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11/20/2023 - Regular Agenda Packet - City Council
College Station, TX Meeting Agenda City Council 1101 Texas Ave, College Station, TX 77840 Internet: www.microsoft.com/microsoft-teams/join-a-meeting Meeting ID: 223 427 023 174 | Passcode: MvPmTr Phone: 469-480-7460 | Phone Conference: 952 310 468# November 20, 2023 4:00 PM City Hall Council Chambers College Station, TX Page 1 Notice is hereby given that a quorum of the meeting body will be present in the physical location stated above where citizens may also attend in order to view a member(s) participating by videoconference call as allowed by 551.127, Texas Government Code. The City uses a third- party vendor to host the virtual portion of the meeting; if virtual access is unavailable, meeting access and participation will be in-person only. 1. Call to Order. 2. Executive Session Agenda. Executive Session is closed to the public and will be held in the 1938 Executive Conference Room. The City Council may according to the Texas Open Meetings Act adjourn the Open Meeting during the Consent, Workshop or Regular Agendas and return into Executive Session to seek legal advice from the City Attorney regarding any item on the Workshop, Consent or Regular Agendas under Chapter 551, Texas Government Code. 2.1. Consultation with Attorney {Gov’t Code Section 551.071}; Possible action. The City Council may seek advice from its attorney regarding a pending or contemplated litigation subject or settlement offer or attorney-client privileged information. Litigation is an ongoing process and questions may arise as to a litigation tactic or settlement offer, which needs to be discussed with the City Council. Upon occasion the City Council may need information from its attorney as to the status of a pending or contemplated litigation subject or settlement offer or attorney-client privileged information. After executive session discussion, any final action or vote taken will be in public. The following subject(s) may be discussed: a. Kathryn A. Stever-Harper as Executrix for the Estate of John Wesley Harper v. City of College Station and Judy Meeks; No. 15,977-PC in the County Court No. 1, Brazos County, Texas. b. McCrory Investments II, LLC d/b/a Southwest Stor Mor v. City of College Station; Cause No. 17-000914-CV-361; In the 361st District Court, Brazos County, Texas. c. Shana Elliott and Lawrence Kalke v. City of College Station, et al., Cause No. 22-001122-CV- 85, in the 85th District Court, Brazos County, Texas. d. City of College Station v. 47 Oaks, LLC, Cause No. 626-CC, in the County Court at Law No. 2 of Brazos County, Texas. e. SOAH Docket No. 473-22-2464 and PUC Docket No. 52728 – Application of the City of College Station to Change Rates for Wholesale Transmission Services. f. Cynthia Hopkins & Geoffry Hopkins v. City of College Station, Cause No. 23-002880-CV-85 in the 85th District Court, Brazos County Texas. g. CBL & Associates Management, Inc. v. City of College Station, Cause No. 23-003159-CV-85 In The 85th District Court, Brazos County Texas. h. Legal advice related to City Charter provisions and contractual terms. Page 1 of 101 City Council Page 2 November 20, 2023 i. Legal advice related to an interlocal agreement regarding sewer service with the City of Bryan. j. Legal advice related to an ETJ release petition regarding approximately 5.569 acres of land, generally located at Jones Rd. and Raymond Stotzer Parkway. 2.2. Real Estate {Gov't Code Section 551.072}; Possible action. The City Council may deliberate the purchase, exchange, lease or value of real property if deliberation in an open meeting would have a detrimental effect on the position of the City in negotiations with a third person. After executive session discussion, any final action or vote taken will be in public. The following subject(s) may be discussed: a. Property generally located in the area of FM 60, Boyett Street, Church Ave. and College Main Street. 2.3. Personnel {Gov’t Code Section 551.074}; Possible action. The City Council may deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer. After executive session discussion, any final action or vote taken will be in public. The following public officer(s) may be discussed: a. City Attorney b. City Manager c. Council Self Evaluation 3. The Open Meeting will Reconvene No Earlier than 6:00 PM from Executive Session and City Council will take action, if any. 4. Pledge of Allegiance, Invocation, and Consider Absence Request. Speaker Protocol An individual who desires to address the City Council regarding any agenda item other than those items posted for Executive Session must register with the City Secretary two (2) hours before the meeting being called to order. Individuals shall register to speak or provide written comments at https://forms.cstx.gov/Forms/CSCouncil or provide a name and phone number by calling 979-764- 3500. Upon being called to speak an individual must state their name and city of residence, including the state of residence if the city is located out of state. Speakers are encouraged to identify their College Station neighborhood or geographic location. Please do not carry purses, briefcases, backpacks, liquids, foods or any other object other than papers or personal electronic communication devices to the lectern, nor advance past the lectern unless you are invited to do so. Comments should not personally attack other speakers, Council or staff. Each speaker’s remarks are limited to three (3) minutes. Any speaker addressing the Council using a translator may speak for six (6) minutes. The speaker’s microphone will mute when the allotted time expires and the speaker must leave the podium. 5. Hear Visitors. During Hear Visitors an individual may address the City Council on any item which does not appear on the posted agenda. The City Council will listen and receive the information presented by the speaker, ask staff to look into the matter, or place the issue on a future agenda. Topics of operational concern shall be directed to the City Manager. 6. Consent Agenda. Presentation, discussion, and possible action on consent items which consist of ministerial or "housekeeping" items as allowed by law. A Councilmember may request additional information at this time. Any Councilmember may remove an item from Consent for discussion or a separate vote. Page 2 of 101 City Council Page 3 November 20, 2023 6.1. Presentation, discussion, and possible action of minutes for: • November 9, 2023 Council Meeting Sponsors: Tanya Smith Attachments: 1. CCM110923 DRAFT Minutes 6.2. Presentation, discussion, and possible action on the renewal of an annual price agreement with BPI Materials, LLC not to exceed $2,105,000 for the purchase of Type D Hot Mix Asphalt. Sponsors: Emily Fisher Attachments: 1. Original Bid Tabulation 2. Renewal Acceptance 6.3. Presentation, discussion, and possible action on a contract with Elliott Construction, LLC, not to exceed $197,535 for the repair of an existing wastewater line in the vicinity of Boyett Street and Spruce Street, plus $30,000 in contingency for a total appropriation of $227,535. Approval of this item grants authority for the City Manager to authorize expenditures up to the City’s contingency amount. Sponsors: Gary Mechler Attachments: 1. Location Map 2. Contract 24300152 7. Workshop Agenda. 7.1. Presentation, discussion, and possible action regarding a presentation on options for landscaping along State Highway 6 as part of the upcoming widening project. Sponsors: Emily Fisher Attachments: None 7.2. Presentation, discussion, and possible action regarding the scope of a study for a future convention center. Sponsors: Brian Piscacek Attachments: None 7.3. Presentation and discussion on the Southside Street Signage Project. Sponsors: Barbara Moore Attachments: None 8. Regular Agenda. 8.1. Public Hearing, presentation, discussion, and possible action on a Conditional Use Permit for a Night Club, Bar or Tavern use encompassing approximately 6,902 square feet on 2.05 acres of land generally located at 3164 Holleman Drive South Suite 100. Sponsors: Robin Macias Attachments: 1. Ordinance 2. Vicinity Map, Aerial and Small Area Map 3. Background Information 4. Applicant Supporting Information 5. Site Plan 9. Council Calendar - Council May Discuss Upcoming Events. 10. Items of Community Interest. Page 3 of 101 City Council Page 4 November 20, 2023 The Council may receive reports from a Council Member or City Staff about items of community interest for which notice has not been given, including: expressions of thanks, congratulations or condolence; information regarding holiday schedules; honorary or salutary recognitions of a public official, public employee, or other citizen; reminders of upcoming events organized or sponsored by the City of College Station; information about a social, ceremonial or community event organized or sponsored by an entity other than the City of College Station that is scheduled to be attended by a Council Member, another city official or staff of the City of College Station; and announcements involving an imminent threat to the public health and safety of people in the City of College Station that has arisen after the posting of the agenda. 11.Council Reports on Committees, Boards, and Commissions. A Council Member may make a report regarding meetings of City Council boards and commissions or meetings of boards and committees on which a Council Member serves as a representative that have met since the last council meeting. (Committees listed in Coversheet) 12.Future Agenda Items and Review of Standing List of Council Generated Future Agenda Items. A Council Member may make a request to City Council to place an item for which no notice has been given on a future agenda or may inquire about the status of an item on the standing list of council generated future agenda items. A Council Member’s or City Staff’s response to the request or inquiry will be limited to a statement of specific factual information related to the request or inquiry or the recitation of existing policy in response to the request or inquiry. Any deliberation of or decision about the subject of a request will be limited to a proposal to place the subject on the agenda for a subsequent meeting. 13.Adjourn. The City council may adjourn into Executive Session to consider any item listed on the agenda if a matter is raised that is appropriate for Executive Session discussion. I certify that the above Notice of Meeting was posted on the website and at College Station City Hall, 1101 Texas Avenue, College Station, Texas, on November 16, 2023 at 5:00 p.m. This building is wheelchair accessible. Persons with disabilities who plan to attend this meeting and who may need accommodations, auxiliary aids, or services such as interpreters, readers, or large print are asked to contact the City Secretary’s Office at (979) 764-3541, TDD at 1-800-735-2989, or email adaassistance@cstx.gov at least two business days prior to the meeting so that appropriate arrangements can be made. If the City does not receive notification at least two business days prior to the meeting, the City will make a reasonable attempt to provide the necessary accommodations. Penal Code § 30.07. Trespass by License Holder with an Openly Carried Handgun. "Pursuant to Section 30.07, Penal Code (Trespass by License Holder with an Openly Carried Handgun) A Person Licensed under Subchapter H, Chapter 411, Government Code (Handgun Licensing Law), may not enter this Property with a Handgun that is Carried Openly." City Secretary Page 4 of 101 City Council Page 5 November 20, 2023 Codigo Penal § 30.07. Traspasar Portando Armas de Mano al Aire Libre con Licencia. “Conforme a la Seccion 30.07 del codigo penal (traspasar portando armas de mano al aire libre con licencia), personas con licencia bajo del Sub-Capitulo H, Capitulo 411, Codigo de Gobierno (Ley de licencias de arma de mano), no deben entrar a esta propiedad portando arma de mano al aire libre.” Page 5 of 101 November 20, 2023 Item No. 6.1. Minutes Sponsor: Tanya Smith, City Secretary Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action of minutes for: • November 9, 2023 Council Meeting Relationship to Strategic Goals: • Good Governance Recommendation(s): Recommends Approval. Summary: N/A Budget & Financial Summary: None Attachments: 1. CCM110923 DRAFT Minutes Page 6 of 101 CCM 110923 Minutes Page 1 MINUTES OF THE CITY COUNCIL MEETING IN-PERSON WITH TELECONFERENCE PARTICIPATION CITY OF COLLEGE STATION NOVEMBER 9, 2023 STATE OF TEXAS § § COUNTY OF BRAZOS § Present: John Nichols, Mayor Council: Mark Smith William Wright Linda Harvell Elizabeth Cunha Bob Yancy Dennis Maloney City Staff: Bryan Woods, City Manager Jeff Capps, Deputy City Manager Adam Falco, City Attorney Leslie Whitten, Deputy City Attorney Tanya Smith, City Secretary Ian Whittenton, Deputy City Secretary 1. Call to Order and Announce a Quorum is Present. With a quorum present, the meeting of the College Station City Council was called to order by Mayor Nichols via In-Person and Teleconference at 4:00 p.m. on November 9, 2023, in the Council Chambers of the City of College Station City Hall, 1101 Texas Avenue, College Station, Texas 77840. 2. Executive Session Agenda. In accordance with the Texas Government Code §551.071-Consultation with Attorney, §551.072-Real Estate, §551.074-Personnel, §551.086-Competitive Matters, and the College Station City Council convened into Executive Session at 4:00 p.m. on November 9, 2023, to continue discussing matters pertaining to: 2.1. Consultation with Attorney to seek advice regarding pending or contemplated litigation, to wit: •Kathryn A. Stever-Harper as Executrix for the Estate of John Wesley Harper v. City of College Station and Judy Meeks; No. 15,977-PC in the County Court No. 1, Brazos County, Texas; and •McCrory Investments II, LLC d/b/a Southwest Stor Mor v. City of College Station; Cause No. 17-000914-CV-361; In the 361st District Court, Brazos County, Texas; and •Shana Elliott and Lawrence Kalke v. City of College Station, et al., Cause No. 22-001122-CV- 85, in the 85th District Court, Brazos County, Texas; and Page 7 of 101 CCM 110923 Minutes Page 2 •City of College Station v. 47 Oaks, LLC, Cause No. 626-CC, in the County Court at Law No. 2 of Brazos County, Texas; and •SOAH Docket No. 473-22-2464 and PUC Docket No. 52728 – Application of the City of College Station to Change Rates for Wholesale Transmission Services; and •Cynthia Hopkins & Geoffry Hopkins v. City of College Station, Cause No. 23-002880-CV-85 in the 85th District Court, Brazos County Texas. •CBL & Associates Management, Inc. v. City of College Station, Cause No. 23-003159-CV- 85 In The 85th District Court, Brazos County Texas. 2.2. Deliberation on the purchase, exchange, lease, or value of real property; to wit: •Approximately 28 acres of land generally located at Midtown Drive and Corporate Pkwy in the Midtown Business Park. •Property generally located west of Texas State Highway 6 and in between Harvey Road and Holleman Drive. •Property generally located in the area of FM 60, Boyett Street, Church Ave. and College Main Street. •Approximately 11.6 acres of land generally located near the intersection of Gateway Boulevard and Lakeway Drive. 2.3. Deliberation on the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer; to wit: •City Manager •Council Self-Evaluation 2.4 Deliberation on a competitive matter as that term is defined in Gov’t Code Section 552.133; to wit: •Power Supply 3. The Open Meeting Will Reconvene No Earlier than 6:00 PM from Executive Session and City Council will take action, if any. Executive Session recessed at 6:45 p.m. No action was taken. 4. Pledge of Allegiance, Invocation, consider absence request. 5. PRESENTATION - PROCLAMATIONS, AWARDS, AND RECOGNITIONS. 5.1. Presentation proclaiming November 2023 as Diabetes Awareness Month. Mayor Nichols presented a proclamation marking November 2023 as “Diabetes Awareness Month” to Allie Crawford, Townes Luther, Laurel Siegmund, Presten Green and all Type 1 Diabetics in attendance. 5.2. Presentation proclaiming November 11th as Veterans Day. Mayor Nichols presented a proclamation of November 11th as “Veterans Day” to Johnathan Baird and all Veterans in attendance. 6. Hear Visitors Comments. Page 8 of 101 CCM 110923 Minutes Page 3 No one signed up to speak at this time. 7. CONSENT ITEMS Presentation, discussion, and possible action on consent items which consist of ministerial, or "housekeeping" items as allowed by law: A Councilmember may request additional information at this time. Any Councilmember may remove an item from the Consent Agenda for a separate vote. No items pulled for discussion. 7.1. Presentation, discussion, and possible action of minutes for: •October 26, 2023, Council Meeting 7.2. Presentation, discussion, and possible action regarding the purchase of 10 Monitor/Defibrillators 12-lead ECG from Zoll Medical Corporation for $331,122. 7.3. Presentation, discussion, and possible action Resolution No. 11-09-23-7.3 authorizing the Chief of Police as the authorized official to execute documents necessary for the release of grant funds from the Office of the Governor Homeland Security Division for SWAT team night vision equipment. 7.4. Presentation, discussion, and possible action regarding Resolution No. 11-09-23-7.4 accepting a $239,279.10 grant from the Office of the Governor for purchasing rifle resistant body armor for the Police Department and City Marshalls. 7.5. Presentation, discussion, and possible action on the purchase of electric transmission and related materials from KBS Electrical Distributors, not to exceed $818,085.60. 7.6. Presentation, discussion, and possible action on three (3) Master Agreements for Professional Surveying Services with: Baseline Corporation, not to exceed $100,000; Kerr Surveying, LLC, not to exceed $20,000; and Walker Partners, LLC, not to exceed $20,000. 7.7. Presentation, discussion, and possible action on a Construction Contract with Larry Young Paving, Inc. in the amount of $1,719,810.25 for construction services for the Luther Street Rehab-Marion Pugh to Penberthy Project, plus the City’s contingency in the amount of $220,000 for a total appropriation of $1,939,810.25. Approval of this item grants authority for the City Manager to authorize project expenditures up to the City's contingency amount. 7.8. Presentation, discussion, and possible action on a Professional Services Agreement with Freese and Nichols, Inc. in the amount of $520,520 for the Alum Creek Trunkline Project. 7.9. Presentation, discussion, and possible action on approval of the 2023 Property Tax Roll in the amount of $70,766,287.79. 7.10. Presentation, discussion, and possible action on Contract with Freeit Data Solutions, Inc. in the amount of $421,016.30 for additional Rubrik data storage. Page 9 of 101 CCM 110923 Minutes Page 4 MOTION: Upon a motion made by Councilmember Harvell and a second by Councilmember Maloney, the City Council voted seven (7) for and none (0) opposed, to approve the Consent Items. The motion carried unanimously. 8. WORKSHOP ITEMS 8.1. Presentation, discussion, and possible action regarding truck and trailer parking. Randall Smith, City Engineer, provided a follow-up presentation regarding truck parking within the city limits, including where trucks are currently parking, actions taken since the previous presentation, a summary of the public meeting and what options are available. Current Ordinance and Procedure •City ordinance prohibits Commercial Vehicle parking on “residential streets in residential areas” (Code of Ord - 38.43(b)) •Commercial Vehicle parking allowed on collector streets w/o bike lanes and NOT in residential areas. •Current response is based on resident complaint and safety investigation by Traffic Engineering and Traffic Management Team Council Direction Requested (Options) 1. Prohibit Commercial Vehicle parking citywide. 2. Prohibit unattached/unattended Commercial Trailers. •Currently prohibited in residential areas. 3. Prohibit Commercial Vehicle parking within 30 feet of a driveway citywide. Mayor Nichols opened for Citizens Comments. Tammie Preston-Phillips, College Station, stated that Council needs to think of the needs of drivers/truckers because they must worry about their DOT time that they are require by law to stop after 11 hours of driving, or they would fine if they do not park. There being no further comments, the Citizen Comments was closed. Majority of the Council directing staff to move forward with Option No. 1 – Prohibit Commercial Vehicle parking citywide but with a delay to allow an adjustment time and for the private sector to look at a possible truck parking area. Council directed staff to notify truckers two and one week prior before the meeting, along with public meeting signs. 8.2. Presentation, discussion, and possible action regarding a Capital Projects Update. Jennifer Cain, Capital Projects Director, provided an update on Capital Projects. The current capital projects are:1207 Texas Avenue Renovation, American Pavilion Structural Repairs, Bachmann Little League and Senior League, Bee Creek and Central Park Tennis Courts, Bee Creek Phase 3, and Bird Blinds at Lick Creek Park. Page 10 of 101 CCM 110923 Minutes Page 5 Bond Projects Current, Future, and On-Going Projects Completion •Greens Prairie Widening from Dalton (City Limits to Arrington Rd)Fall 2023 •George Bush Separated Bike Lanes Spring 2024 •Luther Street Rehab Late 2024 •Bee Creek Trunkline Phase III Fall 2024 •Lincoln Avenue Rehab Late 2025 •Rock Prairie Road West Widening (Wellborn Rd to City Limits)Spring 2024 •Rock Prairie Road East Widening (Town Lake to WD Fitch)Fall 2027 •McCulloch Utility Rehab Summer 2024 •Fuel Station at Arnold Road December 2023 •CSU Entry Remodel Spring 2024 •Lick Creek Hike & Bike Trail Improvements October 2023 •Deacon/Cain Railroad Crossing Early 2024 •Krenek Tap Rehabilitation Fall 2025 •Victoria Avenue Roundabouts Starts in 2025 •Holleman Drive West / Jones Bulter Road Roundabout Spring 2026 •Marion Pugh Drive Rehab Fall 2026 •Rock Prairie Road Widening (State Hwy 6 to Town Lake)Late 2025 •Drainage Improvements at University Oaks and Stallings Spring 2024 •College Heights Utility Rehab Starts in 2025 •Sandy Point Pump Station Site Improvements December 2023 •Aggie Field of Honor Cemetery Sales & Maintenance Shop June 2023 •Southeast Park Undetermined 9. REGULAR ITEMS 9.1. Public Hearing, presentation, discussion, and possible action regarding Ordinance No. 2023- 4482 vacating and abandoning two public utility easements at 1115 Anderson Street, the first being a portion of a 15-foot-wide public utility easement located in the Crawford Burnett Survey, Abstract 7, College Station, Brazos County, Texas, and being a portion of the easement described by centerline in Volume 1364, Page 195 of the Official Records of Brazos County, Texas, and the second being a portion of a 20-foot-wide public utility easement located in the Page 11 of 101 CCM 110923 Minutes Page 6 Crawford Burnett Survey, Abstract 7, College Station, Brazos County, Texas and being a portion of the easement described by centerline in Volume 468, Page 92 of the Deed of Records of Brazos County, Texas. Gillian Sitler, Planning and Development, stated that the public utility easement abandonments are being requested by the applicant because of a change in use and layout of the site. The originally dedicated easements were previously utilized for electrical utility service to the building on the tract that has since been abandoned and demolished. It was determined by the City of College Station and the applicant that the proposed use for the site would best be served with underground electrical utility lines. The public utility easements are generally 15-foot wide, extending 119 feet from the north corner of the called 2.805-acre tract, and generally 20-foot wide, extending 121 feet from the north corner of the called 2.805-acre tract. At approximately 8:40 p.m., Mayor Nichols opened the Public Hearing. There being no further comments, the Public Hearing was closed at 8:40 p.m. MOTION: Upon a motion made by Councilmember Maloney and a second by Councilmember Yancy, the City Council voted seven (7) for and none (0) opposed, to adopt Ordinance No. 2023-4482, vacating and abandoning two public utility easements at 1115 Anderson Street, the first being a portion of a 15-foot-wide public utility easement located in the Crawford Burnett Survey, Abstract 7, College Station, Brazos County, Texas, and being a portion of the easement described by centerline in Volume 1364, Page 195 of the Official Records of Brazos County, Texas, and the second being a portion of a 20-foot-wide public utility easement located in the Crawford Burnett Survey, Abstract 7, College Station, Brazos County, Texas and being a portion of the easement described by centerline in Volume 468, Page 92 of the Deed of Records of Brazos County, Texas. The motion carried unanimously. 9.2. Presentation, discussion, and possible action regarding an amendment to a contract with LULAC Oak Hill, Inc. to provide additional funding in the amount of $585,675 of Community Development Block Grant funds for additional funding needed for the complete rehabilitation of LULAC Oak Hill Apartments located at 1105 Anderson. Debbie Eller, Director of Community Services, stated that in April 2021 the City Council approved a Section 108 Loan application to the U. S. Department of Housing and Urban Development (HUD) for the LULAC Oak Hill Apartment Rehabilitation Project. The loan in the amount of $2,808,000 was approved by HUD in August 2021. The loan with LULAC Oak Hill, Inc. closed and a contract for funding was executed on October 20, 2023. Staff explored an increase in the original Section 108 loan amount of $2,808,000 that was approved in 2021 but HUD responded that the amount was not able to be increased as the new request was in a different year than the original loan. Receiving additional funds would require submission of a new loan application. Based on the amount of time to complete the initial loan process, staff reviewed the CDBG funds available and the anticipated expenditures of other projects and determined that allocating additional funds to LULAC would meet the goals identified in the Consolidated Plan and help in meeting the required expenditure requirements. LULAC Oak Hill apartments is a 50-unit complex that was developed in 1978 for elderly, low-income renter households. The rehabilitation project will be extensive and include interior, exterior, common areas, parking, and amenities, essentially making the apartment complex "like new". The total cost of the complete renovation is $3,700,569.69. This equates to $74,011 per unit. The Land Use Restriction Agreement will remain in place for 20 years and ensure that LULAC Oak Hill Apartments will be Page 12 of 101 CCM 110923 Minutes Page 7 available for low-income elderly renters for the entire time. $585,675 in Community Development Block Grant funds is included in the FY2024 Community Development Budget in Rental Housing Rehabilitation. MOTION: Upon a motion made by Councilmember Harvell and a second by Councilmember Wright, the City Council voted six (6) for and one (1) opposed, with Councilmember Yancy voting against, to approve an amendment to a contract with LULAC Oak Hill, Inc. to provide additional funding in the amount of $585,675 of Community Development Block Grant funds for additional funding needed for the complete rehabilitation of LULAC Oak Hill Apartments located at 1105 Anderson. The motion carried. 9.3 Presentation, discussion, and possible action on Resolution No. 11-09-23-9.3 of the City Council of the City of College Station, Texas, determining that a public utility easement containing approximately 0.449 acres of land is needed and needs to be acquired from Clarke & Wyndham, Inc.; Real Alchemy, L.P.; Real Alchemy 1, L.P.; and JPJ Investments for the construction, operation, and maintenance of a public utility easement, as a part of the utility relocations required by the upcoming widening of State Highway 6 by the Texas Department of Transportation ("TxDOT"); and authorizing the institution of eminent domain proceedings. Jennifer Cain, Capital Projects Director, stated that TxDOT is currently designing a project to widen State Highway 6, from State Highway 21 in Bryan to just north of State Highway 40 in College Station. Construction of the TxDOT project is planned to begin in July 2024 and utilities must be relocated as soon as possible to facilitate TxDOT’s proposed construction schedule. An initial offer of $57,236 which was based on an appraisal report completed by Allen, Williford & Seale Inc., was made for the needed easement on April 26, 2023 and a final offer was made on October 23, 2023. The representative for the landowners is unwilling to enter negotiations with the City. Therefore, acquisition by eminent domain is needed to acquire the easement in a timely manner. An approved budget is included for this project in the Electric Fund. There is a sufficient balance remaining for this easement acquisition and future costs. MOTION: Upon a motion made by Councilmember Smith and a second by Councilmember Wright, the City Council voted six (6) for and one (1) opposed, with Councilmember Yancy voting against, to approve Resolution No. 11-09-23-9.3, authorizing the use of the power of eminent domain to acquire the public utility easement described in said resolution for the College Station utility relocation project required by TXDOT’s upcoming project to widen Highway 6. The motion carried. Recorded Vote Mayor Nichols – aye Councilmember Smith – aye Councilmember Wright – aye Councilmember Harvell – aye Councilmember Cunha – aye Councilmember Yancy – nay Councilmember Maloney - aye 9.4. Presentation, discussion, and possible action on Resolution No. 11-09-23-9.4 of the City Council of the City of College Station, Texas, determining that a public utility easement containing three parcels, totaling approximately 1.49 acres of land, is needed and needs to be acquired from POM-College Station, LLC, for the construction, operation, and maintenance of a public utility easement, as a part of the utility relocations required by the upcoming widening Page 13 of 101 CCM 110923 Minutes Page 8 of State Highway 6 by the Texas Department of Transportation ("TxDOT"); and authorizing the institution of eminent domain proceedings. Jennifer Cain, Capital Projects Director, stated that TxDOT is currently designing a project to widen State Highway 6, from State Highway 21 in Bryan to just north of State Highway 40 in College Station. Construction of the TxDOT project is planned to begin in July 2024 and utilities must be relocated as soon as possible to facilitate TxDOT’s proposed construction schedule. POM-College Station, LLC, the landowner, has requested condemnation of the needed easements to facilitate and expedite acquisition due to required lienholder consent, as well as the consent of multiple tenants. The landowner has indicated that they are agreeable to the initial offer of $467,057, which was based on an appraisal report completed by Allen, Williford & Seale Inc., for the three easements. A budget of $1,480,000 is included in the Water Capital Improvement Project Fund (WA2205). A total of $367,144 has been expended or committed to date, leaving a balance of $1,112,856 for this easement acquisition ($10,944 plus associated costs) and future costs. MOTION: Upon a motion made by Councilmember Smith and a second by Councilmember Wright, the City Council voted seven (7) for and none (0) opposed, to approve Resolution No. 11-09-23-9.4, authorizing the use of the power of eminent domain to acquire the public utility easement described in said resolution for the College Station utility relocation project required by TXDOT’s upcoming project to widen Highway 6. The motion carried unanimously. Recorded Vote Mayor Nichols – aye Councilmember Smith – aye Councilmember Wright – aye Councilmember Harvell – aye Councilmember Cunha – aye Councilmember Yancy – aye Councilmember Maloney - aye 9.5. Presentation, discussion, and possible action regarding a Real Estate Contract with HFLPI- College Station LLC for the sale of approximately 11.642 acres in the College Station Business Center generally located near the intersection of Gateway Boulevard and Lakeway Drive for the price of $3,489,000. Brian Piscacek, Economic Development Manager, stated that comprising the southwest corner of the intersection of Gateway Boulevard and Lakeway Drive and adjacent to State Highway 6, Lot 1R is a 5.635-acre lot, and Lot 2 is a 6.007-acre lot in Block 6, Phase Two of the College Station Business Center. The real estate contract is for the sale of the property to HFLPI-College Station, LLC for $3,489,000 with proposed uses including warehousing/distribution and office. MOTION: Upon a motion made by Councilmember Yancy and a second by Councilmember Maloney, the City Council voted seven (7) for and none (0) opposed, to approve a Real Estate Contract with HFLPI-College Station LLC for the sale of approximately 11.642 acres in the College Station Business Center generally located near the intersection of Gateway Boulevard and Lakeway Drive for the price of $3,489,000. The motion carried unanimously. 10. Council Calendar Council reviewed the calendar. Page 14 of 101 CCM 110923 Minutes Page 9 11. Items of Community Interest: The Council may receive reports from a Council Member or City Staff about items of community interest for which notice has not been given, including: expressions of thanks, congratulations or condolence; information regarding holiday schedules; honorary or salutary recognitions of a public official, public employee, or other citizen; reminders of upcoming events organized or sponsored by the City of College Station; information about a social, ceremonial or community event organized or sponsored by an entity other than the City of College Station that is scheduled to be attended by a Council Member, another city official or staff of the City of College Station; and announcements involving an imminent threat to the public health and safety of people in the City of College Station that has arisen after the posting of the agenda. Councilmember Yancy recognized TAMU and the use of their facility and Santas Wonderland. Mayor Nichols recognized Councilmember Cunha for receiving the VIVA award from the College Station Rotary Club. Councilmembers Maloney reported on being recognized by the Governor for College Station becoming the 51st Music Friendly Texas City. 12. Council Reports on Committees, Boards, and Commission: A Council Member may make a report regarding meetings of City Council boards and commissions or meetings of boards and committees on which a Council Member serves as a representative that have met since the last council meeting. (Committees listed in Coversheet) Nothing to report at this time. 13. Future Agenda Items and Review of Standing List of Council Generated Future Agenda Items: A Council Member may make a request to City Council to place an item for which no notice has been given on a future agenda or may inquire about the status of an item on the standing list of council generated future agenda items. A Council Member’s or City Staff’s response to the request or inquiry will be limited to a statement of specific factual information related to the request or inquiry or the recitation of existing policy in response to the request or inquiry. Any deliberation of or decision about the subject of a request will be limited to a proposal to place the subject on the agenda for a subsequent meeting. Nothing to report at this time. 14. Adjournment. There being no further business, Mayor Nichols adjourned the meeting of the City Council at 9:17 p.m. on Thursday, November 9, 2023. ________________________ John P. Nichols, Mayor ATTEST: ___________________________ Tanya Smith, City Secretary Page 15 of 101 November 20, 2023 Item No. 6.2. Annual Price Agreement for the Purchase of Type D Hot Mix Asphalt Sponsor: Emily Fisher, Director of Public Works Reviewed By CBC: N/A Agenda Caption: Presentation, discussion, and possible action on the renewal of an annual price agreement with BPI Materials, LLC not to exceed $2,105,000 for the purchase of Type D Hot Mix Asphalt. Relationship to Strategic Goals: 1. Core Services and Infrastructure Recommendation(s): Staff recommends approval of the annual price agreement. Summary: On November 2, 2022, in response to bid #23-005, the city received three competitive sealed bids for the purchase of Type D Hot Mix Asphalt to be picked up by City crews or delivered to specific job sites. The city requested bids for semi-annual and annual estimates and decided to award them based on the annual pricing. BPI Materials LLC was the lowest responsible bidder and was awarded the contract. Any after-hours or emergency start-up costs will be paid from this not-to- exceed amount. BPI Materials LLC has requested a $2.00 price increase per ton of picked up or delivered Type D Hot Mix Asphalt for this first renewal. This is the first of two possible renewals for this price agreement. Budget & Financial Summary: Funds are budgeted and available in the Roadway Maintenance Fund. Attachments: 1. Original Bid Tabulation 2. Renewal Acceptance Page 16 of 101 Line # DescriptionQTY UOMUnit Extended Unit Extended Unit Extended1Asphalt, Hot‐Mix, Type D, in accordance with TSDHPT 1993 Standard Specs Item #340 To be picked up by City Crews9000 TON $81.00 $729,000.00 $82.50 $742,500.00 $85.00 $765,000.002Asphalt, Hot‐Mix, Type D, in accordance with TSDHPT 1993 Standard Specs Item #340 To be Delivered to job site as requested.6000 TON $88.50 $531,000.00 $99.18 $595,080.00 $97.00 $582,000.003Asphalt, Hot‐Mix, Type D, in accordance with TSDHPT 1993 Standard Specs Item #340 To be picked up by City Crews15000 TON $81.00 $1,215,000.00 $82.50 $1,237,500.00 $85.00 $1,275,000.004Asphalt, Hot‐Mix, Type D, in accordance with TSDHPT 1993 Standard Specs Item #340 To be Delivered to job site as requested.10000 TON $89.00 $890,000.00 $99.18 $991,800.00 $97.00 $970,000.005Emergency Requests after 6:00 p.m. Monday thru Friday or anytime Saturday and Sunday Asphalt, Hot‐Mix, Type D, in accordance with TSDHPT 1993 Standard Specs Item #340 To be picked up by City Crews1 TON $93.00 $93.00 NO Bid $1,500.00 $1,500.006Emergency Requests after 6:00 p.m. Monday thru Friday or anytime Saturday and Sunday Asphalt, Hot‐Mix, Type D, in accordance with TSDHPT 1993 Standard Specs Item #340 To be Delivered to job site as requested.1 TON $102.00 $102.00 NO Bid $1,600.00 $1,600.007Vendor Mileage from College Station Public Works: 310 Krenek Tap Rd, College Station, TX 778401 Mileage $12.00 $12.00 $48.00 $48.00 $22.00 $22.00Total Price $3,365,207.00 Total Price $3,566,928.00 Total Price $3,595,122.00Brazos Paving, Inc. (Prewitt)Vulcan Construction Materials LLCTexas Materials (Texas Materials Group Inc.)Miles Per Google 13.8 Miles 69 Miles 34.3 Miles23‐005 ‐ Page 1Page 17 of 101 CONTRACT & AGREEMENT ROUTING FORM 9.12.23 UPDATED CONTRACT#: ___________ PROJECT #: ____________BID/RFP/RFQ#: ___ Project Name / Contract Description: Name of Contractor: CONTRACT TOTAL VALUE: $ Grant Funded Yes No If yes, what is the grant number: Debarment Check Yes No N/A Davis Bacon Wages Used Yes No N/A Section 3 Plan Incl. Yes No N/A Buy America Required Yes No N/A Transparency Report Yes No N/A NEW CONTRACT RENEWAL # _____ CHANGE ORDER # _____ OTHER ______________ BUDGETARY AND FINANCIAL INFORMATION (Include number of bids solicited, number of bids received, funding source, budget vs. actual cost, summary tabulation) (If required)* CRC Approval Date*: __________ Council Approval Date*: ____________ Agenda Item No*: ______ --Section to be completed by Risk, Purchasing or City Secretary’s Office Only— Insurance Certificates: ______ Performance Bond: ________ Payment Bond: ________ Info Tech: _______ SIGNATURES RECOMMENDING APPROVAL __________________________________________ _________________________________ DEPARTMENT DIRECTOR/ADMINISTERING CONTRACT DATE __________________________________________ _________________________________ ASST CITY MGR – CFO DATE __________________________________________ _________________________________ LEGAL DEPARTMENT DATE APPROVED & EXECUTED __________________________________________ _________________________________ CITY MANAGER DATE __________________________________________ _________________________________ MAYOR (if applicable) DATE __________________________________________ _________________________________ CITY SECRETARY (if applicable) DATE Type D Hot Mix - Pick up Brazos Paving Inc. (Materials) 2,105,000.00 n n n n n n 1 This is for the pick up of Type D Hot Mix funds are in the Streets budget, this is an annual not to exceed. This includes a $2.00 per ton price increase. This is the first renewal of two possible renewals. N/A 11/20/23 N/A N/A N/A N/A N/A 23300245R1 11/6/2023 11/6/2023 11/6/2023 Page 18 of 101 the heart of the Research Valley RENEWAL (1) ACCEPTANCE By signing herewith, I acknowledge and agree to renew contract no. 23300245, for the Annual Price Agreement for Hot Mix Type D (Delivery and Pick up) Bid No. 23-005. For a not to exceed amount of $2,105,000 this amount includes a $2.00 per ton price increase. All other terms and conditions are unchanged and accepted . This is the first of two possible renewal options. I understand this renewal term will be for the period beginning December 08, 2023, through December 07, 2024. BRAZOS PAVING, INC. CITY OF COLLEGE STATION By: By: Printed Name: City Manager Title: Date: ________________ Date: APPROVED: City Attorney Date: _____________ Asst. City Manager/CFO Date:_____________ Billy Prewitt 11/2/2023 Sr. Vice President 11/6/2023 11/6/2023 Page 19 of 101 10/27/2023 Risk Services - Leavitt Insurance Agencies 510 N Valley Mills Dr, Ste 701 Waco TX 76710 Lisa Marroquin (254) 772-6074 (318) 795-4892 lisa-marroquin@leavitt.com Brazos Paving, Inc. PO Box 714 Bryan TX 77806 United Fire & Casualty Company 13021 Texas Mutual Insurance Company 22945 Westchester Surplus Lines Insurance 10172 23-24 LIAB A 85315640 11/01/2023 11/01/2024 1,000,000 100,000 5,000 1,000,000 2,000,000 2,000,000 Employee Benefits 1,000,000 A 85315640 11/01/2023 11/01/2024 1,000,000 PIP-Basic 2,500 A 85315640 11/01/2023 11/01/2024 5,000,000 B N 0001207539 11/01/2023 11/01/2024 1,000,000 1,000,000 1,000,000 C Pollution Liability G71755423 005 11/01/2023 11/01/2024 Each Poll Condition 1,000,000 Aggregate 2,000,000 City of College Station P. O. Box 9960 College Station TX 77842 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY Page 20 of 101 November 20, 2023 Item No. 6.3. Wastewater Line Repair – Boyett Street and Spruce Street Sponsor: Gary Mechler, Director of Water Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action on a contract with Elliott Construction, LLC, not to exceed $197,535 for the repair of an existing wastewater line in the vicinity of Boyett Street and Spruce Street, plus $30,000 in contingency for a total appropriation of $227,535. Approval of this item grants authority for the City Manager to authorize expenditures up to the City’s contingency amount. Relationship to Strategic Goals: 1. Core Services and Infrastructure Recommendation(s): Staff recommends approval. Summary: The subject construction contract is to repair an existing 6-inch wastewater line near Boyett Street and Spruce Street. In recent weeks, the subject older wastewater line has deteriorated and caved-in causing a sewer stoppage. Water Services Staff has been able to temporarily unblock the line and maintain temporary service. The subject repair contract would involve replacing the 6-inch diameter wastewater line with pipe bursting method for approximately 260 linear feet of wastewater pipe and due to existing constraints, and replacing an additional 150 linear feet of 6-inch wastewater line with open trench. Elliott Construction was the lowest responsible bidder at $197,535.00. Budget & Financial Summary: Wastewater operating funds are budgeted and available for this repair contract. Attachments: 1. Location Map 2. Contract 24300152 Page 21 of 101 ! ! ! !!2 !!2 !!2 !!2 !!2 !!2 !!2 !!2 !!2 !!2 !!2 MAPLE AVSPRUCE STFIRST ST BOYETT STBOYETT ST FIRST ST MAPLE AVSPRUCE ST6"15"6"12" 8"6"6"8"15"6"10"10"6" 12"15"6" 6" N 0 10050Feet City of College Station Location Map Page 22 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 1 CITY OF COLLEGE STATION STANDARD FORM OF CONSTRUCTION AGREEMENT This Agreement is entered into by and between the City of College Station, a Texas home-rule municipal corporation (the “City”) and ______________________________________________________ (the “Contractor”) for the construction and/or installation of the following: _________________________________________________________________________________________. 1. DEFINITIONS 1.01 Calendar Day.The term "calendar day" shall mean any day of the week or month, no days being excepted. 1.02 City.The term "City" shall mean and be understood as referring to the City of College Station, Texas. 1.03 City’s Consultant.The term “City’s Consultant” or “Consultant” shall mean and be understood as referring to the City’s design professional(s) for the Project. 1.04 City's Representative.The term "City's Representative" or "Representative" shall mean and be understood as referring to the City Manager or his delegate or delegates, including a project management firm if applicable, who shall act as City's agent. 1.05 Contingency Amount.The term “Contingency Amount” shall mean and be understood as referring to the amount established and appropriated by the City, to be used exclusively by the City and in the City’s sole discretion, to pay City-authorized costs associated with Change Orders and other related expenses for this Project. The Contractor agrees that the Contingency Amount, if any, is established by and is for the sole use of the City, that the Contingency Amount is not included in the Contract Amount, and that the Contractor has no right to use or receive any Contingency Amount unless authorized by the City in a written and duly authorized change order. The City’s Contingency Amount is: ___________________________________________________________ and ______/100 Dollars ($______________________). 1.06 Contract Amount.The term “Contract Amount” shall mean the amount of Contractor’s lump sum base bid proposal, together with all alternates, as accepted by the City in accordance with the Contractor’s Proposal. In the case of a unit price contract, Contract Amount shall mean the sum of the product of all unit prices multiplied by the respective estimated final quantities of work, for all base bid and alternates, as accepted by the City. Except in the event of a duly authorized change order approved by the City as provided in this Agreement, and in consideration of the Contractor’s final completion of all Work in conformity with this Agreement, the City shall pay the Contractor an amount not to exceed:_________________________________________________________ and ______/100 Dollars ($______________________). 1.07 Contract Documents.The term "Contract Documents" shall mean those documents listed in Section 2.01. 1.08 Contractor.The term "Contractor" shall mean the person(s), partnership, or corporation who has agreed to perform the Work contemplated in this Agreement and the other Contract Documents. 1.09 Contractor’s Proposal.The term “Contractor’s Proposal” shall mean the document provided by the Contractor in response to, and shall include all information required by the City’s Request for Proposal/Invitation to Bid for the Project. Page 23 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 2 1.10 Extra Work.The term "Extra Work" shall mean and include work that is not covered or contemplated by the Contract Documents but that may be required by City's Representative and approved by the City in writing prior to the work being done by the Contractor. 1.11 Final Completion.The term "Final Completion" shall mean that all the Work has been completed, all final punch list items have been inspected and satisfactorily completed, all payments to materialmen and subcontractors have been made, all documentation and warranties have been submitted, and all closeout documents have been executed and approved by the City. 1.12 Hazardous Substance.The term "Hazardous Substance" shall mean and include any element, constituent, chemical, substance, compound, or mixture, which is defined as a hazardous substance by any local, state or federal law, rule, ordinance, by-law, or regulation pertaining to environmental regulation, contamination, clean- up or disclosure, including, without limitation, The Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), The Resource Conservation and Recovery Act ("RCRA"), The Toxic Substances Control Act ("TSCA"), The Clean Water Act ("CWA"), The Clean Air Act ("CAA"), and the Marine Protection Research and Sanctuaries Act ("MPRSA"), The Occupational Safety and Health Act ("OSHA"), The Superfund Amendments and Reauthorization Act of 1986 ("SARA"), or other state superlien or environmental clean-up or disclosure statutes including all state and local counterparts of such laws (all such laws, rules and regulations being referred to collectively as "Environmental Laws"). 1.13 Environmental Laws.The term “Environmental laws” shall mean collectively, any local, state or federal law, rule, ordinance, by-law, or regulation pertaining to environmental regulation, contamination, clean-up or disclosure, including, without limitation, The Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), The Resource Conservation and Recovery Act ("RCRA"), The Toxic Substances Control Act ("TSCA"), The Clean Water Act ("CWA"), The Clean Air Act ("CAA"), and the Marine Protection Research and Sanctuaries Act ("MPRSA"), The Occupational Safety and Health Act ("OSHA"), The Superfund Amendments and Reauthorization Act of 1986 ("SARA"), or other state superlien or environmental clean-up or disclosure statutes including all state and local counterparts of such laws. 1.14 Interpretation of Phrases.Whenever the words "directed", "permitted", "designated", "required", "considered necessary", "prescribed", or words of like import are used, it is understood that the direction, requirement, permission, order, designation, or prescription of City's Representative is intended. Similarly, the words "approved", "acceptable", "satisfactory", or words of like import shall mean approved by, accepted by, or satisfactory to City's Representative. 1.15 Nonconforming work.The term "nonconforming work" shall mean Work or any part thereof that is rejected by City’s Representative as not conforming with the Contract Documents. 1.16 Parties.The "parties" are the City and the Contractor. 1.17 Project.The term "Project" shall mean the construction of an improvement to real property where the Work comprises either whole or a part of such construction and which may include construction by the City or separate contractors. 1.18 Project Manager.The term “Project Manager” shall mean the Contractor’s Project Manager. The Project Manager shall assist the City in performing various administrative and oversight duties relating to the Work, subject to limitations in authority that must be verified by Contractor. Page 24 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 3 1.19 Subcontractor.The term "subcontractor" shall mean and include only those hired by and having a direct contract with Contractor for performance of work on the Project. The City shall have no responsibility to any subcontractor employed by a Contractor for performance of work on the Project, and all subcontractors shall look exclusively to the Contractor for any payments due. 1.20 Substantially Completed.The term "Substantially Completed" means that in the opinion of the City's Representative the Project, including all systems and improvements, is in a condition to serve its intended purpose but still may require minor miscellaneous work and adjustment. Final payment of the Agreement Price, including retainage, however, shall be withheld until Final Completion and acceptance of the Work by the City. Acceptance by the City shall not impair or waive any warranty obligation of Contractor. 1.21 Work.The term "Work" as used in this Agreement shall mean the construction and services required by the Contract Documents and Exhibits, including any duly authorized change orders, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor to fulfill its obligations. The Work may constitute the whole or a part of the Project. The Work includes but is not limited to all labor, parts, supplies, skill, supervision, transportation, services, and other facilities and all other items needed to produce, construct, and fully complete the Project. 1.22 Working Day.A "working day" means any day not including Saturdays, Sundays, or legal holidays. 2. CONTRACT DOCUMENTS 2.01 The Contract Documents and their priority shall be as follows: (a)This signed Agreement. (b)Addendum to this Agreement. (c)General Conditions, as may be applicable. (d)Special Conditions, as may be applicable. (e)Specifications, including the technical specifications set out at BCS Unified Design Guidelines (“Specifications”). (f)Plans. (g)Instructions to Bidders and any other notices to Bidders or Contractor. (h)Performance bond, Payment bonds, Bid bonds and Special bonds. (i)Contractor's Proposal. 2.02 Where applicable, the Contractor will be furnished three (3) sets of plans, specifications, and related Contract Documents for its use during construction. Plans and Specifications provided for use during construction shall be furnished directly to the Contractor only. 2.03 The Contractor shall distribute copies of the Plans and Specifications to suppliers and subcontractors as necessary. The Contractor shall keep one (1) copy of the Plans and Specifications accessible at the work site with the latest revisions noted thereon. For proper execution of the Work contemplated by this Agreement, additional sets of drawings, plans and specifications may be purchased by the Contractor. 2.04 All drawings, specifications, and copies thereof furnished by the City shall not be re-used on other work, and with the exception of one (1) copy of the signed Contract Documents, all documents, including sets of the Plans and Specifications and “as built” drawings, are to be returned to the City on request at the completion of the Work. All Contract Documents, models, mockups, or other representations are the property of the City. Page 25 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 4 2.05 In the event of inconsistencies within or between parts of the Contract Documents, the Contractor shall (1) provide the better quality or greater quantity of Work, or (2) comply with the more stringent requirement, either or both in accordance with the City’s interpretation. The terms and conditions of this Section2.05,however, shall not relieve the Contractor of any of the obligations set forth in Sections 8.01. and 8.02 of this Agreement. 3. AWARD OF CONTRACT 3.01 Upon the notice of intent to award of the contract by the City, the parties shall execute this Agreement, and the Contractor shall deliver to City's Representative all documents, bonds, and certificates of insurance required herein. 3.02 Time is of the essence of this Agreement.Accordingly, the Contractor shall be prepared to perform the Work in the most expedient and efficient possible manner in order to complete the Work by the times specified in this Agreement for Substantial Completion and Final Completion. In addition, the Contractor's work on the Project shall be commenced on the date to be specified in the City’s written notice to proceed.The notice to proceed may not be given, nor may any Work be commenced, until this Agreement is fully executed and complete, includingall required exhibits and other attachments, particularly those required under Sections 27 and 28 (Insurance & Bonds). 4. CITY'S REPRESENTATIVE 4.01 The Contractor shall forward all communications, written or oral, to the City through the City's Representative. 4.02 The City's Representative may periodically review and inspect the Work of the Contractor. 4.03 The City's Representative shall appoint, from time to time, such subordinate supervisors or inspectors as City's Representative may deem proper to inspect the Work performed under this Agreement and ensure that said Work is performed in accordance with the Plans and Specifications. 4.04 The City’s Representative shall interpret questions concerning the Contract Documents. The City’s inspector has authority to reject any of the Work for failure to comply with the Contract Documents and/or applicable laws. 4.05 Should the Contractor object to any orders by any subordinate supervisor or inspector, the Contractor may, within two (2) days from receipt of such order, make written appeal to City's Representative for his decision. 5. INDEPENDENT CONTRACTOR 5.01 In all activities or services performed hereunder, the Contractor is an independent contractor and not an agent or employee of the City. The Contractor, as an independent contractor, shall be responsible for the final product contemplated under this Agreement. Except for materials furnished by the City, the Contractor shall supply all materials, equipment and labor required for the execution of the Work. The Contractor shall have ultimate control over the execution of the Work under this Agreement. The Contractor shall have the sole obligation to employ, direct, control, supervise, manage, discharge, and compensate all of its employees and subcontractors, and the City shall have no control of or supervision over the employees of the Contractor or any of the Contractor's subcontractors except to the limited extent provided for in this Agreement. Page 26 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 5 5.02 Standard of Care.The Work shall be performed in a good and workmanlike manner, and in accordance with this Agreement, and all applicable laws, codes, and regulations. The construction of the Project is subject to amendments and adjustments to the Contract required by any applicable changes in regulations or requested or approved by in writing by the City. If at any time during the progress of the Work the Contractor becomes aware of any errors or omissions in the Plans or Specifications for this Project or that the Agreement deviates from applicable legal requirements, Contractor shall promptly provide written notice thereof to the City. The Contractor shall supervise and direct the Work, using the Contractor’s best skill and attention. 5.03 The Contractor shall retain personal control and shall give its personal attention to the faithful prosecution and completion of the Work and fulfillment of this Agreement. The Contractor shall be responsible for and have control over construction means, methods, techniques, sequences and procedures, and for coordinating all portions of the Work. The subletting of any portion or feature of the Work or materials required in the performance of this Agreement shall not relieve the Contractor from its obligations to the City under this Agreement. The Contractor shall appoint and keep on the Project site during the progress of the Work, including at all times subcontractors are present at the Project site, a competent English speaking Project Manager and/or superintendent and any necessary assistants, all satisfactory to City's Representative, to act as the Contractor's representative and to supervise its employees and subcontractors. All directions given to the Project Manager and/or superintendent shall be binding as if given to the Contractor. Adequate supervision by competent and reasonable representatives of the Contractor is essential to the proper performance of the Work, and lack of such supervision shall be grounds for suspending the operations of the Contractor and is a breach of this Agreement. 5.04 Unless otherwise stipulated, the Contractor shall provide and pay for all labor, materials, tools, equipment, transportation, facilities, and drawings, including engineering, and any other services necessary or reasonably incidental to the performance of the Work by the Contractor. Any additional work, material, or equipment needed to meet the intent of this provision shall be supplied by the Contractor without claim for additional payment, even though not specifically mentioned herein. 5.05 Any injury or damage to the Contractor or the Project caused by an act of God, natural cause, a party or entity not privy to this Agreement, or other force majeure shall be assumed and borne by the Contractor. 6. DISORDERLY EMPLOYEES The Contractor agrees to employ only orderly and competent employees skillful in the performance of the type of work required, and agrees that whenever City's Representative shall inform the Contractor in writing that any person or persons on the Project are, in his opinion, incompetent, unfaithful, or disorderly, such person or person shall be discharged from the Project and shall not again be re-employed on the site or the Project without City's Representative's written permission. 7. HOURS OF WORK The Contractor may work Monday through Friday from 7 a.m. to 6 p.m., exclusive of Saturdays, Sundays, or legal holidays. The Contractor may work overtime, weekends, and holidays only when approved in advance by the City's Representative. The time for Substantial Completion shall not be affected in any way by inclusion of this section or by the City's consent or lack of consent to work outside of the times specified in this Agreement. 8. NATURE OF THE WORK 8.01 It is understood and agreed that the Contractor has, by careful examination, studied and compared the Plans and other Contract Documents, satisfied itself as to the nature and location of the Work, the conditions of Page 27 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 6 the ground and soil, the nature of any structures, the character, quality, and quantity of the material to be utilized, the character of equipment and facilities needed for and during the prosecution of the Work, the time needed to complete the Work, Contractor's ability to meet all deadlines and schedules required by this Agreement, the general and local conditions, including but not limited to weather, and all other matters that in any way affect the Work under this Agreement. These obligations are for the purpose of facilitating construction by the Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents; however, any errors, inconsistencies or omissions discovered, or which reasonably should have been discovered by the Contractor shall be reported promptly to the City as a request for information in such form as the City may require. However, the Contractor shall not perform any act or do any Work that places the safety of persons at risk or potentially damages materials or equipment used in the Project, and the Contractor shall do nothing that would render any test or tests erroneous. 8.02 Any design errors or omissions noted by the Contractor shall be reported promptly to the City, but it is recognized that the Contractor’s review is made in the Contractor’s capacity as a contractor and not as a licensed design professional unless otherwise specifically provided in the Contract Documents. Any nonconformity discovered by or which reasonably should have been discovered or made known to the Contractor shall be reported promptly to the City. 8.03 If the Contractor fails to perform the obligations of Sections 8.01. and 8.02., the Contractor shall pay such costs and damages to the City as would have been avoided if the Contractor had performed such obligations. The Contractor shall not be liable to the City for damages resulting from errors, inconsistencies or omissions in the Contract Documents or for differences between field measurements or conditions and the Contract Documents unless the Contractor recognized or reasonably should have recognized such error, inconsistency, omission or difference and knowingly failed to report it to the City. 9. POST-AGREEMENT AWARD MEETINGS 9.01 Prior to the commencement of the Work, the parties shall meet and attend a post-agreement award meeting at the time and place determined by City's Representative. At the post-agreement award meeting, the parties shall meet, discuss, and finalize all schedules, including commencement date, and/or specifications submitted for review. No later than ten (10) days prior to the post-agreement award meeting, the Contractor shall submit to City's Representative the following documents: (a)Schedule for performance of the Work (“Construction Schedule”). Project Schedule contemplated, including the starting and ending date, as well as an indication of the completion of stages of Work hereunder. Such document, once approved by the City and, if applicable, the City’s Consultant shall be incorporated into this Agreement as a Contract Document and attached hereto as Exhibit E. If not accepted, the Construction Schedule shall be promptly revised by the Contractor in accordance with the recommendations of the City and Consultant and resubmitted for acceptance. The Construction Schedule shall not be modified except by written change order. Additional days or changes to the number of days in the Construction Schedule shall also be by written change order. After a written change order is approved and fully executed by all parties, the Contractor shall submit an updated Construction Schedule that reflects changes authorized by approved change orders. The Construction Schedule shall not exceed time limits current under the Contract Documents, shall be submitted with each pay application, shall be related to the entire Project to the extent required by the Contract Documents, and shall provide for expeditious and practicable execution of the Work. (b)The names and addresses of all proposed subcontractors in writing. Page 28 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 7 (c)Schedules of the starting and ending dates of subcontractors and the scope of Work contemplated for subcontractors. (d)Name, local office, phone number and addresses and, home phone numbers for the Contractor and its Project Superintendent/Manager. (e)For construction projects, four (4) copies of all shop and/or setting drawings or schedules for the submission thereof, including PDF/electronic versions and CAD files. (f)Where applicable, materials procurement schedules and material supplier names, addresses and phone numbers. 9.02 The City's Representative, within five (5) working days after the initial post-agreement award conference or any other meetings, may submit minutes of the meeting to the Contractor. The Contractor shall thereafter have five (5) working days to review the minutes and make its objections, changes, or reductions thereto in writing. The Contractor shall thereafter sign the minutes and promptly return them to City's Representative. Where there is disagreement, City's Representative will make the final determination. 10. PROGRESS OF WORK 10.01 The Construction Schedule shall be in a detailed precedence-style critical path method (“CPM”) or primavera-type format satisfactory to the City and the Consultant. The Construction Schedule shall also (i) provide a graphic representation of all activities and events that will occur during performance of the Work; (ii) identify each phase of construction and occupancy; and (iii) set forth dates that are critical in ensuring the timely and orderly completion of the Work in accordance with the requirements of the Contract Documents (hereinafter referred to as “Milestone Dates”). If not accepted, the Construction Schedule shall be promptly revised by the Contractor in accordance with the recommendations of the City and Consultant and resubmitted for acceptance. 10.02 Further, the parties shall be subject to the following: (a)The Contractor shall submit a Construction Schedule and schedule of values at the initial post- agreement award meeting and subsequent meetings. (b)City's Representative shall be entitled to make objections to the Contractor's Construction Schedule submitted herein. The Contractor shall promptly resubmit a revised Construction Schedule to City's Representative. (c)The Project Superintendent/Manager shall coordinate its activities with City's Representative. If required by the City, the Contractor shall provide a weekly schedule of planned activities, which may be reviewed on a daily basis. (d)The Contractor shall submit, at such time as may reasonably be requested by City's Representative, additional schedules that shall list the order in which the Contractor proposes to carry on the Work with dates at which the Contractor will start the several parts of the Work and the estimated dates of completion of the several parts. (e)The Contractor shall attend additional meetings called by City's Representative upon twenty-four (24) hours written notice unless otherwise agreed in writing by the parties. Page 29 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 8 (f)When the City is having other work done, either by agreement or by its own force, City's Representative may direct the time and manner of work done under this Agreement so that conflicts will be avoided and the various work being done by and for the City shall be coordinated. (g)In the event that it is determined by the City that the progress of the Work is not in accordance with the approved Construction Schedule, the City may so inform the Contractor and require the Contractor to take such action as is necessary to insure completion of the Project within the time specified. 10.03 The process of approving the Construction Schedule and updates to the Construction Schedule shall not constitute a warranty by the City that any non-Contractor milestones or activities will occur as set out in the Construction Schedule. Approval of the Construction Schedule does not constitute a commitment by the City to furnish any City-furnished information or material any earlier than the City would otherwise be obligated to furnish that information or material under the Contract Documents. Failure of the Work to proceed in the sequence scheduled by Contractor shall not alone serve as the basis for a claim for additional compensation or time. In the event there is interference with the Work which is beyond its control, Contractor shall attempt to reschedule the Work in a manner that will hold the additional time and costs beyond its control to a minimum. The Contractor shall monitor the progress of the Work for conformance with the requirements of the Construction Schedule and shall promptly advise the City of any delays or potential delays. In the event the Construction Schedule indicates any delays, the Contractor shall propose an affirmative plan to correct the delay. In no event shall any adjustment to the Construction Schedule constitute an adjustment in the Contract Time, any Milestone Date or the Contract Sum unless any such adjustment is agreed to by the City and authorized pursuant to Change Order. 10.04 The Contractor shall also prepare a submittal schedule promptly after being awarded the Contract and thereafter as necessary to maintain a current submittal schedule, and shall submit the schedule(s) for the Consultant’s approval. The Consultant’s approval shall not unreasonably be delayed or withheld. The submittal schedule shall (i) be coordinated with the Contractor’s Construction Schedule; and (ii) allow the Consultant reasonable time to review submittals. If the Contractor fails to submit a submittal schedule, the Contractor shall not be entitled to any increase in Contract Sum or extension of Contract Time based on the time required for review of submittals. 10.05 In the event the City determines that the performance of the Work, as of a Milestone Date or otherwise, has not progressed or reached the level of completion required by the Contract Documents, the City shall have the right to order the Contractor to take corrective measures necessary to expedite the progress of construction, including, without limitation, (i) working additional shifts or overtime; (ii) supplying additional manpower, equipment, and facilities; and (iii) other similar measures (hereinafter referred to collectively as “Extraordinary Measures”). Such Extraordinary Measures shall continue until the progress of the Work complies with the stage of completion required by the Contract Documents. The City’s right to require Extraordinary Measures is solely for the purpose of ensuring the Contractor’s compliance with the Construction Schedule. (a)The Contractor shall not be entitled to an adjustment in the Contract Sum in connection with Extraordinary Measures required by the City under or pursuant to this Subsection. (b)The City may exercise the rights furnished the City under or pursuant to this Subsection as frequently as the City deems necessary to ensure that the Contractor’s performance of the Work will comply with any Milestone Date or completion date set forth in the Contract Documents. 10.06 Work Stoppage.If in the judgment of either the City or City's Representative any of the Work or materials furnished is not in strict accordance with this Agreement or any portion of the Work is being performed Page 30 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 9 so as to create a hazardous condition, they may, in their sole discretion, order the Work of the Contractor or any subcontractor wholly or partially stopped until any objectionable person, work, or material is removed from the premises. Such stoppage or suspension shall neither invalidate any of the Contractor's performance obligations under this Agreement, including the time of performance and deadlines therefore, nor will any extra charge be allowed the Contractor by reason of such stoppage or suspension. 11. SITE CONDITIONS AND MANAGEMENT 11.01 Where the Contractor is working around or in existing structures, it shall verify conditions at the site, including but not limited to, door openings and passages. Any items constructed or manufactured off-site or outside of buildings shall be done so that they are not too bulky for existing facilities. The Contractor shall provide special apparatus as required to handle any such items. All special handling equipment charges shall be at the Contractor's expense. Further, Contractor shall include in its price for the Work, all labor, materials, equipment and/or engineering services required to protect the adjacent properties and/or structures from damage due to performance of the Work. 11.02 The Contractor shall be responsible for all power, light, and water required to perform the Work. 11.03 Throughout the progress of the Work, the Contractor shall keep the working area free from debris of all types, and remove from premises all rubbish, resulting from any work being done by him. At the completion of the Work, the Contractor shall leave the premises in a clean and finished condition. Any failure to do so may be remedied and charged back to the Contractor. 11.04 Layout of Work.Except as specifically provided herein, the Contractor shall lay out all Work in a manner acceptable to City's Representative in accordance with applicable City of College Station codes and ordinances. City's Representative will review the Contractor's layout of all structures and any other layout work done by the Contractor at the construction meeting, or at the Contractor's request, but this review does not relieve the Contractor of the responsibility of accurately locating all Work in accordance with the Plans and Specifications. 11.05 Lines and Grades.All lines and grades shall be furnished by the Contractor. Benchmarks and control stakes have been provided by the City’s Representative. All benchmarks and control stakes shall be carefully preserved by the Contractor. In case of destruction or removal of the same by the Contractor, its subcontractors, or employees, such stakes, marks, etc. shall be replaced by the Contractor at the Contractor's expense. If the Contractor fails to do so, the City may do so and charge back the Contractor. Additional construction staking as needed for the Work, including lines and grades, shall be the sole responsibility of the Contractor, and the Contractor shall receive no extra time or compensation therefor. 11.06 The Contractor shall, before starting each portion of the Work, carefully study and compare the various Contract Documents relative to that portion of the Work, as well as any information furnished by the City, shall take field measurements of any existing conditions related to that portion of the Work, and shall observe any conditions at the site affecting it. These obligations are for the purpose of facilitating coordination and construction by the Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents; however, the Contractor shall promptly report to the City and the Consultant any errors, inconsistencies or omissions discovered by or made known to the Contractor. It is recognized that the Contractor’s review is made in the Contractor’s capacity as a contractor and not as a licensed design professional, unless otherwise specifically provided in the Contract Documents. Contractor acknowledges the City does not represent nor warrant the accuracy or completeness of information provided by the City related to existing conditions and locations of existing utilities and services. Such information if provided, is provided to the Contractor as a matter of convenience and does not substitute for the Contractor using due diligence to reasonably observe and or to Page 31 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 10 access space to determine errors, inconsistencies or omissions. In all cases of interconnection of the Work with existing conditions, Contractor shall verify at the site all dimensions relating to such existing conditions. 11.07 Contractor's Structures.The building or locating of structures or the erection of tents or other forms of protection will be permitted only at such places as City's Representative shall permit. The Contractor shall not damage the property where such structures are allowed and shall at all times maintain sanitary conditions in and about such structures in a manner satisfactory to the City. The City may charge the Contractor for any damage or injury to the City, its property, or third persons as a result of the location or use of such structures. 11.08 The Contractor and any entity over whom the Contractor has control shall not erect any sign on the Project site without the prior written consent of the City. 11.09 City may have other work related to the Project performed at the Project site during the time the Work is performed. Contractor should schedule its Work to coordinate with the work of other contractors and utilities with the understanding that some of that work may be performed at times other than as set out in the Contract Documents or as otherwise anticipated. City will endeavor to have such other work performed so as not to unduly interfere with Contractor's performance when Contractor notifies City of specific reasonable needs well in advance of those needs and where it is possible to do so. In the event of substantial delay caused by another contractor or a utility, after advance notice of its needs by Contractor, Contractor will be entitled to make a claim for an extension of time as provided herein. 11.10 When two or more contractors, including Contractor, are employed on related or adjacent work or obtain materials from the same material source, or when work must be completed by one contractor before another can begin, each shall conduct his operations in such a manner as not to cause any unnecessary delay or hindrance to the other. Each contractor, including Contractor if applicable, shall be responsible to the other for all damage to work, to persons, or to property caused to the other by his operations, and for loss caused the other due to unreasonable or unjustified delays or failure to finish the work or portions thereof, or furnish materials within the time requested. Should Contractor cause damage to the work or property of any separate contractor at the Project site, or should any claim arising out of Contractor's separate contractor at the Project site, or should any claim arising out of Contractor's performance of the Work be made by any separate contractor against Contractor, City or other consultants, or any other person, Contractor shall promptly attempt to settle with such other contractor by agreement, or to otherwise resolve the dispute. Contractor shall, to the fullest extent permitted by applicable laws, indemnify and hold City harmless from and against all claims, damages, losses and expenses (including, but not limited to, fees of architects, attorneys and other professionals and court costs) arising directly, indirectly or consequentially out of any action, legal or equitable, brought by any separate contractor against City to the extent based on a claim arising out of Contractor's negligence. 12. MATERIALS 12.01 Materials or work described in words that when so applied have well-known technical or trade meaning shall be held to refer to such recognized standards. All work shall be done and all materials furnished in strict conformity with this Agreement, the other Contract Documents, and recognized industry standards. When specific products, systems or items of equipment are referred to in the Contract Documents, any ancillary devices necessary for connecting the products, systems or items of equipment shall also be provided. When standards, codes, manufacturer’s instructions and guarantees are required by the Contract Documents, the current edition at the time of Contract execution shall apply, unless another edition is specified in the Contract Documents. References to standards, codes, manufacturer’s instructions and guarantees shall apply in full, except (1) they do not supersede more stringent standards set out in the Contract Documents, and (2) any exclusions or waivers that are inconsistent with the Contract Documents do not apply. Page 32 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 11 12.02 All materials shall be approvedby the City prior to purchase by the Contractor. Unless otherwise specified herein, the Contractor shall purchase all materials and equipment outright and shall not subject the materials and equipment utilized in the Project to any conditional sales agreement, bailment, lease, or other agreement reserving unto seller any right, title, or interest therein. Title to all materials, but not risk of loss, shall pass to the City upon delivery to the Project. 12.03 Where the City deems it necessary to supply materials, it may furnish to the Contractor the list of materials set forth in the attached "List of City Furnished Materials". Upon receipt of said materials, the Contractor shall immediately furnish to the City a written receipt. Moreover, the Contractor shall, on behalf of the City, accept delivery of the materials set forth in the attached "List of Materials Ordered by the City". Under such circumstances, the Contractor shall promptly forward to the City for payment the supplier's invoice together with the Contractor's receipt in writing for such materials. (a)Upon acceptance of the materials furnished or ordered by the City, the Contractor warrants that it shall properly handle, transport, store and safeguard the materials. (b)Further, the Contractor shall repair, repaint or replace any and all materials or any part thereof damaged or stolen while in its possession. Such materials are considered to be in the Contractor's possession from the moment the Contractor either accepts delivery of the materials or signs a receipt accepting delivery of said materials until the Project is accepted by the City's Representative. (c)Before transporting any of the materials furnished or ordered by the City, the Contractor shall establish to the City's satisfaction that it has obtained insurance against losses, theft, damage, equal to or greater than the amounts spent by the City in securing said materials. It shall be incumbent upon the Contractor to verify the cost of materials. (d)The City shall not be obligated to furnish materials in excess of the quantities, size, kind, and type set forth in the attached List of City Furnished Materials and List of Materials Ordered by the City. If the City furnishes, and the Contractor accepts, materials in excess thereof, the values of such excess materials shall be their actual cost as stated by the City. (e)Upon delivery, the Contractor shall promptly receive, unload, transport, and handle all materials and equipment on the List of Materials Ordered by the City at its expense and shall be responsible for all shipping costs. 12.04 Materials and supplies shall be new and of good quality.Upon request, the Contractor shall supply proof of quality and manufacturer. No refurbished, reconditioned, or other previously utilized materials or supplies will be used without the prior signed authorization of City's Representative. The Contractor may utilize substitutes of equal quality and function only upon the prior written authorization of the City's Representative. The City's Representative may require documentation as to quality and function, including manufacturer's specifications, to insure that the proposed substitute is equal to the required material or supply. The City's Representative shall have sole discretion over the use of substitute materials and supplies. Contractor shall bear the risk of any delay in performance caused by submitting substitutions. 12.05 Only materials and equipment which are to be used directly in the Work shall be brought to and stored on the Project site by the Contractor. After equipment is no longer required for the Work, it shall be promptly removed from the Project site. Protection of construction material and equipment stored at the Project site from weather, theft, damage and all other perils is solely the responsibility of the Contractor. Page 33 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 12 12.06 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work by the Contractor or a subcontractor, sub-subcontractor, manufacturer, supplier or distributor to illustrate some portion of the Work. 12.07 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. 12.08 Samples are physical examples that illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. 12.09 Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. Their purpose is to demonstrate the way by which the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents for those portions of the Work for which the Contract Documents require submittals. 12.10 The Contractor shall review for compliance with the Contract Documents, approve and submit to the City’s Consultant Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents in accordance with the submittal schedule approved by the City’s Consultant or, in the absence of an approved submittal schedule, with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the City or of separate contractors. 12.11 By submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor represents to the City and City’s Consultant that the Contractor has (1) reviewed and approved them, (2) determined and verified materials, field measurements and field construction criteria related thereto, or will do so and (3) checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents. 12.12 The Contractor shall perform no portion of the Work for which the Contract Documents require submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the respective submittal has been approved by the City’s Consultant. 12.13 The Work shall be in accordance with approved submittals except that the Contractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents by the City’s Consultant’s approval of Shop Drawings, Product Data, Samples or similar submittals unless the Contractor has specifically informed the City’s Consultant in writing of such deviation at the time of submittal and (1) the City’s Consultant has given written approval to the specific deviation as a minor change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing the deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples or similar submittals by the City’s Consultant’s approval thereof. 12.14 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data, Samples or similar submittals, to revisions other than those requested by the City’s Consultant on previous submittals. In the absence of such written notice, the City’s Consultant’s approval of a resubmission shall not apply to such revisions. 12.15 Contractor shall be liable for and the City may withhold from Contractor’s payments any amount of additional fees charged by City’s Consultant for excessive resubmittal review. Page 34 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 13 13. ENTRY, OBSERVATION, TESTING & POSSESSION 13.01 The City reserves the right to enter the Project site or sites by such employee(s) or agent(s) as it may elect for the purpose of inspecting the work. The City further reserves the right to enter the Project site or sites for the purpose of performing such collateral work as the City may desire. 13.02 The City's Representative shall have the right, at all reasonable times, to observe and test the work. The Contractor shall make necessary arrangements and provide proper facilities and access for such observation and testing at any location where the Work or any part thereof is in preparation or progress. The Contractor shall ascertain the scope of any observation that may be contemplated by City's Representative and shall give ample notice as to the time each part of the Work will be ready for observation. 13.03 The City's Representative may require Contractor to remove, dismantle, or uncover completed work. If the work is not in accordance with the Plans, Specifications, or other Contract Documents, the Contractor shall pay the costs of repair and restoration of the work required to be removed, dismantled, or uncovered. Unless Contractor is obligated to provide advance notice of inspection, prior to covering up the work, and fails to do so, if said work is in accordance with the -Plans, -Specifications, and other Contract Documents, the City shall pay the costs of repair and restoration of the work. 13.04 City shall have the right to take possession of and use any completed or partially completed portions of the Project prior to the time for completing the entire Project or such portions which may not have expired. The parties agree and understand that possession and use shall not constitute an acceptance of any work not completed in accordance with this Agreement.Further, insurance changes required to keep Contractor’s insurance in effect shall be the responsibility of Contractor. 14. REJECTED WORK 14.01 All work deemed not in conformity with this Agreement as determined by the City in its sole discretion, may be rejected by the City. City's Representative may reject any work found to be defective or not in accordance with the Contract Documents, regardless of the stage of the work's completion or the time or place of discovery of such defects or inconsistencies and regardless of whether City's Representative has previously accepted the work through oversight or otherwise. Neither observations nor inspections, tests, or approvals made by City's Representative, or other persons authorized under this Agreement to make such observations, inspections, tests, or approvals, shall relieve the Contractor from the obligation to perform the Work in accordance with the requirements of this Agreement and the other Contract Documents. 14.02 If the work or any part thereof is rejected by the City, it shall be deemed by City's Representative as not in conformity with this Agreement. Any remedial action required, as set forth herein, shall be at the Contractor's expense, as follows: (a)The Contractor may be required, at the City's option, after notice from City's Representative, to remedy such work so that it shall be in full compliance with this Agreement. All rejected work or materials shall be immediately replaced in order to conform with this Agreement. (b)If the City deems it inexpedient to correct work damaged or not done in accordance with this Agreement, an equitable deduction from the agreed sum may be made by the City at the City's sole discretion. Page 35 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 14 14.03 If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a ten-day period after receipt of written notice from the City to commence and continue correction of such default or neglect with diligence and promptness, the City may, without prejudice to other remedies the City may have, correct such deficiencies. In such case an appropriate Change Order shall be issued deducting from payments then or thereafter due the Contractor the reasonable cost of correcting such deficiencies, including City’s expenses and compensation for the City’s Consultant’s additional services made necessary by such default, neglect or failure. If payments then or thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference to the City. 15. SUBCONTRACTING & SUBCONTRACTORS 15.01 The Contractor agrees that it will retain personal control and will give its personal attention to the fulfillment of this Agreement. The Contractor further agrees that subletting of any portion or feature of the Work or materials required in the performance of this Agreement shall not relieve the Contractor from its full obligation to the City as provided by this Agreement. 15.02 Subcontractors must be approved by City's Representative prior to hiring or beginning any work on the Project. If City's Representative judges any subcontractor to be failing to perform the Work in strict accordance with the drawings and specifications, the Contractor, after due notice, shall discharge the same, but this shall in no way release the Contractor from its obligations and responsibility under this Agreement. Every subcontractor shall be bound by the terms and provisions of this Agreement and the Contract Documents as far as applicable to their work. Contractor’s subcontract agreement shall provide that subcontractors shall assume toward the Contractor all the obligations and responsibilities, including the responsibility for safety of the subcontractor’s Work, which the Contractor, by these Documents, assumes toward the City and Consultant. The Contractor shall be fully responsible to the City for the acts and omissions of its subcontractors. Nothing contained herein shall create any contractual or employment relations between any subcontractor and the City. 16. PAYMENT 16.01 The City stipulates that it is an exempt organization as defined by the Limited Sales, Excise and Use Tax Act and, as such, is exempt from the payment of the sales tax on materials and supplies used in the performance of this Agreement. The Contractor shall issue exemption certificates to its suppliers and subcontractors in lieu of said sales tax for all such materials and supplies, and said exemption certificates must comply with the State Comptroller’s Ruling No. 95-0.07 and shall be subject to the provision of the State Comptroller’s Ruling No. 95- 0.09, effective October 1, 1969. 16.02 Progress Payment Applications.The Contractor shall submit applications for payment as provided for herein. Applications for payment will be processed by City's Representative. Before the first Application for Payment, the Contractor shall submit to the City a schedule of values allocated to various portions of the Work, prepared in such form and supported by such data to substantiate its accuracy as the City may require (“Schedule of Values”). The Schedule of Values shall not overvalue early job activities and shall follow the trade divisions of the Specifications so far as possible. Modifications must be approved by City. This schedule, unless objected to by the City, shall be incorporated into this Agreement as a Contract Document and attached hereto as Exhibit F. The Schedule of Values shall be used as a basis for reviewing the Contractor’s Applications for Payment. On or before the 15th day of each month, the Contractor shall submit to City's Representative, for approval or modification, an updated Project Schedule and a statement, backed by the Schedule of Values, showing as completely as practicable the total value of the actual work performed by the Contractor and accepted by the City up to and including the last day of the preceding month. The statement shall also include the value of all materials Page 36 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 15 not previously submitted for payment which have been delivered to the site but have not yet been incorporated into the Work. 16.03 Progress Payments.On or before the 30th calendar day following the City's receipt of a progress payment application made in conformity with Section 16.02, the City shall pay to the Contractor the approved amount of the progress payment based on the Contractor's applications for payment, and the recommendation and approval of City's Representative. Prior to Substantial Completion, progress payments will be made in an amount equal to the percentage of Work completed by the Contractor and approved by the City, but in each case less the aggregate of payments previously made, less retainage, and less amounts as City's Representative shall determine and the City may withhold in accordance with this Agreement. Upon Final Completion, including the delivery of all close out documents, such as “as built” drawings, warranties, guarantees, required additional materials, releases, operation and maintenance manuals, and acceptance of the Work in accordance with this Agreement, the City shall pay the remainder of the balance due under this Agreement, less any sums withheld under other terms of this Agreement and less the retainage, which shall be retained for a period of thirty (30) calendar days from the date of Final Completion. Acceptance of retainage by Contractor shall constitute a Waiver and Release of all claims by Contractor. 16.04 Retainage.From each approved statement, the City shall retain until final payment, ten percent (10%), where the full contract amount is less than $400,000.00, and five percent (5%), where the full contract amount is $400,000.00 or more. The City may also retain from each approved statement any other sums authorized under the terms of this Agreement. OR: 16.04 Retainage.This section has been removed. No retainage will be deducted. 16.05 If the actual amount of work to be done and the materials to be furnished differ from estimates and where the basis for payment is the unit price method, then payment shall be for the actual amount of accepted work done and materials furnished on the Project. 16.06 Reduction in the scope or quantity of work on unit price items shall merely reduce the number of units. In the event that materials have been delivered prior to notice of such reduction, the City will have the option either to pay freight & transportation costs and any re-stocking charges actually incurred by the Contractor or to purchase the materials. The Contractor shall never be entitled to anticipated or lost profits on the deleted or reduced portion of a job, whether bid on a unit price or lump sum basis. 16.07 The Contractor shall have the sole obligation to pay any and all charges or fees and give all notices necessary to and incidental to the lawful prosecution of the Work hereunder. The Contractor shall not and shall have no authority whatsoever to obligate the City to make any payments to another party nor make any promises or representation of any nature on behalf of the City, without the specific written approval of the City. 16.08 The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents. Items covered by allowances shall be supplied for such amounts and by such persons or entities as the City may direct, but the Contractor shall not be required to employ persons or entities to whom the Contractor has reasonable objection. 16.09 Unless otherwise provided in the Contract Documents: Page 37 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 16 (a)Allowances shall cover the cost to the Contractor of materials and equipment delivered at the site and all required taxes, less applicable trade discounts; (b)Contractor’s costs for unloading and handling at the site, labor, installation costs, overhead, profit and other expenses contemplated for stated allowance amounts shall be included in the Contract Amount but not in the allowances; and (c)Whenever costs are more than or less than allowances, the Contract Amount shall be adjusted accordingly by Change Order. The amount of the Change Order shall reflect (1) the difference between actual costs and the allowances under Section 16.9(a) and (2) changes in the Contractor’s costs under Section 16.9(b). 16.10 Suspension of Payments. The City, at any time, may suspend monthly progress payments on the Work if it determines that the projected liquidated damages may exceed retainage. The City, at any time, may suspend monthly progress payments if it believes that the Contractor will not complete the Work due to actual default or that the Contractor has represented or done some act that indicates that it will not complete the Work in accordance with this Agreement or within the time period submitted in its bid. Provided, however, City is in no way obligated to Contractor’s surety to withhold payment pursuant to the provisions of this Section. 16.11 Withhold Funds.Regardless of any bond, the City may, on account of subsequently discovered evidence and in addition to the retainage withheld under Section 16.04, withhold funds or nullify all or part of any acceptance or certificate to such extent as may be necessary to protect itself from loss on account of any of the following, or as otherwise provided in this Agreement: (a)Defective work other than defects in design provided to Contractor by a person other than Contractor’s agents, contractors, fabricators, or suppliers, or its consultants, of any tier for non-critical infrastructure. (b)Failure to timely disclose in writing to the City of a known defect, inaccuracy, inadequacy, or insufficiency in the plans, specifications or other design documents. (c)Claims made or reasonable evidence indicating probable filing of claims by unpaid vendors or other third parties. (d)Failure of the Contractor to make prompt payments to subcontractors for labor or material or materialmen. (e)Claims made or reasonable evidence indicating claims will be made for damage to another by the Contractor. (f)Claims made or reasonable evidence indicating claims will be made for damage to third parties, including adjacent property owners. (g)Claims made or reasonable evidence indicating claims will be made for unremedied damage to property owned by the City. (h)City's determination of an amount of liquidated damages. (i)Charges made for repairs to the Contractor's defective work or repairs made by the City to correct damage to other property. (j)Other amounts authorized under this Agreement or under any other agreement made between City and Contractor. (k)Corrections of mistakes, errors and overpayments in relation to prior pay applications and payments. Provided, however, City is in no way obligated to Contractor’s surety to withhold payment pursuant to the provisions of this Section. Page 38 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 17 16.12 Virtual Payment Method.For increased payment and financial information security, the Contractor must use the City’s approved virtual payment card system or digital payment system for all payments, storing, and modifications of financial information used for City payments to the Contractor. Any related reasonable fees paid by the Contractor for use of the virtual payment card system or digital payment system may be passed through to the City. 17. EXTRA WORK CHARGES 17.01 No changes shall be made, nor will bills for changes, alterations, modifications, deviations, and extra orders be recognized or paid for except upon the written order from authorized personnel of the City. 17.02 City Manager Approval. When the original contract amount plus all change orders is One Hundred Thousand Dollars ($100,000)or less, the City Manager or his designee may approve the written change order in accordance with 17.03 below, provided the change order does not increase the total amount set forth in the Contract to more than One Hundred Thousand Dollars ($100,000). For such contracts, when a change order results in a total contract amount that exceeds One Hundred Thousand Dollars ($100,000), the City Council of the City must approve such change order prior to commencement of the services or work. 17.03 For "Extra Work", as defined in this Agreement and authorized through written change orders, and pursuant to Section 252.048(d) of the Texas Local Government Code, the original Contract price may not be increased by more than twenty-five percent (25%). Written change orders that do not exceed twenty-five percent (25%) of the original Contract Amount may be made or approved by the City Manager or his delegate if the change order is equal to or less than Fifty Thousand Dollars ($50,000.00). Changes in excess of Fifty Thousand Dollars ($50,000.00)must be approved by the City Council prior to commencement of the services or work. Any requests by the Contractor for a change to the Contract Amount shall be made prior to the beginning of the work covered by the proposed change or the right to payment for Extra Work shall be waived.No course of conduct or dealings between the parties, nor implied acceptance of alterations or additions to the Work or changes to the Contract Schedule shall be the basis for any claim for an increase in compensation or change in time. Any cost incurred by Contractor in connection with any Extra Work shall be included in Contractor’s requested change order and Contractor’s failure to include any such cost shall act to Waive and Release any claim for such non-included cost. OR: 17.03 For construction contracts funded in whole or in part by Certificates of Obligations, for "Extra Work," as defined in this Agreement and authorized through written change orders, and pursuant to Section 271.060 of the Texas Local Government Code, a contract with an original contract price of $1 million or more may not be increased by more than twenty-five percent (25%). If a change order for a construction contract funded in whole or in part with certificates of obligation that has an original price of less than $1 million increases the Contract Amount to $1 million or more, subsequent change orders may not increase the revised Contract Amount by more than twenty-five percent (25%). Written change orders may be made or approved by the City Manager or his delegate if the change order is equal to or less than Fifty Thousand Dollars ($50,000.00). Changes in excess of Fifty Thousand Dollars ($50,000.00)must be approved by the City Council prior to commencement of the services or work. Any requests by the Contractor for a change to the Contract Amount shall be made prior to the beginning of the work covered by the proposed change or the right to payment for Extra Work shall be waived.No course of conduct or dealings between the parties, nor implied acceptance of alterations or additions to the Work or changes to the Contract Schedule shall be the basis for any claim for an increase in compensation or change in time. Any cost incurred by Contractor in connection with any Extra Work shall be Page 39 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 18 included in Contractor’s requested change order and Contractor’s failure to include any such cost shall act to Waive and Release any claim for such non-included cost. 17.04 The Contractor shall complete all Work as specified or indicated in the Contract Documents. The Contractor shall complete all Extra Work in connection therewith. All work and materials shall be in strict conformity with the specifications. The Substantial Completion of the Work shall not excuse the Contractor from performing all the Work undertaken, whether of a minor or major nature, and thereby completing the Project in accordance with the Contract Documents. In the event that the Contractor fails to perform the Work as required for Substantial Completion or Final Completion, the City may contract with a third party to complete the Work and the Contractor shall assume and pay the costs of the performance of the Work as contracted. (a)It is agreed that the Contractor shall perform all Extra Work under the direction of City's Representative when presented with a written work order signed by City. (b) No claim for Extra Work of any kind will be allowed unless ordered in writing by the City. In case any orders or instructions appear to the Contractor to involve Extra Work for which it should receive compensation or an adjustment in the construction time, it shall make written request to City's Representative for a written order from City authorizing such Extra Work. (c)Should a difference of opinion arise as to what does or does not constitute Extra Work, or as to the payment therefor, and the City insists upon its performance, then the Contractor shall proceed with the Work after making written requests for written orders in a change order and shall keep adequate and accurate account of the actual field costs therefor, as provided under Method C. (d)It is also agreed that the compensation to be paid to the Contractor for performing Extra Work shall be determined by one or more of the following methods: Method A - By agreed unit prices, or Method B - By agreed lump sum, or Method C - If neither Method A nor Method B is agreed upon before the Extra Work is commenced, then the Contractor shall be paid the actual field cost (as defined in subsection (g) below) of the Work. (e) Method A - Unit Prices. The Contractor agrees to perform Extra Work for the unit prices in the Contractor's Proposal. The Contractor also agrees and warrants that when it is necessary to construct units not shown in the Contract Documents, it shall construct such units for a price arrived at as follows: (1)The cost of materials shall be determined by the invoices; (2)The cost of labor shall be the reasonable cost thereof, as determined by the City, but in no event shall it exceed an amount determined by calculating the ratio of the total labor costs to the total costs to the total material costs in the section of the Proposal involved, and multiplying the cost of materials for the unit in question by this ratio. Provided, however, that the ratio shall be calculated for only those units that are similar to the new unit for which a price is to be determined. (f) Method B - Lump Sum. The lump sum shall be reasonably close to the amount for similar work previously done or combinations of similar units. Invoices for materials used shall be provided in support of the agreed lump sum. Page 40 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 19 (g) Method C - Actual Field Costs.The actual field cost is hereby defined to include the cost of all applicable workmen and laborers, as well as materials, supplies, teams, trucks, rentals on machinery and equipment, for the time actually employed or used for such Extra Work, plus actual transportation charges necessarily incurred, together with other costs reasonably incurred directly on account of such Extra Work, including social security, old age benefits, maintenance bonds, public liability, property damage, workers’ compensation, and all other insurance as may be required by law or ordinances or required and agreed to by the City or City's Representative. City's Representative may direct the form in which accounts of the actual field costs shall be kept and records of these accounts shall be made available to City's Representative. Unless otherwise agreed upon, the prices for the use of machinery and equipment shall be determined by using one hundred percent (100%), unless otherwise specified, of the latest schedule of equipment and ownership expenses adopted by the Associated General Contractors of America. Where practical, the terms and prices for the use of machinery and equipment shall be incorporated in the written Extra Work order. Actual field costs shall not exceed the prevailing market price therefor within reasonable tolerances as determined by City's Representative. The amount due to Contractor for costs other than actual field costs shall be calculated in accordance with the following standards: (1)No indirect or consequential damages will be allowed. (2)All damages must be directly and specifically shown to be caused by a proven wrong. No recovery shall be based on a comparison by planned expenditures to total actual expenditures or on estimated losses of labor efficiency, or on a comparison of planned man loading to actual man loading, or any other analysis that is used to show damages indirectly. (3)Damages are limited to extra costs specifically shown to have been directly caused by a proven wrong. (4)The maximum daily limit on any recovery for delay shall be the amount established by the Contractor for job overhead costs, defined in the pay applications, divided by the total number of days specified for completion called for in the original Contract. Absent an overhead amount in the Schedule of Values, the amount estimated by Contractor for job overhead cost shall be used. 18. TIME OF COMPLETION 18.01 The date of beginning, the time for Substantial Completion and Final Completion of Work as specified in this Agreement are of the essence of this Agreement. 18.02 The Work embraced by this Agreement shall be commenced on the date specified in the notice to proceed. Said notice to proceed may be given orally or set by the City's Representative at the post-award conference. 18.03 The Work shall be Substantially Completed within the time bid, which shall run from the date when the notice to proceed is given by City's Representative. The Contractor bid calendar days for the time within which it shall reach Substantial Completion of the Project. 18.04 The Work shall reach Final Completion and be ready for final payment within thirty (30) calendar days from the date of Substantial Completion. 19. SUBSTANTIAL COMPLETION Page 41 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 20 19.01 The Contractor shall notify City's Representative when, in the Contractor's opinion, the Contract is Substantially Completed. Within ten (10) calendar days after the Contractor has given City's Representative written notice that the Work has been Substantially Completed, City's Representative shall inspect the Work for the preparation of a final punch list. (a)If City's Representative and the City find that the Work is not Substantially Completed, then they shall so notify the Contractor who shall then complete the Work. City's Representative shall not be required to provide a list of unfinished work. (b)If the City Representative and City find that the Work is Substantially Completed, the City shall issue to the Contractor its certificate of Substantial Completion. 19.02 The Substantial Completion of the Work shall not excuse the Contractor from performing all of the Work, whether of a minor or major nature, necessary for Final Completion and thereby completing the Project in accordance with the Contract Documents. 20. FINAL COMPLETION 20.01 Contractor shall notify the City's Representative when it believes that the Work has reached Final Completion as defined in this Agreement. If the City's Representative and the City accept and deems such Work Finally Complete, then Contractor shall be so notified and certificates of completion and acceptance, as provided herein, shall be issued. A complete itemized statement of this Agreement account, certified by the City's Representative as correct, shall then be prepared and delivered to Contractor. Contractor or City, as the case may be, shall pay the balance due as reflected by said statement within thirty (30) calendar days. 20.02 The Contractor shall procure all required certificates of acceptance or completions issued by state, municipal, or other authorities and submit the same to the City. The City may withhold any payments due under this Agreement until the necessary certificates are procured and delivered. 20.03 Neither the final payment nor any acceptance nor certificate nor any provision of this Agreement shall relieve the Contractor of any responsibility for faulty workmanship or materials. At the option of the City, the Contractor shall remedy any such defects and pay for any damage to other work which may appear after final acceptance of the Work. 21. DELAYS 21.01 The Contractor, in undertaking to complete the Work within the times herein fixed, has taken into consideration and made allowance for all hindrances and delays incident to such Work, whether growing out of delays in securing material or workmen or delays arising from inclement weather or otherwise. 21.02 The City may, in its sole discretion, delay the Work during inclement weather in order to preserve the Project, insure safety of work forces, and the preservation of materials and equipment. In such event and upon a written request from the Contractor, the City may grant an extension of time pursuant to Section 22 to offset for such stoppage of the Work. 21.03 No payment or compensation of any kind shall be made to the Contractor for damages because of hindrance or delay in the progress of the Work, unless such delays (1) are caused by the actual interference, fraud, bad faith or misrepresentation by the City or its agents, (ii) extend for an unreasonable length of time; or (iii) were not contemplated by the parties at the time of contracting. In the event of any delay entitling Contractor to an Page 42 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 21 increase in Contract Amount, except when due to City’s intentional interference or fraud, Contractor’s recovery shall be limited as outlined in Section 21.04 below. The City’s reasonable exercise of any of its rights or remedies under the Contract, regardless of the extent or frequency, shall not under any circumstances be construed as interference with the Contractor’s performance of the Work. 21.04 In the event of delays resulting from changes ordered in the Work by the City or other delays caused by the City or for the City’s convenience, the Contractor may apply to the City for recovery of incidental damages resulting from increased storage costs or other costs necessary to protect the value of the Work. In no event shall any consequential or other damages be allowed or any other charges or claims be made by the Contractor for hindrances or delays resulting from any other cause. 22. EXTENSIONS OF TIME 22.01 The Contractor has submitted its proposal in full recognition of the time required for the completion of this Project, taking into consideration all factors including, but not limited to the average climatic range and industrial conditions. The Contractor has considered the liquidated damage provision of this Agreement and understands and agrees that it shall not be entitled to, nor will it request, an extension of time for either Substantial Completion or Final Completion, except when the Work has been delayed by one or more of the following: (a)An act or neglect of the City, the City's Representative, employees of the City, or other contractors employed by the City; (b)By changes ordered in the Work, or reductions thereto approved in writing; (c)By "rain days" (days with rainfall in excess of one-tenth of an inch) during the term of this Agreement that exceed the average number of rain days for such term for this locality, both as determined by the National Weather Service Forecast Office for Easterwood Airport in College Station, Texas (KCLL/CLL); or (d)By other causes that the City and the Contractor agree may reasonably justify delay and that were beyond the Contractor’s reasonable control and ability to estimate, predict, or avoid, such as delays caused by unforeseen labor disputes, fire, natural disasters, acts of war, and other rare and unpredictable events. This term does not include normal delays incident to the delivery of materials, tools, or labor that reasonably could have been predicted and/or accounted for in the Contractor’s Proposal or decision to bid. 22.02 If one or more of the foregoing conditions is present, the Contractor may apply in writing for an extension of time, within thirty (30) days of the occurrence of the event causing the delay, submitting therewith all written justification as may be required by the City's Representative. Within ten (10) calendar days after receipt of a written request for an extension of time, which is supported by all requested documentation, the City shall, in writing and in its sole discretion, grant or deny the request. Under no circumstances shall any extension of time by the City be valid and binding unless it is in writing and in conformity with the other terms of this Agreement. 23. LIQUIDATED DAMAGES 23.01 The time for the Substantial and Final Completion of the Work described herein are reasonable times for the completion of each, taking into consideration all conditions, including but not limited to the average climatic conditions and usual industrial conditions prevailing in this locality. The amount of liquidated damages for the Contractor's failure to meet the deadlines for Substantial and/or Final Completion are fixed and agreed on by the Contractor because of the impracticability and extreme difficulty in fixing and ascertaining the actual damages Page 43 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 22 that the City would in such an event sustain. The amounts to be charged are agreed to be damages the City would sustain and shall be retained by the City from current periodic estimates for payment or from final payment. 23.02 As a result of the difficulty in estimation, calculation and ascertainment of City’s damages due to a failure of Contractor to achieve timely completion of the Work, if the Contractor should neglect, fail, or refuse to either Substantially Complete or Finally Complete the Work within the time herein specified, or any proper extension thereof granted by the City's Representative pursuant to the terms of Section 22 of this Agreement, then the Contractor does hereby agree as part of the consideration for the awarding of this Agreement that the City may permanently withhold from the Contractor's total compensation the sum of_______________________________ and ______/100 DOLLARS ($______________)for each and every calendar day that the Contractor shall be in default after the time stipulated for Substantial Completion and/or Final Completion, not as a penalty, but as liquidated damages for the breach of this Agreement. It being specifically understood that the assessment of liquidated damages may be made for any failure to meet either or both of the deadlines specified for Substantial Completion and/or Final Completion. 24. CHARGES FOR INJURY OR REPAIR 24.01 The Contractor shall be liable for any damages incurred or repairs made necessary by reason of its work and/or caused by it. Repairs of any kind required by the City will be made and charged to the Contractor by the City. 24.02 The Contractor shall take the necessary precautions to protect any areas adjacent to its Work. 24.03 The Work specified consists of all work, materials, and labor required by the City to repair any damage to the property of the City, including but not limited to structures, roadways, curbs, parking areas, and sidewalks. 25. WARRANTY 25.01 Upon issuance of a certificate of Final Completion, the Contractor warrants for a period of one (l) year as follows: The Contractor warrants that all materials provided to the City under this Agreement shall be new unless otherwise approved in advance by City's Representative, and all work will be of good quality, free from faults and defects (other than defects from third parties as set out in Chapter 59 Texas Business and Commerce Code relating to non-critical infrastructure), and in conformance with this Agreement, the other Contract Documents, and recognized industry standards . 25.02 All work not conforming to these requirements, including but not limited to unapproved substitutions, may be considered defective. 25.03 This warranty is in addition to any rights or warranties expressed or implied by law and in addition to any consumer protection claims arising from misrepresentations by the Contractor. 25.04 Where more than a one (l) year warranty is specified for individual products, work, or materials, the longer warranty shall govern. Page 44 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 23 25.05 This warranty obligation shall be covered by any performance or payment bonds tendered in compliance with this Agreement. 25.06 Defective Work Discovered During Warranty Period.If any of the Work is found or determined to be either defective, including obvious defects under warranty as set forth in this Section 25, or otherwise not in accordance with this Agreement within one (l) year after the date of the issuance of a certificate of Final Completion of the Work or a designated portion thereof, whichever is longer, or within one (l) year after acceptance by the City of designated equipment, or within such longer period of time as may be prescribed by law or by the terms of any applicable special warranty required by this Agreement, the Contractor shall promptly, upon receipt of written notice by the City, correct the defective work at no cost to the City. 25.07 The obligation to correct any defective work shall survive the termination of this Agreement. The guarantee to correct the defective work shall not constitute the exclusive remedy of City, nor shall other remedies be limited to the terms of either the warranty or the guarantee. 25.08 If within ten (10) calendar days after the City has notified the Contractor of a defect, failure, or abnormality in the Work, the Contractor has not started to make the necessary corrections or adjustments, the City is hereby authorized to make the corrections or adjustments, or to order the Work to be done by a third party. The cost of the work shall be paid by the Contractor or its surety. 25.09 The cost of all materials, parts, labor, transportation, supervision, special instruments, and supplies required for the replacement or repair of parts and for correction of defects shall be paid by the Contractor or by the surety. 25.10 The guarantee shall be extended to cover all repairs and replacements furnished, and the term of the guarantee for each repair or replacement shall be one (l) year after the installation or completion. The one (l) year warranty shall cover all Work, equipment, and materials that are part of this Project, whether or not a warranty is specified in the individual section of the Contract Documents that prescribe that particular aspect of the Work. 26. PAYMENT OF EMPLOYEES, SUBCONTRACTORS & SUPPLIERS 26.01 Wage Rates.Pursuant to Section 2258.023(a) of the Texas Government Code, wage rates paid by the Contractor and any subcontractor on this Project shall be not less than the general prevailing rate of per diem wages for work of a similar character in this locality as specified in the schedule of general prevailing rates of per diem wages attached hereto as Exhibit A. 26.02 Statutory Penalty.Pursuant to Section 2258.023(b) of the Texas Government Code, if the Contractor or any subcontractor violates the requirements of Section 26.01, the Contractor or subcontractor as the case may be shall pay the City sixty dollars ($60.00) for each worker employed for each calendar day or part of the day that the worker is paid less than the stipulated wage rates. 26.03 The Contractor and each subcontractors shall pay all of their employees engaged in work on the Project in full (less mandatory legal deductions) in cash or by check readily cashable, without discount, no less than once each week. 26.04 No later than the seventh (7th) calendar day following the payment of wages, the Contractor must file with City's Representative a certified, sworn, legible copy of such payroll. This shall contain the name of each employee, their classification, the number of hours worked on each day, rate of pay, and net pay. The affidavit Page 45 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 24 shall state that the copy is a true and correct copy of such payroll and that no rebates or deductions (except as shown) have been made or will be made in the future from the wages therein shown. 26.05 Payment of Subcontractors.The Contractor shall be solely and exclusively responsible for compensating any of the Contractor's employees, subcontractors, materialmen and/or suppliers of any type or nature whatsoever and for insuring that no claims or liens of any type arising out of or incidental to the performance of any services performed pursuant to this Agreement are filed against any property owned by the City. In the event a statutory lien notice is sent to the City, the Contractor shall, where no payment bond covers the Work, upon written notice from the City, immediately obtain a bond at its expense and hold the City harmless from any losses that may result from the filing or enforcement of any said lien notice. In the event that the Contractor defaults in the provision of the bond, the City may withhold such funds as are necessary to assure the payment of such claim until litigation determines to whom payment shall be made. 26.06 Affidavit of Bills Paid.Prior to Final Acceptance of the Project, the Contractor shall provide a notarized affidavit stating that all bills for labor, materials, and incidentals incurred have been paid in full, that any claims from manufacturers, materialmen, and subcontractors have been released, and that there are no claims pending of which the Contractor has been notified. 27. INSURANCE 27.01 The Contractor shall procure and maintain at its sole cost and expense for the duration of this Agreement insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the Work hereunder by the Contractor, its agents, representatives, volunteers, employees or subcontractors. The policies, coverages, limits and endorsements required are as set forth below. During the term of this Agreement Contractor’s insurance policies shall meet the minimum requirements of this section. 27.02 Types. Contractor shall have the following types of insurance: (a)Commercial General Liability. (b)Business Automobile Liability. (c)Excess Liability – required for contract amounts exceeding $1,000,000. (d)Builder’s Risk – provides coverage for contractor’s labor and materials for a project during construction that involves a structure such as a building or garage, builder’s risk policy shall be written on “all risks” form. (e)Workers' Compensation/ Employer’s Liability. 27.03 General Requirements Applicable to All Policies. The following General requirements applicable to all policies shall apply: (a)Only licensed Insurance Carriers authorized to do business in the State of Texas will be accepted. (b)Deductibles shall be listed on the Certificate of Insurance and are acceptable only on a per occurrence basis for property damage only. (c)"Claims Made" policies are not accepted. (d)Coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days prior written notice has been given to the City of College Station. Page 46 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 25 (e)The City of College Station, its agents, officials, employees and volunteers, are to be named as “Additional Insured” to the Commercial General, Umbrella and Business Automobile Liability policies. The coverage shall contain no special limitations on the scope of protection afforded to the City, its agents, officials, employees or volunteers. 27.04 Commercial General Liability.The following Commercial General Liability requirements shall apply: (a)General Liability insurance shall be written by a carrier rated “A:VIII” or better in accordance with the current A.M. Best Key Rating Guide. (b)Limit of $1,000,000.00 per occurrence for bodily injury and property damage with an annual aggregate limit of $2,000,000.00 which limits shall be endorsed to be per Project. (c)Coverage shall be at least as broad as ISO form GC 00 01. (d)No coverage shall be excluded from the standard policy without notification of individual exclusions being attached for the City’s review and acceptance. (e)The coverage shall not exclude the following: premises/operations with separate aggregate; independent contracts; products/completed operations; contractual liability (insuring the indemnity provided herein) Host Liquor Liability, Personal & Advertising Liability; and Explosion, Collapse, and Underground coverage. 27.05 Business Automobile Liability.The following Business Automobile Liability requirements shall apply: (a)Business Automobile Liability insurance shall be written by a carrier rated “A:VIII” or better in accordance with the current A.M. Best Key Rating Guide. (b)Minimum Combined Single Limit of $1,000,000.00 per occurrence for bodily injury and property damage. (c)The Business Auto Policy must show Symbol 1 in the Covered Autos Portion of the liability section in Item 2 of the declarations page. (d)The coverage shall include owned autos, leased or rented autos, non-owned autos, any autos and hired autos. (e)Pollution Liability coverage shall be provided by endorsement MCS-90, with a limit of $1,000,000.00, where such exposures exist. 27.06 Excess Liability.The following Excess Liability requirements shall apply: Unless otherwise agreed in writing, excess liability coverage following the form of the underlying coverage with a minimum limit of $5,000,000.00 or the total value of the Agreement, whichever is greater, per occurrence/aggregate when combined with the lowest primary liability coverage, is required for contracts exceeding $1,000,000 in total value. 27.07 Additional Insured. Page 47 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 26 Those policies set forth in Sections 27.04, 27.05, and 27.06 shall contain an endorsement listing the City as Additional Insured and further providing that the Contractor’s policies are primary to any self-insurance or insurance policies procured by the City. The additional insured endorsement shall be in a form acceptable to the City. Waiver of subrogation in a form acceptable to the City shall be provided in favor of the City on all policies obtained by the Contractor in compliance with the terms of this Agreement. Contractor shall be responsible for all deductibles which may exist on any policies obtained in compliance with the terms of this Agreement. All coverage for subcontractors shall be subject to the requirements stated herein. All Certificates of Insurance and endorsements shall be furnished to the City’s Representative at the time of execution of this Agreement, attached hereto as Exhibit C, and approved by the City before Work commences. 27.08 Builder’s Risk Until the Work is completed and accepted by the City, the Contractor shall purchase and maintain builder’s risk insurance upon the entire Work at the Project site to the full insurable value thereof, including any increases in value due to duly authorized change orders to the Work and Project. The builder’s risk insurance shall also cover portions of the Work stored off site after written approval of the City of the value established in the approval, and also portions of the Work in transit. This insurance shall include the interests of the City, the Contractor, subcontractors and sub-subcontractors in the Work and shall insure against the perils of fire, wind, storm, hail, lightning and extended coverage including flood and earthquake and shall include all-risk insurance for physical loss or damage, including, without duplication of coverage, theft, vandalism and malicious mischief. The insurance shall cover reasonable compensation for City’s Consultant’s services and expenses required as a result of an insured loss. This must be an all-risk policy incorporating the following language: Permission is given for the Project insured hereunder to become occupied, the insurance remaining in full force and effect until such time as the Project has been accepted by the City, all as currently approved by the Texas Board of Insurance Commissioners When permissible by law, the Certificate of Insurance must include the names of the insured Contractor and the City. The deductible under the policy, including that for flood shall not exceed $100,000.00 without the written approval of the City. 27.09 Workers’ Compensation/Employer’s Liability Insurance.The following Workers’ Compensation Insurance requirements shall apply. (a)Pursuant to the requirements set forth in Title 28, Section 110.110 of the Texas Administrative Code, all employees of the Contractor, all employees of any and all subcontractors, and all other persons providing services on the Project must be covered by a workers’ compensation insurance policy: either directly through their employer’s policy (the Contractor’s or subcontractor’s policy) or through an executed coverage agreement on an approved Texas Department of Insurance Division of Workers’ Compensation (DWC) form. Accordingly, if a subcontractor does not have his or her own policy and a coverage agreement is used, contractors and subcontractors must use that portion of the form whereby the hiring contractor agrees to provide coverage to the employees of the subcontractor. The portion of the form that would otherwise allow them not to provide coverage for the employees of an independent contractor may not be used. (b)Workers’ Compensation/ Employer’s Liability insurance shall include the following terms: 1.Employer’s Liability minimum limits of $1,000,000.00 for each accident/each disease/each Page 48 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 27 employee are required. 2.“Texas Waiver of Our Right to Recover From Others Endorsement, WC 42 03 04” shall be included in this policy. 3.Texas must appear in Item 3A of the Workers’ Compensation coverage or Item 3C must contain the following: All States except those listed in Item 3A and the States of NV, ND, OH, WA, WV, and WY. (c)Pursuant to the explicit terms of Title 28, Section 110.110(c) (7) of the Texas Administrative Code, the bid specifications, this Agreement, and all subcontracts on this Project must include the following terms and conditions in the following language, without any additional words or changes, except those required to accommodate the specific document in which they are contained or to impose stricter standards of documentation: “A. Definitions: Certificate of coverage (“certificate”) – An original certificate of insurance, a certificate of authority to self-insure issued by the Division of Workers’ Compensation, or a coverage agreement (DWC-81, DWC-83, or DWC-84), showing statutory workers’ compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the Work on the project until the Contractor’s/person’s Work on the project has been completed and accepted by the governmental entity. Persons providing services on the project (“subcontractors” in § 406.096 [of the Texas Labor Code]) - includes all persons or entities performing all or part of the services the Contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the Contractor and regardless of whether that person has employees. This includes, without limitation, independent Contractors, subcontractors, leasing companies, motor carriers, owner- operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. “Services” include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. “Services” does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. B. The Contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, that meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the Contractor’s current certificate of coverage ends during the duration of the project, the Contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been Page 49 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 28 extended. E. The Contractor shall obtain from each person providing services on a project, and provide to the governmental entity: (1) a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and (2) no later than seven calendar days after receipt by the Contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project. F. The Contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. G. The Contractor shall notify the governmental entity in writing by certified mail or personal delivery, within 10 calendar days after the Contractor knew or should have known, or any change that materially affects the provision of coverage of any person providing services on the project. H. The Contractor shall post on each project site a notice, in the text, form and manner prescribed by the Division of Workers’ Compensation, informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. I. The Contractor shall contractually require each person with whom it contracts to provide services on a project, to: (1) provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, that meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; (2) provide to the Contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; (3) provide the Contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; (4) obtain from each other person with whom it contracts, and provide to the Contractor: (a) A certificate of coverage, prior to the other person beginning work on the project; and (b) A new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate Page 50 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 29 of coverage ends during the duration of the project; (5) retain all required certificates of coverage on file for the duration of the project and for one year thereafter; (6) notify the governmental entity in writing by certified mail or personal delivery, within 10 calendar days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and (7) Contractually require each person with whom it contracts to perform as required bySections (a) -(g), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this Agreement, or providing, or causing to be provided a certificate of coverage, the Contractor is representing to the governmental entity that all employees of the Contractor who will provide services on the project will be covered by workers’ compensation coverage for the duration of the project; that the coverage will be based on proper reporting of classification codes and payroll amounts; and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self-insured, with the Commission’s Division of Self-Insurance Regulation. Providing false or misleading information may subject the Contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The Contractor’s failure to comply with any of these provisions is a breach of contract by the Contractor that entitles the governmental entity to declare the Agreement void if the Contractor does not remedy the breach within ten calendar days after receipt of notice of breach from the governmental entity.” 27.09 Certificates of Insurance.Certificates of Insurance shall be prepared and executed by the insurance company or its authorized agent on the most current State of Texas Department of Insurance-approved form, and shall contain the following provisions and warranties: (a)The company is authorized to do business in the State of Texas. (b)The insurance policies provided by the insurance company are underwritten on forms that have been provided by the Department of Insurance or ISO. (c)Original endorsements affecting coverage required by this section shall be furnished with the certificates of insurance. 28. BOND PROVISIONS 28.01 Pursuant to Section 2253.021 of the Texas Government Code, for all public works contracts with governmental entities, a payment bond is required if the Contract Amount exceeds $50,000, and a performance bond is required if the Contract Amount exceeds $100,000. Below those amounts, the City may require payment and/or performance bonds. In the event a performance or payment bond or both is required either by law or in the City’s discretion, such bonds shall be executed in accordance with all requirements of Chapter 3503 of the Texas Insurance Code, all other applicable law, and the following: Page 51 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 30 (a)The Contractor shall execute performance and payment bonds for the full Contract Amount and, if required by Contractor’s surety to cover increases in the dollar amounts or amount of Work that is increased by a duly authorized change order,Contractor shall secure performance and payment bond riders to increase the dollar amounts and coverages of the performance and payment bonds. (b)The bond surety shall be authorized under the laws of the State of Texas to provide a performance and payment bond and shall have attached proof of authorization of the surety to act in the performance and payment of bonds. (c)The Contractor shall provide original, sealed, and complete counterparts of the executed bonds in the forms required by the Contract Documents, which are attached as Exhibit B, together with valid original powers of attorney, at the time of execution of this Agreement by Contractor and prior to the commencement of work. Copies of the executed bonds shall be attached hereto as Exhibit B. (d)The performance and payment bonds, and any subsequently issued bond riders, shall remain in effect for a period of one (1) year after Final Completion of the Work and shall be extended for any warranty work to cover the warranty period. (e)If at any time during the execution of this Agreement in the required period thereafter, the bond or bonds become invalid or ineffective for any reason, the Contractor shall promptly supply within ten (10) days such other bond or bonds, which bond or bonds shall assure performance or payment as required. 28.02 The Contractor may make such changes and alterations as the City may require in the Work or any part thereof without affecting the validity of this Agreement and any accompanying bond. If such changes or alterations diminish the quantity of the work to be done, they shall not constitute the basis for any claim for damages or anticipated profits. If the City makes changes or alterations that render useless any work already done or material already used in said work, then the City shall compensate the Contractor for any material or labor so used, and for any actual loss occasioned by such change due to actual expenses incurred in preparation for the Work as originally planned, in accordance with the provisions of Article 17. 29. SURETY 29.01 If the Contractor has abandoned the Project or the City has terminated the Contract for cause and the Contractor’s Surety, after notice demanding completion is sent, fails to commence the completion of the Work in compliance with this Agreement, then the City at its option may provide for completion of the Work in either of the following manners: (a)The City may employ such force of men and use of instruments, machinery, equipment, tools, materials, and supplies as said the City may deem necessary to complete the Work and charge the expense of such labor, machinery, equipment, tools, materials, and supplies to the Contractor, and the expense so charged shall be deducted and paid by the City out of such monies as may be due or that may thereafter at any time become due to the Contractor and Surety. (b)The City may, after notice published as required by law, accept sealed bids and let this Agreement for the completion of the Work under substantially the same terms and conditions that are provided in this Agreement. In case of any increase in cost to the City under the new agreement as compared to what would have been the cost under this Agreement, such increase together with all of the City’s damages due to Contractor’s abandonment and/or default, including liquidated damages, as provided pursuant to Section 38, entitled “TERMINATION FOR CAUSE” shall be charged to the Contractor and the surety Page 52 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 31 shall be and remain bound therefor. However, should the cost to complete such new agreement prove to be less than that which would have been the cost to complete the Work under this Agreement, the Contractor shall be credited therewith after all deductions are made in accordance with this Agreement. 29.02 Should the cost to complete the Work exceed the Contract Amount and the Contractor fails to pay the amount due to the City within the time designated and there remains any machinery, equipment, tools, materials, or supplies on the Project site, notice thereof, together with an itemized list of such equipment and materials, shall be mailed to the Contractor at its respective address designated in this Agreement; provided, however, that actual written notice given in any manner shall satisfy this condition. After mailing, or otherwise giving such notice, such property shall be held at the risk of the Contractorsubject only to the duty of City's Representative to exercise ordinary care to protect such property. After fifteen (15) calendar days from the date of said notice, City's Representative may sell such machinery, equipment, tools, materials, or supplies and apply the net sum derived from such sale to the credit of the Contractor. Such sale may be made at either public or private sale, with or without notice, as City's Representative may elect. City's Representative shall release any machinery, equipment, tools, materials, or supplies which remain on the job site and belong to persons other than the Contractor to their proper owners. 29.03 In the event the account shows that the cost to complete the Work is less than that which would have been the cost to City had the Work been completed by the Contractor under the terms of this Agreement, or when the Contractor shall pay the balance shown to be due by them to the City, then all machinery, equipment, tools, materials, or supplies left on the Project site shall be turned over to the Contractor. 30. COMPLIANCE WITH LAW 30.01 The Contractor's work and materials shall comply with all state and federal laws, municipal ordinances, regulations, codes, and directions of inspectors appointed by proper authorities having jurisdiction. 30.02 The Contractor shall perform and require all subcontractors to perform the Work in accordance with applicable laws, codes, ordinances, and regulations of the State of Texas and the United States and in compliance with OSHA and other laws as they apply to its employees. In the event any of the conditions of the specifications violate the code for any industry, then such code conditions shall prevail. 30.03 The Contractor shall follow all applicable state and federal laws, municipal ordinances, and guidelines concerning soil erosion and sediment control throughout the Project and warranty term. 31. SAFETY PRECAUTIONS 31.01 All safety measures, policies and precautions at the site are a part of the construction techniques and processes for which the Contractor shall be solely responsible. The Contractor is solely responsible for handling and use of hazardous materials or waste, and informing employees of any such hazardous materials or waste. The Contractor shall provide copies of all hazardous materials and waste data sheets to the College Station Fire Department marked "Attn.: Assistant Chief". 31.02 The Contractor has the sole obligation to protect or warn any individual of potential hazards created by the performance of the Work set forth herein. The Contractor shall, at its own expense, take such precautionary measures for the protection of persons, property, and the Work as may be necessary. 31.03 The Contractor shall be held responsible for all damages to property, personal injuries and/or death due to failure of safety devices of any type or nature that may be required to protect or warn any individual of potential Page 53 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 32 hazards created by the performance of the Work set forth herein; and when any property damage is incurred, the damaged portion shall immediately be replaced or compensated for by the Contractor at its own cost and expense. 31.04 Contractor agrees that it shall not transport to, use, generate, dispose of, or install at the Project site any Hazardous Substance (as defined in this Agreement, except in accordance with applicable Environmental Laws. Further, in performing the Work, Contractor shall not cause any release of Hazardous Substances into, or contamination of, the environment, including the soil, the atmosphere, any water course or ground water, except in accordance with applicable Environmental Laws (as defined in this Agreement). In the event Contractor engages in any of the activities prohibited in this Section 31.04 to the fullest extent permitted by law, Contractor hereby indemnifies and holds City and all of its respective officials, agents and employees harmless from and against any and all claims, damages, losses, causes of action, suits and liabilities of every kind, including, but not limited to, expenses of litigation, court costs, punitive damages and attorneys’ fees, arising out of, incidental to or resulting from the activities prohibited in this section 31.04. 31.05 In the event Contractor encounters on the Project site any Hazardous Substance, or what Contractor may reasonably believe to be a Hazardous Substance, and which is being introduced to the Work, or exists on the Project site, in a manner violative of any applicable Environmental Laws, Contractor shall immediately stop work in the area affected and report the condition to City in writing. The Work in the affected area shall not thereafter be resumed except by written authorization of City if in fact a Hazardous Substance has been encountered and has not been rendered harmless. In the event Contractor fails to stop the Work upon encountering a Hazardous Substance at the Project site, to the fullest extent permitted by law, Contractor hereby indemnifies and holds City and all of its officials, agents and employees harmless from and against any and all claims, damages, losses, causes of action, suits and liabilities of every kind, including, but not limited to, expenses of litigation, court costs, punitive damages and attorneys' fees, arising out of, incidental to or resulting from Contractor's failure to stop the Work. 31.06 City and Contractor may enter into a separate agreement and/or Change Order for Contractor to remediate and/or render harmless the Hazardous Substance, but Contractor shall not be required to remediate and/or render harmless the Hazardous Substance absent such agreement. Contractor shall not be required to resume work in any area affected by the Hazardous Substance until such time as the Hazardous Substance has been remediated and/or rendered harmless. 31.07 It is the Contractor's responsibility to comply with all Environmental Laws (as defined in this Agreement) based on the law in effect at the time its services are rendered and to comply with any amendments to those laws for all services rendered after the effective date of any such amendments. 32. TRENCH SAFETY The Contractor must comply with Texas law regarding trench excavation exceeding five feet in depth and in accordance with the following items: 32.01 The Contractor must comply with the requirements of Subchapter 756 of the Tex. Health & Safety Code Ann. §756.022-023, and the requirements of 29 C.F.R., Subpart P – Excavations (sections 1926.650 et. seq.) of the Occupational Safety and Health Administration Standards, as amended. 32.02 The Contractor must include a separate pay item for trench safety complying with trench safety requirements, stating a unit price per linear foot of trench safety systems, as measured along the centerline of trench including manholes and other line structures. Page 54 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 33 32.03 Before beginning work on this project, the Contractor must submit to the City a complete trench safety program that complies with state and federal regulations. It is the sole duty, responsibility and prerogative of the Contractor, not the City, to determine the specific applicability of the designed trench safety systems to each field condition encountered on the project. 32.04 The Contractor must provide the City the name of the “competent person” required by OSHA standards to perform the trench safety inspections. The Contractor must make daily inspections to ensure that the systems comply with all applicable laws and regulations, and must maintain a permanent record of daily inspections available for examination by the City or other government authority. 32.05 If evidence of possible cave-ins or slides is apparent, the Contractor must cease all work in the trench and surrounding area until the necessary precautions have been taken by the Contractor to safeguard personnel entering the trench. 33. INDEMNITY 33.01 CONTRACTOR SHALL PROTECT, DEFEND, HOLD HARMLESS AND INDEMNIFY THE CITY FROM ANY AND ALL CLAIMS, DEMANDS, EXPENSES, LIABILITY OR CAUSES OF ACTION FOR INJURY TO ANY PERSON, INCLUDING DEATH, AND FOR DAMAGE TO ANY PROPERTY, TANGIBLE OR INTANGIBLE, OR FOR ANY BREACH OF CONTRACT ARISING OUT OF OR IN ANY MANNER CONNECTED WITH THE WORK DONE BY ANY PERSON UNDER THE CONTRACT DOCUMENTS. IT IS THE INTENT OF THE PARTIES THAT THIS PROVISION SHALL EXTEND TO, AND INCLUDE, ANY AND ALL CLAIMS, CAUSES OF ACTION OR LIABILITY CAUSED BY THE CONCURRENT, JOINT AND/OR CONTRIBUTORY NEGLIGENCE OF THE CITY, AN ALLEGED BREACH OF AN EXPRESS OR IMPLIED WARRANTY BY THE CITY OR WHICH ARISES OUT OF ANY THEORY OF STRICT OR PRODUCTS LIABILITY. 33.02 The indemnification contained in Section 33.01 shall include but not be limited to the following specific instances: (a) The City is damaged due to the act, omission, mistake, fault or default of the Contractor. (b) In the event of any claims for payment for goods or services brought by any material suppliers, mechanics, laborers, or other subcontractors. (c) In the event of any and all injuries to or claims of adjacent property owners caused by the Contractor, its agents, employees, and representatives. (d) In the event of any damage to the floor, walls, etc., caused by the Contractor's personnel or equipment during installation. (e) The removal of all debris related to the Work. (f) The acts and omissions of the subcontractors it hired. (g) The Contractor's failure to comply with applicable federal, state, or local regulations, that touch upon or concern the maintenance of a safe and protected working environment and the safe use and operation of machinery and equipment in that working environment, no matter where fault or responsibility lies. Page 55 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 34 33.03 The indemnification obligations of the Contractor under this section shall not extend to include the liability of any professional engineer, the architect, their consultants, and agents or employees of any of them arising out of (1) the preparation or approval of maps, drawings, opinions, reports, surveys, Change Orders, designs or specifications, or (2) the giving of or the failure to give directions or instructions by the professional engineer, the architect, their consultants, and agents and employees of any of them, provided such giving or failure to give is the primary cause of the injury or damage. 33.04 It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the indemnification obligation under Section 33.01, such legal limitations are made a part of the indemnification obligation and shall operate to amend the indemnification obligation to the minimum extent necessary to bring the provision into conformity with the requirements of such limitations, and as so modified, the indemnification obligation shall continue in full force and effect. 33.05 The indemnity provisions provided herein shall survive the termination or expiration of this Agreement. 33.06 The indemnification obligations under this section shall not be limited by any limitation on the amount or type of damages, compensation or benefits payable by or for Contractor under workers compensation acts, disability benefit acts or other employee benefit acts. There shall be no additional indemnification other than as set forth in this section. All other provisions regarding the same subject matter shall be declared void and of no effect. 34. RELEASE 34.01 The Contractor assumes full responsibility for the Work to be performed hereunder, and hereby releases, relinquishes, and discharges the City, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of any person (whether employees of either party or other third parties) and any loss of or damage to any property (whether property of either of the parties hereto, their employees, or of third parties) that is caused by or alleged to be caused by, arising out of, or in connection with the Contractor's Work to be performed hereunder. This release shall apply regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance, and in the event of injury, death, property damage, or loss suffered by the Contractor, any subcontractor, or any person or organization directly or indirectly employed by any of them to perform or furnish work on the Project, this release shall apply regardless of whether such injury, death, loss, or damage was caused in whole or in part by the negligence of the City. There shall be no additional release or hold harmless provision other than as set forth in this section. All other provisions regarding the same subject matter shall be declared void and of no effect. 35. PERMITS AND LICENSES 35.01 The Contractor shall secure and pay for all necessary permits and licenses, governmental fees, and inspections necessary for the proper execution and completion of the Work. During this Agreement term and/or period during which the Contractor is working, it shall give all notices and comply with all laws, ordinances, rules, regulations, and lawful orders of any public authority bearing on the performance of the Work. 36. ROYALTIES AND LICENSING FEES Page 56 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 35 36.01 THE CONTRACTOR SHALL PAY ALL ROYALTIES AND LICENSING FEES. THE CONTRACTOR SHALL HOLD THE CITY HARMLESS AND INDEMNIFY THE CITY FROM THE PAYMENT OF ANY ROYALTIES, DAMAGES, LOSSES OR EXPENSES INCLUDING ATTORNEY’S FEES FOR SUITS, CLAIMS OR OTHERWISE, GROWING OUT OF INFRINGEMENT OR ALLEGED INFRINGEMENT OF PATENTS, MATERIALS AND METHODS USED IN THE PROJECT. IT SHALL DEFEND ALL SUITS OR CLAIMS FOR INFRINGEMENT OF ANY PATENT RIGHTS. FURTHER, IF THE CONTRACTOR HAS REASON TO BELIEVE THAT THE DESIGN, SERVICE, PROCESS, OR PRODUCT SPECIFIED IS AN INFRINGEMENT OF A PATENT, IT SHALL PROMPTLY GIVE SUCH INFORMATION TO CITY’S REPRESENTATIVE. 37. BREACH OF CONTRACT & DAMAGES 37.01 The City shall have the right to declare the Contractor in breach of this Agreement for cause when the City determines that this Agreement is not being performed according to its understanding of the intent and meaning of this Agreement. Such breach shall not in any way invalidate, abrogate, or terminate the Contractor's obligations under this Agreement. 37.02 Without prejudice to any other legal or equitable right or remedy that the City would otherwise possess hereunder or as a matter of law, the City upon giving the Contractor five (5) calendar days prior written notice shall be entitled to damages for breach of contract, upon but not limited to the following occurrences: (a)If the Contractor shall fail to remedy any default after written notice thereof from City's Representative, as City's Representative shall direct; or (b)If the Contractor shall fail for any reason other than the failure by City's Representative to make payments called upon when due; or (c)If the Contractor commits a substantial default under any of the terms, provisions, conditions, or covenants contained in this Agreement. 38. TERMINATION FOR CAUSE 38.01 At any time, and without prejudice to any other legal or equitable right or remedy that the City would otherwise possess hereunder or as a matter of law, the City upon giving the Contractor five (5) calendar days prior written notice shall be entitled to terminate this Agreement in its entirety for any of the following: (a)If the Contractor becomes insolvent, commits any act of bankruptcy, makes a general assignment for the benefit of creditors, or becomes the subject of any proceeding commenced under any statute or law for the relief of debtors and, after notice, fails to provide adequate assurance that it can remedy all of its defaults; or (b)If a receiver, trustee, or liquidator of any of the property or income of the Contractor is appointed; or (c)If the Contractor fails to prosecute the Work or any part thereof with diligence necessary to insure its progress and completion as prescribed by the time schedules; or (d)If the Contractor fails to remedy any default within ten (10) calendar days after written notice thereof from City's Representative, as City's Representative shall direct; or Page 57 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 36 (e)If the Contractor fails for any reason other than the failure by City's Representative to make payments called upon when due; or (f)If the Contractor abandons the Work. (g)If the Contractor commits a material default under any of the terms, provisions, conditions, or covenants contained in this Agreement. 39. TERMINATION FOR CONVENIENCE 39.01 The performance of the Work may be terminated at any time in whole or, from time to time, in part, by the City for its convenience. Any such termination shall be effected by delivery to the Contractor of a written notice (notice of termination) specifying the extent to which performance of the Work is terminated, and the date upon which termination becomes effective. 39.02 In the event of termination for convenience, the Contractor shall only be paid the reasonable value of the Work performed prior to the effective date of the termination notice and shall be further subject to any claim the City may have against the Contractor under other provisions of this Agreement or as a matter of law. In the event of termination for convenience, Contractor Waives and Releases any claim for lost profit, other than profit on Work performed prior to the effective date of such termination. 40. RIGHT TO COMPLETE 40.01 If this Agreement is terminated for cause, the City shall have the right but shall not be obligated to complete the Work itself or by others; and to this end, the City shall be entitled to take possession of and use such equipment, without rental obligation therefor, and materials as may be on the job site, and to exercise all rights, options, and privileges of the Contractor under its subcontracts, purchase orders, or otherwise; and the Contractor shall promptly assign such rights, options, and privileges to City. If the City elects to complete the Work itself or by others, pursuant to the foregoing, then the Contractor and/or Contractor’s surety will reimburse City for all costs incurred by the City (including, without limitation, applicable, general, administrative expenses, field overhead, the cost of necessary equipment, materials, field labor, additional fees paid to architects, engineers, attorneys or others to assist the City in connection with the termination and liquidated damages) in completing and/or correcting work by the Contractor that fails to meet any requirement of this Agreement or the other Contract Documents. 41. CLOSE OUT 41.01 After receipt of a notice of termination, whether for cause or convenience, unless otherwise directed by City's Representative, the Contractor shall, in good faith and to the best of its ability, do all things necessary in the light of such notice to assure the efficient and proper closeout of the terminated work (including the protection of City's property). Among other things, the Contractor shall, except as otherwise directed or approved by City's Representative, do the following: (a)Stop the work on the date and to the extent specified in the notice of termination; (b)Place no further orders or subcontracts for services, equipment, or materials, except as may be necessary for completion of such portion of the Work as is not terminated; Page 58 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 37 (c)Terminate all orders and subcontracts to the extent that they relate to the performance of the Work terminated by the notice of termination; (d)Assign to City's Representative, in the manner and to the extent directed by it, all of the right, title, and interest of the Contractor under the orders or subcontracts so terminated; in which case, City's Repre- sentative shall have the right to settle or pay any or all claims arising out of the termination of such orders and subcontracts; (e)With the approval of City's Representative, settle all outstanding liabilities and all claims arising out of such termination, orders, and subcontracts; (f)Deliver to City's Representative, when directed by City's Representative, all documents and all property, which if the Work had been completed, Contractor would have been required to account for or deliver to City's Representative, and transfer title to such property to City's Representative to the extent not already transferred. 42. TERMINATION CONVERSION 42.01 Upon determination of Court of competent jurisdiction that termination of the Contractor pursuant to Section 38 was wrongful and/or otherwise improper, such termination will be deemed converted to a termination for convenience pursuant to Section 39 and Contractor’s remedy for such termination shall be limited to the recovery of the payments permitted for termination for convenience as set forth in Section 39. 43. HIRING 43.01 During the term of this Agreement and for a period of one (1) year thereafter, the Contractor agrees not to solicit for hire any employee or employees of the City that were associated with work specified under this Agreement. In the event that this provision is breached by the Contractor, the Contractor agrees to pay the City damages in the amount equal to twelve (12) months of the employee's total compensation plus any legal expenses associated with enforcement of this provision. 44. ASSIGNMENT 44.01 This Agreement and the rights and obligations contained herein may not be assigned by the Contractor without the prior written approval of the City. 45. EFFECTIVE DATE 45.01 This Agreement goes into effect when duly approved by all the parties hereto and is contingent upon Contractor obtaining the bonds required herein. 46. OTHER TERMS 46.01 Invalidity. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable by a court or other tribunal of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The parties shall use their best efforts to replace Page 59 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 38 the respective provision or provisions of this Agreement with legal terms and conditions approximating the original intent of the parties. 46.02 Prioritization. Contractor and City agree that City is a political subdivision of the State of Texas and is thus subject to certain laws. Because of this there may be documents or portions thereof added by Contractor to this Agreement as exhibits that conflict with such laws, or that conflict with the terms and conditions herein excluding the additions by Contractor. In either case, the applicable law or the applicable provision of this Agreement excluding such conflicting addition by Contractor shall prevail. The parties understand this section comprises part of this Agreement without necessity of additional consideration. 46.03 Written Notice.Unless otherwise specified, written notice shall be deemed to have been duly served if delivered in person to the individual or to a member of the firm or to any officer of the corporation for whom it is intended or if it is delivered or sent certified mail to the last business address as listed herein. Each party will have the right to change its business address by at least thirty (30) calendar days written notice to the other parties in writing of such change. 46.04 Entire Agreement.It is understood that this Agreement contains the entire agreement between the parties and supersedes any and all prior agreements, arrangements, or understandings between the parties relating to the subject matter. No oral understandings, statements, promises or inducements contrary to the terms of this Agreement exist. This Agreement cannot be changed or terminated orally. No verbal agreement or conversation with any officer, agent or employee of the City, either before or after the execution of this Agreement, shall affect or modify any of the terms or obligations hereunder. 46.05 Amendment.No amendment to this Agreement shall be effective and binding unless and until it is reduced to writing and signed by duly authorized representatives of both parties. 46.06 Mediation.After receipt of a written notice of a claim, the City may elect to refer the matter to the City’s Consultant, City's Representative or another party for review. Contractor will attend meetings called to review and discuss the claims and mitigation of the problem, and shall furnish any reasonable factual backup for the claim requested. The City may also elect to defer consideration of the claim until the Work is completed, in which case the same review options shall be available to the City at the completion of the Work. At any stage, the City, at its sole discretion, is entitled to refer a claim to mediation under the Construction Industry Mediation Rules of the American Arbitration Association, and, if this referral is made, Contractor will take part in the mediation process. The filing, mediation or rejection of a claim does not entitle Contractor to stop performance of the Work. The Contractor shall proceed diligently with performance of the Contract during the pendency of any claim, excepting termination or under City's direction to stop the Work. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. The parties shall share the Mediator's fee and any filing fees equally and the Mediation shall be held in College Station, Texas. 46.07 Arbitration.In the event of a dispute and upon the mutual written consent of both parties, the parties may agree to arbitration without waiving any of their other rights hereunder. 46.08 Choice of Law and Place of Performance.This Agreement has been made under and shall be governed by the laws of the State of Texas. Performance and all matters related thereto shall be in Brazos County, Texas, United States of America. 46.09 Authority to do business.The Contractor represents that it has a certificate of authority, authorizing it to do business in the State of Texas, a registered agent and registered office during the duration of this Agreement. Page 60 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 39 46.10 Authority to Contract.Each party has the full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby represent that they have authorization to sign on behalf of their respective corporations. 46.11 Waiver.Failure of any party, at any time, to enforce a provision of this Agreement shall in no way constitute a waiver of that provision nor in any way affect the validity of this Agreement, any part hereof, or the right of the City thereafter to enforce each and every provision hereof. No term of this Agreement shall be deemed waived or breach excused unless the waiver shall be in writing and signed by the party claimed to have waived. Furthermore, any consent to or waiver of a breach will not constitute consent to or waiver of or excuse of any other different or subsequent breach. 46.12 Headings, Gender, Number.The article headings are used in this Agreement for convenience and reference purposes only and are not intended to define, limit, or describe the scope or intent of any provision of this Agreement and shall have no meaning or effect upon its interpretation. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. 46.13 Agreement Read.The parties acknowledge that they have had opportunity to consult with counsel of their choice, have read, understand and intend to be bound by the terms and conditions of this Agreement. 46.14 Multiple Originals.It is understood and agreed that this Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. 46.15 Notice of Indemnification. City and Contractor hereby acknowledge and agree that this Agreement contains certain indemnification obligations and covenants. 46.16 Verification No Boycott.To the extent applicable, this Contract is subject to the following: (a)Boycott Israel. If this Contract is for goods and services subject to § 2270.002 Texas Government Code, Contractor verifies that it (i) does not boycott Israel; and (ii) will not boycott Israel during the term of this Contract; (b)Boycott Firearms. If this Contract is for goods and services subject to § 2274.002 Texas Government Code, Contractor verifies that it (i) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (ii) will not discriminate during the term of the contract against a firearm entity or firearm trade association; and (c)Boycott Energy Companies. Subject to § 2274.002 Texas Government Code Contractor herein verifies that it (i) does not boycott energy companies; and (ii) will not boycott energy companies during the term of this Contract. 46.17 Fraud Reporting. To reduce the risk of fraud and to protect the Contractor’s financial information from fraud, the Contractor must report to the City in writing at VendorInvoiceEntry@cstx.gov if the Contractor reasonably suspects or knows if any of their financial information has been subject to fraudulent activity or suspected fraudulent activity. Page 61 of 101 Page 62 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 12-15-2022 EXHIBIT A DAVIS BACON WAGE RATES Page 63 of 101 Page 64 of 101 Page 65 of 101 Page 66 of 101 Page 67 of 101 Page 68 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 12-15-2022 1.Payment greater than prevailing wage rate as listed within this document not prohibited per Texas Government Code, Chapter 2258, Prevailing Wage Rates, Subchapter A. General Provisions. 2.Not less than the following hourly rates shall be paid for the various classifications of work required by this project. Workers in classifications where rates are not identified shall be paid not less than the general prevailing rate of "laborer" for the various classifications of work therein listed. 3.The hourly rate for legal holiday and overtime work shall not be less than one and one-half (1 & 1/2) times the base hourly rate. 4.The rates listed are journeyman rates. Helpers may be used on the project and may be compensated at a rate determined mutually by the worker and employer, commensurate with the experience and skill of the worker but not at a rate less than 60% of the journeyman's wage as shown. Apprentices (enrolled in a federally certified apprentice program) may be used at the percentage rates of the journeyman scale stipulated in their apprenticeship agreement. At no time shall a journeyman supervise more than two (2) apprentices or helpers. All apprentices or helpers shall be under the direct supervision of a journeyman working as a crew. 5.Except for Heavy/Highway Construction, building construction wage rates shall be paid to all workers except those workers engaged in site work and construction beyond five feet of buildings. Page 69 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 12-15-2022 EXHIBIT B PERFORMANCE AND PAYMENT BONDS Page 70 of 101 Page 71 of 101 Page 72 of 101 Page 73 of 101 Page 74 of 101 Page 75 of 101 Page 76 of 101 Page 77 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 12-15-2022 EXHIBIT C CERTIFICATES OF INSURANCE AND ENDORSEMENTS Page 78 of 101 ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? INSR ADDL SUBR LTR INSD WVD PRODUCER CONTACT NAME: FAXPHONE (A/C, No):(A/C, No, Ext): E-MAIL ADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY)(MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person)$ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER:$ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person)$ OWNED SCHEDULED BODILY INJURY (Per accident)$AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH- STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD 11/6/2023 (940) 723-7111 (940) 723-7531 10178 Elliott Construction, LLC P. O. Box 3788 Bryan, TX 77805 A 1,000,000 CPP100058266-03 7/1/2023 7/1/2024 100,000 5,000 1,000,000 2,000,000 2,000,000 1,000,000A CA100058267-03 7/1/2023 7/1/2024 5,000,000A UMB100058268-03 7/1/2023 7/1/2024 5,000,000 10,000 A WC0100058269-03 7/1/2023 7/1/2024 1,000,000 N 1,000,000 1,000,000 A Installation / Build CPP100058266-03 7/1/2023 Installation Floater 500,000 Boyett and Spruce 6 In Wastewater Repair City of College Station it's agents, officials, employees & volunteers Attn: Risk Management PO Box 9960 College Station, TX 77842 ELLICON-02 ECALLEN Boley-Featherston Insurance 701 Lamar Street Wichita Falls, TX 76301 FCCI Insurance Company X 7/1/2024 X X X X X X X X Page 79 of 101 FORM NUMBER: EFFECTIVE DATE: The ACORD name and logo are registered marks of ACORD ADDITIONAL REMARKS ADDITIONAL REMARKS SCHEDULE FORM TITLE: Page of THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, ACORD 101 (2008/01) AGENCY CUSTOMER ID: LOC #: AGENCY NAMED INSURED POLICY NUMBER CARRIER NAIC CODE © 2008 ACORD CORPORATION. All rights reserved. Boley-Featherston Insurance ELLICON-02 SEE PAGE 1 1 SEE PAGE 1 ACORD 25 Certificate of Liability Insurance 1 SEE P 1 Elliott Construction, LLC P. O. Box 3788 Bryan, TX 77805 SEE PAGE 1 ECALLEN 1 Additional Information The Auto, Umbrella and General Liability policies include a blanket additional insured endorsement that provides additional insured status to any person or organization when there is a written contract that requires such status. The General Liability policy includes a blanket additional insured endorsement that provides additional insured status in regard to completed operations to any person or organization when there is a written contract that require such status. The Auto, General Liability, Umbrella and Workers Compensation policies include a blanket waiver of subrogation endorsement that provides waiver of subrogation to any person or organization when there is a written contract that requires such status. The general liability and auto policies contains a special endorsement with "Primary and Noncontributory" wording. Page 80 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 12-15-2022 EXHIBIT D PLANS AND SPECIFICATIONS Page 81 of 101 ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL PRICE BASE BID 1 1 LS Mobilization: Including Payment and Performance Bonds if Total Contract Exceeds $50,000.00. $30,000.00 $30,000.00 2 259 LF Pipe-burst 6 inch HDPE pipe into existing failing 6 inch Vitrified Clay wastewater line and tie into existing 2 Manholes. Southern Manhole Inside Drop Connection per BCS United S2-02. All in accordance with OSHA Trench Safety etc. Provide Erosion Control including Silt Fencing. $285.00 $73,815.00 3 8 EA 4" Sanitary Sewer Service Connection with Clean Out on 6 inch HDPE installed by pipe-bursting. All in accordance with OSHA Trench Safety etc. Provide Erosion Control including Silt Fencing. Backfill in accordance with BCS United. $2,100.00 $16,800.00 4 2 LS 6" Sanitary Sewer Service Connection with Clean Out on 6 inch HDPE installed by pipe-bursting. All in accordance with OSHA Trench Safety etc. Provide Erosion Control including Silt Fencing. Backfill in accordance with BCS United. $2,300.00 $4,600.00 5 150 LF Install 6 inch PVC by Open Trench. All in accordance with OSHA Trench Safety etc. Provide Erosion Control including Silt Fencing. $300.00 $45,000.00 6 4 EA 4" Sanitary Sewer Service Connection with Clean Out on 6 inch PVC installed by open trench. All in accordance with OSHA Trench Safety etc. Provide Erosion Control including Silt Fencing. Backfill in accordance with BCS United. $1,880.00 $7,520.00 7 1 LS 6" Sanitary Sewer Service Connection with Clean Out on 6 inch PVC installed by open trench. All in accordance with OSHA Trench Safety etc. Provide Erosion Control including Silt Fencing. Backfill in accordance with BCS United. $2,000.00 $2,000.00 8 1 EA Remove and Dispose of Tree and Stump approximate entire 24 inch diameter $2,800.00 $2,800.00 9 1 LS Restore, Block Sod, Restore, Dispose of Debris and Clean Work Site. Repair any irrigation systems damaged by project. Remove, Dispose, and Replace Picket Fence as needed. Remove and dispose Tree Branches as needed. $15,000.00 $15,000.00 BASE BID TOTAL:$197,535.00 A1 1 LS Contigency $30,000.00 $30,000.00 A2 1 LS Remove, Dispose, and Replace 5-6 ft deep Concrete Manhole $7,500.00 $7,500.00 A3 2 EA Remove Entire Tree and Stump and Dispose - approximate 15 inch diameter Tree $2,000.00 $4,000.00 A4 2 DAY Wastewater Bypass Pumping if needed $5,000.00 $10,000.00 ALTERNATES:$51,500.00 BID TOTAL WITH ALTERNATES: $249,035.00 Bids shall be made with the following considerations: 1. City to repair any concrete and pavement as needed separately 2. Contractor only to proceed with each Alternate Item with specific City Authorization to Proceed ALTERNATES Boyett St & Spruce St - 6 inch Wastewater Line 10/23/23 Page 82 of 101 Contract No.___________ Construction Agreement Over $50,000 Form 12-15-2022 EXHIBIT E CONSTRUCTION SCHEDULE Page 83 of 101 November 20, 2023 Item No. 7.1. SH 6 Landscaping Options Sponsor: Emily Fisher, Director of Public Works Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action regarding a presentation on options for landscaping along State Highway 6 as part of the upcoming widening project. Relationship to Strategic Goals: 1. Core Services and Infrastructure Recommendation(s): n/a Summary: Presentation of TXDOT's options for landscaping along SH 6 as apart of the widening project. Budget & Financial Summary: n/a Attachments: None Page 84 of 101 November 20, 2023 Item No. 7.2. Convention Center Study Sponsor: Brian Piscacek, Economic Development Manager Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action regarding the scope of a study for a future convention center. Relationship to Strategic Goals: Diverse and Growing Economy Recommendation(s): Summary: Budget & Financial Summary: Attachments: None Page 85 of 101 November 20, 2023 Item No. 7.3. Southside Neighborhood Street Signage Project Sponsor: Barbara Moore, Assistant to the City Manager Reviewed By CBC: City Council Agenda Caption: Presentation and discussion on the Southside Street Signage Project. Relationship to Strategic Goals: Neighborhood Integrity Recommendation(s): Staff recommends council accept the Southside Neighborhood Signage project. Summary: The City Manager's Office worked with the Southside Neighborhood association to change the street signs in the neighborhood to more customized signs, including elements important to the residents. These new signs will replace the current signs and will be installed throughout the neighborhood over the next few months. Budget & Financial Summary: N/A Attachments: None Page 86 of 101 November 20, 2023 Item No. 8.1. Holleman Tavern Conditional Use Permit Sponsor: Robin Macias Reviewed By CBC: Planning & Zoning Commission Agenda Caption: Public Hearing, presentation, discussion, and possible action on a Conditional Use Permit for a Night Club, Bar or Tavern use encompassing approximately 6,902 square feet on 2.05 acres of land generally located at 3164 Holleman Drive South Suite 100. Relationship to Strategic Goals: Diverse & Growing Economy Recommendation(s): Staff recommends approval of the Conditional Use Permit with the previously approved conditions, which were: 1. Music on the rooftop area shall be limited to non-amplified, acoustic music. This limitation shall not apply to background radio or television. 2. A minimum 3-ft tall sound barrier shall be installed along the south side of the rooftop open-air bar area on top of the parapet wall. The Planning and Zoning Commission heard this item at their 11/2/23 meeting and voted 6-0 to recommend approval with the stated conditions. Summary: This request is for a Conditional Use Permit for the use of a Night Club, Bar or Tavern for approximately 6,902 square feet of an existing shopping center consisting of indoor and rooftop bar amenities, located at 3164 Holleman Dr South Suite 100. A conditional use permit for an indoor tavern with rooftop bar amenities was previously approved in April 2022 with the conditions that music on the rooftop area be limited to non-amplified, acoustic music (this limitation did not apply to background radio or television) and a minimum 3-ft tall sound barrier be installed along the south side of the rooftop open-air bar area on top of the parapet wall. The applicant is proposing to increase the total area of the tavern allowed by the previously-approved conditional use permit by 1,684 square feet. The addition will increase the interior square footage and will not increase the square footage of the rooftop bar area. The property is currently zoned GC General Commercial. REVIEW CRITERIA 1. The proposed use shall meet the purpose and intent of the Unified Development Ordinance (UDO) and meet all minimum standards for this type of use per the UDO. Nightclubs, bars and taverns are permitted in several zoning districts, but outside of Northgate, all nightclub, bar and tavern uses require the approval of a Conditional Use Permit to operate. The zoning of the subject property is GC General Commercial, so the proposed use of a tavern at this location requires a Conditional Use Permit. The applicant is proposing to increase the indoor square footage of the previously approved conditional use permit by approximately 1,684 square feet for a total of 6,902 square feet. The University Heights retail center has been constructed and has met all the minimum requirements per the UDO. The proposed use will meet all the minimum standards per the UDO. 2. The proposed use shall be consistent with the development policies and goals and Page 87 of 101 objectives as embodied in the Comprehensive Plan for development in the City. The subject tract is shown on the Comprehensive Plan Future Land Use and Character Map as Mixed Residential. The Comprehensive Plan states that these areas are appropriate for residential infill and redevelopment that allows original character to evolve. This land use designation is intended to support neighborhoods with a mix of residential types, encourage community facilities and accommodate a walkable pattern. The property is already zoned GC General Commercial which allows for commercial uses. There is currently a small retail center and a convenience store developed on site. This use would support the surrounding residential developments by providing a service at a close distance to their homes. 3. The proposed use shall not be detrimental to the health, welfare, or safety of the surrounding neighborhood or its occupants, not be substantially or permanently injurious to neighboring property. The proposed use is required by the City of College Station Code of Ordinances to be at least 300 feet away from any church, public school or public hospital; this use will meet this requirement. The lighting on the rooftop bar will be dim and not project to other property. The use is approximately 275 feet away from the adjacent townhome development. The use is approximately 120 feet away from the adjacent single-family lots that share a common property line with a 10-ft landscape buffer and fence between the adjacent lots. There is a complete wall on over half of the side of the building that faces the adjacent single-family homes and a 5-ft wall on the open-air portion which will act as a buffer to the noise. The following conditions were placed on the previously approved conditional use permit: 1. Music on the rooftop area shall be limited to non-amplified, acoustic music. This limitation shall not apply to background radio or television. 2. A minimum 3-ft tall sound barrier shall be installed along the south side of the rooftop open-air bar area on top of the parapet wall. The tavern expansion will be inside the building and these conditions related to the rooftop area will remain in place. With these conditions, the use should not be detrimental or substantially injurious to the surrounding neighborhood or its occupants. 4. The proposed site plan and circulation plan shall be harmonious with the character of the surrounding area. The applicant is not proposing any changes to the site. The building is an existing 12,000 square-foot Retail Shopping Center, thus keeping the site plan and circulation plan harmonious with the surrounding area’s character. The use would be limited to the square footage approved through the Conditional Use Permit, which in this case would be a total of 6,902 square feet of commercial tenant space. 5. The proposed use shall not negatively impact existing uses in the area or in the City through impacts on public infrastructure such as roads, parking facilities, electrical, or water and sewer systems, or on public services such as police and fire protection, solid waste collection, or the ability of existing infrastructure and services to adequately provide Page 88 of 101 services. This use will not negatively impact public infrastructure or services. This use will be in an existing site zoned GC General Commercial that was originally planned and developed to accommodate commercial uses. This site has existing parking spaces that meet the requirements for the proposed use. 6. The proposed use shall not negatively impact existing uses in the area or in the City. Existing uses in the area include commercial and single-family. With the added conditions, the use should not negatively impact existing uses in the area. Budget & Financial Summary: N/A Attachments: 1. Ordinance 2. Vicinity Map, Aerial and Small Area Map 3. Background Information 4. Applicant Supporting Information 5. Site Plan Page 89 of 101 Ordinance Form 08-27-19 ORDINANCE NO. _______ AN ORDINANCE GRANTING A CONDITIONAL USE PERMIT PURSUANT TO APPENDIX A, “UNIFIED DEVELOPMENT ORDINANCE,” ARTICLE 3, “DEVELOPMENT REVIEW PROCEDURES,” SECTION 3.16, “CONDITIONAL USE PERMIT,” OF THE CODE OF ORDINANCES OF THE CITY OF COLLEGE STATION, TEXAS, AND OTHER APPLICABLE PROVISIONS THEREOF, APPROVING A CONDITIONAL USE PERMIT AFFECTING CERTAIN PROPERTIES LOCATED AT 3164 HOLLEMAN DRIVE SOUTH SUITE 100 AND AS DESCRIBED BELOW FOR THE USE OF A NIGHTCLUB/BAR/TAVERN; DECLARING A PENALTY, AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS: PART 1:That a conditional use permit be granted in accordance with Appendix A, “Unified Development Ordinance,” Article 3, “Development Review Procedures,” Section 3.16, “Conditional Use Permit,” of the Code of Ordinances of the City of College Station, Texas, and other applicable provisions thereof as set out in Exhibit “A” attached hereto and made a part of this Ordinance for all purposes. PART 2:If any provision of this Ordinance or its application to any person or circumstances is held invalid or unconstitutional, the invalidity or unconstitutionality does not affect other provisions or application of this Ordinance or the Code of Ordinances of the City of College Station, Texas, that can be given effect without the invalid or unconstitutional provision or application, and to this end the provisions of this Ordinance are severable. PART 3:That any person, corporation, organization, government, governmental subdivision or agency, business trust, estate, trust, partnership, association and any other legal entity violating any of the provisions of this Ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punishable by a fine of not less than twenty five dollars ($25.00) and not more than five hundred dollars ($500.00) or more than two thousand dollars ($2,000) for a violation of fire safety, zoning, or public health and sanitation ordinances, other than the dumping of refuse. Each day such violation shall continue or be permitted to continue, shall be deemed a separate offense. PART 4:This Ordinance is a penal ordinance and becomes effective ten (10) days after its date of passage by the City Council, as provided by City of College Station Charter Section 35. Page 90 of 101 Ordinance No. _______ Page 2 of 3 Ordinance Form 08-27-19 PASSED, ADOPTED and APPROVED this 16th day of November, 2023. ATTEST: APPROVED: ___________________________________ ___________________________________ City Secretary Mayor APPROVED: ___________________________________ City Attorney Page 91 of 101 Ordinance No. _______ Page 3 of 3 Ordinance Form 08-27-19 Exhibit A That the following conditional use permit be granted in accordance with Appendix A, “Unified Development Ordinance,” Article 3, “Development Review Procedures,” Section 3.16, “Conditional Use Permit,” of the Code of Ordinances of the City of College Station, Texas, and other applicable provisions. That a Conditional Use Permit is hereby granted for a Nightclub/Bar/Tavern use in Appendix A, “Unified Development Ordinance,” Article 3, “Development Review Procedures,” Section 3.16, “Conditional Use Permit,” of the Code of Ordinances of the City of College Station, Texas, and other applicable provisions. The property located at 3164 Holleman Dr South, Suite 100 (approximate 6,902 square foot lease space), is granted a Conditional Use Permit for a Nightclub/Bar/Tavern use. Conditional Use Permit Conditions: 1. Music on the rooftop area shall be limited to non-amplified, acoustic music. This limitation shall not apply to background radio or televisions. 2. A minimum 3-foot tall sound barrier shall be installed along the south side of the rooftop open-air bar area on top of the parapet wall. Page 92 of 101 Page 93 of 101 Page 94 of 101 Page 95 of 101 NOTIFICATIONS Advertised Commission Hearing Date: November 2, 2023 Advertised Council Hearing Dates: November 20, 2023 The following neighborhood organizations that are registered with the City of College Station’s Neighborhood Services have received a courtesy letter of notification of this public hearing: None Property owner notices mailed: 26 Contacts in support: None Contacts in opposition: None Inquiry contacts: None at the time of staff report ADJACENT LAND USES Direction Comprehensive Plan Zoning Land Use North Mixed Residential T Townhomes Single Family Townhomes South Mixed Residential R Rural Single Family Residential Homes East Mixed Residential GC General Commercial Future Convenience Store West Mixed Residential and Natural and Open Areas R-4 Multi-family Single Family Townhomes and detention pond DEVELOPMENT HISTORY Annexation:2008 Zoning:A-O Agricultural Open (upon annexation) R- 4 Multi-Family (2012) GC General Commercial (2018) Final Plat:University Heights Ph 4 (2017) University Heights Ph 4 Replat (2019) University Heights Ph 4 Amending Plat (2019) Site development:Commercial Retail Shopping Center (2020) Page 96 of 101 Page 1 of 3 CONDITIONAL USE PERMIT APPLICATION SUPPORTING INFORMATION HOLLEMAN TAVERN Name of Project: Address: 3164 HOLLEMAN DR S 100 Legal Description: UNIVERSITY HEIGHTS PH 4, BLOCK 12, LOT 1R-3A, ACRES 2.05 Applicant:: KM CUSTOM HOMES Property Owner: KGM RENTAL LLC Detailed explanation of the proposed use: The Proposed use is for a restaurant bar to be used located in an existing building. Explain how the proposed use will meet the purpose and intent of the UDO and how it will meet all of the minimum standards: The purposed use meets the zoning requirements, and the site was designed and constructed for General Commercial and meets the minimum standards of the UDO. Explain how the proposed use is consistent with the Comprehensive Plan: The Comprehensive plan has this area as a Mixed Residential, the surrounding residential uses are single family detached housing, townhomes, duplexes and some multi-family. The area needs more commercial uses and this proposed facility will allow residents to use a facility that is close to their residence and possibly walk to it. Explain how the proposed use is compatible with the surrounding areas: The surrounding areas are primarily residential with a few existing locations for dining and entertainment. Page 97 of 101 Page 2 of 3 Explain how the proposed site plan and circulation plan will be harmonious with the character of the surround area: The existing site was designed for general commercial uses including a restaurant bar. The site has access not only to South Holleman Dr. but to the adjoining neighborhoods on the south and west. Explain how the infrastructure impacts will be minimized, including traffic impacts: The traffic analysis was performed with the rezoning of the property to GC - General Commercial. Explain the effects the use will have on the environment: The Facility will be located in an Existing building so there should be no effects on the environment. For Night Clubs, Bars, or Taverns: approximate the distance to the nearest residential area and indicate the housing type: 250’, Townhome Residential For Night Clubs, Bars, or Taverns: estimate the noise levels produces from the proposed use as heard from all property lines: North - 25 South - 45 East - 25 West - 35 For Night Clubs, Bars, or Taverns: approximate the distance to the nearest church, school, or hospital from the front door, along property lines, to the front door: .75 miles For Mobile Food Courts, approximate the distance to the nearest single-family, duplex, or townhouse zoning districts: N/A Page 98 of 101 Page 3 of 3 For Long-Term Mobile Food Courts only, are alcohol sales proposed? If yes, approximate the distance to the nearest church, school or hospital from the front door, along property lines, to the front door: N/A Page 99 of 101 Page 100 of 101 November 20, 2023 Item No. 11.1. Council Reports on Committees, Boards, and Commissions Sponsor: City Council Reviewed By CBC: City Council Agenda Caption: A Council Member may make a report regarding meetings of City Council boards and commissions or meetings of boards and committees on which a Council Member serves as a representative that have met since the last council meeting. (Committees listed in Coversheet) Relationship to Strategic Goals: Good Governance Recommendation(s): Review meetings attended. Summary: Animal Shelter Board, Arts Council of Brazos Valley, Architectural Advisory Committee, Audit Committee, Bond Citizens Advisory Committee, Bicycle, Pedestrian, and Greenways Advisory Board, Bio-Corridor Board of Adjustments, Brazos County Health Dept., Brazos Valley Council of Governments, Brazos Valley Economic Development Corporation, Bryan/College Station Chamber of Commerce, Budget and Finance Committee, BVSWMA, BVWACS, Census Committee Group, Compensation and Benefits Committee, Experience Bryan-College Station, Design Review Board, Economic Development Committee, Gulf Coast Strategic Highway Coalition, Historic Preservation Committee, Interfaith Dialogue Association, Intergovernmental Committee, Joint Relief Funding Review Committee, Landmark Commission, Library Board, Metropolitan Planning Organization, Operation Restart, Parks and Recreation Board, Planning and Zoning Commission, Research Valley Technology Council, Regional Transportation Committee for Council of Governments, Sister Cities Association, Spring Creek Local Government Corporation, Transportation and Mobility Committee, TAMU Student Senate, Texas Municipal League, Walk with the Mayor, YMCA, Zoning Board of Adjustments. (Notice of Agendas posted on City Hall bulletin board.) Budget & Financial Summary: None. Attachments: None Page 101 of 101