum Capacity, Model 216 $15,950.00 $ 15,950.00 $15,950.00 $ 15,950.00 203 1 L.S. For Furnishing Prominent Las Feed System (Sherley - Ground Wells) $9,600.00 $ 9,600.00 $9,600.00 $ 9,600.00 204 1 L.S. For Furnishing Regal Gas Chlorination System, Switchover Unit, 100 PPD Maximum Capacity, Model 216 $19,500.00 $ 19,500.00 $19,500.00 $ 19,500.00 205 1 L.S. For Furnishing Prominent Las Feed System (Sherley - Surface Water) $21,700.00 $ 21,700.00 $21,700.00 $ 21,700.00 AMOUNT BID: SITE NO. 2 - SHERLEY Items 201 Through 205 $ 172 850.00 $ 239,136.00 JACLERICAL\Anna\2015-112 Water Disinfection Sys Upgrade\Specs\Tech-Spec\1la-P&BS-2.xlsx Page 1 of 2 TABULATION OF BIDS Date: December 29, 2016 Project: CITY OF ANNA, TEXAS BIRKHOFF, HENDRICKS & CARTER, L.L.P. Water Disinfection System Upgrade PROFESSIONAL ENGINEERS Dallas, Texas BID OF Axis Construction, LP P.O. Box 77916 Fort Worth, Texas 76177 BID OF Mitchell Enterprises, Ltd. 700 N. Crockett Sherman, Texas 75090 Item No. Approximate Quantifies Unit Description Unit [aid Price Extension Unit [aid Price Extension SITE NO. 3 - POWELL 301 1 L.S. Install Water Disinfection System, including Chlorine & Ammonia Systems, all Piping and Control Valves. Furnish & Install Resin Sheds, with Vents & Fans, Concrete Walks & Pads, Mounting System, Electrical & Plumbing required to complete the Installation and Make Operational $99,000.00 $ 99,000.00 $186,326.00 $ 186,326.00 302 1 L.S. For Furnishing Regal Gas Chlorination System, Switchover Unit, 100 PPD Maximum Capacity, Model 216 $12,950.00 $ 12,950.00 $12,950.00 $ 12,950.00 303 1 L.S. For Furnishing Prominent Las Feed System (Ground Wells) $9,600.00 $ 9,600.00 $9,600.00 $ 9,600.00 304 1 L.S. For Furnishing Regal Gas Chlorination System, Switchover Unit, 100 PPD Maximum Capacity, Model 216 $19,500.00 $ 19,500.00 $19,500.00 $ 19,500.00 305 1 L.S. For Furnishing Prominent Las Feed System (Surface Water) $21,700.00 $ 21,700.00 $21,700.00 $ 21,700.00 AMOUNT BID: SITE NO. 3 -POWELL (Items 301 Through 305) $ 162 750.00 $ 250 076.00 SITE NO. 4 - GRAYSON 401 1 L.S. Install Water Disinfection System, including Chlorine & Ammonia Systems, all Piping and Control Valves. Furnish & Install Resin Sheds, with Vents & Fans, Concrete Walks & Pads, Mounting System, Electrical & Plumbing required to complete the Installation and Make Operational $82,100.00 $ 82,100.00 $157,410.00 $ 157,410.00 402 1 L.S. For Furnishing Regal Gas Chlorination System, Switchover Unit, 100 PPD Maximum Capacity, Model 216 $15,200.00 $ 15,200.00 $15,200.00 $ 15,200.00 403 1 L.S. For Furnishing Prominent Las Feed System $9,600.00 $ 9,600.00 $9,600.00 $ 9,600.00 AMOUNT BID: SITE NO. 4 -GRAYSON (Items 401 Through 403) $ 106 900.00 $ 182 210.00 SUMMARY OF BID AMOUNT BID: SITE NO. 1 - WEST CROSSING (Items 101 Through 105) $ 150,900.00 $ 236,973.00 AMOUNT BID: SITE NO. 2 - SHERLEY (Items 201 Through 205) $ 172,850.00 $ 239,136.00 AMOUNT BID: SITE NO. 3 - POWELL (Items 301 Through 305) $ 162,750.00 $ 250,076.00 AMOUNT BID: SITE NO. 4 - GRAYSON (Items 401 Through 403) $ 106,900.00 $ 182,210.00 TOTAL AMOUNT OF BID Sites No. 1 + No. 2 + No. 3 + No. 4 $ 593,400.OUI $ 908 395.00 JACLERICAL\Anna\2015-112 Water Disinfection Sys Upgrade\Specs\Tech-Spec\1la-P&BS-2.xlsx Page 2 of 2 BIRKHOFF, HENDRICKS & CARTER, L.L.P. PROFESSIONAL ENGINEERS 11910 Greenville Ave., Suite 600 Dallas, Texas 75243 Fax (214) 461-8390 Phone (214) 361-7900 JOHN W BIRKHOFF, RE GARY C HENDRICKS, P E JOE R CARTER, P E MATT HICKEY, P E ANDRE W MATA, JR , P E JOSEPH T GRAJEWSKI, IIJ, P E DEREK B CHANEY, P E CRAIG M KERKHOFF. P E Mr. Joseph Johnson Director of Public Works City of Anna P.O. Box 776 Anna, Texas 75409 Re: Water Disinfection System Upgrade Dear Mr. Johnson: February 23, 2017 We have checked the bids received at 2:30 p.m., Thursday, December 29, 2016, for the Water Disinfection System Upgrade project. We are enclosing six (6) copies of the Bid Summary and Itemized Bid Tabulation. Axis Construction, L.P. submitted the low base bid in the amount of $593,400.00. We have reviewed their statement of qualifications and references provided and find that Axis Construction, L.P. has a record of satisfactorily completing projects similar to this project. A proposed deductive change order has been coordinated with Axis Construction, L.P. to revise the method in which the ground well flow will totalize at each of the sites. The operation of the system will not change as the contractor will utilize existing equipment at each of the sites, and a deductive change order in the amount of $73,500.00 is recommended for the project. Accordingly, based on the information we have available to us, we recommend that the City accept the base bid from Axis Construction, L.P. with the deductive change order and award them a contract in the amount of $519,900.00 We are available to discuss our recommendation further at your convenience. Sincerely, Craig M. K rkhoff, P.E., C.F.M. Enclosures cc: Mr. Philip Sanders TBPE Firm 526 ACEC Wellness Firm =;� Better Decisions -Better Designs TBPLS Firm 100318-00 j:\c1erica1\anna\2015-112 water disinfection sys upgrade\letters\k\recommendation docx CHANGE ORDER NO. 1 Date of Issuance: February 23. 2017 Effective Date: Owner: City of Anna, Texas Proiect: Water Disinfection Svstem UDarade CONTRACT CHANGES ARE APPROVED AS FOLLOWS: A. INTENT OF CHANGE ORDER The intent of this change order is to modify the provisions of the contract entered into between the City of Anna, Texas and Axis Construction, LP, P.O. Box 77916, Fort Worth, Texas 76177, for construction of the Water Disinfection System Upgrade, dated 12017. B. DESCRIPTION OF / REASON FOR CHANGES This change covers the deduction of the contract price from the bid included in the contractor's bid, due to the difference in the amount of the revised operations of the PLC Totalizer for Ground Well Systems A deduction in the amount of $18,375.00 will be deducted from each Site #1, #2, #3, and #4. C. EFFECT OF CHANGE ON CONTRACT AMOUNT This change order will have the following effect on the cost of this project: Description Original Price Total Deduction This C.O. Revised Contract Price Site No. 1 - West Crossing $ 150,900.00 $18,375.00 $ 132,525.00 Site No. 2 - Sherley $ 172,850.00 $18,375.00 $ 154,475.00 Site No. 3 -Powell $ 162,750.00 $18,375.00 $ 144,375.00 Site No. 4 - Grayson 1 $ 106,900.00 $18,375.00) $ 88,525.00 Total: $73,500.00) $ 519,900,00 Contract Pricing (Including Addenda/Alternates Revised Amount Original Contract Amount: $ 593,400.00 Change Order No. 1 I $ (73,500.00) $ 519,900.00 Revised Contract Amount: (With All Approved Change Orders) $ 519,900.00 j:Ae1erical\anna\20i5-1 12 water di sin@etion sys upgradeAspecs\change orders\co- I. docx Chan, e Order - Page i Or 2 D. EFFECT OF CHANGE ON CONTRACT TIME The work required under this change order will not add any additional calendar days to this project. E. AGREEMENT a Original Contract Time Change Order No. 1 Revised Contract Time: 120 calendar days 0 calendar days 120 calendar days By the signatures below of duly authorized agents, the City of Anna, Texas and Axis Construction, LP do hereby agree to append this Change Order No. 1 to the original contract between themselves, dated )2017. City of Anna, Texas Owner (signature) Name: Philip Sanders Title: Date Signed: Citv Manaaer Axis Construction, LP Contractor (signature) Name: Joseph Swinnea Title: Date Signed: General Partner Please sign all copies; return them copy to: Birkhoff, Hendricks & Carter, L.L.P. c/o Craig Kerkhoff, P.E. 11910 Greenville Ave., Suite 600 Dallas, Texas 75243 j:\clerical\anna\2015-112 water disinfection sys upgrade\specs\change orders\co-1 docx Change Order - Page 2 of 2 i Item No. 12. City Council Agenda Staff Report Meeting Date: 2/28/2017 YOUR} HOMETOWN AGENDAITEM: Consider/Discuss/Action regarding a Resolution authorizing the City Manager to execute a Professional Services Agreement with Kimley-Horn and Associates, Inc. for the Sanitary Sewer Inflow and Infiltration Analysis Project. (Joseph Johnson). SUMMARY: Over the past year City staff has been working to identify and repair areas of Inflow and Infiltration (I&I) within the wastewater collection system. Inflow is storm water entering the collection system near the surface (e.g. broken cleanouts and manholes) while infiltration refers to storm water entering the collection system below ground through broken sub -surface piping. City staff has located and repaired numerous inflow issues and also found and repaired limited infiltration issues using a method referred to as "smoke -testing". While these efforts have moderately reduced I&I, a sophisticated engineering analysis would be more effective in identifying the specific areas contributing to infiltration. Additionally, the data produced by an engineering analysis could then be used to develop a Capital Improvements Plan identifying line projects that would mitigate for I&I. The data could also be used as part of an application for grant funding to support a line replacement project. Staff has negotiated an agreement with Kimley-Horn and Associates, Inc. for engineering services related to a Sanitary Sewer Inflow and Infiltration Analysis Project. The agreement is attached hereto as Exhibit A. The amount of the engineering consulting fee covering Temporary Flow Monitoring (Task 1) for the project is for the amount of $36,250.00, the Smoke Testing Priority Areas (Task 11) for the project is for the amount of $9,750.00 and the Data Analysis, Report and CIP Map (Task III) is for the lump sum amount of $29,000.00 for a total not to exceed amount of $75,000.00. Funds have been allocated for the Project in the amount of $75,000.00 in the 2017 Fiscal Year Utility Fund budget. STAFF RECOMMENDATION: Staff recommends approval of the Resolution authorizing the City Manager to execute a Professional Services Agreement with Kimley-Horn and Associates, Inc. for the Sanitary Sewer Inflow and Infiltration Analysis Project. ATTACHMENTS: Description Upload Date Type Resolution 2/20/2017 Resolution Exhibit A 2/20/2017 Exhibit CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING AND AUTHORIZING THE CITY MANAGER TO ACT ON THE CITY'S BEHALF IN EXECUTING AN AGREEMENT FOR ENGINEERING SERVICES WITH KIMLEY-HORN AND ASSOCIATES, INC. FOR THE SANITARY SEWER INFLOW AND INFILTRATION ANALYSIS PROJECT. WHEREAS; The City has negotiated an agreement with Kimley-Horn and Associates, Inc. for engineering services related to the Sanitary Sewer Inflow and Infiltration Analysis Project (the Project); and, WHEREAS; the Project to analyze the inflow and infiltration (I&I) that is occurring in our wastewater collection system is vital in order to identify Capital Improvement Projects (CIP) that may mitigate the I&I issue; and, WHEREAS; the amount of the engineering consulting fee covering Temporary Flow Monitoring (Task 1) for the project is for the amount of $36,250.00, the Smoke Testing Priority Areas (Task II) for the project is for the amount of $9,750.00 and the Data Analysis, Report and CIP Map (Task III) is for the lump sum amount of $29,000.00 for a total not to exceed amount of $75,000.00; and, WHEREAS; funds have been allocated for the Project in the amount of $75,000.00 in the 2017 Fiscal Year Utility Fund budget; 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. The City Council hereby approves the Agreement for Professional Services with Kimley- Horn and Associates, Inc. for the Sanitary Sewer Inflow and Infiltration Analysis Project, attached hereto as Exhibit A, and authorizes, ratifies and approves the City Manager's execution of same. The City Manager is hereby authorized to execute all documents and to take all other actions necessary to finalize, act under, and enforce the agreement. PASSED AND APPROVED by the City Council of the City of Anna, Texas, on this 28t' day of February 2017. ATTEST: APPROVED: City Secretary Carrie L. Smith Mayor Mike Crist RESOLUTION: Sanitary Sewer I&I Analysis PAGE 1 OF 1 2/28/17 AGREEMENT BETWEEN CITY OF ANNA AND KIMLEY-HORN AND ASSOCIATES, INC. FOR PROFESSIONAL SERVICES THIS AGREEMENT is made this _ day of , 2016, by and between City of Anna ("the CLIENT") and KIMLEY-HORN AND ASSOCIATES, INC., ("the CONSULTANT") NAME OF PROJECT: Sanitary Sewer Inflow & Infiltration (I&I) Analysis ("the Project"). The CLIENT and the CONSULTANT agree as follows: (1) Scope of Services and Additional Services. The CONSULTANT'S undertaking to perform professional services extends only to the services specifically described in Exhibit A, which is attached and made a part of this Agreement ("the Services"). However, if requested by the CLIENT and agreed to by the CONSULTANT, the CONSULTANT will perform Additional Services, which shall be governed by these provisions. Unless otherwise agreed to in writing, the CLIENT shall pay the CONSULTANT for the performance of any Additional Services an amount based upon the CONSULTANT'S then -current hourly rates plus an amount to cover certain direct expenses including telecommunications, in-house reproduction, postage, supplies, project related computer time, and local mileage. Other direct expenses will be billed at 1.15 times cost. CONSULTANT shall provide services to the CLIENT as an independent contractor, not as an employee of the CLIENT. CONSULTANT shall not have or claim any right arising from employee status. The CLIENT shall not control the means, methods, sequences, procedures, or techniques utilized by CONSULTANT to perform work or services under this Agreement. (2) CLIENT'S Responsibilities. In addition to other responsibilities described herein or imposed by law, the CLIENT shall: (a) Designate in writing a person to act as the CLIENT'S representative with respect to this Agreement. Such person shall have complete authority to transmit instructions, receive information, interpret and define the CLIENT'S policies and decisions with respect to the CONSULTANT'S services for the Project. (b) Provide all criteria and information as to the CLIENT'S requirements, objectives and expectations for the Project, including performance requirements, budgetary limitations, and copies of all design and construction standards which the CLIENT will require to be used or included in the drawings and specifications. (c) Assist the CONSULTANT by placing at its disposal all available information pertinent to the Project including previous reports and any other data relative to studies, design, or construction or operation rev 7/13 1 of the Project. (d) Furnish to the CONSULTANT, as required for performance of the CONSULTANT'S Services (except to the extent provided otherwise in Exhibit A), data prepared by or services of others, including without limitation borings, probings and subsurface explorations, hydrographic surveys, laboratory tests and inspection of samples; appropriate professional interpretations of all of the foregoing; environmental assessment and impact statements; property, boundary, easement, right-of-way, topographic and utility surveys; property descriptions; zoning, deed and other land use restrictions; and other special data or consultations; all of which CONSULTANT may use and rely upon in performing services under this Agreement. (e) Provide CONSULTANT surveys to establish reference points for construction (except to the extent provided otherwise in Exhibit A). (f) Arrange for access to and make all provisions for the CONSULTANT to enter upon public and private property as required for the CONSULTANT to perform services under this Agreement. (g) Examine all studies, reports, sketches, drawings, specifications, proposals and other documents presented by the CONSULTANT, obtain advice of an attorney, insurance counselor and other consultants as the CLIENT deems appropriate for such examination and render in writing decisions pertaining thereto within a reasonable time so as not to delay the services of the CONSULTANT. The CONSULTANT shall have no liability to the CLIENT for delays resulting from CLIENT'S failure to review documents promptly. (h) Furnish approvals and permits for all government authorities having jurisdiction over the Project and such approvals and consents from others as may be necessary for completion of the Project. (i) Cause to be provided such accounting, legal, independent cost estimating and insurance counseling services as may be required for the Project. 0) If the CLIENT designates a person to represent it at the site other than CONSULTANT or its agent or employee, set forth the duties, responsibilities and limitations of authority of the representative and the effect on the responsibilities of the CONSULTANT in an exhibit to this Agreement before services begin. (k) Furnish to the CONSULTANT data or estimates as to the CLIENT'S anticipated costs for services to be provided by others as required for the CONSULTANT to support opinions of probable total Project costs. (1) Give prompt written notice to the CONSULTANT whenever the CLIENT observes or otherwise becomes aware of any development that affects the scope, timing, or payment of CONSULTANT'S services, or any defect or nonconformance in any aspect of the Project. (m) Bear all costs incidental to the responsibilities of the CLIENT. (3) Period of Services. This Agreement has been made in anticipation of conditions permitting orderly and continuous progress of the Project through completion of the Services. The rev 7/13 2 CONSULTANT shall begin work timely after receipt of a fully executed copy of this Agreement and any required retainer amount. The times for performance shall be extended as necessary for periods of delay or suspension resulting from circumstances the CONSULTANT does not control. (4) Compensation for Services. (a) The CONSULTANT'S compensation shall be as stated in Exhibit B. (b) If the CONSULTANT'S compensation is on an hourly basis, the parties may have estimated in Exhibit A costs and expenses for the various portions of the scope of Services. Services undertaken or expenses incurred by the CONSULTANT exceeding any estimates shall be the liability of the CLIENT; provided, however, that CLIENT shall not be liable for services undertaken or expenses incurred that CLIENT did not authorize in accordance with this Agreement. (5) Method of Payment. (a) Invoices will be submitted monthly for services performed and expenses incurred. Payment of each invoice will be due within 30 days of receipt and should include the invoice number and Kimley-Horn project number. All retainers will be held by the CONSULTANT for the duration of the project and applied against the final invoice. If the CLIENT fails to make any payment due the CONSULTANT under this or any other agreement within 30 days after the CONSULTANT'S transmittal of its invoice, the CONSULTANT may, after giving notice to the CLIENT, suspend services and withhold deliverables until all amounts due are paid in full and may commence proceedings, to secure its right to payment. (b) If the CLIENT objects to any charge on an invoice submitted by the CONSULTANT, the CLIENT shall so advise the CONSULTANT in writing giving its reasons within 14 days of receipt of the invoice. If the CLIENT objects to only a portion of the invoice, payment for all other portions remains due. (c) The CLIENT agrees that the payment to the CONSULTANT is not subject to any contingency or condition not set forth in this Agreement. The CONSULTANT may negotiate payment of any check tendered by the CLIENT, even if the words "in full satisfaction" or words intended to have similar effect appear on the check without such negotiation being an accord and satisfaction of any disputed debt and without prejudicing any right of the CONSULTANT to collect additional amounts. (6) Use of Documents. Notwithstanding any provision of this Agreement to the contrary, all documents prepared or furnished by CONSULTANT (and CONSULTANT'S subcontractors or subconsultants) pursuant to this Agreement are instruments of service, and shall become the property of CLIENT upon the termination of this Agreement. CONSULTANT is entitled to retain copies of all such documents. The documents prepared and furnished by CONSULTANT are intended only to be applicable to the Services, and CLIENT'S use of these documents in other projects shall be at CLIENT'S sole risk and expense. In the event CLIENT uses rev 7/13 3 any of the information or materials developed pursuant to this Agreement in another project or for other purposes than specified herein and by CONSULTANT at the time such information and materials are delivered, CONSULTANT is released from any and all liability relating to such use in that project. (7) Opinions of Cost. Because the CONSULTANT does not control the cost of labor, materials, equipment or services furnished by others, methods of determining prices, or competitive bidding or market conditions, all opinions rendered as to costs, including but not limited to opinions as to the costs of construction and materials, shall be made on the basis of its experience and represent its judgment as an experienced and qualified professional, familiar with the industry. The CONSULTANT cannot and does not guarantee that proposals, bids or actual costs will not vary from opinions of cost prepared by it. If at any time the CLIENT wishes greater assurance as to the amount of any cost, it shall employ an independent cost estimator. CONSULTANT'S services required to bring costs within any limitation established by the CLIENT will be paid for as Additional Services. (8) Termination. The obligation to provide further services under this Agreement may be terminated by either party upon seven days' written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party, or upon thirty days' written notice for the convenience of the terminating party. If any change occurs in the ownership of the CLIENT, the CONSULTANT shall have the right to immediately terminate this Agreement. In the event of any termination, the CONSULTANT will be paid for all services performed to the effective date of termination, all expenses subject to reimbursement, and other reasonable expenses incurred by the CONSULTANT as a result of such termination. If the CONSULTANT'S compensation is determined on an hourly basis, the amount payable to the CONSULTANT shall be based on the time spent and expenses incurred on the Project to the effective date of termination. If the CONSULTANT'S compensation is a lump sum, the amount payable to the CONSULTANT will be a proportional amount of the total fee based on a ratio of the services done, as reasonably determined by the CONSULTANT, to the total services which were to have been performed. (9) Insurance. During the performance of the services under this Agreement, CONSULTANT shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A - or above: A. Commercial General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with property rev 7/13 4 damage limits of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate. B. Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident. C. Workers' Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $100,000 for each accident. D. Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. E. CONSULTANT shall furnish insurance certificates or insurance policies at CLIENT's request to evidence such coverages. The Commercial General Liability and Automobile Liability insurance policies shall name CLIENT as an additional insured, and shall contain a provision that such insurance shall not be canceled or modified without 30 days' prior written notice to CLIENT and CONSULTANT. In such event, CONSULTANT shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage. (10) Standard of Care. The standard of care applicable to CONSULTANT'S services will be the degree of care and skill ordinarily exercised by consultants performing the same or similar services in the same locality at the time the services are provided. No warranty, express or implied, is made or intended by the CONSULTANT'S undertaking herein or its performance of services, and it is agreed that the CONSULTANT is not a fiduciary with respect to the CLIENT. (11) INDEMNITY AGREEMENT. CONSULTANT shall indemnify, defend, and save and hold harmless CLIENT and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees and related expenses incurred by the CLIENT, but only to the extent the damage is caused by or results from an act of negligence, intentional tort, intellectual property infringement, or failure to pay a subcontractor or supplier committed by the CONSULTANT or the CONSULTANT'S agent, another CONSULTANT under contract, or another entity over which the CONSULTANT exercises control. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any rev 7/13 5 claim, cause of action, or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. (12) Certifications. The CONSULTANT shall not be required to execute certifications or third - party reliance letters that are inaccurate, that relate to facts of which the CONSULTANT does not have actual knowledge, or that would cause the CONSULTANT to violate applicable rules of professional responsibility. (13) Dispute Resolution. All claims by the CLIENT arising out of this Agreement shall be submitted first to nonbinding mediation as a condition precedent to litigation. (14) Hazardous Substances. In no event shall CONSULTANT be a custodian, transporter, handler, arranger, contractor, or remediator with respect to hazardous substances and conditions. CONSULTANT'S services will be limited to professional analysis, recommendations, and reporting, including, when agreed to, plans and specifications for isolation, removal, or remediation. The CONSULTANT shall notify the CLIENT of hazardous substances or conditions not contemplated in Exhibit A of which the CONSULTANT actually becomes aware. Upon such notice by the CONSULTANT, the CONSULTANT may stop affected portions of its services until the hazardous substance or condition is eliminated. (15) Assignment and Subcontracting. Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other than the CLIENT and the CONSULTANT, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the CLIENT and the CONSULTANT and not for the benefit of any other party. The CLIENT shall not assign, sublet or transfer any rights under or interest in this Agreement, or any claim arising out of the performance of services by CONSULTANT, without the written consent of the CONSULTANT. The CONSULTANT reserves the right to augment its staff with subconsultants as it deems appropriate due to project logistics, schedules, or market conditions. If the CONSULTANT exercises this right, the CONSULTANT will maintain the agreed -upon billing rates for services identified in the contract, regardless of whether the services are proved by in-house employees, contract employees, or independent subconsultants. (16) Confidentiality. The CLIENT consents to the CONSULTANT'S use of facts, data and information obtained by the CONSULTANT in the performance of its services. If, however, data or information are specifically identified in writing by the CLIENT as confidential, the CONSULTANT shall use reasonable care to maintain the confidentiality of that material. rev 7/13 6 (17) Miscellaneous Provisions. This Agreement is to be governed by the law of the State of Texas. This Agreement contains the entire and fully integrated agreement between the parties, and supersedes all prior and contemporaneous negotiations, representations, agreements or understandings, whether written or oral. Except as provided in Section 1, this Agreement can be supplemented or amended only by a written document executed by both parties. Provided, however, that any conflicting or additional terms on any purchase order issued by the CLIENT shall be void and are hereby expressly rejected by the CONSULTANT. Any provision in this Agreement that is unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such unenforceability without invalidating the remaining provisions or affecting the enforceability of the provision in any other jurisdiction. The non -enforcement of any provision by either party shall not constitute a waiver of that provision or affect the enforceability of that provision or the remainder of this Agreement. CITY OF ANNA BY: ITS: ATTEST: (IF CORPORATION, AFFIX CORPORATE SEAL) rev 7/13 7 KIMLEY-HORN AND ASSOCIATES, INC. BY: ITS: Assistant Secretary ATTEST: - a:4 EXHIBIT A SCOPE OF SERVICES PROJECT NAME: Sanitary Sewer Inflow & Infiltration (I&I) Analysis PROJECT UNDERSTANDING This project will consist of a sanitary sewer Infiltration/Inflow (I&I) Analysis of the City of Anna wastewater collection system. The approach to the I&I Analysis is organized around the City's objectives for this project: • Reduction in dry and wet weather infiltration/inflow • Cost controls and Least Cost Alternatives to reduce wet weather infiltration/inflow • Attainment of long-term Infiltration/Inflow solutions • Collection System Capacity Assurance • Regulatory compliance • Customer satisfaction SCOPE OF PROFESSIONAL SERVICES TASK 1: TEMPORARY FLOW MONITORING In order to perform an I&I analysis and prioritize the source of wet weather I&I, it will be necessary to obtain flow monitoring information during both dry and wet weather. Under ideal conditions, multiple events are recorded to establish the volume of extraneous water that enters the collection system. From this collected data the inflow response for each storm event is determined. Information obtained during the monitoring period will be used to determine the following for each metering site: • Average daily flow -dry weather • Peak flow -dry weather • Average daily flow -wet weather • Peak flow -wet weather • Peak inflow rates • Total I&I volume A. Flow Meter Site Inspection and Installation The preliminary meter site selection has been accomplished following review of the collection system map. Each monitoring site will be selected so that the footage of the collection system upstream of the meter can be isolated for the purposes of determining extraneous 1/1 and other engineering analysis. Flow meters that record flow depth and velocity are used to obtain the necessary hydraulic information for subsequent analysis. By undertaking temporary flow monitoring, the existing performance of the collection system can be determined. From a review of the collection system, six (6) flow metering sites have been identified. Flow monitoring will be undertaken for forty-five (45) rev 07/13 consecutive days. The final meter site selection will be made after the CLIENT has provided record drawings verifying the sites are ideal for flow monitoring. B. Rain Gauge Installation Rainfall meters are used to accurately measure rainfall intensity and duration throughout the monitoring period. This data will be used to establish the rainfall distribution over the entire study area using GIS mapping tools. The rainfall distribution will establish the amount of rain that fell over each meter basin. Analysis of the flow meter data for each rain event will establish the percentage of rainfall that entered the wastewater collection system. The results obtained from field testing of wastewater collection systems are, to a great degree, weather dependent. In order to minimize the negative impact of inadequate rainfall on the proposed project, the project schedule will consider the local rainfall patterns in order to optimize the field efforts. From a review of the collection system, four (4) rain gauges have been identified. C. Meter Calibration and Data Collection Understanding the hydraulics of each proposed metering location will ensure that the site selection is appropriate and that the recorded data is accurate. Where flow hydraulics are poor due to abrupt changes in flow direction, large deposits of silt, restrictions, etc. a proposed meter location may be changed upstream or downstream to ensure proper hydraulic conditions in order to obtain accurate flow data. The temporary flow meters proposed will utilize the area/velocity technology. Flow information is critical in determining the effects of inadequate capacity, I&I, bottlenecks, and backwater conditions. Both the Manning and continuity equations can be compared for analysis. Under ideal free flow hydraulic conditions the two different equations for flow should provide the same result. However, in a backwater or restrictive hydraulic situation, the Manning equation will over quantify flows and diverge from the continuity equation. Such an occurrence will indicate to the data analyst that a backwater condition was observed and a downstream restriction should be investigated. By obtaining continuous velocity and depth data, the CONSULTANT can further isolate hydraulic problems within the collection system. Each meter will be calibrated in a hydraulic flume prior to installation. In addition, a field calibration check will be performed following installation. Calibration of each meter is a simple procedure consisting of verification of the depth of flow and velocity. The flow sensors will be secured to a steel mounting band that fits securely in the pipeline. The data logger for each site will be installed in the top of each manhole and the meter will be activated at user defined sampling intervals; typically 15 minutes. Routine maintenance and service will be undertaken weekly to confirm normal operation. Final meter locations will be established during site inspections and meters may be moved upstream or downstream due to site hydraulics, traffic or access. D. Services Provided by the CLIENT 1. Record Drawings of Existing Wastewater System 2. Existing Wastewater System Maps rev 07/13 3. Sanitary Sewer Overflow Record Data 4. Existing Wastewater Material Record Data TASK 2: SMOKE TESTING PRIORITY AREAS Smoke testing will provide detailed information on wet weather inflow sources for the study area. In order to identify defects in the lines, a non -toxic smoke will be forced into the sewer by high capacity blowers. Data documentation includes measurements from two permanent points and will be sufficient to establish the location of each defect and determine the best repair method and priority. Color digital photographs will be taken to document each defect during the smoke test. Forty-eight (48) hours prior to testing, door hangers will be used to notify residents. A local telephone number will be provided for those individuals with questions or for anyone requiring special assistance. Each day the fire department will be notified of the crew location since smoke may enter homes through defective plumbing. A. Services Provided by the City 1. Review and approval of Notice to Residents 2. Letter of introduction to be carried by field crews 3. Previous City smoke testing data, if any B. Deliverables 1. Defects listing and database 2. Defect location sketch 3. Digital photographs 4. Smoke Notification Flyers and Notification of Residents 5. Priority ranking of defects (both private and public sector) 6. Repair methods and estimated costs TASK 3: DATA ANALYSIS, REPORT, AND CIP MAP A. Data Analysis During and following completion of the flow and rainfall monitoring, CONSULTANT will analyze the gathered data and develop tabular and graphical summaries. Comparisons with any previous historical flow meter data will be reviewed. The impact of silt and debris rev 07/13 will also be evaluated. Information obtained during the monitoring period will be used to determine the following for each site: 1. Dry Weather Average daily flow — A typical dry weather week will be established that is not impacted by rainfall. Velocity data will be compared to debris levels to analyze the scouring velocity necessary to prevent deposition in the lines. Discrete flows from each monitored sub -basin will be calculated. 2. Dry Weather Peak Flow — Peak flows during dry weather will be determined from the recorded data. 3. Wet Weather Average daily flow - Wet weather flows for each rainfall event will be analyzed to determine the percentage of rainfall that enters the collections system (also known as the leakiness factor). By comparing the storm event flow with the dry weather flows will establish the Rainfall Derived Infiltration/Inflow (RDII). This value will vary for each storm duration and intensity. The discrete RDII for each sub -basin will be determined and will allow the ranking (prioritization) of each sub - basin by severity of RDII. 4. Wet Weather Peak Flow — Peak flow rates during wet weather are critical to the capacity analysis. Peaking ratios (Peak flow rate to average dry weather flow) will be compared for dry and wet weather. 5. Peak Inflow Rates —Peak inflow rates are calculated by observing peak flow during a wet weather event and subtracting the "normal" flow rate during dry weather. 6. Total 1/1 volume- The area under each storm event curve will be evaluated to establish the volume of rainfall induced infiltration/inflow. These values can then be normalized to establish the volume of RDII per inch of rainfall. Projections can then be made to accurately determine the impact of RDII during a normal year. B. Final Report Prepare and submit three (3) copies of the Final Report and electronic spreadsheets including electronic copy of the Final Report. The project report will include the following sections: 1. Executive Summary a. Study Area Description b. Flow and Rain Gauge Sites c. Recorded Rainfall d. Description of tasks e. Dry/Wet weather flow Summary f. Rainfall Distribution Analysis g. Rainfall Dependent Infiltration/Inflow Analysis h. Sub -basin Priority Rankings i. CIP List and Opinions of Construction Cost (OPCC) 2. Conclusions and Recommendations rev 07/13 3. Estimated Sewer System Evaluation Costs based on Findings 4. Appendix of flow data, hydrographs, rainfall data, mapping, photographs C. CIP Map 1. Develop CIP List based on I&I Study 2. Map of CIP List 3. Develop Opinion of Probable Construction Costs (OPCC) for CIP List D. Meetings 1. One (1) Kick -Off Meeting with CLIENT to Review Rain Gauge and Flow Monitoring Locations 2. Meet with CLIENT to Review I&I Findings and CIP List. E. City Council Presentation 1. Present Study and Findings for up to one (1) City Council Meeting 2. Meet with CLIENT to review presentation and receive comments 3. Finalize presentation based on CLIENT input rev 07/13 ADDITIONAL SERVICES Any services not specifically provided for in the above scope will be considered additional services and can be performed at our then current hourly rates. Additional services we can provide include, but are not limited to, the following: • Assisting CLIENT in the defense or prosecution of litigation in connection with or in addition to those services contemplated by this Agreement. Such services, if any, shall be furnished by CONSULTANT on a fee basis negotiated by the respective parties outside of and in addition to this Agreement. • Sampling, testing, or analysis beyond that specifically included in the Scope of Services referenced herein above. • Preparing applications and supporting documents for government grants, loans, or planning advances, and providing data for detailed applications. • Appearing before regulatory agencies or courts as an expert witness in any litigation with third parties or condemnation proceedings arising from the development or construction of the Project, including the preparation of engineering data and reports for assistance to the CLIENT. • Providing professional services associated with the discovery of any hazardous waste or materials in the project route. • Providing construction staking, additional platting, or other surveying services not identified in the above Scope of Services. • Providing any easement acquisition services. • Attending additional public meetings during the project. • Preparation of Easement Documents • Additional sets of bidding documents. • Providing project representative services, on -site inspection, during the construction phase of the project. • Wastewater collection system cleaning and closed circuit television inspection • Any services not listed in the Scope of Services. rev 07/13 EXHIBIT B COMPENSATION CONSULTANT will provide the Scope of Services detailed in Tasks 1 and 2 on a labor fee plus expense basis not to exceed $46,000 as detailed in the following table. Task Description Estimated Quantity Unit Price Total 1 a. Flow Meter Site Inspection and Installation 6 $751.66 $4,510 b. Rain Gauge Installation 4 $172.50 $690 c. Temp Flow Monitoring (6 Sites x 45 Days) 270 Days $101.20 $27,324 d. Temp Rain Gauge Monitoring (4 Sites x 45 180 Days $20.70 $3,726 2 Smoke Testing Priority Areas 15,000 LF $0.65 $9,750 TASKS 1 and 2 TOTAL: 1 $46,000 Labor fee will be billed according to the attached rate schedule, which is subject to annual adjustment. Direct reimbursable expenses such as express delivery services, fees, air travel, and other direct expenses will be billed at 1.15 times cost. All permitting, application, and similar project fees will be paid directly by the CLIENT. Tasks 1 and 2 will be billed monthly based on labor and expenses utilized. CONSULTANT will provide the Scope of Services detailed in Task 3 for the lump sum fee of $29,000 to be billed monthly based on percent complete. The total fee will not exceed $75,000 without prior approval by the CLIENT. Additional services will be negotiated at the time they are identified. Kimley-Horn and Associates, Inc. Standard Rate Schedule (Hourly Rate) Senior Professional 1 $220 - $240 Senior Professional II $180 - $230 Professional $145 - $195 Analyst $140 - $155 Designer $105 - $170 Technical Support $75 - $155 Clerical/Administrative Support $65 - $120 Effective July 2015 rev 07/13 Request for Information Please return this information with your signed contract; failure to provide this information could result in delay in starting your project CLIENT Identification Full, Legal Name of CLIENT Mailing Address for Invoices Federal ID Number Contact for Billing Inquiries Contact's Phone and e-mail CLIENT is (check one) Owner Agent for Owner Unrelated to Owner Property Identification Parcel Parcel Parcel Parcel Street Address County in which Property is Located Tax Assessor's Number(s) Property Owner Identification Owner 1 Owner 2 Owner 3 Owner 4 Owner(s) Name Owner(s) Mailing Address Owner's Phone No. Owner of Which Parcel #? Project Funding Identification — List Funding Sources for the Project Attach additional sheets if there are more than 4 parcels or more than 4 owners rev 07/13 l Item No. 13. City Council Agenda Staff Report Meeting Date: 2/28/2017 Y{OUR; HOMETOWN AGENDAITEM: Consider/Discuss/Action regarding a Resolution approving a Facilities Use Agreement with the Anna Sports Group for 2017. (Maurice Schwanke) ��Il►��I►�i1_IZvi The Anna Sports Group is a non-profit organization that provides fundamental sports programs for children ages 5 to 18 years. The Anna Sports Group will use the ball fields and concession stand at Slayter Creek Park, and the ball fields at Sherley and Johnson Parks for spring baseball and softball programs. The 2017 agreement has been modified based on the Council discussion during the February 14, 2017 meeting. STAFF RECOMMENDATION: Staff recommends approval of the attached Resolution and Agreement. ATTACHMENTS: Description Upload Date Type Anna Sports Group Resolution 2/23/2017 Resolution Facilities Use Agreement 2/23/2017 Exhibit CITY OF ANNA, TEXAS RESOLUTION NO. A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING A FACILITIES USE AGREEMENT WITH THE ANNA SPORTS GROUP FOR 2017, AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAME. WHEREAS, the Anna Sports Group (ASG) is set up to provide fundamental sports for children ages 5 to 18 years; and, WHEREAS, ASG's goal is to provide a basic knowledge of sports to the players and to instill teamwork and good sportsmanship into every player; and, WHEREAS, ASG desires to use facilities owned by the City of Anna ("City") to operate their programs; and, WHEREAS, the City desires to enter into a Facilities Use Agreement (the "Agreement") that formally authorizes the ASG to use City facilities to operate their programs. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS THAT: Section 1. Recitals Incorporated The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. The City Council of the City of Anna, Texas hereby approves the Agreement attached hereto as Exhibit 1, and authorizes the City Manager to execute same. PASSED by the City Council of the City of Anna, Texas, on this 28t" day of February, 2017. ATTEST: APPROVED: City Secretary, Carrie L. Smith Mayor, Mike Crist FACILITIES USE AGREEMENT This Facilities Use Agreement (this "Agreement") is made by and between the City of Anna, Texas (the "City") and the Anna Sports Group ("ASG"), a Texas nonprofit association. The City and ASG are collectively referenced in this Agreement as "the Parties." FOR AND IN CONSIDERATION of the mutual promises and undertakings herein set out, the Parties agree as follows: The City agrees to permit the use of its facilities commonly known as the Sherley Park baseball field, the Johnson Park baseball/softball fields, and the Slayter Creek Park baseball/softball fields (collectively, the "Spring Ball Facilities") for ASG's 2017 Spring Baseball and Softball Regular Season. The Spring Baseball and Softball Regular Season shall run from March 1 through July 31 and shall consist of the regular season games with a maximum of two post -season tournaments. approval from the Citv. Any request by ASG for field usage after July 31 for the Spring Baseball and Softball Regular Season will be negotiated between the City and ASG. "Regular season" is defined as actual regular season games and post -season tournaments, not including practices, try- outs, scrimmages, or preseason games. The City agrees that with the exception of the fields at Slayter Creek Park, ASG shall have priority use of the Spring Ball Facilities for prescheduled team practices during the regular season from 5:00 p.m. to 9:30 p.m. Monday through Friday, and from 5:00 p.m. to 9:30 p.m. on Saturday and Sunday; provided, however, that said priority use shall only apply to times reserved as set forth in practice schedules that have been submitted to and approved by the City in advance of the regular season. ASG shall provide the City with its proposed Regular Season practice schedule for each field prior to the beginning of the season. Use of the fields at times not previously approved for ASG in advance shall be scheduled by the City at its sole discretion. The City agrees to allow ASG to use and manage the concession buildings at Sherley Park, Johnson Park, and Slayter Creek Park (collectively, the "Concession Buildings") in connection with athletic events that occur during the term of this Agreement, except that the Anna Athletic Booster Club shall be given the first option to use the Concession Buildings in connection with UIL baseball and softball games sponsored by Anna ISO. All concession operations shall be in compliance with its use of the Concession Buildings. ASG agrees to pay the City a flat fee of $1,000 for the entire calendar year or $350 per quarter. Such payment(s) shall be due on February 271" or (if made on a quarterly basis) the first payment is due on February 271" with additional quarterly payments due the first day of April, July, and October. In the event ASG does not provide concessions for athletic events that occur during the term of this Agreement, the City may authorize other organizations to use and manage the Concession Buildings to provide concessions at those events. ASG acknowledges that its use of the Spring Ball Facilities and Concession Buildings (collectively, the "Park Facilities") under this Agreement is non-exclusive and that the City has final authority over the scheduling of all Association use (including games and team practices) of the Park Facilities under this Agreement. ASG shall provide the City with the schedule of games for each regular season at least two weeks prior to the start of each regular season. Except as noted below, ASG may reschedule regular season games provided that, the authorized Association representative notifies the City of the schedule change in advance, and the change does not interfere with another previously scheduled use of the Park Facilities. ASG shall not schedule or reschedule games to be played on the athletic fields at Slayter Creek Park without prior approval from the City. IV. The non-exclusive use by ASG of the Park Facilities is subject to the terms of an Interlocal Agreement between the City of Anna and Anna Independent School District ("Interlocal Agreement") executed by said parties on March 20, 2006, as amended. To the extent of any conflict between the Parties' obligations under this Agreement and the City's obligations under the Interlocal Agreement, the City's obligations under this Agreement will yield to the Interlocal Agreement and the City shall not be liable for any damages that may be caused or occasioned by any such conflict. V. Not withstanding anything in this Agreement, ASG's use of the Park Facilities shall be subject to and yield to any and all repairs, maintenance, and construction activities, deemed necessary by the City to preserve, repair, maintain, or expand the Park Facilities or any public facilities owned or operated by the City. The City shall not be liable for any damages that may be caused or occasioned by any such repair, maintenance, or construction activity. VI. The term of this Agreement shall be for one year from January 1, 2017 through December 31, 2017. VII. Upon termination of this Agreement, ASG and the City may negotiate a new agreement. ASG shall have 30 days to remove movable equipment that it owns that is not of a permanent nature, upon termination of this Agreement. Nothing herein shall prohibit the City from entering into facilities use agreements with other organizations provided that other such agreements do not conflict with this Agreement. The City reserves the right to utilize the Park Facilities at all times K other than when the City's use would unreasonably interfere with Association regular -season games that have been properly scheduled in accordance with this Agreement. VIII. ASG shall not assign this Agreement nor shall it sublease or rent out any property of the City. This provision includes sports camps and tournaments. Due to the necessity of inter -league play in order to compete some leagues, ASG shall insure that an Association team is scheduled for each game played on any part of the Park Facilities. IX. ASG shall not engage in any business on any part of the Park Facilities or do anything in connection therewith which shall be in violation of any existing state or federal law or municipal ordinances, or use the same in such manner as to constitute a nuisance. The collection of admission or "gate" fees by ASG is permissible, for no more than two tournaments or special events per calendar year, as long as ASG makes the request to the City for approval at least two weeks prior to the start of the tournament or special event. Association agrees that the location of such admission access points shall not prevent or impede other park users from accessing other common or general areas of the park, including but not limited restrooms. The collection of tournament entry/registration fees by ASG is permissible. 0 ASG SHALL INDEMNIFY AND HOLD HARMLESS THE CITY, ITS AGENTS, OFFICIALS AND EMPLOYEES FROM ANY AND ALL CLAIMS FOR BODILY INJURY, ILLNESS, DEATH, PERSONAL INJURY AND PROPERTY DAMAGE AND ALL OTHER CLAIMS IN ANY WAY RELATED TO, ARISING OUT OF, OR MADE IN CONNECTION WITH ANY ACTIVITIES OF ASG OR ANY OF ITS MEMBERS OR PARTICIPANTS. ASG shall maintain a general liability insurance policy in the amount of at least one million dollars ($1,000,000) and shall name the City as an additional insured on its said policy. The coverage shall contain no special limitations on the scope or protection afforded to ASG, its officials, officers and employees. At least two weeks in advance of the first regular season identified in this Agreement, ASG must provide the City with a certificate of such insurance issued by the insurer. The certificate shall state that the City is an additional insured and that the insurer must provide at least 30 days notice to the City prior to the cancellation of the policy. XI. ASG shall submit to the City the names, addresses and phone numbers of all Association officers and board members within two weeks after election or appointment. ASG shall furnish to the City rosters of all teams, players, coaches and other participants including names, addresses and telephone numbers for all such persons and a listing of the full schedule for the season. The rosters shall be submitted within four weeks after completion of registration and the full schedule shall be submitted at least two weeks prior to the first regular season game. ASG shall also submit a copy of all contracts, if any, entered into by ASG for any of its operations related to the Park 3 Facilities including but not limited to concessions, umpires/referees, equipment rentals, and field maintenance. XII. Within 60 days of the end of the calendar year, ASG shall submit to the City Manager ASG's annual financial report for the prior year which shall include the revenue collected and expenditures that occurred during the reporting period, and the reporting period ending balance of any bank accounts operated by ASG. XIII. ASG shall conduct criminal background checks on all of its volunteers and participants, including but not limited to coaches, board members, and any other person acting in an official capacity with any organization directly overseeing ASG's youth activities. ASG shall employ the National Alliance for Youth Sports to conduct such checks or a reputable company licensed by the State of Texas to conduct such checks. These checks shall be conducted prior to the beginning of each regular season and shall remain valid for the calendar year. ASG shall also adopt and publish a criminal background check policy to be used for determining an individual's eligibility to coach or otherwise participate in its youth activities. Should an individual be disqualified as a result of the check, ASG will prohibit that individual from serving in any capacity with ASG's activities. ASG shall establish a policy as to how its criminal background checks will be processed and will pay for the cost of each check. ASG shall furnish to the City a listing of the persons that have successfully undergone a criminal background check prior to the beginning of any individual's involvement with any youth - related activities. An Association Board Member shall sign this listing for final verification of the actions taken by ASG. XIV. ASG shall furnish in writing to the City the names, addresses, and telephone numbers of persons designated as ASG's "Field Managers." In the case of inclement weather, it shall be the responsibility of a Field Manager to contact and discuss field playability with a "City Representative" before a scheduled game, said Representative(s) to be designated in writing by the City Manager. When this Agreement provides for a City Representative to make a decision, consult with a Field Manager, or otherwise act in connection with ASG's use of the Park Facilities, the Field Manager must solely rely on the decision or action of a City Representative, subject to any contrary decision or action by the City Manager or a licensed peace officer acting in a law - enforcement capacity. XV. ASG agrees to stop play and all other operations on any part of the Park Facilities by 11:00 p.m., unless it receives written permission to go beyond 11:00 p.m. from the City's Representative. ASG shall have the responsibility to turn off all field lighting. XVI. 4 ASG agrees to pay the City a fee of $0 per resident player and $10 per non-resident player per regular season for those leagues/teams scheduled to play on any part of the Park Facilities. This fee is due to the City within two weeks after the start of each regular season. ASG shall pay a 10% late fee in addition to any fees paid after the due date. ULT1IA The Parties shall have the obligations and shall abide by the standards set forth in the below referenced exhibits as qualified herein. The City's obligations as to maintenance of the Park Facilities shall be limited to providing the Park Facilities in a reasonably useable condition, subject to weather and other factors beyond the City's control. Notwithstanding any part of this Agreement, the Parties understand and agree that by entering into this Agreement, the City is not waiving any immunities or limitations of liability available to it under the law and that its obligations as set forth in this Agreement are not intended to create and do not create any duty or standard of care that a municipality would not otherwise be required to meet to avoid liability under Texas law. The nature of this Agreement is to allow ASG limited use of certain City -owned facilities provided that ASG observes the various obligations, restrictions, and limitations set forth herein. Said obligations, restrictions, and limitations are not in the nature of services provided to the City. All services that ASG provides and that relate to its use of facilities under this Agreement are services that ASG provides exclusively to its members and participants, and while this Agreement governs to some extent the manner in which said services are to be provided, the Parties understand and agree that ASG is not providing and shall not provide any goods or services to the City under this Agreement. It is further understood and agreed to by the Parties that this Agreement is not a contract subject to Chapter 271, Subchapter I. of the Texas Local Government Code. This Agreement is intended to be exclusively between and to benefit only the City and ASG, and the Parties do not intend that any third party should benefit from this Agreement or obtain any rights or claims hereunder. It is especially provided and agreed by and between ASG and the City that the exhibits referenced below shall be part of this Agreement as if set out in their entirety said exhibits being: IOVA :II:3111ff_, LW 7lIRM iF1 din- iflTT' EXHIBIT B — Field Inspection and Closure EXHIBIT C — Concession Buildings Maintenance XVIII. This Agreement shall not become effective unless and until ASG provides the City with a true and correct copy of a certificate issued by the Office of the Texas Secretary of State —or other proof satisfactory to the City —that ASG has properly filed with said Office a statement appointing an agent authorized to receive service of process in accordance with Vernon's Ann.Texas Civ.St. Art. 1396-70.01, Sec.12 (a), et seq., as amended (the "Agent"). ASG shall thereafter provide the City with a copy, upon filing, of any amendment(s) to such statement that occur during the term of this Agreement and for two years thereafter. Further, ASG shall take all necessary steps to assure that the City has been provided written notice of the identity and the mailing address and the physical s address of the Agent. The obligations in this paragraph shall survive for two years after the termination of this Agreement. XIX. Any violation by ASG of any of the provisions of this Agreement shall result in the termination of this Agreement and the City's obligations hereunder once the City has provided ASG with sufficient time to cure such violation after the City provides written notice of such violation. In the event any such violation relates to nonpayment or untimely payment by ASG of any sums due hereunder, ASG shall have 60 days after the City provides said notice in which to cure the violation, or such other time as agreed to by the Parties in writing. In the event said violation is for other than nonpayment or untimely payment by ASG, ASG shall have 30 days after the City provides said notice in which to cure said violation, or such other time as is agreed to by the Parties in writing. Notices required to be provided under this Agreement shall be sent by certified U.S. mail, return receipt requested, and shall be considered to have been provided on the date of mailing to the following addresses: If to the City: City Manager City of Anna 111 N. Powell Parkway City of Anna, Texas 75409 If to ASG: This agreement is made and entered into on the day of , CITY OF ANNA: City Manager ANNA SPORTS GROUP: C, Association President EXHIBIT A FACILITIES MAINTENANCE 1. The City shall maintain the turf area of all athletic fields. 2. The City shall maintain all back -stops, fences, and gates. 3. The City shall maintain all bleachers and dugouts. 4. The City shall maintain the ball field lighting systems. 5. The City shall be responsible for the maintenance of any irrigation systems. 6. The City shall be responsible for hauling off trash that has been properly deposited in trash dumpsters. 7. ASG shall provide all bases, pitching plates, soccer goals, and all other equipment required for game play. All soccer goals provided by ASG shall be removed to the edge of the maintained turf areas at the conclusion of each practice or game. Other than bases, pitching plates, soccer goals, and other game -play equipment owned by ASG, ASG shall not permit any damage or removal of any part of the Park Facilities, and shall at all times during its use of the Park Facilities maintain the Park Facilities in good and safe condition. If at any time ASG discovers any poor, damaged or unsafe condition of the Park Facilities, it shall immediately notify a City Representative of same. 8. Unless otherwise provided by the City, ASG shall perform all pre -season infield clay maintenance to include adding clay, clay renovation, and cutting infield areas and base paths. The City shall provide the clay for said maintenance. ASG shall build the pitcher's mounds if needed. The City shall provide clay, sand, soil, etc. to be used in leveling or backfilling low areas when deemed necessary by the City. 9. Unless otherwise provided by the City, ASG shall regularly drag and maintain the infields in a weed -free and playable condition. 10. Unless otherwise provided by the City, ASG shall mark all foul lines, boundary lines, and other field markings required for game play. 11. Following any use by ASG of the athletic fields at Slayter Creek Park, ASG shall ensure that the athletic fields (turf, infields, home plate, bases, base lines, pitcher's mound, etc.) are returned to an acceptable condition for use by other organizations consistent with the City's policies for athletic field maintenance. ASG shall not adjust or allow any adjustment of the athletic fields at Slayter Creek Park that create bases or baselines inside a grass infield. ASG shall not make or allow any other alterations or adjustments to the athletic fields at Slayter Creek Park that are inconsistent with the use required by the Anna ISD for their UIL baseball and softball practices and games. 12.ASG shall be responsible for maintaining all Park Facilities areas and all adjacent grounds in a litter -free condition during its use of the Park Facilities. All litter shall be placed in the bins, cans, and receptacles provided by the City. The City shall provide pick up for these receptacles. 13.ASG shall be responsible for cleaning the City owned restroom facilities adjacent to the Park Facilities and shall provide all necessary supplies, during and immediately after its use of the Park Facilities. 14.ASG shall not perform any maintenance to any turf area or make any modifications to the Park Facilities without written permission from the City. 15.ASG shall be responsible for securing the Park Facilities at the end of each day or evening of play. This includes, but is not limited to, locking all gates and doors and turning off all interior building lighting, and field lighting. 16.ASG shall prohibit its coaches/players from hitting baseballs into any fence unless it occurs in the natural course of a game. Failure to enforce this policy may result in ASG incurring the costs associated with the repairs of the fencing. 17. If ASG desires to request any special park components or other special services be provided by the City for tournaments or other special events, such request shall be submitted to the City at least two weeks prior to the start of the tournament or event. EXHIBIT B FIELD INSPECTION AND CLOSURE Reasons for Athletic Field Closure 1. It is raining or there is a threat of lightning or other dangerous weather condition at game time. 2. Baseball/softball infields, outfields, soccer fields, or other turf areas are too wet. 3. Athletic Fields need to be closed in the interest of participant safety and/or preservation of good playing surfaces. City's General Procedures for Athletic Field Closure (these are internal City procedures for informational purposes and are subject to change without notice) (Weekdays) 1. Inspect Athletic Fields by 3:00 p.m. 2. Make -decision based upon field condition or weather. 3. Consult with the appropriate Field Manager, or his/her designee, about the status of the field(s). 4. Should ASG's Field Manager and the City Representative not agree, the decision of the City Representative shall be final. 5. Check weather and field conditions on evenings when fields will be in use after 6:00 p.m. When necessary, a City Representative will come in and close the fields affected. (Weekends) 1. Inspect Athletic Fields by 3:00 p.m. on Friday and by 7:00 a.m. on Saturday. 2. Make a decision based upon field condition or weather at the time if possible. 3. If a decision at 3:00 p.m. Friday is not possible, a City Representative familiar with the Athletic Fields will make decisions on field closure as needed throughout the weekend. 4. A City Representative will consult with ASG's Field Manager about the status of the fields. 5. Should ASG's Field Manager and a City Representative not agree, the decision of the City Representative shall be final. ImDlementation 1. The primary responsibility for making field closure decisions rests with the City Representative responsible for Athletic field maintenance. However, to the extent a Field Manager observes any weather condition or condition of the field or Park Facilities that threatens safe play, the Field Manager must stop play until the condition has ceased or been repaired and the condition is no longer a threat to safety. 2. The appropriate Association's Field Manager has the responsibility to inform ASG and the participants about the field closure decision. EXHIBIT C CONCESSION BUILDINGS MAINTENANCE 1. ASG shall appoint a Concession Buildings manager who shall be responsible for the maintenance and operation on ASG's concession operations and for compliance with the policies outlined in this Exhibit "C". 2. ASG shall be responsible for cleaning the interior of the building after each and every use or event. Cleaning shall include but is not limited to the following: • All food products and all opened pre -packaged food bags or containers shall be removed from the building. Unopened pre -packaged food left in the building must be placed in the storage area off the floor and stored in a manner that prevents contamination or access by rodents, roaches or other vermin. • All countertops, tables, and other surfaces shall be wiped clean with a disinfectant cleaning product. Any stains, dirt, grease, or food product residue on the walls, doors, and window coverings shall also be removed and surfaces shall be wiped clean. • All floor spills shall be mopped and cleaned with water and a disinfectant cleaning product. • The entire floor area shall be swept clean and all food product residue shall be removed from the building. • All trash containers must be emptied and fitted with a clean plastic liner. All trash must be placed in the trash dumpster provided by the City located in the parking lot. • Barbeque grills and propane containers shall not be stored in the Concession Buildings 3. ASG shall be responsible for securing the Concession Buildings at the end of each day or evening of play, or event. This includes, but is not limited to, locking all doors and service windows and turning off all interior building lighting. 4. ASG shall not permit any damage or removal of any part of the Concession Buildings, the associated equipment and facilities, and shall at all times maintain the buildings, equipment and facilities in good and safe condition. If at any time ASG discovers any poor, damaged or unsafe condition of the building facilities or equipment, it shall immediately notify the City of same. 5. ASG shall be responsible for maintaining all Concession Building and all adjacent grounds in a litter -free condition during its use of the facilities. All litter shall be placed in the bins, cans, and receptacles provided by the City. 6. ASG shall be prohibited from performing any maintenance or making any modifications to the Facilities without written permission from the City.