Loading...
HomeMy WebLinkAbout02/08/2024 - 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# February 8, 2024 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. City of College Station v. POM-College Station, LLC and Wells Fargo Bank, National Page 1 of 425 City Council Page 2 February 8, 2024 Association, Cause No. 628-CC, in the County Court at Law No. 1 of Brazos County, Texas. i. City of College Station v. Clarke and Wyndham, Inc., Real Alchemy, L.P., Real Alchemy 1, L.P., JPJ Investments, a Texas General Partnership, Cause No. 629-CC, in the County Court at Law No. 1 of Brazos County, Texas. j. Legal advice regarding enforcement of over four unrelated people. 2.2. 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 Manager b. 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. Presentation - Proclamations, Awards, and Recognitions. 5.1. Presentation of a proclamation recognizing Black History Month. Sponsors: Barbara Moore Attachments: 1. 240208 -- Black History Month 6. 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. 7. 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 425 City Council Page 3 February 8, 2024 7.1. Presentation, discussion, and possible action of minutes for: • January 25, 2024 Council Meeting Sponsors: Tanya Smith Attachments: 1. CCM012524 DRAFT Minutes 7.2. Presentation, discussion, possible action on an interlocal agreement between BVWACS and the City of College Station and an interlocal agreement for BVCOG to continue serving as Managing Entity of BVWACS. Sponsors: Sam Rivera Attachments: 1. Contract 18300629_R3 2. Contract 17300603_R3 7.3. Presentation, discussion, and possible action on an amendment to the lease agreement with WireStar for the use of City Dark Fiber Optic Cable increasing amount due to City by $3,568.99. Sponsors: Sam Rivera Attachments: 1. 16300022_AMD_3_ADc_(CC_02.08.24) 7.4. Presentation, discussion, and possible action on a construction contract with BH Harris Construction, LLC. in the amount of $907,272.38 for construction services for the Carter Creek Wastewater Treatment Plant Equipment Building Project, plus the City’s contingency in the amount of $100,000 for a total appropriation of $1,007,272.38. Approval of this item grants authority for the City Manager to authorize project expenditures up to the City's contingency amount. Sponsors: Jennifer Cain Attachments: 1. CCWWTP Equipment Building Construction Contract - Vendor Signed 7.5. Presentation, discussion, and possible action regarding an ordinance amending Chapter 38 “Traffic and Vehicles,” Article VI "Traffic Schedules," Section 38-1014 "Traffic Schedule XIV, No Parking Here to Corner and No Parking Any Time," of the Code of Ordinances of the City of College Station, Texas, by removing parking on the north side of Gilchrist Avenue between Texas Avenue and Foster Avenue. Sponsors: Randell Smith Attachments: 1. Ordinance - Gilchrist Avenue Parking Removal 2. Exhibit - Gilchrist Avenue Parking Removal 7.6. Presentation, discussion, and possible action on an annual price agreement with Brazos Paving, Inc. for Cement Treated Base and Type D Grade 1 Cement Treated (4%) Recycled Crushed Concrete Base, not to exceed $835,000. Sponsors: Emily Fisher Attachments: 1. Tabulation 2. Supplier Response (Brazos Paving, Inc.) 7.7. Presentation, discussion, and possible action on a construction contract with C.F. McDonald Electric, Inc. for the Well #1, #2, and #3 motor control centers replacement project for $1,329,469; plus the City’s contingency amount of $132,947; for a total appropriation of $1,462,416. 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. Contract #24300243 7.8. Presentation, discussion, and possible action on a construction contract with Weisinger, Inc. for the Well #5 and Carrizo Well #1 Rehabilitation project for $1,457,830; plus the City’s contingency Page 3 of 425 City Council Page 4 February 8, 2024 amount of $142,170; for a total appropriation of $1,600,000. 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. Contract #24300289 7.9. Presentation, discussion, and possible action on annual purchases of auto parts, shop equipment and services from NAPA Auto Parts in the annual not-to-exceed $180,000. Sponsors: Mary Ellen Leonard Attachments: 1. 20-201 2nd Amendment and Extension 2. Award_Letter_NAPA 7.10. Presentation, discussion, and possible action on an annual blanket purchase order for repair parts and repair labor for fire trucks from Siddons-Martin Emergency Group not to exceed $250,000. Sponsors: Mary Ellen Leonard Attachments: 1. BuyBoard 651-21 Siddons Martin Emergency Group 7.11. Presentation, discussion, and possible action on annual tire purchases and retread services from Southern Tire Mart, LLC not-to-exceed $310,000. Sponsors: Mary Ellen Leonard Attachments: 1. BuyBoard 636-21 Southern Tire Mart 7.12. Presentation, discussion, and possible action on the first reading of a franchise agreement ordinance with Container Source Storage & Roll-Off for the collection of recyclables from commercial businesses and multi-family locations. Sponsors: Emily Fisher Attachments: 1. Franchise Agreement _ Vendor Signed 8. Workshop Agenda. 8.1. Presentation, discussion, and possible action on Southside Historic District Street Signs. Sponsors: Barbara Moore Attachments: None 8.2. Presentation, discussion, and possible action on an update from the College Station Police Department. Sponsors: Billy Couch Attachments: None 8.3. Presentation, discussion, and possible action on an update from the College Station Fire Department. Sponsors: Richard Mann Attachments: None 9. Regular Agenda. 9.1. Public Hearing, presentation, discussion, and possible action regarding an ordinance vacating and abandoning a 0.126 acre portion of a 15-foot wide Public Utility Easement located in Lot 3, Block 1 of Waters Edge Subdivision, according to the plat recorded in Volume 18474, page 262 of the Official Public Records of Brazos County, Texas. Sponsors: Lindsey Pressler Attachments: 1. Abandonment Ordinance 2. Exhibit A Page 4 of 425 City Council Page 5 February 8, 2024 3.Vicinity Map 4.Location Map 5.Abandonment Application 9.2. Presentation, discussion, and possible action regarding an appointment to the Parks and Recreation Board. Sponsors: Tanya Smith Attachments: None 10.Council Calendar - Council May Discuss Upcoming Events. 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. 12.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) 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. 14.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 February 2, 2024 at 5:00 p.m. City Secretary Page 5 of 425 City Council Page 6 February 8, 2024 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." 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 6 of 425 February 8, 2024 Item No. 5.1. Proclamtion for Black History Month Sponsor: Barbara Moore, Assistant to the City Manager Reviewed By CBC: City Council Agenda Caption: Presentation of a proclamation recognizing Black History Month. Relationship to Strategic Goals: • Good Governance Recommendation(s): None. Summary: The Black History Month 2022 theme, “Black Health and Wellness,” explores "the legacy of not only Black scholars and medical practitioners in Western medicine, but also other ways of knowing (e.g., birthworkers, doulas, midwives, naturopaths, herbalists, etc.) throughout the African Diaspora. The 2022 theme considers activities, rituals and initiatives that Black communities have done to be well." Budget & Financial Summary: None. Attachments: 1. 240208 -- Black History Month Page 7 of 425 Proclamation WHEREAS,African Americans have made significant cultural, historical, and economic contributions to the development of America and the American way of live; and WHEREAS,Carter G. Woodson created Negro History in 1926 to rectify the omission of African American History from history books and to encourage the study of the history and lives of all Americans, including African Americans; and WHEREAS, every U.S. president since 1976 has officially designated the month of February Black History Month and since then, the celebration of Black History Month has been important to appreciating and recognizing the crucial roles African Americans have played in the creation of America while increasing the visibility of African American life and history; and WHEREAS,recognizing the Black History Month 2024 theme, “African Americans and the Arts”. It shines a light on visual and performing arts, literature, fashion, folklore, architecture, culinary and other forms of cultural expression in which African American influence has been paramount, and, WHEREAS,we honor African American actors, musicians, poets, authors, designers, directors and other creatives whose work has greatly influenced all facets of the arts in America. WHEREAS, the African American National Heritage Society, through the Brazos Valley African American Museum uses the month of February to educate and bring awareness to the contributions of African Americans in the Brazos Valley. They understand the importance of sharing this important history with our region and are committed to this cause beyond Black History Month. WHEREAS, Brazos Valley African American Museum is a unique and vitally important resource and source of pride for our entire community; and WHEREAS, we applaud their work to bring awareness, education and recognition to the contributions of African Americans in the Brazos Valley. We recognize their efforts to preserve African American history in our community; and WHEREAS,we invite everyone to learn about the contributions of African Americans to the arts in our nation, as those contributions have been woven into the fabric of America. NOW, THEREFORE, I, I John P. Nichols, Mayor of College Station proclaim and officially recognize February of 2024 as Black History Month and urge all citizens to observe this month with appropriate programs, activities, and reflections and to continue our efforts to create a world that is more just, equitable and prosperous for all. IN WITNESS WHEREOF, I have set my hand an caused the seal of the City of College Station to be affixed this 8th day of February, 2024. John P. Nichols Mayor Attest: Tanya Smith City Secretary Page 8 of 425 February 8, 2024 Item No. 7.1. Minutes Sponsor: Tanya Smith, City Secretary Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action of minutes for: • January 25, 2024 Council Meeting Relationship to Strategic Goals: • Good Governance Recommendation(s): Recommends Approval. Summary: N/A Budget & Financial Summary: None Attachments: 1. CCM012524 DRAFT Minutes Page 9 of 425 CCM 0112524 Minutes Page 1 MINUTES OF THE CITY COUNCIL MEETING IN-PERSON WITH TELECONFERENCE PARTICIPATION CITY OF COLLEGE STATION JANUARY 25, 2024 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 4:01 p.m. on January 25, 2024, 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, and §551.074- Personnel, and the College Station City Council convened into Executive Session at 4:01 p.m. on January 25, 2024, 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 10 of 425 CCM 0112524 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. City of College Station v. POM-College Station, LLC and Wells Fargo Bank, National Association, Cause No. 628-CC, in the County Court at Law No. 1 of Brazos County, Texas. •City of College Station v. Clarke and Wyndham, Inc., Real Alchemy, L.P., Real Alchemy 1, L.P., JPJ Investments, a Texas General Partnership, Cause No. 629-CC, in the County Court at Law No. 1 of Brazos County, Texas. 2.2. Deliberation on the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer; to wit: •Construction Board of Adjustments •Planning and Zoning Commission •Zoning Board of Adjustments •City Secretary •City Manager •Council Self-Evaluation (Mayor Pro Tempore) 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 6:00 p.m. No action was taken. 4. Pledge of Allegiance, Invocation, consider absence request. 5. Hear Visitors Comments. Rev. Edward Udell, College Station, with the Senior Advisory Committee came before Council to thank Council for supporting the Parks Department and city staff all they do for the communities seniors. Tre Watson, College Station, spoke on mandatory rental inspection and requesting Council to support warming and cooling centers in College Station. Cameron Gallucci, College Station, came before Council regarding two free events in College Station with the League of Women Voters and the local veterans. 6. 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. Items 6.2 and 6.5 were pulled from Consent for clarification. Page 11 of 425 CCM 0112524 Minutes Page 3 (6.2 and 6.5) Mary Ellen Leonard, Director of Finance, explained Consent Item 6.5 is the ordinance approving the fees for Consent Item 6.2. Mrs. Leonard stated that all fees, rates and charges in the Code of Ordinances are adopted by resolution of the City Council as provided in Sec. 2-117 of the Code. On August 24, 2023, the Fiscal Year 2024 was adopted by Council. However, the state legislature required a change to the calculation related to certain planning and development fees. The fees are adjusted annually during the budget process based on the Consumer Price Index published by the U.S. Department of Labor, Bureau of Labor Statistics. Index adjustments cannot fall below zero. User Fee up to 4 hours $2,000 User Fee up to 8 hours $3,000 Refundable Security Deposit 50% of applicable User Fee Event Ticket Sales 10% of gross ticket sales Use of City Staff for Set-Up, Take Down, Clean-up or Security Applicable fully loaded direct costs for personnel utilized for actual time incurred. 6.1. Presentation, discussion, and possible action of minutes for: •January 11, 2024, Council Meeting 6.2. Presentation, discussion, and possible action on Resolution No. 01-25-24-6.2 adopting fees, rates and charges as provided by Chapter 2 “Administration”, Article V “Finance” Division 2 “Fees, Rates and Charges” of the Code of Ordinances, City of College Station, Texas. 6.3. Presentation, discussion, and possible action on bid awards to KBS Electrical Distributors not to exceed $300,065 and Techline, Inc. not to exceed $1,557,218.06 for annual price agreements for electric warehouse inventory items not to exceed $1,857,283.06. 6.4. Presentation, discussion, and possible action regarding Ordinance No. 2024-4492 amending Chapter 38 “Traffic and Vehicles," Article VI "Traffic Schedules," Section 38-1008 "Traffic Schedule VIII, No Right Turn and No Left Turn," of the Code of Ordinances of the City of College Station, to prohibit commercial trucks from turning westbound onto Holleman Drive from Wellborn Road. 6.5. Presentation, discussion, and possible action on Ordinance No. 2024-4493 amending the Code of Ordinances, Chapter 2 “Administration”, Article V “Finance”, Division 2. “Fees, Rates and Charges”, by adding Section 2-123 “City Facility Use Fees”” related to the establishment of fees for public use of the Visitor Center and other City facilities. 6.6. Presentation, discussion, and possible action regarding Ordinance No. 2024-4494 amending Chapter 38 “Traffic and Vehicles,” Article VI "Traffic Schedules," Section 38-1014 "Traffic Schedule XIV, No Parking Here to Corner and No Parking Any Time," of the Code of Ordinances of the City of College Station, Texas, by removing parking on the southwest side of Dakota Lane from Buena Vista to Alamosa Street and reinstating parking on the northeast side of Dakota Lane from Alamosa Street to Buena Vista. 6.7. Presentation, discussion, and possible action regarding Resolution No. 01-25-24-6.7 supporting the submission of a grant application to Texas Parks and Wildlife Department for the Spring Creek trail project to extend it from its current terminus behind the SoCo at Tower Point Apartments to Southern Oaks Park at Alexandria Avenue. Page 12 of 425 CCM 0112524 Minutes Page 4 MOTION: Upon a motion made by Councilmember Harvell and a second by Councilmember Yancy, the City Council voted seven (7) for and none (0) opposed, to approve the Consent Items. The motion carried unanimously. 7. WORKSHOP ITEMS 7.1. Presentation, discussion, and possible action on the election of Mayor Pro Tempore. MOTION: Upon a motion made by Councilmember Harvell and a second by Councilmember Smith, the City Council voted seven (7) for and none (0) opposed, to elect Councilmember Dennis Maloney as Mayor Pro Tempore for 2024. The motion carried unanimously. 8. REGULAR ITEMS 8.1. Public Hearing, presentation, discussion, and possible action on Ordinance No. 2024-4495 for Budget Amendment 1 amending Ordinance No. 2023-4457 that amends the 2023-2024 Fiscal Year Budget in the amount of $13,570,548. Mary Ellen Leonard, Director of Finance, stated that the proposed budget amendment is to increase the FY24 budget appropriations by $13,570,548 primarily because of the annual encumbrance roll for goods budgeted and ordered in FY23 or prior and not yet received. Fleet purchases make up most of the encumbrance roll. The revised budget would be $505,623,316 and there is one Interfund transfers included in this amendment. An alternate ordinance is on the agenda with the same budget increases as the regular budget amendment ordinance as described above. The alternate ordinance amends the City Manager's authority to approve and execute real estate contracts and related documents authorizing expenditure of public funds that are $500,000 or less that are only for the purchasing real property for eligible Community Development activities, subject to and contingent upon the appropriation of sufficient budgeted CDBG or HOME funds. Page 13 of 425 CCM 0112524 Minutes Page 5 At approximately 6:34 p.m., Mayor Nichols opened the Public Hearing. There being no further comments, the Public Hearing was closed at 6:35 p.m. 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 adopt Ordinance No. 2024- 4495, Budget Amendment 1 amending Ordinance No. 2023-4457 that amends the 2023-2024 Fiscal Year Budget in the amount of $13,570,548, with Option 1 to leave authorization language unchanged and amending Budget Amount only. The motion carried unanimously. MOTION: Upon a motion made by Councilmember Maloney and a second by Councilmember Harvell, the City Council voted seven (7) for and none (0) opposed, to approve the interfund transfer – a transfer between IT Replacement Fund and General Fund to reconcile previously planned purchases. The motion carried unanimously. 8.2. Public Hearing, presentation, discussion, and possible action regarding Ordinance No. 2024- 4496 amending Appendix A, Unified Development Ordinance, Article 2 "Development Review Bodies," Article 3 "Development Review Procedures," and Article 8 "Subdivision Design and Improvements" of the Code of Ordinances of the City of College Station, Texas, regarding the delegation of non-discretionary plat approval to the Administrator. Molly Hitchcock, Planning and Development, stated that in its regular session this past summer, the 88th Texas Legislature passed HB 3699 relating to municipal regulation of subdivisions and approval of subdivision plans or plats. One of the elements of the bill expanded the ability to delegate platting authority to the staff level. Currently, the Planning and Zoning Commission has the authority to approve subdivision waivers and final plats. Staff has the authority to approve preliminary plans and minor and amending final plats. State statute now allows for the ability to approve, approve with conditions, or disapprove a plat to be delegated to City staff. This item was discussed at the December 4, 2023 Planning and Zoning Commission meeting, where the Commission recommended an ordinance amendment to delegate platting authority to staff for any plat approvals that do not require a public hearing, waivers, or discretion. Essentially, if a plat meets the requirements outlined in the ordinance, staff will have the authority to approve it. This type of delegation is like other types of permits that the City issues, including site plans, building permits, and other actions as authorized by law. If they meet the code requirements, staff has the authority to approve them, and there is no further action needed by a board, commission, or the City Council. Per state law, if a plat meets all the requirements, the city must approve it. Therefore, taking a plat that must be approved to the Planning and Zoning Commission creates a longer process and increases the number of resources that are needed. Again, if there is a public hearing that is needed, a waiver that is requested, or a discretionary item, the plat would still go to the Planning and Zoning Commission for consideration. By delegating certain platting authority to staff, it will have the following advantages: •Time efficiency: Delegating platting authority reduces the time required for plat approvals, which enhances customer service. •Administrative relief: Staff will no longer need to prepare detailed reports and maps for each plat, as typically done for Commission approval. •Reduction in the number of meetings needed: Eliminating the need for separate Commission meetings solely for plat approvals saves resources. There have been several meetings over the recent years where the only thing on the agenda was to approve a plat on the consent agenda. Page 14 of 425 CCM 0112524 Minutes Page 6 Holding a public meeting requires generating item materials, preparing an agenda, assembling a quorum of the Commission, as well as attendance by several staff members. The Planning and Zoning Commission heard this item at their January 5, 2024 meeting and unanimously recommended approval (6-0). At approximately 6:49 p.m., Mayor Nichols opened the Public Hearing. There being no further comments, the Public Hearing was closed at 6:49 p.m. MOTION: Upon a motion made by Councilmember Wright and a second by Councilmember Smith, the City Council voted seven (7) for and none (0) opposed, to adopt Ordinance No. 2024-4496, amending Appendix A, Unified Development Ordinance, Article 2 "Development Review Bodies," Article 3 "Development Review Procedures," and Article 8 "Subdivision Design and Improvements" of the Code of Ordinances of the City of College Station, Texas, regarding the delegation of non- discretionary plat approval to the Administrator. The motion carried unanimously. 8.3. Public Hearing, presentation, discussion, and possible action regarding Ordinance No. 2024- 4497 amending Appendix A, Unified Development Ordinance, Article 4, “Zoning Districts,” Section 4.2 “Official Zoning Map,” of the Code of Ordinances of the City of College Station, Texas by changing the zoning district boundary from RS Restricted Suburban to PDD Planned Development District on approximately 249 acres of land located between Diamondback Drive and Greens Prairie Road. Jesse Dimeolo, Planning and Development, stated that the applicant has proposed a PDD Planned Development District zoning for approximately 249 acres located in South College Station, between Greens Prairie Road and Arrington Road. The PDD is intended to cover the remaining land yet to be developed in the Greens Prairie Reserve Subdivision. The area that is already built will remain as RS Restricted Suburban. The main purpose of this request is to provide a residential development with smaller lot sizes and home sizes that would be appealing to young professionals up to seniors desiring to reduce their maintenance and upkeep burden. Over time, the single-family lot density of the development has fluctuated. The first approved Preliminary Plan in 2018 proposed a total of 906 lots and since then has slightly decreased as lots were platted larger. With this proposed rezoning, an increase from the original Preliminary Plan is being projected to an estimated total count of 910-925 lots. Review Criteria •The proposal will constitute an environment of sustained stability and will be in harmony with the character of the surrounding area; •The proposal is in conformity with the policies, goals, and objectives of the Comprehensive Plan, and any subsequently adopted Plans, and will be consistent with the intent and purpose of this Section; •The proposal is compatible with existing or permitted uses on abutting sites and will not adversely affect adjacent development; •Every dwelling unit need not front on a public street but shall have access to a public street directly or via a court, walkway, public area, or area owned by a homeowner association; •The development includes provision of adequate public improvements, including, but not limited to, parks, schools, and other public facilities; •The development will not be detrimental to the public health, safety, welfare, or materially injurious to properties or improvements in the vicinity; and Page 15 of 425 CCM 0112524 Minutes Page 7 •The development will not adversely affect the safety and convenience of vehicular, bicycle, or pedestrian circulation in the vicinity, including traffic reasonably expected to be generated by the proposed use and other uses reasonably anticipated in the area considering existing zoning and land uses in the area. Staff recommends approval of the rezoning request and associated concept plan. The Planning and Zoning Commission heard this item on December 21, 2023 and voted unanimously to recommend approval of the request (5-0). At approximately 7:21 p.m., Mayor Nichols opened the Public Hearing. Dolores Kmiecik-Graham, College Station, came before Council in opposition of the proposed rezoning from RS to PDD due to the negative impact it will have on her and her neighbor’s property value. She explained that beyond the negative impact on the home value of over 100 households currently in GPR, the rezoning does not support the anticipated growth of Texas A&M and the broader vision of College Station. Katie Bridge, College Station, came before Council in opposition of the proposed rezoning from RS to PDD. Ms. Bridge felt the meetings held to voice their concerns were not properly advertised and planned at a times during holidays when citizens had other obligations. She spoke on other traffic concerns and the negative impacts to the property. Rev. Edward Udell, College Station, asked three questions regarding the target population (demographics) of the residents, the impact on area schools, and fire response time. There being no further comments, the Public Hearing was closed at 7:35 p.m. MOTION: Upon a motion made by Councilmember Wright and a second by Councilmember Maloney, the City Council voted seven (7) for and none (0) opposed, to adopt Ordinance No. 2024- 4497, amending Appendix A, Unified Development Ordinance, Article 4, “Zoning Districts,” Section 4.2 “Official Zoning Map,” of the Code of Ordinances of the City of College Station, Texas by changing the zoning district boundary from RS Restricted Suburban to PDD Planned Development District on approximately 249 acres of land located between Diamondback Drive and Greens Prairie Road. The motion carried unanimously. 8.4. Public Hearing, presentation, discussion, and possible action regarding Ordinance No. 2024- 4498 amending Appendix A, Unified Development Ordinance, Article 4, "Zoning Districts," Section 4.2 "Official Zoning Map," of the Code of Ordinances of the City of College Station, Texas by changing the zoning district boundary from PDD Planned Development District to PDD Planned Development District to amend the Concept Plan for approximately 19.74 acres located at 525 William D Fitch Parkway, generally located along William D Fitch Parkway, east of Victoria Avenue. Robin Macias, Planning and Development, stated that this request is to amend the Concept Plan for the existing PDD Planned Development District zoning located at 525 William D Fitch Parkway. The existing PDD Planned Development District adopted in October 2010, allows for commercial, office and multi-family uses. The existing concept plan shows which areas of the property shall be designated as commercial, office, or multi-family uses while also providing a detail of the street, building, and parking layout for each land use. This amendment to the current concept plan will remove the building and parking layout, while keeping the previously approved uses the same. At the time of development, Page 16 of 425 CCM 0112524 Minutes Page 8 each phase will need to amend the concept plan to provide a building and parking layout suitable for that specific development. Each phase will need to meet all standards set forth in the Unified Development Ordinance except for the previously approved modifications. Staff recommends approval of the concept plan amendment. The Planning and Zoning Commission heard this item on January 4, 2024 and unanimously recommended approval (6-0). At approximately 7:54 p.m., Mayor Nichols opened the Public Hearing. There being no further comments, the Public Hearing was closed at 7:54 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. 2024-4498, amending Appendix A, Unified Development Ordinance, Article 4, "Zoning Districts," Section 4.2 "Official Zoning Map," of the Code of Ordinances of the City of College Station, Texas by changing the zoning district boundary from PDD Planned Development District to PDD Planned Development District to amend the Concept Plan for approximately 19.74 acres located at 525 William D Fitch Parkway, generally located along William D Fitch Parkway, east of Victoria Avenue. The motion carried unanimously. 8.5. Public Hearing, presentation, discussion, and possible action regarding Ordinance No. 2024- 4499 amending Appendix A, Unified Development Ordinance, Article 4 “Zoning Districts,” Section 4.2 “Official Zoning Map” of the Code of Ordinances of the City of College Station, Texas by changing the zoning district boundary from GS General Suburban to MH Middle Housing and HOO High Occupancy Overlay for approximately 1.05 acres being Lots 5-1R to 5- 5R of the D.A. Smith Subdivision and generally located along Avenue A. Matthew Ellis, Planning and Development, stated that this request is to rezone approximately 1.05 acres of land being five platted lots generally located at 818-826 Avenue A from GS General Suburban to MH Middle Housing and HOO High Occupancy Overlay. The subject properties were platted in 2001 and are currently developed as single-family houses, constructed in 2002. The applicant intends to redevelop the lots to build duplexes. Nearby properties include single-family homes, two multi- family complexes, and a large-scale shopping center. The Planning and Zoning Commission and City Council previously heard a request to MH Middle Housing on this property from the applicant in July of this year and voted to approve the rezoning with the conditions recommended above, which have not yet been met. Because of the changes to the MH Middle Housing zoning district in September, the applicant will not be able to create their intended shared housing units without this updated rezoning request to include a HOO High Occupancy Overlay. This request is being brought as a city-initiated rezoning request. If the Commission and City Council deny this request, the conditional rezoning to MH Middle Housing will stay in effect. Staff recommends approval of this request conditioned on the construction of an approved secondary access drive meeting Fire Department standard no less than 175 feet away from Lincoln Avenue, a 10’ right-of-way dedication from each lot along Avenue A, and right-of-way chamfers along the lot that abuts Lincoln Avenue. These dedications are necessary to ensure that this development and others along Avenue A continue to be marketable and safe to occupy. The Planning and Zoning Commission heard this item on January 4, 2024 and voted (5-1) to recommend approval of this item. At approximately 8:01 p.m., Mayor Nichols opened the Public Hearing. Page 17 of 425 CCM 0112524 Minutes Page 9 There being no further comments, the Public Hearing was closed at 8:01 p.m. MOTION: Upon a motion made by Councilmember Harvell and a second by Councilmember Yancy, the City Council voted seven (7) for and none (0) opposed, to adopt Ordinance No. 2024-4499, amending Appendix A, Unified Development Ordinance, Article 4 “Zoning Districts,” Section 4.2 “Official Zoning Map” of the Code of Ordinances of the City of College Station, Texas by changing the zoning district boundary from GS General Suburban to MH Middle Housing and HOO High Occupancy Overlay for approximately 1.05 acres being Lots 5-1R to 5-5R of the D.A. Smith Subdivision and generally located along Avenue A. The motion carried unanimously. 8.6. Presentation, discussion, and possible action regarding a Community Development Block Grant funding agreement in the amount not to exceed $406,400 with Elder Aid for the acquisition and rehabilitation of a duplex located at 1032 Navarro. Debbie Eller, Community Services, stated that the 2020 - 2024 adopted Community Development Consolidated Plan and the 2024 Annual Action Plan identified the need to work with partners for the development of affordable housing for both homeowners and renters. A Request for Proposal for the Development of Affordable Housing was released on December 15th and one response was received. Elder Aid's proposal included the acquisition and rehabilitation of a duplex located at 1032 Navarro to be used as two units of low-income elderly rental housing. The property will be maintained by Elder Aid for 20 years as an affordable rental unit and a Land Use Restriction Agreement will be utilized as the legal mechanism to ensure the affordability period. The Community Development Block Grant funding agreement for consideration totals $406,400, which includes $40,000 for relocation expenses that may or may not be needed. Elder Aid works to minimize the stress of the elderly as they cope with affordable housing, health and wellness, inadequate funding for basic needs, loneliness, disabilities, and the loss of loved ones. Their mission is to ensure that the elderly in the Brazos Valley remain independent and in the community for as long as possible. Elder Aid has partnered with the City of College Station since 2015 and has received $2,759,993 to purchase 11 duplexes and construct one house in College Station that created 25 affordable rental units for low-income elderly households. Rental Housing Acquisition & Rehabilitation •CDBG Contract with Elder Aid totaling $406,400 ✓Acquisition: $280,000 ✓Rehabilitation: $50,000 ✓Developer Fees: $33,400 ✓Soft Costs, Financing, Professional Fees: $3,000 ✓Relocation Expense: $40,000 (if necessary) 1032 Navarro Drive Site Map •Duplex •Rehabilitation to include handicap accessibility •Rented to low-income elderly household 60% AMI ($33,780) •20 Year Affordability Period MOTION: Upon a motion made by Councilmember Maloney and a second by Councilmember Wright, the City Council voted seven (7) for and none (0) opposed, to approve a Community Development Block Grant funding agreement in the amount not to exceed $406,400 with Elder Aid for the acquisition and rehabilitation of a duplex located at 1032 Navarro. The motion carried unanimously. Page 18 of 425 CCM 0112524 Minutes Page 10 8.7. Presentation, discussion, and possible action on a design contract with Martinez Architects, LP. in the amount of $925,000 for design services for the Fire Station 7 Project. Jennifer Cain, Director of Capital Projects, stated that the project involves the land acquisition, design, and construction of a new Fire Station located at 2981 Greens Prairie Road. Fire Station 7 will be designed as a four-bay fire station that is equipped with a fire engine and an ambulance. The station will have a community room available for use by the public. The station will be approximately 18,000 square feet on 4 acres of land which is strategically located to improve response capabilities in the Wellborn area and southern portions of the city limits. The City of College Station Fire Department visited multiple stations and found a layout that met the needs of Station 7. The firm was selected based on the desired floor plan, which this option offered cost, time savings and lessons learned during construction. Mrs. Cain explained that the Budget in the amount of $18,000,000 is currently budgeted for this project in the Facilities and IT Capital Improvement Projects Fund. A total of $836,889.28 has been expended or committed to date, leaving a balance of $17,163,110.72 for this design contract and remaining project expenses. Funding for this project was approved via the City of College Station’s November 2022 General Obligation Bond Election. MOTION: Upon a motion made by Councilmember Smith and a second by Councilmember Yancy, the City Council voted seven (7) for and none (0) opposed, to approve a design contract with Martinez Architects, LP. in the amount of $925,000 for design services for the Fire Station 7 Project. The motion carried unanimously. 8.8. Presentation, discussion, and possible action regarding appointments to the following boards, committees, and commissions: •Planning and Zoning Commission •Construction Board of Adjustments •Zoning Board of Adjustments •Bicycle, Pedestrian & Greenway Advisory Board •Historic Preservation Committee •Parks and Recreation Board Planning and Zoning Commission (3-yr terms) •Position 5 – Warren L. Finch •Position 6 – Scott Shafer •Position 7 – Melissa McIlhaney - Chair MOTION: Upon a motion made by Councilmember Smith and a second by Councilmember Harvell, the City Council voted seven (7) for and none (0) opposed, to approve the appointments of the Planning and Zoning Commission as stated above with Melissa McIlhaney as Chair. The motion carried unanimously. Construction Board of Adjustments ((2)3-yr terms and (2) 1-year unexpired term) •Position 1 – Joe Fix •Position 2 – Tiona Broussard •Position 3 – Trevor Dillon Young (1-yr unexpired) •Alternate 1 – Michael Martinez (1-yr unexpired) Page 19 of 425 CCM 0112524 Minutes Page 11 MOTION: Upon a motion made by Councilmember Wright and a second by Councilmember Smith, the City Council voted seven (7) for and none (0) opposed, to approve the appointments of the Construction Board of Adjustments as stated above. The motion carried unanimously. Zoning Board of Adjustments (2-year terms and (1) 1-year unexpired term) •Position 1 – Justin Collins •Position 2 – Bill Lartigue - Chair •Position 3 – James Hutchins (1-yr unexpired term) •Position 4 – Michael Martinez •Position 5 – George Allen Sassano •Alternate 1 – Jaymeson Faith Hacker (1-yr unexpired term) MOTION: Upon a motion made by Mayor Nichols and a second by Councilmember Maloney, the City Council voted seven (7) for and none (0) opposed, to approve the appointments of the Zoning Board of Adjustments as stated above with Bill Lartigue as Chair. The motion carried unanimously. Bicycle, Pedestrian & Greenway Advisory Board (3-year terms) •Position C – Nancy “Joy” Chmelar •Position D – Neo Jang •Position G – Councilmember Cunha (Chair) MOTION: Upon a motion made by Councilmember Cunha and a second by Councilmember Maloney, the City Council voted seven (7) for and none (0) opposed, to approve the appointments of the Bicycle, Pedestrian & Greenway Advisory Board as stated above. The motion carried unanimously. Historic Preservation Committee (3-year terms) •Position 7 – Carla Elliott •Position 8 – TreVion Watson •Position 9 – Comer (Pat) Patterson MOTION: Upon a motion made by Councilmember Wright and a second by Councilmember Maloney, the City Council voted seven (7) for and none (0) opposed, to approve the appointments of the Historic Preservation Committee as stated above. The motion carried unanimously. Parks and Recreation Board (3-year terms) •Position 7 – Amy L. Arredondo •Position 8 – Thomas Marty •Position 9 – Anthony W. Branch MOTION: Upon a motion made by Councilmember Smith and a second by Councilmember Cunha, the City Council voted seven (7) for and none (0) opposed, to approve the appointments of the Parks and Recreation Board as stated above. The motion carried unanimously. 9. Council Calendar Council reviewed the calendar. Page 20 of 425 CCM 0112524 Minutes Page 12 10. 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 Cunha thanked all of the citizen volunteers who have applied and served on our Committees, Boards, and Commissions. 11. 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. 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. No future items at this time. 13. Adjournment. There being no further business, Mayor Nichols adjourned the meeting of the City Council at 8:47 p.m. on Thursday, January 25, 2024. ________________________ John P. Nichols, Mayor ATTEST: Tanya Smith, City Secretary ________________________ Page 21 of 425 February 8, 2024 Item No. 7.2. Approval of ILAs between the BVWACS and the City of College Station Sponsor: Sam Rivera Reviewed By CBC: N/A Agenda Caption: Presentation, discussion, possible action on an interlocal agreement between BVWACS and the City of College Station and an interlocal agreement for BVCOG to continue serving as Managing Entity of BVWACS. Relationship to Strategic Goals: • Good Governance • Financially Sustainable City • Core Services and Infrastructure Recommendation(s): CIO recommends approval of the contract. Summary: The Brazos Valley Wide Area Communications System (BVWACS) is an interoperable radio system that allows public safety (and supporting) agencies to communicate throughout the Brazos Valley. The City of College Station is one of the nine participating members of the BVWACS. The Brazos Valley Council of Governments (BVCOG) currently serves as the managing entity for the BVWACS. Budget & Financial Summary: Funds are budgeted and available through the IT Commnications Professional Services account. Attachments: 1. Contract 18300629_R3 2. Contract 17300603_R3 Page 22 of 425 CONTRACT & AGREEMENT ROUTING FORM __Original(s) sent to CSO on _____ Scanned into Laserfiche on _________ ____Original(s) sent to Fiscal on ________ 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 18300629R3 N/A N/A Renewal of the Brazos Valley Area Wide Communications System ILA Brazos Valley Council of Governments 181,858.92 n n n n n 3 N/A N/A Inter Local Agreement for the construction, acquisition, implementation operation and maintenance of the Brazos Valley Area Wide Communications System. Capitol contribution of $23,170.72 and four quarterly payments of $39,672.05 N/A 02/08/2024 TBD N/A N/A N/A N/A N/A Page 23 of 425 Interlocal Agreement For Managing Entity by the BVCOG for the Brazos Valley Wide Area Communications System THIS INTERLOCAL AGREEMENT (“ILA”), made and entered into pursuant to the Texas Interlocal Cooperation Act, Chapter 791, Texas Government Code (the “Act”), by and among the Brazos Valley Council of Governments, hereinafter referred to as “BVCOG,” and the City of Bryan, City of College Station, City of Brenham, Brazos County, Washington County, Grimes County, Madison County, Burleson County, and Texas A & M University, all political subdivisions or agencies of the state of Texas. WHEREAS, the Brazos Valley Council of Governments (the “BVCOG”) is a regional planning commission and political subdivision of the State of Texas operating under Chapter 391, Texas Local Government Code; and WHEREAS, pursuant to the Interlocal Cooperation Act codified in Chapter 791 Texas Government Code, the BVCOG is authorized to contract with eligible entities to perform governmental functions and services; and WHEREAS, the City of Bryan, City of College Station, City of Brenham, Brazos County, Washington County, Grimes County, Madison County, Burleson County, and Texas A & M University, collectively hereinafter sometimes referred to as the “BVWACS Parties” have entered into the Second Restatement of the Interlocal Agreement for the Construction, Acquisition, Implementation, Operation and Maintenance of the Brazos Valley Wide Area Communications System to create and maintain an interoperable radio and data communications system (the “BVWACS Agreement”); and WHEREAS, the BVWACS Parties desire the BVCOG to supervise the performance of the BVWACS Agreement; and WHEREAS, the BVCOG desires to undertake the supervision of the performance of the BVWACS Agreement as set forth in this Agreement; NOW, THEREFORE, BVCOG and the BVWACS Parties do hereby agree as follows: ARTICLE 1: LEGAL AUTHORITY The BVCOG represents that it is eligible to contract with the BVWACS Parties under the Interlocal Cooperation Act for the purposes recited herein because it is a local government and it possesses adequate legal authority to enter into this Agreement. Likewise, the BVWACS Parties represent that they, too, are each local governments or political subdivisions eligible to enter into this Agreement for the purposes recited herein. Page 24 of 425 Page 2 ARTICLE 2: APPLICABLE LAWS The BVCOG and the BVWACS Parties agree to conduct all activities under this Agreement in accordance with all applicable rules, regulations, and ordinances and laws in effect or promulgated during the term of this Agreement. This includes applicable laws relating to purchasing and bidding of products and services, maintenance of open records and use of the Brazos Valley Wide Area Communications System in accordance with Federal Communications Commission rules. A party to this Agreement is financially responsible for any FCC penalties, fines or other financial encumbrances or penalties caused by the actions of its agents, employees or representatives. ARTICLE 3: WHOLE AGREEMENT This Agreement and any attachments, as provided herein, constitute the complete agreement among the parties hereto, and supersede any and all oral and written agreements among the parties relating to matters herein. ARTICLE 4: PERFORMANCE PERIOD This Agreement shall be effective when approved by the governing body of the last party which approval makes the Agreement go into effect on October 1, 2023, whichever occurs latest. It shall remain effective until September 30, 2028, subject to the rights of termination set forth herein. The conditions set forth below shall apply unless modified or terminated in accordance with the provisions hereof. ARTICLE 5: SCOPE OF SERVICES The BVCOG agrees to perform as the BVWACS Managing Entity certain services for the BVWACS Parties as set forth in Exhibit “A-1” at specified rates and costs as set forth in Exhibit “A-2”. (A sample form Exhibit “A-2” is attached hereto.) Exhibit “A-2” shall be reviewed annually and may be amended in conjunction with the BVWACS fiscal year budget adoption process, to be adopted effective on the 1st day of October of each year during the Term of this Agreement. The BVCOG will assist the BVWACS Parties in managing grant funds as set forth in Exhibit “A- 1”. Nothing herein shall make the BVCOG responsible for providing funding for various projects associated with such grant or programs in the event of a shortfall. ARTICLE 6: PAYMENTS Pursuant to the BVWACS Agreement, upon delivery of goods or services provided and upon presentation of properly documented statements on a quarterly basis to each of the BVWACS Parties for their proportionate share of same, each BVWACS Party shall promptly in accordance with the BVWACS Agreement pay the BVCOG the full amount of its respective share. All payments for goods or services will be made from current revenues available to the BVWACS Parties. ARTICLE 7: CHANGES AND AMENDMENTS This Agreement may be amended only by a written amendment executed by all the parties, except that any alternations, additions, or deletions to the terms of this Agreement which are required by changes in Federal and State law or regulations are automatically incorporated into this Agreement without written amendment hereto and shall become effective on the date designated by such law or regulation. Page 25 of 425 Page 3 ARTICLE 8: TERMINATION PROCEDURES The BVCOG or the BVWACS Parties may cancel this Agreement at any time upon ninety (90) days written notice by certified mail to the other parties to this Agreement. The obligations of the BVWACS Parties and of the BVCOG, including obligations to pay any invoices outstanding for goods and/or services purchased under this Agreement, shall survive such cancellation, as well as any other obligation incurred under this Agreement, until performed or discharged by the responsible party. ARTICLE 9: SEVERABILITY All parties agree that should any provision of this Agreement be determined to be invalid or unenforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect. ARTICLE 10: FORCE MAJEURE To the extent that any party to this Agreement shall be wholly or partially prevented from the performance within the term specified of any obligation or duty placed on such party by reason of or through strikes, stoppage of labor, riot, fire, flood, acts of war, insurrection, accident, order of any court, act of God, or specific cause reasonably beyond the party's control and not attributable to its neglect or nonfeasance, in such event, the time for the performance of such obligation or duty shall be suspended until such disability to perform is removed; provided, however, force majeure shall not excuse an obligation solely to pay funds. ARTICLE 11: CONSENT TO SUIT Nothing in this Agreement will be construed as a waiver or relinquishment by any party of its right to claim such exemptions, privileges and immunities as may be provided by law. ARTICLE 12: NOTICES Notices required under this Agreement must be in writing and delivered personally or sent by certified US Mail, postage prepaid, addressed to such party at the following respective addresses: Brazos Valley Council of Governments: Attention: Executive Director P.O. Box 4128 Offices: 3991 East 29th St. Bryan, Texas 77805-4128 City: City of Bryan Attention: City Manager, with a copy to the City Attorney P. O. Box 1000 Bryan, TX 77805 City: City of College Station Attention: City Manager, with a copy to the City Attorney P. O. Box 9960 College Station, TX 77842 City: Page 26 of 425 Page 4 City of Brenham Attention: City Manager, with a copy to the City Attorney 200 West Vulcan Street PO Box 1059 Brenham, TX 77834 County: Brazos County Attention: County Judge, with a copy to County Attorney 200 S. Texas Avenue Suite 332 Bryan, TX 77803 County: Washington County Attention: County Judge, with a copy to County Attorney 100 East Main Street Suite 104 Brenham, TX 77833 County: Burleson County Attention: County Judge, with a copy to County Attorney 100 W. Buck #306 Caldwell, TX 77836 County: Madison County Attention: County Judge, with a copy to County Attorney 103 West Trinity, Suite 113 Madisonville TX 77864 Texas A & M University: Texas A & M University Attention:Vice President and Associate Provost For Information Technology and Chief Information Officer 1365 TAMU College Station, TX 77843-1365 County: Grimes County Attention: County Judge, with a copy to County Attorney 100 Main Street Anderson, TX 77830 Page 27 of 425 Page 5 ARTICLE 13: MISCELLANEOUS a. This Agreement has been made under and shall be governed by the laws of the State of Texas. Venue and jurisdiction of any suit or cause of action arising under, or in connection with, this Agreement shall lie exclusively in Brazos County, Texas. b. 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. c. 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 all the parties. d. The persons executing this Agreement hereby represent that they have authorization to sign on behalf of their respective entities. e. 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 either party thereafter to enforce each and every provision hereof. f. This Agreement and the rights and obligations contained herein may not be assigned by any party without the prior written approval of all the other parties to this Agreement. g. This Agreement is effective as of the effective date set forth above. This Agreement may be executed simultaneously in one or several counterparts, each of which is deemed to be an original and all of which together constitute one and the same instrument. The counterparts may be signed in multiple originals to allow each party to have an originally signed counterpart for each party. The Agreement has been executed in multiple originals, each having equal force and effect, on behalf of the parties. Page 28 of 425 Page 6 BRAZOS VALLEY COUNCIL OF GOVERNMENTS ________________________________ Date:_______________________ Executive Director Page 29 of 425 Page 7 GRIMES COUNTY _________________________________ Date: _______________________ County Judge Page 30 of 425 Page 8 CITY OF BRYAN __________________________________ Date:_________________________ Mayor ATTEST: ___________________________________ Date:_________________________ City Secretary APPROVED AS TO FORM: ___________________________________ Date:_________________________ City Attorney Page 31 of 425 Page 9 CITY OF COLLEGE STATION ______________________________ Date:_________________________ Mayor ATTEST: _______________________________ Date:__________________________ City Secretary APPROVED: ________________________________ Date:__________________________ City Manager ________________________________ Date:__________________________ City Attorney ________________________________ Date:__________________________ Assistant City Manager / CFO Page 32 of 425 Page 10 CITY OF BRENHAM __________________________________ Date:_________________________ Mayor ATTEST: ___________________________________ Date:_________________________ City Secretary APPROVED AS TO FORM: ___________________________________ Date:_________________________ City Attorney Page 33 of 425 Page 11 BRAZOS COUNTY COMMISIONERS COURT __________________________________ Date:________________________ County Judge ATTEST ___________________________________ Date:________________________ County Clerk APPROVED AS TO FORM ___________________________________ Date:________________________ Assistant County Attorney Page 34 of 425 Page 12 WASHINGTON COUNTY _________________________________ Date:__________________________ County Judge Page 35 of 425 Page 13 MADISON COUNTY _________________________________ Date:__________________________ County Judge Page 36 of 425 Page 14 BURLESON COUNTY _________________________________ Date:__________________________ County Judge Page 37 of 425 Page 15 TEXAS A&M UNIVERSITY __________________________________ Date:_________________________ Executive Vice President and Chief Financial Officer Page 38 of 425 Page 16 Exhibit A-1 SCOPE OF SERVICES The BVCOG shall perform the following services at the following rates for the BVWACS Parties as the Managing Entity pursuant to the BVWACS Agreement: 1. Perform as Managing Entity as set forth in the BVWACS Agreement. This includes the following: a. Overall management. To manage the BVWACS on a day to day basis. Responsibilities include specific duties outlined in the BVWACS Agreement plus any other duties as determined by the Governing Board created under such Agreement. b. Management. Perform ongoing management of the construction, acquisition, implementation, operation and maintenance of the BVWACS; c. Coordination with other radio systems. Serve as principle coordinator with other radio systems as determined by the Governing Board; d. Minutes. Maintain minutes of the Governing Board and Operating Board meetings; e. Recommendations. Make recommendations to the Operating Board regarding proper performance of the BVWACS under the terms of this Agreement; f. Supervision. Supervise additional Employees as applicable; g. Dispute Resolution. Assist in the administrative dispute process as set out elsewhere in this Agreement. h. Agreement copy. Maintain and make available at all reasonable times to the Operating Board and to the Governing Board a current copy of this Agreement, including any amendments and the most current version of all Exhibits together with copies of the most current versions of any subsequently developed operating procedures or standards; i. Financial Responsibilities. Reconcile the budget on a quarterly basis or as requested by the Governing Board. Prepare draft budget, coordinate purchasing, conduct inventories, assist with any audits and handle such other fiscal matters as may be directed by the Governing Board; j. Reports. Provide such performance reports, projection reports and other reports regarding the technical, operational, fiscal and other aspects of the BVWACS as required by the Governing Board or Operating Board; k. Record Keeping. Maintain and keep current all records, legal documents, contracts, manuals, warranties, etc. relating to the BVWACS and make same available for review by any of the Parties upon request; l. Contract Administration. Administer all contracts for the construction, acquisition, implementation, operation and maintenance of the BVWACS; m. Project Management. Oversee the management of all projects relating to the construction, acquisition and implementation of Infrastructure and Improvements to the BVWACS; n. Standard Operating Procedures. Develop, distribute and keep current standard operating procedures for the BVWACS as directed by the Operating Board; o. BVWACS Availability. Ensure operational and technical availability of the BVWACS features to the Parties and Associates in accordance with the goals and objectives set forth herein and that support interaction and communications with other public safety radio systems; Page 39 of 425 Page 17 p. Grant Administration. Oversee the application, administration and financial management of grant funding programs available for the construction, acquisition, implementation, operation and maintenance of the BVWACS. This includes performing as a recipient or sub-recipient for the BVWACS Parties in relation to such grant programs, and such other duties as set out below. 2. Perform Grant Administration, including the following: a. Procurement and evaluation responses resulting in specific recommendations to the BVWACS Governing Board for the execution of grants and contracts, including receipt of funds; b. Recommendation to the BVWACS Governing Board for the award of subcontracts for the provision of the services set forth for covered programs that have been approved in accordance with the BVWACS Agreement; c. Management, administration, and oversight of subcontracts and subcontractors’ performance, including for contracts for planning, evaluation, and monitoring; d. Payment of all authorized grant program expenses, whether for staff or administrative services, participant support costs, authorized subcontracted services, participant wages or stipends, or other costs incurred in the implementation of programs; e Reimbursement of any questioned or disallowed costs will first be demanded from the subcontractor where the costs occurred, and making recommendations regarding possible solutions; f. Maintenance of financial and grant participant information records; g. Preparation and delivery of such reports and invoices for funds as are required by the state and federal rules, regulations, and administrative policies applicable to the program covered under the statutes; h. Preparation of a budget for Grant Recipient/Fiscal Agent; i. Authority to procure service providers for services authorized in the adopted and approved annual plans for the covered grant programs;; and j. Provision of other duties that may be required by changes in state and/or federal rules, regulations, and/or policies that are applicable to the covered grant program. 3. Exclusion from scope of services: a. Conveyance of interests in real property. This does not prohibit the provision of services relating to property acquisition, such as oversight of surveys, title work, appraisals, etc. Page 40 of 425 Page 18 EXHIBIT A-2 SAMPLE BUDGET DOCUMENT Page 41 of 425 Count % O&M Capital Total Change College Station 1027 22.41% 158,688.18$ 23,170.72$ 181,858.90$ 8,742.06$ Bryan 560 12.22% 86,529.10$ 12,634.47$ 99,163.57$ 13,220.28$ Brazos 603 13.16% 93,173.29$ 13,604.62$ 106,777.91$ 8,883.42$ Per Radio/Year 177.08$ TAMU 336 7.33% 51,917.46$ 7,580.68$ 59,498.14$ 2,026.87$ Per Radio/Month 14.76$ Washington County 814 17.77% 125,776.22$ 18,365.11$ 144,141.33$ 14,611.27$ Brenham 288 6.29% 44,500.68$ 6,497.73$ 50,998.41$ 1,787.53$ Grimes 394 8.60% 60,879.40$ 8,889.25$ 69,768.65$ 4,036.98$ Madison 257 5.61% 39,710.67$ 5,798.32$ 45,508.99$ 4,558.51$ Burleson 303 6.61%46,818.42$ 6,836.15$ 53,654.57$ 15,691.90$ Total 4582 100.00% 707,993.42$ 103,377.05$ 811,370.47$ 73,558.82$ FY2024 APPROVED Annual (Includes Capital) Per Radio Page 42 of 425 Description FY2023 FY2024 FY22/23 Change Capital Fund Contributions 103,377.05$ 103,377.05$ $0.00 Expenses Salary - System Manager 106,069.10$ 109,781.52$ $3,712.42 Salary - BVCOG Misc 7,519.09$ 7,819.85$ $300.76 Salary Total 113,588.18$ 117,601.37$ $4,013.18 Benefits Total 32,581.73$ 33,885.00$ $1,303.27 General, Administrative, & Maintenance Expense Consulting Fees *Other Admin* -$ -$ $0.00 Professional Fees *Other Admin* 3,500.00$ 4,500.00$ 1,000.00$ Audit Expense *Other Admin* 2,684.51$ 2,791.89$ $107.38 Travel Expense 8,000.00$ 8,500.00$ $500.00 Maintenance, Motorola 228,062.07$ 245,055.55$ $16,993.48 Maintenance, Harris County 64,022.94$ 77,395.64$ $13,372.70 Maintenance, General *Contingency* 35,000.00$ 45,000.00$ $10,000.00 Supply Expense *Other Admin* -$ -$ $0.00 Copier Expense *Postage & Printing* 400.00$ 400.00$ $0.00 Maintenance, Data Connectivity 50,000.00$ 70,000.00$ $20,000.00 Telephone Expense *Includes mobile data devices & phone* 1,800.00$ 3,500.00$ $1,700.00 Postage Expense *Postage & Printing* 75.00$ 75.00$ $0.00 Insurance, General 15,000.00$ 15,000.00$ $0.00 Training and Meeting Expense *Other Admin* 3,000.00$ 4,500.00$ $1,500.00 General, Admin, & Maintenance Expense Total 411,544.52$ 476,718.08$ $65,173.56 Indirect Indirect Cost Expense 28,418.00$ 29,554.72$ $1,136.72 ISF Accounting Service ISF 10,342.31$ 10,756.00$ $413.69 System Administration ISF 11,642.85$ 12,108.57$ $465.71 Copy/Fax Service ISF 532.60$ 553.91$ $21.30 Human Resource Management ISF 8,794.19$ 9,145.96$ $351.77 Office Space ISF 8,670.21$ 9,017.02$ $346.81 Receptionist/Internet/Local Phone ISF 8,320.00$ 8,652.80$ $332.80 ISF Total 48,302.17$ 50,234.25$ $1,932.09 Annual Operating & Maintenance Total 634,434.60$ 707,993.42$ $73,558.82 Annual Operating, Maintenance, & Capital Total 737,811.65$ 811,370.47$ $73,558.82 BVWACS FY2024 APPROVED Budget Page 43 of 425 CONTRACT & AGREEMENT ROUTING FORM __Original(s) sent to CSO on _____ Scanned into Laserfiche on _________ ____Original(s) sent to Fiscal on ________ 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 17300603R3 N/A N/A Renewal of the Brazos Valley Area Wide Communications System ILA Brazos Valley Council of Governments 00.00 n n n n n 3 N/A N/A No cost Inter Local Agreement for the construction, acquisition, implementation operation and maintenance of the Brazos Valley Area Wide Communications System for the counties of Brazos, Washington, Madison, Burleson and Grimes. N/A 02/08/2024 TBD N/A N/A N/A N/A N/A Page 44 of 425 THIRD RESTATEMENT OF THE INTERLOCAL AGREEMENT FOR THE CONSTRUCTION, ACQUISITION, IMPLEMENTATION, OPERATION AND MAINTENANCE OF THE BRAZOS VALLEY WIDE AREA COMMUNICATIONS SYSTEM (BVWACS) STATE OF TEXAS § COUNTIES OF BRAZOS, WASHINGTON, MADISON, BURLESON, AND GRIMES § This Agreement is by and among the City of Bryan, City of College Station, City of Brenham, Brazos County, Washington County, Burleson County, Madison County, Grimes County, and Texas A & M University. R E C I T A L S A. The BVWACS Parties are combining their resources and desire to jointly operate and maintain the Brazos Valley Wide Area Communications System to improve the ability of public safety and public service radio communications internally and among themselves, and to allow direct access to, and exchange of data. B. The BVWACS Parties desire to continue to join their Wide Area Communications System with the regional communications system of Harris County, Texas, and to create a mechanism to effectively administrate this endeavor pursuant to a separate agreement with Harris County in a manner consistent with this Agreement. C. The BVWACS Parties desire to provide for the organizational structure and funding support for the construction, acquisition, implementation, operation and maintenance of the Wide Area Communications System. Page 45 of 425 Page 2 A G R E E M E N T NOW, THEREFORE, in consideration of the mutual covenants herein, the BVWACS Parties agree as follows: 1. Definitions. A. Annual Assessment means a BVWACS Party’s proportionate share of the annual Capital Costs and Operating Costs for the upcoming fiscal year based on the approved BVWACS budget and determined by that BVWACS Party’s participation percentage as described in Sections 9.B and 9.C of this Agreement. B. Brazos County means the corporate and political body of the state of Texas known as Brazos County. C. Brenham means the City of Brenham. D. Bryan means the City of Bryan. E. Burleson County means the corporate and political body of the state of Texas known as Burleson County. F. BVWACS Associates means those entities that are sponsored by a BVWACS Party that are eligible to use the licensed frequencies under FCC rules and regulations, that are using the BVWACS and that are not BVWACS Parties pursuant to the terms of this Agreement. G. BVWACS Managing Entity means the Brazos Valley Council of Governments contracted to supervise the performance of this Agreement or any other BVWACS Party or third party entity designated to perform this function pursuant to the terms of this Agreement and pursuant to Section 791.013 Texas Government Code. H. BVWACS Parties means the state political subdivisions that have entered into this Agreement for the construction, acquisition, implementation, operation and maintenance of the BVWACS, including Bryan, College Station, Brenham, Brazos County, Washington County, Burleson County, Madison County, Grimes County, Page 46 of 425 Page 3 and Texas A & M University. Additional parties may be added from time to time pursuant to the terms of this Agreement. I. BVWACS Manager means the Employee of the Managing Entity unless designated by the Governing Board otherwise tasked to perform services for BVWACS as set forth in this Agreement. J. BVWACS Support Vendor means any of the one or more vendors selected to provide maintenance, repair, troubleshooting, and related services for the Brazos Valley Wide Area Communications System. K. BVWACS Value means the undivided interest of a BVWACS Party in the BVWACS Infrastructure, Improvements and real property. L. College Station means the City of College Station. M. Commencement Date means the date on which this Agreement has been duly approved by all BVWACS parties. N. Costs include Capital Costs and Operating Costs as defined below: 1) Capital Costs means all costs incurred for the construction, acquisition and implementation of the BVWACS in accordance with the terms of this Agreement. Capital Costs includes expenditures for the construction, acquisition and implementation of any and all Improvements, Infrastructure, additions, replacements, upgrades and enhancements to the BVWACS; land acquisition costs, including appraisals, legal fees, surveys, and other costs associated thereto; the procurement of any hardware or software relating to the construction and implementation of any and all Improvements, Infrastructure, additions, replacements, upgrades and enhancements to the BVWACS; engineering studies, consulting reports, analysis, design and planning; auditing and compliance with accounting principles and the fiscal and legal expenses relating thereto, and any and all other costs and expenses relating to the foregoing. The BVWACS System Architecture is attached hereto and made a part hereof labeled Exhibit A. Notwithstanding any of the above, Capital Costs shall be processed in accordance with GASB 34 and GAAP Accounting Principles. Page 47 of 425 Page 4 2) Operating Costs means all costs not specifically identified as Capital Costs and includes all fixed and variable costs and expenses incurred, directly or indirectly, in the operation and maintenance of the BVWACS consisting of, without limit, the direct purchase of goods and services, such as photographic supplies, developing and printing, educational materials, books, office supplies, postage, computer supplies, computer software, small tools and minor equipment, and minor computer hardware, office space or the value thereof; costs associated with contracts to supply goods and services, such as support contracts, rental of copy machines, vehicle maintenance and fuel costs, tower site and infrastructure insurance, building maintenance, computer hardware and software maintenance, printing and binding; personnel costs incurred by all entities for Employees approved in the Budget to support the BVWACS including, without limitation, wages, benefits, insurance, employment related taxes, employers’ retirement contributions, phone allowances, pagers, education and seminar fees, travel for training, mileage reimbursement, and parking costs; and further including ongoing utility costs, security, and the normal, periodic maintenance, tuning, servicing, inspecting, parts replacement and repair and other similar activities that are intended to keep the BVWACS functioning efficiently and to maintain the useful life of the assets and reduce the probability of failures. The term includes all other items or expenses of a like or different nature reasonably required or desirable for the efficient maintenance and operation of the BVWACS in full compliance with all current and future regulatory requirements and the performance of the provisions of this Agreement; the provision of liability and other insurance in amounts and types determined necessary for the proper operation of BVWACS; assumption of legal liability of the BVWACS Parties to pay money to satisfy an arbitration award, administrative decision, settlement agreement, or court decision creating a judgment against one or more of the BVWACS Parties as a result of a third party claim arising out of or incident to the terms of this Agreement, including reasonable attorneys’ fees and costs incurred in defending against same; and costs incurred in enforcing or defending the provisions of this Agreement, Page 48 of 425 Page 5 including reasonable attorneys’ fees. Notwithstanding any of the above, Operating Costs shall be processed in accordance with GASB 34 and GAAP Accounting Principles. O. Day unless otherwise described, means calendar day. P. Employees means the person(s) employed by one or more of the Parties or by the Managing Entity, devoted exclusively to the construction, acquisition, implementation, operation and maintenance of the BVWACS as set forth in this Agreement. Q. FCC means the Federal Communications Commission. R. Fiscal Year means the fiscal year agreed upon by the entities signing this Agreement. The Fiscal Year in effect as of the execution of this Agreement commences on October 1st of each year and ends the following September 30th. S. Grimes County means the corporate and political body of the State of Texas known as Grimes County. T. Madison County means the corporate and political body of the State of Texas known as Madison County. U. Improvements means any structure, facility, addition, replacement, upgrades and enhancements to the BVWACS including, without limitation, hardware, software, equipment and real property acquired for increasing functionality, range or capacity of the Wide Area Communications System. V. Infrastructure means collectively all Improvements, additions, replacements, upgrades and enhancements to real property or personalty, real property acquisition, and all system hardware and software procurement necessary for the normal operation of the BVWACS and excluding Subscriber Equipment. The twenty-one radio consoles implemented in the system initial phase are included as system infrastructure. W. Initial Phase means that first phase of Infrastructure and Improvements, including the Capital Costs relating thereto, for the Parties to utilize the BVWACS within the designated portions of the Service Area all as shown on Exhibit B. As proposed herein, the Initial Phase shall include radio voice communications but not data transmission. Page 49 of 425 Page 6 X. Quarterly Assessment means a BVWACS Party’s proportionate share of the Capital Costs and Operating Costs that are projected to be incurred and the amount of money projected to be expended during the next fiscal quarter as presented in an itemized schedule prepared by the Managing Entity, with the proportionate share determined in accordance with the participation percentages of the BVWACS Party, in accordance with Sections 9.B. and 9.C. Y. Remaining Parties means those BVWACS Parties to this Agreement who remain committed to this Agreement if one or more BVWACS Parties withdraw from this Agreement or is terminated pursuant to the terms of this Agreement. Z. Service Area means that geographical area designed to serve the Parties for the BVWACS as same may, from time to time, be amended through approval by the Governing Board. A map of the Service Area is attached hereto as Exhibit B. AA. Standard Terms and Conditions means the terms and conditions listed in Exhibit C that must be included in all BVWACS Associate Interlocal Cooperation Agreements. BB. Subscriber Equipment means the portable radios, mobile radios, control station radios, radio consoles, excluding the original 21 radio consoles installed or made operational as part of the Initial Phase, and other equipment operated by BVWACS Parties and BVWACS Associates accessing BVWACS. CC. Terminated Party means a BVWACS Party who has received a notice of termination and whose participation in the BVWACS Agreement has been terminated for default, after it failed to cure the default in a timely manner. DD. Termination Date means twelve (12) months from the date of the notice of withdrawal when a BVWACS Party gives notice of its intention to withdraw from this Agreement and terminate its participation in BVWACS. EE. Washington County means the corporate and political body of the state of Texas known as Washington County. FF. Wide Area Communications System or BVWACS means the Regional Voice and Data Radio System serving the Brazos County, Grimes County and Washington County, Texas areas as shown on a Service Area map attached as Exhibit B as same may from time to time be amended as provided in this Agreement, implemented by Page 50 of 425 Page 7 Parties for public safety and public service purposes in accordance with the terms herein and pursuant to applicable law for such type of public communications system. GG. Withdrawing Party means a BVWACS Party who gives notice of its intention to withdraw from this Agreement and terminate its participation in BVWACS. HH. RF Site means the equipment located within the equipment shelter at a given location, the radio tower or structure upon which antennas are mounted at a given location, and any miscellaneous hardware, equipment racks, or utilities necessary for the equipment at a given location to function in support of radio subscriber equipment users in the field. II. Console site means the equipment located within a dispatch facility at a given location, including computer equipment, servers and server racks, console furniture, and any miscellaneous hardware or utilities necessary for that equipment to function in support of dispatch operations between telecommunicators and radio subscriber equipment users in the field. JJ. RNI means Radio Network Infrastructure, or the data network which connects all RF and Console sites to the Master Sites in Conroe, TX and Tomball, TX. 2. Term of Agreement. The term of this Agreement shall be effective when this Agreement has been duly approved by all BVWACS Parties (termed the Effective Date), subject to the BVWACS Parties’ rights of termination in this Agreement. The term of this Agreement is from the Effective Date to September 30, 2028. Nothing in this Agreement will prevent the BVWACS Parties from entering into a separate Agreement with another group or entity providing similar radio services provided such Party continues to adhere to the terms and conditions of this Agreement. 3. Purpose. The purpose of this Agreement is to establish an organizational and management structure for the construction, acquisition, implementation, ongoing administration, operation, and maintenance of the BVWACS by the Parties, including establishing a budget proposal process, a funding process, and the allocation of Costs associated with the construction, Page 51 of 425 Page 8 acquisition, implementation, operation, maintenance, and Improvements to the Wide Area Communications System. The BVWACS Parties have developed initial objectives, attached as Exhibit D, and evaluation factors, attached as Exhibit E. 4. Governing Board. A. Purpose. The Governing Board shall set policy for the BVWACS, direct and approve the operating policies and procedures of the Operating Board, adopt a draft budget annually, and carry out any and all other appropriate tasks necessary for the proper functioning of the BVWACS. The Governing Board may exercise such powers and duties as authorized under this Agreement. B. Composition. The Governing Board shall consist of one member from each of the BVWACS Parties. Governing Board Members should be public officials or senior executive level employees of their respective BVWACS Party. Governing Board Members may designate in writing an individual within their entity to act in their place. The governing body of a BVWACS Party may designate in writing a change in that BVWACS Party’s Governing Board Member. C. Officers. The Governing Board shall elect a chair, vice-chair, and other officers annually. The BVWACS Managing Entity shall provide secretarial services and other administrative support services to the Governing Board. D. Meeting Requirements. The Governing Board shall meet annually or as-needed, but special meetings may be called by the request of one (1) or more Governing Board Members. These meetings shall be held in compliance with the Texas Open Meetings Act. These meetings shall be publicly posted 72 hours before the meeting by the Chair of the Governing Board. Meeting notices and meeting agenda shall be sent to members of the Governing Board at least 72 hours before the meeting. E. BVWACS Improvements. The Governing Board may develop agreements defining the roles and responsibilities of the BVWACS Parties for BVWACS Improvements at the time the BVWACS Improvements are approved by the BVWACS Parties. The funding for these BVWACS Improvements shall be included in these agreements. Unless otherwise Page 52 of 425 Page 9 agreed by the BVWACS Parties in writing, funding for the cost of BVWACS Improvements that are constructed or acquired to benefit one (1) or more individual BVWACS Parties shall be paid only by the BVWACS Parties benefiting from such BVWACS Improvements. F. Quorum and Voting. No action may be taken by the Governing Board unless a quorum is present. A quorum shall consist of a majority of members. Unless expressly stipulated otherwise in this Agreement or unless required differently pursuant to applicable law, the affirmative vote of a majority of members is required for the Governing Board to adopt any resolution or take any action. Each member of the Governing Board shall have one vote. 5. Operating Board. A. Purpose. The management and technical operation of the BVWACS is overseen by an Operating Board which ensures that the policies set by the BVWACS Governing Board are carried out and which provides overall BVWACS advice as to the construction, acquisition, implementation, operation and maintenance of the BVWACS and provides advice to the BVWACS Managing Entity. B. Composition. The Operating Board consists of one member appointed by each of the BVWACS Parties. In addition, each BVWACS Party may designate in writing an alternate (“Alternate”) to act in place of its appointed Operating Board member. Notice of a change in designated Board Members or Alternate by a BVWACS Party may be made by sending written notice of the newly designated Board Member(s) or Alternate to the Chair of the Operating Board, with a copy to the BVWACS Managing Entity. The composition of the Operating Board is shown in Exhibit F. C. Duties. The Operating Board shall meet quarterly or as-needed. The Operating Board shall examine the apportionment of BVWACS Capital Costs and Operating Costs among the BVWACS Parties and recommend any adjustments needed to the Governing Board. The Operating Board shall annually submit a draft Operating and Capital Program budget for presentation to the Governing Board by March 1 of each year unless directed otherwise by the Governing Board regarding funds needed to improve, operate, maintain, and use the BVWACS. The Operating Board shall review and recommend the operating policies and Page 53 of 425 Page 10 procedures for the BVWACS, including policies related but not limited to system security, fleetmap management, capacity management, and interoperability with other radio systems and equipment. The Operating Board shall regularly review the evaluation factors for the BVWACS as described in Exhibit E of this Agreement and take needed actions to ensure reliable BVWACS performance. The BVWACS Managing Entity, together with the Operating Board, shall develop and recommend to the Governing Board BVWACS Improvements as needed to ensure optimal BVWACS functionality and performance. The Operating Board shall consider the impact of proposed BVWACS Associates and proposed new Parties to this Agreement on the capacity of the BVWACS and recommend approval or denial of requests to sponsor an entity as an Associate or to add an additional party to this Agreement. In addition, the Operating Board annually provides input to the Governing Board and to the BVWACS Managing Entity on the performance of the BVWACS Systems Manager. D. Terms. The term of each Board Member shall be determined by the appointing BVWACS Party. All Board Members serve at the pleasure of their appointing BVWACS Party. E. Attendance Requirements. Either a Board Member or Alternate shall attend all meetings. If a BVWACS Party has no representation at more than 25% of the meetings during any calendar year, the BVWACS Party shall appoint new Board Member(s) and new Alternate(s). Operating Board meetings are scheduled by the Operating Board Chair. F. Chair, Vice-Chair, and Secretary. The Operating Board Members elect the Chair, Vice- Chair, and Secretary in the first month of each Fiscal Year. The Chair is responsible for scheduling meetings and providing Operating Board members with meeting notices. One of the duties of the Secretary shall be to record and track attendance of Board Members and Alternates. The BVWACS Managing Entity provides or arranges staff support to make written minutes of each Operating Board meeting and provides other needed logistical support for the Operating Board. G. Procedures at Meeting. The Chair presides at the meetings and the Vice-Chair acts in the absence of the Chair. No action may be taken by the Operating Board unless a quorum of Board Members is present. A quorum shall consist of a majority of Board Members. The Chair shall provide the Board Members with at least 20 days’ notice of proposed dates for regular meetings. Any Board Member may place items on the Operating Board’s meeting Page 54 of 425 Page 11 agenda by submitting the item to the Chair at least ten days before the next meeting. The Chair shall submit the agenda to the Board Members no later than seven days before the meeting. Each Board Member shall have one vote. The affirmative vote of more than 50 percent of all the members of the Operating Board is required to adopt any resolution or take any action. Voting by proxy or delegate is permitted. H. Actions of Operating Board. The Operating Board may not take any action that would violate any applicable statute, law, regulation, court order, ordinance, commissioners' court order, city charter provision, articles of incorporation or other governing document. If any such action is taken, it is null and void. I. Special Meetings. The BVWACS Managing Entity may call meetings upon 72 hours written notice to the Board Members to conduct regular business matters or to address budget related items, which may require action by the Parties’ governing bodies to increase or decrease currently budgeted expenditures. The Chair or a majority of the Board Members may also call special meetings of the Operating Board. In the event of an emergency, the notice provision herein shall be suspended. 6. Amendments to Agreement. Any BVWACS Party may propose an amendment to this Agreement to the Operating Board. The Operating Board considers the amendment and makes a recommendation to the Governing Board for consideration. The Governing Board shall review amendments to this Agreement and may recommend approval of the amendment to the governing bodies of the BVWACS Parties. An amendment to this Agreement shall be effective when approved by three fourths of the governing bodies of the BVWACS Parties. A BVWACS Party whose governing body does not approve an amendment to this Agreement adopted as provided above, may withdraw from participation in the BVWACS as described in Section 17 A. of this Agreement. 7. Construction, Acquisition and Implementation of BVWACS. A. Initial Phase. The Initial Phase of the BVWACS shall be comprised of current Infrastructure and Improvements owned by one or more of the Parties hereto plus additional Infrastructure and Improvements to be constructed or acquired. Exhibit A sets Page 55 of 425 Page 12 out the Infrastructure, Improvements and real property currently owned by one or more of the Parties as well as the additional proposed BVWACS Infrastructure and BVWACS Improvements that will comprise the Initial Phase. The Parties agree that the Initial Phase of the BVWACS shall be as set forth in Exhibit A. B. Ownership and Permission. Ownership of Infrastructure and Improvements currently owned by the Parties shall remain the property of such Party. Permission for all BVWACS Parties, BVWACS Associates, the BVWACS Managing Entity and its respective agents and representatives to access and use such Infrastructure and Improvements as part of the BVWACS in accordance with this Agreement is herein granted. New BVWACS Improvements and BVWACS Infrastructure shall be owned as tenants in common among the Parties then in existence at the time funding was provided for such BVWACS Improvements or BVWACS Infrastructure. 8. Staffing and Operations. A. Designation of Managing Entity. The Governing Board shall designate one of the BVWACS Parties or a mutually agreed upon third party as the Managing Entity for the BVWACS. B. BVWACS Systems Manager. The Managing Entity is responsible for providing the BVWACS Systems Manager. This may be a full time Employee or, with the approval of the Governing Board, contracted third party devoted to managing the construction, acquisition, implementation, operation and maintenance of the BVWACS under the direction of the Managing Entity. The Operating Board will serve in an advisory capacity to the BVWACS Systems Manager on behalf of the Governing Board. The BVWACS Systems Manager shall be an Employee of the Managing Entity unless the Governing Board designates otherwise. As its Employee, the Managing Entity shall be responsible for the hiring, firing, performance review, training and education, provision of health and retirement benefits and all other costs associated with this position as well as costs associated with being an Employee of the Managing Entity, subject to reimbursement by the Parties through adoption of the annual BVWACS Budget which shall include the costs of all Employees. The Managing Entity shall obtain input from the Governing Board before Page 56 of 425 Page 13 taking any formal action regarding performance, including annual reviews, with respect to such Employee. C. Management Duties of the BVWACS Managing Entity. The BVWACS Managing Entity will manage the BVWACS on a day-to-day basis. Responsibilities include the following plus any other duties as determined by the Governing Board: 1) Management. Perform ongoing management of the construction, acquisition, implementation, operation and maintenance of the BVWACS; 2) Coordination with other radio systems. Serve as principal coordinator with other radio systems as determined by the Governing Board; 3) Minutes. Maintain minutes of the Governing Board and Operating Board meetings; 4) Recommendations. Make recommendations to the Operating Board regarding proper performance of the BVWACS under the terms of this Agreement; 5) Supervision. Supervise additional Employees as applicable; 6) Dispute Resolution. Assist in the administrative dispute process as set out elsewhere in this Agreement; 7) Agreement Copy. Maintain and make available at all reasonable times to the Operating Board and to the Governing Board a current copy of this Agreement, including any amendments and the most current version of all Exhibits together with copies of the most current versions of any subsequently developed operating procedures, policies or standards; 8) Financial Responsibilities. Reconcile the budget on a quarterly basis or as requested by the Governing Board. Prepare draft budget, coordinate purchasing, conduct inventories, assist with any audits and handle such other fiscal matters as may be directed by the Governing Board; 9) Reports. Provide such performance reports, projection reports and other reports regarding the technical, operational, fiscal and other aspects of the BVWACS as required by the Governing Board or Operating Board; Page 57 of 425 Page 14 10) Record Keeping. Maintain and keep current all records, legal documents, contracts, manuals, warranties, etc. relating to the BVWACS and make same available for review by any of the Parties upon request; 11) Contract Administration. Administer all contracts for the construction, acquisition, implementation, operation and maintenance of the BVWACS; 12) Project Management. Oversee the management of all projects relating to the construction, acquisition and implementation of Infrastructure and Improvements to the BVWACS; 13) Standard Operating Procedures. Develop, distribute and keep current standard operating procedures for the BVWACS as directed by the Operating Board; 14) BVWACS Availability. Ensure operational and technical availability of the BVWACS features to the Parties and Associates in accordance with the goals and objectives set forth herein and that support interaction and communications with other public safety radio systems; 15) Grant Administration. Oversee the application, administration and financial management of grant funding programs available for the construction, acquisition, implementation, operation and maintenance of the BVWACS. This includes performing as a recipient or sub-recipient for the BVWACS Parties in relation to such grant programs. D. Staffing. There may be such other Employees as may, from time to time, be budgeted and approved by the Governing Board. The BVWACS Parties through action of the Governing Board may elect to contract out some or all services relating to the construction, acquisition, implementation, operation and maintenance of the BVWACS. The initial number and types of Employees to be provided or funded by the BVWACS Parties are shown in Exhibit G. Notwithstanding anything herein to the contrary, personnel provided by one or more of the Parties to support the BVWACS are, and shall exclusively remain, employees of their respective entity, subject to all of the employment rules and personnel policies of that entity. The personnel costs necessary to support the BVWACS are included in each year’s draft budget submitted to the Parties, subject to the provisions in Section 9. Budget and Section 18. Effect of Breach and Default. Page 58 of 425 Page 15 E. Operating Procedures. The BVWACS Managing Entity shall ensure that standard operating procedures are prepared to govern the day-to-day management and operation of the BVWACS and BVWACS staff (“Standard Operating Procedures”) as may be directed by the Governing Board, and shall submit such Standard Operating Procedures to the Operating Board for review and approval. Standard Operating Procedures shall be annually reviewed by the Operating Board and updated as needed. The BVWACS Managing Entity also monitors the implementation of and compliance with the Standard Operating Procedures. If there is any conflict between the Standard Operating Procedures and the employment rules and personnel policies of the entities, then the employment rules and personnel policies of the entities control as they impact that entities’ staff supporting the BVWACS. The Operating Board shall also oversee the development and implementation of corrective measures policies. F. Roles and Responsibilities. The BVWACS Parties shall use the BVWACS in a manner consistent with the Standard Operating Procedures, directives of the Governing Board and in compliance with applicable FCC rules and regulations. The BVWACS Parties shall follow the established Standard Operating Procedures and Governing Board directives regarding the programming and addition of Subscriber Equipment to the BVWACS. The BVWACS Parties are encouraged to utilize and improve the interoperation capabilities of the BVWACS. BVWACS Parties shall utilize the BVWACS Managing Entity as their primary point of contact for requests for BVWACS Improvements when dealing with problems, or to answer questions. BVWACS Parties shall work in good faith with the BVWACS Managing Entity to help resolve problems. Using Standard Operating Procedures or other directives from the Governing Board, BVWACS Parties shall have access to system reports including, but not limited to, system usage, utilization and performance. A BVWACS Party is financially responsible for any FCC penalties, fines or other financial encumbrance caused by the actions of that BVWACS Party and any BVWACS Associate sponsored by it. G. Capacity Management. The BVWACS Managing Entity may develop a policy for capacity management and submit the policy to the Operating Board for review and approval. This policy shall be reviewed annually by the Operating Board, and updated as needed to ensure Page 59 of 425 Page 16 appropriateness and applicability with current BVWACS needs and industry standards and practices. H. Withdrawal of Managing Entity. In the event the current entity ceases to be the BVWACS Managing Entity and the BVWACS Managing Entity is not a BVWACS Party subject to the provisions of Section 17.B herein, the Governing Board Members representing three- fourths of the BVWACS Parties shall appoint a replacement BVWACS Managing Entity. Within ten (10) days after receipt of notice of the identity of the replacement BVWACS Managing Entity, the current BVWACS Managing Entity shall: 1) Possession. Transfer control and possession of all BVWACS Infrastructure, BVWACS Improvements including BVWACS real property owned as tenants in common pursuant to this Agreement to the replacement BVWACS Managing Entity; 2) Conveyance of Real Property. Transfer any and all ownership rights it may have to real property acquired pursuant to the terms of this Agreement to the BVWACS Parties; 3) Evidence of Ownership. Provide evidence and documentation adequate to prove ownership of the BVWACS Infrastructure, BVWACS Improvements or real property, including, wherever applicable, transferring all rights, title and interests, including proprietary and intellectual property rights, to enable the replacement BVWACS Managing Entity to manage, upgrade, update, maintain, and operate or to sell, convey or otherwise dispose of the BVWACS Infrastructure, BVWACS Improvements or real property if or when the BVWACS Parties determine that this is appropriate; and 4) Operations and Legal Documents. Transfer the originals of all deeds, operations manuals, warranties, bills of sale, licenses, leases, titles and other legal documents related to BVWACS Infrastructure, BVWACS Improvements or BVWACS real property to the replacement BVWACS Managing Entity. 9. Budget. Page 60 of 425 Page 17 A. Budget Adoption. The Governing Board shall a nnually approve a draft BVWACS Budget upon the approval of three-fourths of its members in accordance with the timeframes set forth herein and recommend approval of the Budget to the governing bodies of the BVWACS Parties, including approval to appropriate their proportionate share of the BVWACS Budget. All Operating Costs must be included in each annual BVWACS Budget as well as any Capital Costs. The Budget shall include any and all costs relating to employees in implementing and maintaining the BVWACS. If any BVWACS Party does not agree with the draft BVWACS Budget as presented, it must provide the Governing Board with a detailed explanation of its issues with the draft Budget within 30 days after receipt of it. Each member of the Governing Board shall consult with its governing body or appropriate budget review personnel before voting to approve any Budget. B. Annual Operating Costs Budget. The annual Operating Costs shall be allocated among the BVWACS Parties. Participation percentages for contribution to the Operating Costs will be calculated on an annual basis according to the number of registered radio counts each BVWACS Party has on the BVWACS as a percentage of all units on the BVWACS. By January 31st of each calendar year, the BVWACS Manager shall provide a full detailed list of all radios registered in the BVWACS and its associated BVWACS Party. Allocation percentages shall be calculated based solely on each Party’s total BVWACS registered radio counts, as maintained by the BVWACS Manager. The BVWACS Manager shall provide preliminary counts of all radios registered in the BVWACS and its associated BVWACS Party to each Party by December 31st of each calendar year. Parties can use the preliminary BVWACS system counts as an opportunity to reconcile and true-up BVWACS registered radio counts prior to the January 31st unit final count. Each year the BVWACS Managing Entity, following and abiding by its budgeting and accounting practices, shall prepare an annual Operating Costs budget (“Operating Budget”) on a fiscal year basis and submit this budget to the Operating Board. The Operating Budget must provide for all Operating Costs. The Operating Board shall review and adjust, as needed, the Operating Budget and then submit its recommendation to the Governing Board. The Governing Board shall, no later than May 1st of each year, approve a draft budget and recommend approval of the Page 61 of 425 Page 18 Operating Budget by each BVWACS Party and appropriation of their proportionate share of the Operating Budget in their next Fiscal Year’s budget. If budgeted amounts exceed actual expenditures, the Governing Board by majority vote may move the unexpended balances into the BVWACS Capital Fund, or credit the unexpended balances against the budgeted expenditure amounts in the Operating Budget for the next Fiscal Year at each Parties then-current participation level, unless refunded to the Party at such Party’s request. From time to time, participation percentages shall be re-evaluated upon request of a Party using the same procedure set forth herein of recommendation by the Operating Board and determination by the Governing Board as Infrastructure or Improvements are made to BVWACS, as use of the BVWACS changes, or when new information affecting BVWACS becomes available. A BVWACS Party may use its share of BVWACS capacity for its own purposes or may allocate a portion of that share through a BVWACS Associate Interlocal Cooperation Agreement. C. Annual Capital Costs Budget. A Capital Costs budget shall be prepared annually using the same process for adoption as the Annual Operating Costs Budget except that while the Capital Costs budget is prepared annually, the planning period for Capital Costs is five (5) years. Unless otherwise agreed by the BVWACS Parties, Capital Costs shall be shared according to the participation percentages described in Section 9.B.; provided, however, that the Capital Costs that are incurred to benefit only one or more individual BVWACS Parties shall be paid by the BVWACS Parties benefiting from such BVWACS Improvements and Infrastructure. D. Budgeted Expenditures. After the Budget has been approved and funded by the BVWACS Parties, the BVWACS Managing Entity is authorized to incur costs in accordance with the Budget. Any costs to be incurred in excess of the approved and funded Operating Costs or Capital Costs Budget amounts require additional budget approval and funding, or re- allocation of existing funds, by the BVWACS Governing Board. The BVWACS Governing Board may approve transfer of funds from the BVWACS Capital Fund to the Capital Budget to meet an urgent need that was not addressed during the Budget process. Such approval requires the vote of three-fourths of the members of the Governing Board. Page 62 of 425 Page 19 E. Other BVWACS Fees. Fees payable by BVWACS Associates are determined by the terms of their BVWACS Associate Interlocal Cooperation Agreement. Funds received by new Parties are determined in accordance with this Agreement. F. Funding Transfers to the Managing Entity. Once each BVWACS Party appropriates its portion of the BVWACS Budget in its annual budgetary process, the Managing Entity shall provide timely and accurate invoices to facilitate the transfer of funds by each BVWACS Party to the Managing Entity, and the Parties shall each comply with the following procedures to facilitate payment by the Managing Entity to the BVWACS vendors and contractors: 1) Quarterly Assessment. At least 60 days prior to the beginning of each Quarter of the Fiscal Year, the BVWACS Managing Entity shall give the Operating Board, for its review, an itemized schedule of the Capital Costs and Operating Costs that are projected to be incurred, and the amount of money projected to be expended, during the next quarter. At least 30 days prior to the beginning of each Quarter, the Managing Entity shall send each BVWACS Party an invoice for its Quarterly Assessment. 2) Approval. Each BVWACS Party must approve or dispute its Quarterly Assessment and provide written notice of any dispute to the BVWACS Managing Entity within 15 business days after receipt of the invoice for the Quarterly Assessment. If a dispute concerning the Quarterly Assessment is not resolved by the time the BVWACS Party is required to remit payment, the matter shall be resolved in accordance with the procedures set forth in Section 21, Dispute Resolution. 3) Payment Instructions. The Managing Entity must provide payment instructions to each BVWACS Party for the transfer of BVWACS Party funds to the Managing Entity. 4) BVWACS Party Funds. Each BVWACS Party must pay its Quarterly Assessment to the Managing Entity no later than 60 calendar days after receipt of an invoice in accordance with the resolution of any dispute about the Quarterly Assessment. Page 63 of 425 Page 20 5) BVWACS Fund. The Managing Entity shall establish a separate fund for BVWACS in its accounting records (“BVWACS Fund”) that is dedicated to the administration of the BVWACS. All funds received from BVWACS Parties and other BVWACS revenues, including the capital fund and any interest earned, shall be credited to the BVWACS Fund. All BVWACS obligations shall be debited from the BVWACS Fund. The records for the BVWACS Fund shall be maintained in compliance with generally accepted accounting principles. 6) Accounting. The BVWACS Fund is managed by the Managing Entity in the same manner as the Managing Entity manages funds held in its depository accounts. Funds associated with the BVWACS, including accrued interest, shall be accounted for separately by the Managing Entity for the benefit of the BVWACS Parties, unless otherwise required by law or this Agreement. 7) Statements. The BVWACS Managing Entity is responsible for providing quarterly statements showing the credits to and debits from the BVWACS Fund, including any income earned, to each Party on or before the 20th day of the first month following the end of such quarter. 8) Payments. Subject to the availability of sufficient funds in the BVWACS Fund, the Managing Entity shall pay BVWACS contractors and vendors in compliance with the Texas Prompt Payment Act. 9) Reports. The BVWACS Managing Entity is responsible for providing each BVWACS Party with a quarterly written financial report on the Budget, including current BVWACS Cost projections for the succeeding quarter. G. Funding. The BVWACS Parties specifically acknowledge that funding for each BVWACS Party’s share of the BVWACS Operating Budget and Capital Costs Budget goes through that BVWACS Party’s normal budgeting process; and upon approval by its governing body, is payable from current revenue available to each funding BVWACS Party. Purchase, operation and maintenance costs of Subscriber Equipment are the responsibility of each BVWACS Party. Page 64 of 425 Page 21 H. Failure to Appropriate. The failure of a BVWACS Party to appropriate its proportionate share of the BVWACS Budget by the first day of the Fiscal Year for which the Operating Budget and Capital Costs Budget is applicable shall be a material default of such BVWACS Party under this Agreement, and the BVWACS Parties shall follow the procedures for termination of a BVWACS Party set out in this Agreement addressing the effect of breach and default. I. Partial Funding. If any BVWACS Party appropriates less than its proportionate share of Operating Budget and Capital Costs budget for any year, or if any BVWACS Party fails to pay its Quarterly Assessment, (herein called the “Underfunding Party”) the other BVWACS Parties, acting through the Governing Board may take one or more of the following actions: 1) Suspension of Representation. Remove the Governing Board representation and voting rights for the Underfunding Party. 2) Service Reduction. Reduce the BVWACS services being provided to the Underfunding Party. 3) Notice of Underfunding. Send the Underfunding Party a notice stating the amount of underpayment, which is the difference in the Underfunding Party’s Quarterly Assessment and the amount of funding provided by the Underfunding Party (“Deficiency”). Said Deficiency is an obligation of such Underfunding Party subject to the Prompt Payment Act. Each Underfunding Party agrees that its future right to participate in the BVWACS is dependent upon fully paying its Quarterly Assessments. The Underfunding Party must appropriate and pay the Deficiency and its entire Quarterly Assessment for the remainder of that Fiscal Year. 4) Budget Revision. Amend the BVWACS Operating Budget and Capital Costs budget by reducing costs and/or increasing the amounts paid by the other BVWACS Parties. 5) Termination of Participation. Terminate the Underfunding Party’s participation in this Agreement by following the procedure for termination of a BVWACS Party, if the level of funding is deemed by the other BVWACS Parties to be substantially a failure to fund. Page 65 of 425 Page 22 6) Asset Management. BVWACS Infrastructure shall be tracked in accordance with standard operating procedures approved by the Operating Board. These procedures must be consistent with generally accepted accounting principles for property held as tenants in common for one or more of the BVWACS Parties. If any BVWACS Infrastructure needs to be retired, the BVWACS Managing Entity will provide this information to the Operating Board for approval prior to removal. At a minimum, the BVWACS Managing Entity shall provide the asset serial number, asset ID tag (if any), location from which it is to be removed and description of the asset. The asset to be retired shall be disposed as directed by the Governing Board upon receiving the recommendation of the Operating Board. Any funds received from the disposal of the asset shall be credited as revenue in the BVWACS Fund and shown in the next BVWACS Capital budget. These funds are managed in accordance with the provisions of this Agreement. With respect to Infrastructure, Improvements and real property owned by only one or some of the Parties and that is not listed as BVWACS Infrastructure, BVWACS Improvements, or BVWACS real property, right of access, license and use is herein granted by such Parties to all Parties and to the BVWACS Managing Entity as necessary for BVWACS purposes as determined by the Governing Board. With respect to future Infrastructure, Improvements and real property owned by only one or some of the Parties, such Parties agree that all rights of access, use or licenses required to make same a part of the BVWACS shall be granted. No Infrastructure, Improvement or real property owned by only one or some of the Parties may be conveyed to a third party, destroyed or otherwise removed from the BVWACS without giving at least 12 months advance notice. Failure to do so shall be considered a failure to perform substantially such Party or Parties’ material obligations under this Agreement, and the provisions of Section 18. (Effect of Breach and Default) shall apply. The Governing Board may determine to file Certificates of Memorandums in the deed records of the county where an asset owned by one or more Parties is located notifying the public regarding BVWACS rights associated with such asset. Page 66 of 425 Page 23 10. BVWACS Associates. A. Procedure for Becoming BVWACS Associate. To use the BVWACS, an entity must be either a BVWACS Party or BVWACS Associate unless special access is granted by three- fourths vote of the members of the Governing Board. Additionally, the Texas Department of Public Safety is hereby granted special access. To become a BVWACS Associate, a BVWACS Party must sponsor the entity. A BVWACS Party may only sponsor BVWACS Associates to the extent that it has a portion of its share of BVWACS capacity that is unused and therefore available to assign. A BVWACS Party may not sponsor any entity unless the entity is eligible to use the BVWACS licensed radio frequencies under FCC rules, regulations and practices. A BVWACS Party may sponsor one or more entities as BVWACS Associates. BVWACS Parties shall use the following procedure for sponsoring an entity: 1) Share of Capacity. Determine the extent of the BVWACS Party’s share of the BVWACS capacity that is available for assignment to the entity based upon most recent participation level determined using the true-up provisions set forth in Section 9.B 2) Anticipated Usage. Determine the anticipated usage of the entity to be sponsored based on talk time if available, the number of radios used by the entity and other relevant information as determined by the Governing Board. 3) Compatibility. Determine the compatibility of the Subscriber Equipment used by the entity with the system and the impact of their inclusion in the system based on voice traffic, talk-group needs, and functionality. 4) Associate Agreement. Negotiate a BVWACS Associate Interlocal Cooperation Agreement with the prospective BVWACS Associate that includes the Standard Terms and Conditions as well as any other terms and conditions related to payment, term of agreement, nature of the services to be provided, curtailment of services or termination of the authority to continue use of the BVWACS for breach, withdrawal by the entity, and other matters that they desire as long as they are not contrary to or more Page 67 of 425 Page 24 expansive than the Standard Terms and Conditions or the terms and conditions of this Agreement. 5) Report to Board. Present a report to the Operating Board that includes the anticipated usage of the entity, the number of radios or equipment used by the entity, the compatibility of the radios or equipment used by the entity with the system, the number of talkgroups needed and any other information relevant to whether the addition of the entity is likely to cause the BVWACS Party to exceed its share of the BVWACS capacity. 6) Board Approval of Draft Agreement. Present a draft copy of the proposed BVWACS Associate Interlocal Cooperation Agreement to the Operating Board so that it can verify that the agreement contains the Standard Terms and Conditions and is consistent with the terms and conditions of this Agreement. 7) Parties Approval of Associate Agreement. Obtain approval of the BVWACS Associate Interlocal Cooperation Agreement by the governing bodies of the sponsoring Party and the prospective BVWACS Associate to the agreement. B. Operating Board Duties. The Operating Board shall review the report of the BVWACS Party asking to sponsor an entity as a BVWACS Associate and evaluate the following: 1) Impact on current and future BVWACS voice traffic capacity. 2) Impact on current and future BVWACS talkgroup capacity. 3) Impact on overall current and future BVWACS functionality. The Operating Board shall review the proposed BVWACS Associate Interlocal Cooperation Agreement to be entered into by the BVWACS Party asking to sponsor an entity as a BVWACS Associate and determine whether it includes the Standard Terms and Conditions. If the impact on these three aspects of the BVWACS capacity is not likely to result in that BVWACS Party’s exceeding its share of the BVWACS capacity or to detrimentally affect the overall current and future functionality of the BVWACS, and the proposed BVWACS Associate Interlocal Cooperation Agreement includes the Standard Terms and Conditions, Page 68 of 425 Page 25 the Operating Board may recommend approval of the request to sponsor the entity to the Governing Board. C. Association Interlocal Cooperation Agreements Approval. The Governing Board must approve all BVWACS Association Interlocal Cooperation Agreements before such prospective BVWACS Associate may access or use the BVWACS. D. Capacity for Sponsoring BVWACS Associates. Initially, a BVWACS Party’s share of the capacity of the BVWACS is based on the participation percentages calculated as described inSection 9.B. Two years after system acceptance of the BVWACS or when adequate information is available, whichever occurs first, BVWACS capacity is based on the capacity management process recommended by the Operating Board and approved by the Governing Board. The share of capacity used may be adjusted as Infrastructure or Improvements are made to BVWACS. A BVWACS Party may use its share of BVWACS capacity for its own purposes or may allocate a portion of that share through a BVWACS Associate Interlocal Cooperation Agreement. In no event shall sponsoring a BVWACS Associate cause alteration to the Participation Table set forth in Exhibit A, if and as amended as described in Section 9.B. E. Financial Effect of Sponsoring BVWACS Associate. When a BVWACS Party authorizes another entity to use a portion of its share of BVWACS capacity, that BVWACS Party remains responsible for full payment of its entire cost share of the BVWACS. F. Sponsor’s Control of BVWACS Associate’s Access to BVWACS. If a BVWACS Party requests that the BVWACS System Manager disable all or part of the services available to a BVWACS Associate sponsored by that BVWACS Party, the BVWACS System Manager shall comply with these requests and disable the portion of the services available to a BVWACS Associate requested by the BVWACS Party as soon as practicable. G. Responsibility for Subscriber Equipment. BVWACS Associates are responsible for purchasing and providing their own Subscriber Equipment to be used on the BVWACS. The purchase of Subscriber Equipment shall be coordinated with the BVWACS Managing Entity. H. Additional Units. BVWACS Associates are not allowed to add units to the BVWACS without approval from their sponsoring BVWACS Party. Page 69 of 425 Page 26 I. Changes to Operations. Each BVWACS Party that has sponsored BVWACS Associates is responsible for informing the BVWACS Associates of changes in BVWACS Standard Operating Procedures. 11. New BVWACS Parties. A. New Parties to BVWACS. From time to time, entities may join the BVWACS as full Parties. Entities desiring to join the BVWACS as full Parties shall petition the current Parties for membership in accordance with the terms herein. B. Contents of Petition. An entity desiring to join BVWACS shall submit a petition. At a minimum, a petition to join BVWACS as a Party shall include the following: 1) Area to be Served. A description of the area to be covered and a description of how the Service Area will be affected; 2) Proposed Subscriber Equipment. The type of Subscriber Equipment proposed to use the BVWACS, including the approximate number of units to be added, talk groups and talk time; 3) Infrastructure, Improvements, Funds and Real Property. A description of any Infrastructure, Improvements, funds or real property that will be made available to the BVWACS to offset costs associated with system expansion, and a description of how this will affect the BVWACS and the current Service Area; and 4) Share of Capacity. Provide an estimate of the requested capacity desired, including the anticipated type and amount of usage based on talk time, talk group needs and other relevant factors as determined by the Governing Board. C. Procedure. The following procedure shall be followed when petitioning to become a Party. 1) Submit Petition. An entity desiring to become a Party to the BVWACS shall petition the Governing Board through the BVWACS Managing Entity who will then review such petition for completeness as well as content. The BVWACS Managing Entity shall forward the petition to the Operating Board for recommendation by the Operating Board within 30 days from submission of such petition. Page 70 of 425 Page 27 2) Operating Board. The Operating Board shall review the petition of the submitting entity and make its recommendation to the Governing Board within 60 days from the date of submission of such petition. The Operating Board shall evaluate the petition based upon the following: a. Whether the addition of petitioner as a Party will have an adverse impact on the current and future needs of the existing Parties, on the Service Area and on BVWACS as a whole; and b. Whether the addition of petitioner as a Party is consistent with the goals and objectives of BVWACS as set forth in this Agreement. 3) Governing Board. The petitioner may negotiate an amendment to this Agreement relating to its inclusion as a Party. The Governing Board will consider the request and the recommendation of the Operating Board within ninety (90) days from the date of submission of the petition and approve, deny or request additional information needed to consider the request. Adding a new Party to this Agreement shall be considered an amendment subject to the terms and conditions for approval of amendments set forth in Section 6 above. The Governing Board will also determine if the petitioner will be required to make a capital contribution towards construction or improvement to the system. Such contribution may be in the form of a reimbursement for prospective construction or improvements to the system. D. Participation Level. A BVWACS Party’s share of the capacity of the BVWACS is based on the participation percentages calculated as described in Section 9.B.. Addition of new Parties will require reevaluation and possible alteration of the participation percentages. The Operating Board will provide preliminary recommended participation percentages based on the new Party joining BVWACS at the time it reviews the petition. The Governing Board shall then review such recommendation and determine whether such participation percentages should be modified. Such determination must be approved by three-fourth of the members of the Governing Board. E. Obligations of New BVWACS Parties. When a new BVWACS Party is authorized by the Governing Board, the participation percentages determined above will establish the Annual Page 71 of 425 Page 28 Assessment for the new Party. Once the new Party is approved for membership, that Party assumes responsibility for its Annual Assessment and all other obligations as a Party to this Agreement. New BVWACS Parties are responsible for purchasing and providing their own Subscriber Equipment to be used on the BVWACS. The purchase of Subscriber Equipment shall be coordinated with the BVWACS Managing Entity. 12. Accounting Records. The BVWACS Managing Entity maintains accounting records in accordance with generally accepted accounting standards applicable to governmental entities, including compliance with federal guidelines for spending federal funds or bond proceeds. The BVWACS Managing Entity shall ensure that records pertaining to the BVWACS shall be kept in accordance with the records retention policy of the Managing Entity and in accordance with the Open Records Act. At any reasonable time, upon three (3) business days prior written notice, any BVWACS Party may inspect, copy, examine, and/or audit the BVWACS records, at that BVWACS Party’s expense, at the office of the BVWACS Managing Entity, or any other mutually acceptable location. 13. Contracting Authority. Except for real estate transactions, the BVWACS Parties hereby grant such BVWACS Managing Entity the authority to contract on behalf of the BVWACS Parties for acquisitions and services that have been approved in the annual BVWACS Budget or as otherwise approved by the Governing Board, so long as the contracted amount is within the budgeted amount and the payments are made from available funds, using the BVWACS Managing Entity’s standard purchasing processes, unless expenditure of federal funds or bond proceeds requires use of additional procedures or guidelines. Procurements shall be made in accordance with the laws applicable to such entity. These contracts shall be administered by the BVWACS Managing Entity. 14. Federal Funds and Bond Funds. Page 72 of 425 Page 29 If a BVWACS Party utilizes federal funds, grant funds, or bond funds to meet a portion of their financial commitment under this Agreement, the BVWACS Parties agree to conduct all procurements, maintain all records and otherwise conduct their activities in furtherance of this Agreement so as to comply with all applicable statutes, regulations, policies and grant contract provisions necessary to qualify the BVWACS expenditures contemplated for federal or grant program reimbursement and to avoid arbitrage penalties. Further, the BVWACS Parties agree to cooperate with each other in the application for and administration of federal funds, grant funds, or bond funds to maximize funding participation in the operation and maintenance of the BVWACS. By October 1 of each year each BVWACS Party using federal funds, grant funds, or bond funds to meet a portion of its annual financial commitment shall notify the BVWACS Managing Entity. 15. BVWACS Performance. The Operating Board shall take such action as may be necessary for assuring that Subscriber Equipment configuration changes or additions do not adversely affect the performance of the BVWACS. The Operating Board may utilize the system assessment services of the BVWACS Support Vendor or other qualified contractor to determine the impact of adding Subscriber Equipment to the BVWACS. The Operating Board may develop policies involving the BVWACS Support Vendor that provide a review process prior to implementing any Subscriber Equipment system configuration changes requested or made by BVWACS Parties. BVWACS Parties shall not take any action that is known or ought to be known to affect the operation of the BVWACS adversely and shall reverse any action taken that affects the operation of the BVWACS adversely. BVWACS Parties shall not change the configuration of their program or template in a way that is known or ought to be known to affect the operation of the BVWACS adversely and shall reverse any change in the configuration of their program or template that affects the operation of the BVWACS adversely. 16. Dissolution of BVWACS. A. Dissolution of BVWACS. This Agreement may be voluntarily dissolved before the end of the term if three-fourths of the governing bodies of the BVWACS Parties agree in writing to provide for a dissolution date. The dissolution date shall not be less than twelve (12) Page 73 of 425 Page 30 months after these BVWACS Parties have executed the agreement to dissolve the BVWACS unless all BVWACS Parties agree to an earlier dissolution date. B. Distribution of Assets. If the BVWACS is dissolved either by agreement or at the end of the final term, the assets of the BVWACS shall be equitably distributed among the BVWACS Parties. The BVWACS Parties shall agree on which BVWACS Party receives which assets in the distribution. An agreement for distribution of assets of the BVWACS shall be effective after approval by three-fourths of the governing bodies of the BVWACS Parties. The manner of distribution shall consider and be consistent with the following factors: 1) Participation Level. The BVWACS Party’s share of the Capital Costs for Infrastructure and Improvements to the BVWACS and the BVWACS Party’s participation level as stated in Exhibit A, if and as amended as described in Section 9.B.; 2) Asset Value. The value of the assets on the dissolution date; 3) Manner of Acquisition. The basis on which the asset was acquired, whether the asset a. Was already owned by a Party; b. Was acquired jointly by all BVWACS Parties or c. Was acquired by only one or some of the BVWACS Parties; 4) Early Termination. Whether and, if so, when the BVWACS Party terminated its participation in BVWACS before the dissolution of the BVWACS; and 5) Utility of Asset. The usefulness of the asset to the BVWACS Party receiving it. C. The BVWACS Party to which an asset is distributed shall also be provided evidence and documentation adequate to prove ownership of that asset, including, wherever applicable, transfer of all rights, title and interests, including proprietary and intellectual property rights, to enable that BVWACS Party to upgrade, update, operate, and maintain it or to sell, convey or otherwise dispose of it and the originals of all operations manuals, warranties, bills of sale, licenses, leases, titles and other legal documents related to that asset. Page 74 of 425 Page 31 17. Withdrawal of a BVWACS Party. A. Notice of Withdrawal. A BVWACS Party may withdraw from this Agreement and terminate its participation in BVWACS at any time by giving at least twelve (12) months prior written notice to the Remaining Parties. The Termination Date shall not be earlier than twelve months after notice is given unless three-fourths of the members of the Remaining Parties agree otherwise. The Withdrawing Party must continue to fund its Annual Assessment through the Termination Date, and if it does so, the Withdrawing Party may continue to participate in the BVWACS until its Termination Date. The portion of the Budget allocated to a Withdrawing Party after receipt of the notice of withdrawal may be reduced by the agreement of three-fourths of the members of the Remaining Parties. B. Withdrawal of Managing Entity. In the event the BVWACS Managing Entity is a party to this Agreement and such Party withdraws from the BVWACS, the Governing Board Members representing three-fourths of the members of the Remaining Parties shall appoint a replacement BVWACS Managing Entity. Within ten (10) days after receipt of notice of the identity of the replacement BVWACS Managing Entity, the Withdrawing BVWACS Party that is the BVWACS Managing Entity shall: 1) Possession. Transfer control and possession of all BVWACS Infrastructure, BVWACS Improvements including BVWACS real property owned as tenants in common pursuant to this Agreement to the replacement BVWACS Managing Entity. 2) Conveyance of Real Property. Transfer any and all ownership rights it may have to real property acquired pursuant to the terms of this Agreement to the Remaining Parties. 3) Evidence of Ownership. Provide evidence and documentation adequate to prove ownership of the BVWACS Infrastructure, BVWACS Improvements or real property, including, wherever applicable, transferring all rights, title and interests, including proprietary and intellectual property rights, to enable the replacement BVWACS Managing Entity to manage, upgrade, update, maintain, and operate or to sell, convey or otherwise dispose of the BVWACS Infrastructure, BVWACS Improvements or real property if or when the Remaining Parties determine that this is appropriate, and Page 75 of 425 Page 32 4) Operations and Legal Documents. Transfer the originals of all deeds, operations manuals, warranties, bills of sale, licenses, leases, titles and other legal documents related to BVWACS Infrastructure, BVWACS Improvements or BVWACS real property to the replacement BVWACS Managing Entity. C. Disposition of BVWACS Value of Withdrawing Party. All right, title, and interest in and to the Withdrawing Party’s BVWACS Value may be dealt with in one of two ways: 1) sale and assignment by Withdrawing Party; or 2) determination of valuation and disposition of Withdrawing Party’s BVWACS Value by Remaining Parties. In either event, all rights of access, licenses and use to such Withdrawing Party’s assets comprising a part of the BVWACS remain in place during the withdrawal process. 1) Sale and Assignment by Withdrawing Party. The Withdrawing Party shall offer its BVWACS Value to the Remaining Parties. If none of the Remaining Parties accept the offer within sixty (60) days after receipt of the offer, the Withdrawing Party may sell its BVWACS Value to one or more entities approved by all of the Remaining Parties if the entity or entities enter into an assignment of this Agreement from the Withdrawing Party and accept the duties and obligations of the Withdrawing Party under this Agreement as its or their own duties and obligations. The assignee, if other than a Remaining Party, shall also obtain the rights of the Withdrawing Party under the BVWACS Agreement, including one representative on the Governing Board and one representative on the Operating Board. After the assignment, the BVWACS Agreement shall be construed as if the assignee were listed in the definition of BVWACS Parties. If the Withdrawing Party has an offer to purchase its BVWACS Value from an entity but all of the Remaining Parties do not approve that entity as a reasonable replacement for the Withdrawing Party, the Remaining Parties shall compensate the Withdrawing Party for its BVWACS Value in proportion to their Annual Assessment of BVWACS and obtain a proportionate share of the Withdrawing Party’s BVWACS Value. Page 76 of 425 Page 33 2) Determination of Value by Remaining Parties. If the Withdrawing Party does not give the Remaining Parties notice that, it is exercising its rights under 17.C.1. at least six (6) months before the Termination Date, no later than the Termination Date the Remaining Parties must fairly determine what the Withdrawing Party’s BVWACS Value is at the Termination Date. If the Withdrawing Party and the Remaining Parties are unable to agree on the BVWACS Value, an accounting shall be performed by a panel of three persons. The Remaining Parties shall select one person to represent them on the panel. The Withdrawing Party shall select another person to represent it on the panel. The two persons selected shall select a third person to complete the panel and the accounting. If an accounting is performed, it shall be the basis for determining BVWACS Value for the Withdrawing Party. One-half of the cost of this panel shall be borne by the Withdrawing Party and one-half of the cost of this panel shall be borne by the Remaining Parties. 3) Disposition by Remaining Parties. When the BVWACS Value is determined, the Remaining Parties shall determine how to disburse the ownership of the BVWACS Value of the Withdrawing Party. The Remaining Parties shall consider at least the following options: a. New Party. Find another entity to compensate the Withdrawing Party for its BVWACS Value, assume ownership of the Withdrawing Party’s BVWACS Value and assume its obligations and rights under the BVWACS Agreement; b. Share Value. Divide the Withdrawing Party’s BVWACS Value proportionally among the Remaining Parties, compensate the Withdrawing Party for its BVWACS Value, and provide for a proportional increase in Annual Assessment; c. Single or some of BVWACS Parties. Allow one or only some of the Remaining Parties to compensate the Withdrawing Party for its BVWACS Value, assume ownership of the Withdrawing Party’s Page 77 of 425 Page 34 BVWACS Value with a corresponding increase in Annual Assessment; or d. Ownership without Use. Require the Withdrawing Party to retain ownership of its BVWACS Value but forfeit its use of the BVWACS and representation on the Governing Board and Operating Board unless and until the Withdrawing Party pays what its accrued share of the systems operations costs from the Termination Date to the end of the then current Budget Year would have been if it had not withdrawn. D. Exclusion of Withdrawing Party’s Votes. The Withdrawing Party and its vote on the Governing Board shall be excluded in determining the votes needed for the Remaining Parties to make a decision about the disposition of the Withdrawing Party’s BVWACS Value after the Termination Date. E. Disposition of BVWACS Value by Remaining Parties. If the Remaining Parties select the ownership alternative in 17.C.3.b, or 17.C.3.c the Remaining Parties shall provide for payment of the Withdrawing Party’s BVWACS Value in the fiscal year following the fiscal year of the Termination Date. F. Effect of Disposition on Membership in Governing Board. If the Remaining Parties select the option in 17.C.2 or 17.C.3.3 and Withdrawing Party’s BVWACS Value is divided among the Remaining Parties or assumed by one or only some of the Remaining Parties, the representation of these BVWACS Parties on the Governing Board shall not be increased. G. Depreciation of BVWACS Value. If the Withdrawing Party retains its BVWACS Value, the portion of the value that relates to depreciable assets shall be reduced annually on a declining balance method over the useable life of the asset as long as the depreciable assets that form part of the BVWACS Value are owned by one or more of the Remaining Parties. The portion of the BVWACS Value that relates to non-depreciable assets shall remain unchanged. 18. Effect of Breach and Default. A. Events of Breach. Breach results from any of the following: Page 78 of 425 Page 35 1) Payment. A BVWACS Party’s failure to appropriate or pay its Annual Assessment timely; 2) FCC Rules. Violation of FCC rules and regulations by a BVWACS Party or any BVWACS Associate with which it has entered into a BVWACS Associate Interlocal Cooperation Agreement; 3) Policies and Procedures. Individual or repeated violations of approved written policies and procedures by a BVWACS Party or any BVWACS Associate with which it has entered into a BVWACS Associate Interlocal Cooperation Agreement; 4) Inappropriate Use. Inappropriate use of the BVWACS by a BVWACS Party or any BVWACS Associate with which it has entered into a BVWACS Associate Interlocal Cooperation Agreement; 5) Penalty Payment. Failure to pay FCC penalties or fines resulting from the actions of a BVWACS Party or any BVWACS Associate with which it has entered into a BVWACS Associate Interlocal Cooperation Agreement; 6) Improper Disposition of Assets or Interest. Disposing of assets owned by only one or some of the Parties in contravention of the provisions of this Agreement, or failure to follow the required process set forth in this Agreement of divesting a Party’s interest in a BVWACS Improvement, BVWACS Infrastructure or BVWACS real property; 7) Adverse Impact. Any other action or omission that has a material adverse impact on the operation and maintenance of BVWACS; or 8) Substantial Performance. Failure to perform substantially its material obligations other than failure to appropriate or timely pay its Annual Assessment. B. Breach for Non-Payment. The decision to exercise rights granted by this subsection 18.B. shall be made by the Governing Board. If any BVWACS Party commits the breach described in 18.A.1, the Governing Board may determine to deliver a written notice of breach to the BVWACS Party that specifies the nature of the breach and indicates that unless the breach is cured within thirty (30) days, additional steps shall be taken. A breach described in 18.A.1 can only be cured by paying that Annual Assessment. If the breaching Page 79 of 425 Page 36 BVWACS Party does not cure that breach within thirty (30) days of receiving the written notice of breach, the breaching BVWACS Party is in default and the Governing Board shall deliver a written notice of default to the BVWACS Party that specifies the following: 1) The nature of the default; 2) The date of the notice of breach; 3) The failure of the breaching BVWACS Party to cure timely; and 4) The BVWACS Party’s interest in the BVWACS is terminated no later than 60 days from the date of the written notice of breach if the termination is approved by all of the BVWACS Remaining Parties unless the default is cured by the defaulting BVWACS Party paying that Annual Assessment within an additional thirty (30) days from the date of default as referenced in 18.A.1 above for a total of sixty (60) days from the date of default unless the Governing Board approves a longer timeframe. C. Suspension for Other Breaches. If any BVWACS Party commits a breach described in 18.A.2 through 18.A.8 or a breach described in 18.A.2 through 18.A.8 involving use of any radio or other equipment accessing the BVWACS under the authority of a BVWACS Party, the Governing Board may suspend the right of that BVWACS Party to use the BVWACS for that radio or equipment or for any other radio or equipment for a period of time adequate to cure the breach and determine whether additional remedies are needed. D. Notice of Breach, Default, and Termination For Other Breaches. The decision to exercise rights granted by this subsection 18.D. shall be made by the Governing Board. If any BVWACS Party commits a breach described in 18.A.2 through 18.A.8, the Governing Board may deliver a written notice of breach to the BVWACS Party that specifies the nature of the breach and indicates that unless the breach is cured within thirty (30) days, additional steps shall be taken. If the breaching BVWACS Party begins to cure the breach within the thirty (30) day period, the thirty (30) day cure period is extended as long as the breaching BVWACS Party continues to prosecute a cure diligently to completion and is making a good faith effort to cure the breach. If the breaching BVWACS Party does not cure the breach within thirty (30) days of receiving the written notice of breach or additional period as extended by diligent prosecution of a good faith effort to cure the Page 80 of 425 Page 37 breach, the breaching BVWACS Party is in default and the Governing Board shall deliver a written notice of default to the BVWACS Party which specifies the following: 1) The nature of the default; 2) The date of the notice of breach; 3) The failure of the breaching BVWACS Party to cure timely; and 4) The BVWACS Party’s interest in the BVWACS is terminated on the effective date stated in the notice if the termination is approved by all of the BVWACS Remaining Parties unless the default is cured within thirty (30) days of the notice of default. E. Disposition of BVWACS Value. The Remaining Parties shall determine as to how the Terminated Party’s BVWACS Value shall be disposed. The Remaining Parties have ninety (90) days after the date that termination is effective to determine the value and disposition of the Terminated Party’s BVWACS Value. The Remaining Parties may seek an agreement with the Terminated Party about its BVWACS Value. If the Terminated Party and the Remaining Parties are unable to agree on the Terminated Party’s BVWACS Value, they shall use the method for determination of value in section 17.C. as if the Terminated Party were a Withdrawing Party. When the BVWACS Value is determined, the Remaining Parties shall determine how the ownership of the BVWACS Values is to be disposed. The Remaining Parties shall consider at least the following ownership alternatives for the BVWACS Value of the Terminated Party: 1) New Party. Find another entity to compensate the Terminated Party for its BVWACS Value, assume the ownership of the Terminated Party’s BVWACS Value, and assume its obligations and rights under the BVWACS Agreement; 2) Share Value. Divide the Terminated Party’s BVWACS Value proportionally among the Remaining Parties so that the Remaining Parties can each compensate the Terminated Party for their share of the BVWACS Value and pay a proportional increase in Annual Assessment in the fiscal year following the fiscal year in which the default last occurred; 3) One or More BVWACS Parties. Allow one or more Remaining Parties to compensate the Terminated Party for its BVWACS Value and assume Page 81 of 425 Page 38 ownership of the Terminated Party’s BVWACS Value with a corresponding increase in Annual Assessment; or 4) Ownership without Use. Require the Terminated Party to retain the ownership of its BVWACS Value but forfeit its use of the BVWACS and representation on the Governing Board and Operating Board and annually reduce its BVWACS Value by twenty per cent (20%) of the original BVWACS Value so that the Terminated Party has no BVWACS Value remaining after five (5) years. The Terminated Party would transfer the reduction in value among the Remaining Parties each of such five (5) years proportionally based on the Remaining Parties’ respective participation level during the year such distribution is made. F. Exclusion of Terminated Party’s Votes. The Terminated Party and its vote on the Governing Board shall be excluded in determining the votes needed for the BVWACS Remaining Parties to make a decision about the disposition of the Terminated Party’s BVWACS Value after the date that termination is effective. G. Effect of Termination on Representation on Governing Board. If the Terminated Party’s BVWACS Value is divided among the Remaining Parties or assumed by only one or some of the Remaining Parties, the representation of these BVWACS Parties on the Governing Board shall not be increased. 19. Effect of Withdrawal or Termination on Remaining Parties. Termination or withdrawal of a BVWACS Party has no effect on a Remaining Party’s rights to participate in the BVWACS other than the specific rights and duties set out in this Agreement, and the continuing duty of all Remaining Parties to pay their Annual Assessment. 20. FCC Licenses. Termination or withdrawal of any Party from the BVWACS shall include the surrender to the Remaining Parties any and all of that BVWACS Party’s radio frequency licenses that were licensed for the purpose of implementing the BVWACS. The Remaining Parties shall determine whether to request reassignment of the license to another BVWACS Party or surrender these licenses to the Federal Communications Commission (FCC). The Remaining Parties are Page 82 of 425 Page 39 responsible for complying with all rules and regulations of the FCC related to reassignment and surrender of these licenses. Notwithstanding the above, licenses held, managed and owned by only one or some of the Parties as the exclusive license of such Party or Parties at the time of termination or withdrawal are not subject to the provisions of this section. 21. Dispute Resolution Process. A. Cooperation. All BVWACS Parties are encouraged to work together to resolve all disputes prior to invoking the dispute resolution process set forth herein. B. Hearing by Operating Board. Any BVWACS Party that has an issue or dispute relating to the BVWACS may request a hearing before the Operating Board. The Operating Board shall hear such matter after requesting information regarding such dispute or issue from such BVWACS Party and from the BVWACS Managing Entity. The Operating Board shall then hold a hearing and render its decision in writing. C. Appeal to Governing Board. A BVWACS Party that is adversely affected by the Operating Board’s decision may appeal such decision to the Governing Board, which may elect to hear the appeal or refer the matter to mediation. D. Withdrawal of Dispute. A dispute may be withdrawn at any time during the Dispute Resolution process. E. Timeframes: 1) Initial Dispute Hearing. Any BVWACS Party may bring an issue or dispute to the Chair of the Operating Board. The Chair must schedule a meeting of the Operating Board within (15) fifteen business days of receipt of the notice and provide a written determination to the appropriate BVWACS Parties and to the BVWACS Managing Entity within (5) five business days after the hearing. Any appeal of the decision or recommendation of the Operating Board is to the Governing Board. 2) Appeal to Governing Board. Any appeal from the decision of the Operating Board must be made by delivery of written notice of appeal to the BVWACS Managing Entity and Governing Board within (15) fifteen business days after receipt of the Operating Board’s decision or recommendation. The Governing Board may meet to hear the appeal or Page 83 of 425 Page 40 may elect to send the appeal to mediation. The Governing Board, assisted by the BVWACS Managing Entity, either schedules a hearing or sends the appeal to mediation within (25) twenty-five business days of receipt of the notice of the appeal. Any appeal from the Governing Board’s recommendation is to a mediator as described below. 3) Mediation. If the Governing Board refers a dispute to mediation, the parties to the dispute shall select, within thirty (30) days, a mediator trained in mediation skills to assist with resolution of the dispute. The parties to the dispute agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Agreement prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) days after the Governing Board refers the dispute to mediation, the mediator shall be selected by mutual agreement. If that is not possible, by the Dispute Resolution Center of the Brazos Valley or a mutually agreeable mediation center. The parties agree to participate in mediation sessions in good faith for a period of up to thirty (30) days from the date of the first mediation session. Notice of the date, time, and location of the mediation shall be given to the BVWACS Managing Entity, which may attend. The parties to the dispute shall share the costs of mediation equally. If efforts to mediate the dispute are unsuccessful, the parties to the dispute shall then be free to exercise all available rights and remedies under this Agreement, or at law or in equity. 4) Application of Government Code, chapter 2260. To the extent that Chapter 2260, Texas Government Code, is applicable to this Agreement, is not inconsistent with the process set forth above, and is not preempted by other applicable law, the dispute resolution process provided for in Chapter 2260 and the related rules adopted by the Texas Attorney General pursuant to Chapter 2260, shall be used in disputes involving Texas A & M University that cannot be resolved in the ordinary course of business. The designated Page 84 of 425 Page 41 officers of Texas A & M University, as applicable, shall examine the claim and any counterclaim and negotiate with the claimant in an effort to resolve such claims. The BVWACS Parties specifically agree that a. Neither the execution of this Agreement by Texas A & M University nor any other conduct, action or inaction of any representative of Texas A & M University relating to this Agreement constitutes or is intended to constitute a waiver of Texas A & M University’s or the state's sovereign immunity to suit; and b. Texas A & M University has not waived its right to seek redress in the courts. 22. Miscellaneous. A. Interlocal Agreement. This Agreement is an Interlocal Agreement authorized and governed by the Interlocal Cooperation Act, Chapter 791 of the Texas Government Code. Each BVWACS Party agrees that in the performance of its respective obligations as set forth in this Agreement, it is carrying out a duly authorized governmental function, which it is authorized to perform individually under the applicable statutes of the State of Texas and/or its charter. Each BVWACS Party agrees that the compensation to be made to the other BVWACS Parties as set forth in this Agreement is in an amount intended to fairly compensate each performing BVWACS Party for the services or functions it provides hereunder, and is made from current revenues available to the paying BVWACS Party. Where applicable, this Interlocal Agreement shall be administered in accordance with the laws applicable to a home-rule municipality. B. Immunity as a Defense. No BVWACS Party has agreed to waive any defense, right, immunity, or other protection under law including any statutory provision, by entering into this Agreement or otherwise participating in the BVWACS. C. Retention of Defenses. The Parties agree that neither this Agreement nor the operation or use of the BVWACS by the BVWACS Parties affect, impair, or limit their respective Page 85 of 425 Page 42 immunities and limitations of liability to the claims of third parties, including claims predicated on premises defects. D. Notices. Notices required under this Agreement must be in writing and delivered personally or sent by certified US Mail, postage prepaid, addressed to such BVWACS Party at the following respective addresses: City: City of Bryan Attention: City Manager, with a copy to the City Attorney P. O. Box 1000 Bryan, TX 77805 City: City of College Station Attention: City Manager, with a copy to the City Attorney PO Box 9960 College Station, TX 77842 City: City of Brenham Attention: City Manager, with a copy to the City Attorney 200 West Vulcan Street PO Box 1059 Brenham, TX 77834 County: Brazos County Attention: County Judge, with a copy to County Attorney 200 S. Texas Avenue Suite 332 Bryan, TX 77803 County: Burleson County Attention: County Judge, with a copy to County Attorney 100 W. Buck #306 Caldwell TX 77836 County: Madison County Attention: County Judge, with a copy to County Attorney Page 86 of 425 Page 43 103 West Trinity, Suite 113 Madisonville TX 77864 County: Washington County Attention: County Judge, with a copy to County Attorney 100 East Main Street Suite 104 Brenham, TX 77833 County: Grimes County Attention: County Judge, with a copy to County Attorney 100 Main Street Anderson, TX 77830 Texas A & M University: Texas A & M University Attention: Vice President and Associate Provost For Information Technology and Chief Information Officer 1365 TAMU College Station, TX 77843-1365 All notices so given are deemed given on the date so delivered or so deposited in the US Mail. All BVWACS Parties may change their address by sending written notice of such change to the other Parties in the manner provided for above. E. Assignment. This Agreement being based upon the special qualifications of each BVWACS Party, any assignment or other transfer of this Agreement or any part hereof without the express consent in writing of the other Parties is void and has no effect, which consent shall not be unreasonably withheld. F. Entire Agreement. The entire agreement among the BVWACS Parties is contained herein and no change in or modification, termination, or discharge of this Agreement in any form whatsoever is valid or enforceable unless it is in writing and signed by duly authorized representatives of all Parties. G. Prior Agreements. This Agreement supersedes any and all prior agreements regarding this subject that may have previously been made. The subject of this Agreement is the construction, acquisition, implementation, operation and maintenance of the BVWACS. Page 87 of 425 Page 44 H. Severability. If any term or provision of this Agreement is, to any extent, rendered invalid or unenforceable, the remainder of this Agreement is not affected, and each other term and provision of this Agreement remains valid and enforceable to the fullest extent permitted by law. I. Non-waiver. Failure of a BVWACS Party to exercise any right or remedy for a breach or default of any other BVWACS Party does not waive such right or remedy for that breach or default or in the event of a subsequent breach or default. J. Authority of Signatories. Each BVWACS Party represents to all the other BVWACS Parties that the representative signing this Agreement on any BVWACS Party’s behalf has been duly authorized by the governing body of that BVWACS Party in compliance with Texas law. K. Further Assurances. Each BVWACS Party agrees to perform all other acts and execute and deliver all other documents as may be necessary or appropriate to carry out the intent and purposes of this Agreement. L. Exhibits. The Exhibits, which are attached hereto and described below, are incorporated herein and made a part hereof for all purposes. M. Counterparts and Multiple Originals. This Agreement is effective as of the Effective Date set forth in this Agreement. This Agreement may be executed simultaneously in one or several counterparts, each of which is deemed to be an original and all of which together constitute one and the same instrument. The terms of this Agreement become binding upon each BVWACS Party from and after the time that it is executed by all BVWACS Parties. The counterparts may be signed in multiple originals to allow each BVWACS Party to have an originally signed counterpart for each BVWACS Party. The Agreement has been executed in multiple originals, each having equal force and effect, on behalf of the Parties. Exhibit List: Exhibit A – BVWACS Architecture Exhibit B – Service Area map Exhibit C – BVWACS Associate Standard Terms and Conditions Exhibit D – Goals and Objectives Exhibit E – Monthly, Quarterly, and Annual Evaluation Factors Page 88 of 425 Page 45 Exhibit F – Governance, Operation, and Maintenance Flow Chart and Distribution of Board Membership Exhibit G –Staffing for BVWACS Program Page 89 of 425 Page 46 GRIMES COUNTY _______________________________________ Date:__________________ County Judge Page 90 of 425 Page 47 BURLESON COUNTY _______________________________________ Date:__________________ County Judge Page 91 of 425 Page 48 MADISON COUNTY _______________________________________ Date:__________________ County Judge Page 92 of 425 Page 49 CITY OF BRYAN __________________________________ Date:___________________ Mayor ATTEST: ____________________________________ Date:___________________ City Secretary APPROVED AS TO FORM: ____________________________________ Date:___________________ City Attorney Page 93 of 425 Page 50 CITY OF COLLEGE STATION _____________________________________ Date:___________________ Mayor ATTEST: ______________________________________ Date:___________________ City Secretary APPROVED: ______________________________________ Date:___________________ City Manager ______________________________________ Date:___________________ City Attorney ______________________________________ Date:___________________ Assistant City Manager / CFO Page 94 of 425 Page 51 CITY OF BRENHAM ______________________________________ Date:___________________ Mayor ATTEST: ____________________________________ Date:___________________ City Secretary APPROVED AS TO FORM: ____________________________________ Date:___________________ City Attorney Page 95 of 425 Page 52 BRAZOS COUNTY COMMISSIONERS COURT ______________________________________ Date:___________________ County Judge ATTEST _______________________________________ Date:___________________ County Clerk APPROVED AS TO FORM ______________________________________ Date:___________________ Assistant County Attorney Page 96 of 425 Page 53 WASHINGTON COUNTY ______________________________________ Date:___________________ County Judge Page 97 of 425 Page 54 TEXAS A & M UNIVERSITY ______________________________________ Date:___________________ Executive Vice President and Chief Financial Officer Page 98 of 425 Page 55 THIRD RESTATEMENT OF THE INTERLOCAL AGREEMENT FOR THE CONSTRUCTION, IMPLEMENTATION, OPERATION AND MAINTENANCE OF THE WIDE AREA COMMUNICATIONS SYSTEM BVWACS Architecture Exhibit A Each of the BVWACS parties will continue to contribute existing infrastructure, and real property currently owned or leased by the parties for the purpose set forth in the Agreement. The infrastructure and real property contributed by each of the parties at the execution of the Agreement is as follows: City of College Station Access to RF Site at 2700 Switch Station Rd in College Station TX Access to Console Site 800 Krenek Tap Rd in College Station TX Access to Console Site at 1601 Graham Rd in College Station TX Network connectivity for the following RF and Console Sites to the RNI College Station RF Site College Station Console Site City of Bryan Access to secure 3rd floor equipment space at 101 Regent Street for RF and Console Site Network connectivity for the following RF and Console Sites to the RNI Millican RF Site Verizon RF Site Bryan Console Site City of Bryan Fire Station #4 Brazos County Access to RF Site at 21550 Kathy Fleming Rd in Millican TX Access to RF Site at 8538 Deep Well Road in Brazos County, including tower lease Page 99 of 425 Page 56 Texas A&M University Access to RF Site at 570 Floriculture Rd in College Station TX Access to Console Site at 1111 Research Pkwy in College Station TX Access to Console Site at 311 Houston Street in College Station TX Network connectivity for the following RF and Console Sites to the RNI Hensel Park RF Site TAMU Console Site City of Brenham Access to RF Site at 1802 Longwood Dr in Brenham TX Network connectivity for the following RF and Console Sites to the RNI Brenham RF Site Brenham (Washington County) Console Site (Via City Network) Washington County Access to RF Site at 3610 FM 1697 in Burton TX Access to RF Site at 7275 Lone Star Rd in Washington TX Access to Console Site at 301 N Baylor St in Brenham TX Grimes County Access to RF Site at 382 FM 149 West in Anderson TX Access to RF Site at the Bedias Wastewater Facility in Bedias TX Burleson County Access to RF Site at 367 CR 103 in Caldwell TX Madison County Access to RF Site at 101 E. Collard St in Madisonville TX Access to RF Site at 7442 Gin Rd in Midway TX Texas Department of Public Safety (Information Only) Under separate agreement, provide microwave link between the North Brazos RF site and the Texas DPS radio tower located in Bryan TX Under separate agreement, provide microwave link between the Texas DPS radio tower located in Bryan TX and the City of Bryan Fire Station #4 Page 100 of 425 Page 57 BVWACS Network connectivity for all BVWACS RF and Dispatch Sites to the RNI Master Sites Burton RF Site microwave link to Brenham RF Site Washington RF Site microwave link to Brenham RF Site Anderson RF Site microwave link to Millican RF Site Bedias RF Site microwave link to Walker West RF Site Midway RF Site microwave link to Madisonville RF Site Madisonville RF Site microwave link to Bedias RF Site Caldwell RF Site microwave link to St Joseph Hospital Caldwell BVCOG Fiber link from St Joseph Hospital Caldwell to BVCOG CRS BVCOG Fiber link from Bedias RF Site to BVCOG CRS BVCOG Fiber link from BVCOG CRS to Brenham TX Public Safety Interoperability Communications (PSIC) grant The PSIC Grant provided the necessary equipment and racks (consisting of base radios, site controller and radio frequency distribution system), antennas and associated wiring located at each of seven sites, as well as operator consoles replacement/upgrade for the parties as shown below: Item/Site Description Network Connectivity Leased connectivity to connect all the sites together Bryan /Brazos County Site Includes 700/800 MHz Multicast Base equipment with racks (6 chls) , Xmit & Rcv antennas and coax College Station Site Includes 700/800 MHz Multicast Base equipment with racks (12 chls), Xmit & Rcv antennas and coax College Station Console Sys As shown in Table 2 below. - 6 operator positions Bryan/Brazos county Console Sys Convert existing system to P25 Millican Includes 700/800 MHz Multicast Base equipment with racks (6 chls) , Xmit & Rcv antennas and coax Hensel Park Site Includes 700/800 MHz Multicast Base equipment with racks (6 chls) , Xmit & Rcv antennas and coax Page 101 of 425 Page 58 TAMU Console Equip Convert existing system to P25 LCRA - Site Includes 700/800 MHz Multicast Base equipment with racks (6 chls) , Xmit & Rcv antennas and coax Brenham Site Includes 700/800 MHz Multicast Base equipment with racks (6 chls) , Xmit & Rcv antennas and coax Burton Site Includes 700/800 MHz Multicast Base equipment with racks (6 chls) , Xmit & Rcv antennas and coax Brenham Emerg Comms Console Sys As shown in Table 2 below. - 4 operator positions Management Reserve Includes structural analysis of all towers and project reserves. PSIC-Provided Console equipment installed at College Station and the City of Brenham: IP-based console system Auxiliary I/O Server Conventional Channel Gateway Operator Position Equipment, PC, Mouse, Speakers, Microphone, Keyboard Console Site Router Site Controller LAN Switch IP Based logging system, archiving interface server, digital logging server, playback station 700/800MHz P25 Trunked backup stations Multimode remote control Antenna system Lightning Protection UPS backup power Page 102 of 425 Page 59 Page 103 of 425 Page 60 THIRD RESTATEMENT OF THE INTERLOCAL AGREEMENT FOR THE CONSTRUCTION, IMPLEMENTATION, OPERATION AND MAINTENANCE OF THE WIDE AREA COMMUNICATIONS SYSTEM Exhibit B - Service Area Map Page 104 of 425 Page 61 THIRD RESTATEMENT OF THE INTERLOCAL AGREEMENT FOR THE CONSTRUCTION, ACQUISITION, IMPLEMENTATION, OPERATION AND MAINTENANCE OF THE WIDE AREA COMMUNICATIONS SYSTEM Exhibit C - BVWACS Associate Standard Terms and Conditions When using the Brazos Valley Wide Area Communications System (“BVWACS”), BVWACS Associate shall abide by all policies, procedures and guidelines established by the BVWACS Operating Board, the BVWACS Governing Board, and the terms and conditions of this BVWACS Associate Interlocal Cooperation Agreement BVWACS Associate shall use the BVWACS in a manner consistent with the Standard Operating Procedures established by the BVWACS Operating Board and in compliance with applicable Federal Communications Commission (“FCC”) regulations and rules. BVWACS Associate is encouraged to use and improve the interoperation capabilities of the BVWACS and to provide input to the BVWACS Managing Entity on the day-to-day operations of the BVWACS and development of BVWACS standard operating policies and procedures. BVWACS Associate shall utilize its sponsoring BVWACS Party as its primary point of contact for requests for BVWACS Improvements. BVWACS Associate shall utilize the BVWACS Managing Entity as its primary point of contact when dealing with problems, or to answer questions. BVWACS Associate shall work in good faith with the BVWACS Managing Entity to help resolve problems. BVWACS Associate shall purchase and provide its own subscriber radios and equipment to be used on the BVWACS. The selection and specifications for these radios and equipment must be coordinated with the BVWACS Managing Entity so that all radios and equipment purchased are compatible with the BVWACS. Page 105 of 425 Page 62 BVWACS Associate shall ensure that programming for its subscriber equipment that uses the BVWACS is consistent with the Standard Operating Procedures established by the BVWACS Operating Board. BVWACS Associate has no right to use the BVWACS if the BVWACS Party entering into this BVWACS Associate Interlocal Cooperation Agreement with it is no longer eligible to use the BVWACS. BVWACS Associate is subject to any limitations or restraints on its usage of BVWACS that apply to the BVWACS Party entering into this BVWACS Associate Interlocal Cooperation Agreement. The current term of this BVWACS Associate Interlocal Cooperation Agreement shall not exceed the current term of the Interlocal Agreement for Construction, Acquisition, Implementation, Operations and Maintenance of a Wide Area Communications System. BVWACS Associate may be subject to immediate suspension of this BVWACS Associate Interlocal Agreement for violation of FCC rules and regulations, individual or repeated violations of the BVWACS Standard Operating Procedures, or use of the BVWACS that is determined to be inappropriate by the Governing Board. Upon thirty (30) days written notice that specifies the existence and nature of the default, the BVWACS Party sponsoring the BVWACS Associate may automatically terminate the participation of BVWACS Associate. Default results from failure to comply with the BVWACS Associate Interlocal Cooperation Agreement, including: 1. Violation of FCC rules and regulations; 2. Individual or repeated violations of the BVWACS Standard Operating Procedures; or 3. Use of the BVWACS that is determined to be inappropriate by the Governing Board. BVWACS Associate may avoid termination if the default is cured within thirty (30) days. If the BVWACS Associate begins to cure the default within the thirty (30) day period, the time to cure Page 106 of 425 Page 63 may be extended, at the sole discretion of the sponsoring BVWACS Party, for as long as the BVWACS Associate diligently continues to work toward completion of the cure. BVWACS Associate shall ensure that the persons it authorizes to use its radios and equipment are trained in the proper use and etiquette for two-way radio communication. BVWACS Associate shall reimburse the BVWACS Party that is the holder of an FCC license if there is any actual or alleged violation of any FCC rule or regulation as a result of any radios or equipment that is owned by BVWACS Associate or used by any person associated with BVWACS Associate for all costs arising from the actual or alleged violation, including costs and attorney’s fees for defense against the allegation as well as fines and penalties incurred. Page 107 of 425 Page 64 THIRD RESTATEMENT OF THE INTERLOCAL AGREEMENT FOR THE CONSTRUCTION, ACQUISITION, IMPLEMENTAITON, OPERATION AND MAINTENANCE OF THE WIDE AREA COMMUNICATIONS SYSTEM Exhibit D – Goals and Objectives GOALS The goal of the Brazos Valley Wide Area Communications System is to provide voice radio and ultimately data transmission coverage and radio communication interoperability throughout the Service Area utilizing Infrastructure and Improvements currently provided by the Parties as well as new Infrastructure and Improvements in accordance with this Agreement. OBJECTIVES 1. The Brazos Valley Wide Area Communications System shall maintain an appropriate reserve capacity based on the determination of the Governing Board. 2. The Brazos Valley Wide Area Communications System shall strive to maintain coverage at or above 95% reliability for a portable radio worn on the hip with a speaker collar microphone inside a –10db loss building within the Service Area. 3. To the extent practicable, the Brazos Valley Wide Area Communications System shall maintain interoperability with other public safety and governmental radio systems within the Service Area, the Brazos Valley Council of Governments area, regionally, statewide, and nationally. 4. The Brazos Valley Wide Area Communications System shall maintain the performance and equipment of the BVWACS at a standard consistent with the developments in technology and the needs of the BVWACS Parties. 5. The Brazos Valley Wide Area Communications System shall research and pursue opportunities for assistance for funding the BVWACS through grants and other means. Page 108 of 425 Page 65 THIRD RESTATEMENT OF THE INTERLOCAL AGREEMENT FOR THE CONSTRUCTION, ACQUISITION, IMPLEMENTATION, OPERATION AND MAINTENANCE OF THE WIDE AREA COMMUNICATIONS SYSTEM Exhibit E – Monthly, Quarterly and Annual Evaluation Factors Maintain system reserve capacity at or above the level approved by the Governing Board. Maintain coverage at RFP’s coverage specifications. Report number of minutes of BVWACS non-normal operation. Report number of system busies. Report BVWACS Support Vendor response time to system problems. Develop shared staff performance measures. Page 109 of 425 Page 66 THIRD RESTATEMENT OF THE INTERLOCAL AGREEMENT FOR THE CONSTRUCTION, IMPLEMENTATION, OPERATION AND MAINTENANCE OF THE WIDE AREA COMMUNICATIONS SYSTEM Exhibit F- Governance, Operation, and Maintenance Flow Chart and Distribution of Board Membership Page 110 of 425 Page 67 THIRD RESTATEMENT OF THE INTERLOCAL AGREEMENT FOR THE CONSTRUCTION, ACQUISITION, IMPLEMENTATION, OPERATION AND MAINTENANCE OF THE WIDE AREA COMMUNICATIONS SYSTEM Exhibit G – Staffing for BVWACS Program Radio System Manager (100 %) Page 111 of 425 February 8, 2024 Item No. 7.3. Lease agreement amendment with WireStar for the use of City Dark Fiber Optic Cable Sponsor: Sam Rivera Reviewed By CBC: N/A Agenda Caption: Presentation, discussion, and possible action on an amendment to the lease agreement with WireStar for the use of City Dark Fiber Optic Cable increasing amount due to City by $3,568.99. Relationship to Strategic Goals: • Core Services & Infrastructure • Financially Sustainable City • Diverse Growing Economy Recommendation(s): CIO recommends approval of the contract. Summary: On March 26, 2015, Council approved an Ordinance permitting the lease of City Fiber Optic Cable Facilities. As one of the companies currently leasing city spare (or dark) fiber, WireStar has requested an amendment to the lease agreement to add the use of additional fibers. Budget & Financial Summary: This lease amendment will have a financial impact on the city. A positive revenue will be obtained from the additional fiber leases. Attachments: 1. 16300022_AMD_3_ADc_(CC_02.08.24) Page 112 of 425 CONTRACT & AGREEMENT ROUTING FORM __Original(s) sent to CSO on _____ Scanned into Laserfiche on _________ ____Original(s) sent to Fiscal on ________ 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 16300022AMD3 N/A N/A Amendment #3 to Dark Fiber Lease Agreement WiresStar, Inc. 43,907.75 n n n n n N/A N/A Amendment Amendment #3 adding $3,568.99 for an additional lease of 28.2 miles of fiber. N/A 02/08/2024 TBD N/A N/A N/A 1/29/2024 Page 113 of 425 THIRD AMENDMENT OF THE DARK FIBER LEASE AGREEMENT BETWEEN COLLEGE STATION, TEXAS AND WIRESTAR, INC. This Third Amendment (“Amendment”) is made and entered into by and between the City of College Station, a Texas Home-Rule Municipal Corporation (the “PROVIDER”), and Wirestar, Inc., (the “USER”), hereinafter collectively referred to as the “Parties”. This Amendment is effective when signed by the last Party whose signing makes the Amendment fully executed. RECITALS WHEREAS, PROVIDER and USER entered into a Dark Fiber Lease Agreement (“Original Agreement”) with Contract No. 16300022 on October 12, 2015; and WHEREAS, PROVIDER and USER entered into a First Amendment of the Dark Fiber Lease Agreement (“First Amendment”) with Contract No. 16300022 AM#1 on July 13, 2017; and WHEREAS, PROVIDER and USER entered into a Second Amendment of the Dark Fiber Lease Agreement (“Second Amendment”) with Contract No. 1630022 AM#2 on July 27, 2018; and WHEREAS, the Original Agreement provided for USER lease of 43.16 Fiber Strand Miles in the amount of (including maintenance) $22,936.51; and WHEREAS, the First Amendment provided for the USER lease of 30.62 Fiber Strand Miles in the amount of (including maintenance) $12,900.74; and WHEREAS, the Second Amendment provided for the USER lease of the additional 12.2 Fiber Strand Miles in the amount of (including maintenance) $4,501.51; and WHEREAS, USER has notified the PROVIDER of the desire to lease an additional 28.2 Fiber Strand Miles; WHEREAS, the PROVIDER has agreed to lease the additional 28.2 Fiber Strand Miles; and NOW THEREFORE, in consideration of the foregoing and the mutual promises set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree to amend the Agreement as follows: 1. Replacing Exhibit A, “Map of Routes Covered by this Lease” with the new Exhibit A attached to this Amendment. 2. Adding Exhibit A-2, “Route Segment Listing and Payment Amounts”, with new Exhibit A-2 attached to this Amendment to add new route segments and payment amounts covered by this Amendment. 3. All other terms, conditions, and pricing remain in full force and effect. Page 114 of 425 IN WITNESS WHEREOF the Parties have caused this Amendment to be executed by their duly authorized representatives. WIRESTAR, INC. CITY OF COLLEGE STATION By: By: City Manager Printed Name: Date: Title: APPROVED: Date: City Attorney Date: Assistant City Manager/CFO Date: Kyle Leissner 1/29/2024 President Page 115 of 425 EXHIBIT A MAP OF ROUTES COVERED BY THIS LEASE The routes covered by this Lease Agreement, as Amended, are highlighted in green on the below map. Page 116 of 425 EXHIBIT A-2 ROUTE SEGMENT LISTING AND PAYMENT AMOUNTS Additional Route Segments Added by Third Amendment • Four (4) fiber strands from the intersection of Rock Prairie Rd West & Oak Creek (RPW/OC) to Dowling Pump Station (DOWP) • Two (2) fiber strands from City Hall (CH) to Wirestar HQ (WSHQ) splice point via Texas Ave/Utility Customer Service (UCS). • Two (2) fiber strands from Wirestar HQ (WSHQ) splice point to Greens Prairie Elevated Storage Tank (GPEST) via Utility Service (USCE) • Two (2) fibers strands from Greens Prairie Elevated Storage Tank (GPEST) to splice point near Greens Prairie Substation (GPSub) on old Arrington Road. Calculation of Third Amendment License Payment Amount The USER License Payment for the USER Fibers is an imputed rate of $500.00 per Fiber Strand Mile. This amount is prorated for the remainder of the lease at $87.50 per Fiber Strand Mile (21 of 120 months remaining). Rock Prairie West & Oak Creek (RPW/OC) to Dowling Pump Station (DOWP) 2.2 miles City Hall (CH) to Wirestar HQ (WSHQ) via Texas Ave/UCS 5.7 miles Wirestar HQ (WSHQ) to GPEST via Utility Service (USCE) 3.6 miles GPEST to Greens Prairie Substation (GPSub) 0.4 miles Total miles 11.9 miles Four (4) fiber strands Rock Prairie West & Oak Creek (RPW/OC) to Dowling Pump Station (DOWP) – 8.8 fiber strand miles Two (2) fibers strands City Hall (CH) to Wirestar HQ (WSHQ) – 11.4 fiber strand miles Two (2) fibers strands Wirestar HQ (WSHQ) to GPEST – 7.2 fiber strand miles Two (2) fibers strands GPEST to Greens Prairie Substation (GPSub) – 0.8 fiber strand miles Total fiber strand miles: 28.2 28.2 Fiber Strand Miles x $87.50/Fiber Strand Mile = $2,467.50 User License Payment for amount of fiber added by Third Amendment. Page 117 of 425 Calculation of Maintenance Amount Following the Effective Date for each USER Fiber on a Route Segment, USER will pay an annual maintenance fee per Fiber Mile per year. The annual maintenance will be calculated annually and is based on the personnel cost (payroll and benefits) times the estimated percent of city staff time spent conducting fiber operations and maintenance activities. This amount provides the total staff cost devoted to fiber operations and maintenance activities. This amount is then divided by the total number of fiber strand miles to determine the annual maintenance cost per fiber strand mile. City staff cost devoted to fiber activities (2017- 2018) $116,649 Total city fiber optic strand miles 2,240 Maintenance cost per fiber optic strand mile: $116,649/2,240 = $52.08 per fiber strand mile Annual maintenance cost (2023-2024): $52.08/ fiber strand mile x 88.74 fiber strand miles leased =$4,621.58 Prorated Maintenance cost for fiber added by Third Amendment (2023-2024): 28.2 fiber strand miles x $52.08 per fiber strand mile x 9/12 (prorated maintenance) = $1101.49 The updated Maintenance Amount calculations will be performed for 2024-2025 using the combined total amount of all PROVIDER fiber leased by USER in the Original Agreement, First Amendment, Second Amendment and Third Amendment as modified, which currently adds up to a total of 116.94 fiber strand miles. Page 118 of 425 Maps of Routes Covered by This Lease Amendment, marked in red Rock Prairie West & Oak Creek (RPW/OC) to Dowling Pump Sta�on (DOWP) Page 119 of 425 City Hall (CH) to Wirestar HQ (WSHQ) via Texas Ave/UCS Page 120 of 425 Wirestar HQ (WSHQ) to GPEST to Greens Prairie Substa�on (GPSub) Page 121 of 425 The ACORD name and logo are registered marks of ACORD CERTIFICATE HOLDER © 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (201 /0 ) AUTHORIZED REPRESENTATIVE CANCELLATION DATE (MM/DD/YYYY)CERTIFICATE OF LIABILITY INSURANCE LOCJECTPRO-POLICY GEN'L AGGREGATE LIMIT APPLIES PER: OCCURCLAIMS-MADE COMMERCIAL GENERAL LIABILITY PREMISES (Ea occurrence)$DAMAGE TO RENTED EACH OCCURRENCE $ MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ PRODUCTS - COMP/OP AGG $ $RETENTIONDED CLAIMS-MADE OCCUR $ AGGREGATE $ EACH OCCURRENCE $ UMBRELLA LIAB EXCESS LIAB DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) INSRLTR TYPE OF INSURANCE POLICY NUMBER POLICY EFF(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)LIMITS PERSTATUTE OTH-ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE E.L. DISEASE - POLICY LIMIT $ $ $ ANY PROPRIETOR/PARTNER/EXECUTIVE If yes, describe under DESCRIPTION OF OPERATIONS below (Mandatory in NH) OFFICER/MEMBER EXCLUDED? WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N AUTOMOBILE LIABILITY ANY AUTO ALL OWNED SCHEDULED HIRED AUTOS NON-OWNED AUTOS AUTOS AUTOS COMBINED SINGLE LIMIT BODILY INJURY (Per person) BODILY INJURY (Per accident) PROPERTY DAMAGE $ $ $ $ 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. INSD ADDL WVD SUBR N / A $ $ (Ea accident) (Per accident) OTHER: 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. INSURED PHONE(A/C, No, Ext): PRODUCER ADDRESS:E-MAIL FAX(A/C, No): CONTACTNAME: NAIC # INSURER A : INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : INSURER(S) AFFORDING COVERAGE SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. Certificate Of Insurance 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). TechInsurance, Division of Specialty Program Group LLC 203 N. LaSalle St., 20th Floor, Chicago, IL 60601 (800) 688-1984 312-690-4123 Wirestar Inc Po Box 10966 Sentinel Insurance Company, Limited 11000 Hartford Multi-State 00914 The Hartford 30104 46SBAAE8461AYesYes 2,000,000 10,000 9/14/2024 1,000,000 Excluded9/14/2023 4,000,000 Excluded C 1,000,000 Yes Yes 46UECEH6569 9/14/2023 9/14/2024 B No 46WBCAQ1438 9/14/2023 9/14/2024 1,000,000 1,000,000 1,000,000 The City of College Station, its officials, employees and volunteers Insured with regard to the general liability, automobile liability and umbrella excess liability. Waiver of subrogation in favor of the The City of College Station, its officials, employees and volunteers with regard to the general liability, automobile liability, umbrella excess liability, and workers' compensation coverage. City of College Station Attn: Risk Management PO BOX 9960 College Station, Texas 77842 12/21/2023 183421 Wirestar Inc 12/21/2023 11:21:35 PM Page 122 of 425 February 8, 2024 Item No. 7.4. Construction Contract for the CCWWTP Equipment Building Project Sponsor: Jennifer Cain, Director Capital Projects Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action on a construction contract with BH Harris Construction, LLC. in the amount of $907,272.38 for construction services for the Carter Creek Wastewater Treatment Plant Equipment Building Project, plus the City’s contingency in the amount of $100,000 for a total appropriation of $1,007,272.38. Approval of this item grants authority for the City Manager to authorize project expenditures up to the City's contingency amount. Relationship to Strategic Goals: Core Services and Infrastructure Recommendation(s): Staff recommends approval. Summary: This project is to construct an equipment building to protect and preserve the division's vehicles and mobile equipment. The building will be a three-sided, pre-engineered metal building which provides easy access. The building will also provide a vehicle wash-rack at one end. This project will help reduce the pollution of rain runoff from vehicles and oil leaks from water services equipment to support both the stormwater pollution prevention plan and TMDL (total maximum daily loads). The City issued a request for Competitive Sealed Proposals (CSP) and received 2 proposals. Following evaluation and interview, BH Harris was selected as the best value to the City. Budget & Financial Summary: $1,100,000 is currently budgeted for this project in the Wastewater Projects Fund. A total of $73,193 has been expended or committed to date, leaving a balance of $1,026,807 for this construction contract and remaining project expenses. Attachments: 1. CCWWTP Equipment Building Construction Contract - Vendor Signed Page 123 of 425 CONTRACT & AGREEMENT ROUTING FORM __Original(s) sent to CSO on _____ Scanned into Laserfiche on _________ ____Original(s) sent to Fiscal on ________ 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 24300210 WW1800004 24-009 Carter Creek Wastewater Treatment Plant Equipment Building BH Harris Construction, LLC 907,272.38 n n n n n N/A N/A N/A Lowest responsible bidder from CSP (RFP-24-009) Funding source - 41379971-6561 N/A 2/8/2024 N/A N/A N/A N/A 1/25/2024 1/25/2024 Page 124 of 425 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 125 of 425 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 126 of 425 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 127 of 425 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 128 of 425 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 129 of 425 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 130 of 425 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 131 of 425 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 132 of 425 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 133 of 425 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 134 of 425 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 135 of 425 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 136 of 425 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 137 of 425 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 138 of 425 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 139 of 425 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 140 of 425 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 141 of 425 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 142 of 425 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 143 of 425 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 144 of 425 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 145 of 425 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 146 of 425 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 147 of 425 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 148 of 425 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 149 of 425 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 150 of 425 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 151 of 425 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 152 of 425 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 153 of 425 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 154 of 425 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 155 of 425 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 156 of 425 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 157 of 425 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 158 of 425 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 159 of 425 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 160 of 425 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 161 of 425 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 162 of 425 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 163 of 425 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 40 List of Exhibits A.Wage Rates B.Performance & Payment Bonds C.Certificates of Insurance D.Plans & Specifications E.Construction Schedule F.Schedule of Values CITY OF COLLEGE STATION By: By: City Manager Printed Name:Date: ________________ Title: Date: APPROVED: City Attorney Date: ______________ Assistant City Manager/CFO Date: ______________ Braden Harris 1/25/2024 President 1/25/2024 Page 164 of 425 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT A DAVIS BACON WAGE RATES Page 165 of 425 Page 166 of 425 Page 167 of 425 Page 168 of 425 Page 169 of 425 Page 170 of 425 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 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 171 of 425 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT B PERFORMANCE AND PAYMENT BONDS Page 172 of 425 Page 173 of 425 Page 174 of 425 Page 175 of 425 Page 176 of 425 Page 177 of 425 Page 178 of 425 Page 179 of 425 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT C CERTIFICATES OF INSURANCE AND ENDORSEMENTS Page 180 of 425 LOAN # AUTHORIZED REPRESENTATIVE NAME AND ADDRESS ADDITIONAL INTEREST LOSS PAYEE ADDITIONAL INSUREDMORTGAGEE REMARKS (Including Special Conditions) EVIDENCE OF PROPERTY INSURANCE DATE (MM/DD/YYYY) COMPANY THIS REPLACES PRIOR EVIDENCE DATED: EFFECTIVE DATE EXPIRATION DATE CONTINUED UNTIL TERMINATED IF CHECKED POLICY NUMBERLOAN NUMBERINSURED CODE:SUB CODE: AGENCYCUSTOMER ID #: THIS EVIDENCE OF PROPERTY INSURANCE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE ADDITIONAL INTEREST NAMED BELOW. THIS EVIDENCE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS EVIDENCE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE ADDITIONAL INTEREST. AGENCY ADDRESS:E-MAILFAX(A/C, No): (A/C, No, Ext):PHONE DEDUCTIBLEAMOUNT OF INSURANCECOVERAGE / PERILS / FORMS COVERAGE INFORMATION LOCATION/DESCRIPTION PROPERTY INFORMATION 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 EVIDENCE OF PROPERTY INSURANCE 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. The ACORD name and logo are registered marks of ACORD ACORD 27 (2009/12)© 1993-2009 ACORD CORPORATION. All rights reserved. CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 01/09/2024 US ASSURE INSURANCE SERVICES OF FLORIDA, INC. P.O. BOX 10197 JACKSONVILLE, FL 32247-0197 American Zurich Insurance Company bradley.hurt@sigbcs.com A0205009 BH HARRIS CONSTRUCTION, LLC 4044 GOLDEN EAGLE DR BRYAN, TX 77808 ER78581229 01/10/2024 01/10/2025 2200 N Forest Pkwy College Station, TX 77845 Builders Risk Coverage Form Any One Building or Structure All Covered Property at all Locations $2,500 $927,000 $927,000 City of College Station 1101 Texas Ave S College Station, TX 77840 8 Page 181 of 425 01/15/2024 Service Insurance Group, Inc. PO Box 5753 3840 Corporate Center Dr Bryan TX 77805-5753 (979)774-3900 Kinsale Insurance Company BH Harris Construction, LLC 4044 Golden Eagle Dr Bryan TX 77808- (979)774-3955 X X X 0100278108-0A 01/10/2024 01/10/2025 1,000,000 100,000 Excl 1,000,000 2,000,000 2,000,000 RE: 2200 N Forest Pkwy College Station, TX 77845; Where contractually required the certificate holder is provided addiitonal insured status. Waiver of subrgogation applies to certificate holder where contractually required. AI 000241 Risk Management Department PO Box 9960 College Station TX 77842- City of College Station (979)764-3571Fax: ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? INSR ADDL SUBR LTR INSD WVD DATE (MM/DD/YYYY) PRODUCER CONTACTNAME: FAXPHONE(A/C, No):(A/C, No, Ext): E-MAILADDRESS: 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 AGG $JECT OTHER:$ 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 LIMIT $DESCRIPTION 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. The ACORD name and logo are registered marks of ACORDACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE Page 182 of 425 Page 183 of 425 Page 184 of 425 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT D PLANS AND SPECIFICATIONS Page 185 of 425 RFP (CSP) 24-009 ITEM NO.QTY UNIT ITEM DESCRIPTION UNIT PRICE TOTAL PRICE UNIT PRICE TOTAL PRICE 1 1 LS General Overhead for all Work Including Mobilization, Bonds, Insurance, and Related Items 131,000.00$ 131,000.00$ 117,369.00$ 117,369.00$ 2 1 LS Demolition and Removal of Existing Misc. Material on Site Including Culverts, Concrete Pavement, Asphalt Pavement, Tanks and Structures; Site Preparation including Clearing, Grubbing, and Disposing of Vegetation/Debris; Including Haul Off and Legal Disposal complete as specified for the sum of 6,200.00$ 6,200.00$ 12,100.00$ 12,100.00$ 3 1 LS Construction of new pre-engineered metal shed, complete as specified for the sum of 411,000.00$ 411,000.00$ 284,103.00$ 284,103.00$ 4 1 LS Storm Water Pollution Prevention Plan, complete as specified for the sum of 5,520.00$ 5,520.00$ 4,500.00$ 4,500.00$ 5 1 LS Site Grading and Restoration, including Excavation and Embankment, complete as specified for the sum of 48,100.00$ 48,100.00$ 70,919.00$ 70,919.00$ 6 1031 SY 7" Min Thickness 3,500 PSI Reinforced Concrete Pavement 72.00$ 74,232.00$ 76.285$ 78,649.84$ 7 1136 SY 8" Min Thickness Lime Stabilized Subgrade 26.00$ 29,536.00$ 9.25$ 10,508.00$ 8 25.56 TON Lime (45 lbs/SY)250.00$ 6,390.00$ 325.00$ 8,307.00$ 9 50 SY 4" Thick Reinforced Concrete Riprap 68.00$ 3,400.00$ 50.00$ 2,500.00$ 10 48 LF Saw Cut and Repair Existing Asphalt Pavement for Water, Sanitary, and Electrical Improvements 29.00$ 1,392.00$ 45.00$ 2,160.00$ 11 10 EA Wheel Stops 199.00$ 1,990.00$ 70.00$ 700.00$ 12 4 EA Gutter Splash Protection 99.00$ 396.00$ 250.00$ 1,000.00$ 13 1 LS Gutters, complete as specified for the sum of 1,700.00$ 1,700.00$ w/ Building w/ Building 14 20 EA Bollards 750.00$ 15,000.00$ 255.00$ 5,100.00$ 15 1 LS Wash Bay Equipment, complete as specified for the sum of 10,400.00$ 10,400.00$ 7,474.00$ 7,474.00$ 16 1 LS Trench Drain System 14,300.00$ 14,300.00$ 22,710.00$ 22,710.00$ 17 1 EA Floor Drain 915.00$ 915.00$ 3,000.00$ 3,000.00$ 18 1 LS Water Lines in Building, complete as specified for the sum of 9,900.00$ 9,900.00$ 20,000.00$ 20,000.00$ 19 3 EA Hose Bibbs 295.00$ 885.00$ 5,000.00$ 15,000.00$ 20 1 LS Air Compressor and Lines, complete as specified for the sum of 6,700.00$ 6,700.00$ 3,200.00$ 3,200.00$ 21 5 EA Hose Reels 1,675.00$ 8,375.00$ 215.28$ 1,076.40$ BH HARRIS CARTER CREEK WASTEWATER TREATMENT PLANT EQUIPMENT BUILDING General Construction DUDLEY CONSTRUCTION REVISED BID SCHEDULE CITY OF COLLEGE STATION CITY PROJECT NO. WW1800004 & WW189610 QE JOB NO: C0008-0037-00 10/26/2023 Addendum #1 Page 186 of 425 22 1 LS Interior/Exterior LED Lighting, complete as specified for the sum of 15,732.00$ 15,732.00$ 13,403.00$ 13,403.00$ 23 1 LS Building Receptacles, complete as specified for the sum of 771.00$ 771.00$ 657.00$ 657.00$ 24 1 LS Above Ground Conduit, complete as specified for the sum of 29,400.00$ 29,400.00$ 35,960.00$ 35,960.00$ 25 1 EA NEMA 4X Cabinet - 200A Breaker 3,900.00$ 3,900.00$ 3,294.00$ 3,294.00$ 26 1 LS NEMA 4X Cabinet - 150A & 50A Breakers 7,200.00$ 7,200.00$ 6,115.00$ 6,115.00$ 27 1 EA 50 KVA Transformer 5,100.00$ 5,100.00$ 4,388.00$ 4,388.00$ 28 1 LS 15 KVA Transformer & Lighting Panel 9,825.00$ 9,825.00$ 8,370.00$ 8,370.00$ 29 1 EA Floodlight 4,070.00$ 4,070.00$ 3,467.00$ 3,467.00$ 30 1 LS Misc. Electrical Construction Allowance, complete as specified for the sum of 10,000.00$ 10,000.00$ 10,000.00$ 10,000.00$ 31 1 LS Under Ground Electrical Conduit, Duct Bank, Wire, complete as specified for the sum of 58,700.00$ 58,700.00$ 59,236.00$ 59,236.00$ 32 1 LS Connect to Existing Box and Extend Fiber Optic, complete as specified for the sum of 10,000.00$ 10,000.00$ 10,000.00$ 10,000.00$ 33 30 LF 12" C-76 Class III RCP Culvert 214.00$ 6,420.00$ 125.00$ 3,750.00$ 34 2 EA 12" 4:1 Concrete Sloped End Treatment 2,900.00$ 5,800.00$ 2,800.00$ 5,600.00$ 35 238 LF 1.5" PVC Non-Potable Water Piping 45.00$ 10,710.00$ 84.03$ 19,999.14$ 36 178 LF 3" 40 PVC Drain Piping through Building to Separator 79.00$ 14,062.00$ 55.00$ 9,790.00$ 37 57 LF 4" PVC Drain Piping from Separator to Sanitary Manhole 199.00$ 11,343.00$ 68.00$ 3,876.00$ 38 1 EA Oil/Water Separator 11,300.00$ 11,300.00$ 14,000.00$ 14,000.00$ 39 1 EA Connect to Existing Sanitary Sewer Manhole 2,100.00$ 2,100.00$ 5,000.00$ 5,000.00$ 40 1 EA 1.5"x2" PVC Tee 645.00$ 645.00$ 350.00$ 350.00$ 41 1 EA 1.5" PVC 22.5-Degree Bend 205.00$ 205.00$ 200.00$ 200.00$ 42 1 EA 1.5" PVC 90-Degree Bend 205.00$ 205.00$ 200.00$ 200.00$ 43 1 EA 1.5" Double Backflow Preventer with Insulated Enclosure 3,050.00$ 3,050.00$ 4,500.00$ 4,500.00$ 44 1 EA 1.5" Gate Valve and Box 410.00$ 410.00$ 650.00$ 650.00$ 45 113 CY Cement Stabilized Sand (1.5 sacks/CY) over Waterline 172.00$ 19,436.00$ 107.00$ 12,091.00$ 46 1 LS Relocate Existing Signs, complete as specified for the sum of 1,030.00$ 1,030.00$ 2,000.00$ 2,000.00$ TOTAL 1,028,745.00$ 907,272.38$ CALENDAR DAYS: Total number of calendar days to substantial completion is 240 days Number of Addenda is Hereby Acknowledged 2 2 Award to Lowest Responsible bidder meeting specifications Addendum #1 Page 187 of 425 February 8, 2024 Item No. 7.5. Gilchrist Avenue Parking Removal (between Foster Avenue and Texas Avenue) Sponsor: Randell Smith, Sr. Engineer Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action regarding an ordinance amending Chapter 38 “Traffic and Vehicles,” Article VI "Traffic Schedules," Section 38-1014 "Traffic Schedule XIV, No Parking Here to Corner and No Parking Any Time," of the Code of Ordinances of the City of College Station, Texas, by removing parking on the north side of Gilchrist Avenue between Texas Avenue and Foster Avenue. Relationship to Strategic Goals: 1. Core Services and Infrastructure 2. Improving Mobility Recommendation(s): Staff recommends approval of the ordinance. Summary: The proposed ordinance removes parking from one side of Gilchrist Avenue between Foster Avenue and the driveway to City Hall. This side is the southern block surrounding City Hall and prohibiting parking will be consistent with both the Francis Drive side and the Foster Avenue side. Parking is already prohibited between the driveway and Texas Avenue. Over the years, staff has received concerns from citizens regarding the parking on Gilchrist and the ability to see oncoming cars while exiting driveways and attempting to cross the street at the two-way stop at Foster. During the construction of the new City Hall, parking was temporarily removed from both sides of Gilchrist so that heavy trucks had the ability to turn in and out of the construction site. The temporary ordinance was only in effect for the duration of construction. A public meeting was held on October 17, 2023 to discuss parking removal along Gilchrist Avenue. Notifications were sent to all residents along Gilchrist Avenue between Texas Avenue and Puryear Drive (Mabel Clare Thomas Park) and signs were placed in the area notifying the public of the meeting. Although the focus of the public meeting was the future construction of sidewalks along Gilchrist between Foster and Puryear and the associated parking removal to accommodate the proposed sidewalks, the one resident that attended actually lived between Foster Avenue and Texas Avenue and requested the parking prohibitions put in place during the City Hall construction remain in place. Staff investigated the request and, due to the previous concerns from residents and the site distance issues at the intersection of Foster Avenue and Gilchrist, is recommending to permanently prohibit parking along the remaining portion of the north side (City Hall side) of Gilchrist Avenue between Foster Avenue and the driveway to City Hall, which is 190 feet. Budget & Financial Summary: The "NO PARKING" signs have already been installed as part of the temporary ordinance and will remain in place. The signs that were placed on the opposite side of the street have been removed. Attachments: 1. Ordinance - Gilchrist Avenue Parking Removal Page 188 of 425 2. Exhibit - Gilchrist Avenue Parking Removal Page 189 of 425 Ordinance Form 8-14-17 ORDINANCE NO. __________ AN ORDINANCE AMENDING CHAPTER 38, “TRAFFIC AND VEHICLES,” ARTICLE VI “TRAFFIC SCHEDULES,” SECTION 38-1014 “TRAFFIC SCHEDULE XIV, NO PARKING HERE TO CORNER AND NO PARKING AT ANY TIME,” OF THE CODE OF ORDINANCES OF THE CITY OF COLLEGE STATION, TEXAS, BY REMOVING PARKING ON THE NORTH SIDE OF GILCHRIST AVENUE BETWEEN TEXAS AVENUE AND FOSTER AVENUE, PROVIDING A SEVERABILITY CLAUSE; 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 Chapter 38, “Traffic and Vehicles,” Article VI “Traffic Schedules,” Section 38-1014 “Traffic Schedule XIV, No Parking Here to Corner and No Parking at Any Time,” of the Code of Ordinances of the City of College Station, Texas, be amended 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 upon a finding of liability thereof shall be deemed liable for a civil offense and punished with a civil penalty of not less than one dollar ($1.00) and not more than two thousand dollars ($2,000.00) or upon conviction thereof guilty of a misdemeanor, shall be punished by a fine of not less than twenty five dollars ($25.00) and not more than five hundred dollars ($500.00). 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 190 of 425 ORDINANCE NO. _______ Page 2 of 3 Ordinance Form 8-14-17 PASSED, ADOPTED and APPROVED this ______ day of _______________, 20__. ATTEST: APPROVED: _____________________________ _____________________________ City Secretary Mayor APPROVED: _______________________________ City Attorney Page 191 of 425 ORDINANCE NO. _______ Page 3 of 3 Ordinance Form 8-14-17 Exhibit A That Chapter 38, “Traffic and Vehicles,” Article VI. “Traffic Schedules”, Section 38-1014 “Traffic Schedule XIV, No Parking Here to Corner and No Parking at Any Time,” is hereby amended to reflect the following change: Traveling on Between Travel Direction Gilchrist Avenue Texas Ave and Foster Ave West No parking from here to corner and no parking anytime. Page 192 of 425 GILCHRIST AVENUE NO PARKING EXHIBIT FOR 190 FEET SOUTHWEST OF FOSTER AVENUE NO PARKING N TEXAS AVENUE GILCHRIST AVE 190’ Page 193 of 425 February 8, 2024 Item No. 7.6. Annual Price Agreement for Cement Treated Base Sponsor: Emily Fisher, Director of Public Works Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action on an annual price agreement with Brazos Paving, Inc. for Cement Treated Base and Type D Grade 1 Cement Treated (4%) Recycled Crushed Concrete Base, not to exceed $835,000. Relationship to Strategic Goals: 1. Core Services and Infrastructure 2. Improving Transportation Recommendation(s): Staff recommends awarding the annual price agreement to Brazos Paving, Inc. Summary: One bid was received in response to ITB 24-020 on January 4, 2024. Staff recommends awarding the total annual estimated purchase of Cement Treated Base and Type D Grade 1 Cement Treated (4%) Recycled Crushed Concrete Base to Brazos Paving, Inc. as the lowest responsible bidder. This price agreement is for (1) year and may be renewed for up to two (2) additional one (1) year terms, for a possible total of three (3) years. Budget & Financial Summary: Funds are available in the Roadway Maintenance Fund. Attachments: 1. Tabulation 2. Supplier Response (Brazos Paving, Inc.) Page 194 of 425 ITB # 24-020ANNUAL PRICE AGREEMENT FORCEMENT STABILIZED ROCKLine # Description QTY UOMUnit Extended1TYPE A Cement Treated Base (4%) FOB: To be Picked up by City CrewsType A material must meet the requirements in Item 247, TXDOT Specifications.2000 TON$46.00$92,000.002TYPE A Cement Treated Base (4%)FOB:To be Delivered to job site as requested.Type A material must meet the requirements in Item 247, TXDOT Specifications.2000 TON$53.50$107,000.003Type D Grade 1 Cement Treated (4%) Recycled Crushed Concrete BaseFOB: To be Picked up by City Crews Crushed concrete containing gravel will be considered Type D materialThis product must meet the requirements 2014 TXDOT Specifications.8000 TON$36.00$288,000.004Type D Grade 1 Cement Treated (4%) Recycled Crushed Concrete BaseFOB: To be Delivered to job site as requested.Crushed concrete containing gravel will be considered Type D materialThis product must meet the requirements 2014 TXDOT Specifications.8000 TON$43.50$348,000.00Total Price $835,000.00Brazos Paving, Inc. Page 1Page 195 of 425 24-020 Brazos Paving, Inc. Prewitt Supplier Response Event Information Number:24-020 Title:Annual Price Agreement for Cement Treated Base Type:COCS - Invitation to Bid - Electronic Issue Date:12/6/2023 Deadline:1/4/2024 02:00 PM (CT) Notes:Bids are solicited for the "Annual Purchase Agreement of Cement Treated Base" with the following definitions, term and conditions of bidding. Vendor: Brazos Paving, Inc.24-020Page 1 of 3 pages Page 196 of 425 Brazos Paving, Inc. Information Contact:Billy Prewitt Address:PO Box 714 7601 W. Hwy 21 Bryan, TX 77806 Phone:(979) 822-7605 x109 Fax:(979) 823-2659 Email:b.prewitt@bpitx.com Web Address:bpitx.com By submitting your response, you certify that you are authorized to represent and bind your company. Billy Prewitt b.prewitt@bpitx.com Signature Email Submitted at 1/2/2024 02:58:44 PM (CT) Requested Attachments Submit Response 24-020 APA Cement Stab Rock- BPI Materials Bid.pdf only one PDF file Bid Lines 1 TYPE A Cement Treated Base (4%) FOB: To be Picked up by City Crews Type A material must meet the requirements in Item 247, TXDOT Specifications. Quantity:2000 UOM:TON Price:$46.00 Total:$92,000.00 2 TYPE A Cement Treated Base (4%) FOB: To be Delivered to job site as requested. Type A material must meet the requirements in Item 247, TXDOT Specifications. Quantity:2000 UOM:TON Price:$53.50 Total:$107,000.00 3 Type D Grade 1 Cement Treated (4%) Recycled Crushed Concrete Base FOB: To be Picked up by City Crews Crushed concrete containing gravel will be considered Type D material This product must meet the requirements 2014 TXDOT Specifications. Quantity:8000 UOM:TON Price:$36.00 Total:$288,000.00 Vendor: Brazos Paving, Inc.24-020Page 2 of 3 pages Page 197 of 425 4 Type D Grade 1 Cement Treated (4%) Recycled Crushed Concrete Base FOB: To be Delivered to job site as requested. Crushed concrete containing gravel will be considered Type D material This product must meet the requirements 2014 TXDOT Specifications. Quantity:8000 UOM:TON Price:$43.50 Total:$348,000.00 Response Total: $835,000.00 Vendor: Brazos Paving, Inc.24-020Page 3 of 3 pages Page 198 of 425 February 8, 2024 Item No. 7.7. Well #1, #2, and #3 Motor Control Center (MCC) Replacement Sponsor: Gary Mechler, Director of Water Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action on a construction contract with C.F. McDonald Electric, Inc. for the Well #1, #2, and #3 motor control centers replacement project for $1,329,469; plus the City’s contingency amount of $132,947; for a total appropriation of $1,462,416. Approval of this item grants authority for the City Manager to authorize expenditures up to the City’s contingency amount. Relationship to Strategic Goals: Core services and infrastructure. Recommendation(s): Staff recommends approval. Summary: The City of College Station owns and operates a well field that consists of ten (10) groundwater wells. Each wellsite includes City-owned motor control centers (MCCs), or large electrical devices that are used to regulate and monitor the operation of each water well. The existing MCCs at Wells #1, #2, and #3 are at the end of their useful service lives and require replacement to maintain reliability. This project consists of replacing the existing MCCs at Wells #1, #2, and #3 with new electrical distribution panel racks. Each electrical distribution panel rack will include necessary replacement equipment, a new concrete pad, canopy, and conduit duct banks. Budget & Financial Summary: A budget of $1,700,000 is included for this project in the Water Capital Improvement Projects Fund. A total of $77,565 has been expended or committed to date, leaving a balance of $1,622,435 for this contract and future expenses. Attachments: 1. Contract #24300243 Page 199 of 425 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 WA1800005 Wells 1 thru 3 Motor Control Center (MCC) Replacement McDonald Electric, Inc. 1,329,469.00 n n n A budget of $1,700,000 is included for this project in the Water Capital Improvement Projects Fund. $46,000 has been expended to date, leaving a balance of $1,654,000 for this contract and future expenses. A 10% contingency amount of $132,947.00. 01/11/24 BW BW N/A N/A N/A 24300243 24-013 1/5/2024 1/9/2024 1/9/2024 Page 200 of 425 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. One Million Three Hundred Twenty-Nine Four Hundred Sixty-Nine Page 201 of 425 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 202 of 425 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 203 of 425 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 204 of 425 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 205 of 425 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 206 of 425 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 207 of 425 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 208 of 425 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 209 of 425 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 210 of 425 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 211 of 425 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 212 of 425 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 213 of 425 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 214 of 425 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 215 of 425 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 216 of 425 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 217 of 425 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 218 of 425 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 219 of 425 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 220 of 425 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 221 of 425 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 222 of 425 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 223 of 425 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 224 of 425 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 225 of 425 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 226 of 425 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 227 of 425 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 228 of 425 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 229 of 425 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 230 of 425 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 231 of 425 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 232 of 425 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 233 of 425 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 234 of 425 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 235 of 425 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 236 of 425 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 237 of 425 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 238 of 425 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 239 of 425 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 40 List of Exhibits A.Wage Rates B.Performance & Payment Bonds C.Certificates of Insurance D.Plans & Specifications E.Construction Schedule F.Schedule of Values CITY OF COLLEGE STATION By: By: City Manager Printed Name: Date: ________________ Title: Date: APPROVED: City Attorney Date: ______________ Assistant City Manager/CFO Date: ______________ VP Special Projects 1/3/2024 Wayne Berkenmeier 1/9/2024 1/9/2024 Page 240 of 425 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT A DAVIS BACON WAGE RATES Page 241 of 425 "General Decision Number: TX20230007 01/06/2023 Superseded General Decision Number: TX20220007 State: Texas Construction Types: Heavy and Highway Counties: Atascosa, Bandera, Bastrop, Bell, Bexar, Brazos, Burleson, Caldwell, Comal, Coryell, Guadalupe, Hays, Kendall, Lampasas, McLennan, Medina, Robertson, Travis, Williamson and Wilson Counties in Texas. HEAVY (excluding tunnels and dams, not to be used for work on Sewage or Water Treatment Plants or Lift I Pump Stations in Bell, Coryell, Mcclennon and Williamson Counties) and HIGHWAY Construction Projects Note: Contracts subject to the Davis-Bacon Act are generally required to pay at least the applicable minimum wage rate required under Executive Order 14026 or Executive Order 13658. Please note that these Executive Orders apply to covered contracts entered into by the federal government that are subject to the Davis-Bacon Act itself, but do not apply to contracts subject only to the Davis-Bacon Related Acts, including those set forth at 29 CFR 5.1(a)(2)-(60). If the contract is entered into on or after January 30, 2022, or the contract is renewed or extended (e.g., an option is exercised) on or after January 30, 2022: If the contract was awarded on or between January 1, 2015 and January 29, 2022, and the contract is not renewed or extended on or after January 30, 2022: Executive Order 14026 generally applies to the contract. The contractor must pay all covered workers at least $16.20 per hour (or the applicable wage rate listed on this wage determination, if it is higher) for all hours spent performing on the contract in 2023. Executive Order 13658 generally applies to the contract. The contractor must pay all covered workers at least $12.15 per hour (or the applicable wage rate listed on this wage determination, if it is higher) for all hours spent performing on that contract in 2023. The applicable Executive Order minimum wage rate will be adjusted annually. If this contract is covered by one of the Executive Orders and a classification considered necessary for performance of work on the contract does not appear on this wage determination, the contractor must still submit a conformance request. Additional information on contractor requirements and worker protections under the Executive Orders is available at Page 242 of 425 http://www.dol.gov/whd/govcontracts. Modification Number 0 Publication Date 01/06/2023 SUTX2011-006 08/03/2011 CEMENT MASON/CONCRETE FINISHER (Paving and Rates Structures) •••••••••••••••••••••• $ 12. 56 ** ELECTRICIAN ••......•••......•••.. $ 26.35 FORM BUILDER/FORM SETTER Paving & Curb ••••••••••••••• $ 12.94 ** Structures ....•••......•••.. $ 12.87 ** LABORER Asphalt Raker ............... $ 12.12 ** Flagger ..................... $ 9.45 ** Laborer, Common ............. $ 10.50 ** Laborer, Utility ............ $ 12.27 ** Pipelayer ................... $ 12.79 ** Work Zone Barricade Servicer .................... $ 11. 85 ** PAINTER (Structures) ••••••••••••• $ 18.34 POWER EQUIPMENT OPERATOR: Agricultural Tractor •••••••• $ 12.69 ** Asphalt Distributor ••••••••• $ 15.55 ** Asphalt Paving Machine .•••.. $ 14.36 ** Boom Truck ....•••......•••.. $ 18.36 Broom or Sweeper •••••••••••• $ 11.04 ** Concrete Pavement Finishing Machine ........... $ 15.48 ** Crane, Hydraulic 80 tons or less ••••••••••••••••••••• $ 18.36 Crane, Lattice Boom 80 tons or less ................ $ 15.87 ** Crane, Lattice Boom over 80 tons ••••••••••••••••••••• $ 19.38 Crawler Tractor ............. $ 15.67 ** Directional Drilling Locator •......•••......•••.. $ 11.67 ** Directional Drilling Operator •••••••••••••••••••• $ 17. 24 Excavator 50,000 lbs or Less .•••......•••......•••.. $ 12.88 ** Excavator over 50,000 lbs ••• $ 17.71 Foundation Drill, Truck Mounted •......•••......•••.. $ 16. 93 Front End Loader, 3 CY or Less •••••••••••••••••••••••• $ 13 .04 ** Front End Loader, Over 3 CY.$ 13.21 ** Loader/Backhoe •••......•••.. $ 14.12 ** Mechanic ......•••......•••.. $ 17 .10 Milling Machine ••••••••••••• $ 14.18 ** Motor Grader, Fine Grade •••• $ 18.51 Motor Grader, Rough ....•••.. $ 14.63 ** Pavement Marking Machine ••.. $ 19.17 Reclaimer/Pulverizer ........ $ 12.88 ** Fringes Page 243 of 425 Roller, Asphalt ••......•••.. $ 12.78 ** Roller, Other .•••......•••.. $ 10.50 ** Scraper •......•••......•••.. $ 12.27 ** Spreader Box ..•••......•••.. $ 14.04 ** Trenching Machine, Heavy ••.. $ 18.48 Servicer ......................... $ 14. 51 ** Steel Worker Reinforcing ...•••......•••.. $ 14.00 ** Structural ....•••......•••.. $ 19.29 TRAFFIC SIGNALIZATION: Traffic Signal Installation Traffic Signal/Light Pole Worker ••......•••......•••.. $ 16.00 ** TRUCK DRIVER Lowboy-Float ................ $ 15.66 ** Off Road Hauler ............. $ 11.88 ** Single Axle ................. $ 11.79 ** Single or Tandem Axle Dump Truck ....................... $ 11.68 ** Tandem Axle Tractor w/Semi Trailer ..................... $ 12.81 ** WELDER ....•••......•••......•••.. $ 15.97 ** WELDERS -Receive rate prescribed for craft performing operation to which welding is incidental. ** Workers in this classification may be entitled to a higher minimum wage under Executive Order 14026 ($16.20) or 13658 ($12.15). Please see the Note at the top of the wage determination for more information. Note: Executive Order (EO) 13706, Establishing Paid Sick Leave for Federal Contractors applies to all contracts subject to the Davis-Bacon Act for which the contract is awarded (and any solicitation was issued) on or after January 1, 2017. If this contract is covered by the EO, the contractor must provide employees with 1 hour of paid sick leave for every 30 hours they work, up to 56 hours of paid sick leave each year. Employees must be permitted to use paid sick leave for their own illness, injury or other health-related needs, including preventive care; to assist a family member (or person who is like family to the employee) who is ill, injured, or has other health-related needs, including preventive care; or for reasons resulting from, or to assist a family member (or person who is like family to the employee) who is a victim of, domestic violence, sexual assault, or stalking. Additional information on contractor requirements and worker protections under the EO is available at https://www.dol.gov/agencies/whd/government-contracts. Unlisted classifications needed for work not included within the scope of the classifications listed may be added after award only as provided in the labor standards contract clauses (29CFR 5.5 (a) (1) (ii)). Page 244 of 425 The body of each wage determination lists the classification and wage rates that have been found to be prevailing for the cited type(s) of construction in the area covered by the wage determination. The classifications are listed in alphabetical order of ""identifiers"" that indicate whether the particular rate is a union rate (current union negotiated rate for local), a survey rate (weighted average rate) or a union average rate (weighted union average rate). Union Rate Identifiers A four letter classification abbreviation identifier enclosed in dotted lines beginning with characters other than ""SU"" or ""UAVG'"' denotes that the union classification and rate were prevailing for that classification in the survey. Example: PLUM0198-005 07/01/2014. PLUM is an abbreviation identifier of the union which prevailed in the survey for this classification, which in this example would be Plumbers. 0198 indicates the local union number or district council number where applicable, i.e., Plumbers Local 0198. The next number, 005 in the example, is an internal number used in processing the wage determination. 07/01/2014 is the effective date of the most current negotiated rate, which in this example is July 1, 2014. Union prevailing wage rates are updated to reflect all rate changes in the collective bargaining agreement {CBA) governing this classification and rate. Survey Rate Identifiers Classifications listed under the ""SU"" identifier indicate that no one rate prevailed for this classification in the survey and the published rate is derived by computing a weighted average rate based on all the rates reported in the survey for that classification. As this weighted average rate includes all rates reported in the survey, it may include both union and non-union rates. Example: SULA2012-007 5/13/2014. SU indicates the rates are survey rates based on a weighted average calculation of rates and are not majority rates. LA indicates the State of Louisiana. 2012 is the year of survey on which these classifications and rates are based. The next number, 007 in the example, is an internal number used in producing the wage determination. 5/13/2014 indicates the survey completion date for the classifications and rates under that identifier. Survey wage rates are not updated and remain in effect until a new survey is conducted. Union Average Rate Identifiers Classification(s) listed under the UAVG identifier indicate that no single majority rate prevailed for those classifications; however, 100% of the data reported for the classifications was union data. EXAMPLE: UAVG-OH-0010 08/29/2014. UAVG indicates that the rate is a weighted union average rate. OH indicates the state. The next number, 0010 in the example, is an internal number used in producing the wage determination. 08/29/2014 indicates the survey completion date for the classifications and rates under that identifier. A UAVG rate will be updated once a year, usually in January of each year, to reflect a weighted average of the current Page 245 of 425 negotiated/CHA rate of the union locals from which the rate is based. WAGE DETERMINATION APPEALS PROCESS 1.) Has there been an initial decision in the matter? This can be: * * * * an existing published wage determination a survey underlying a wage determination a Wage and Hour Division letter setting forth a position on a wage determination matter a conformance (additional classification and rate) ruling On survey related matters, initial contact, including requests for summaries of surveys, should be with the Wage and Hour National Office because National Office has responsibility for the Davis-Bacon survey program. If the response from this initial contact is not satisfactory, then the process described in 2.) and 3.) should be followed. With regard to any other matter not yet ripe for the formal process described here, initial contact should be with the Branch of Construction Wage Determinations. Write to: Branch of Construction Wage Determinations Wage and Hour Division U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 2.) If the answer to the question in 1.) is yes, then an interested party (those affected by the action) can request review and reconsideration from the Wage and Hour Administrator (See 29 CFR Part 1.8 and 29 CFR Part 7). Write to: Wage and Hour Administrator U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 The request should be accompanied by a full statement of the interested party's position and by any information (wage payment data, project description, area practice material, etc.) that the requester considers relevant to the issue. 3.) If the decision of the Administrator is not favorable, an interested party may appeal directly to the Administrative Review Board (formerly the Wage Appeals Board). Write to: Administrative Review Board U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 4.) All decisions by the Administrative Review Board are final. END OF GENERAL DECISIO" Page 246 of 425 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 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 247 of 425 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT B PERFORMANCE AND PAYMENT BONDS Page 248 of 425 THE STATE OF TEXAS THE COUNTY OF BRAZOS PERFORMANCE BOND Bond No. 100294378 § § § KNOW ALL MEN BY THESE PRESENTS: THAT WE, C.F. McDonald Electric Inc. , as Principal, hereinafter called "Contractor" and the other subscriber hereto Merchants Bonding Company (Mutual) , as Surety, do hereby acknowledge ourselves to be held and firmly bound to the City of College Station, a municipal corporation, in the sum of One Million Three Hundred Twenty-Nine Thousand Four Hundred Sixty-Nine and NO /100 Dollars($ 1,329,469.00 ) for the payment of which sum, well and truly to be made to the City of College Station and its successors, the said Contractor and Surety do bind themselves, their heirs, executors, administrators, successors, and assigns, jointly and severally. THE CONDITIONS OF THIS OBLIGATION ARE SUCH THAT: WHEREAS, the Contractor has on or about this day executed a Contract in writing with the City of College Station for ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ AS DESCRIBED IN ITB 24-013 Wells 1thru3 Motor Control Center CMCC) Replacement all of such Work to be done as set out in full in said Contract Documents therein referred to and adopted by the City Council, all of which are made a part of this instrument as fully and completely as if set out in full herein. NOW THEREFORE, if the said Contractor shall faithfully and strictly perform Contract in all its terms, provisions, and stipulations in accordance with its true meaning and effect, and in accordance with the Contract Documents referred to therein and shall comply strictly with each and every provision of the Contract, including all warranties and indemnities therein and with this bond, then this obligation shall become null and void and shall have no further force and effect; otherwise the same is to remain in full force and effect. It is further understood and agreed that the Surety does hereby relieve the City of College Station or its representatives from the exercise of any diligence whatever in securing compliance on the part of the Contractor with the terms of the Contract, including the making of payments thereunder and, having fully considered its Principal's competence to perform the Contract in the underwriting of this Performance Bond, the Surety hereby waives any notice to it of any default, or delay by the Contractor in the performance of his Contract and agrees that it, the Surety, shall be bound to take notice of and shall be held to have knowledge of all acts or omissions of the Contractor in all matters pertaining to the Contract. The Surety understands and agrees that the provision in the Contract that the City of College Station shall retain certain amounts due the Contractor until the expiration of thirty (30) days from the acceptance of the Work is intended for the City's benefit, and the City of College Station shall have the right to pay or withhold such retained amounts or any other amount owing under the Contract without changing or affecting the liability of the Surety hereon in any degree. It is further expressly agreed by Surety that the City of College Station or its representatives are at liberty at any time, without notice to the Surety, to make any change in the Contract Documents and in the Work to be Contract No. 24300243 Construction Agreement Over $50,000 Form 04-20-2023 Page 249 of 425 done thereunder, as provided in the Contract, and in the terms and conditions thereof, or to make any change in, addition to, or deduction from the Work to be done thereunder; and that such changes, if made, shall not in any way vitiate the obligation in this bond and undetiaking or release the Surety therefrom. Surety, for value received, stipulates and agrees that any change in Contract Time or Contract Sum shall not in anywise affect its obligation on this bond and it does hereby waive notice of any such change in Contract Time or Contract Sum. It is further expressly agreed and understood that the Contractor and Surety will fully indemnify and hold harmless the City of College Station from any liability, loss, cost, expense, or damage arising out of or in connection with the Work done by the Contractor under the Contract. In the event that the City of College Station shall bring any suit or other proceeding at law on the Contract or this bond or both, the Contractor and Surety agree to pay to the City the actual amounts of attorneys' fees incurred by the city in connection with such suit. This bond and all obligations created hereunder shall be performable in Brazos County, Texas. This bond is given in compliance with the provisions of Chapter 2253 of the Texas Government Code, as amended, which is incorporated herein by this reference. However, all of the express provisions hereof shall be applicable whether or not within the scope of said statute. Notices required or permitted hereunder shall be in writing and shall be deemed delivered when actually received or, if earlier, on the third day following deposit in a United State Postal Service post office or receptacle, with proper postage affixed (certified mail, return receipt requested), addressed to the respective other party at the address prescribed in the Contract Documents, or at such other address as the receiving party may hereafter prescribe by written notice to the sending party. A copy of surety agent's "Power of Attorney" must be attached hereto. IN WITNESS THEREOF, the said Contractor and Surety have signed and sealed this instrument on the respective dates written below their signatures and have attached current Power of Attorney. Contract No. 24300243 Construction Agreement Over $50,000 Form 04-20-2023 Page 250 of 425 Bond No. 100294378 FOR THE CONTRACTOR: ATTEST & SEAL: if a corporation) WITNESS: (if no a r ration) Name: Diane Dollar Title: Secretary/Treasurer Date: January 11 , 2024 FOR THE SURETY: ATTEST/WITNESS (SEAL) (SEAL) Bf: __ ~_·_· _______ _ Name: Todd Mohr Title: Witness Date: January 11, 2024 FOR THE CITY: REVIEWED: City Attorney C.F. McDonald Electric, Inc. (Name of Contracto Title: Vice President Special Projects Date: January 11, 2024 Merchants Bonding Company (Mutual) (Full Name of Surety) PO Box 14498 Des Moines, IA 50306-3498 (Address of Surety for Notice) By: L0oo_,_.~'. '..-J -~ ~1'1' <'· I , Name: Michael Maddux ',:__.._.~· .. ,___,_,-'-,_ Title: _A_t_to_r_ne~y~-i_n_-F_a_c_t _r--,..~_f --....,.--- '11 )( I I I I Date: __;J;...;;a.;.;..;n=u=ar'--Ly-'1'--'1.._, =-20=2;;;....4;___1 _ 11 _111_11 _11_11_1 _' __ THE FOREGOING BOND IS ACCEPTED ON BEHALF OF THE CITY OF COLLEGE STATION, TEXAS: City Manager NOTE: Date of bonds must be on or after the date of execution bv City. Contract No. 24300243 Construction Agreement Over $50,000 Form 04-20-2023 1/9/2024 Page 251 of 425 MERCHANTS 5L\_ BONDING COMPANY,. POWER OF ATTORNEY Know All Persons By These Presents, that MERCHANTS BONDING COMPANY (MUTUAL) and MERCHANTS NATIONAL BONDING, INC., both being corporations of the State of Iowa, d/b/a Merchants National Indemnity Company (in California only) (herein collectively called the "Companies") do hereby make, constitute and appoint, individually, C Tyler Smith; Chris Kolkhorst; Denise Raker; James R Reid; Michael Maddux; Ryan K Moss; Sandra Villegas; Stacie Clark their true and lawful Attorney(s)-in-Fact, to sign its name as surety(ies) and to execute, seal and acknowledge any and all bonds, undertakings, contracts and other written instruments in the nature thereof, on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law. This Power-of-Attorney is granted and is signed and sealed by facsimile under and by authority of the following By-Laws adopted by the Board of Directors of Merchants Bonding Company (Mutual) on April 23, 2011 and amended August 14, 2015 and adopted by the Board of Directors of Merchants National Bonding, Inc., on October 16, 2015. "The President, Secretary, Treasurer, or any Assistant Treasurer or any Assistant Secretary or any Vice President shall have power and authority to appoint Attorneys-in-Fact, and to authorize them to execute on behalf of the Company, and attach the seal of the Company thereto, bonds and undertakings, recognizances, contracts of indemnity and other writings obligatory in the nature thereof." "The signature of any authorized officer and the seal of the Company may be affixed by facsimile or electronic transmission to any Power of Attorney or Certification thereof authorizing the execution and delivery of any bond, undertaking, recognizance, or other suretyship obligations of the Company, and such signature and seal when so used shall have the same force and effect as though manually fixed." In connection with obligations in favor of the Florida Department of Transportation only, it is agreed that the power and aut hority hereby given to the Attorney-in-Fact includes any and all consents for the release of retained percentages and/or final estimates on engineering and construction contracts required by the State of Florida Department of Transportation. It is fully understood that consenting to the State of Florida Department of Transportation making payment of the final estimate to the Contractor and/or its assignee, shall not relieve this surety company of any of its obligations under its bond. In connection with obligations in favor of the Kentucky Department of Highways only, it is agreed that the power and authority hereby given to the Attorney-in-Fact cannot be modified or revoked unless prior written personal notice of such intent has been given to the Commissioner- Department of Highways of the Commonwealth of Kentucky at least thirty (30) days prior to the modification or revocation. In Witness Whereof, the Companies have caused this instrument to be signed and sealed this 1 Oth day of March , 2023 •••'""•••• • • • • • • • MERCHANTS BONDING COMPANY (MUTUAL) ····:....~\ON-41.····· •• \~G co;~·· ,.• ~"'·•"""'•· ~·· .··~~ ......... ;,,,o•. MERCHANTS NATIONAL BONDING, INC. lt,,; /o~P o~;,·· .. 0.... . ~·. (:> ~ p 011,,j. :?~ •• d/b/a MERCHANTS NATIONAL INDEMNITY COMPANY 51':'<:.J ~ .. ~-=:. •. (,) ........ ;..L. ~ •:iie:~ -o o~O· ·~:;;;: -o-ff'• • ;. .... \. 2003 . .:..,0; • .,,._, . ...... By p""' ~ ·-~.... ;.::;:t. '•.~''., .... ·, ,.•• o V1~• '.i<Y• E~i--li~ :~c 1933 °J~: ~ ~¥- • ~-"!11'' • ~:. • • ., .... h~ ........ 1 .... ~.· t •,v .......... ._'l~•· ~.v ,, Presiden ···~. i:i: .~··" • • • -¢! •• ....... ,... . ..... . STATE OF IOWA COUNTY OF DALLAS ss. On this 1oth day of March 2023 , before me appeared Larry Taylor, to me personally known, who being by me duly sworn did say that he is President of MERCHANTS BONDING COMPANY (MUTUAL) and MERCHANTS NATIONAL BONDING, INC.; and that the seals affixed to the foregoing instrument are the Corporate Seals of the Companies; and that the said Instrument was signed and sealed in behalf of the Companies by authority of their respective Boards of Directors. Kim lee Commission Number 702737 My Commission Ex!Xres April 14, 2024 (Expiration of notary's commission does not invalidate this instrument) ~Wu Notary Public I, William Warner, Jr., Secretary of MERCHANTS BONDING COMPANY (MUTUAL) and MERCHANTS NATIONAL BONDING, INC., do hereby certify that the above and foregoing is a true and correct copy of the POWER-OF-ATTORNEY executed by said Companies, which is still in full force and effect and has not been amended or revoked. In Witness Whereof, I have hereunto set my hand and affixed the seal of the Companies on this day of .,........ . ...... . ···~\ONA'•• •• \~G Co•. ··~l'-........ I.,;:.. .·..!t..~ ........ '4f,O• /"' ;:.:;:~PO/i~··~o\ :(Q~;.~ ~PO II~"-?_,,\ :1-.:.:t:,," -y;._.,~~ • .'(,) 7 ....... :~ • • ,,.. ,.,,,,. ~.. ..... • <-)•;;;: ff\• • =---:::: -o-'Cl!'-"': ..... :_ -o-.... :-..• ·CC· ·-· •:z:· ...... S::• :~: 2003 :~: • ,·.. 1933 .:<:::-. ~ ()\ .: .. 0: ·.~.,;. :.::;:t: ':, ~., .' ..'" • v1;. ·~v• •• ~·.. ..·~'•' • "'~ik· ···\~~. •.,., !tt···········:'l~·"" •• ~, ".it" ' •• .• #.. * ..... ~,. ......... . ......... ~~~~. Secretary POA 0018 (10/22) Page 252 of 425 MER CHAN~ BONDING COMPANY,. MERCHANTS BONDING COMPANY (MUTUAL)• MERCHANTS NATIONAL BONDING, INC. P.O. Box 14498. DES MOINES, IOWA 50306-3498. (800) 678-8171 . (515) 243-3854 FAX Please send all notices of claim on this bond to: Merchants Bonding Company (Mutual) I Merchants National Bonding, Inc. P.O. Box 14498 Des Moines, Iowa 50306-3498 (515) 243-8171 (800) 678-8171 Physical Address: 6700 Westown Parkway, West Des Moines, Iowa 50266 SUP 0073 TX (2/15) Page 253 of 425 ME RC HAN~ BONDING COMPANY,. MERCHANTS BONDING COMPANY (MUTUAL) P.O. Box 14498, DES MOINES, IOWA 50306-3498 PHONE: (800) 678-8171 FAX: (515) 243-3854 IMPORTANT NOTICE To obtain information or make a complaint: You may contact your insurance agent at the telephone number provided by your insurance agent. You may call Merchants Bonding Company (Mutual) toll-free telephone number for information or to make a complaint at: 1-800-678-8171 You may contact the Texas Department of Insurance to obtain information on companies, coverages, rights or complaints at: 1-800-252-3439 You may write the Texas Department of Insurance at: P. 0. Box 149104 Austin, TX 78714-9104 Fax: (512) 490-1007 Web: www.tdi.texas.gov E-mail: ConsumerProtection@tdi.texas.gov PREMIUM AND CLAIM DISPUTES: Should you have a dispute concerning your premium or about a claim you should contact the agent first. If the dispute is not resolved, you may contact the Texas Department of Insurance. ATTACH THIS NOTICE TO YOUR POLICY: This notice is for information only and does not become a part or condition of the attached document. SUP 0032 TX (2/15) Page 254 of 425 THE STATE OF TEXAS THE COUNTY OF BRAZOS TEXAS STATUTORY PAYMENT BOND Bond No. 100294378 § § § KNOW ALL MEN BY THESE PRESENTS: THAT WE, C.F. McDonald Electric Inc. , as Principal, hereinafter called "Principal" and the other subscriber hereto Merchants Bonding Company (Mutual) ' a corporation organized and existing under the laws of the State of IOWA , licensed to business in the State of Texas and admitted to write bonds, as Surety, herein after called "Surety", do hereby acknowledge ourselves to be held and firmly bound to the City of College Station, a municipal corporation, in the sum of ~O_n~e_M_il_li~o~n~T=h~re_e_H~u_n~dr~e~d_T_w~en~tv~-N~in~e~T~h~o~u~s~an_d~F~ou=r~H~u=nd=r~e~d~S~ix_ty~-N~in~e __________ and NO /100 Dollars ($ 1,329,469.00 ) for payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors and assigns jointly and severally. THE CONDITIONS OF THIS OBLIGATION ARE SUCH THAT: WHEREAS, Principal has entered into a certain contract with the City of College Station, dated the 11.!h_ day of January ,20.11__,for ______________________ ~ AS DESCRIBED IN ITB 24-013 Wells 1thru3 Motor Control Center CMCC) Replacement referred to and made a part hereof as fully and to the same extent as if copied at length herein. NOW THEREFORE, the condition of this obligation is such that if Principal shall pay all claimants supplying labor and material to him or a subcontractor in the prosecution of the Work provided for in said contract, then, this obligation shall be null and void; otherwise to remain in full force and effect; PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Chapter 2253 of the Texas Government Code and all liabilities on this bond shall be determined in accordance with the provisions, conditions and limitations of said Code to the same extent as if it were copied at length herein. Surety, for value received, stipulates and agrees that any change in Contract Time or Contract Sum shall not in anywise affect its obligation on this bond, and it does hereby waive notice of any such change in Contract Time or Contract Sum. A copy of surety agent's "Power of Attorney" must be attached hereto. IN WITNESS THEREOF, the said Principal and Surety have signed and sealed this instrument on the respective dates written below their signatures. Contract No. 24300243 Construction Agreement Over $50,000 Form 04-20-2023 Page 255 of 425 Bond No. 100294378 FOR THE CONTRACTOR: ATTEST & SEAL: (if a corporation) WITNESS: (if not a corporation) Name: Diane Dollar (SEAL) Title: __ S'""e"""c""'"re'""'ta"""r ..... v'-'/T-'-re.;;....;a""'s...c.;u.;...;re;_;_r ______ _ Date: January 11 , 2024 FOR THE SURETY: ATTEST/WITNESS (SEAL) By:~ Name: Todd Mohr Title: Witness Date: January 11, 2024 FOR THE CITY: REVIEWED: City Attorney C.F. McDonald Electric, Inc. Title: Vice President Special Projects ------~~--~---- Date: January 11, 2024 Merchants Bonding Company (Mutual) (Full Name of Surety) PO Box 14498 Des Moines, IA 50306-3498 (Address of Surety for Notice) By: -~---=----.:.."____,_ __ _ I Name: Michael Maddux Title: Attorney-in-Fact 1 , ., Date: January 11. 2024 THE FOREGOING BOND IS ACCEPTED ON BEHALF OF THE CITY OF COLLEGE STATION, TEXAS: City Manager NOTE: Date of bonds must be 011 or after tlte date of execution by City. Contract No. 24300243 Construction Agreement Over $50,000 Form 04-20-2023 1/9/2024 Page 256 of 425 MERCHANTS~ BONDING COMPANY,. POWER OF ATTORNEY Know All Persons By These Presents, that MERCHANTS BONDING COMPANY (MUTUAL) and MERCHANTS NATIONAL BONDING, INC., both being corporations of the State of Iowa, d/b/a Merchants National Indemnity Company (in California only) (herein collectively called the "Companies") do hereby make, constitute and appoint, individually, C Tyler Smith; Chris Kolkhorst; Denise Raker; James R Reid; Michael Maddux; Ryan K Moss; Sandra Villegas; Stacie Clark their true and lawful Attorney(s)-in-Fact, to sign its name as surety(ies) and to execute, seal and acknowledge any and all bonds, undertakings, contracts and other written instruments in the nature thereof, on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law. This Power-of-Attorney is granted and is signed and sealed by facsimile under and by authority of the following By-Laws adopted by the Board of Directors of Merchants Bonding Company (Mutual) on April 23, 2011 and amended August 14, 2015 and adopted by the Board of Directors of Merchants National Bonding, Inc., on October 16, 2015. "The President, Secretary, Treasurer, or any Assistant Treasurer or any Assistant Secretary or any Vice President shall have power and authority to appoint Attorneys-in-Fact, and to authorize them to execute on behalf of the Company, and attach the seal of the Company thereto, bonds and undertakings, recognizances, contracts of indemnity and other writings obligatory in the nature thereof." "The signature of any authorized officer and the seal of the Company may be affixed by facsimile or electronic transmission to any Power of Attorney or Certification thereof authorizing the execution and delivery of any bond, undertaking, recognizance, or other suretyship obligations of the Company, and such signature and seal when so used shall have the same force and effect as though manually fixed." In connection with obligations in favor of the Florida Department of Transportation only, it is agreed that the power and authority hereby given to the Attorney-in-Fact includes any and all consents for the release of retained percentages and/or final estimates on engineering and construction contracts required by the State of Florida Department of Transportation. It is fully understood that consenting to the State of Florida Department of Transportation making payment of the final estimate to the Contractor and/or its assignee, shall not relieve this surety company of any of its obligations under Its bond. In connection with obligations in favor of the Kentucky Department of Highways only, It is agreed that the power and authority hereby given to the Attorney-in-Fact cannot be modified or revoked unless prior written personal notice of such intent has been given to the Commissioner- Department of Highways of the Commonwealth of Kentucky at least thirty (30) days prior to the modification or revocation. In Witness Whereof, the Companies have caused this instrument to be signed and sealed this 10th day of March , 2023 STATE OF IOWA COUNTY OF DALLAS ss. ........ •• ,~G co;~·· .··~~ ......... :,,...o•. • ~~··~~PO/l,,;.,1'~·· • • ~ ..., ........ ;..c.. • Cl): :c: (1\ • • :~:--o-o:-.• • ,·.. 1933 ;~: ·.~.;., /,::;:t: 0 VJ;, •.•V• •. V,:;>ij,• • •• • • ''(:\-...• •• • {! •• ••••••• MERCHANTS BONDING COMPANY (MUTUAL) MERCHANTS NATIONAL BONDING, INC . d/b/a MERCHANTS NATIONAL INDEMNITY COMPANY By 67~ On this 10th day of March 2023 , before me appeared Larry Taylor, to me personally known, who being by me duly sworn did say that he is President of MERCHANTS BONDING COMPANY (MUTUAL) and MERCHANTS NATIONAL BONDING, INC.; and that the seals affixed to the foregoing instrument are the Corporate Seals of the Companies; and that the said instrument was signed and sealed in behalf of the Companies by authority of their respective Boards of Directors. "'~l'-1"l,9 Kim Lee o \j'. Commission Number 702737 "7:@ ':: My C.Ommission Ex,Xres Jowl' April 14, 2024 ~Chu Notary Public (Expiration of notary's commission does not invalidate this instrument) I, William Warner, Jr., Secretary of MERCHANTS BONDING COMPANY (MUTUAL) and MERCHANTS NATIONAL BONDING, INC., do hereby certify that the above and foregoing is a true and correct copy of the POWER-OF-ATTORNEY executed by said Companies, which is still in full force and effect and has not been amended or revoked. In Witness Whereof, I have hereunto set my hand and affixed the seal of the Companies on this day of ,......... . .... ,, .. ·····~-t.~~.~~~······ .. ~~\~~. £~4:0·· /~ ~·~~PO!f4"~o\ ..-~~.·~V.,PO/l;;·.1';•. :1-.:..:c:.i ~ .. ~~ • "" .. ~ ........ ;..c.. :;;e:~ -o-c,.~o: •1-:=: -o-~~--: ·<· ·-· •z:· .....,.,,.,. : ... : 2003 :;;z: .,·. 1933 : ..... :. .,,,,. •• : #.llli. : • """"-•• : c::-• • t.) •• ..~ .. ,,. • '"i:';:>. • ,::;:t. '!. ~·· .·'llri. : • ~:. .~,~. '• ~··,, •• ··~..,.• •. V.:if.'•, '"" •'i':\,-.. o ••• "' ........... ':>~·· • 'IV * ' .. ~.... '{;::( , .... t.~ •••••••••• ......... v~~,,,13. Secretary POA 0018 (10/22) Page 257 of 425 MER CHAN~ BONDING COMPANY," MERCHANTS BONDING COMPANY (MUTUAL) • MERCHANTS NATIONAL BONDING, INC. P.O. BOX 14498 ·DES MOINES, IOWA 50306-3498 · (800) 678-8171 · (515) 243-3854 FAX Please send all notices of claim on this bond to: Merchants Bonding Company (Mutual) I Merchants National Bonding, Inc. P.O. Box 14498 Des Moines, Iowa 50306-3498 (515) 243-8171 (800) 678-8171 Physical Address: 6700 Westown Parkway, West Des Moines, Iowa 50266 SUP 0073 TX (2/15) Page 258 of 425 ME RC HAN~ BONDING COMPANY,. MERCHANTS BONDING COMPANY (MUTUAL) P.O. Box 14498, DES MOINES, IOWA 50306-3498 PHONE: (800) 678-8171 FAX: (515) 243-3854 IMPORTANT NOTICE To obtain information or make a complaint: You may contact your insurance agent at the telephone number provided by your insurance agent. You may call Merchants Bonding Company (Mutual) toll-free telephone number for information or to make a complaint at: 1-800-678-8171 You may contact the Texas Department of Insurance to obtain information on companies, coverages, rights or complaints at: 1-800-252-3439 You may write the Texas Department of Insurance at: P. 0. Box 149104 Austin, TX 78714-9104 Fax: (512) 490-1007 Web: www.tdi.texas.gov E-mail: ConsumerProtection@tdi.texas.gov PREMIUM AND CLAIM DISPUTES: Should you have a dispute concerning your premium or about a claim you should contact the agent first. If the dispute is not resolved, you may contact the Texas Department of Insurance. ATTACH THIS NOTICE TO YOUR POLICY: This notice is for information only and does not become a part or condition of the attached document. SUP 0032 TX (2/15) Page 259 of 425 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT C CERTIFICATES OF INSURANCE AND ENDORSEMENTS Page 260 of 425 ACORD® CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DDNYYY) ~ 12/6/2023 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). PRODUCER ~2~~~cT Ashley Enrique Higginbotham Insurance Agency, Inc. r.~~N9n '""''' 817-349-2279 I iffc Nol: 817-34 7-6981 11700 Katy Freeway, Suite 1100 Houston TX 77079 ~~D'l{~ss: aenrique@him1inbotham.net INSURERISl AFFORDING COVERAGE NAIC# INSURER A: United Fire & Casualty Co. 13021 INSURED CFMCD INSURER B : The Travelers Property Casualty Comoanv Of 25674 McDonald Municipal & Industrial, INSURERC: Texas Mutual Insurance Company 22945 a Div. of C.F. McDonald Electric, Inc. 5044 Timber Creek Dr. INSURER D: Houston Casualtv Comoany 42374 Houston TX 77017-595 INSURER E: Westchester Surolus Lines Ins Co 10172 INSURERF: COVERAGES CERTIFICATE NUMBER: 529430678 REVISION NUMBER: 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. INSR TYPE OF INSURANCE ADDL SUBR ,~~M%MYY1 ,~~r6%M~, LIMITS LTR ,,.,~n lwun POLICY NUMBER A x COMMERCIAL GENERAL LIABILITY 85318281 4/1/2023 4/1/2024 EACH OCCURRENCE $1,000,000 -~ CLAIMS-MADE 0 OCCUR DAMAGE TO RENTED PREMISES IEa occurrence I $1,000,000 x $1000 Deductible MED EXP (Any one person) $5,000 -PERSONAL & ADV INJURY $1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERALAGGREGATE $2,000,000 R [K)PRO-[K]Loc PRODUCTS -COMP/OP AGG $2,000,000 POLICY JECT OTHER: $ A AUTOMOBILE LIABILITY 85318281 4/1/2023 -4/1/2024 ~OMBINED SINGLE LIMIT Ea accident\ $1,000,000 x ANY AUTO BODILY INJURY (Per person) $ --OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY (Per accident) $ x HIRED x NON-OWNED PROPERTY DAMAGE $ AUTOS ONLY AUTOS ONLY IPer accident\ -- $ B x UMBRELLA LIAB Fl OCCUR CUP2T41569323NF 4/1/2023 4/1/2024 EACH OCCURRENCE $10,000,000 - EXCESS LIAB CLAIMS-MADE AGGREGATE $10,000,000 OED I X I RETENTIONS in nnn PR/CO Oos Aag $10,000,000 c WORKERS COMPENSATION 0001303563 4/1/2023 4/1/2024 x I ~f~TUTE I I OTH-ER AND EMPLOYERS' LIABILITY YIN ANYPROPRIETOR/PARTNER/EXECUTIVE 0 N/A E.L. EACH ACCIDENT $1,000,000 OFFICER/MEMBER EXCLUDED? (Mandatory In NH) E.L. DISEASE -EA EMPLOYEE $1,000,000 If yes, describe under DESCRIPTION OF OPERATIONS below E.l. DISEASE -POLICY LIMIT $1,000,000 A UR Equipment/ lnstal. Floater 46308377 4/1/2023 4/1/2024 •see Below E Pollution Liability G27577313009 4/1/2023 4/1/2024 •see Below D Professional Liability HCC 23 68946 4/1/2023 4/1/2024 •see Below DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached If more space ls required) Coverages: Crime Policy Number: 105917903: Policy Term: 4/01/2023-04/01/2024 Single Loss Limit -$750,000; $5,000 Single Loss Retention Leased/Rented Equipment Policy Number: 46308377: $200,000 Per Item Limit; $1,000 Deductible Pollution Liability Policy Number: 827577313009: $10,000,000 Each Pollution Condition; $5,000 Deductible Professional Liability Policy Number: HCC2368946: $1,000,000 Each Claim; $1,000,000 Total of All Claims; $15,000 Deductible Per Claim See Attached ... CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. City of College Station 1101 Texas Ave S AUTHORIZED REPRESENTATIVE College Station TX 77840 9'~ I © 1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD Page 261 of 425 AGENCY CUSTOMER ID: _C_F_M_C_D _______________ _ LOC#: ______ _ ADDITIONAL REMARKS SCHEDULE Page of AGENCY NAMED INSURED Higginbotham Insurance Agency, Inc. McDonald Municipal & Industrial, a Div. of C.F. McDonald Electric, Inc. POLICY NUMBER 5044 Timber Creek Dr. Houston TX 77017-595 CARRIER I NAIC CODE EFFECTIVE DATE: ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE: CERTIFICATE OF LIABILITY INSURANCE The General Liability policy includes a blanket additional insured endorsement that provides additional insured status to the certificate holder only when there Is a written insured contract between the insured and certificate holder that requires such status. The General Liability policy includes a blanket waiver of subrogation endorsement that provides this feature only when there Is a written contract between the insured and the certificate holder that requires it. The General Liability policy Includes a primary and non-contributory provision only when there is a written contract between the insured and the certificate holder that requires such provision. The General Liability policy includes a blanket endorsement providing 30 days' notice of cancellation that provides this feature only when there is a written contract between the named insured and the certificate holder that requires it, except 10 days of nonpayment of premium. The General Liability policy includes a blanket additional insured endorsement, which includes Completed Operations and Ongoing Operations, that provides additional insured status to the certificate holder only when there is a written insured contract between the Insured and certificate holder that requires such status. The General Liability policy Includes Contractual Liability. The Commercial Automobile policy includes a blanket additional insured endorsement that provides additional insured status to the certificate holder only when there is a written insured contract between the insured and certificate holder that requires such status. The Commercial Automobile policy includes a blanket waiver of subrogation endorsement that provides this feature only when there is a written contract between the insured and the certificate holder that requires it. The Commercial Automobile policy includes a primary and non-contributory provision only when there is a written contract between the insured and the certificate holder that requires such provision. The Commercial Automobile policy includes a blanket endorsement providing 30 days' notice of cancellation that provides this feature only when there is a written contract between the named insured and the certificate holder that requires it, except 1 O days of nonpayment of premium. The Umbrella Liability policy is follow form on the General Liability, Automobile Liability and Employers' Liability policies. The Umbrella Liability policy includes a blanket endorsement providing 30 days' notice of cancellation that provides this feature only when there is a written contract between the named insured and the certificate holder that requires it, except 10 days of nonpayment of premium. The Workers Compensation policy includes a blanket waiver of subrogation endorsement that provides this feature only when there is a written contract between the insured and the certificate holder that requires it. The Workers Compensation policy includes a blanket endorsement providing 30 days' notice of cancellation that provides this feature only when there is a written contract between the named insured and the certificate holder that requires it, except 10 days of nonpayment of premium. The Workers Compensation policy Includes a United States Longshore and Harbor Workers' Compensation Act Coverage Endorsement. The Workers Compensation policy includes a Texas Maritime Coverage Endorsement. The Contractors Pollution Liability policy includes a blanket additional insured endorsement that provides additional insured status to the certificate holder only when there is a written insured contract between the insured and certificate holder that requires such status. The Contractors Pollution Liability policy includes a blanket additional insured endorsement, which shall be primary and non-contributory only when there is a written contract between the insured and the certificate holder that requires such provision. The Contractors Pollution Liability policy includes a blanket additional insured endorsement, which Includes Products-Completed Operations Hazard that provides additional insured status to the certificate holder only when there is a written insured contract between the insured and certificate holder that requires such status. The Contractors Pollution policy includes a includes a blanket waiver of subrogation endorsement that provides this feature only when there is a written contract between the insured and the certificate holder that requires it. RE: Wells 1thru3 Motor Control Center (MCC) Replacement; Bid Number 24-013, Project No. WA1800005 ACORD 101 (2008/01) © 2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD Page 262 of 425 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT D PLANS AND SPECIFICATIONS Page 263 of 425 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT E CONSTRUCTION SCHEDULE Page 264 of 425 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT F SCHEDULE OF VALUES Page 265 of 425 Date: 12 /12 /23 CONTRACTOR'S PROPOSAL AND ALTERNATES (if applicable) BID SUMMARY BID NO. 24-013 -----~M~cD~o_n_a...-ld...-M~u-n~1cipal and Industrial -A Division PROPOSAL FROM: of C. F. McDonald El ectric, Inc. PROPOSAL TO: City Of College Station 1101 Texas Ave. College Stati on, TX 77842 The Unders igned propos es t o furni sh a ll lab or, services, materials, t oo ls and necessary equipment for the constructi on/rehabilitation of the Wells 1 thrn 3 Motor Control Center (MCC) Replacement and to perform the w ork required fo r the construction/rehabilitatio n of said Wells 1 thru 3 M otor Co ntro l Center (MCC) Rep lacement Proj ect at the l ocatio n set out by the P l ans and Specifi catio ns, in strict accordance with t he Contract D ocuments. P lea se type or write leg ibly in blue or black ink. A unit price is r equired for all bid items. If there are discrepancies between unit prices and totals , the unit price will prevail. Please initial all conections and do not round totals. In submitting this Proposal, it is understood that this Proposal ·may not be altered or withdrawn for ninety (90) days , and that the Owner has reserved the right to reject any and all Proposals. The Undersigned certifies that this Proposal is made in good faith, without collusion or connection with any other person, persons, partnership, company, firm, association, or corporation offering Proposals on this work, for the following sum or prices to wit: B ASE PR OPOS AL : Stipulated Total Bid of: ($_1_,2_9_6,_46_9_.o_o _____ ~) Base Bid+ Alternate: ($_1_,3_2_9_,4_6_9._0_0 _____ _,) CALENDAR DAYS: Total number of calendar days to substantial completion is 600 days. RECEIPT OF ADDENDA None I hereby acknowledge receipt of the following Addenda: __________ _ McDonald Municipal and'-"'"" ..... ~vLrial -A Division CONTAACIDRN~E:_o_f_C_.F_._M_c_D~o~n~~-~--------~~~- CONTAACTOR SIGNATURE: ~-7"':~::---;-----:-------------~ Wayne Berkenmeier ITB 23-013 Well I thru 3 Page 19 of85 Motor Control Center Replacement Page 266 of 425 City of College Station Bid No. 24-013 Wells 1 thru 3 Motor Control Center Rep lace Bid Open ing; Tuesday, December 12, 2023 at 2:00PM CT The Undersigned proposes to furnish all labor, services, materials, tools, and necessary equipment for the Wells 1 t hrough 3 Motor Control Center (MCC) Replacement, and to perform t he work requ ired for the annual pric e agreement for sample testi ng as set out by the specifications, in strict accordance with the Contract Documents . Please t ype or write leg ibly in blue or black in k. A un it price is required for all bid items. If there are discrepancies between unit prices and totals, the unit price will prevail. Please initial all corrections and do not round t otals. Item No. Quanti ty Unit Item Description Unit Price Tota l GE NERAL Move-in and start-up , including performance and payment bonds for 100 1 1 LS percent (100%) of the contract amou nt and all necessary permits and $ 50,000.00 $ 50,000 .00 in suranc e req uirem ents. Water Well No. 1 Demolish and remove the ex isting Water Well No. 1 electrica l se rvice, Motor 2 1 LS Co ntrol Center, SCADA shack, Antenna Tower, and remaining equipment $ 10,000.00 $ 10,000.00 complete as specified and as shown on Con struction Drawings. Install proposed Water We ll No. 1 elect ri cal service, Motor Contro l Center, 3 1 LS Autosensory Panel , SSRV Enclosure, pull boxes, floodlight pol es, and rema ini ng $ 341,000.00 $ 341,000 .00 elect rica l work comp lete as specified and as shown on Construction Drawings . 4 1 LS Install proposed Water We ll No. 1 canopy structure complete as specifie d and as shown on Construction Drawings. $ 50,000.00 $ 50,000.00 Allowance for electric utility charge to re locate and in stal l new overhead 5 1 LS se rv ice for Water Well No. 1. Exact amount will be reimbursed to Co ntractor $ 15,000 .00 $ 15,000.00 upon submitta l of invoice from Utility Service Provid er. 6 1 LS Allowance for coordination and Arc Fla sh Hazard Ana ly sis per Section 16015, completed by Baird Gilroy & Dixo n, LLC. $ 5,000 .00 $ 5,000 .00 Water Well No. 2 Demolish and remove t he exist in g Wate r Well No. 2 ele ctrical ser vic e, Motor 6 1 LS Control Center, SCADA shack, Antenna Tower, and remai ning eq uipment $ 10,000.00 $ 10,000.00 complete as specified and as shown on Construction Drawings. Install proposed Water Well No . 2 electrical service, Motor Control Center, 7 1 LS Autosensory Panel , SSRV Enclosure, pull boxes , floodlight poles, and rema ining $ 34 1,000.00 $ 341,000.00 electrical wor k complete as specified and as shown on Con struction Drawings. 8 1 LS Install proposed Water Well No . 2 canopy structure complete as specified and as shown on Construction Drawings. $ 50,000 .00 $ 50 ,000 .00 Allowance for electric utility charge to relocate and in st all new overhead 9 1 LS service for Water Well No . 2. Exact amount will be reimbursed to Contractor $ 15,000.00 $ 15,000.00 upon submittal of invoice from Utility Service Provider. 10 1 LS Allowance for coordination and Arc Flash Hazard Analysis per Section 16015, completed by Baird Gilroy & Di xon, LLC. $ 5,000.00 $ 5,000.00 Water Well No. 3 Demolish and remove the exis ting Water Well No . 3 electrical service, Motor 11 1 LS Control Center, SCADA shack, and remaining equipment complete as specified $ 10,000.00 $ 10,000.00 and as shown on Construction Drawings . Install proposed Water Well No . 3 electrical service, Motor Control Center, 12 1 LS Autosensory Panel , SSRV Enclosure, pull boxes, floodlight poles, and remaining $ 339,469 .00 $ 339,469 .00 electrical work complete as specified and as shown on Construction Drawings . 13 1 LS Install proposed Water Well No . 3 canopy structure complete as specified and as shown on Construction Drawings. $ 50,000.00 $ 50,000 .00 14 1 LS Allowance for coordination and Arc Flash Hazard Analysis per Section 16015, $ 5,000 .00 $ 5,000 .00 completed by Baird Gilroy & Dixon, LLC. Total Base Bid ._I $ __________ -'1,_2_96....;.,_46_9_.o_o__,I Alternate Item No. Quantity Unit Item Description Unit Price Total GENERAL 1 LS Provide spare 600 HP Eaton S811 SSRV loose to Owner 33,000.00 33 ,000 .00 Total Base Bid +Alternate ._I $ ___________ 1_,_32_9_,4_6_9_.o_o_.I Total Number of Calendar Days to Substantial Completion ________ 6_0_0_d_a...;,.y_s _______ _ Page 267 of 425 February 8, 2024 Item No. 7.8. Rehabilitation of Water Well #5 & Carrizo Water Well #1 Sponsor: Gary Mechler, Director of Water Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action on a construction contract with Weisinger, Inc. for the Well #5 and Carrizo Well #1 Rehabilitation project for $1,457,830; plus the City’s contingency amount of $142,170; for a total appropriation of $1,600,000. Approval of this item grants authority for the City Manager to authorize expenditures up to the City’s contingency amount. Relationship to Strategic Goals: Core services and infrastructure. Recommendation(s): Staff recommends approval. Summary: The City of College Station owns and operates a well field that consists of ten (10) groundwater wells. As part of the Water Services Department’s asset management program, City- owned wells are rehabilitated on a recurring basis to improve production, reliability, and efficiency. Well rehabilitation generally includes the cleaning of well screens, replacing/lowering pumping equipment, and other necessary improvements. This contract includes the rehabilitation of City-owned Water Well #5 and the Carrizo Water Well #1. Alternative bid items 11-A, 12-A, 15-A, 16-A, 21-A, 22-A, 24-A, and 25-A are included in addition to the base bid. Budget & Financial Summary: Budget in the amount of $2,960,000 is included for this project in the Water Capital Improvement Projects Fund. A total of $1,352,709 has been expended or committed to date, leaving a balance of $1,607,291 for this contract and future expenses. Attachments: 1. Contract #24300289 Page 268 of 425 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 WA1877982 Rehabilitation of Water Well No. 5 and Carrizo Weisinger Inc. 1,457,830.00 n n n Budget in the amount of $2,960,000 is included for this project in the Water Capital Improvement Projects Fun. A total of $1,352,709 has been expended or committed to date, leaving a balance of $1,607,291 for this contract and future expenses. N/A 2/8/2024 BW BW N/A N/A N/A 24300289 24-010 1/26/2024 1/26/2024 1/26/2024 Page 269 of 425 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 270 of 425 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 271 of 425 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 272 of 425 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 273 of 425 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 274 of 425 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 275 of 425 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 276 of 425 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 277 of 425 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 278 of 425 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 279 of 425 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 280 of 425 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 281 of 425 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 282 of 425 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 283 of 425 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 284 of 425 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 285 of 425 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 286 of 425 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 287 of 425 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 288 of 425 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 289 of 425 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 290 of 425 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 291 of 425 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 292 of 425 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 293 of 425 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 294 of 425 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 295 of 425 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 296 of 425 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 297 of 425 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 298 of 425 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 299 of 425 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 300 of 425 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 301 of 425 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 302 of 425 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 303 of 425 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 304 of 425 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 305 of 425 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 306 of 425 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 307 of 425 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 308 of 425 Contract No.___________ Construction Agreement Over $50,000 Form 4-20-23 Page | 40 List of Exhibits A.Wage Rates B.Performance & Payment Bonds C.Certificates of Insurance D.Plans & Specifications E.Construction Schedule F.Schedule of Values CITY OF COLLEGE STATION By: By: City Manager Printed Name: Date: ________________ Title: Date: APPROVED: City Attorney Date: ______________ Assistant City Manager/CFO Date: ______________ Michael Weisinger 1/26/2024 Vice President 1/26/2024 1/26/2024 Page 309 of 425 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT A DAVIS BACON WAGE RATES Page 310 of 425 Page 311 of 425 Page 312 of 425 Page 313 of 425 Page 314 of 425 Page 315 of 425 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 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 316 of 425 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT B PERFORMANCE AND PAYMENT BONDS Page 317 of 425 Page 318 of 425 Page 319 of 425 1/26/2024Page 320 of 425 Page 321 of 425 Page 322 of 425 1/26/2024Page 323 of 425 Page 324 of 425 Page 325 of 425 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT C CERTIFICATES OF INSURANCE AND ENDORSEMENTS Page 326 of 425 Page 327 of 425 Page 328 of 425 Page 329 of 425 Page 330 of 425 Page 331 of 425 Page 332 of 425 Page 333 of 425 Page 334 of 425 Page 335 of 425 Page 336 of 425 Page 337 of 425 Page 338 of 425 Page 339 of 425 Page 340 of 425 Page 341 of 425 Page 342 of 425 Page 343 of 425 Page 344 of 425 Page 345 of 425 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT D PLANS AND SPECIFICATIONS Page 346 of 425 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT E CONSTRUCTION SCHEDULE Page 347 of 425 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT F SCHEDULE OF VALUES Page 348 of 425 SECTION 00410 BID FORM ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL PRICE BASE BID ITEMS A. GENERAL - WATER WELL NO. 5 & CARRIZO WATER WELL NO. 1 A-1 1 LS Water Well No. 5. - Contractor mobilization and demobilization and delivery of service rig and all equipment, materials and personnel to and from Contractor office / yard, subcontractors and job site, including bonds, insurance, etc. Complete as specified. $54,000 $54,000 A-2 1 LS Provide performance and payment bonds for Water Well No. 5 Rework.$15,000 $15,000 A-3 1 LS Carrizo Water Well No. 1. - Contractor mobilization and demobilization and delivery of service rig and all equipment, materials and personnel to and from Contractor office / yard, subcontractors and job site, including bonds, insurance, etc. Complete as specified. $37,000 $37,000 A-4 1 LS Provide performance and payment bonds for Carrizo Water Well No. 1 Rework.$10,000 $10,000 SUBTOTAL: A. GENERAL $$116,000 B. WATER WELL NO. 5 B-1 1 LS Conduct and submit a written test report and data for a well and well pumping equipment performance test at 3 pumping rates and discharge pressures to document the baseline field performance prior to beginning work. $1,000 $1,000 B-2 1 LS Remove and inspect existing well motor, well discharge head, pump column assembly (620 feet) and pump bowl, and provide written inspection reports, Complete as specified. $57,000 $57,000 CONTRACTOR'S PROPOSAL Rehabilitation of Water Well No. 5 and Carrizo Bid Opening Friday, December 15, 2023 at 2:00 p.m. CT BID NO. 24-010 The Undersigned proposes to furnish all labor, services, materials, tools, and necessary equipment for the annual price agreement for Rehabilitation of Water Well No. 5 and Carrizo, and to perform the work required for the annual price agreement for sample testing as set out by the specifications, in strict accordance with the Contract Documents. Please type or write legibly in blue or black ink. A unit price is required for all bid items. If there are discrepancies between unit prices and totals, the unit price will prevail. Please initial all corrections and do not round totals. 1/16/2024 00410 - 1 / 11 Page 349 of 425 SECTION 00410 BID FORM ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL PRICE B-3 3 EA Bail oil from the well and dispose of properly. Perform a well video survey of entire well depth interval and provide acceptable electronic copies, selected video images and written report of each video survey, Complete as specified. $3,100 $9,300 B-4 1 LS Furnish, install and remove appropriately sized steel tank(s) and temporary leak-proof discharge piping to convey water to discharge point at the well site during pumping, jetting or testing operations, plus restore land surface and grass to as good or better condition that existed prior to work, Complete as specified. $3,000 $3,000 B-5 40 HR Perform mechanical cleaning (wire brushing) of the 9-5/8 - inch well screens, 2,364 to 2,862 feet, 456 feet of screen, Complete as specified. $680 $27,200 B-6 30 HR Jet out and remove the fill material and sediment from the bottom of the well, Complete as specified. $865 $25,950 B-7 1 LS Perform chlorine treatment of 9-5/8 inch well screens by inserting and agitating chlorine into 9- 5/8 inch screens, 2,364 to 2,862 feet, 456 feet of screen, and jet out and neutralize chlorinated water from the well prior to discharge, Complete as specified. $25,000 $25,000 B-8 1 LS Perform acid treatment of 9-5/8 inch well screens using injection and agitation with a double disk surge block agitator with 15% Hydrochloric Acid with 1.5% QC-21, Napco 224 or Nu Well-310 liquid enhancer or approved equal and 2 pounds of Rodine 103 acid corrosion inhibitor or approved equal per 1,000 gallons of acid (all non-toxic for potable wells), 9-5/8 - inch screen interval 2,364 to 2,862 feet, 456 feet of screen, 2,300 gallons of HCL acid at minimum 5.0 gallons per foot of 9-5/8 - inch screen, Complete as specified. $25,000 $25,000 B-9 30 HR Perform airlift pumping, agitation with double disk surge block agitator, and neutralization of chemicals following chemical treatment, Complete as specified. $800 $24,000 1/16/2024 00410 - 2 / 11 Page 350 of 425 SECTION 00410 BID FORM ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL PRICE B-10 1 LS Perform sonar jetting of 9-5/8 inch screen interval 2,364 to 2,862 feet, Complete as specified. $10,000 $10,000 B-11 1 LS Furnish new vertical turbine, line shaft, permanent pump bowl with design conditions of 2,900 gpm at 485 feet of total dynamic head (TDH) with stainless steel pump bowl shaft and bowl coupling with stainless steel collets and wear rings with new 12-inch pump suction pipe (length of 10 feet or less) and new stainless steel cone strainer, Complete as specified. Pump submittal to include 3 pump options for the owner's consideration and approval. Pumps for submittal should be selected based on the each pump's future head - capacity performance and efficiency as static head increases over time. $62,000 $62,000 B-12 30 20-Foot Section Each Furnish 20-foot section of new 12-inch diameter ( 0.375-inch wall thickness) threaded column pipe, 2-3/16-inch diameter line shaft, 3-1/2- inch diameter oil tubing, bearings and couplings, Complete as specified. $5,900 $177,000 B-13 1 10-Foot Section Each Furnish 10-foot section of new 12-inch diameter (0.375-inch wall thickness) threaded column pipe, 2-3/16-inch diameter line shaft, 3-1/2- inch diameter oil tubing, bearings and couplings, Complete as specified. $3,245 $3,245 B-14 1 10-Foot Section Furnish 10-foot section of new 12-inch diameter (0.375-inch wall thickness) top special threaded column pipe, 2-3/16-inch diameter line shaft, 3- 1/2-inch diameter oil tubing, bearings and couplings, Complete as specified. $4,095 $4,095 B-15 1 LS Furnish and install a new 2-3/16-inch x 3-1/2- inch tension bearing, nut and plate assembly, Complete as specified. $2,900 $2,900 1/16/2024 00410 - 3 / 11 Page 351 of 425 SECTION 00410 BID FORM ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL PRICE B-16 31 EA Furnish new rubber tube stabilizer for 12-inch diameter column pipe and 3-1/2-inch diameter oil tubing, Complete as specified. $40 $1,240 B-17 620 FT Furnish 1/4-inch stainless steel PVC-wrapped airline and oil-filled pressure gauge, with all strapping material and fittings, Complete as specified. $5 $3,100 B-18 620 FT Furnish 1-1/4-inch PVC water-level measuring pipe, Complete as specified.$3 $1,860 B-19 1 LS Sandblast, steam clean, prime and paint (approved color) the existing fabricated steel well discharge head, Complete as specified. $2,000 $2,000 B-20 1 LS Recondition the existing 500 Hp electric well motor, including: electric motor inspection; steam clean, dip and bake the stator; rewind the motor stator (if needed and approved); lathe check the motor; replace the bearings; balance the motor; replace the sight glass, oil and heaters; assemble and test the motor at full voltage; include any and all required machine work; install a new combination drive shaft and gib keys; steam clean or sand blast, prime and paint the motor with a paint and paint color acceptable to the OWNER; and install the motor and make it operational, Complete as specified. $27,000 $27,000 B-21 1 LS Install permanent pump bowl at 620 feet, pump column assembly, airline, water-level pipe, well discharge head and electric motor and make all pump and motor equipment operational, Complete as specified. $52,000 $52,000 1/16/2024 00410 - 4 / 11 Page 352 of 425 SECTION 00410 BID FORM ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL PRICE B-22 1 LS Furnish and install a new lubricator with 3-gallon capacity reservoir, immersion heater and thermostat, solenoid and flow-regulating valve, Complete as specified. $5,000 $5,000 B-23 1 LS Chlorinate and disinfect the well pump and well and perform bacteriological sampling and analyses (require 3 negative bacteriological samples), Complete as specified. $9,000 $9,000 B-24 1 LS Perform well, pump and motor performance test with vibration test and provide written report, Complete as specified. $1,000 $1,000 B-25 1 LS Well site restoration to restore land surface and grass to as good or better condition than existed prior to work, Complete as specified. $2,500 $2,500 B-26 1 LS Provide a submittal stating the anticipated pumping rate of Well No. 5 based on the Well 5 field performance testing by the Contractor (Item B-1) and the pump performance information provided in Appendix D - Factory Test of City of College Station's Spare Pump. $500 $500 SUBTOTAL: B. WATER WELL NO. 5 $$561,890 C. CARRIZO WATER WELL NO. 1 C-1 1 LS Conduct and submit a written test report and data for a well and well pumping equipment performance test at 3 pumping rates and discharge pressures to document the baseline field performance prior to beginning work. $1,000 $1,000 C-2 1 LS Remove and inspect existing well motor, well discharge head, pump column assembly (500 feet) and pump bowl, and provide written inspection reports, Complete as specified $44,000 $44,000 C-3 3 EA Bail oil from the well and dispose of properly. Perform a well video survey of entire well depth interval and provide acceptable electronic copies, selected video images and written report of each video survey, Complete as specified. $3,100 $9,300 1/16/2024 00410 - 5 / 11 Page 353 of 425 SECTION 00410 BID FORM ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL PRICE C-4 1 LS Furnish, install and remove appropriately sized steel tank(s) and temporary leak-proof discharge piping to convey water to discharge point at the well site during pumping, jetting or testing operations, plus restore land surface and grass to as good or better condition that existed prior to work, Complete as specified. $3,900 $3,900 C-5 30 HR Perform mechanical cleaning (wire brushing) of the 10-inch well screens, est. 1,120 to 1,340 feet, 168 feet of screen, Complete as specified. $680 $20,400 C-6 30 HR Jet out and remove the fill material and sediment from the bottom of the well, Complete as specified. $865 $25,950 C-7 1 LS Perform chlorine treatment of 10-inch well screens by inserting and agitating chlorine into 10-inch screens, est. 1,120 to 1,340 feet, 168 feet of screen, and jet out and neutralize chlorinated water from the well prior to discharge, Complete as specified. $20,000 $20,000 C-8 1 LS Perform acid treatment of 10-inch well screens using injection and agitation with a double disk surge block agitator with 15% Hydrochloric Acid with 1.5% QC-21, Napco 224 or Nu Well-310 liquid enhancer or approved equal and 2 pounds of Rodine 103 acid corrosion inhibitor or approved equal per 1,000 gallons of acid (all non- toxic for potable wells), 10-inch screen interval est. 1,120 to 1,340 feet, 168 feet of screen, 850 gallons of HCL acid at minimum 5.0 gallons per foot of 10-inch screen, Complete as specified. $20,000 $20,000 C-9 25 HR Perform airlift pumping, agitation with double disk surge block agitator, and neutralization of chemicals following chemical treatment, Complete as specified. $800 $20,000 C-10 1 LS Perform sonar jetting of 10-inch screen interval est. 1,120 to 1,340 feet, Complete as specified.$15,000 $15,000 1/16/2024 00410 - 6 / 11 Page 354 of 425 SECTION 00410 BID FORM ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL PRICE C-11 1 LS Furnish new vertical turbine, line shaft, permanent pump bowl with design conditions of 1,000 gpm at 410 feet of total dynamic head (TDH) with stainless steel pump bowl shaft and bowl coupling with stainless steel collets and wear rings with new 8-inch pump suction pipe (length of 10 feet or less) and new stainless steel cone strainer, Complete as specified. Pump submittal to include 3 pump options for the owner's consideration and approval. Pumps for submittal should be selected based on each pump's future head - capacity performance and efficiency as static head increases over time. $37,000 $37,000 C-12 24 20-Foot Section Each Furnish 20-foot section of new 8-inch diameter (0.322-inch wall thickness) threaded column pipe, 1-11/16 - inch diameter line shaft, 2-1/2- inch diameter oil tubing, bearings and couplings, Complete as specified. $2,805 $67,320 C-13 1 10-Foot Section Each Furnish 10-foot section of new 8-inch diameter (0.322-inch wall thickness) threaded column pipe, 1-11/16 - inch diameter line shaft, 2-1/2- inch diameter oil tubing, bearings and couplings, Complete as specified. $1,530 $1,530 C-14 1 10-Foot Section Each Furnish 10-foot section of new 8-inch diameter (0.322-inch wall thickness) top special threaded column pipe, 1-11/16 - inch diameter line shaft, 2-1/2-inch diameter oil tubing, bearings and couplings, Complete as specified. $1,940 $1,940 C-15 1 LS Furnish and install a new 1-11/16 - inch x 2-1/2- inch tension bearing, nut and plate assembly, Complete as specified. $2,500 $2,500 C-16 25 EA Furnish new rubber tube stabilizer for 8-inch diameter column pipe and 2-1/2-inch diameter oil tubing, Complete as specified. $24 $600 C-17 500 FT Furnish 1/4-inch stainless steel PVC-wrapped airline and oil-filled pressure gauge, with all strapping material and fittings, Complete as specified. $5 $2,500 C-18 500 FT Furnish 1-1/4-inch PVC water-level measuring pipe, Complete as specified.$3 $1,500 C-19 1 LS Sandblast, steam clean, prime and paint (approved color) the existing fabricated steel well discharge head, Complete as specified. $2,000 $2,000 1/16/2024 00410 - 7 / 11 Page 355 of 425 SECTION 00410 BID FORM ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL PRICE C-20 1 LS Recondition the existing 150 Hp electric well motor, including: electric motor inspection; steam clean, dip and bake the stator; rewind the motor stator (if needed and approved); lathe check the motor; replace the bearings; balance the motor; replace the sight glass, oil and heaters; assemble and test the motor at full voltage; include any and all required machine work; install a new combination drive shaft and gib keys; steam clean or sand blast, prime and paint the motor with a paint and paint color acceptable to the OWNER; and install the motor and make it operational, Complete as specified. $12,000 $12,000 C-21 1 LS Install permanent pump bowl at 500 feet, pump column assembly, airline, water-level pipe, well discharge head and electric motor and make all pump and motor equipment operational, Complete as specified. $33,000 $33,000 C-22 1 LS Furnish and install a new lubricator with 3-gallon capacity reservoir, immersion heater and thermostat, solenoid and flow-regulating valve, Complete as specified. $5,000 $5,000 C-23 1 LS Chlorinate and disinfect the well pump and well and perform bacteriological sampling and analyses (require 3 negative bacteriological samples), Complete as specified. $9,000 $9,000 C-24 1 LS Perform well, pump and motor performance test with vibration test and provide written report, Complete as specified. $1,000 $1,000 C-25 1 LS Well site restoration to restore land surface and grass to as good or better condition than existed prior to work, Complete as specified. $2,500 $2,500 SUBTOTAL: C. CARRIZO WATER WELL NO. 1 $$358,940 TOTAL BASE BID AMOUNT (Subtotals A. + B. + C.)$$1,036,830 ADDITIVE ALTERNATE BID ITEMS WATER WELL NO. 5 ALTERNATES OR CARRIZO WATER WELL NO. 1 ALTERNATES 1-A 10 HR Contractor service rig, equipment & personnel rate, Complete, for time for additional work approved by the Owner for this project. $690 $6,900 2-A 50 GALS 15% Hydrochloric Acid and specified additives for acid volume more or less than specified in Item No. B-7 or C-7, Complete as specified. $10 $500 3-A 1 LS Sound the depth of the gravel pack outside the top of the existing 9-inch or 10-inch diameter blank liner, Complete as specified. $2,760 $2,760 4-A 15 FT3 If needed and approved, add gravel pack outside the top of the existing 9-inch or 10-inch diameter blank liner, Complete as specified. $1,000 $15,000 1/16/2024 00410 - 8 / 11 Page 356 of 425 SECTION 00410 BID FORM ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL PRICE 5-A 4 HR Perform specified, well specific capacity check test of well with the specified materials and equipment and provide written testing records and data, Complete as specified. $690 $2,760 6-A 1 LS Furnish, install and remove Contractor's minimum 1,000 gpm temporary test pump bowl, well pumping equipment and materials, Complete as specified. $62,000 $62,000 7-A 8 HR Perform specified, well pumping test with the temporary test pump bowl, equipment and materials and provide written testing records and data, Complete as specified. $690 $5,520 WATER WELL NO. 5 ALTERNATES 8-A 1 EA Furnish and install new cast iron pump bowl stage to meet final pump design conditions that are different than specified in Bid Item No. B-11, Complete as specified $3,850 $3,850 9-A 1 EA Furnish and install new ductile iron pump bowl stage to meet final pump design conditions that are different than specified in Bid Item No. B-11, Complete as specified. $4,715 $4,715 10-A 1 LS Machine holes in the existing well discharge head for the airline, water-level measuring pipe and any other accessories, Complete as specified. $1,000 $1,000 11-A 1 LS Furnish and install new coated fabricated steel discharge head with 4 lifting lugs and correct well discharge sized for Well No. 5 and machined holes for airline, PVC pipe and any other accessories, plus a short section of new discharge piping, expansion joint and/or flange(s) to connect the new head and existing piping, if needed, Complete as specified. $17,000 $17,000 12-A 1 LS Furnish and install new 500 Hp, WP-I, 1,770 rpm, 460 volt, 3-phase premium efficient electric well motor with new combination motor drive shaft and new head shaft nut and gib keys, and any necessary electrical wiring and connections, Complete as specified. $109,000 $109,000 13-A 1 LS If directed by the Owner, furnish, install and remove Contractor's minimum 2,500 gpm temporary pump bowl, temporary pumping equipment and materials with Contractor's minimum 450 Hp or 500 Hp temporary electric well motor and any electrical wiring and connections, disinfect the well, and make the well and temporary well pumping equipment operational for well pumping operations, Complete as specified. $99,980 $99,980 1/16/2024 00410 - 9 / 11 Page 357 of 425 SECTION 00410 BID FORM ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL PRICE 14-A 8 WK Rental of the Contractor's temporary pump bowl and temporary well pumping equipment and electric well motor in Bid Item No. 13-A, Complete as specified. $11,500 $92,000 15-A 1 LS If directed by the Owner based on the information in Bid Items B-1 and B-25, furnish and install the City's spare pump and furnish, install and remove the Contractor's temporary 500 Hp electric well motor and any necessary electrical wiring and connections, Complete as specified. $81,000 $81,000 16-A 8 WK Rental of the Contractor's temporary electric well motor in Bid Item No. 15-A, Complete as specified. $6,000 $48,000 CARRIZO WATER WELL NO. 1 ALTERNATES 17-A 1 EA Furnish and install new cast iron pump bowl stage to meet final pump design conditions that are different than specified in Bid Item No. C-11, Complete as specified $2,530 $2,530 18-A 1 EA Furnish and install new ductile iron pump bowl stage to meet final pump design conditions that are different than specified in Bid Item No. C-11, Complete as specified. $3,500 $3,500 19-A 1 LS Furnish and install new vertical turbine, line shaft, permanent pump bowl with design conditions of 1,200 gpm at 455 feet of total dynamic head (TDH) with stainless steel collets and wear rings with new 8-inch pump suction pipe (length of 10 feet or less) and new stainless steel cone strainer, Complete as specified. $54,000 $54,000 20-A 1 LS Machine holes in the existing well discharge head for the airline, water-level measuring pipe and any other accessories, Complete as specified. $1,000 $1,000 21-A 1 LS Furnish and install new fabricated steel well discharge head with 4 lifting lugs and correct discharge sized for Carrizo Well and machined holes for airline, PVC pipe and any other accessories, plus a short section of new discharge piping, expansion joint and/or flange(s) to connect the new head and existing piping, if needed, Complete as specified. $12,000 $12,000 22-A 1 LS Furnish and install new 150 Hp, WP-I, 1,770 rpm, 460 volt, 3-phase premium efficient electric well motor with new combination motor drive shaft and new head shaft nut and gib keys, and any necessary electrical wiring and connections, Complete as specified. $60,000 $60,000 1/16/2024 00410 - 10 / 11 Page 358 of 425 SECTION 00410 BID FORM ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL PRICE 23-A 1 LS Furnish and install new 200 Hp, WP-I, 1,770 rpm, 460 volt, 3-phase premium efficient electric well motor with new combination motor drive shaft and new head shaft nut and gib keys, and any necessary electrical wiring and connections, Complete as specified. $87,000 $87,000 24-A 1 LS If directed by the Owner, furnish, install and remove Contractor's minimum 1,000 gpm temporary pump bowl, temporary pumping equipment and materials with Contractor's 150 Hp temporary electric well motor and electrical wiring and connections, disinfect the well, and make the well and temporary well pumping equipment operational for well pumping operations, Complete as specified. $62,000 $62,000 25-A 8 WK Rental of the Contractor's temporary pump bowl and temporary well pumping equipment and electric well motor in Bid Item No. 24-A, Complete as specified. $4,000 $32,000 26-A 1 LS If directed by the Owner, furnish, install and remove Contractor's minimum 1,200 gpm temporary pump bowl, temporary pumping equipment and materials with Contractor's 200 Hp temporary electric well motor and electrical wiring and connections, disinfect the well, and make the well and temporary well pumping equipment operational for well pumping operations, Complete as specified. $62,000 $62,000 27-A 8 WK Rental of the Contractor's temporary pump bowl and temporary well pumping equipment and electric well motor in Bid Item No. 26-A, Complete as specified. $5,000 $40,000 TOTAL Alternate Items TOTAL BASE BID + Alternate Items AMOUNT Total calendar work days:120 days RECEIPT OF ADDENDA I hereby acknowledge receipt of the following Addenda: Per addendum #1 $2,004,845 $968,015 1/16/2024 00410 - 11 / 11 Page 359 of 425 February 8, 2024 Item No. 7.9. Annual Purchase of Auto Parts, Shop Equipment and Services Sponsor: Mary Ellen Leonard, Director of Fiscal Services Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action on annual purchases of auto parts, shop equipment and services from NAPA Auto Parts in the annual not-to-exceed $180,000. Relationship to Strategic Goals: Core Services and Infrastructure Financially Sustainable City Recommendation(s): Staff recommends approval to purchase various auto parts, shop equipment and related services from NAPA Auto Parts through the Purchasing Solutions Alliance (PSA) contract. The estimated annual expenditure of $180,000.00 is based on the average amount spent on automotive and truck parts since January 2022 and the anticipated needs for existing vehicles and new vehicles being added to inventory this fiscal year. Summary: NAPA Auto Parts is the local (College Station, TX) PSA contract dealer for auto parts, shop equipment and services. PSA is a purchasing cooperative for public agencies. All products and services available for purchase through PSA contracts have been competitively bid and awarded and satisfy any State law requirements relating to competitive bids or proposals. Contingent upon Council approval, a blanket contract will be issued for the term of February 8, 2024, through February 7, 2025. Budget & Financial Summary: Purchases of auto parts are made through an inventory account as budgeted and available in the Fleet Maintenance Funds. Charges are made to the various departments for vehicle maintenance based on the average annual cost for each piece of equipment. Attachments: 1. 20-201 2nd Amendment and Extension 2. Award_Letter_NAPA Page 360 of 425 PSA Contract No.20-201 Second Amendment 1 of 1 SECOND AMENDMENT TO PSA CONTRACT NO. 20-201 THIS SECOND AMENDMENT (this “Amendment”) TO CONTRACT NO. 20-201 (“Agreement”), dated as of March 9, 2022, is made by and between Purchasing Solutions Alliance, a purchasing cooperative for public agencies (“PSA”) and a program of Brazos Valley Council of Governments, having its principal place of business at 3991 East 29th Street, Bryan, Texas 77802 and Genuine Parts Company dba NAPA (the “Contractor”), having its principal place of business at 2999 Wildwood Parkway, Atlanta, Georgia 30339. WHEREAS, PSA and Contractor entered into that certain Contract No. 20-201, dated as of March 17, 2020 and extended the contract through March 16, 2023; and WHEREAS, PSA and Contractor again desire to extend the Agreement for one year. NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, and other good valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree to extend the Agreement through March 16, 2024. This is the final of two optional one-year extensions of the Agreement. IN WITNESS WHEREOF, the undersigned have executed this Second Amendment to Contract No. 20-201 as of the date first written above. CONTRACTOR: PSA: GENUINE PARTS COMPANY DBA NAPA PURCHASING SOLUTIONS ALLIANCE BRAZOS VALLEY COUNCIL OF GOVERNMENTS By: By: Name: Name: Title: Title: Date: Date: DocuSign Envelope ID: C44DEC92-8F01-4546-921C-79737CE0FDAC Vice President - Store Ops Excellence 3/10/2023 Jett Kuntz Michael Parks 3/9/2023 Executive Director Page 361 of 425 3991 East 29th St. Bryan, Texas 77802 Phone: 979.595.2801, Ext. 2035 www.psabuy.org March 24, 2020 Don Lachance Genuine Parts Company dba NAPA 2999 Wildwood Pkwy Atlanta, GA 30339 Dear Mr. Lachance, Purchasing Solutions Alliance (PSA), a cooperative purchasing program of the Brazos Valley Council of Governments (BVCOG) is pleased to announce that Genuine Parts Company dba NAPA has been awarded the contract for the following products and services, based on your proposal submitted to PSA in response to Request for Proposals (RFP) No. 20-201. ¾Products and Services Description: Automotive Parts and Services Notice is hereby given that Genuine Parts Company dba NAPA may commence with the publicity and marketing of the contract and sales of products and services effective March 24, 2020 under terms of our contract. It is with great pleasure that we continue to build our relationship with you as a supplier to PSA/BVCOG and member agencies of PSA. If you have any questions or concerns, please feel free to contact me at (979) 595-2801 ext. 2035, or by email susan.lightfoot@bvcog.org. Sincerely, Purchasing Solutions Alliance: Brazos Valley Council of Governments: a program of the Brazos Valley Council of Governments Susan Lightfoot, Program Manager Michael Parks, AICP, Deputy Executive Director Enclosures cc: Tom Wilkinson, Jr., Executive Director Procurement File         Page 362 of 425 February 8, 2024 Item No. 7.10. Annual Purchase of Emergency Response Vehicle Parts and Services Sponsor: Mary Ellen Leonard, Director of Fiscal Services Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action on an annual blanket purchase order for repair parts and repair labor for fire trucks from Siddons-Martin Emergency Group not to exceed $250,000. Relationship to Strategic Goals: Core Services and Infrastructure Finacially Sustainable City Recommendation(s): Staff recommends approval of an annual blanket purchase order to purchase various repair parts and services from Siddons-Martin Emergency Group through the BuyBoard Purchasing Cooperative. The estimated annual expenditure of $250,000.00 is based on the average amount spent on repair parts and services since January 2022 and the anticipated needs for existing vehicles and new vehicles being added to inventory this fiscal year. Summary: BuyBoard is a purchasing cooperative for public agencies. All products and services available for purchase through BuyBoard contracts have been competitively bid and awarded and satisfy any State law requirements relating to competitive bids or proposals. Contingent upon Council approval, a blanket purchase order will be issued for the term of February 8, 2024, through February 7, 2025. Budget & Financial Summary: Purchases of fire apparatus parts are made through an inventory account as budgeted and available in the Fleet Maintenance Funds. Charges are made to the Fire Department for fire apparatus vehicle maintenance and repairs based on the average annual cost for each piece of equipment. Attachments: 1. BuyBoard 651-21 Siddons Martin Emergency Group Page 363 of 425 Vendor Contract Information Summary Siddons-Martin Emergency Group, LLCVendor Name Jeffrey A. DoranContact 800-784-6806Phone Number jdoran@siddons-martin.comEmail www.siddons-martin.comWebsite 27-433590Federal ID YesAccepts RFQs 1362 East RicheyAddress Line 1 Houston Vendor City 77073Vendor Zip TXVendor State USAVendor Country 10Delivery Days FOB DestinationFreight Terms Net 30 daysPayment Terms Pre-paid and added to invoiceShipping Terms DrivenShip Via NoIs Designated Dealer YesEDGAR Forms Received NoService-Disabled Veteran Owned NoMinority Owned NoWomen Owned YesIs National YesNo Excluded Foreign Terrorist Orgs YesNo Israel Boycott Certificate NoIs MWBE All Texas RegionsRegions Served All StatesStates Served Fire Service Apparatus VehiclesContract Name 651-21Contract # 10/01/2021Effective Date 09/30/2024Expiration Date Vehicle purchase orders are subject to a $1500 service feeService Fee Note 651-21Quote Reference Number See Additional Dealers/Distributors for dealer listAdditional Dealers 12/31/2021 2:26 PM Page 364 of 425 Vendor Contract Information Summary 12/31/2021 2:26 PM Page 365 of 425 February 8, 2024 Item No. 7.11. Annual Auto & Truck Tire Purchases Sponsor: Mary Ellen Leonard, Director of Fiscal Services Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action on annual tire purchases and retread services from Southern Tire Mart, LLC not-to-exceed $310,000. Relationship to Strategic Goals: Core Services and Infrastructure Financially Sustainable City Recommendation(s): Staff recommends approval to purchase new tires and retread services from Southern Tire Mart, LLC through the BuyBoard Purchasing Cooperative contract. The estimated annual expenditure of $310,000.00 is based on the average amount spent on new tires and retread services since January 2022 and the anticipated needs for existing vehicles and new vehicles being added to inventory this fiscal year. Summary: Southern Tire Mart, LLC is BuyBoard’s contractor for the sale of new tires and retread services. BuyBoard is a purchasing cooperative for public agencies. All products and services available for purchase through BuyBoard contracts have been competitively bid and awarded. Purchasing products and services via BuyBoard contracts satisfies any requirement of State law relating to competitive bids or proposals. Contingent upon Council approval a blanket contract will be issued to Southern Tire Mart, LLC for the term of February 8, 2024 through February 7, 2025. Budget & Financial Summary: Funds are available and budgeted in the Fleet Maintenance fund which is funded by all other departments. Attachments: 1. BuyBoard 636-21 Southern Tire Mart Page 366 of 425 Vendor Contract Information Summary Southern Tire Mart, LLCVendor Name Richard ConwillContact 8777864681Phone Number gov-sales@stmtires.comEmail www.stmtires.comWebsite 06-1689011Federal ID YesAccepts RFQs 800 Highway 98Address Line 1 ColumbiaVendor City 39429Vendor Zip MSVendor State USAVendor Country 14Delivery Days FOB DestinationFreight Terms Net 30 daysPayment Terms Pre-paid and added to invoiceShipping Terms Comnpany TruckShip Via NoIs Designated Dealer YesEDGAR Forms Received NoService-Disabled Veteran Owned NoMinority Owned NoWomen Owned NCertificate Number NCertifying Agency YesIs National YesNo Excluded Foreign Terrorist Orgs YesNo Israel Boycott Certificate NoIs MWBE All Texas RegionsRegions Served Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, Nebraska, New Mexico, Oklahoma, Tennessee, Texas, Utah, Virginia States Served Tires, Tubes, Supplies and EquipmentContract Name 636-21Contract # 03/01/2021Effective Date 02/29/2024Expiration Date 12/31/2021 2:10 PM Page 367 of 425 Vendor Contract Information Summary Vehicle purchase orders are subject to a $100 service feeService Fee Note 636-21Quote Reference Number See attached.Return Policy See Additional Dealers/Distributors for dealer listAdditional Dealers 12/31/2021 2:10 PM Page 368 of 425 February 8, 2024 Item No. 7.12. Container Source Storage & Roll-Off Franchise Agreement Ordinance First Reading Sponsor: Emily Fisher, Director of Public Works Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action on the first reading of a franchise agreement ordinance with Container Source Storage & Roll-Off for the collection of recyclables from commercial businesses and multi-family locations. Relationship to Strategic Goals: 1. Core Services and Infrastructure Recommendation(s): Staff recommends approval of this franchise agreement ordinance. Summary: This item is an ordinance granting Container Source Storage & Roll-Off a non-exclusive franchise for the use of public streets, alleys, and public rights-of-ways within the city for the purpose of providing collection of demolition and construction debris, recyclables, and organic waste from commercial, industrial, and multi-family sites. This franchise agreement allows Container Source Storage & Roll-Off to collect and haul recyclables and construction and demolition debris from commercial, industrial, and multi-family sites. This standard agreement sets the franchise fee based on the contractors' monthly gross revenues, delivery revenues, and hauling revenues, as well as the percentage of aggregate recycling and composting. Contractors must provide the total number of customers and total tons landfilled quarterly but are not required to disclose specific sites that are utilizing recycling services. The term of this agreement is five years. If the second reading of this franchise agreement ordinance is approved, the city will have a total of eighteen (18) franchised haulers. This list can be found on the city’s website under Public Works. Budget & Financial Summary: N/A Attachments: 1. Franchise Agreement _ Vendor Signed Page 369 of 425 CONTRACT & AGREEMENT ROUTING FORM __Original(s) sent to CSO on _____ Scanned into Laserfiche on _________ ____Original(s) sent to Fiscal on ________ 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 __________________________________________ _________________________________ LEGAL DEPARTMENT DATE __________________________________________ _________________________________ ASST CITY MGR – CFO DATE APPROVED & EXECUTED __________________________________________ _________________________________ CITY MANAGER DATE __________________________________________ _________________________________ MAYOR (if applicable) DATE __________________________________________ _________________________________ CITY SECRETARY (if applicable) DATE 24300244 N/A N/A Recyclable Collection Franchise Agreement Container Source Storage & Roll-Off N/A n n n n n n N/A N/A N/A Two City Council readings required for this Franchise Agreement; scheduled for February 8, 2024 & February 22, 2024. N/A 2/8&2/22/24 TBD N/A N/A N/A 1/26/2024 1/29/2024 1/29/2024 Page 370 of 425 Contract No. 24300244 Recyclable Collection Franchise Ordinance Page 1 of 16 ORDINANCE NO. RECYCLABLES COLLECTION FRANCHISE AGREEMENT AN ORDINANCE GRANTING CONTRACTOR, CONTAINER SOURCE STORAGE AND ROLL-OFF, ITS SUCCESSORS AND ASSIGNS, A NON-EXCLUSIVE FRANCHISE FOR THE PRIVILEGE AND USE OF PUBLIC STREETS, ALLEYS, AND PUBLIC RIGHTS OF WAY WITHIN THE CORPORATE LIMITS OF THE CITY OF COLLEGE STATION (“CITY”) FOR THE PURPOSE OF PROVIDING COLLECTION OF DEMOLITION AND CONSTRUCTION DEBRIS, RECYCABLES, AND ORGANIC WASTE FROM COMMERCIAL, INDUSTRIAL, AND MULTI-FAMILY SITES; PRESCRIBING THE TERMS, CONDITIONS, OBLIGATIONS, AND LIMITATIONS UNDER WHICH SAID FRANCHISE SHALL BE EXERCISED; PROVIDING FOR THE CONSIDERATION; FOR THE PERIOD OF THE GRANT; FOR ASSIGNMENT; FOR THE METHOD OF ACCEPTANCE; FOR REPEAL OF CONFLICTING ORDINANCES; FOR PARTIAL INVALIDITY. WHEREAS, the City, by ordinance, exclusively provides all solid waste collection and disposal services for solid waste aggregated from within the City limits including, but not limited to Recyclables; and WHEREAS, the City pursuant to City Charter Article XI, may grant franchises to entities for use of public streets, alleys, and highways for collection of Solid Waste and Recyclables generated within the City limits; and WHEREAS, the City of College Station desires to exercise the Charter’s authority and grant a non-exclusive franchise to Contractor for collection of demolition and construction debris and other waste for disposal using roll off containers, and recyclable materials, and organic waste from multifamily and commercial locations for the purpose of recycling. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS, Page 371 of 425 Contract No. 24300244 Recyclable Collection Franchise Ordinance Page 2 of 16 Table of Contents Article I. Definitions ..................................................................................................................3 Article II. Grant of Authority and Acceptance ............................................................................4 Article III. Payment and Term ....................................................................................................4 Article IV. Access to Records & Reporting ................................................................................6 Article V. Rates to be Charged by Contractor .............................................................................6 Article VI. Appearance of Personnel and Equipment ..................................................................6 Article VII. Collection and Transport of Recyclables .................................................................7 Article VIII. Placement of Receptacles .......................................................................................7 Article IX. Service Complaints ...................................................................................................7 Article X. Disposal and Processing.............................................................................................8 Article XI. Violation and Penalty ...............................................................................................8 Article XII. Insurance .................................................................................................................8 Article XIII. Indemnification and Release ..................................................................................9 Article XIV. Disputes and Mediation .........................................................................................9 Article XV. General Terms ...................................................................................................... 10 Exhibit A. Schedule of Rates .................................................................................................... 13 Exhibit B. Insurance Requirements .......................................................................................... 14 I) Standard Insurance Policies Required: ............................................................................ 14 II) General Requirements Applicable to All Policies: .......................................................... 14 III) Commercial General Liability ..................................................................................... 14 IV) Business Automobile Liability .................................................................................... 15 V) Workers’ Compensation Insurance .............................................................................. 15 Exhibit C. Certificates of Insurance .......................................................................................... 16 Page 372 of 425 Contract No. 24300244 Recyclable Collection Franchise Ordinance Page 3 of 16 ARTICLE I. DEFINITIONS 1.1 Agreement means this Franchise Agreement adopted by City Ordinance between City and Contractor for the collection of Recyclables within the City limits. 1.2 Approved Customers means those designated premises located within the City that generate Recyclables. 1.3 Brazos Valley Solid Waste Management Agency, Inc. (BVSWMA, Inc.) means the permitted municipal solid waste landfill and compost facility owned and operated by a Texas local government corporation. 1.4 City Council or Council means the governing body of the City of College Station, Texas. 1.5 City means the City of College Station, a Texas Home Rule Municipal Corporation. 1.6 City's Representative means the Recycling & Environmental Compliance Manager or the Manager’s designated appointee. 1.7 Collection means the scheduled aggregation of Recyclables by Contractor. 1.8 Construction and Demolition Debris means buildings material waste resulting from demolition, remodeling, repairs, or construction, as well as materials discarded during periodic temporary facility clean-up generated within the City. 1.9 Contaminated means Recyclables mixed with solid waste or altered in a way that results in materials being unrecyclable or un-compostable. 1.10 Contractor means the Contractor franchised for the collection of Recyclables. 1.11 Customers means the locations designated by the City as a Commercial Business or Multifamily Residence. 1.12 Organic Waste means waste of biological origin recovered from the solid waste stream for the purposes of reuse, reclamation, or compost. Organic Waste is not solid waste, unless it is abandoned or disposed of, rather than reprocessed into another product. 1.13 Receptacle means a weatherproof container easily identifiable and designated for recycling or organic waste collection and shall not be made of any temporary materials. 1.14 Recyclables or Recyclable Materials mean materials, including construction and demolition debris recovered from the solid waste stream for the purpose of reuse or reclamation, a substantial portion of which are consistently used in the manufacture of products that may otherwise be produced using raw or virgin materials. Recyclable materials are not solid waste unless they are abandoned or disposed of as garbage rather than reprocessed into another product. Page 373 of 425 Contract No. 24300244 Recyclable Collection Franchise Ordinance Page 4 of 16 1.15 Residue means the materials regularly associated with and attached to Recyclables, as a part of the original packaging or usage of that material that is not recyclable or compostable. 1.16 Roll-Off / Compactor means a container of varying capacity used for Recyclables collection. 1.17 TAC means the Texas Administrative Code now and as amended. 1.18 TCEQ means the Texas Commission on Environmental Quality. ARTICLE II. GRANT OF AUTHORITY AND ACCEPTANCE 2.1 Non-Exclusive. City grants Contractor a non-exclusive franchise to operate and establish Recyclables collection from designated Customers. Nothing in this Agreement shall be construed as granting an exclusive franchise or right. City grants Contractor passage and rights-of-way on, along, and across City streets, highways, alleys, public places and all other real property for collecting demolition and construction debris, recyclables and organic waste from commercial, industrial, multifamily and residential construction sites for the purpose of disposal and/or recycling within the jurisdictional limits of the City. Contractor is expressly prohibited from collecting any recyclables from completed residences that are covered by the City’s residential single stream recycling contract and program. All collection, work, activity, and undertakings by Contractor are subject to this Agreement and City’s governmental and police powers. 2.2 Acceptance. By accepting this Agreement, Contractor represents it has, by careful examination, satisfied itself as to the nature and location of the services, character, quality, and quantity of services to be performed, the character of the equipment and facilities necessary to fulfill obligations under this Agreement, as well as the general and local conditions and all other matters affecting services performed under this Agreement. 2.3 Option to Market Materials. If City develops services or programs resulting in materials that may be recycled or composted, including but not limited to residential construction sites, multifamily, or commercial recycling or composting, the City shall have the option to market those to any contractor. 2.4 Contract with City. If City and Contractor contract for the collection and recycling or composting of materials, those terms will be incorporated into this Agreement by amendment. ARTICLE III. PAYMENT AND TERM 3.1 Franchise Fee. For and in consideration of the grant of the franchise herein, Contractor agrees and will pay a Franchise Fee during the term of this Agreement, a sum based on the following graduated fee schedule depending on the percentage of aggregate recycling or composting accomplished: Page 374 of 425 Contract No. 24300244 Recyclable Collection Franchise Ordinance Page 5 of 16 a. A fee is required, equivalent to five percent (5%) of Contractor's monthly gross revenues, delivery revenues, and hauling revenues; including rates as described in Exhibit A, generated from Contractor's provision of Recyclables collection services within the City if Contractor reports aggregate recycling or composting of at least sixty percent (60%) of Recyclables collected. b. A fee is required, equivalent to six and one half percent (6.5%) of Contractor's monthly gross revenues, delivery revenues, and hauling revenues; including rates as described in Exhibit A, generated from Contractor’s provision of Recyclables collection services within the City if Contractor reports aggregate recycling or composting of at least fifty-five percent (55%) but less than sixty percent (60%) of Recyclables collected. c. A fee is required, equivalent to eight percent (8%) of Contractor's monthly gross revenues, delivery revenues, and hauling revenues; including rates as described in Exhibit A, generated from Contractor’s provision of Recyclables collection services within the City if Contractor reports aggregate recycling or composting less than fifty-five percent (55%) of Recyclables collected. 3.2 Payments. Revenue received by Contractor from this Agreement is subject to the Franchise Fee and shall be computed into Contractor's monthly gross revenues, delivery revenues, hauling revenues, and rates, as described in Exhibit A. Payment will be paid quarterly to the City, and shall be due by the twentieth (20th) day of the month following the end of the previous calendar quarter. Payment after that date shall incur a ten percent (10%) late fee on the outstanding account balance under Article V. 3.3 Failure to Pay. Failure by Contractor to pay any amount due under this franchise constitutes a Failure to Perform under this contract and is subject to the provisions of Article XV. General Terms of this Agreement (Termination for Cause). 3.4 Franchise Fee Requirements. Payments must state on a form approved by the City: a. The number and type of Customers collected from, for the previous quarter, for Customers included in this Agreement. b. The total tons landfilled, recycled or composted, within the jurisdictional limits of the City, for the previous quarter. c. The total gross revenues for the previous calendar quarter, for revenues generated under this agreement. d. The total payment amount. 3.5 Term. The term of this Agreement shall be for a period of five (5) years, beginning on the date of acceptance and approval by City Council. Page 375 of 425 Contract No. 24300244 Recyclable Collection Franchise Ordinance Page 6 of 16 ARTICLE IV. ACCESS TO RECORDS & REPORTING 4.1 Facilities. The City shall have the right to inspect the Contractor’s facilities, equipment, personnel, and operations to ensure compliance with this Agreement. 4.2 Records. The City shall have the right to inspect Contractor’s records, receipts, and all documentation relating to the performance of this Agreement. Those records include, but are not limited to, information concerning the quality and quantity of Recyclables collected, processed, and sold; number of Customers served, gross amounts paid to and paid by Contractor from the sale/processing of Recyclables. The City agrees to notify the Contractor at least twenty-four (24) hours prior to such inspection of operations and/or records. 4.3 Records Retention. Contractor shall retain all records associated with this Agreement for a period of four (4) years. City shall have access to information regarding Contractor’s markets and prices paid for each type of material’s return/cost; all information obtained by City marked confidential or proprietary shall remain confidential or proprietary pursuant to the Texas Open Records Act. 4.4 Activity Report. Contractor shall provide a Monthly Recycling Activity Report, on a form approved by the City, summarizing the previous month’s collection. This report is due to the City’s Representative no later than the twentieth (20th) calendar day of each month. Contractor’s report shall include the following information: a. The Customer collection count, itemized by customer type. b. Total tonnage of materials collected, recycled, composted and/or landfilled, itemized by type of material, within the jurisdictional limits of the City. c. Any other information concerning the collections as required by the City’s Representative. ARTICLE V. RATES TO BE CHARGED BY CONTRACTOR 5.1 The Contractor shall follow the Schedule of Rates attached hereto as Exhibit A for the services described herein. The rates provided shall be kept current and made available to the City’s Representative within thirty (30) days of an adopted rate change. The Contractor agrees to use due diligence to keep costs from increasing. ARTICLE VI. APPEARANCE OF PERSONNEL AND EQUIPMENT 6.1 Equipment. Contractor shall ensure all collection equipment and vehicles are attractively painted, well maintained and are in good working condition. Equipment must be washed at least one time per week. Equipment and vehicles must have sufficient carrying capacity for safe and efficient collection. The City shall have the right to inspect and approve the appearance of collection equipment. A standby vehicle shall be available at all times for collection. Page 376 of 425 Contract No. 24300244 Recyclable Collection Franchise Ordinance Page 7 of 16 6.2 Signage. Contractor’s vehicles shall at all times be clearly labeled with Contractor’s name and phone number in visible letters and numbers not less than three (3) inches in height. Signage must be on both sides of the vehicle and placed in a conspicuous place. Only labeled vehicles shall perform collection activities under this Agreement. Contractor’s roll-offs, compactors, and receptacles must be clearly marked as used for collection in letters at least twelve inches (12”) in height on each side of the container. 6.3 Personnel. All collection personnel shall wear a City-approved uniform to include, at minimum, matching labeled shirts with denim jeans or other standard work attire. ARTICLE VII. COLLECTION AND TRANSPORT 7.1 Transport. The Contractor shall only transport collected materials for storage, processing, disposal, or other necessary handling to locations in a manner permitted by the terms of this Agreement as well as federal, state, and local law. This Agreement does not authorize Contractor to utilize the streets, alleys, and public ways to dispose of municipal solid waste or any other type of waste intended for disposal from any other project. 7.2 Cover. During transport of materials all vehicles shall be covered to prevent release of litter. ARTICLE VIII. PLACEMENT OF RECEPTACLES 8.1 Placement. All roll-offs, compactors, and receptacles placed in service shall be located in such a manner so as not to be a safety or traffic hazard. Under no circumstances shall Contractor place roll-offs, compactors, or receptacles on public streets, alleys, or thoroughfares without prior approval of the City’s Representative. City reserves the right to designate the exact location of any or all roll-offs, compactors, or containers placed in service in the City. 8.2 City Collection. Collections shall not interfere with the City’s collection of municipal solid waste. Under no circumstances shall contractor place roll-offs, compactors, or receptacles in existing enclosures designated for City roll-offs, compactors, and receptacles. ARTICLE IX. SERVICE COMPLAINTS 9.1 Nature of Complaint. Contractor shall handle directly any complaints pertaining to customer service, property damage, or personal injury from their commercial business and multifamily Recyclables collection service. 9.2 Intake. Contractor shall develop written practices and procedures for receiving and resolving Customer complaints and collection issues. Any complaint received by the City shall be forwarded to the Contractor within one (1) business day of receipt. Page 377 of 425 Contract No. 24300244 Recyclable Collection Franchise Ordinance Page 8 of 16 9.3 Response. Contractor shall respond to all complaints within one (1) business day of receiving a complaint from a Customer or notice of complaint from the City. Regardless of the nature of the complaint, Contractor shall report the action taken to the City in accordance with Article IV. Access to Records & Reporting. 9.4 Complaint Charges. Upon receipt of ten (10) Customer complaints within a forty-five (45) day period, Contractor shall be assessed a charge of Three Hundred Dollars ($300.00). Complaints are to be verified by the Contractor and the City’s Representative. The City shall invoice the Contractor such charges. ARTICLE X. DISPOSAL AND PROCESSING 10.1 Disposal Site. Unless approved otherwise in writing by the City, Contractor shall utilize BVSWMA, Inc. Landfill for the disposal of all non-recyclable waste material collected by Contractor within the corporate limits of the City. 10.2 Processing Facility. Contractor shall only use a City-approved recycling or composting facility for processing of all Recyclables collected by Contractor within the corporate limits of the City under this Agreement. ARTICLE XI. VIOLATION AND PENALTY 11.1 Fine. It shall be unlawful for any person, firm or corporation to violate any provision or term of this Agreement and they shall receive a citation and fine not to exceed $2,000.00 per offense per day. Each and every day a violation continues constitutes a separate offense. 11.2 Remedies. In addition to any rights set out elsewhere in this Agreement, or other rights the City may possess at law or equity, the City reserves the right to apply any remedies, alone or in combination, in the event Contractor violates any provision of this Agreement. The remedies provided for in this Agreement are cumulative and not exclusive; the exercise of one remedy shall not prevent the exercise of another, or any rights of the City at law or equity. ARTICLE XII. INSURANCE 12.1 The Contractor shall procure and maintain, at its sole cost and expense for the term 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 services performed by the Contractor, its agents, representatives, volunteers, employees, or subcontractors. 12.2 The Contractor's insurance shall list the City of College Station, its employees, agents, volunteers, and officials as additional insureds. Insurance requirements are attached in Exhibit B. Certificates of insurance evidencing the required insurance coverages are attached in Exhibit C. Page 378 of 425 Contract No. 24300244 Recyclable Collection Franchise Ordinance Page 9 of 16 ARTICLE XIII. INDEMNIFICATION AND RELEASE 13.1 Indemnification. Contractor shall indemnify, hold harmless, and defend the City, its officers, agents, volunteers, and employees from and against any and all claims, losses, damages, causes of action, suits, and liability of every kind, including all expenses of litigation, court costs, and attorney's fees, for injury to or death of any person or for damage to any property arising out of or in connection with the work and services done by the Contractor under this Agreement. Such indemnity shall apply regardless of whether the claims, losses, damages, causes of action, suits, or liability arise in whole or in part from the negligence of the City, any other party indemnified hereunder, the Contractor, or any third party. 13.2 Release. The Contractor assumes full responsibility for the work to be performed hereunder and hereby releases, relinquishes, and discharges the City, its officers, agents, volunteers, 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 and any loss of or damage to any property caused by, alleged to be caused by, arising out of, or in connection with the Contractor's work and services 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 regardless of whether such injury, death, loss, or damage was caused in whole or in part by the negligence of the City, any other party released hereunder, the Contractor, or any third party. ARTICLE XIV. DISPUTES AND MEDIATION 14.1 Disputes. If a dispute arises between City and Contractor during this Agreement, the dispute shall first be referred to the operational officers or representatives designated by the parties having oversight of the Agreement’s administration. The officers or representatives shall meet within thirty (30) days of either party’s request for a meeting, whichever request is first, and the parties shall make a good faith effort to achieve a resolution of the dispute. 14.2 Mediation. If the parties are not able to resolve the dispute under the procedure in this article, then the parties agree the matter shall be referred to non-binding mediation. The parties shall mutually agree upon a mediator to assist in resolving their differences. If the parties cannot agree upon a mediator, the parties shall jointly obtain a list of three (3) mediators from a reputable dispute resolution organization and alternate striking mediators on that list until one remains. A coin toss shall determine who may strike the first name. If a party fails to notify the other party of which mediator it has stricken within two (2) business days, the other party shall select the mediator from those mediators remaining on the list. The parties shall pay their own expenses of any mediation and will share the cost of the mediator’s services. 14.3 Other Remedies. If the parties fail to achieve a resolution of the dispute through mediation, either party may then pursue any available judicial remedies. Page 379 of 425 Contract No. 24300244 Recyclable Collection Franchise Ordinance Page 10 of 16 ARTICLE XV. GENERAL TERMS 15.1 Performance. Contractor, its employees, associates, or subcontractors shall perform all the services in a professional manner and be fully qualified and competent to perform those services. 15.2 Termination. a. For Convenience. At any time, the City or Contractor may terminate this Agreement for convenience, in writing with thirty (30) days’ written notice. City shall be compensated for outstanding Franchise Fees. b. For Cause. City may terminate this Agreement if Contractor materially breaches or otherwise fails to perform, comply with or otherwise observe any of the terms and conditions of this Agreement, or fails to maintain all required licenses and approvals from federal, state, and local jurisdictions, and fails to cure such breach or default within thirty (30) days of City providing Contractor written notice, or, if not reasonably capable of being cured within thirty (30) calendar days, within such other reasonable period of time upon which the parties may agree. c. Hearing. This Agreement shall not be terminated except upon a majority vote of the City Council, after giving reasonable notice to Contractor. The Contractor will have an opportunity to be heard, provided if exigent circumstances necessitate immediate termination, the hearing may be held as soon as possible after the termination. 15.3 Venue. This Contract has been made under and shall be governed by the laws of the State of Texas. The parties agree that performance and all matters related thereto shall be in Brazos County, Texas. 15.4 Amendment. This Agreement may only be amended by written instrument approved and executed by the parties. 15.5 Taxes. The City is tax exempt and is not responsible for the payment of any taxes. 15.6 Compliance with Laws. The Contractor will comply with all applicable federal, state, and local statutes, regulations, ordinances, and other laws, including but not limited to the Immigration Reform and Control (IRCA). The Contractor may not knowingly obtain the labor or services of an undocumented worker. The Contractor, not the City, must verify eligibility for employment as required by IRCA. 15.7 Waiver of Terms. No waiver or deferral by either party of any term or condition of this Contract shall be deemed or construed to be a waiver of deferral of any other term or condition or subsequent waiver or deferral of the same term or condition. Page 380 of 425 Contract No. 24300244 Recyclable Collection Franchise Ordinance Page 11 of 16 15.8 Assignment. This Agreement and the rights and obligations contained herein may not be assigned by the Contractor without the prior written approval of City. 15.9 Invalid Provisions. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court of competent jurisdiction finds that any provision of this Agreement is invalid or unenforceable, and if by limiting that provision, the Agreement may become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. 15.10 Entire Agreement. This Agreement represents the entire agreement between the City and Contractor and supersedes all prior negotiations, representations, or agreements, either written or oral. 15.11 Agree to Terms. The parties’ state they have read the terms and conditions of this Agreement and agree to the terms and conditions. Contractor shall evidence its unconditional written acceptance of all the terms and conditions of this Agreement by the execution of this Agreement. 15.12 Effective Date. According to City Charter, Section 105, after passage, approval and legal publication of this Agreement as provided by law, and provided it has been duly accepted by Contractor as herein above provided, this Agreement shall not take effect until sixty (60) days after its adoption on its second and final reading. 15.13 Notice. Any official notice under this Agreement will be sent to the following addresses: City of College Station Container Source Storage and Roll-Off Attn: Caroline Ask Attn: Dylan Dollar, Manager PO BOX 9960 12662 HWY 36 N College Station, TX 77842 Brenham, TX 77833 cask@cstx.gov sales@containersourceinc.com 15.14 List of Exhibits. All exhibits to this Agreement are incorporated and made part of this Agreement for all purposes. A. Schedule of Rates B. Insurance Requirements C. Certificates of Insurance 15.15 Public Meetings and Readings. This Agreement was passed, adopted and approved according to Texas Government Code Chapter 551. a. First Consideration & Approval on the 8 day of February, 2024. b. Second Consideration & Approval on the 22 day of February, 2024. Page 381 of 425 Contract No. 24300244 Recyclable Collection Franchise Ordinance Page 12 of 16 CONTAINER SOURCE STORAGEE CITY OF COLLEGE STATION AND ROLL-OFF By: By: Mayor Printed Name: Title: Owner/Member Date: ________________ Date: ATTEST: City Secretary Date: _____________ APPROVED: City Manager Date: _____________ City Attorney Date: _____________ Assistant City Manager/CFO Date: _____________ 1/26/2024 Dylan Dollar 1/29/2024 1/29/2024 Page 382 of 425 Contract No. 24300244 Recyclable Collection Franchise Ordinance Page 13 of 16 EXHIBIT A. SCHEDULE OF RATES I. Contractor’s base rate is below, and may increase, depending on a variety of conditions, including but not limited to: a. Location of Customer b. Impact on Existing Routes c. Ingress and Egress Capabilities d. Special Requests by Customers e. Frequency of Collections f. Volume of Materials g. Type of Materials h. External Contributing Conditions of Market Costs College Sta�on Roll-Off Rates 2024 20YD- $375 30YD- $425 40YD- $475 Each dumpster includes 3 tons of free disposal. Any debris over 3 tons will be an additional $30/ton. These prices also include 10 days. There will be a $5/day charge for each day over 10 days. Page 383 of 425 Contract No. 24300244 Recyclable Collection Franchise Ordinance Page 14 of 16 EXHIBIT B. INSURANCE REQUIREMENTS Throughout the term of this Agreement the Contractor must comply with the following: I. Standard Insurance Policies Required: a. Commercial General Liability b. Business Automobile Liability c. Workers' Compensation II. General Requirements Applicable to All Policies: a. Certificates of Insurance shall be prepared and executed by the insurance company or its authorized agent. b. Certificates of Insurance and endorsements shall be furnished on the most current State of Texas Department of Insurance-approved forms to the City's Representative at the time of execution of this Agreement; shall be attached to this Agreement as Exhibit C; and shall be approved by the City before work begins. c. Contractor shall be responsible for all deductibles on any policies obtained in compliance with this Agreement. Deductibles shall be listed on the Certificate of Insurance and are acceptable on a per-occurrence basis only. d. The City will accept only licensed Insurance Carriers authorized to do business in the State of Texas. e. The City will not accept "claims made" policies. f. Coverage shall not be suspended, canceled, non-renewed or reduced in limits of liability before thirty (30) days written notice has been given to the City. III. Commercial General Liability a. General Liability insurance shall be written by a carrier rated "A: VIII" or better under the current A. M. Best Key Rating Guide. b. Policies shall contain an endorsement listing the City as Additional Insured and further providing "primary and non-contributory" language with regard to self- insurance or any insurance the City may have or obtain. c. Limits of liability must be equal to or greater than $500,000 per occurrence for bodily injury and property damage, with an annual aggregate limit of $1,000,000. Limits shall be endorsed to be per project. d. No coverage shall be excluded from the standard policy without notification of individual exclusions being submitted for the City's review and acceptance e. The coverage shall include, but not be limited to the following: premises/operations with separate aggregate; independent contracts; products/completed operations; contractual liability (insuring the indemnity provided herein) Host Liquor Liability, and Personal & Advertising Liability. Page 384 of 425 Contract No. 24300244 Recyclable Collection Franchise Ordinance Page 15 of 16 IV. Business Automobile Liability a. Business Automobile Liability insurance shall be written by a carrier rated "A: VIII" or better under the current A. M. Best Key Rating Guide. b. Policies shall contain an endorsement listing the City as Additional Insured and further providing "primary and non-contributory" language with regard to self- insurance or any insurance the City may have or obtain c. Combined Single Limit of Liability not less than $1,000,000 per occurrence for bodily injury and property damage. d. The Business Auto Policy must show Symbol 1 in the Covered Autos Portion of the liability section in Item 2 of the declarations page e. The coverage shall include any autos, owned autos, leased or rented autos, non-owned autos, and hired autos. V. Workers’ Compensation Insurance a. Workers compensation insurance shall include the following terms: i. Employer's Liability minimum limits of liability not less than $500,000 for each accident/each disease/each employee are required ii. "Texas Waiver of Our Right to Recover From Others Endorsement, WC 42 03 04" shall be included in this policy iii. 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" Page 385 of 425 Contract No. 24300244 Recyclable Collection Franchise Ordinance Page 16 of 16 EXHIBIT C. CERTIFICATES OF INSURANCE Page 386 of 425 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 1/3/2024 (979) 836-3613 (979) 836-6990 14184 Container Source LLC 12662 HWY 36 N Brenham, TX 77833 A 1,000,000 ZK8506 9/20/2023 9/20/2024 100,000 10,000 1,000,000 2,000,000 2,000,000 500,000A ZK8506 9/20/2023 9/20/2024 1,000,000A ZK8506 9/20/2023 9/20/2024 1,000,000 Included: CA-9948R Pollution Liability - Broadened Coverage for Covered Autos - Business Auto and Motor Carrier Coverage Forms, CA-7274 Motor Carrier Endorsement, CU-7043 Pollution Exclusion - Autos, CA-7100 End. for motor carrier policies of insurance for public liability form MCS-90 Blanket endorsements included and applicable when agreed with named insured in written contract or agreement. Insurance is Primary & Non-Contributory (endorsement CG0001R) CG-7264 Waiver of Transfer of Rights of Recovery Against Others to Us-Automatic Status CG-2043R Additional Insured - Automatic Status SEE ATTACHED ACORD 101 City of College Station PO Box 9960 College Station, TX 77842 CONTSOU-01 SDRAEHN Wellmann Insurance Agency, Inc 103 E Academy St. Brenham, TX 77833 Stacie Draehn sdraehn@wellmanninsurance.com Acuity X X X X X X X X Page 387 of 425 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. Wellmann Insurance Agency, Inc CONTSOU-01 SEE PAGE 1 1 SEE PAGE 1 ACORD 25 Certificate of Liability Insurance 1 SEE P 1 Container Source LLC 12662 HWY 36 N Brenham, TX 77833 SEE PAGE 1 SDRAEHN 1 Description of Operations/Locations/Vehicles: CA-7214 Additional Insured Primary (auto) CU-7098 Additional Insured (umbrella) IL7002: 30 day Notice of Cancellation Endorsement is in favor of the certificate holder. Page 388 of 425 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 1/24/2024 (979) 307-7700 22945 Smith's Pro-tech Auto Repair LLC; Container Source LLC 601 Harvey Rd College Station, TX 77840-3453 A 0001302507 3/4/2023 3/4/2024 500,000 500,000 500,000 City of College Station 1101 Texas Ave College Station, TX 77840 SMITPRO-01 TSOUTH1 Rollo Insurance Group, Inc 1202 Amistad Loop College Station, TX 77845 jon.ellison@rolloinsurance.com Texas Mutual Insurance Company X Page 389 of 425 1 of 1 PO Box 12058, Austin, TX 78711-2058 texasmutual.com | (800) 859-5995 | Fax (800) 359-0650 WC 00 00 01 B Workers' Compensation and Employer's Liability Policy Information Page Insured copyNCCI Carrier Code: 29939 Item 1 Insured name and address SMITHS PRO TEC AUTO REPAIR LLC DBA: PRO-TECH AUTO REPAIR 601 HARVEY RD COLLEGE STATION TX 77840-3453 Other workplaces not shown above See Schedule of Operations attached. Policy number 0001302507 Federal tax ID Entity 813431479 LLC Interim adjustment Bureau no. Annual 421573492 Producer 14005 ROLLO INSURANCE GROUP INC 1500 EARL RUDDER FWY S COLLEGE STATION TX 77840-2677 Branch Houston Renewal of 0001302507 Item 2 The policy period is from:3/4/23 To:3/4/24 12:01 a.m. standard time at the insured's mailing address Item 3 A.Workers' Compensation Insurance: Part One of the policy applies to the Workers' Compensation Law of the states listed here: Texas B.Employers Liability Insurance: Part Two of the policy applies to work in each state listed in item 3A. The Limits of our Liability under Part Two are: Bodily Injury by Accident $500,000.00 Each Accident Bodily Injury by Disease $500,000.00 Policy Limit Bodily Injury by Disease $500,000.00 Each Employee C.Other States Insurance: Part Three of the policy applies to the states, if any, listed here: None D.This policy includes these endorsements and schedules: see Schedule of Endorsements attached. Item 4 The premium for this policy will be determined by our manuals of Rules, Classifications, Rates and Rating Plans. All information required below is subject to verification and change by audit. Payroll Premium Total payroll and estimated manual premium $451,986.00 $9,155.00 Description Factor Amount Waiver of Subrogation 183.00 Increased Limits Factor 500,000/500,000/500,000 0.011 101.00 Experience Modifier (850.00) Schedule Modifier 0.810 (1,632.00) Healthcare Network Option 0.120 (835.00) Premium Discount 0.017 (104.00) Expense Constant 150.00 Total estimated annual premium $6,168.00 Minimum premium $250.00 Issue date: 1/26/23 Countersigned by Includes copyright material of the National Council on Compensation Insurance, Inc. used with its permission ©Copyright 2023 National Council of Compensation Insurance, Inc. All rights reserved. WORKERS'COMPENSATION INSURANCE Page 390 of 425 Extension of Information PageWorkers' Compensation and Employer's Liability Policy Policy number Issue date Policy period 0001302507 1/26/23 3/4/23 to 3/4/24 Item 1: Insured Name Extended Insured copy This endorsement changes the policy to which it is attached effective on the inception date of the policy unless a different date is indicated below. (The following "attaching clause" need be completed only when this endorsement is issued subsequent to preparation of the policy.) This endorsement, effective on 3/4/23 at 12:01 a.m. standard time, forms a part of: Policy no. 0001302507 of Texas Mutual Insurance Company effective on 3/4/23 Issued to:SMITHS PRO TEC AUTO REPAIR LLC DBA:PRO-TECH AUTO REPAIR This is not a bill NCCI Carrier Code:29939 Authorized representative 1/26/23 1 of 1 PO Box 12058, Austin, TX 78711-2058 texasmutual.com | (800) 859-5995 | Fax (800) 359-0650 WC 00 00 01 B-NAME Additional named insured FEIN Entity CONTAINER SOURCE LLC 813082190 LLC WORKERS'COMPENSATION INSURANCE Page 391 of 425 Extension of Information PageWorkers' Compensation and Employer's Liability Policy Policy number Issue date Policy period 0001302507 1/26/23 3/4/23 to 3/4/24 Item 1: Locations Insured copy This endorsement changes the policy to which it is attached effective on the inception date of the policy unless a different date is indicated below. (The following "attaching clause" need be completed only when this endorsement is issued subsequent to preparation of the policy.) This endorsement, effective on 3/4/23 at 12:01 a.m. standard time, forms a part of: Policy no. 0001302507 of Texas Mutual Insurance Company effective on 3/4/23 Issued to:SMITHS PRO TEC AUTO REPAIR LLC DBA:PRO-TECH AUTO REPAIR This is not a bill NCCI Carrier Code:29939 Authorized representative 1/26/23 1 of 1 PO Box 12058, Austin, TX 78711-2058 texasmutual.com | (800) 859-5995 | Fax (800) 359-0650 WC 00 00 01 B-LOCS Location Address Effective Expires 00001 SMITHS PRO TEC AUTO REPAIR LLC 601 HARVEY RD COLLEGE STATION, TX 77840-3453 3/4/23 3/4/24 00002 SMITHS PRO TEC AUTO REPAIR LLC 101 WHISPER LN BRENHAM, TX 77833-1175 3/4/23 3/4/24 00003 SMITHS PRO TEC AUTO REPAIR LLC 12662 HIGHWAY 36 N BRENHAM, TX 77833-5780 3/4/23 3/4/24 j WORKERS'COMPENSATION INSURANCE Page 392 of 425 Schedule of OperationsWorkers' Compensation and Employer's Liability Policy Policy number Issue date Policy period 0001302507 1/26/23 3/4/23 to 3/4/24 Item 4: Premium Calculation Insured copy This endorsement changes the policy to which it is attached effective on the inception date of the policy unless a different date is indicated below. (The following "attaching clause" need be completed only when this endorsement is issued subsequent to preparation of the policy.) This endorsement, effective on 3/4/23 at 12:01 a.m. standard time, forms a part of: Policy no. 0001302507 of Texas Mutual Insurance Company effective on 3/4/23 Issued to:SMITHS PRO TEC AUTO REPAIR LLC DBA:PRO-TECH AUTO REPAIR This is not a bill NCCI Carrier Code:29939 Authorized representative 1/26/23 1 of 1 PO Box 12058, Austin, TX 78711-2058 texasmutual.com | (800) 859-5995 | Fax (800) 359-0650 WC 00 00 01 B-CALC Class codes for primary named insured State Location Code Classification Premium basis total estimated annual remuneration Rate per $100 of remuneration Estimated annual premium 3/4/23 to 3/4/24 42 00001 8107 Brass or Copper Dealer-Wholesale-& Drivers 251,612.00 2.420 6,089.00 42 00001 8391 Automobile Repair Shop & Parts Department Employees, Drivers 200,374.00 1.530 3,066.00 42 00002 8391 Automobile Repair Shop & Parts Department Employees, Drivers If any 1.530 0.00 42 00003 8391 Automobile Repair Shop & Parts Department Employees, Drivers If any 1.530 0.00 Estimated manual premium $9,155.00 0930 Blanket Waiver: ALL TEXAS OPERATIONS 03/04/2023 - 03/04/2024 0.020 183.00 9807 Increased Limits Factor 500,000/500,000/500,000 0.011 101.00 9898 Experience Modifier of 0.91 0.910 (850.00) 9887 Schedule Modifier 0.810 (1,632.00) 9874 Healthcare Network Option 0.120 (835.00) 0063 Premium Discount 0.017 (104.00) 0900 Expense Constant 1.000 150.00 Total payroll and Texas total premium $451,986.00 $6,168.00 WORKERS'COMPENSATION INSURANCE Page 393 of 425 February 8, 2024 Item No. 8.1. Southside Historic District Street Signs Sponsor: Barbara Moore, Assistant to the City Manager Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action on Southside Historic District Street Signs. Relationship to Strategic Goals: Neighborhood Integrity Recommendation(s): Council receive presentation on Southside Historic District Street Signs Summary: Representatives from the Southside neighborhood are raising funds to purchase new Maroon street signs that celebrate the neighborhood's 100th anniversary. Budget & Financial Summary: N/A Attachments: None Page 394 of 425 February 8, 2024 Item No. 8.2. Update from the College Station Police Department Sponsor: Billy Couch Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action on an update from the College Station Police Department. Relationship to Strategic Goals: - Good Governance Recommendation(s): Receive the report and provide feedback. Summary: Update on calendar year 2023 operations and activities for the College Station Police Department. Budget & Financial Summary: None. Attachments: None Page 395 of 425 February 8, 2024 Item No. 8.3. Update from the College Station Fire Department Sponsor: Richard Mann, Chief of Fire and Emergency Services Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action on an update from the College Station Fire Department. Relationship to Strategic Goals: - Good Governance Recommendation(s): Receive the report and provide feedback. Summary: Update on calendar year 2023 operations and activities for the College Station Fire Department. Budget & Financial Summary: None. Attachments: None Page 396 of 425 February 8, 2024 Item No. 9.1. PUE Abandonment - 2425 Harvey Mitchell Parkway S Sponsor: Lindsey Pressler Reviewed By CBC: N/A Agenda Caption: Public Hearing, presentation, discussion, and possible action regarding an ordinance vacating and abandoning a 0.126 acre portion of a 15-foot wide Public Utility Easement located in Lot 3, Block 1 of Waters Edge Subdivision, according to the plat recorded in Volume 18474, page 262 of the Official Public Records of Brazos County, Texas. Relationship to Strategic Goals: • Core Services and Infrastructure • Diverse Growing Economy Recommendation(s): Staff recommends approval of the abandonment. Summary: The public utility easement abandonment is being requested by the applicant as a result of further development of the area. The originally dedicated easement was intended for utilities extending through the property. A new easement on the eastern side of the lot has been dedicated for this purpose. The abandonment will not prevent utility access for the rear tract. The public utility easement is 15-feet-wide, extending 365 feet northeast from near Harvey Mitchell onto the 1.41 acre lot. Budget & Financial Summary: N/A Attachments: 1. Abandonment Ordinance 2. Exhibit A 3. Vicinity Map 4. Location Map 5. Abandonment Application Page 397 of 425 Ordinance Form 8-14-17 ORDINANCE NO. _________________ AN ORDINANCE MAKING CERTAIN AFFIRMATIVE FINDINGS AND VACATING AND ABANDONING A 0.126 ACRE PORTION OF A 15 FOOT WIDE PUBLIC UTILITY EASEMENT, SAID PORTION LYING IN LOT 3, BLOCK 1 OF THE WATERS EDGE SUBDIVISION, ACCORDING TO THE PLAT RECORDED IN VOLUME 18474, PAGE 262 OF THE OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY, TEXAS. WHEREAS, the City of College Station, Texas, has received an application for the vacation and abandonment of a 0.126 acre portion of a 15 foot wide Public Utility Easement, said portion lying in Lot 3, Block 1 of Waters Edge Subdivision, according to the plat recorded in Volume 18474, Page 262 of the Official Public Records of Brazos County, Texas, as described in Exhibit “A”, attached hereto (such portion hereinafter referred to as the “Public Utility Easement”); and WHEREAS, in order for the Public Utility Easement to be vacated and abandoned by the City Council of the City of College Station, Texas, the City Council must make certain affirmative findings; now therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS: PART 1:That after opening and closing a public hearing, the City Council finds the following pertaining to the vacating and abandoning of the Public Utility Easement described in Exhibit “A” attached hereto and made a part of this ordinance for all purposes. 1.Abandonment of the Public Utility Easement will not result in property that does not have access to public roadways or utilities. 2.There is no public need or use for the Public Utility Easement. 3.There is no anticipated future public need or use for the Public Utility Easement. 4.Abandonment of the Public Utility Easement will not impact access for all public utilities to serve current and future customers. PART 2:That the Public Utility Easement as described in Exhibit “A” be abandoned and vacated by the City. Page 398 of 425 ORDINANCE NO. ____________ Page 2 of 5 Ordinance Form 8-14-17 PASSED, ADOPTED and APPROVED this 8th day of February, 2024. ATTEST: APPROVED: _____________________________ _____________________________ City Secretary Mayor APPROVED: _______________________________ City Attorney Page 399 of 425 ORDINANCE NO. ____________ Page 3 of 5 Ordinance Form 8-14-17 Exhibit A Page 400 of 425 ORDINANCE NO. ____________ Page 4 of 5 Ordinance Form 8-14-17 Page 401 of 425 ORDINANCE NO. ____________ Page 5 of 5 Ordinance Form 8-14-17 Page 402 of 425 Page 403 of 425 Page 404 of 425 Page 405 of 425 Page 406 of 425 Page 407 of 425 Page 408 of 425 Page 409 of 425 Page 410 of 425 Application for Abandonment of a Public Right-of-Way/Easement Location: EXHIBIT NO. 1 Attached is a sealed copy of the metes and bounds description of the public right-of-way/easement situated in Addition/Subdivision to the City of College Station, Brazos County, Texas, sought to be abandoned. 3/18 Page 4 of 8 2425 Harvey Mitchell Pkwy S College Station TX 77845 WATERS EDGE, BLOCK 1, LOT 3, ACRES: 1.41 Page 411 of 425 Page 412 of 425 Page 413 of 425 Page 414 of 425 EXHIBIT NO. 2 Attached is a copy of a plat or detailed sketch of the public right-of-way/easement sought to be abandoned in the above- mentioned application, showing the surrounding area to the nearest streets in all directions, abutting lots, the block or blocks in which the portion of the public right-of-way/easement sought to be vacated is situated, and the addition or subdivision in which the portion of the public right-of-way/easement sought to be abandoned is situated. Also, the names of record owners of the abutting lots are shown. Application for Abandonment of a Public Right-of-Way/Easement Location: 3/18 Page 5 of 8 2425 Harvey Mitchell Pkwy S College Station TX 77845 Page 415 of 425 Page 416 of 425 Page 417 of 425 EXHIBIT NO. 3 The undersigned public utility companies, using or entitled to use, under the terms and provisions of our respective franchises with the City of College Station, that portion of the public right-of-way/utility easement sought to be abandoned in the Application for Abandonment above referred to, do hereby consent to the abandonment of the described portion thereof. ATMOS ENERGY By: Title: Application for Abandonment of a Public Right-of-Way/Easement Location: VERIZON TELEPHONE COMPANY By: Title: SUDDENLINK COMMUNICATIONS By: Title: BRYAN TEXAS UTILITIES By: Title: 3/18 Page 6 of 8 2425 Harvey Mitchell Pkwy S College Station TX 77845 Page 418 of 425 Page 419 of 425 EXHIBIT NO. 3 The undersigned public utility companies, using or entitled to use, under the terms and provisions of our respective franchises with the City of College Station, that portion of the public right-of-way/utility easement sought to be abandoned in the Application for Abandonment above referred to, do hereby consent to the abandonment of the described portion thereof. ATMOS ENERGY By: Title: Application for Abandonment of a Public Right-of-Way/Easement Location: VERIZON TELEPHONE COMPANY By: Title: SUDDENLINK COMMUNICATIONS By: Title: BRYAN TEXAS UTILITIES By: Title: 3/18 Page 6 of 8 2425 Harvey Mitchell Pkwy S College Station TX 77845 David Hering Electrical Engineering Manager AN TEXAS UTILITIES David Hering Page 420 of 425 X Public Works Director City of College Station Application for Abandonment of a Public Right-of-Way / Easement Location: 2425 Harvey Mitchell Pkwy S College Station TX 77845 EXHIBIT NO.4 The undersigned, City staff of the City of College Station, certify that they have carefully considered the Application for Abandonment of the public right-of-way/easement referred to above the standpoint of City of College Station ordinances and with respect to recent and future needs of the City of College Station and see no objection to the requested abandonment from the City’s standpoint. X City Engineer City of College Station X Building Official City of College Station X Zoning Official City of College Station X Fire Marshal City of College Station X Elecrtic Department City of College Station X Water Services Department City of College Station Page 421 of 425 EXHIBIT NO. 5 The undersigned, owners of property abutting upon that portion of the public right-of-way/easement named and described in the Application for Abandonment of a Public Right-of-Way/Easement referred to above, do hereby consent to such abandonment. NAME: ADDRESS: Application for Abandonment of a Public Right-of-Way/Easement Location: NAME: ADDRESS: NAME: ADDRESS: NAME: ADDRESS: 3/18 Page 8 of 8 2425 Harvey Mitchell Pkwy S College Station TX 77845 Print Form Page 422 of 425 Application for Abandonment of a Public Right-of-Way/Easement Location:2425 Harvey MitcnellPkwy SCollege Station TX7845 EXHIBIT NO.5 The undersigned,owners of property abutting upon that portion of the public right-of-way/easement named and described in the Application for Abandonment of a Public Right-of-Way/Easement referred to above,do hereby consent to such abandonment. NAME: ADDRESS:Shan Rajan ,manager Whitworth.Financial,Ine - Zool §.College Aw,Bryan TX 77 Gol NAME: ADDRESS: NAME: ADDRESS: NAME: ADDRESS: 318 Page 8 of 8 a eS es Page 423 of 425 February 8, 2024 Item No. 9.2. Parks Board Appointments Sponsor: Tanya Smith, City Secretary Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action regarding an appointment to the Parks and Recreation Board. Relationship to Strategic Goals: • Good Governance Recommendation(s): None Summary: Scott Shafer serves on the Park and Recreation Board but once he learned he was appointed to the Planning and Zoning Commission, Mr. Shafer felt it was best to resign from the Parks Board as he assumed the new role of Planning and Zoning. Mr. Shafer's term would have expired in 2026, leaving a 2-year unexpired term. Budget & Financial Summary: N/A Attachments: None Page 424 of 425 February 8, 2024 Item No. 12.1. 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 425 of 425