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04/11/2024 - 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# April 11, 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. 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. b. City of College Station v. 47 Oaks, LLC, Cause No. 626-CC, in the County Court at Law No. 2 of Brazos County, Texas. c. 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. d. Cynthia Hopkins & Geoffry Hopkins v. City of College Station, Cause No. 23-002880-CV-85 in the 85th District Court, Brazos County Texas. e. CBL & Associates Management, Inc. v. City of College Station, Cause No. 23-003159-CV-85 In The 85th District Court, Brazos County Texas. f. 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. g. 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 Page 1 of 309 City Council Page 2 April 11, 2024 No. 1 of Brazos County, Texas. h. Legal advice related to Local Government Code Chapter 145 Financial Statements. 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 2.3. Real Estate {Gov't Code Section 551.072}; Possible action. The City Council may deliberate the purchase, exchange, lease or value of real property if deliberation in an open meeting would have a detrimental effect on the position of the City in negotiations with a third person. After executive session discussion, any final action or vote taken will be in public. The following subject(s) may be discussed: a. Approximately 12 acres of land in the College Station Business Center at the intersection of Gateway Boulevard and State Highway 6. b. Property generally located in the area of FM 60, Boyett Street, Church Avenue, and College Main Street. 3. The Open Meeting will Reconvene No Earlier than 6:00 PM from Executive Session and City Council will take action, if any. 4. Pledge of Allegiance, Invocation, and Consider Absence Request. Speaker Protocol An individual who desires to address the City Council regarding any agenda item other than those items posted for Executive Session must register with the City Secretary two (2) hours before the meeting being called to order. Individuals shall register to speak or provide written comments at https://forms.cstx.gov/Forms/CSCouncil or provide a name and phone number by calling 979-764- 3500. Upon being called to speak an individual must state their name and city of residence, including the state of residence if the city is located out of state. Speakers are encouraged to identify their College Station neighborhood or geographic location. Please do not carry purses, briefcases, backpacks, liquids, foods or any other object other than papers or personal electronic communication devices to the lectern, nor advance past the lectern unless you are invited to do so. Comments should not personally attack other speakers, Council or staff. Each speaker’s remarks are limited to three (3) minutes. Any speaker addressing the Council using a translator may speak for six (6) minutes. The speaker’s microphone will mute when the allotted time expires and the speaker must leave the podium. 5. Hear Visitors. During Hear Visitors an individual may address the City Council on any item which does not appear on the posted agenda. The City Council will listen and receive the information presented by the speaker, ask staff to look into the matter, or place the issue on a future agenda. Topics of operational concern shall be directed to the City Manager. 6. Consent Agenda. Presentation, discussion, and possible action on consent items which consist of ministerial or "housekeeping" items as allowed by law. A Councilmember may request additional information at this time. Any Councilmember may remove an item from Consent for discussion or a separate vote. Page 2 of 309 City Council Page 3 April 11, 2024 6.1. Presentation, discussion, and possible action of minutes for: • March 28, 2024 Council Meeting Sponsors: Tanya Smith Attachments: 1. CCM032824 DRAFT Minutes 6.2. Presentation, discussion, and possible action regarding a deductive change order with Johnson & Pace, Inc. for a credit of $106,017.72 for the design of the Fleet Fuel System Rehabilitation Project. Sponsors: Jennifer Cain Attachments: 1. Fleet Fuel Johnson and Pace Change Order 2 6.3. Presentation, discussion, and possible action on a construction contract with Elliot Construction, LLC. for the Well Field Collection Line Rehabilitation Phase One project for $864,440 plus the City’s contingency amount of $85,560 for a total appropriation of $950,000. 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 is on file with the City Secretary's Office. 6.4. Presentation, discussion, and possible action regarding a professional services contract with The Arkitex Studio, Inc. for $245,300 for the CSU Office/Lab Building Project. Sponsors: Jennifer Cain Attachments: 1. Arkitex Studios Contract for CSU Building Design Vendor Signed 7.Workshop Agenda. 7.1. Presentation, discussion, and possible action regarding proposed updates to the City’s Drought Contingency and Water Conservation Plans. Sponsors: Gary Mechler Attachments: None 7.2. Presentation, discussion, and possible action regarding the annual traffic contact report required by Senate Bill 1074 of the Texas 77th legislative session. Sponsors: Billy Couch Attachments: 1. 2023 Racial Profiling Report - Alex del Carmen 8.Regular Agenda. 8.1. Presentation, discussion, and possible action on a construction contract with Larry Young Paving, Inc. for $9,362,556.25 for the Lincoln Avenue Rehab Project, plus the City’s contingency in the amount of $1,400,000 for a total appropriation of $10,762,556.25 and a Resolution Declaring Intention to Reimburse Certain Expenditures with Proceeds from Debt. 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. Lincoln DRR 2.Lincoln Project Location Map 3.Lincoln Construction Contract Vendor Signed 8.2. Presentation, discussion, and possible action regarding a construction contract with Dudley Construction, Inc. in the amount of $10,976,992.30 for the Carter Creek WWTP Diversion Lift Station and Force Main, plus the City’s contingency amount of $1,000,000 for a total Page 3 of 309 City Council Page 4 April 11, 2024 appropriation of $11,976,992.30 for this project and a Resolution Declaring Intention to Reimburse Certain Expenditures with Proceeds from Debt. 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. CC WWTP Diversion Lift Station Force Main Location Map 2.CC WWTP Diversion Lift Station Force Main DRR Final 3.CCWWTP Diversion Lift Station Force Main Dudley Contract Vendor Signed 4.Carter Creek Diversion Lift Station and Force Main Project Overall Map 9.Council Calendar - Council May Discuss Upcoming Events. 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. 11.Council Reports on Committees, Boards, and Commissions. A Council Member may make a report regarding meetings of City Council boards and commissions or meetings of boards and committees on which a Council Member serves as a representative that have met since the last council meeting. (Committees listed in Coversheet) 12.Future Agenda Items and Review of Standing List of Council Generated Future Agenda Items. A Council Member may make a request to City Council to place an item for which no notice has been given on a future agenda or may inquire about the status of an item on the standing list of council generated future agenda items. A Council Member’s or City Staff’s response to the request or inquiry will be limited to a statement of specific factual information related to the request or inquiry or the recitation of existing policy in response to the request or inquiry. Any deliberation of or decision about the subject of a request will be limited to a proposal to place the subject on the agenda for a subsequent meeting. 13.Adjourn. The City council may adjourn into Executive Session to consider any item listed on the agenda if a matter is raised that is appropriate for Executive Session discussion. I certify that the above Notice of Meeting was posted on the website and at College Station City Hall, 1101 Texas Avenue, College Station, Texas, on April 5, 2023 at 5:00 p.m. City Secretary Page 4 of 309 City Council Page 5 April 11, 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 5 of 309 April 11, 2024 Item No. 6.1. Minutes Sponsor: Tanya Smith, City Secretary Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action of minutes for: • March 28, 2024 Council Meeting Relationship to Strategic Goals: • Good Governance Recommendation(s): Recommends Approval. Summary: N/A Budget & Financial Summary: None Attachments: 1. CCM032824 DRAFT Minutes Page 6 of 309 CCM 032824 Minutes Page 1 MINUTES OF THE CITY COUNCIL MEETING IN-PERSON WITH TELECONFERENCE PARTICIPATION CITY OF COLLEGE STATION MARCH 28, 2024 STATE OF TEXAS § § COUNTY OF BRAZOS § Present: John Nichols, Mayor Council: Mark Smith William Wright Linda Harvell Elizabeth Cunha Bob Yancy – via remote Dennis Maloney City Staff: Bryan Woods, City Manager Jeff Capps, Deputy City Manager Adam Falco, City Attorney Leslie Whitten, Deputy City Attorney Tanya Smith, City Secretary Ian Whittenton, Deputy City Secretary 1. Call to Order and Announce a Quorum is Present. With a quorum present, the meeting of the College Station City Council was called to order by Mayor Nichols via In-Person and Teleconference at 4:00 p.m. on March 28, 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 March 28, 2024, to continue discussing matters pertaining to: 2.1. Consultation with Attorney to seek advice regarding pending or contemplated litigation, to wit: •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 •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. Page 7 of 309 CCM 032824 Minutes Page 2 •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. •Legal advice regarding enforcement of over four unrelated people. •Legal advice regarding ETJ release petitions. 2.2. Deliberation on the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer; to wit: •City Manager •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. Executive Session recessed at 6:08 p.m. No action was taken. 4. Pledge of Allegiance, Invocation, consider absence request. 5. PRESENTATION - PROCLAMATIONS, AWARDS, AND RECOGNITIONS. 5.3. Presentation proclaiming March 2024 as Developmental Disabilities Awareness Month. Mayor Nichols presented a proclamation to Morgan Foster, Alexandra Venegas, Debra Baladran and the Texas A&M AgriLife Extension Staff recognizing March 2024 as Developmental Disabilities Awareness Month. 5.2. Presentation proclaiming April 7th-13th as National Library Week. Mayor Nichols presented a proclamation to Bea Saba, Library Director and Staff recognizing April 17th through 13th as National Library Week. 5.1. Presentation declaring April 1st through 5th as National Community Development Week. Mayor Nichols presented a proclamation to Debbie Eller and the Community Services Staff recognizing April 1st through 5th as National Community Development Week. 6. Hear Visitors Comments. Sabryna Brown, College Station, came before Council to speak on her concerns regarding community revitalization initiatives in College Station and their impact on her neighbors. 7. CONSENT ITEMS Presentation, discussion, and possible action on consent items which consist of ministerial, or "housekeeping" items as allowed by law: A Councilmember may request additional information Page 8 of 309 CCM 032824 Minutes Page 3 at this time. Any Councilmember may remove an item from the Consent Agenda for a separate vote. Items 7.3 and 7.4 were pulled from Consent for clarification. (7.3) Councilmember Maloney stated that the purchase of a public utility easement and a temporary construction easement for $113,000 from Snoopaluke Holdings, LLC for the Medical District Trunk Line Project is a good use of the taxpayer’s money and commends the staffs. (7.4) Mary Ellen Leonard, Finance Director, stated that there is no obligation or financial impact to the City. 7.1. Presentation, discussion, and possible action of minutes for: •February 12, 2024 Special Meeting (Retreat) •February 13, 2024 Special Meeting (Retreat) •February 22, 2024 Council Meeting 7.2. Presentation, discussion, and possible action regarding an Interlocal Agreement with the Texas Department of Public Safety for OmniBase Services. 7.3. Presentation, discussion, and possible action on a real estate contract for the purchase of a public utility easement and a temporary construction easement for $113,000 from Snoopaluke Holdings, LLC for the Medical District Trunk Line Project. 7.4. Presentation, discussion, and possible action regarding Resolution No. 03-28-24-7.4 consenting to the Rock Prairie Management District No. 2 for the sale and issuance of unlimited tax road bonds, series 2024, not to exceed $1,600,000. 7.5. Presentation, discussion, possible action on an amendment to the Axon Enterprise, Inc. ("AXON") ten-year master service agreement for cameras, electronic control devices, and digital storage for $314,699.38. MOTION: Upon a motion made by Councilmember Harvell and a second by Councilmember Maloney, the City Council voted seven (7) for and none (0) opposed, to approve the Consent Items. The motion carried unanimously. 8. WORKSHOP ITEMS 8.1. Presentation, discussion, and possible action regarding local efforts by The Salvation Army to raise funds for their Pathway of Hope Center, a one-stop social services and transitional housing campus to address critical assistance to family issues in Bryan, College Station, and Brazos County. Debbie Eller, Community Services Director, presented Capt. Luis Villeneuva and Bowen Loftin with the Salvation Army. Capt. Luis Villeneuva, Salvation Army, stated that Bowen Loftin would present a presentation and an informational video would follow. Page 9 of 309 CCM 032824 Minutes Page 4 Bowen Loftin, Salvation Army, provided a presentation regarding local efforts by The Salvation Army to raise funds for their Pathway of Hope Center, a one-stop social services and transitional housing campus to address critical assistance to family issues in Bryan, College Station, and Brazos County. 8.2. Presentation, discussion, and possible action, relating to receiving the annual audit reports and Annual Comprehensive Financial Report (ACFR) for the fiscal year ended September 30, 2023. Michael Dehaven, Assistant Director of Finance, stated that the City's Charter and Fiscal and Budgetary Policies along with State law require that not less than thirty (30) days prior to the end of each fiscal year, the City Council shall designate a qualified public accountant or accountants who, as of the end of the fiscal year, shall make an independent audit of accounts and other evidences of financial transactions of the City government and shall submit the report to the City Council. Also, the City's budgetary policies require that the auditor jointly review the management letter/audit results with the City Council within 30 days of receipt by the staff. Mr. Dehaven explained that the key drivers to the increase in Unrestricted Net Position are increased investment income, stronger sales tax, continued strong utility consumption and delayed capital expenditures. FY23 ACFR Highlights Government Wide Summary Ms. Amanda Eaves of Forvis, LLP presented the results of the fiscal year 2023 audit and, along with staff, the 2023 ACFR. The reports provide a summary of the City's financial position as of September 30, 2023. •Timing of Forvis Engagement: Audit procedures occurred primarily between August 2023 and March 2024. •Financial Statement Opinion: Issued and unmodified opinion as to whether the financial statements of the City of College Station, Texas as of and for the year ended September 30, 2023 are fairly presented, in all material respects. •Government Auditing Standards: A report was issued on internal control over financial reporting and on our tests of compliance in accordance with Government Auditing Standards (GAGAS). Page 10 of 309 CCM 032824 Minutes Page 5 •Our Uniform Guidance Compliance Opinion: An unmodified opinion was issued, as to whether the City complied with the requirements of the U.S. Office of Management and Budget (OMB) Uniform Guidance for the major federal award program, and our report on internal control over compliance. 8.3. Presentation, discussion, and possible action on the 2024 Update to the City Council Strategic Plan. Ross Brady, Chief of Staff, stated that staff respectfully recommends Council consider the changes to the City Council Strategic Plan stemming from the February Council Retreats, and approve the changes if they reflect the will of the Council. FY24 Strategies Good Governance •Increase transparency and improve the public’s ability to participate in government through efforts such as continuing to offer virtual options for public meetings, providing a centralized calendar for public meetings and events, and allowing citizens to book city facilities from the city’s website. •Work with College Station ISD to form a joint legislative committee. •Explore annexation opportunities. Financial Sustainability •Explore and pursue methods of diversifying the city’s sources of revenue. •Consider alternative infrastructure funding opportunities. Core Services & Infrastructure •Evaluate options for a community recreation center. •Explore opportunities for a conference center or convention center. •Increase and expand programming in our parks system. •Begin planning and design of Southwest Park. •Consider opportunities for Southeast Park and options for expanded baseball fields. •Make infrastructure improvements in aging areas. Neighborhood Integrity •Provide options for affordable, dense housing options in Northgate, Wolf Pen Creek, and other targeted areas to relieve housing pressure in existing neighborhoods. Diverse & Growing Economy •Expand and diversify efforts to attract high-quality, stable jobs. •Find opportunities to connect Century Square with Hensel Park. •Pursue options for redevelopment of Wolf Pen Creek corridor and Post Oak Mall. •Expand Christmas in College Station. •Improve infrastructure, programming, and opportunities in the Northgate area. •Add gateway signage at every major entrance to College Station. Improving Mobility •Expand public transit options and increase multimodal infrastructure. •Work with contractors to ensure multimodal infrastructure is included in project design. •Develop a new, broader relationship with Brazos Transit based on federal direction, including the need for local representation. Sustainable City •Examine ways to utilize co-production for service delivery. Page 11 of 309 CCM 032824 Minutes Page 6 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 accept the 2024 Update to the City Council Strategic Plan. The motion carried unanimously. 9. REGULAR ITEMS 9.1.Public Hearing, presentation, discussion, and possible action regarding Ordinance No. 2024-4506 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 R-4 Multi-Family to MF Multi-Family for approximately 28 acres generally located at 800 Marion Pugh Drive. Robin Macias, Planning and Development, stated that this request is to rezone approximately 28 acres of land generally located at 800 Marion Pugh Drive from R-4 Multifamily to MF Multifamily. The subject property is currently developed as an apartment complex. It is the applicant’s intent to add additional dwelling units to the property, some of which would be a Shared Housing use. The current zoning district is a retired district and does not allow for Shared Housing without a HOO High Occupancy Overlay. The MF Multifamily zoning allows Shared Housing by right. Staff recommends approval of the rezoning request as it is in line with the Comprehensive Plan and is compatible with the surrounding area. Staff recommends approval of the rezoning request as it is in line with the Comprehensive Plan and is compatible with the surrounding area. The Planning and Zoning Commission heard this item at their March 7, 2024 meeting and voted unanimously to recommend approval. At approximately 7:20 p.m., Mayor Nichols opened for the Public Hearing. Sabryna Brown, College Station, stated that currently developed as an apartment complex will increase the rent cost for this neighborhood and hurt low-income individuals. There being no further comments, the Public Hearing was closed at 7:22 p.m. MOTION: Upon a motion made by Councilmember Maloney and a second by Councilmember Cunha, the City Council voted seven (7) for and none (0) opposed, to adopt Ordinance No. 2024-4506, 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 R-4 Multi-Family to MF Multi-Family for approximately 28 acres generally located at 800 Marion Pugh Drive. The motion carried unanimously. 9.2. Presentation, discussion, and possible action regarding termination of a Community Development Block Grant Funding Contract with Bryan/College Station Habitat for Humanity. Debbie Eller, Community Services Director, stated that this project has experienced significant delays caused by a change in engineering firms and the global pandemic. Due to the delay in completing the project, the cost for construction has increased significantly. Habitat responded to a Request for Proposal for the development of affordable housing in May 2023 requesting additional funds in the amount of $300,000. $200,000 of the request includes CDBG funds for infrastructure and $100,000 in HOME funds for housing construction. The final plat for the subdivision was approved on November 7, 2023. The approved infrastructure design includes paving, sidewalks, grading, sanitary Page 12 of 309 CCM 032824 Minutes Page 7 sewer, storm sewer and water line improvements to support the development of single-family homes. Habitat released an RFP for infrastructure construction on February 2, 2024. Habitat's award of a construction contract in the amount of $572,153 is pending. Habitat submitted a revised request for funds in March 2024 in the amount of $446,921. City Council can consider three options regarding the Community Development Block Grant Funding Agreement with B/CS Habitat for Humanity contract number 17300511 in the amount of $794,000: 1) Termination of the contract due to the estimated final cost per house of $448,184 and requiring the repayment of $515,691.90 in CDBG funds drawn to date for the project as the expenditure did not result in meeting a national objective and is considered an ineligible use of funds; or 2) Amending the existing contract by the amount requested in May 2023 of $200,000 for additional infrastructure costs; or 3) Amending the existing contract by the amount requested in March 2024 of $446,921. A contract amendment would include: 1) Reduce the number of homes provided by the Agency from eight (8) to five (5); 2) Increase not to exceed amount from $794,000.00 to Option (2) $994,000.00 or Option (3) 1,240,921; 3) Extend the term of the contract to a completion date of December 31, 2025; 4) Add Buy America Preference (BAP) and Buy America, Build America (BABA) requirements; 5) Add requirements for deed-restricted covenants to ensure permanent affordability. 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 termination of a Community Development Block Grant Funding Contract with Bryan/College Station Habitat for Humanity. The motion carried unanimously. 9.3. Presentation, discussion, and possible action regarding Ordinance No. 2024-4507 amending Chapter 38 "Traffic and Vehicles," Article II "Stopping, Standing and Parking," of the Code of Ordinances of the City of College Station, Texas, by adding Section 38-49 "Commercial Motor Vehicle and Trailer Parking"; and 2024-4508 Ordinance amending Chapter 38 "Traffic and Vehicles," Article II "Stopping, Standing and Parking," Section 38-45 "Parking Regulations for Certain Described Areas," and repealing Chapter 38 "Traffic and Vehicles," Article VI "Traffic Schedules," Section 38-1016 "No Commercial Motor Vehicle or Trailer Parking," of the Code of Ordinances of the City of College Station, Texas to prohibit commercial motor vehicle and trailer parking within the city limits. Emily Fisher, Public Works Director, stated that during the workshop portion of the November 9, 2023, City Council meeting, City staff presented options for responding to the increase in truck parking throughout the city. The council directed staff to draft an ordinance prohibiting truck parking within the city limits and develop a plan to inform the public of the future prohibition. This item for consideration is two ordinance amendments to Chapter 38, Article II. The first adds section 38-49, which prohibits commercial vehicle and trailer parking within the city and defines commercial motor vehicles. The second amends section 38-45 by removing sections (b) and (d) and removes section 38- 1016 from Article VI. Staff plans to use the following to notify and educate the public about the amended ordinance: Social media posts and PSA on Channel 19 •Blog and website postings •Temporary signs at high traffic locations Page 13 of 309 CCM 032824 Minutes Page 8 •Windshield fliers •Dynamic Message Board Notifications •Communication with the trucking community Signage at the city limits is not required. Staff is recommending a period of six months of no enforcement of the ordinance to prepare the truck drivers for the change. MOTION: Upon a motion made by Councilmember Maloney and a second by Councilmember Smith, the City Council voted four (4) for and three (3) opposed, with Mayor Nichols and Councilmembers Harvell and Cunha voting against, to adopt Ordinance No. 2024-4507, amending Chapter 38 "Traffic and Vehicles," Article II "Stopping, Standing and Parking," of the Code of Ordinances of the City of College Station, Texas, by adding Section 38-49 "Commercial Motor Vehicle and Trailer Parking." The motion carried. MOTION: Upon a motion made by Councilmember Smith and a second by Councilmember Wright, the City Council voted six (6) for and one (1) opposed, with Councilmember Harvell voting against, to adopt Ordinance 2024-4508 amending Chapter 38 "Traffic and Vehicles," Article II "Stopping, Standing and Parking," Section 38-45 "Parking Regulations for Certain Described Areas," and repealing Chapter 38 "Traffic and Vehicles," Article VI "Traffic Schedules," Section 38-1016 "No Commercial Motor Vehicle or Trailer Parking," of the Code of Ordinances of the City of College Station, Texas to prohibit commercial motor vehicle and trailer parking within the city limits. The motion carried. Mayor Nichols recessed the meeting at 8:00 p.m. The meeting resumed at 8:07 p.m. 9.4. Presentation, discussion, and possible action Resolution No.’s 03-28-24-9.4a, 03-28-24-9.4b and 03-28-24-9.4c regarding extraterritorial jurisdiction (ETJ) release petitions for approximately (1) 5.569 acres of land generally located at Raymond Stotzer and Jones Road, (2) 46.59 acres of land generally located at 2321 and 2327 Arrington Road, and (3) 17.34 acres of land generally located at Stousland Road and Saddle Creek Drive. 9.4 and 9.5 ETJ Release Petitions presented together. 9.5. Presentation, discussion, and possible action on Resolution No.’s 03-28-24-9.5a, 03-28-24- 9.5b and 03-28-24-9.5c regarding extraterritorial jurisdiction (ETJ) release petitions for (1) approximately 11.667 acres of land generally located at Hopes Creek Road and N. Dowling Road, (2) approximately 10.725 acres of land generally located at Old Arrington and Arrington Road, and (3) approximately 99.844 acres of land generally located along Royder Road between Greens Prairie Road and Frierson Road. Michael Ostrowski, Chief Development Officer, stated that the purpose of the extraterritorial jurisdiction (ETJ) of municipalities is to promote and protect the general health, safety, and welfare of people residing in and adjacent to the city. After review, staff has determined that the removal of these properties from the City's ETJ will have a negative effect on the general health, safety and welfare of people residing in and adjacent to the City. Mainly, the removal would cause negative impacts to the health, safety, and welfare in administering emergency services to these areas, as well as impacting the orderly subdivision and development of land. Staff recommends denial of the ETJ release petitions. Page 14 of 309 CCM 032824 Minutes Page 9 Background •Purpose of ETJ: To promote and protect the general health, safety, and welfare of persons residing in and adjacent to the municipalities. •City’s ETJ boundary extends 5 miles beyond municipal boundary. •Chapter 42 Subchapter D of the Texas Local Government Code allows landowners to petition the City to be release from its ETJ without action by the City’s governing body. •Section 42.023 requires the governing body to provide its written consent to reduce its ETJ. Recommendation •Removal of these properties from the City's ETJ will have a negative effect on the general health, safety and welfare of people residing in and adjacent to the City. •Specifically, there are concerns with administering emergency services to these areas, as well as impacting the orderly subdivision and development of land. •Staff recommends denial of these requests. At approximately 8:41 p.m., Mayor Nichols opened for Citizen Comments. Steve Pittman, College Station, stated that he owns the (Item 9.4) 17.34 acres of land generally located at Stousland Road and Saddle Creek Drive and he was not notified regarding the denial of his petition after he was released. Mr. Pittman stated that this property is being rescinded after being released and not being notified is shady. Travis Martin, College Station, came before Council with is concern regarding this property the was released being rescinded. There being no further comments, the Citizen Comments was closed at 8:41 p.m. (9.4) MOTION: Upon a motion made by Councilmember Smith and a second by Councilmember Maloney, the City Council voted five (5) for and two (2) opposed, with Councilmember Yancy and Harvell voting against, to adopt Resolution No.’s 03-28-24-9.4a, 03-28-24-9.4b and 03-28-24-9.4c for the denial regarding extraterritorial jurisdiction (ETJ) release petitions for approximately (1) 5.569 acres of land generally located at Raymond Stotzer and Jones Road, (2) 46.59 acres of land generally located at 2321 and 2327 Arrington Road, and (3) 17.34 acres of land generally located at Stousland Road and Saddle Creek Drive. The motion carried. (9.5) MOTION: Upon a motion made by Councilmember Maloney and a second by Councilmember Smith, the City Council voted six (6) for and one (1) opposed, with Councilmember Yancy voting against, to adopt Resolution No.’s 03-28-24-9.5a, 03-28-24-9.5b and 03-28-24-9.5c for the denial regarding extraterritorial jurisdiction (ETJ) release petitions for (1) approximately 11.667 acres of land generally located at Hopes Creek Road and N. Dowling Road, (2) approximately 10.725 acres of land generally located at Old Arrington and Arrington Road, and (3) approximately 99.844 acres of land generally located along Royder Road between Greens Prairie Road and Frierson Road. The motion carried. 9.6. Presentation, discussion, and possible action regarding the appointment of Planning & Zoning Commission representatives to the BioCorridor Board. 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 Page 15 of 309 CCM 032824 Minutes Page 10 Planning & Zoning Commission representatives, Aron Collins and Bobby Mirza to the BioCorridor Board. The motion carried unanimously. 10. Council Calendar Council reviewed the calendar. 11. Items of Community Interest: The Council may receive reports from a Council Member or City Staff about items of community interest for which notice has not been given, including: expressions of thanks, congratulations or condolence; information regarding holiday schedules; honorary or salutary recognitions of a public official, public employee, or other citizen; reminders of upcoming events organized or sponsored by the City of College Station; information about a social, ceremonial or community event organized or sponsored by an entity other than the City of College Station that is scheduled to be attended by a Council Member, another city official or staff of the City of College Station; and announcements involving an imminent threat to the public health and safety of people in the City of College Station that has arisen after the posting of the agenda. Councilmember Maloney recognized the passing of former College Station Mayor, Ben White and his contributions to the city. Councilmember Maloney recognized a ribbon cutting for the Texas Municipal League and Sister Cities for Foreign Exchange Students. Mayor Nichols recognized the passing of former City of Bryan Mayor, Mark Conlee. Councilmember Cunha recognized Food Truck Wednesdays at Wolf Pen Creek Amphitheater. 12. Council Reports on Committees, Boards, and Commission: A Council Member may make a report regarding meetings of City Council boards and commissions or meetings of boards and committees on which a Council Member serves as a representative that have met since the last council meeting. (Committees listed in Coversheet) Mayor Nichols reported on the BVCOG and upcoming change to the dues structure. Councilmember Yancy reported on the Board of Health. 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. Councilmember Maloney requested a report on a recent ROO application which was denied due to procedural mistakes. In accordance with the Texas Government Code the Council reconvened into Executive Session at Page 16 of 309 CCM 032824 Minutes Page 11 9:25 p.m. on March 28, 2024, to continue discussing matters pertaining to: Consultation with Attorney to seek advice regarding pending or contemplated litigation on: •Legal advice related to an interlocal agreement with the City of Bryan for sewer service. §551.074-Personnel, deliberation on the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer; to wit: •City Manager Executive Session recessed at 10:19 p.m. 14. Adjournment. There being no further business, Mayor Nichols adjourned the meeting of the City Council at 10:20 p.m. on Thursday, March 28, 2024. ________________________ John P. Nichols, Mayor ATTEST: Tanya Smith, City Secretary ________________________ Page 17 of 309 April 11, 2024 Item No. 6.2. Change Order for Design Contract on Arnold Road Fuel Station Sponsor: Jennifer Cain, Director Capital Projects Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action regarding a deductive change order with Johnson & Pace, Inc. for a credit of $106,017.72 for the design of the Fleet Fuel System Rehabilitation Project. Relationship to Strategic Goals: Core services and infrastructure Recommendation(s): Staff recommends approval. Summary: Final close out change order credit for Environmental Engineering services not utilized by Johnson & Pace for the Fleet Fuel System Rehabilitation Project (CO1902) as well as the unused portion of the Construction Materials Testing (CMT). Environmental Engineering services were performed by a separate contractor. Budget & Financial Summary: A budget of $2,325,000 is included in the Facilities and Technology Capital Improvement Projects Fund. A total of $2,319,963 has been expended or committed to date, leaving a balance of $5,037. The proposed deductive change order will reduce the committed encumbered amount by $106,017.72. Attachments: 1. Fleet Fuel Johnson and Pace Change Order 2 Page 18 of 309 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 19300538CO2 CO1902 RFQ-19-030 Fleet Fuel System Rehabilitation Johnson & Pace, Inc. 290,675.00 n n n n n N/A 2 N/A This change order is for a deduct of $106,017.72. This deduct will close out the contract. Details attached. N/A 4/11/2024 TBD N/A N/A N/A N/A N/A N/A 3/18/2024 3/18/2024 3/18/2024 Page 19 of 309 CHANGE ORDER NO. 2 DATE: 03/13/2024 Contract No.19300538 P.O.#: 19204987 PROJECT: Fleet Fuel System Rehabilitation OWNER:CONTRACTOR: City of College Station Johnson & Pace, Inc P.O. Box 9960 121 NW Loop 281 LB1 Ph: (903) 753-0663 College Station, Texas 77842 Longview, texas 75604 Fax: (903) 753-8803 PURPOSE OF THIS CHANGE ORDER: ITEM UNIT ORIGINAL REVISED ADDED NO UNIT DESCRIPTION PRICE QUANTITY QUANTITY COST 3 1 Environmental Services - not used 1.00$ 90500 0 (90,500.00)$ 8 1 Construction Material Testing services 1.00$ 29160 13642.28 (15,517.72)$ -$ -$ -$ -$ -$ -$ -$ -$ TOTAL (106,017.72)$ Item 3 CO1902/41379971-6560 (90,500.00)$ Item 8 CO1902/41379971-6560 (15,517.72)$ TOTAL CHANGE ORDER (106,017.72)$ ORIGINAL CONTRACT AMOUNT $285,675.00 CHANGE ORDER NO. 1 $5,000.00 1.8%CHANGE CHANGE ORDER NO. 2 ($106,017.72)-37.1%CHANGE REVISED CONTRACT AMOUNT $184,657.28 -35.4%TOTAL CHANGE 12/8/2022 Council Approved Contingency $203,377.00 1/26/2023 CO #1_PO23201028 $7,500.00 3/15/2023 CO #2_PO23201028 $5,760.00 5/31/2023 CO #3_PO23201028 ($2,672.40) 7/18/2023 CO #4_PO23201028 $10,003.00 9/18/2023 CO #5_PO23201028 $2,207.74 12/16/2022 CO #1_PO23201012 $3,000.00 10/30/2023 CO #2_PO23201012 $16,268.04 11/14/2023 CO #1_PO23204367 $8,724.00 2/2/2024 CO #3_PO23201012 $67,949.00 2/2/2024 CO #2_PO19204987 (106,017.72)$ Available Contingency after this CHANGE ORDER No.3_PO2320 $190,655.34 APPROVED _____________________________________________________________________________________ A/E CONTRACTOR Date CHIEF FINANCIAL OFFICER Date __________________________________________ CITY ATTORNEY Date _____________________________________________________________________________________ PROJECT MANAGER Date CITY MANAGER Date ___________________________________________ DEPARTMENT DIRECTOR Date Final close out change order to credit back services not used for this project. Environmental Services were removed from this project (CO1902) and added to the Fleet Fuel System Rehab Project at King Cole (GG2300). The unused portion of the estimated construction materials testing is also being credited back with this change order. THE NET AFFECT OF THIS CHANGE ORDER IS A -35.4% DECREASE. 3/18/2024 3/18/2024 3/18/2024 3/18/2024 3/18/2024 Page 20 of 309 April 11, 2024 Item No. 6.3. Well Field Collection Line Rehabilitation PH I Sponsor: Gary Mechler, Director of Water Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action on a construction contract with Elliot Construction, LLC. for the Well Field Collection Line Rehabilitation Phase One project for $864,440 plus the City’s contingency amount of $85,560 for a total appropriation of $950,000. 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. Contract is on file with the City Secretary's Office. Summary: This project consists of replacing an existing 30-inch well field collection line that is located near the City’s Sandy Point Pump Station. This portion of reinforced concrete cylinder pipe (RCCP) was installed in the 1970's and has reached the end of its useful service life. Budget & Financial Summary: Budget in the amount of $1,400,000 is included for this project in the Water Capital Improvement Projects Fund. A total of $88,588 has been expended or committed to date, leaving a balance of $1,311,412 for this contract and future expenses. Attachments: None Page 21 of 309 April 11, 2024 Item No. 6.4. Design Contract for CSU Office/Lab Building Project Sponsor: Jennifer Cain, Director Capital Projects Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action regarding a professional services contract with The Arkitex Studio, Inc. for $245,300 for the CSU Office/Lab Building Project. Relationship to Strategic Goals: Core services and infrastructure Recommendation(s): Staff recommends approval. Summary: This project includes the design of a new CSU Office/Lab Building to be located adjacent to the existing CSU Operations building. The building is anticipated to be approximately 4,000 sf and include offices, work room, storage, break area, conference room, restrooms, and electrical and mechanical rooms. The City of College Station received 3 Statements of Qualifications (SOQ) that were submitted. After the review process, The Arkitex Studio, Inc. was selected as the most qualified firm for the project. Budget & Financial Summary: Funds are available and budgeted within the Electrical Capital Budget. Attachments: 1. Arkitex Studios Contract for CSU Building Design Vendor Signed Page 22 of 309 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 24300394 EL0000588 RFQ-24-011 New College Station Utilities Operations Expansion The Arkitex Studio, Inc. 245,300.00 n n n n n N/A N/A N/A Funding in project number EL0000588 Architect chosen from highest point total in RFQ-24-011. N/A 4/11/2024 TBD N/A N/A N/A N/A N/A Page 23 of 309 Contract No.__________ A&E Professional Services with Construction Page 1 Form 04-06-2023 CITY OF COLLEGE STATION ARCHITECTS & ENGINEERING PROFESSIONAL SERVICES CONTRACT WITH CONSTRUCTION This Contract is between the City of College Station, a Texas home-rule municipal corporation, (the “City”) and ____________________________________________, a___________________ corporation (the “Consultant”), whereby the Consultant agrees to provide the City with certain professional services as described herein and the City agrees to pay the Consultant for those services. ARTICLE I SCOPE OF SERVICES 1.01 In consideration of the compensation stated in paragraph 2.01 below, the Consultant agrees to provide the City with the professional services as described in Exhibit “A”, the Scope of Services, which is incorporated herein by reference for all purposes, and which services may be more generally described as follows (the “Project”): ARTICLE II PAYMENT 2.01 In consideration of the Consultant’s provision of the professional services in compliance with all terms and conditions of this Contract, the City shall pay the Consultant according to the terms set forth in Exhibit “B”. Except in the event of a duly authorized change order, approved by the City as provided in this Contract, the total cost of all professional services provided under this Contract may not exceed ______________________________________________________ and ____/100 Dollars ($_____________). 2.02 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. Page 24 of 309 Contract No.__________ A&E Professional Services with Construction Page 2 Form 04-06-2023 ARTICLE III TIME OF PERFORMANCE AND CONSTRUCTION COST 3.01 The Consultant shall perform all professional services necessary for the complete design and construction documentation of the Project within the times set forth below and in Section 3.02. Consultant expressly agrees that such times are as expeditious as is prudent considering the ordinary professional skill and care of a competent engineer or architect. Furthermore, the Consultant shall perform with the professional skill and care ordinarily provided by competent engineers or architects practicing in the same or similar locality and under the same or similar circumstances and professional license. (a)Conceptual Design: _____calendar days after the authorization to commence planning. (b)Preliminary Design: _____calendar days after authorization to commence PPD. (c)Final Design: _____calendar days after authorization to commence final design. 3.02 All design work and other professional services provided under this Contract must be completed by the following date(s): 3.03 Time is of the essence of this Contract.The Consultant shall be prepared to provide the professional services in the most expedient and efficient manner possible and with adequate resources and manpower in order to complete the work by the times specified. Promptly after the execution of this Contract, the Consultant shall prepare and submit for the City to approve in writing, a detailed schedule for the performance of the Consultant’s services to meet the City’s project milestone dates, which are included in this Contract. The Consultant’s schedule shall include allowances for periods of time required for the City’s review and for approval of submissions by authorities having jurisdiction over the Project. The time limits established by this schedule over which Consultant has absolute control shall not be exceeded without written approval from the City. Consultant may request in writing an extension of the contract time due to delays beyond their control. In the event that a deadline provided in this Contract is not met by the Consultant, Consultant shall provide the City with a written narrative setting forth in a reasonable degree of detail a plan of recovery to overcome or mitigate the delay which may include (i) employing additional people, or (ii) accelerating the work by working longer hours on any portion of the Project that is deemed by the City to be behind schedule (“Recovery Plan”). With the City’s approval, Consultant shall execute the Recovery Plan at no additional cost to the City. Page 25 of 309 Contract No.__________ A&E Professional Services with Construction Page 3 Form 04-06-2023 (a)Liquidated Damages. (1) The time for the completion of all Work described in this Agreement are reasonable times for the completion of each task by the agreed upon days or dates, taking into consideration all conditions, including but not limited to the usual industry conditions prevailing in this locality. The amount of liquidated damages for the Consultant's failure to meet contractual deadlines specifically set forth in the Consultant’s scope of services and schedule are fixed and agreed on by the Consultant because of the impracticability and extreme difficulty in fixing and ascertaining the actual damages 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 deducted by the City from current amounts owed to Consultant for payment or from final payment. (2) As a result of the difficulty in estimation, calculation and ascertainment of City’s damages due to a failure of Consultant to achieve timely completion of the Work, if the Consultant should neglect, or fail, or refuse to complete the Work within the times specified in the Consultant’s scope of services and schedule, or any proper extension thereof granted by the City's Representative pursuant to this Agreement, then the Consultant does hereby agree as part of the consideration for the awarding of this Agreement that the City may permanently withhold from the Consultant's total compensation the sum of TWO HUNDRED FIFTY and 00/100 DOLLARS ($250.00)for each and every calendar day that the Consultant shall be in default after the time(s) stipulated completion of the task(s) in question, 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 any of the deadlines specified in the Consultant’s scope of services and schedule for completion in this Agreement. 3.04 The Consultant’s services consist of all of the services required to be performed by Consultant, Consultant’s employees and Consultant’s sub-consultants under the terms of this Contract. Such services include normal civil, structural, mechanical and electrical engineering services, plumbing, food service, acoustical and landscape services, and any other design services that are normally or customarily furnished and reasonably necessary for the Project. The Consultant shall contract and employ at its expense sub-consultants necessary for the design of the Project, and such sub-consultants shall be licensed as required by the State of Texas and approved in writing by the City. 3.05 The Consultant shall designate a principal of the firm reasonably satisfactory to the City who shall, for so long as acceptable to the City, be in charge of Consultant’s services to be performed hereunder through to completion, and who shall be available for general consultation throughout the Project. Any replacement of that principal shall be approved in writing (which shall not be unreasonably withheld) by the City, prior to replacement. Page 26 of 309 Contract No.__________ A&E Professional Services with Construction Page 4 Form 04-06-2023 3.06 Consultant shall be responsible for the coordination of its services with those of its subconsultants, the City, and the City’s consultants, including the coordination of all drawings and design documents relating to Consultant’s design and used on the Project, regardless of whether such drawings and documents are prepared by Consultant. Consultant shall be responsible for the completeness and accuracy of all drawings and specifications submitted by or through Consultant and for its compliance with all applicable codes, ordinances, regulations, laws and statutes. Upon receipt from the City, the Consultant shall review the services and information furnished by the City and the City’s consultants for accuracy and completeness. The Consultant shall provide prompt written notice to the City if the Consultant becomes aware of any error, omission or inconsistency in such services or information. Once notice has been provided to the City, the Consultant shall not proceed without written instruction from the City to do so. 3.07 Consultant’s evaluations of the City’s project budget and the preliminary estimates of construction cost and detailed estimates of construction cost, represent the Consultant’s best judgment as a design professional familiar with the construction industry. 3.08 The construction budget for this Project, which is established as a condition ofthis Contract is $____________________. This construction budget shall not be exceeded unless the amount is changed in writing by the City. ARTICLE IV CONCEPTUAL DESIGN 4.01 Upon the Consultant’s receipt from the City of a letter of authorization to commence planning, the Consultant shall meet with the City for the purpose of determining the nature of the Project. The Consultant shall inquire in writing as to the information it believes the City may have in its possession that is necessary for the Consultant's performance. The City shall provide the information within its possession that it can make available to the Consultant. The City shall designate a representative to act as the contact person on behalf of the City. 4.02 The Consultant shall determine the City's needs with regard to the Project, including, but not limited to, tests, analyses, reports, site evaluations, needs surveys, comparisons with other municipal projects, review of budgetary constraints and other preliminary investigations necessary for the Project. Consultant shall verify the observable existing conditions of the Project and verify any existing as-built drawings. Consultant shall confirm that the Project can be designed and constructed within the time limits outlined in this Contract. Consultant shall prepare a detailed design phase schedule which includes all review and approval periods during the schematic design, design development and construction document phases. Consultant shall confirm that the Project can be designed and constructed for the dollar amount of the Project budget, if applicable. 4.03 The Consultant shall prepare a Conceptual Design that shall include schematic layouts, surveys, sketches and exhibits demonstrating the considerations involved in the Project. The Consultant shall consider environmentally responsible design alternatives, such as material choices and building orientation, together with other considerations based on program and aesthetics, in developing a design that is consistent with the City’s Program, the Project Schedule Page 27 of 309 Contract No.__________ A&E Professional Services with Construction Page 5 Form 04-06-2023 and budget. The Consultant shall reach an understanding with the City regarding the requirements of the Project. The Conceptual Design shall contemplate compliance with all applicable laws, statutes, ordinances, codes and regulations. Upon the City's request, the Consultant shall meet with City staff and the City Council to make a presentation of its report. ARTICLE V PRELIMINARY DESIGN 5.01 The City shall direct the Consultant to commence work on the Preliminary Design by sending to the Consultant a letter of authorization to begin work on the Preliminary Design pursuant to this Contract. Upon receipt of the letter of authorization to commence Preliminary Design, the Consultant shall meet with the City for the purpose of determining the extent of any revisions to the Conceptual Design. 5.02 The Consultant shall prepare the Preliminary Design of the Project, including, but not limited to, the preliminary drawings and specifications and other documents to fix and describe the size and character of the Project as to architectural, structural, mechanical and electrical systems, materials and such other elements as may be appropriate. The Consultant shall submit to the City a detailed estimate of the construction costs of the Project, based on current area, volume, or other unit costs. This estimate shall also indicate both the cost of each category of work involved in constructing the Project and the time required for construction of the Project from commencement to final completion. 5.03 Upon completion of the Preliminary Design of the Project, the Consultant shall so notify the City. Upon request the Consultant shall meet with the City staff and City Council to make a presentation of its Preliminary Design of the Project. The Consultant shall provide an explanation of the Preliminary Design, including any material changes and deviations that have taken place from the Conceptual Design, a cost estimate, and shall verify that, to the best of Consultant’s belief, the Project requirements and construction can be completed within the Project budget and schedule. ARTICLE VI FINAL DESIGN 6.01 The City shall direct the Consultant to commence work on the Final Design of the Project by sending to the Consultant a letter of authorization to begin work on the Final Design phase of the Project. Upon receipt of the Letter of Authorization to proceed with Final Design of the Project, the Consultant shall immediately prepare the Final Design, including, but not limited to, the bid documents, contract, drawings, and specifications, to fix and describe the size and character of the Project as to structural, mechanical, and electrical systems, materials, and such other elements as may be appropriate. The Final Design of the Project shall comply with all applicable laws, statutes, ordinances, codes and regulations. 6.02 Notwithstanding the City’s approval of the Final Design, the Consultant warrants that the Final Design will be sufficient and adequate to fulfill the purposes of the Project. Page 28 of 309 Contract No.__________ A&E Professional Services with Construction Page 6 Form 04-06-2023 6.03 The Consultant shall prepare and separately seal the special provisions, the technical specifications, and bid proposal form(s) in conformance with the City’s current pre-approved, “Standard Form of Construction Agreement” for the construction contract between the City and the construction contractor. The Consultant hereby agrees that no changes, modifications, supplementations, alterations, or deletions will be made to the City’s standard form without the prior written approval of the City. 6.04 The Consultant shall provide the City with complete contract documents sufficient to be advertised for bids by the City. The contract documents shall include the design and specifications and other changes that are required to fulfill the purpose of the Project. Upon completion of the Final Design of the Project, with the submission of the complete contract documents, and upon request of the City, the Consultant shall meet with City staff and the City Council to present the Final Design of the Project. The Consultant shall provide an explanation of the Final Design, including identification of all material changes and deviations that have taken place from the Preliminary Design Documents and a cost estimate. The Consultant shall verify that, to the best of Consultant’s belief, the Project requirements and construction can be completed within the Project budget and schedule. ARTICLE VII BID PREPARATIONS & EVALUATION 7.01 The Consultant shall assist the City in advertising for and obtaining bids or negotiating proposals for the construction of the Project. Upon request, the Consultant shall meet with City staff and the City Council to present, and make recommendations on, the bids submitted for the construction of the Project. 7.02 The Consultant shall review the construction contractors' bids, including subcontractors, suppliers, and other persons required for completion of the Project. The Consultant shall evaluate each bid and provide these evaluations to the City along with a recommendation on each bid. If the lowest bid for the construction of the Project exceeds the final cost estimate set forth in the Final Design of the Project, then the Consultant, at its sole cost and expense, shall revise the construction documents so that the total construction costs of the Project will not exceed the final cost estimate contained in the Final Design of the Project. 7.03 Where substitutions are requested by a construction contractor, the Consultant shall review the substitution requested and shall recommend approval or disapproval of such substitutions. ARTICLE VIII CONSTRUCTION 8.01 The Consultant shall be a representative of, and shall advise and consult with, the City (1) during construction, and (2) at the City's direction from time to time during the correction, or warranty, period described in the construction contract. The Consultant shall have authority to act Page 29 of 309 Contract No.__________ A&E Professional Services with Construction Page 7 Form 04-06-2023 on behalf of the City only to the extent provided in this Contract unless modified by written instrument. 8.02 The Consultant shall make visits to the site, to inspect the progress and quality of the executed work of the construction contractor and its subcontractors and to determine if such work is proceeding in accordance with the contract documents. The minimum number of site visits and their frequency shall be established by the City and Consultant prior to commencement of construction. Consultant shall periodically review the as-built drawings for accuracy and completeness, and shall report its findings to the City. 8.03 The Consultant shall keep the City informed of the progress and quality of the work. The Consultant shall employ the professional skill and care ordinarily provided by competent engineers or architects practicing in the same or similar locality and under the same or similar circumstances and professional license in discovering and promptly reporting to the City any defects or deficiencies in such work and shall disapprove or reject any work failing to conform to the contract documents. 8.04 The Consultant shall review and approve shop drawings and samples, the results of tests and inspections, and other data that each construction contractor or subcontractor is required to provide. The Consultant's review and approval shall include a determination of whether the work complies with all applicable laws, statutes, ordinances and codes and a determination of whether the work, when completed, will be in compliance with the requirements of the contract documents. 8.05 The Consultant shall determine the acceptability of substitute materials and equipment that may be proposed by construction contractors or subcontractors. The Consultant shall also receive and review maintenance and operating instruction manuals, schedules, guarantees, and certificates of inspection, which are to be assembled by the construction contractor in accordance with the contract documents. 8.06 The Consultant shall issue all instructions of the City to the construction contractor as well as interpretations and clarifications of the contract documents pertaining to the performance of the work. Consultant shall interpret the contract documents and judge the performance thereunder by the contractor constructing the Project, and Consultant shall, within a reasonable time, render such interpretations and clarifications as it may deem necessary for the proper execution and progress of the work. Consultant shall receive no additional compensation for providing clarification of the drawings and specifications. 8.07 The Consultant shall review the amounts owing to the construction contractor and recommend to the City, in writing, payments to the construction contractor of such amounts. The Consultant's recommendation of payment, being based upon the Consultant's on-site inspections and its experience and qualifications as a design professional, shall constitute a recommendation by the Consultant to the City that the quality of such work is in accordance with the contract documents and that the work has progressed to the point reflected in Consultant’s recommendation for payment. Page 30 of 309 Contract No.__________ A&E Professional Services with Construction Page 8 Form 04-06-2023 8.08 Upon notification from the construction contractor that the Project is substantially complete, the Consultant shall conduct an inspection of the site to determine if the Project is substantially complete. The Consultant shall prepare a checklist of items that shall be completed prior to final acceptance. Upon notification by the construction contractor that the checklist items designated by the Consultant for completion have been completed, the Consultant shall inspect the Project to verify final completion. 8.09 The Consultant shall not be responsible for the work of the construction contractor or any of its subcontractors, except that the Consultant shall be responsible for the construction contractor's schedules or failure to carry out the work in accordance with the contract documents if such failures result from the Consultant's negligent acts or omissions. This provision shall not alter the Consultant's duties to the City arising from the performance of the Consultant's obligations under this Contract. 8.10 The Consultant shall conduct at least one on-site inspection during the warranty period and shall report to the City as to the continued acceptability of the work. 8.11 The Consultant shall not execute change orders on behalf of the City or otherwise alter the financial scope of the Project without an advance, written authorization from the City. 8.12 The Consultant shall perform all of its duties under this Article VIII so as to not cause any delay in the progress of construction of the Project. 8.13 The Consultant shall assist the construction contractor and City in obtaining a Certificate of Occupancy by accompanying governing officials during inspections of the Project if requested to do so by the City. ARTICLE IX CHANGE ORDERS, DOCUMENTS & MATERIALS 9.01 No changes shall be made, nor will invoices for changes, alterations, modifications, deviations, or extra work or services be recognized or paid except upon the prior written order from authorized personnel of the City. The Consultant shall not execute change orders on behalf of the City or otherwise alter the financial scope of the Project. The schedules, milestones, timelines, and deadlines contained in this Agreement, the Scope of Services, and 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 Consultant shall submit an updated schedule that reflects changes authorized by approved change orders. 9.02 When the original contract amount plus all change orders is $100,000 or less, the City Manager or his delegate may approve the written change order provided the change order does not increase the total amount set forth in the contract to more than $100,000. For such contracts, when a change order results in a total contract amount that exceeds $100,000, the City Council must approve such change order prior to commencement of the services. Page 31 of 309 Contract No.__________ A&E Professional Services with Construction Page 9 Form 04-06-2023 9.03 When the original contract amount plus all change orders is equal to or greater than $100,000, the City Manager or his delegate may approve the written change order provided the change order does not exceed $50,000 and provided the sum of all change orders does not exceed 25% of the original contract amount. For such contracts, when a change order exceeds $50,000 or when the sum of all change orders exceeds 25% of the original contract, the City Council must approve such change order prior to commencement of the services or work. Thereafter, any additional change orders exceeding $50,000 or any additional change orders totaling 25 percent following such council approval, must be approved by City Council. 9.04 Any request by the Consultant for an increase in the Scope of Services and an increase in the amount listed in paragraph two of this Contract shall be made and approved by the City prior to the Consultant providing such services or the right to payment for such additional services shall be waived. If there is a dispute between the Consultant and the City respecting any service provided or to be provided hereunder by the Consultant, including a dispute as to whether such service is additional to the Scope of Services included in this Contract, the Consultant agrees to continue providing on a timely basis all services to be provided by the Consultant hereunder, including any service as to which there is a dispute. 9.05 The Consultant shall furnish the City with both electronic (PDF) and CAD file sets of all plans and specifications. The Consultant shall provide the City one (1) set of reproducible, mylar record drawings that clearly show all the changes made during the construction process, based upon the marked-up prints, drawings, and other data furnished by the construction contractor to the Consultant. The Consultant shall provide copies of Work Product including documents, computer files if available, surveys, notes, and tracings used or prepared by the Consultant. The foregoing documentation, the Consultant's Work Product, and other information in the Consultant’s possession concerning the Project shall be the property of the City from the time of preparation. The Consultant shall furnish one set of digital files representing the final record drawings. ARTICLE X WARRANTY, INDEMNIFICATION & RELEASE 10.01 As an experienced and qualified design professional, the Consultant warrants that the information provided by the Consultant reflects the professional skill and care ordinarily provided by competent engineers or architects practicing in the same or similar locality and under the same or similar circumstances and professional license. The Consultant warrants that the design preparation of drawings, the designation or selection of materials and equipment, the selection and supervision of personnel, and the performance of all other services under this Contract are performed with the professional skill and care ordinarily provided by competent engineers or architects practicing in the same or similar locality and under the same or similar circumstances and professional license. Approval of the City shall not constitute, or be deemed, a release of the responsibility and liability of the Consultant, its employees, agents, or associates for the exercise of skill and diligence to promote the accuracy and competency of their Work Product or any other document, nor shall the City's approval be deemed to be the assumption of responsibility by the Page 32 of 309 Contract No.__________ A&E Professional Services with Construction Page 10 Form 04-06-2023 City for any defect or error in the aforesaid documents prepared by the Consultant, its employees, associates, agents, or subcontractors. 10.02 The Consultant shall promptly correct any defective Work Product, including designs or specifications, furnished by the Consultant at no cost to the City. The City's approval, acceptance, use of, or payment for, all or any part of the Consultant's services hereunder or of the Project itself shall in no way alter the Consultant's obligations or the City's rights hereunder. 10.03 In all activities or services performed hereunder, the Consultant is an independent contractor and not an agent or employee of the City. The Consultant and its employees are not the agents, servants, or employees of the City. As an independent contractor, the Consultant shall be responsible for the professional services and the final Work Product contemplated under this Contract. Except for materials furnished by the City, the Consultant shall supply all materials, equipment, and labor required for the professional services to be provided under this Contract. The Consultant shall have ultimate control over the execution of the services it is to provide under this Contract. The Consultant shall have the sole obligation to employ, direct, control, supervise, manage, discharge, and compensate all of its employees or subcontractors, and the City shall have no control of or supervision over the employees of the Consultant or any of the Consultant’s subcontractors. 10.04 The Consultant must at all times exercise reasonable precautions on behalf of, and be solely responsible for, the safety of its officers, employees, agents, subcontractors, licensees, and other persons, as well as its personal property, while in the vicinity of the Project or any of the work being done on or for the Project. It is expressly understood and agreed that the City shall not be liable or responsible for the negligence of the Consultant, its officers, employees, agents, subcontractors, invitees, licensees, and other persons. 10.05 Indemnity. (a) To the fullest extent permitted by law, Consultant agrees to indemnify and hold harmless the City, its Council members, officials, officers, agents, employees, and volunteers (separately and collectively referred to in this paragraph as “Indemnitee”) from and against all claims, damages losses and expenses (including but not limited to attorney’s fees) arising out of or resulting from any negligent act, error or omission, intentional tort or willful misconduct, intellectual property infringement or including failure to pay a subconsultant, subcontractor, or supplier pursuant to this Contract by Consultant, its employees, subcontractors, subconsultants, or others for whom Consultant may be legally liable (“Consultant Parties”), but only to the extent caused in whole or in part by the Consultant Parties. IF THE CLAIMS, ETC. ARE CAUSED IN PART BY CONSULTANT PARTIES, AND ALSO IN PART BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY OR ALL OF THE INDEMNITEES OR ANY OTHER THIRD PARTY, THEN CONSULTANT SHALL ONLY INDEMNIFY ON A COMPARATIVE BASIS, AND ONLY FOR THE AMOUNT FOR WHICH CONSULTANT PARTIES ARE FOUND LIABLE AND NOT FOR ANY AMOUNT FOR Page 33 of 309 Contract No.__________ A&E Professional Services with Construction Page 11 Form 04-06-2023 WHICH ANY OR ALL INDEMNITEES OR OTHER THIRD PARTIES ARE LIABLE. (b) To the fullest extent permitted by law, Consultant agrees to defend the Indemnitees where the indemnifiable acts listed in Article 10 above occur outside the course of performance of professional services (i.e. non- professional services) and the claim is not based wholly or partly on the negligence of, fault of, or breach of contract by the governmental agency, the agency’s agent, employee, or other entity over which the governmental agency exercises control, other than the Consultant or Consultant Parties. (c) Consultant shall procure liability insurance covering its obligations under this section. (d) It is mutually understood and agreed that the indemnification provided for in this section 10.05 shall indefinitely survive any expiration, completion or termination of this Contract. 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. 10.06 Release. The Consultant releases, relinquishes, and discharges the City, its Council members, officials, officers, agents, employees, and volunteers from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to, sickness or death of the Consultant or its employees and any loss of or damage to any property of the Consultant or its employees that is caused by or alleged to be caused by, arises out of, or is in connection with the Consultant's work to be performed hereunder. Both the City and the Consultant expressly intend that 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, sickness, death, loss, or damage suffered by the Consultant or its employees, but not otherwise, this release shall apply regardless of whether such loss, damage, injury, or death was caused in whole or in part by the City, any other party released hereunder, the Consultant, or any third party. 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. 10.07 It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the indemnification, release or other obligations under Paragraphs 10.05 and 10.06, such legal limitations are made a part of the obligations and shall operate to amend same to the minimum extent necessary to bring the provision(s) into conformity with the requirements of such limitations, and as so modified, the obligations set forth therein shall continue in full force and effect. Page 34 of 309 Contract No.__________ A&E Professional Services with Construction Page 12 Form 04-06-2023 ARTICLE XI INSURANCE 11.01 General. The Consultant shall procure and maintain at its sole cost and expense for the duration of this Contract 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 Consultant, its agents, representatives, volunteers, employees or subcontractors. The policies, limits and endorsements required are as set forth on below. During the term of this Contract Consultant’s insurance policies shall meet the minimum requirements of this section: 11.02 Types. Consultant shall have the following types of insurance: (a)Commercial General Liability. (b)Business Automobile Liability. (c)Workers’ Compensation/Employer’s Liability. (d)Professional Liability. 11.03 Certificates of Insurance.For each of these policies, the Consultant’s insurance coverage shall be primary insurance with respect to the City, its officials, agents, employees and volunteers. Any self-insurance or insurance policies maintained by the City, its officials, agents, employees and volunteers, shall be considered in excess of the Consultant’s insurance and shall not contribute to it. No term or provision of the indemnification provided by the Consultant to the City pursuant to this Contract shall be construed or interpreted as limiting or otherwise affecting the terms of the insurance coverage. All Certificates of Insurance and endorsements shall be furnished to the City's Representative at the time of execution of this Contract, attached hereto as Exhibit C, and approved by the City before any letter of authorization to commence planning will issue or any work on the Project commences. 11.04 General Requirements Applicable to All Policies.The following General Requirements 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. (c)“Claims made” policies will not be accepted, except for Professional Liability insurance. (d)Coverage shall not be suspended, voided, canceled, or reduced in coverage or in limits of liability except after thirty (30) calendar days prior written notice has been given to the City of College Station. (e)The Certificates of Insurance shall be prepared and executed by the insurance carrier or its authorized agent on the most current State of Texas Department of Insurance-approved forms. Page 35 of 309 Contract No.__________ A&E Professional Services with Construction Page 13 Form 04-06-2023 11.05 Commercial General Liability Requirements.The following Commercial General Liability requirements shall apply: (a)Coverage shall be written by a carrier rated “A:VIII” or better in accordance with the current A. M. Best Key Rating Guide. (b)Minimum Limit of $1,000,000 per occurrence for bodily injury and property damage with a $2,000,000 annual aggregate. (c)No coverage shall be excluded from the standard policy without notification of individual exclusions being attached for review and acceptance. (d)The coverage shall not exclude premises/operations; independent contracts, products/completed operations, contractual liability (insuring the indemnity provided herein), and where exposures exist, Explosion Collapse and Underground coverage. (e)The City shall be included as an additional insured and the policy shall be endorsed to waive subrogation and to be primary and non-contributory. 11.06 Business Automobile Liability Requirements.The following Business Automobile Liability requirements shall apply: (a)Coverage 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 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)The City shall be included as an additional insured and the policy shall be endorsed to waive subrogation and to be primary and non-contributory. 11.07 Workers’ Compensation/Employers LiabilityInsurance Requirements.The following Workers’ Compensation Insurance requirements shall apply; and the term “contractor” shall be construed to mean “consultant” as identified in this Contract: (a)Pursuant to the requirements set forth in Title 28, Section 110.110 of the Texas Administrative Code, all employees of the Consultant, the Consultant, all employees of any and all subcontractors, and all other persons providing services on the Project mustbe covered by a workers’ compensation insurance policy: either directly through their employer’s policy (the Consultant’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, Consultants and subcontractors must use that portion of the form whereby the hiring contractor agrees to provide coverage to the employees of the Page 36 of 309 Contract No.__________ A&E Professional Services with Construction Page 14 Form 04-06-2023 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)The workers’ compensation/Employer’s Liability insurance shall include the following terms: i. Employer's Liability limits of $1,000,000 for each accident is 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 Worker's 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, this Contract, the bid specifications, this Contract, and all subcontracts on this Project must include the terms and conditions set forth below, 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: i. Definitions: Certificate of coverage ("certificate") - A copy of a 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. ii. The Contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage Page 37 of 309 Contract No.__________ A&E Professional Services with Construction Page 15 Form 04-06-2023 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. iii. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. iv. If the coverage period shown on the Contractor's current certificate of coverage ends during the duration of the project, the Contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. v. 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. vi. The Contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. vii. 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. viii. 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. ix. 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; Page 38 of 309 Contract No.__________ A&E Professional Services with Construction Page 16 Form 04-06-2023 3. provide the Contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the Contractor: A. a certificate of coverage, prior to the other person beginning work on the project; and B. a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 5. retain all required certificates of coverage on file for the duration of the project and for one year thereafter; 6. notify the governmental entity in writing by certified mail or personal delivery, within 10 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 by paragraphs (a) - (g), with the certificates of coverage to be provided to the person for whom they are providing services. x. By signing this contract, 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. xi. 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 contract void if the Contractor does not remedy the breach within ten calendar days after receipt of notice of breach from the governmental entity.” 11.01 Professional Liability Requirements.The following Professional Liability requirements shall apply: (a)Coverage shall be written by a carrier rated “A:VIII” or better in accordance with the current A.M. Best Key Rating Guide. Page 39 of 309 Contract No.__________ A&E Professional Services with Construction Page 17 Form 04-06-2023 (b)Minimum of $1,000,000 per claim and $2,000,000 aggregate, with a maximum deductible of $100,000.00. Financial statements shall be furnished to the City of College Station when requested. (c)Consultant must continuously maintain professional liability insurance with prior acts coverage for a minimum of two years after completion of the Project or termination of this Contract, as may be amended, whichever occurs later. Coverage under any renewal policy form shall include a retroactive date that precedes the earlier of the effective date of this Contract or the first performance of services for the Project. The purchase of an extended discovery period or an extended reporting period on this policy will not be sufficient to comply with the obligationshereunder. (d)Retroactive date must be shown on certificate. ARTICLE XII USE OF DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS 12.01 Any and all drawings, specifications and other documents prepared, furnished, or both prepared and furnished by Consultant or any Subconsultant or other designer contracted under Consultant pursuant to this Contract (including, without limitation, the Construction Documents) ("Work Product"), shall be the exclusive property of the City, whether the Project is completed or not. Upon completion or termination of this Contract, Consultant shall promptly deliver to the City all records, notes, data, memoranda, models, and equipment of any nature that are within Consultant’s possession or control and that are the City’s property or relate to the City or its business. The City shall be furnished and permitted to retain reproducible copies and electronic versions of Consultant's Work Product and related documents and information relating to the Project. 12.02 Consultant warrants to City that (i) Consultant has the full power and authority to enter into this Contract, (ii) Consultant has not previously assigned, transferred or otherwise encumbered the rights conveyed herein, (iii) Work Product is an original work of authorship created by Consultant’s employees during the course of their employment by Consultant, and does not infringe on any copyright, patent, trademark, trade secret, contractual right, or any other proprietary right of any person or entity, (iv) Consultant has not published the Work Product (including any derivative works) or any portion thereof outside of the United States, and (v) to the best of the Consultant's knowledge, no other person or entity, except City, has any claim of any right, title, or interest in or to the Work Product. 12.03 Consultant shall not seek to invalidate, attack, or otherwise do anything either by act of omission or commission which might impair, violate, or infringe the title and rights assigned to City by Consultant in this Article 12 of the Contract. 12.04 The documents prepared by Consultant may be used as a prototype for other facilities by the City. The City may elect to use the Consultant to perform the site adaptation and other architectural or engineering services involved in reuse of the prototype. If so, the Consultant is obligated to perform the work for an additional compensation that will fairly compensate the Consultant and its sub-consultants only for the additional work involved. It is reasonable to expect that the fair additional compensation will be significantly less than the fee provided for under this Page 40 of 309 Contract No.__________ A&E Professional Services with Construction Page 18 Form 04-06-2023 Contract. If the City elects to employ a different architect or engineer to perform the site adaptation and other architectural or engineering services involved in reuse of the prototype, that architect or engineer will be entitled to use Consultant's sub-consultants on the same basis that Consultant would have been entitled to use them for the work on the reuse of the prototype, and such architect or engineer will be entitled, to the extent allowed by law, to duplicate the design and review and refer to the construction documents, approved shop drawings and calculations, and change order drawings in performing its work. The Consultant will not be responsible for errors and omissions of a subsequent architect or engineer. The Consultant shall commit its subconsultants to the terms of this subparagraph. The provisions of this section shall survive termination of this Contract. 12.05 In the event of termination of this Contract for any reason, the City shall receive all Work Product and original documents prepared to the date of termination and shall have the right to use those documents and any reproductions in any way necessary to complete the Project. 12.06 Only the details of the drawings relating to this Project may be used by the Consultant on other projects, but they shall not be used as a whole without written authorization by the City. The City-furnished forms, conditions, and other written documents shall not be used on other projects by the Consultant. ARTICLE XIII TERMINATION 13.01 The City may terminate this Contract at any time upon thirty (30) calendar days written notice. Upon the Consultant’s receipt of such notice, the Consultant shall ceasework immediately. The Consultant shall be compensated for the services satisfactorily performed prior to the termination date. 13.02 If, through any cause, the Consultant fails to fulfill its obligations under this Contract, or if the Consultant violates any of the agreements of this Contract, the City has the right to terminate this Contract by giving the Consultant five (5) calendar days written notice. The Consultant will be compensated for the services satisfactorily performed prior to the termination date. 13.03 No term or provision of this Contract shall be construed to relieve the Consultant of liability to the City for damages sustained by the City because of any breach of contract and/or negligence by the Consultant. The City may withhold payments to the Consultant for the purpose of setoff until the exact amount of damages due the City from the Consultant is determined and paid. ARTICLE XIV MISCELLANEOUS TERMS 14.01 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. 14.02 Notices shall be mailed to the addresses designated herein or as may be designated in writing by the parties from time to time and shall be deemed received when sent postage prepaid U.S. Mail to the following addresses: Page 41 of 309 Contract No.__________ A&E Professional Services with Construction Page 19 Form 04-06-2023 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. City of College Station Attn: _________________ Attn: _______________________ PO BOX 9960 ____________________________ 1101 Texas Ave ____________________________ College Station, TX 77842 ____________________________ ______________@cstx.gov ____________________________ 14.0 No action or failure to act by the City shall constitute a waiver of a right or duty afforded them under the Contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach there under, except as may be specifically agreed in writing. No waiver of any provision of the Contract shall be of any force or effect, unless such waiver is in writing, expressly stating to be a waiver of a specified provision of the Contract and is signed by the party to be bound thereby. In addition, no waiver by either party hereto of any term or condition of this Contract shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver of the same term or condition and shall not in any way limit or waive that party’s right thereafter to enforce or compel strict compliance with the Contract or any portion or provision or right under the Contract. 14.0 This Contract represents the entire and integrated contract between the City and the Consultant and supersedes all prior negotiations, representations, or contracts, either written or oral. This Contract may only be amended by written instrument approved and executed by the parties. 14.0 This Contract and all rights and obligations contained herein may not be assigned by the Consultant without the prior written approval of the City. 14.0 Invalidity. If any provision of this Contract 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 the respective provision or provisions of this Contract with legal terms and conditions approximating the original intent of the parties. 14.0 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 Page 42 of 309 Contract No.__________ A&E Professional Services with Construction Page 20 Form 04-06-2023 added by Contractor to this Contract 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 Contract excluding such conflicting addition by Contractor shall prevail. The parties understand this section comprises part of this Contract without necessity of additional consideration. 14.0 The Consultant, its agents, employees, and subconsultants must comply with all applicable federal and state laws, the charter and ordinances of the City of College Station, and with all applicable rules and regulations promulgated by local, state, and national boards, bureaus, and agencies. The Consultant must obtain all necessary permits and licenses required in completing the services required by this Contract. 14.The parties acknowledge that they have read, understood, and intend to be bound by the terms and conditions of this Contract. If there is a conflict between a provision in any documents provided by Consultant made a part of this Contract and any other provision in this Contract, the latter controls. 14.1 This Contract goes into effect when duly approved by all the parties hereto. 14.1 Notice of Indemnification. City and Consultant hereby acknowledge and agree that this Contract contains certain indemnification obligations and covenants. 14.1 Verification No Boycott of Israel.To the extent this Contract is considered a contract for goods or services subject to §2270.002 Texas Government Code, Consultant verifies that it (i) does not boycott Israel and (ii) will not boycott Israel during the term of this Contract. 14.1 Verification No Boycott of 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 14.1 Verification No Boycott of Energy Companies.Subject to § 2274.002 Texas Government Code Consultant herein verifies that it (i) does not boycott energy companies; and (ii) will not boycott energy companies during the term of this Contract. 14.1 Force Majeure. Force majeure shall be any acts of God or the public enemy; compliance with any order, rule, regulation, decree, or request of any governmental authority or agency or person purporting to act therefore; acts of war, public disorder, rebellion, terrorism, or sabotage; floods, hurricanes, or other storms; strikes or labor disputes; or any other cause, whether or not of the class of kind specifically named or referred to herein, not within the reasonable control of the Party affected. A delay in or failure of performance of either Party shall not constitute a default hereunder nor be the basis for, or give rise to, any claim for damages, if and to the extent such delay or failure is cause by force majeure. Page 43 of 309 Contract No.__________ A&E Professional Services with Construction Page 21 Form 04-06-2023 List of Exhibits A.Scope of Services B.Payment Schedule C Certificates of Insurance CITY OF COLLEGE STATION By: City Manager Date: THE ARKITEX STUDIO, INC. By: Printed Name: Title: Date:APPROVED: City Attorney Date: __________________ Assistant City Manager/CFO Date: __________________ 4/2/2024 Michael S. Record Principal Page 44 of 309 Contract No.__________ A&E Professional Services with Construction Form EXHIBIT A SCOPE OF SERVICES Page 45 of 309 308 N. Bryan Avenue, Bryan, TX 77803 | www.arkitex.com | 979.821.2635 PROPOSAL PROJECT: City of College Station New SCADA Building February 15, 2024 The Arkitex Studio, Inc. is pleased to offer this proposal for Architectural and Engineering services for this project. Based on our observations and discussions, the following information is provided for your review: Owner Architect City of College Station The Arkitex Studio, Inc. 1101 Texas avenue 308 North Bryan Avenue College Station, Texas 77840 Bryan, Texas 77803 Project Description The City of College Station needs an additional building for SCADA to house offices and works space. The new building is anticipated to be 4,000 sf. The appearance of the building is to blend in with the newer facilities on the site. It will be located to the southeast of the Utility Dispatch Building built in 2011. The new building will include offices, a work room, secure storage, a break area, conference room, restrooms, electrical and mechanical rooms, and IDF room, and a janitor closet. The proposed site contains water lines, sanitary lines, storm sewer, underground electrical, irrigation lines and gas lines. These will all need to be relocated. The building may encroach into the existing detention pond. If so, the pond will need to be modified for proper containment. The new building is to have a new generator to run the entire building. The design phase is estimated to take 7 months. Scope of Services The Architect shall provide Architectural, Structural, Mechanical/Electrical/Plumbing and Civil Engineering Services. This includes Schematic Design, Design Development, Construction Documents, Bidding/Negotiation/Permit and Construction Administration Services as defined in the City of College Station Architects & Engineering Professional Services Contract with Construction. Specifications will be provided to accompany the construction drawings, for use in defining the nature of materials and quality. Interim progress sets will be provided for Owner review and approval at the end of each phase. After each phase review, written approval of the work will be required prior to proceeding to the next phase. Cost estimates will be provided at the end of each phase (SD, DD, and CD). A survey and geotechnical report are required for our services and are included in this scope. IT, security and AV are excluded as discussed at the pre-proposal meeting. Raceway and back boxes will be provided for these items in coordination with the City. Terms and Conditions Contract: Architectural/Engineering Services will be provided in accordance with the City of College Station Architects & Engineering Professional Services Contract with Construction Standard of Care: The standard of care for architectural services provided under this agreement will be performed with the degree of skill and care ordinarily exercised by other members of the profession under similar circumstances, at the same time and in the same or a similar locale. Limitation of Liability: In recognition of the relative risks and benefits of the Project to both the Client and the Architect, the risks have been allocated such that the Client agrees, to the fullest extent permitted by law, to limit the liability of the Architect and Architect’s officers, directors, partners, employees, Page 46 of 309 308 N. Bryan Avenue, Bryan TX 77803 | www.arkitex.com| 979.821.2635 2 shareholders, owners and sub-consultants for any and all claims, losses, costs, damages of any nature whatsoever or claims expenses from any cause or causes, including attorneys’ fees and costs and expert- witness fees and costs, so that the total aggregate liability of the Architect and Architect’s officers, directors, partners, employees, shareholders, owners and sub consultants shall not exceed the Architect’s total fee for services rendered on this Project. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by law. Fee and Schedule Proposal We propose to provide architectural services for a fixed fee of $245,300. This fee includes mechanical, electrical, plumbing engineering services by Cleary Zimmerman, structural engineering services by Dudley, civil engineering by Kimley Horn and cost estimating by AG|CM. The fee is divided into the following amounts by phases (excluding allowance amount): Schematic Design $59,460 Design Development $34,845 Construction Documents $92,920 Bidding/Negotiation/Permit $11,615 Construction Observation $46,460 Reimbursable expense allowance of $20,000 is included in this amount and will be invoiced as a separate amount at 1.15 times their actual expense incurred. All expenses will be justified by provision of records or receipts. Reimbursable expenses include prints/ copies, Texas Accessibility Review/Inspection fees, construction material testing, and other items as approved by the Owner. Additional Services, for work beyond the original scope, shall be based on the hourly rates as set forth in the attached rate sheets for each discipline. Additional Services will not be performed without written approval between the Owner and Architect. Invoices will be sent monthly, proportionate to the work accomplished, and are payable within 30 days of the date of invoice. If not paid within 30 days, unpaid balances will accrue interest at a rate of 10% per annum or 0.833 per month. We anticipate the following design schedule. Owner review time is not included. Programming 4 weeks Schematic Design 7 weeks Design Development 5 weeks Construction Documents 9 weeks. We are excited about the project and are prepared to begin the work immediately, upon receipt of the fully executed Contract. Signed, Mike Record, AIA Principal The Texas Board of Architectural Examiners has jurisdiction over individuals licensed under the Architect’s Registration Law, Texas Civil Statutes, Article 249A. The Texas Board of Architectural Examiners may be contacted using the following information: P.O. Box 12337, Austin, TX 78711-7337, or 333 Guadalupe, Suite 2-350, Austin TX 78701-3942, phone 512-305-9000 or on the web at www.tbae.state.tx.us. Page 47 of 309 April 2022 The Arkitex Studio Inc. hourly rates are as follows: Principal $200.00 Architect $180.00 Project Manager $150.00 Project Staff $100.00 Project Intern $ 80.00 Administrative Staff $ 80.00 Kimley Horn hourly rates are as follows: Analyst $160 - $275 Professional $230 - $320 Senior Professional I $245 - $390 Senior Professional II $350 - $410 Senior Technical Support $165 - $295 Support Staff $110 - $155 Technical Support $100 - $155 DUDLEY Engineering hourly rates are as follows: Principal $240.00 Project Manager $175.00 Project Engineer $150.00 Technician/Inspector $100.00 Clerical: $ 75.00 Cleary Zimmerman Engineers hourly rates are as follows: DESIGN Principal $250.00 Electrical Engineer $195.00 Technology Design Consultant $190.00 Mechanical Engineer $190.00 Mechanical Designer $150.00 Electrical Designer $160.00 Plumbing Designer $145.00 Construction Inspector $145.00 Modeling Technician $130.00 COMMISSIONING Principal $250.00 Project Manager $175.00 Mechanical Engineer $190.00 Electrical Engineer $195.00 Field Technician $145.00 SCADA SCADA Engineer $225.00 ADMINISTRATION Clerical $105.00 Accounting $150.00 HOURLY RATES Page 48 of 309 Contract No.__________ A&E Professional Services with Construction Form EXHIBIT B PAYMENT TERMS Compensation is based on actual hours of work/time devoted to providing the described professional services. The Consultant will be paid at a rate of $ per hour, or at the rates per service or employee shown below. The City will reimburse the Consultant for actual, non-salary expenses at the rate of percent ( %) above the Consultant’s actual costs, or at the rates set forth below. Unless amended by a duly authorized written change order, the total payment for all invoices on this job, including both salary and non- salary expenses, shall not exceed the amount set forth in paragraph 2.01 of this Contract: ($ ). The Consultant must submit monthly invoices to the City, accompanied by an explanation of charges, professional fees, services, and expenses. The City will pay such invoices according to its normal payment procedures. -OR- Payment is a fixed fee in the amount listed in paragraph 2.01 of this Contract. This amount shall be payable by the City pursuant to the schedule listed below and upon completion of the services and written acceptance by the City. The Consultant may submit monthly invoices to the City, accompanied by an explanation of charges, professional fees, services, and expenses. The City will pay such invoices according to its normal payment procedures. Schedule of Payment for each phase: Page 49 of 309 Contract No.__________ A&E Professional Services with Construction Form EXHIBIT C CERTIFICATE(S) OF INSURANCE Page 50 of 309 1001486 132849.12 03-16-2016 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME: CONTACT (A/C, No): FAX E-MAIL ADDRESS: PRODUCER (A/C, No, Ext): PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT ER OTH- STATUTE PER LIMITS(MM/DD/YYYY) POLICY EXP (MM/DD/YYYY) POLICY EFF POLICY NUMBERTYPE OF INSURANCELTR INSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO- JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY 03/22/2024 Lance Snider State Farm Agency 3608 East 29th St., Suite 112 Bryan, TX 77802 Lance Snider 979-703-1011 979-703-1104 lance@agentsnider.com THE ARKITEX STUDIO INC 308 N BRYAN AVE BRYAN, TX 77803 25143 25178 01 03 A X X 1,000,000 300,000 5,000 1,000,000 2,000,000 2,000,000 A X X 90-63-3298-5 06/22/2018 06/22/2024 1,000,000 B X X 90-CS-W652-5 06/09/2021 06/09/2024 3,000,000 3,000,000 B N X 90-E2-U701-0 04/30/2021 04/30/2024 1,000,000 1,000,000 1,000,000 All policies, except for Workers Compensation shall endorse City Of College Station and the Client as additional insureds. All policies, except Workers Compensation, shall include primary/noncontributory endorsement. All Policies include a waiver of subrogation. City Of College Station 1101 Texas Ave College Station, TX 77840 State Farm and Casualty Company State Farm Mutual Automobile Insurance Company 90-63-3298-5 06/22/2018 06/22/2024 Page 51 of 309 1. SECTION II — WHO IS AN INSURED of SECTION II — LIABILITY is amended to in- clude, as an additional insured, any person or organization shown in the Schedule, but only with respect to liability for "bodily in- jury", "property damage", or "personal and advertising injury" caused, in whole or in part, by: a. Ongoing Operations (1) Your acts or omissions; or (2) The acts or omissions of those acting on your behalf; in the performance of your ongoing opera- tions for that additional insured; or Name And Address Of Additional Insured Person Or Organization: CITY OF COLLEGE STATION 1101 TEXAS AVE S COLLEGE STA TX 77840 b. Products-Completed Operations "Your work" performed for that additional insured and included in the "products- completed operations hazard". 2. Any insurance provided to the additional in- sured shall only apply with respect to a claim made or a "suit" brought for damages for which you are provided coverage. 3. Primary Insurance. The insurance afforded the additional insured shall be primary insur- ance. Any insurance carried by the additional insured shall be noncontributory with respect to coverage provided by you. There will be no refund of premium in the event this endorsement is cancelled. All other policy provisions apply. CMP-4786 Page 1 of 1 CMP-4786 CMP-4786 ADDITIONAL INSURED — OWNERS, LESSEES, OR CONTRACTORS (Scheduled) THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY JA Policy No.90-63-3298-5 2208-FBD5 This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM SCHEDULE Policy Number: Named Insured: THE ARKITEX STUDIO INC 308 N BRYAN AVE BRYAN TX 77803-3248 , Copyright, State Farm Mutual Automobile Insurance Company, 2008 Includes copyrighted material of Insurance Services Office, Inc., with its permission. © 90-63-3298-5 1006104 137713.1 10-23-2013 Page 52 of 309 Name And Address Of Person Or Organization: CITY OF COLLEGE STATION 1101 TEXAS AVE S COLLEGE STA TX 77840 The following is added to Paragraph 10.b. of SECTION I AND SECTION II — COMMON POLICY CONDITIONS: We waive any right of recovery we may have against the person or organization shown in the Schedule because of payments we make for injury or damage arising out of: a. Your ongoing operations; or b. "Your work" done under contract with that person or organization and included in the "products- completed operations hazard". This waiver applies only to the person or organization shown in the Schedule. All other policy provisions apply. 1006225 137715.1 11-19-2013 CMP-4787 Page 1 of 1 CMP-4787 CMP-4787 WAIVER OF TRANSFER OF RIGHTS OR RECOVERY AGAINST OTHERS TO US THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY JA Policy No.90-63-3298-5 2208-FBD5 This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM SCHEDULE Policy Number: Named Insured: THE ARKITEX STUDIO INC 308 N BRYAN AVE BRYAN TX 77803-3248 , Copyright, State Farm Mutual Automobile Insurance Company, 2008 Includes copyrighted material of Insurance Services Office, Inc., with its permission. © 90-63-3298-5 Page 53 of 309 April 11, 2024 Item No. 7.1. Drought Contingency and Water Conservation Plan Update Sponsor: Gary Mechler, Director of Water Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action regarding proposed updates to the City’s Drought Contingency and Water Conservation Plans. Relationship to Strategic Goals: Core services and infrastructure. Recommendation(s): Staff recommends Council receive information regarding proposed updates to the City’s Drought Contingency and Water Conservation Plans. Summary: In 2019, the College Station City Council adopted the current Drought Contingency Plan and a Water Conservation Plans. The Drought Contingency Plan serves as a response to temporary water supply shortages and sets targets for water use reductions. Meanwhile, the Water Conservation Plan comprises strategies aimed at achieving water conservation targets and goals. The proposed 2024 Drought Contingency and Water Conservation Plans feature enhancements intended to improve water demand reduction and address system strains during periods of heightened water demand or emergencies. Both plans are subject to renewal and submission to regulatory agencies every five (5) years. Budget & Financial Summary: Attachments: None Page 54 of 309 April 11, 2024 Item No. 7.2. 2023 College Station Police Department Annual Contact Report Sponsor: Billy Couch Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action regarding the annual traffic contact report required by Senate Bill 1074 of the Texas 77th legislative session. Relationship to Strategic Goals: Core Services and Infrastructure Recommendation(s): This item is presented according to statutory requirements. Staff requests Council's acceptance of this report. Summary: Each year, in an effort to remain transparent to our community, the police department employs an independent consultant to analyze traffic contact data and develop this report. The report indicates that the department is in compliance with state law and continues to employ best practice strategies. Since January 1, 2002, the College Station Police Department, in accordance with Texas Racial Profiling Law (SB No. 1074), has been required to implement and mandate policy and procedures to satisfy the requirements of the law. This report indicates that we are in compliance with the law. Budget & Financial Summary: N/A Attachments: 1. 2023 Racial Profiling Report - Alex del Carmen Page 55 of 309 COLLEGE STATION POLICE DEPARTMENT Page 56 of 309 Page 57 of 309 1 Dr. Ale><. de( Can11Len's work on racial prof ilin.g e><.eMplifies the ver8 best of the Sandra 13land Act, naMed after M8 daughter. rY\g daughter's pledge to fight for ir;justice is foest represented in the high quali~ of Vr. de( CarMen's reports which in.elude, as required h8 law, the data an.a~sis, audits, findings and recoMMendations. I COMM.end the agencies that work with hiM as it is clear that the8 have eMforaced tran.sparenc8 and adherence to the law.a -Quote by Geneva Reed (Mother of Sandra Bland) February 12, 2024 College Station City Council 1101 Texas Ave. College Station, TX 77840 Dear Distinguished Members of the City Council, In 2001 the Texas Legislature, with the intent of addressing the issue of racial profiling in policing, enacted the Texas Racial Profiling Law. During the last calendar year, the College Station Police Department, in accordance with the law, has collected and reported traffic and motor vehicle related contact data for the purpose of identifying and addressing (if necessary) areas of concern regarding racial profiling practices. In the 2009 Texas legislative session, the Racial Profiling Law was modified and additional requirements were implemented. Further, in 2017 the Sandra Bland Act was passed and signed into law (along with HB 3051, which introduced new racial and ethnic designations). The Sandra Bland Law currently requires that law enforcement agencies in the state collect additional data and provide a more detailed analysis. All of these requirements have been met by the College Station Police Department and are included in this report. In this report, you will find three sections with information on motor vehicle-related contacts. In addition, when appropriate, documentation is included which demonstrates the manner in which the College Station Police Department has complied with the Texas Racial Profiling Law. In section one, you will find the table of contents. Section two documents compliance by the College Station Police Department relevant to the requirements established in the Texas Racial Profiling Law. That is, you will find documents relevant to the training of all police personnel on racial profiling prevention and the institutionalization of the compliment and complaint processes, as required by law. Finally, section three contains statistical data relevant to contacts (as defined by the law) which were made during the course of motor vehicle stops that took place between 1 /1 /23 and 12/31 /23. Further, this section contains the Tier 2 form, which is required to be submitted to this particular organization and the law enforcement agency's local governing authority by March 1 of each year. The data in this report has been analyzed and compared to information derived from the U.S. Census Bureau's Fair Roads Standard. The final analysis and recommendations are also included in this report. In the last section of the report, you will find the original draft of the Texas Racial Profiling Law, SB1074, as well as the Sandra Bland Act (current law). Also in this section, a list of requirements relevant to the Racial Profiling Law, as established by TCOLE (Texas Commission on Law Enforcement), is included. The findings in this report support the College Station Police Department's commitment to comply with the Texas Racial Profiling Law. Sincerely, Alex del Carmen, Ph.D. 2 Page 58 of 309 Page 59 of 309 Table of Contents Introduction 2 Letter to Council Members 3 Table of Contents Responding to the Law 4 Public Education on Filing Compliments and Complaints S Racial Profiling Course Number 3256 11 Reports on Compliments and Racial Profiling Complaints 13 Tier 2 Data (Includes tables) Analysls and Interpretation of Data 23 Tier 2 Motor Veh i cle-Related Contact Analysi s 24 Comparative Analysis 26 Summary of Findings 27 Checklist Legislative and Administrative Addendum 29 TCOLE Guidelines 34 The Texas Law on Racial Profiling I I I I 41 Modifications to the Original Law 'I ~ • I 49 Racial and Ethnic Designations .I JI I I 50 The Sandra Bland Act 51 College Station Police Department Racial Profiling Policy 3 Page 60 of 309 -~~----J'J' __ J'J' ~~~----,,__~-,,-""" ' /../ '~-1~~,,-,\/'\,,-~_,--- Pub I ic Education on Responding t~ ~. Compliments and Complaints ~---, OI, ~'-·-' Informing the Public on the Process of Filing a Compliment or Complaint with the College Station Police Department The Texas Racial Profiling Law requires that police agencies provide information to the public regarding the manner in which to file a compliment or racial profiling complaint. In an effort to comply with this particular component, the College Station Police Department launched an educational campaign aimed at informing the public on issues relevant to the racial profiling complaint process. The police department made available, in the lobby area and on its web site, information relevant to filing a compliment and complaint on a racial profiling violation by a College Station Police Officer. In addition, each time an officer issues a citation, ticket or warning, information on how to file a compliment or complaint is given to the individual cited. This information is in the form of a web address {including in the document issued to the citizen), which has instructions and details specifics related to the compliment or complaint processes. It is believed that through these efforts, the community has been properly informed of the new policies and the complaint processes relevant to racial profiling. All College Station Police Officers have been instructed, as specified in the Texas Racial Profiling Law, to adhere to all Texas Commission on Law Enforcement {TCOLE) training and the Law Enforcement Management Institute of Texas {LEMIT) requirements. To date, all sworn officers of the College Station Police Department have completed the TCOLE basic training on racial profiling. The main outline used to train the officers of College Station has been included in this report. It is important to recognize that the Chief of the College Station Police Department has also met the training requirements, as specified by the Texas Racial Profiling Law, in the completion of the LEMIT program on racial profiling. The satisfactory completion of the racial profiling training by the sworn personnel of the College Station Police Department fulfills the training requirement as specified in the Education Code (96.641) of the Texas Racial Profiling Law. 4 Racial Profiling 3256 Instructor's Note: You may wish to teach this course in conjunction with Asset Forfeiture 3255 because of the related subject matter and applicability of the courses. If this course is taught in conjunction with Asset Forfeiture, you may report it under Combined Profiling and Forfeiture 3257 to reduce data entry. Abstract This instructor guide is designed to meet the educational requirement for racial profiling established by legislative mandate: 77R-SB1074. Target Population: Licensed law enforcement personnel in Texas Prerequisites: Experience as a law enforcement officer Length of Course: A suggested instructional time of 4 hours Material Requirements: Overhead projector, chalkboard and/or flip charts, video tape player, handouts, practical exercises, and demonstrations Instructor Qualifications: Instructors should be very knowledgeable about traffic stop procedures and law enforcement issues Evaluation Process and Procedures An examination should be given. The instructor may decide upon the nature and content of the examination. It must, however, sufficiently demonstrate the mastery of the subject content by the student. Reference Materials Reference materials are located at the end of the course. An electronic copy of this instructor guide may be downloaded from our web site at http://www.tcleose.state.tx.us. Racial Profiling Course 3256 Texas Commission on Law Enforcement September 2001 5 Page 61 of 309 Lorem ipsum dolor sit amet consetetur sadipscing elitr. Lorem ipsum dolor sit amet consetetur sadipscing elitr. Racial Profiling 3256 1.0 RACIAL PROFILING AND THE LAW 1.1 UNIT GOAL: The student will be able to identify the legal aspects of racial profiling. 1.1.1 LEARNING OBJECTIVE: The student will be able to identify the legislative requirements placed upon peace officers and law enforcement agencies regarding racial profiling. Racial Profiling Requirements: Racial profiling CCP 3.05 Racial profiling prohibited CCP 2.131 Law enforcement policy on racial profiling CCP 2.132 Reports required for traffic and pedestrian stops CCP 2.133 Liability CCP 2.136 Racial profiling education for police chiefs Education Code 96.641 Training program Occupations Code 1701.253 Training required for intermediate certificate Occupations Code 1701.402 Definition of "race or ethnicity" for form Transportation Code 543.202 A. Written departmental policies 1. Definition of what constitutes racial profiling 2. Prohibition of racial profiling 3. Complaint process 4. Public education 5. Corrective action 6. Collection of traffic-stop statistics 7. Annual reports B. Not prima facie evidence C. Feasibility of use of video equipment D. Data does not identify officer E. Copy of complaint-related video evidence to officer in question F. Vehicle stop report 1. Physical description of detainees: gender, race or ethnicity 2. Alleged violation 3. Consent to search 4. Contraband 5. Facts supporting probable cause 6. Arrest 7. Warning or citation issued G. Compilation and analysis of data H.Exemption from reporting ? audio/video equipment I. Officer non-liability J. Funding K. Required training in racial profiling 1. Police chiefs 2. All holders of intermediate certificates and/or two-year-old licenses as of 09/01/2001 (training to be completed no later than 09/01/2003) ? see legislation 77R-SB1074 6 Page 62 of 309 7 1.1.2 LEARNING OBJECTIVE: The student will become familiar with Supreme Court decisions and other court decisions involving appropriate actions in traffic stops. A. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769 (1996) 1. Motor vehicle search exemption 2. Traffic violation acceptable as pretext for further investigation 3. Selective enforcement can be challenged B. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968) 1. Stop & Frisk doctrine 2. Stopping and briefly detaining a person 3. Frisk and pat down C. Other cases 1. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330 (1977) 2. Maryland v. Wilson, 117 S.Ct. 882 (1997) 3. Graham v. State, 119 MdApp 444, 705 A.2d 82 (1998) 4. Pryor v. State, 122 Md.App. 671 (1997) cert. denied 352 Md. 312, 721 A.2d 990 (1998) 5. Ferris v. State, 355 Md. 356, 735 A.2d 491 (1999) 6. New York v. Belton, 453 U.S. 454 (1981) Page 63 of 309 8 2.0 RACIAL PROFILING AND THE COMMUNITY 2.1 UNIT GOAL: The student will be able to identify logical and social arguments against racial profiling. 2.1.1 LEARNING OBJECTIVE: The student will be able to identify logical and social arguments against racial profiling. A. There are appropriate reasons for unusual traffic stops (suspicious behavior, the officer's intuition, MOs, etc.), but police work must stop short of cultural stereotyping and racism. B. Racial profiling would result in criminal arrests, but only because it would target all members of a race randomly ? the minor benefits would be far outweighed by the distrust and anger towards law enforcement by minorities and the public as a whole. C. Racial profiling is self-fulfilling bad logic: if you believed that minorities committed more crimes, then you might look for more minority criminals, and find them in disproportionate numbers. D. Inappropriate traffic stops generate suspicion and antagonism towards officers and make future stops more volatile ? a racially-based stop today can throw suspicion on tomorrow's legitimate stop. E. By focusing on race, you would not only be harassing innocent citizens, but overlooking criminals of all races and backgrounds ? it is a waste of law enforcement resources. Page 64 of 309 3.0 RACIAL PROFILING VERSUS REASONABLE SUSPICION 3.1 UNIT GOAL: The student will be able to identify the elements of both inappropriate and appropriate traffic stops. 3.1.1 LEARNING OBJECTIVE: The student will be able to identify elements of a racially motivated traffic stop. A. Most race-based complaints come from vehicle stops, often since race is used as an inappropriate substitute for drug courier profile elements B. "DWB" ? "Driving While Black" ? a nickname for the public perception that a Black person may be stopped solely because of their race (especially with the suspicion that they are a drug courier), often extended to other minority groups or activities as well ("Driving While Brown," "Flying While Black," etc.) C. A typical traffic stop resulting from racial profiling 1. The vehicle is stopped on the basis of a minor or contrived traffic violation which is used as a pretext for closer inspection of the vehicle, driver, and passengers 2. The driver and passengers are questioned about things that do not relate to the traffic violation 3. The driver and passengers are ordered out of the vehicle 4. The officers visually check all observable parts of the vehicle 5. The officers proceed on the assumption that drug courier work is involved by detaining the driver and passengers by the roadside 6. The driver is asked to consent to a vehicle search ? if the driver refuses, the officers use other procedures (waiting on a canine unit, criminal record checks, license-plate checks, etc.), and intimidate the driver (with the threat of detaining him/her, obtaining a warrant, etc.) 9 Page 65 of 309 3.1.2 LEARNING OBJECTIVE: The student will be able to identify elements of a traffic stop which would constitute reasonable suspicion of drug courier activity. A. Drug courier profile (adapted from a profile developed by the DEA) 1. Driver is nervous or anxious beyond the ordinary anxiety and cultural communication styles 2. Signs of long-term driving (driver is unshaven, has empty food containers, etc.) 3. Vehicle is rented 4. Driver is a young male, 20-35 5. No visible luggage, even though driver is traveling 6. Driver was over-reckless or over-cautious in driving and responding to signals 7. Use of air fresheners B. Drug courier activity indicators by themselves are usually not sufficient to justify a stop 3.1.3 LEARNING OBJECTIVE: The student will be able to identify elements of a traffic stop which could constitute reasonable suspicion of criminal activity. A. Thinking about the totality of circumstances in a vehicle stop B. Vehicle exterior 1. Non-standard repainting (esp. on a new vehicle) 2. Signs of hidden cargo (heavy weight in trunk, windows do not roll down, etc.) 3. Unusual license plate suggesting a switch (dirty plate, bugs on back plate, etc.) 4. Unusual circumstances (pulling a camper at night, kids' bikes with no kids, etc.) C. Pre-stop indicators 1. Not consistent with traffic flow 2. Driver is overly cautious, or driver/passengers repeatedly look at police car 3. Driver begins using a car- or cell-phone when signaled to stop 4. Unusual pull-over behavior (ignores signals, hesitates, pulls onto new street, moves objects in car, etc.) D. Vehicle interior 1. Rear seat or interior panels have been opened, there are tools or spare tire, etc. 2. Inconsistent items (anti-theft club with a rental, unexpected luggage, etc.) Resources Proactive Field Stops Training Unit ? Instructor's Guide, Maryland Police and Correctional Training Commissions, 2001. (See Appendix A.) Web address for legislation 77R-SB1074: http://tlo2.tlc.state.tx.us/tlo/77r/billtext/SB01074F.htm 10 Page 66 of 309 11 Report on Compliments and Racial Profiling Complaints Page 67 of 309 -Quote Author Report on Complaints The following table contains data regarding officers that have been the subject of a complaint, during the time period of 1/1/23-12/31/23 based on allegations outlining possible violations related to the Texas Racial Profiling Law. The final disposition of the case is also included. A check above indicates that the College Station Police Department has not received any complaints, on any members of its police services, for having violated the Texas Racial Profiling Law during the time period of 1/1/23-12/31/23. Complaints Filed for Possible Violations of The Texas Racial Profiling Law Complaint Number Alleged Violation Disposition of the Case Additional Comments: 12 Page 68 of 309 Title Goes H er e 555-555-5555 1234 5th Ave. NYC, NY 00000 13 Male Total: 15,019TOTAL STOPS: 25,863 RACE OR ETHNICITY Alaska Native/American Indian 18 Asian/Pacific Islander 1,337 Black 4,904 White 15,207 Hispanic/Latino 4,397 WAS RACE OR ETHNICITY KNOWN PRIOR TO STOP? Yes 2,705 No 23,158 STREET ADDRESS OR APPROXIMATE LOCATION OF STOP. City Street 23,710 US Highway 0 State Highway 2,040 County Road 0 Private Property 113 GENDER Female Total: 10,844 Alaska Native/American Indian 9 Asian/Pacific Islander 443 Black 1,895 White 6,868 Hispanic/Latino 1,629 Alaska Native/American Indian 9 Asian/Pacific Islander 894 Black 3,009 White 8,339 Hispanic/Latino 2,768 REASON FOR STOP? Violation of Law Total: 1,710 Alaska Native/American Indian 1 Asian/Pacific Islander 46 Black 494 White 869 Hispanic/Latino 300 Pre-existing Knowledge Total: 322 Alaska Native/American Indian 0 Asian/Pacific Islander 8 Black 137 White 120 Hispanic/Latino 57 Moving Traffic Violation Total: 17,929 Alaska Native/American Indian 5 Asian/Pacific Islander 1,036 Black 2,948 White 10,927 Hispanic/Latino 3,013 Tables Illustrating Motor Vehicle-Related Contacts TIER 2 DATA Page 69 of 309 14 Vehicle Traffic Violation Total: 5,902 Alaska Native/American Indian 12 Asian/Pacific Islander 247 Black 1,325 White 3,291 Hispanic/Latino 1,027 WAS SEARCH CONDUCTED? REASON FOR SEARCH? Consent Total: 140 Alaska Native/American Indian 0 Asian/Pacific Islander 2 Black 56 White 52 Hispanic/Latino 30 Contraband (in plain view) Total: 17 Alaska Native/American Indian 0 Asian/Pacific Islander 1 Black 3 White 10 Hispanic/Latino 3 Probable Cause Total: 492 Alaska Native/American Indian 0 Asian/Pacific Islander 2 Black 285 White 129 Hispanic/Latino 76 Alaska Native/American Indian 0 Asian/Pacific Islander 0 Black 2 White 9 Hispanic/Latino 2 Incident to Arrest Total : 82 Alaska Native/American Indian 0 Asian/Pacific Islander 1 Black 27 White 33 Hispanic/Latino 21 YES NO Alaska Native/American Indian 0 18 Asian/Pacific Islander 6 1,331 Black 373 4,531 White 233 14,974 Hispanic/Latino 132 4,265 TOTAL 744 25,119 Inventory Total: 13 TIER 2 DATA Page 70 of 309 WAS CONTRABAND DISCOVERED? Did the finding result in arrest? YES NO Alaska Native/American Indian 0 0 Asian/Pacific Islander 0 2 Black 79 156 White 50 96 Hispanic/Latino 34 43 TOTAL 163 297 DESCRIPTION OF CONTRABAND Drugs Total: 276 Alaska Native/American Indian 0 Asian/Pacific Islander 0 Black 159 White 71 Hispanic/Latino 46 Currency Total: 3 Alaska Native/American Indian 0 Asian/Pacific Islander 0 Black 0 White 2 Hispanic/Latino 1 Weapons Total: 15 Alaska Native/American Indian 0 Asian/Pacific Islander 0 Black 9 White 4 Hispanic/Latino 2 Alcohol Total: 68 Alaska Native/American Indian 0 Asian/Pacific Islander 2 Black 18 White 35 Hispanic/Latino 13 YES NO Alaska Native/American Indian 0 0 Asian/Pacific Islander 2 4 Black 235 138 White 146 87 Hispanic/Latino 77 55 TOTAL 460 284 15 TIER 2 DATA Page 71 of 309 Stolen Property Total: 2 Alaska Native/American Indian 0 Asian/Pacific Islander 0 Black 0 White 1 Hispanic/Latino 1 Other Total: 96 Alaska Native/American Indian 0 Asian/Pacific Islander 0 Black 49 White 33 Hispanic/Latino 14 RESULT OF THE STOP Verbal Warning Total: 509 Alaska Native/American Indian 1 Asian/Pacific Islander 25 Black 150 White 236 Hispanic/Latino 97 Written Warning Total: 15,262 Alaska Native/American Indian 12 Asian/Pacific Islander 733 Black 3,318 White 8,800 Hispanic/Latino 2,399 Citation Total: 9,791 Alaska Native/American Indian 5 Asian/Pacific Islander 578 Black 1,294 White 6,073 Hispanic/Latino 1,841 Written Warning and Arrest Total: 238 Alaska Native/American Indian 0 Asian/Pacific Islander 0 Black 113 White 77 Hispanic/Latino 48 Citation and Arrest Total: 51 Alaska Native/American Indian 0 Asian/Pacific Islander 1 Black 24 White 18 Hispanic/Latino 8 Arrest Total: 12 Alaska Native/American Indian 0 Asian/Pacific Islander 0 Black 5 White 3 Hispanic/Latino 4 16 TIER 2 DATA Page 72 of 309 Alaska Native/American Indian 0 Asian/Pacific Islander 0 Black 77 White 74 Hispanic/Latino 41 Violation of Penal Code Total: 192 ARREST BASED ON Violation of Traffic Law Total: 16 Alaska Native/American Indian 0 Asian/Pacific Islander 0 Black 5 White 7 Hispanic/Latino 4 Violation of City Ordinance Total: 0 Alaska Native/American Indian 0 Asian/Pacific Islander 0 Black 0 White 0 Hispanic/Latino 0 Outstanding Warrant Total: 93 Alaska Native/American Indian 0 Asian/Pacific Islander 1 Black 60 White 17 Hispanic/Latino 15 Was physical force used resulting in bodily injury during the stop? YES NO Alaska Native/American Indian 0 18 Asian/Pacific Islander 0 1,337 Black 2 4,902 White 0 15,207 Hispanic/Latino 0 4,397 TOTAL 2 25,861 17 TIER 2 DATA Page 73 of 309 18 Table 1. Citations and Warnings Race/ Ethnicity All Contacts Citations Verbal Warning Written Warning Contact Percent Citation Percent Verbal Percent Written Percent Alaska Native/ American Indian 18 5 1 12 0%0%0%0% Asian/ Pacific Islander 1,337 579 25 733 5%6%5%5% Black 4,904 1,318 150 3,318 19%13%29%22% White 15,207 6,091 236 8,800 59%62%46%58% Hispanic/ Latino 4,397 1,849 97 2,399 17%19%19%16% TOTAL 25,863 9,842 509 15,262 100%100%100%100% 18 Tables Illustrating Motor Vehicle Related Contact Data Page 74 of 309 Race/Ethnicity Contact Percentage Households with Vehicle Access Alaska Native/American Indian 0%0% Asian/Pacific Islander 5%9% Black 19%5% White 59%74% Hispanic/Latino 17%10% TOTAL 100%98% Table 2. Motor Vehicle Contacts and Fair Roads Standard Comparison Comparison of motor vehicle-related contacts with households that have vehicle access. Table 3. Motor Vehicle Searches and Arrests. Race/Ethnicity Searches Consent Searches Arrests Alaska Native/American Indian 0 0 0 Asian/Pacific Islander 6 2 1 Black 373 56 142 White 233 52 98 Hispanic/Latino 132 30 60 TOTAL 744 140 301 19 Page 75 of 309 Table 4. Instances Where Peace Officers Used Physical Force Resulting in Bodily Injury Instances Where Peace Officers Used Physical Force that Resulted in Bodily Injury Arrest Location of Stop Reason for Stop 1 04/30/23 2420 Texas Avenue South Vehicle Traffic Violation 2 06/19/23 Manuel Drive/Cornell Drive Moving Traffic Violation Table 5. Search Data Race/ Ethnicity Searches Contraband Found Yes Contraband Found No Arrests Percent Searches Percent Contraband Found Percent No Contraband Percent Arrest Alaska Native/ American Indian 0 0 0 0 0%0%0%0% Asian/ Pacific Islander 6 2 4 1 1%0%1%0% Black 373 235 138 142 50%51%49%47% White 233 146 87 98 31%32%31%33% Hispanic/ Latino 132 77 55 60 18%17%19%20% TOTAL 744 460 284 301 100%100%100%100% 20 Page 76 of 309 Table 6. Report on Audits. The following table contains data regarding the number and outcome of required data audits during the period of 1/1/23-12/31/23. Audit Data Number of Data Audits Completed Date of Completion Outcome of Audit 1 1 03/01/23 Data was valid and reliable 2 1 06/01/23 Data was valid and reliable 3 1 09/01/23 Data was valid and reliable 4 1 12/01/23 Data was valid and reliable ADDITIONAL COMMENTS: Race/Ethnicity Number Percent Alaska Native/American Indian 0 0% Asian/Pacific Islander 0 0% Black 2 100% White 0 0% Hispanic/Latino 0 0% TOTAL 2 100% Table 7. Instance Where Force Resulted in Bodily Injury. 21 Page 77 of 309 Table 9. Contraband Hit Rate Table 8. Reason for Arrests from Vehicle Contact Race/ Ethnicity Violation of Penal Code Violation of Traffic Law Violation of City Ordinance Outstanding Warrant Percent Penal Code Percent Traffic Law Percent City Ordinance Percent Warrant Alaska Native/ American Indian 0 0 0 0 0%0%0%0% Asian/ Pacific Islander 0 0 0 1 0%0%0%1% Black 77 5 0 60 40%31%0%65% White 74 7 0 17 39%44%0%18% Hispanic/ Latino 41 4 0 15 21%25%0%16% TOTAL 192 16 0 93 100%100%0%100% Race/ Ethnicity Searches Contraband Found Yes Contraband Hit Rate Search Percent Contraband Percent Alaska Native/ American Indian 0 0 0%0%0% Asian/ Pacific Islander 6 2 33%1%0% Black 373 235 63%50%51% White 233 146 63%31%32% Hispanic/Latino 132 77 58%18%17% 22 Page 78 of 309 In 2001, the Texas Legislature passed Senate Bill 1074, which eventually became the Texas Racial Profiling Law. This particular law came into effect on January 1, 2002 and required all police departments in Texas to collect traffic-related data and report this information to their local governing authority by March 1 of each year. This law remained in place until 2009, when it was modified to include the collection and reporting of all motor vehicle-related contacts in which a citation was issued or an arrest was made. Further, the modification to the law further requires that all police officers indicate whether or not they knew the race or ethnicity of the individuals before detaining them. In addition, it became a requirement that agencies report motor vehicle-related data to their local governing authority and to the Texas Commission on Law Enforcement (TCOLE) by March 1 of each year. The purpose in collecting and disclosing this information is to determine if police officers in any particular municipality are engaging in the practice of racially profiling minority motorists. One of the central requirements of the law is that police departments interpret motor vehicle-related data. Even though most researchers would likely agree that it is within the confines of good practice for police departments to be accountable to the citizenry while carrying a transparent image before the community, it is in fact very difficult to determine if individual police officers are engaging in racial profiling from a review and analysis of aggregate/institutional data. In other words, it is challenging for a reputable researcher to identify specific ?individual? racist behavior from aggregate-level ?institutional? data on traffic or m otor vehicle-related contacts. As previously noted, in 2009 the Texas Legislature passed House Bill 3389, which modified the Racial Profiling Law by adding new requirements; this took effect on January 1, 2010. The changes included, but are not limited to, the re-definition of a contact to include motor vehicle-related contacts in which a citation was issued or an arrest was made. In addition, it required police officers to indicate if they knew the race or ethnicity of the individual before detaining them. The 2009 law also required adding "Middle Eastern" to the racial and ethnic category and submitting the annual data report to TCOLE before March 1 of each year. 23 Analysis and Interpretation of Data Page 79 of 309 In 2017, the Texas Legislators passed HB 3051 which removed the Middle Eastern data requirement while standardizing the racial and ethnic categories relevant to the individuals that came in contact with police. In addition, the Sandra Bland Act (SB 1849) was passed and became law. Thus, the most significant legislative mandate (Sandra Bland Act) in Texas history regarding data requirements on law enforcement contacts became law and took effect on January 1, 2018. The Sandra Bland Act not only currently requires the extensive collection of data relevant to police motor vehicle contacts, but it also mandates for the data to be analyzed while addressing the following: 1. A comparative analysis of the information compiled (under Article 2.133): a. Evaluate and compare the number of motor vehicle stops, within the applicable jurisdiction, of persons who are recognized as racial or ethnic minorities and persons who are not recognized as racial or ethnic minorities; b. Examine the disposition of motor vehicle stops made by officers employed by the agency, categorized according to the race or ethnicity of the affected persons, as appropriate, including any searches resulting from stops within the applicable jurisdiction; c. Evaluate and compare the number of searches resulting from motor vehicle stops within the applicable jurisdiction and whether contraband or other evidence was discovered in the course of those searches. 2. Information related to each complaint filed with the agency alleging that a peace officer employed by the agency has engaged in racial profiling. As part of their effort to comply with The Texas Racial Profiling/Sandra Bland Law, the College Station Police Department commissioned the analysis of its 2023 contact data. Hence, two different types of data analyses were performed. The first of these involved a careful evaluation of the 2023 motor vehicle-related data. This particular analysis measured, as required by the law, the number and percentage of Whites, Blacks, Hispanics or Latinos, Asians and Pacific Islanders, Alaska Natives and American Indians (Middle Easterners and individuals belonging to the ?other? category, as optional categories), who came in contact with police in the course of a motor vehicle-related contact and were either issued a ticket, citation, or warning or an arrest was made. Also included in this data were instances when a motor vehicle contact took place for an alleged violation of the law or ordinance. The Tier 2 data analysis included, but was not limited to, information relevant to the number and percentage of contacts by race/ethnicity, gender, reason for the stop, location of stop, searches while indicating the type of search performed, result of stop, basis of an arrest, and use of physical force resulting in bodily injury. The analysis on the data performed in this report, was based on a comparison of the 2023 motor vehicle contact data with a specific baseline. When reading this particular analysis, one should consider that there is disagreement in the literature regarding the appropriate baseline to be used when analyzing motor vehicle-related contact information. Of the baseline measures available, the College Station Police Department accepted our recommendation to rely, as a baseline measure, on the Fair Roads Standard. This particular baseline is established on data obtained through the U.S. Census Bureau (2020) relevant to the number of households that have access to vehicles while controlling for the race and ethnicity of the heads of households. 24 Page 80 of 309 It should be noted that the census data presents challenges to any effort made at establishing a fair and accurate racial profiling analysis. That is, census data contains information on all residents of a particular community, regardless whether they are among the driving population. Further, census data, when used as a baseline of comparison, presents the challenge that it captures information related to city residents only, thus excluding individuals who may have come in contact with the College Station Police Department in 2023 but live outside city limits. In some jurisdictions the percentage of the population that comes in contact with the police but lives outside city limits represents a substantial volume of all motor vehicle-related contacts made in a given year. In 2002, some civil rights groups in Texas expressed their concern and made recommendations to the effect that all police departments should rely, in their data analysis, on the Fair Roads Standard. This source contains census data specific to the number of ?households? that have access to vehicles. Thus, proposing to compare ?households? (which may have multiple residents and only a few vehicles) with ?contacts? (an individual-based count). In essence this constitutes a comparison that may result in ecological fallacy. Despite this risk, as noted earlier, the College Station Police Department accepted the recommendation to utilize this form of comparison (i.e., census data relevant to households with vehicles) in an attempt to demonstrate its ?good will? and ?transparency? before the community. Thus, the Fair Roads Standard data obtained and used in this study is specifically relevant College Station. Tier 2 (2023) Motor Vehicle-Related Contact Analysis When examining the enhanced and more detailed Tier 2 data collected in 2023, it was evident that most motor vehicle-related contacts were made with Whites, followed by Blacks. Of those who came in contact with police, most tickets or citations were issued to Whites and Hispanics; this was followed by Blacks. However, in terms of written warnings, most of these were issued to Whites, followed by Blacks. While reviewing searches and arrests, the data showed that most searches took place among Blacks. When considering all searches, most were consented by Blacks and Whites, while most custody arrests were also of Blacks. Overall, most searches resulted in contraband; of those that produced contraband, most were of Blacks; this was followed by Whites. Of the searches that did not produce contraband, most were of Blacks. Most arrests were made of Blacks. Most of the arrests that originated from a violation of the penal code involved Blacks. Overall, the police department reports two instances where force was used that resulted in bodily injury. Comparative Analysis A comprehensive analysis of the motor vehicle contacts made in 2023 to the census data relevant to the number of ?households? in College Station who indicated in the 2020 census that they had access to vehicles, produced interesting findings. Specifically, the percentage of Whites, Asians, and American Indians who came in contact with police was the same or lower than the percentage of White, Asian, and American Indian households in College Station that claimed in the last census to have access to vehicles. The opposite was true of Blacks and Hispanics. That is, a higher percentage of Blacks and Hispanics came in contact with police than the percentage of Black and Hispanic households in College Station that claimed in the last census to have access to vehicles. 25 Page 81 of 309 The comprehensive analysis of the searches resulting in contraband shows that the most significant contraband hit rate is of Whites and Blacks. This was followed by Hispanics. This means that among all searches performed in 2023, the most significant percentage of these that resulted in contraband was among Whites and Blacks. The lowest contraband hit rate was among Asians. Summary of Findings As referenced earlier, the most recent Texas Racial Profiling Law requires that police departments perform data audits in order to validate the data being reported. Consistent with this requirement, the College Station Police Department has engaged del Carmen Consulting, LLC in order to perform these audits in a manner consistent with normative statistical practices. As shown in Table 6, the audit performed reveals that the data is valid and reliable. Further, as required by law, this report also includes an analysis on the searches performed. This analysis includes information on whether contraband was found as a result of the search while controlling for race/ethnicity. The search analysis d emonstrates that the police department is engaging in search practices consistent with national trends in law enforcement. While considering the findings produced as a result of this analysis, it is recommended that the College Station Police Department should continue to collect and evaluate additional information on motor vehicle contact data (i.e., reason for probable cause searches, contraband detected), which may prove to be useful when determining the nature of the contacts police officers are making with all individuals. As part of this effort, the College Station Police Department should continue to: 1) Perform an independent analysis on contact and search data in the upcoming year. 2) Commission data audits in 2024 in order to assess data integrity; that is, to ensure that the data collected is consistent with the data being reported. The comprehensive data analysis performed serves as evidence that the College Station Police Department has complied with the Texas Racial Profiling Law and all of its requirements. Further, the report demonstrates that the police department has incorporated a comprehensive racial profiling policy, currently offers information to the public on how to file a compliment or complaint, commissions quarterly data audits in order to ensure validity and reliability, collects and commissions the analysis of Tier 2 data, and ensures that the practice of racial profiling will not be tolerated. 26 Page 82 of 309 Checklist The following requirements were met by the College Station Police Department in accordance with The Texas Racial Profiling Law: I mplement a Racial Profiling Policy citing act or actions that constitute racial profiling. Include in the racial profiling policy, a statement indicating prohibition of any peace officer employed by the College Station Police Department from engaging in racial profiling. Implement a process by which an individual may file a complaint regarding racial profiling violations. Provide public education related to the compliment and complaint process. Implement disciplinary guidelines for officers found in violation of the Texas Racial Profiling Law. Collect, report and analyze motor vehicle data (Tier 2). Commission Data Audits and a Search Analysis. Indicate total number of officers who knew and did not know, the race/ethnicity of individuals before being detained. Produce an annual report on police contacts (Tier 2) and present this to the local governing body and TCOLE by March 1, 2024. Adopt a policy, if video/audio equipment is installed, on standards for reviewing video and audio documentation. 27 Page 83 of 309 Legislative & Administrative Addendum 28 Page 84 of 309 29 TCOLE GUIDELINES Guidelines for Compiling and Reporting Data under Senate Bill 1074 Background Senate Bill 1074 of the 77th Legislature established requirements in the Texas Code of Criminal Procedure (TCCP) for law enforcement agencies. The Commission developed this document to assist agencies in complying with the statutory requirements. The guidelines are written in the form of standards using a style developed from accreditation organizations including the Commission on Accreditation for Law Enforcement Agencies (CALEA). The standards provide a description of what must be accomplished by an agency but allows wide latitude in determining how the agency will achieve compliance with each applicable standard. Each standard is composed of two parts: the standard statement and the commentary. The standard statement is a declarative sentence that places a clear-cut requirement, or multiple requirements, on an agency. The commentary supports the standard statement but is not binding. The commentary can serve as a prompt, as guidance to clarify the intent of the standard, or as an example of one possible way to comply with the standard. Standard 1 Each law enforcement agency has a detailed written directive that: • clearly defines acts that constitute racial profiling; • strictly prohibits peace officers employed by the agency from engaging in racial profiling; • implements a process by which an individual may file a complaint with the agency if the individual believes a peace officer employed by the agency has engaged in racial profiling with respect to the individual filing the complaint; • provides for public education relating to the complaint process; • requires appropriate corrective action to be taken against a peace officer employed by the agency who, after investigation, is shown to have engaged in racial profiling in violation of the agency’s written racial profiling policy; and • requires the collection of certain types of data for subsequent reporting. Commentary Article 2.131 of the TCCP prohibits officers from engaging in racial profiling, and article 2.132 of the TCCP now requires a written policy that contains the elements listed in this standard. The article also specifically defines a law enforcement agency as it applies to this statute as an “ agency of the state, or of a county, municipality, or other political subdivision of the state, that employs peace officers who make traffic stops in the routine performance of the officers’ official duties.” Page 85 of 309 30 The article further defines race or ethnicity as being of “a particular descent, including Caucasian, African, Hispanic, Asian, or Native American.” The statute does not limit the required policies to just these ethnic groups. This written policy is to be adopted and implemented no later than January 1, 2002. Standard 2 Each peace officer who stops a motor vehicle for an alleged violation of a law or ordinance regulating traffic, or who stops a pedestrian for any suspected offense reports to the employing law enforcement agency information relating to the stop, to include: • a physical description of each person detained, including gender and the person’s race or ethnicity, as stated by the person, or, if the person does not state a race or ethnicity, as determined by the officer’s best judgment; • the traffic law or ordinance alleged to have been violated or the suspected offense; • whether the officer conducted a search as a result of the stop and, if so, whether the person stopped consented to the search; • whether any contraband was discovered in the course of the search, and the type of contraband discovered; • whether probable cause to search existed, and the facts supporting the existence of that probable cause; • whether the officer made an arrest as a result of the stop or the search, including a statement of the offense charged; • the street address or approximate location of the stop; and • whether the officer issued a warning or citation as a result of the stop, including a description of the warning or a statement of the violation charged. Commentary The information required by 2.133 TCCP is used to complete the agency reporting requirements found in Article 2.134. A peace officer and an agency may be exempted from this requirement under Article 2.135 TCCP Exemption for Agencies Using Video and Audio Equipment. An agency may be exempt from this reporting requirement by applying for the funds from the Department of Public Safety for video and audio equipment and the State does not supply those funds. Section 2.135 (a)(2) states, “the governing body of the county or municipality served by the law enforcement agency, in conjunction with the law enforcement agency, certifies to the Department of Public Safety, not later than the date specified by rule by the department, that the law enforcement agency needs funds or video and audio equipment for the purpose of installing video and audio equipment as described by Subsection (a) (1) (A) and the agency does not receive from the state funds for video and audio equipment sufficient, as determined by the department, for the agency to accomplish that purpose.” Standard 3 The agency compiles the information collected under 2.132 and 2.133 and analyzes the information identified in 2.133. Page 86 of 309 31 Commentary Senate Bill 1074 from the 77th Session of the Texas Legislature created requirements for law enforcement agencies to gather specific information and to report it to each county or municipality served. New sections of law were added to the Code of Criminal Procedure regarding the reporting of traffic and pedestrian stops. Detained is defined as when a person stopped is not free to leave. Article 2.134 TCCP requires the agency to compile and provide and analysis of the information collected by peace officer employed by the agency. The report is provided to the governing body of the municipality or county no later than March 1 of each year and covers the previous calendar year. There is data collection and reporting required based on Article 2.132 CCP (tier one) and Article 2.133 CCP (tier two). The minimum requirements for “tier one” data for traffic stops in which a citation results are: 1) the race or ethnicity of individual detained (race and ethnicity as defined by the bill means of “a particular descent, including Caucasian, African, Hispanic, Asian, or Native American”); 2) whether a search was conducted, and if there was a search, whether it was a consent search or a probable cause search; and 3) whether there was a custody arrest. The minimum requirements for reporting on “tier two” reports include traffic and pedestrian stops. Tier two data include: 1) the detained person’s gender and race or ethnicity; 2) the type of law violation suspected, e.g., hazardous traffic, non-hazardous traffic, or other criminal investigation (the Texas Department of Public Safety publishes a categorization of traffic offenses into hazardous or non-hazardous); 3) whether a search was conducted, and if so whether it was based on consent or probable cause; 4) facts supporting probable cause; 5) the type, if any, of contraband that was collected; 6) disposition of the stop, e.g., arrest, ticket, warning, or release; 7) location of stop; and 8) statement of the charge, e.g., felony, misdemeanor, or traffic. Tier one reports are made to the governing body of each county or municipality served by the agency an annual report of information if the agency is an agency of a county, municipality, or other political subdivision of the state. Tier one and two reports are reported to the county or municipality not later than March 1 for the previous calendar year beginning March 1, 2003. Tier two reports include a comparative analysis between the race and ethnicity of persons detained to see if a differential pattern of treatment can be discerned based on the disposition of stops Page 87 of 309 32 including searches resulting from the stops. The reports also include information relating to each complaint filed with the agency alleging that a peace officer employed by the agency has engaged in racial profiling. An agency may be exempt from the tier two reporting requirement by applying for the funds from the Department of Public Safety for video and audio equipment and the State does not supply those funds [See 2.135 (a)(2) TCCP]. Reports should include both raw numbers and percentages for each group. Caution should be exercised in interpreting the data involving percentages because of statistical distortions caused by very small numbers in any particular category, for example, if only one American Indian is stopped and searched, that stop would not provide an accurate comparison with 200 stops among Caucasians with 100 searches. In the first case, a 100% search rate would be skewed data when compared to a 50% rate for Caucasians. Standard 4 If a law enforcement agency has video and audio capabilities in motor vehicles regularly used for traffic stops, or audio capabilities on motorcycles regularly used to make traffic stops, the agency: • adopts standards for reviewing and retaining audio and video documentation; and • promptly provides a copy of the recording to a peace officer who is the subject of a complaint on written request by the officer. Commentary The agency should have a specific review and retention policy. Article 2.132 TCCP specifically requires that the peace officer be promptly provided with a copy of the audio or video recordings if the officer is the subject of a complaint and the officer makes a written request. Standard 5 Agencies that do not currently have video or audio equipment must examine the feasibility of installing such equipment. Commentary None Standard 6 Agencies that have video and audio recording capabilities are exempt from the reporting requirements of Article 2.134 TCCP and officers are exempt from the reporting requirements of Article 2.133 TCCP provided that: • the equipment was in place and used during the proceeding calendar year; and • video and audio documentation is retained for at least 90 days. Commentary The audio and video equipment and policy must have been in place during the previous calendar year. Audio and video documentation must be kept for at least 90 days or longer if a complaint has been filed. The documentation must be retained until the complaint is resolved. Peace officers are not exempt from the requirements under Article 2.132 TCCP. Page 88 of 309 33 Standard 7 Agencies have citation forms or other electronic media that comply with Section 543.202 of the Transportation Code. Commentary Senate Bill 1074 changed Section 543.202 of the Transportation Code requiring citations to include: • race or ethnicity, and • whether a search of the vehicle was conducted and whether consent for the search was obtained. Page 89 of 309 34 The Texas Law on Racial Profiling S.B. No. 1074 - An Act relating to the prevention of racial profiling by certain peace officers. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Chapter 2, Code of Criminal Procedure, is amended by adding Articles 2.131 through 2.138 to read as follows: Art. 2.131. RACIAL PROFILING PROHIBITED. A peace officer may not engage in racial profiling. Art. 2.132. LAW ENFORCEMENT POLICY ON RACIAL PROFILING. (a) In this article: (1) "Law enforcement agency" means an agency of the state, or of a county, municipality, or other political subdivision of the state, that employs peace officers who make traffic stops in the routine performance of the officers' official duties. (2) "Race or ethnicity" means of a particular descent, including Caucasian, African, Hispanic, Asian, or Native American descent. (b) Each law enforcement agency in this state shall adopt a detailed written policy on racial profiling. The policy must: (1) clearly define acts constituting racial profiling; (2) strictly prohibit peace officers employed by the agency from engaging in racial profiling; (3) implement a process by which an individual may file a complaint with the agency if the individual believes that a peace officer employed by the agency has engaged in racial profiling with respect to the individual; (4) provide public education relating to the agency's complaint process; (5) require appropriate corrective action to be taken against a peace officer employed by the agency who, after an investigation, is shown to have engaged in racial profiling in violation of the agency's policy adopted under this article; (6) require collection of information relating to traffic stops in which a citation is issued and to arrests resulting from those traffic stops, including information relating to: (A) the race or ethnicity of the individual detained; and (B) whether a search was conducted and, if so, whether the person detained consented to the search; and (7) require the agency to submit to the governing body of each county or municipality served by the agency an annual report of the information collected under Subdivision (6) if the agency is an agency of a county, municipality, or other political subdivision of the state. (c) The data collected as a result of the reporting requirements of this article shall not constitute prima facie evidence of racial profiling. (d) On adoption of a policy under Subsection (b), a law enforcement agency shall examine the feasibility of installing video camera and transmitter-activated equipment in each agency law enforcement motor vehicle regularly used to make traffic stops and transmitter-activated equipment in each agency law enforcement motorcycle regularly used to make traffic stops. If a law enforcement agency installs video or audio equipment as provided by this subsection, the Page 90 of 309 35 policy adopted by the agency under Subsection (b) must include standards for reviewing video and audio documentation. (e) A report required under Subsection (b)(7) may not include identifying information about a peace officer who makes a traffic stop or about an individual who is stopped or arrested by a peace officer. This subsection does not affect the collection of information as required by a policy under Subsection (b)(6). (f) On the commencement of an investigation by a law enforcement agency of a complaint described by Subsection (b)(3) in which a video or audio recording of the occurrence on which the complaint is based was made, the agency shall promptly provide a copy of the recording to the peace officer who is the subject of the complaint on written request by the officer. Art. 2.133. REPORTS REQUIRED FOR TRAFFIC AND PEDESTRIAN STOPS. (a) In this article: (1) "Race or ethnicity" has the meaning assigned by Article 2.132(a). (2) "Pedestrian stop" means an interaction between a peace officer and an individual who is being detained for the purpose of a criminal investigation in which the individual is not under arrest. (b) A peace officer who stops a motor vehicle for an alleged violation of a law or ordinance regulating traffic or who stops a pedestrian for any suspected offense shall report to the law enforcement agency that employs the officer information relating to the stop, including: (1) a physical description of each person detained as a result of the stop, including: (A) the person's gender; and (B) the person's race or ethnicity, as stated by the person or, if the person does not state the person's race or ethnicity, as determined by the officer to the best of the officer's ability; (2) the traffic law or ordinance alleged to have been violated or the suspected offense; (3) whether the officer conducted a search as a result of the stop and, if so, whether the person detained consented to the search; (4) whether any contraband was discovered in the course of the search and the type of contraband discovered; (5) whether probable cause to search existed and the facts supporting the existence of that probable cause; (6) whether the officer made an arrest as a result of the stop or the search, including a statement of the offense charged; (7) the street address or approximate location of the stop; and (8) whether the officer issued a warning or a citation as a result of the stop, including a description of the warning or a statement of the violation charged. Art. 2.134. COMPILATION AND ANALYSIS OF INFORMATION COLLECTED. (a) In this article, "pedestrian stop" means an interaction between a peace officer and an individual who is being detained for the purpose of a criminal investigation in which the individual is not under arrest. (b) A law enforcement agency shall compile and analyze the information contained in each report received by the agency under Article 2.133. Not later than March 1 of each year, each local law enforcement agency shall submit a report containing the information compiled Page 91 of 309 36 during the previous calendar year to the governing body of each county or municipality served by the agency in a manner approved by the agency. (c) A report required under Subsection (b) must include: (1) a comparative analysis of the information compiled under Article 2.133 to: (A) determine the prevalence of racial profiling by peace officers employed by the agency; and (B) examine the disposition of traffic and pedestrian stops made by officers employed by the agency, including searches resulting from the stops; and (2) information relating to each complaint filed with the agency alleging that a peace officer employed by the agency has engaged in racial profiling. (d) A report required under Subsection (b) may not include identifying information about a peace officer who makes a traffic or pedestrian stop or about an individual who is stopped or arrested by a peace officer. This subsection does not affect the reporting of information required under Article 2.133(b)(1). (e) The Commission on Law Enforcement Officer Standards and Education shall develop guidelines for compiling and reporting information as required by this article. (f) The data collected as a result of the reporting requirements of this article shall not constitute prima facie evidence of racial profiling. Art. 2.135. EXEMPTION FOR AGENCIES USING VIDEO AND AUDIO EQUIPMENT. (a) A peace officer is exempt from the reporting requirement under Article 2.133 and a law enforcement agency is exempt from the compilation, analysis, and reporting requirements under Article 2.134 if: (1) during the calendar year preceding the date that a report under Article 2.134 is required to be submitted: (A) each law enforcement motor vehicle regularly used by an officer employed by the agency to make traffic and pedestrian stops is equipped with video camera and transmitter-activated equipment and each law enforcement motorcycle regularly used to make traffic and pedestrian stops is equipped with transmitter-activated equipment; and (B) each traffic and pedestrian stop made by an officer employed by the agency that is capable of being recorded by video and audio or audio equipment, as appropriate, is recorded by using the equipment; or (2) the governing body of the county or municipality served by the law enforcement agency, in conjunction with the law enforcement agency, certifies to the Department of Public Safety, not later than the date specified by rule by the department, that the law enforcement agency needs funds or video and audio equipment for the purpose of installing video and audio equipment as described by Subsection (a)(1)(A) and the agency does not receive from the state funds or video and audio equipment sufficient, as determined by the department, for the agency to accomplish that purpose. (b) Except as otherwise provided by this subsection, a law enforcement agency that is exempt from the requirements under Article 2.134 shall retain the video and audio or audio documentation of each traffic and pedestrian stop for at least 90 days after the date of the stop. If a complaint is filed with the law enforcement agency alleging that a peace officer employed by the agency has engaged in racial profiling with respect to a traffic or pedestrian stop, the agency shall retain the video and audio or audio record of the stop until final disposition of the complaint. Page 92 of 309 37 (c) This article does not affect the collection or reporting requirements under Article 2.132. Art. 2.136. LIABILITY. A peace officer is not liable for damages arising from an act relating to the collection or reporting of information as required by Article 2.133 or under a policy adopted under Article 2.132. Art. 2.137. PROVISION OF FUNDING OR EQUIPMENT. (a) The Department of Public Safety shall adopt rules for providing funds or video and audio equipment to law enforcement agencies for the purpose of installing video and audio equipment as described by Article 2.135(a)(1)(A), including specifying criteria to prioritize funding or equipment provided to law enforcement agencies. The criteria may include consideration of tax effort, financial hardship, available revenue, and budget surpluses. The criteria must give priority to: (1) law enforcement agencies that employ peace officers whose primary duty is traffic enforcement; (2) smaller jurisdictions; and (3) municipal and county law enforcement agencies. (b) The Department of Public Safety shall collaborate with an institution of higher education to identify law enforcement agencies that need funds or video and audio equipment for the purpose of installing video and audio equipment as described by Article 2.135(a)(1)(A). The collaboration may include the use of a survey to assist in developing criteria to prioritize funding or equipment provided to law enforcement agencies. (c) To receive funds or video and audio equipment from the state for the purpose of installing video and audio equipment as described by Article 2.135(a)(1)(A), the governing body of a county or municipality, in conjunction with the law enforcement agency serving the county or municipality, shall certify to the Department of Public Safety that the law enforcement agency needs funds or video and audio equipment for that purpose. (d) On receipt of funds or video and audio equipment from the state for the purpose of installing video and audio equipment as described by Article 2.135(a)(1)(A), the governing body of a county or municipality, in conjunction with the law enforcement agency serving the county or municipality, shall certify to the Department of Public Safety that the law enforcement agency has installed video and audio equipment as described by Article 2.135(a)(1)(A) and is using the equipment as required by Article 2.135(a)(1). Art. 2.138. RULES. The Department of Public Safety may adopt rules to implement Articles 2.131-2.137. SECTION 2. Chapter 3, Code of Criminal Procedure, is amended by adding Article 3.05 to read as follows: Art. 3.05. RACIAL PROFILING. In this code, "racial profiling" means a law enforcement-initiated action based on an individual's race, ethnicity, or national origin rather than on the individual's behavior or on information identifying the individual as having engaged in criminal activity. Page 93 of 309 38 SECTION 3. Section 96.641, Education Code, is amended by adding Subsection (j) to read as follows: (j) As part of the initial training and continuing education for police chiefs required under this section, the institute shall establish a program on racial profiling. The program must include an examination of the best practices for: (1) monitoring peace officers' compliance with laws and internal agency policies relating to racial profiling; (2) implementing laws and internal agency policies relating to preventing racial profiling; and (3) analyzing and reporting collected information. SECTION 4. Section 1701.253, Occupations Code, is amended by adding Subsection (e) to read as follows: (e) As part of the minimum curriculum requirements, the commission shall establish a statewide comprehensive education and training program on racial profiling for officers licensed under this chapter. An officer shall complete a program established under this subsection not later than the second anniversary of the date the officer is licensed under this chapter or the date the officer applies for an intermediate proficiency certificate, whichever date is earlier. SECTION 5. Section 1701.402, Occupations Code, is amended by adding Subsection (d) to read as follows: (d) As a requirement for an intermediate proficiency certificate, an officer must complete an education and training program on racial profiling established by the commission under Section 1701.253(e). SECTION 6. Section 543.202, Transportation Code, is amended to read as follows: Sec. 543.202. FORM OF RECORD. (a) In this section, "race or ethnicity" means of a particular descent, including Caucasian, African, Hispanic, Asian, or Native American descent. (b) The record must be made on a form or by a data processing method acceptable to the department and must include: (1) the name, address, physical description, including race or ethnicity, date of birth, and driver's license number of the person charged; (2) the registration number of the vehicle involved; (3) whether the vehicle was a commercial motor vehicle as defined by Chapter 522 or was involved in transporting hazardous materials; (4) the person's social security number, if the person was operating a commercial motor vehicle or was the holder of a commercial driver's license or commercial driver learner's permit; (5) the date and nature of the offense, including whether the offense was a serious traffic violation as defined by Chapter 522; Page 94 of 309 39 (6) whether a search of the vehicle was conducted and whether consent for the search was obtained; (7) the plea, the judgment, and whether bail was forfeited; (8) [(7)] the date of conviction; and (9) [(8)] the amount of the fine or forfeiture. SECTION 7. Not later than January 1, 2002, a law enforcement agency shall adopt and implement a policy and begin collecting information under the policy as required by Article 2.132, Code of Criminal Procedure, as added by this Act. A local law enforcement agency shall first submit information to the governing body of each county or municipality served by the agency as required by Article 2.132, Code of Criminal Procedure, as added by this Act, on March 1, 2003. The first submission of information shall consist of information compiled by the agency during the period beginning January 1, 2002, and ending December 31, 2002. SECTION 8. A local law enforcement agency shall first submit information to the governing body of each county or municipality served by the agency as required by Article 2.134, Code of Criminal Procedure, as added by this Act, on March 1, 2004. The first submission of information shall consist of information compiled by the agency during the period beginning January 1, 2003, and ending December 31, 2003. SECTION 9. Not later than January 1, 2002: (1) the Commission on Law Enforcement Officer Standards and Education shall establish an education and training program on racial profiling as required by Subsection (e), Section 1701.253, Occupations Code, as added by this Act; and (2) the Bill Blackwood Law Enforcement Management Institute of Texas shall establish a program on racial profiling as required by Subsection (j), Section 96.641, Education Code, as added by this Act. SECTION 10. A person who on the effective date of this Act holds an intermediate proficiency certificate issued by the Commission on Law Enforcement Officer Standards and Education or has held a peace officer license issued by the Commission on Law Enforcement Officer Standards and Education for at least two years shall complete an education and training program on racial profiling established under Subsection (e), Section 1701.253, Occupations Code, as added by this Act, not later than September 1, 2003. SECTION 11. An individual appointed or elected as a police chief before the effective date of this Act shall complete a program on racial profiling established under Subsection (j), Section 96.641, Education Code, as added by this Act, not later than September 1, 2003. SECTION 12. This Act takes effect September 1, 2001 _______________________________ _______________________________ President of the Senate Speaker of the House Page 95 of 309 40 I hereby certify that S.B. No. 1074 passed the Senate on April 4, 2001, by the following vote: Yeas 28, Nays 2; May 21, 2001, Senate refused to concur in House amendments and requested appointment of Conference Committee; May 22, 2001, House granted request of the Senate; May 24, 2001, Senate adopted Conference Committee Report by a viva-voce vote. _______________________________ Secretary of the Senate I hereby certify that S.B. No. 1074 passed the House, with amendments, on May 15, 2001, by a non-record vote; May 22, 2001, House granted request of the Senate for appointment of Conference Committee; May 24, 2001, House adopted Conference Committee Report by a non-record vote. _______________________________ Chief Clerk of the House Approved: _______________________________ Date _______________________________ Governor Page 96 of 309 41 Modifications to the Original Law (H.B. 3389) Amend CSHB 3389 (Senate committee report) as follows: (1) Strike the following SECTIONS of the bill: (A) SECTION 8, adding Section 1701.164, Occupations Code (page 4, lines 61-66); (B) SECTION 24, amending Article 2.132(b), Code of Criminal Procedure (page 8, lines 19-53); (C) SECTION 25, amending Article 2.134(b), Code of Criminal Procedure (page 8, lines 54-64); (D) SECTION 28, providing transition language for the amendments to Articles 2.132(b) and 2.134(b), Code of Criminal Procedure (page 9, lines 40-47). (2) Add the following appropriately numbered SECTIONS to the bill and renumber subsequent SECTIONS of the bill accordingly: SECTION ____. Article 2.132, Code of Criminal Procedure, is amended by amending Subsections (a),(b), (d), and (e) and adding Subsection (g) to read as follows: (a) In this article: (1) "Law enforcement agency" means an agency of the state, or of a county, municipality, or other political subdivision of the state, that employs peace officers who make motor vehicle[traffic] stops in the routine performance of the officers' official duties. (2) "Motor vehicle stop" means an occasion in which a peace officer stops a motor vehicle for an alleged violation of a law or ordinance. (3) "Race or ethnicity" means of a particular descent, including Caucasian, African, Hispanic, Asian, [or] Native American, or Middle Eastern descent. (b) Each law enforcement agency in this state shall adopt a detailed written policy on racial profiling. The policy must: (1) clearly define acts constituting racial profiling; (2) strictly prohibit peace officers employed by the agency from engaging in racial profiling; (3) implement a process by which an individual may file a complaint with the agency if the individual believes that a peace officer employed by the agency has engaged in racial profiling with respect to the individual; (4) provide public education relating to the agency's complaint process; (5) require appropriate corrective action to be taken against a peace officer employed by the agency who, after an investigation, is shown to have engaged in racial profiling in violation of the agency's policy adopted under this article; (6) require collection of information relating to motor vehicle [traffic] stops in which a citation is issued and to arrests made as a result of [resulting from] those [traffic] stops, including information relating to: (A) the race or ethnicity of the individual detained; and (B) whether a search was conducted and, if so, whether the individual [person] detained consented to the search; and (C) whether the peace officer knew the race or ethnicity of the individual detained before detaining that individual; and (7) require the chief administrator of the agency, regardless of whether the administrator is elected, employed, or appointed, to submit [to the governing body of each county or Page 97 of 309 42 municipality served by the agency] an annual report of the information collected under Subdivision (6) to: (A) the Commission on Law Enforcement Officer Standards and Education; and (B) the governing body of each county or municipality served by the agency, if the agency is an agency of a county, municipality, or other political subdivision of the state. (d) On adoption of a policy under Subsection (b), a law enforcement agency shall examine the feasibility of installing video camera and transmitter-activated equipment in each agency law enforcement motor vehicle regularly used to make motor vehicle [traffic] stops and transmitter activated equipment in each agency law enforcement motorcycle regularly used to make motor vehicle [traffic] stops. If a law enforcement agency installs video or audio equipment as provided by this subsection, the policy adopted by the agency under Subsection (b) must include standards for reviewing video and audio documentation. (e) A report required under Subsection (b)(7) may not include identifying information about a peace officer who makes a motor vehicle [traffic] stop or about an individual who is stopped or arrested by a peace officer. This subsection does not affect the collection of information as required by a policy under Subsection (b)(6). (g) On a finding by the Commission on Law Enforcement Officer Standards and Education that the chief administrator of a law enforcement agency intentionally failed to submit a report required under Subsection (b)(7), the commission shall begin disciplinary procedures against the chief administrator. SECTION ____. Article 2.133, Code of Criminal Procedure, is amended to read as follows: Art. 2.133. REPORTS REQUIRED FOR MOTOR VEHICLE [TRAFFIC AND PEDESTRIAN] STOPS. (a) In this article, "race[: [(1) "Race] or ethnicity" has the meaning assigned by Article 2.132(a). [(2) "Pedestrian stop" means an interaction between a peace officer and an individual who is being detained for the purpose of a criminal investigation in which the individual is not under arrest.] (b) A peace officer who stops a motor vehicle for an alleged violation of a law or ordinance [regulating traffic or who stops a pedestrian for any suspected offense] shall report to the law enforcement agency that employs the officer information relating to the stop, including: (1) a physical description of any [each] person operating the motor vehicle who is detained as a result of the stop, including: (A) the person's gender; and (B) the person's race or ethnicity, as stated by the person or, if the person does not state the person's race or ethnicity, as determined by the officer to the best of the officer's ability; (2) the initial reason for the stop [traffic law or ordinance alleged to have been violated or the suspected offense]; (3) whether the officer conducted a search as a result of the stop and, if so, whether the person detained consented to the search; (4) whether any contraband or other evidence was discovered in the course of the search and a description [the type] of the contraband or evidence [discovered]; (5) the reason for the search, including whether: (A) any contraband or other evidence was in plain view; (B) any probable cause or reasonable suspicion existed to perform the search; or Page 98 of 309 43 (C) the search was performed as a result of the towing of the motor vehicle or the arrest of any person in the motor vehicle [existed and the facts supporting the existence of that probable cause]; (6) whether the officer made an arrest as a result of the stop or the search, including a statement of whether the arrest was based on a violation of the Penal Code, a violation of a traffic law or ordinance, or an outstanding warrant and a statement of the offense charged; (7) the street address or approximate location of the stop; and (8) whether the officer issued a written warning or a citation as a result of the stop[, including a description of the warning or a statement of the violation charged]. SECTION ____. Article 2.134, Code of Criminal Procedure, is amended by amending Subsections (a) through (e) and adding Subsection (g) to read as follows: (a) In this article: (1) "Motor vehicle[, "pedestrian] stop" has the meaning assigned by Article 2.132(a) [means an interaction between a peace officer and an individual who is being detained for the purpose of a criminal investigation in which the individual is not under arrest]. (2) "Race or ethnicity" has the meaning assigned by Article 2.132(a). (b) A law enforcement agency shall compile and analyze the information contained in each report received by the agency under Article 2.133. Not later than March 1 of each year, each [local] law enforcement agency shall submit a report containing the incident-based data [information] compiled during the previous calendar year to the Commission on Law Enforcement Officer Standards and Education and, if the law enforcement agency is a local law enforcement agency, to the governing body of each county or municipality served by the agency [in a manner approved by the agency]. (c) A report required under Subsection (b) must be submitted by the chief administrator of the law enforcement agency, regardless of whether the administrator is elected, employed, or appointed, and must include: (1) a comparative analysis of the information compiled under Article 2.133 to: (A) evaluate and compare the number of motor vehicle stops, within the applicable jurisdiction, of persons who are recognized as racial or ethnic minorities and persons who are not recognized as racial or ethnic minorities [determine the prevalence of racial profiling by peace officers employed by the agency]; and (B) examine the disposition of motor vehicle [traffic and pedestrian] stops made by officers employed by the agency, categorized according to the race or ethnicity of the affected persons, as appropriate, including any searches resulting from [the] stops within the applicable jurisdiction; and (2) information relating to each complaint filed with the agency alleging that a peace officer employed by the agency has engaged in racial profiling. (d) A report required under Subsection (b) may not include identifying information about a peace officer who makes a motor vehicle [traffic or pedestrian] stop or about an individual who is stopped or arrested by a peace officer. This subsection does not affect the reporting of information required under Article 2.133(b)(1). (e) The Commission on Law Enforcement Officer Standards and Education, in accordance with Section 1701.162, Occupations Code, shall develop guidelines for compiling and reporting information as required by this article. Page 99 of 309 44 (g) On a finding by the Commission on Law Enforcement Officer Standards and Education that the chief administrator of a law enforcement agency intentionally failed to submit a report required under Subsection (b), the commission shall begin disciplinary procedures against the chief administrator. SECTION ____. Article 2.135, Code of Criminal Procedure, is amended to read as follows: Art. 2.135. PARTIAL EXEMPTION FOR AGENCIES USING VIDEO AND AUDIO EQUIPMENT. (a) A peace officer is exempt from the reporting requirement under Article 2.133 and the chief administrator of a law enforcement agency, regardless of whether the administrator is elected, employed, or appointed, is exempt from the compilation, analysis, and reporting requirements under Article 2.134 if: (1) during the calendar year preceding the date that a report under Article 2.134 is required to be submitted: (A) each law enforcement motor vehicle regularly used by an officer employed by the agency to make motor vehicle [traffic and pedestrian] stops is equipped with video camera and transmitter-activated equipment and each law enforcement motorcycle regularly used to make motor vehicle [traffic and pedestrian] stops is equipped with transmitter-activated equipment; and (B) each motor vehicle [traffic and pedestrian] stop made by an officer employed by the agency that is capable of being recorded by video and audio or audio equipment, as appropriate, is recorded by using the equipment; or (2) the governing body of the county or municipality served by the law enforcement agency, in conjunction with the law enforcement agency, certifies to the Department of Public Safety, not later than the date specified by rule by the department, that the law enforcement agency needs funds or video and audio equipment for the purpose of installing video and audio equipment as described by Subsection (a)(1)(A) and the agency does not receive from the state funds or video and audio equipment sufficient, as determined by the department, for the agency to accomplish that purpose. (b) Except as otherwise provided by this subsection, a law enforcement agency that is exempt from the requirements under Article 2.134 shall retain the video and audio or audio documentation of each motor vehicle [traffic and pedestrian] stop for at least 90 days after the date of the stop. If a complaint is filed with the law enforcement agency alleging that a peace officer employed by the agency has engaged in racial profiling with respect to a motor vehicle [traffic or pedestrian] stop, the agency shall retain the video and audio or audio record of the stop until final disposition of the complaint. (c) This article does not affect the collection or reporting requirements under Article 2.132. (d) In this article, "motor vehicle stop" has the meaning assigned by Article 2.132(a). SECTION ____. Chapter 2, Code of Criminal Procedure, is amended by adding Article 2.1385 to read as follows: Art. 2.1385. CIVIL PENALTY. (a) If the chief administrator of a local law enforcement agency intentionally fails to submit the incident-based data as required by Article 2.134, the agency is liable to the state for a civil penalty in the amount of $1,000 for each violation. The attorney general may sue to collect a civil penalty under this subsection. (b) From money appropriated to the agency for the administration of the agency, the executive director of a state law enforcement agency that intentionally fails to submit the incident-based Page 100 of 309 45 data as required by Article 2.134 shall remit to the comptroller the amount of $1,000 for each violation. (c) Money collected under this article shall be deposited in the state treasury to the credit of the general revenue fund. SECTION ____. Subchapter A, Chapter 102, Code of Criminal Procedure, is amended by adding Article 102.022 to read as follows: Art. 102.022. COSTS ON CONVICTION TO FUND STATEWIDE REPOSITORY FOR DATA RELATED TO CIVIL JUSTICE. (a) In this article, "moving violation" means an offense that: (1) involves the operation of a motor vehicle; and (2) is classified as a moving violation by the Department of Public Safety under Section 708.052, Transportation Code. (b) A defendant convicted of a moving violation in a justice court, county court, county court at law, or municipal court shall pay a fee of 10 cents as a cost of court. (c) In this article, a person is considered convicted if: (1) a sentence is imposed on the person; (2) the person receives community supervision, including deferred adjudication; or (3) the court defers final disposition of the person's case. (d) The clerks of the respective courts shall collect the costs described by this article. The clerk shall keep separate records of the funds collected as costs under this article and shall deposit the funds in the county or municipal treasury, as appropriate. (e) The custodian of a county or municipal treasury shall: (1) keep records of the amount of funds on deposit collected under this article; and (2) send to the comptroller before the last day of the first month following each calendar quarter the funds collected under this article during the preceding quarter. (f) A county or municipality may retain 10 percent of the funds collected under this article by an officer of the county or municipality as a collection fee if the custodian of the county or municipal treasury complies with Subsection (e). (g) If no funds due as costs under this article are deposited in a county or municipal treasury in a calendar quarter, the custodian of the treasury shall file the report required for the quarter in the regular manner and must state that no funds were collected. (h) The comptroller shall deposit the funds received under this article to the credit of the Civil Justice Data Repository fund in the general revenue fund, to be used only by the Commission on Law Enforcement Officer Standards and Education to implement duties under Section 1701.162, Occupations Code. (i) Funds collected under this article are subject to audit by the comptroller. SECTION ____. (a) Section 102.061, Government Code, as reenacted and amended by Chapter 921 (H.B. 3167), Acts of the 80th Legislature, Regular Session, 2007, is amended to conform to the amendments made to Section 102.061, Government Code, by Chapter 1053 (H.B. 2151), Acts of the 80th Legislature, Regular Session, 2007, and is further amended to read as follows: Sec. 102.061. ADDITIONAL COURT COSTS ON CONVICTION IN STATUTORY COUNTY COURT: CODE OF CRIMINAL PROCEDURE. The clerk of a statutory county court shall collect fees and costs under the Code of Criminal Procedure on conviction of a defendant as follows: (1) a jury fee (Art. 102.004, Code of Criminal Procedure) . . . $20; (2) a fee for services of the clerk of the court (Art. 102.005, Code of Criminal Procedure) . . . $40; Page 101 of 309 46 (3) a records management and preservation services fee (Art. 102.005, Code of Criminal Procedure) . . . $25; (4) a security fee on a misdemeanor offense (Art. 102.017, Code of Criminal Procedure) . . . $3; (5) a juvenile delinquency prevention and graffiti eradication fee (Art. 102.0171, Code of Criminal Procedure) . . . $50 [$5]; [and] (6) a juvenile case manager fee (Art. 102.0174, Code of Criminal Procedure) . . . not to exceed $5; and (7) a civil justice fee (Art. 102.022, Code of Criminal Procedure) . . . $0.10. (b) Section 102.061, Government Code, as amended by Chapter 1053 (H.B. 2151), Acts of the 80th Legislature, Regular Session, 2007, is repealed. Section 102.061, Government Code, as reenacted and amended by Chapter 921 (H.B. 3167), Acts of the 80th Legislature, Regular Session, 2007, to reorganize and renumber that section, continues in effect as further amended by this section. SECTION ____. (a) Section 102.081, Government Code, as amended by Chapter 921 (H.B. 3167), Acts of the 80th Legislature, Regular Session, 2007, is amended to conform to the amendments made to Section 102.081, Government Code, by Chapter 1053 (H.B. 2151), Acts of the 80th Legislature, Regular Session, 2007, and is further amended to read as follows: Sec. 102.081. ADDITIONAL COURT COSTS ON CONVICTION IN COUNTY COURT: CODE OF CRIMINAL PROCEDURE. The clerk of a county court shall collect fees and costs under the Code of Criminal Procedure on conviction of a defendant as follows: (1) a jury fee (Art. 102.004, Code of Criminal Procedure) . . . $20; (2) a fee for clerk of the court services (Art. 102.005, Code of Criminal Procedure) . . . $40; (3) a records management and preservation services fee (Art. 102.005, Code of Criminal Procedure) . . . $25; (4) a security fee on a misdemeanor offense (Art. 102.017, Code of Criminal Procedure) . . . $3; (5) a juvenile delinquency prevention and graffiti eradication fee (Art. 102.0171, Code of Criminal Procedure) . . . $50 [$5]; [and] (6) a juvenile case manager fee (Art. 102.0174, Code of Criminal Procedure) . . . not to exceed $5; and (7) a civil justice fee (Art. 102.022, Code of Criminal Procedure) . . . $0.10. (b) Section 102.081, Government Code, as amended by Chapter 1053 (H.B. 2151), Acts of the 80th Legislature, Regular Session, 2007, is repealed. Section 102.081, Government Code, as amended by Chapter 921 (H.B. 3167), Acts of the 80th Legislature, Regular Session, 2007, to reorganize and renumber that section, continues in effect as further amended by this section. SECTION ____. Section 102.101, Government Code, is amended to read as follows: Sec. 102.101. ADDITIONAL COURT COSTS ON CONVICTION IN JUSTICE COURT: CODE OF CRIMINAL PROCEDURE. A clerk of a justice court shall collect fees and costs under the Code of Criminal Procedure on conviction of a defendant as follows: (1) a jury fee (Art. 102.004, Code of Criminal Procedure) . . . $3; (2) a fee for withdrawing request for jury less than 24 hours before time of trial (Art. 102.004, Code of Criminal Procedure) . . . $3; (3) a jury fee for two or more defendants tried jointly (Art. 102.004, Code of Criminal Procedure) . . . one jury fee of $3; Page 102 of 309 47 (4) a security fee on a misdemeanor offense (Art. 102.017, Code of Criminal Procedure) . . . $4; (5) a fee for technology fund on a misdemeanor offense (Art. 102.0173, Code of Criminal Procedure) . . . $4; (6) a juvenile case manager fee (Art. 102.0174, Code of Criminal Procedure) . . . not to exceed $5; (7) a fee on conviction of certain offenses involving issuing or passing a subsequently dishonored check (Art. 102.0071, Code of Criminal Procedure) . . . not to exceed $30; [and] (8) a court cost on conviction of a Class C misdemeanor in a county with a population of 3.3 million or more, if authorized by the county commissioners court (Art. 102.009, Code of Criminal Procedure) . . . not to exceed $7; and (9) a civil justice fee (Art. 102.022, Code of Criminal Procedure) . . . $0.10. SECTION ____. Section 102.121, Government Code, is amended to read as follows: Sec. 102.121. ADDITIONAL COURT COSTS ON CONVICTION IN MUNICIPAL COURT: CODE OF CRIMINAL PROCEDURE. The clerk of a municipal court shall collect fees and costs on conviction of a defendant as follows: (1) a jury fee (Art. 102.004, Code of Criminal Procedure) . . . $3; (2) a fee for withdrawing request for jury less than 24 hours before time of trial (Art. 102.004, Code of Criminal Procedure) . . . $3; (3) a jury fee for two or more defendants tried jointly (Art. 102.004, Code of Criminal Procedure) . . . one jury fee of $3; (4) a security fee on a misdemeanor offense (Art. 102.017, Code of Criminal Procedure) . . . $3; (5) a fee for technology fund on a misdemeanor offense (Art. 102.0172, Code of Criminal Procedure) . . . not to exceed $4; [and] (6) a juvenile case manager fee (Art. 102.0174, Code of Criminal Procedure) . . . not to exceed $5; and (7) a civil justice fee (Art. 102.022, Code of Criminal Procedure) . . . $0.10. SECTION ____. Subchapter D, Chapter 1701, Occupations Code, is amended by adding Section 1701.164 to read as follows: Sec. 1701.164. COLLECTION OF CERTAIN INCIDENT-BASED DATA SUBMITTED BY LAW ENFORCEMENT AGENCIES. The commission shall collect and maintain incident-based data submitted to the commission under Article 2.134, Code of Criminal Procedure, including incident- based data compiled by a law enforcement agency from reports received by the law enforcement agency under Article 2.133 of that code. The commission in consultation with the Department of Public Safety, the Bill Blackwood Law Enforcement Management Institute of Texas, the W. W. Caruth, Jr., Police Institute at Dallas, and the Texas Police Chiefs Association shall develop guidelines for submitting in a standard format the report containing incident-based data as required by Article 2.134, Code of Criminal Procedure. SECTION ____. Subsection (a), Section 1701.501, Occupations Code, is amended to read as follows: (a) Except as provided by Subsection (d), the commission shall revoke or suspend a license, place on probation a person whose license has been suspended, or reprimand a license holder for a violation of: (1) this chapter; Page 103 of 309 48 (2) the reporting requirements provided by Articles 2.132 and 2.134, Code of Criminal Procedure; or (3) a commission rule. SECTION ____. (a) The requirements of Articles 2.132, 2.133, and 2.134, Code of Criminal Procedure, as amended by this Act, relating to the compilation, analysis, and submission of incident-based data apply only to information based on a motor vehicle stop occurring on or after January 1, 2010. (b) The imposition of a cost of court under Article 102.022, Code of Criminal Procedure, as added by this Act, applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date. Page 104 of 309 49 Racial and Ethnic Designations (H.B. 3051) H.B. No. 3051 - An Act relating to the categories used to record the race or ethnicity of persons stopped for or convicted of traffic offenses. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Article 2.132(a)(3), Code of Criminal Procedure, is amended to read as follows: (3) "Race or ethnicity" means the following categories: (A) Alaska native or American Indian; (B) [of a particular descent, including Caucasian, African, Hispanic,] Asian or Pacific Islander; (C) black; (D) white; and (E) Hispanic or Latino [, Native American, or Middle Eastern descent]. SECTION 2. Section 543.202(a), Transportation Code, is amended to read as follows: (a) In this section, "race or ethnicity" means the following categories: (1) Alaska native or American Indian; (2) [of a particular descent, including Caucasian, African, Hispanic,] Asian or Pacific Islander; (3) black; (4) white; and (5) Hispanic or Latino [, or Native American descent]. SECTION 3. This Act takes effect September 1, 2017. ______________________________ ______________________________ President of the Senate Speaker of the House I certify that H.B. No. 3051 was passed by the House on May 4, 2017, by the following vote: Yeas 143, Nays 2, 2 present, not voting. ______________________________ Chief Clerk of the House I certify that H.B. No. 3051 was passed by the Senate on May 19, 2017, by the following vote: Yeas 31, Nays 0. ______________________________ Secretary of the Senate APPROVED: _____________________ Date _____________________ Governor Page 105 of 309 50 The Sandra Bland Act (S.B. 1849) S.B. No. 1849 An Act relating to interactions between law enforcement and individuals detained or arrested on suspicion of the commission of criminal offenses, to the confinement, conviction, or release of those individuals, and to grants supporting populations that are more likely to interact frequently with law enforcement. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: ARTICLE 1. SHORT TITLE SECTION 1.01. SHORT TITLE. This Act shall be known as the Sandra Bland Act, in memory of Sandra Bland. ARTICLE 2. IDENTIFICATION AND DIVERSION OF AND SERVICES FOR PERSONS SUSPECTED OF HAVING A MENTAL ILLNESS, AN INTELLECTUAL DISABILITY, OR A SUBSTANCE ABUSE ISSUE SECTION 2.01. Article 16.22, Code of Criminal Procedure, is amended to read as follows: Art. 16.22. EARLY IDENTIFICATION OF DEFENDANT SUSPECTED OF HAVING MENTAL ILLNESS OR INTELLECTUAL DISABILITY [MENTAL RETARDATION]. (a)(1) Not later than 12 [72] hours after receiving credible information that may establish reasonable cause to believe that a defendant committed to the sheriff's custody has a mental illness or is a person with an intellectual disability [mental retardation], including observation of the defendant's behavior immediately before, during, and after the defendant's arrest and the results of any previous assessment of the defendant, the sheriff shall provide written or electronic notice of the information to the magistrate. On a determination that there is reasonable cause to believe that the defendant has a mental illness or is a person with an intellectual disability [mental retardation], the magistrate, except as provided by Subdivision (2), shall order the local mental health or intellectual and developmental disability [mental retardation] authority or another qualified mental health or intellectual disability [mental retardation] expert to: (A) collect information regarding whether the defendant has a mental illness as defined by Section 571.003, Health and Safety Code, or is a person with an intellectual disability [mental retardation] as defined by Section 591.003, Health and Safety Code, including information obtained from any previous assessment of the defendant; and (B) provide to the magistrate a written assessment of the information collected under Paragraph (A). (2) The magistrate is not required to order the collection of information under Subdivision Page 106 of 309 51 (1) if the defendant in the year preceding the defendant's applicable date of arrest has been determined to have a mental illness or to be a person with an intellectual disability [mental retardation] by the local mental health or intellectual and developmental disability [mental retardation] authority or another mental health or intellectual disability [mental retardation] expert described by Subdivision (1). A court that elects to use the results of that previous determination may proceed under Subsection (c). (3) If the defendant fails or refuses to submit to the collection of information regarding the defendant as required under Subdivision (1), the magistrate may order the defendant to submit to an examination in a mental health facility determined to be appropriate by the local mental health or intellectual and developmental disability [mental retardation] authority for a reasonable period not to exceed 21 days. The magistrate may order a defendant to a facility operated by the Department of State Health Services or the Health and Human Services Commission [Department of Aging and Disability Services] for examination only on request of the local mental health or intellectual and developmental disability [mental retardation] authority and with the consent of the head of the facility. If a defendant who has been ordered to a facility operated by the Department of State Health Services or the Health and Human Services Commission [Department of Aging and Disability Services] for examination remains in the facility for a period exceeding 21 days, the head of that facility shall cause the defendant to be immediately transported to the committing court and placed in the custody of the sheriff of the county in which the committing court is located. That county shall reimburse the facility for the mileage and per diem expenses of the personnel required to transport the defendant calculated in accordance with the state travel regulations in effect at the time. (b) A written assessment of the information collected under Subsection (a)(1)(A) shall be provided to the magistrate not later than the 30th day after the date of any order issued under Subsection (a) in a felony case and not later than the 10th day after the date of any order issued under that subsection in a misdemeanor case, and the magistrate shall provide copies of the written assessment to the defense counsel, the prosecuting attorney, and the trial court. The written assessment must include a description of the procedures used in the collection of information under Subsection (a)(1)(A) and the applicable expert's observations and findings pertaining to: (1) whether the defendant is a person who has a mental illness or is a person with an intellectual disability [mental retardation]; (2) whether there is clinical evidence to support a belief that the defendant may be incompetent to stand trial and should undergo a complete competency examination under Subchapter B, Chapter 46B; and (3) recommended treatment. (c) After the trial court receives the applicable expert's written assessment relating to the defendant under Subsection (b) or elects to use the results of a previous determination as described by Subsection (a)(2), the trial court may, as applicable: (1) resume criminal proceedings against the defendant, including any appropriate proceedings related to the defendant's release on personal bond under Article 17.032; (2) resume or initiate competency proceedings, if required, as provided by Chapter 46B Page 107 of 309 52 or other proceedings affecting the defendant's receipt of appropriate court-ordered mental health or intellectual disability [mental retardation] services, including proceedings related to the defendant's receipt of outpatient mental health services under Section 574.034, Health and Safety Code; or (3) consider the written assessment during the punishment phase after a conviction of the offense for which the defendant was arrested, as part of a presentence investigation report, or in connection with the impositions of conditions following placement on community supervision, including deferred adjudication community supervision. (d) This article does not prevent the applicable court from, before, during, or after the collection of information regarding the defendant as described by this article: (1) releasing a defendant who has a mental illness [mentally ill] or is a person with an intellectual disability [mentally retarded defendant] from custody on personal or surety bond; or (2) ordering an examination regarding the defendant's competency to stand trial. SECTION 2.02. Chapter 16, Code of Criminal Procedure, is amended by adding Article 16.23 to read as follows: Art. 16.23. DIVERSION OF PERSONS SUFFERING MENTAL HEALTH CRISIS OR SUBSTANCE ABUSE ISSUE. (a) Each law enforcement agency shall make a good faith effort to divert a person suffering a mental health crisis or suffering from the effects of substance abuse to a proper treatment center in the agency's jurisdiction if: (1) there is an available and appropriate treatment center in the agency's jurisdiction to which the agency may divert the person; (2) it is reasonable to divert the person; (3) the offense that the person is accused of is a misdemeanor, other than a misdemeanor involving violence; and (4) the mental health crisis or substance abuse issue is suspected to be the reason the person committed the alleged offense. (b) Subsection (a) does not apply to a person who is accused of an offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, Penal Code. SECTION 2.03. Section 539.002, Government Code, is amended to read as follows: Sec. 539.002. GRANTS FOR ESTABLISHMENT AND EXPANSION OF COMMUNITY COLLABORATIVES. (a) To the extent funds are appropriated to the department for that purpose, the department shall make grants to entities, including local governmental entities, nonprofit community organizations, and faith-based community organizations, to establish or expand community collaboratives that bring the public and private sectors together to provide services to persons experiencing homelessness, substance abuse issues, or [and] mental illness. [The department may make a maximum of five grants, which must be made in the most populous municipalities in this state that are located in counties with a population of more than one million.] In awarding grants, the department shall give special consideration to entities: (1) establishing [a] new collaboratives; or Page 108 of 309 53 (2) establishing or expanding collaboratives thatserve two or more counties, each with a population of less than 100,000 [collaborative]. (b) The department shall require each entity awarded a grant under this section to: (1) leverage additional funding from private sources in an amount that is at least equal to the amount of the grant awarded under this section; [and] (2) provide evidence of significant coordination and collaboration between the entity, local mental health authorities, municipalities, local law enforcement agencies, and other community stakeholders in establishing or expanding a community collaborative funded by a grant awarded under this section; and (3) provide evidence of a local law enforcement policy to divert appropriate persons from jails or other detention facilities to an entity affiliated with a community collaborative for the purpose of providing services to those persons. SECTION 2.04. Chapter 539, Government Code, is amended by adding Section 539.0051 to read as follows: Sec. 539.0051. PLAN REQUIRED FOR CERTAIN COMMUNITY COLLABORATIVES. (a) The governing body of a county shall develop and make public a plan detailing: (1) how local mental health authorities, municipalities, local law enforcement agencies, and other community stakeholders in the county could coordinate to establish or expand a community collaborative to accomplish the goals of Section 539.002; (2) how entities in the county may leverage funding from private sources to accomplish the goals of Section 539.002 through the formation or expansion of a community collaborative; and (3) how the formation or expansion of a community collaborative could establish or support resources or services to help local law enforcement agencies to divert persons who have been arrested to appropriate mental health care or substance abuse treatment. (b) The governing body of a county in which an entity that received a grant under Section 539.002 before September 1, 2017, is located is not required to develop a plan under Subsection (a). (c) Two or more counties, each with a population of less than 100,000, may form a joint plan under Subsection (a). ARTICLE 3. BAIL, PRETRIAL RELEASE, AND COUNTY JAIL STANDARDS SECTION 3.01. The heading to Article 17.032, Code of Criminal Procedure, is amended to read as follows: Art. 17.032. RELEASE ON PERSONAL BOND OF CERTAIN [MENTALLY ILL] DEFENDANTS WITH MENTAL ILLNESS OR INTELLECTUAL DISABILITY. SECTION 3.02. Articles 17.032(b) and (c), Code of Criminal Procedure, are amended to read as follows: (b) A magistrate shall release a defendant on personal bond unless good cause is shown Page 109 of 309 54 otherwise if the: (1) defendant is not charged with and has not been previously convicted of a violent offense; (2) defendant is examined by the local mental health or intellectual and developmental disability [mental retardation] authority or another mental health expert under Article 16.22 [of this code]; (3) applicable expert, in a written assessment submitted to the magistrate under Article 16.22: (A) concludes that the defendant has a mental illness or is a person with an intellectual disability [mental retardation] and is nonetheless competent to stand trial; and (B) recommends mental health treatment or intellectual disability treatment for the defendant, as applicable; and (4) magistrate determines, in consultation with the local mental health or intellectual and developmental disability [mental retardation] authority, that appropriate community-based mental health or intellectual disability [mental retardation] services for the defendant are available through the [Texas] Department of State [Mental] Health Services [and Mental Retardation] under Section 534.053, Health and Safety Code, or through another mental health or intellectual disability [mental retardation] services provider. (c) The magistrate, unless good cause is shown for not requiring treatment, shall require as a condition of release on personal bond under this article that the defendant submit to outpatient or inpatient mental health or intellectual disability [mental retardation] treatment as recommended by the local mental health or intellectual and developmental disability [mental retardation] authority if the defendant's: (1) mental illness or intellectual disability [mental retardation] is chronic in nature; or (2) ability to function independently will continue to deteriorate if the defendant is not treated. SECTION 3.03. Article 25.03, Code of Criminal Procedure, is amended to read as follows: Art. 25.03. IF ON BAIL IN FELONY. When the accused, in case of felony, is on bail at the time the indictment is presented, [it is not necessary to serve him with a copy, but] the clerk shall [on request] deliver a copy of the indictment [same] to the accused or the accused's [his] counsel[,] at the earliest possible time. SECTION 3.04. Article 25.04, Code of Criminal Procedure, is amended to read as follows: Art. 25.04. IN MISDEMEANOR. In misdemeanors, the clerk shall deliver a copy of the indictment or information to the accused or the accused's counsel at the earliest possible time before trial [it shall not be necessary before trial to furnish the accused with a copy of the indictment or information; but he or his counsel may demand a copy, which shall be given as early as possible SECTION 3.05. Section 511.009(a), Government Code, as amended by Chapters 281 (H.B. 875), 648 (H.B. 549), and 688 (H.B. 634), Acts of the 84th Legislature, Regular Session, 2015, is reenacted and amended to read as follows: Page 110 of 309 55 (a) The commission shall: (1) adopt reasonable rules and procedures establishing minimum standards for the construction, equipment, maintenance, and operation of county jails; (2) adopt reasonable rules and procedures establishing minimum standards for the custody, care, and treatment of prisoners; (3) adopt reasonable rules establishing minimum standards for the number of jail supervisory personnel and for programs and services to meet the needs of prisoners; (4) adopt reasonable rules and procedures establishing minimum requirements for programs of rehabilitation, education, and recreation in county jails; (5) revise, amend, or change rules and procedures if necessary; (6) provide to local government officials consultation on and technical assistance for county jails; (7) review and comment on plans for the construction and major modification or renovation of county jails; (8) require that the sheriff and commissioners of each county submit to the commission, on a form prescribed by the commission, an annual report on the conditions in each county jail within their jurisdiction, including all information necessary to determine compliance with state law, commission orders, and the rules adopted under this chapter; (9) review the reports submitted under Subdivision (8) and require commission employees to inspect county jails regularly to ensure compliance with state law, commission orders, and rules and procedures adopted under this chapter; (10) adopt a classification system to assist sheriffs and judges in determining which defendants are low-risk and consequently suitable participants in a county jail work release program under Article 42.034, Code of Criminal Procedure; (11) adopt rules relating to requirements for segregation of classes of inmates and to capacities for county jails; (12) require that the chief jailer of each municipal lockup submit to the commission, on a form prescribed by the commission, an annual report of persons under 17 years of age securely detained in the lockup, including all information necessary to determine compliance with state law concerning secure confinement of children in municipal lockups; (13) at least annually determine whether each county jail is in compliance with the rules and procedures adopted under this chapter; (14) require that the sheriff and commissioners court of each county submit to the commission, on a form prescribed by the commission, an annual report of persons under 17 years of age securely detained in the county jail, including all information necessary to determine compliance with state law concerning secure confinement of children in county jails; (15) schedule announced and unannounced inspections of jails under the commission's jurisdiction using the risk assessment plan established under Section 511.0085 to guide the inspections process; (16) adopt a policy for gathering and distributing to jails under the commission's jurisdiction information regarding: (A) common issues concerning jail administration; (B) examples of successful strategies for maintaining compliance with state law and the rules, Page 111 of 309 56 standards, and procedures of the commission; and (C) solutions to operational challenges for jails; (17) report to the Texas Correctional Office on Offenders with Medical or Mental Impairments on a jail's compliance with Article 16.22, Code of Criminal Procedure; (18) adopt reasonable rules and procedures establishing minimum requirements for jails to: (A) determine if a prisoner is pregnant; and (B) ensure that the jail's health services plan addresses medical and mental health care, including nutritional requirements, and any special housing or work assignment needs for persons who are confined in the jail and are known or determined to be pregnant; (19) provide guidelines to sheriffs regarding contracts between a sheriff and another entity for the provision of food services to or the operation of a commissary in a jail under the commission's jurisdiction, including specific provisions regarding conflicts of interest and avoiding the appearance of impropriety; [and] (20) adopt reasonable rules and procedures establishing minimum standards for prisoner visitation that provide each prisoner at a county jail with a minimum of two in-person, noncontact visitation periods per week of at least 20 minutes duration each; (21) [(20)] require the sheriff of each county to: (A) investigate and verify the veteran status of each prisoner by using data made available from the Veterans Reentry Search Service (VRSS) operated by the United States Department of Veterans Affairs or a similar service; and (B) use the data described by Paragraph (A) to assist prisoners who are veterans in applying for federal benefits or compensation for which the prisoners may be eligible under a program administered by the United States Department of Veterans Affairs; (22) [(20)] adopt reasonable rules and procedures regarding visitation of a prisoner at a county jail by a guardian, as defined by Section 1002.012, Estates Code, that: (A) allow visitation by a guardian to the same extent as the prisoner's next of kin, including placing the guardian on the prisoner's approved visitors list on the guardian's request and providing the guardian access to the prisoner during a facility's standard visitation hours if the prisoner is otherwise eligible to receive visitors; and (B) require the guardian to provide the sheriff with letters of guardianship issued as provided by Section 1106.001, Estates Code, before being allowed to visit the prisoner; and (23) adopt reasonable rules and procedures to ensure the safety of prisoners, including rules and procedures that require a county jail to: (A) give prisoners the ability to access a mental health professional at the jail through a telemental health service 24 hours a day; (B) give prisoners the ability to access a health professional at the jail or through a telehealth service 24 hours a day or, if a health professional is unavailable at the jail or through a telehealth service, provide for a prisoner to be transported to access a health professional; and (C) if funding is available under Section 511.019, install automated electronic sensors or cameras to ensure accurate and timely in-person checks of cells or groups of cells confining at-risk individuals. SECTION 3.06. Section 511.009, Government Code, is amended by adding Subsection (d) to read Page 112 of 309 57 as follows: (d) The commission shall adopt reasonable rules and procedures establishing minimum standards regarding the continuity of prescription medications for the care and treatment of prisoners. The rules and procedures shall require that a qualified medical professional shall review as soon as possible any prescription medication a prisoner is taking when the prisoner is taken into custody. SECTION 3.07. Chapter 511, Government Code, is amended by adding Sections 511.019, 511.020, and 511.021 to read as follows: Sec. 511.019. PRISONER SAFETY FUND. (a) The prisoner safety fund is a dedicated account in the general revenue fund. (b) The prisoner safety fund consists of: (1) appropriations of money to the fund by the legislature; and (2) gifts, grants, including grants from the federal government, and other donations received for the fund. (c) Money in the fund may be appropriated only to the commission to pay for capital improvements that are required under Section 511.009(a)(23). (d) The commission by rule may establish a grant program to provide grants to counties to fund capital improvements described by Subsection (c). The commission may only provide a grant to a county for capital improvements to a county jail with a capacity of not more than 96 prisoners. Sec. 511.020. SERIOUS INCIDENTS REPORT. (a) On or before the fifth day of each month, the sheriff of each county shall report to the commission regarding the occurrence during the preceding month of any of the following incidents involving a prisoner in the county jail: (1) a suicide; (2) an attempted suicide; (3) a death; (4) a serious bodily injury, as that term is defined by Section 1.07, Penal Code; (5) an assault; (6) an escape; (7) a sexual assault; and (8) any use of force resulting in bodily injury, as that term is defined by Section 1.07, Penal Code. (b) The commission shall prescribe a form for the report required by Subsection (a). (c) The information required to be reported under Subsection (a)(8) may not include the name or other identifying information of a county jailer or jail employee. (d) The information reported under Subsection (a) is public information subject to an open records request under Chapter 552. Sec. 511.021. INDEPENDENT INVESTIGATION OF DEATH OCCURRING IN COUNTY JAIL. (a) On the death of a prisoner in a county jail, the commission shall appoint a law enforcement agency, other Page 113 of 309 58 than the local law enforcement agency that operates the county jail, to investigate the death as soon as possible. (b) The commission shall adopt any rules necessary relating to the appointment of a law enforcement agency under Subsection (a), including rules relating to cooperation between law enforcement agencies and to procedures for handling evidence. SECTION 3.08. The changes in law made by this article to Article 17.032, Code of Criminal Procedure, apply only to a personal bond that is executed on or after the effective date of this Act. A personal bond executed before the effective date of executed, and the former law is continued in effect for that purpose. SECTION 3.09. Not later than January 1, 2018, the Commission on Jail Standards shall: (1) adopt the rules and procedures required by Section 511.009(d), Government Code, as added by this article, and the rules required by Section 511.021(b), Government Code, as added by this article; and (2) prescribe the form required by Section 511.020(b), Government Code, as added by this article. SECTION 3.10. Not later than September 1, 2018, the Commission on Jail Standards shall adopt the rules and procedures required by Section 511.009(a)(23), Government Code, as added by this article. On and after September 1, 2020, a county jail shall comply with any rule or procedure adopted by the Commission on Jail Standards under that subdivision. SECTION 3.11. To the extent of any conflict, this Act prevails over another Act of the 85th Legislature, Regular Session, 2017, relating to non-substantive additions to and corrections in enacted codes. ARTICLE 4. PEACE OFFICER AND COUNTY JAILER TRAINING SECTION 4.01. Chapter 511, Government Code, is amended by adding Section 511.00905 to read as follows: Sec. 511.00905. JAIL ADMINISTRATOR POSITION; EXAMINATION REQUIRED. (a) The Texas Commission on Law Enforcement shall develop and the commission shall approve an examination for a person assigned to the jail administrator position overseeing a county jail. (b) The commission shall adopt rules requiring a person, other than a sheriff, assigned to the jail administrator position overseeing a county jail to pass the examination not later than the 180th day after the date the person is assigned to that position. The rules must provide that a person who fails the examination may be immediately removed from the position and may not be reinstated until the person passes the examination. (c) The sheriff of a county shall perform the duties of the jail administrator position at any time there is not a person available who satisfies the examination requirements of this Page 114 of 309 59 section. (d) A person other than a sheriff may not serve in the jail administrator position of a county jail unless the person satisfies the examination requirement of this section. SECTION 4.02. Section 1701.253, Occupations Code, is amended by amending Subsection (j) and adding Subsection (n) to read as follows: commission shall require an officer to complete a 40- hour statewide education and training program on de-escalation and crisis intervention techniques to facilitate interaction with persons with mental impairments. An officer shall complete the program not later than the second anniversary of the date the officer is licensed under this chapter or the date the officer applies for an intermediate proficiency certificate, whichever date is earlier. An officer may not satisfy the requirements of this subsection [section] or Section 1701.402(g) by taking an online course on de-escalation and crisis intervention techniques to facilitate interaction with persons with mental impairments. (n) As part of the minimum curriculum requirements, the commission shall require an officer to complete a statewide education and training program on de-escalation techniques to facilitate interaction with members of the public, including techniques for limiting the use of force resulting in bodily injury. SECTION 4.03. Section 1701.310(a), Occupations Code, is amended to read as follows: (a) Except as provided by Subsection (e), a person may not be appointed as a county jailer, except on a temporary basis, unless the person has satisfactorily completed a preparatory training program, as required by the commission, in the operation of a county jail at a school operated or licensed by the commission. The training program must consist of at least eight hours of mental health training approved by the commission and the Commission on Jail Standards. SECTION 4.04. Section 1701.352(b), Occupations Code, is amended to read as follows: (b) The commission shall require a state, county, special district, or municipal agency that appoints or employs peace officers to provide each peace officer with a training program at least once every 48 months that is approved by the commission and consists of: (1) topics selected by the agency; and (2) for an officer holding only a basic proficiency certificate, not more than 20 hours of education and training that contain curricula incorporating the learning objectives developed by the commission regarding: (A) civil rights, racial sensitivity, and cultural diversity; (B) de-escalation and crisis intervention techniques to facilitate interaction with persons with mental impairments; [and] (C) de-escalation techniques to facilitate interaction with members of the public, including techniques for limiting the use of force resulting in bodily injury; and (D) unless determined by the agency head to be inconsistent with the officer's assigned duties: (i) the recognition and documentation of cases that involve child abuse or neglect, family violence, and sexual assault; and (ii) issues concerning sex offender characteristics. SECTION 4.05. Section 1701.402, Occupations Code, is amended by adding Subsection (n) to read Page 115 of 309 60 as follows: (n) As a requirement for an intermediate proficiency certificate or an advanced proficiency certificate, an officer must complete the education and training program regarding de-escalation techniques to facilitate interaction with members of the public established by the commission under Section 1701.253(n). SECTION 4.06. Not later than March 1, 2018, the Texas Commission on Law Enforcement shall develop and the Commission on Jail Standards shall approve the examination required by Section 511.00905, Government Code, as added by this article. SECTION 4.07. (a) Not later than March 1, 2018, the Texas Commission on Law Enforcement shall establish or modify training programs as necessary to comply with Section 1701.253, Occupations Code, as amended by this article. (b) The minimum curriculum requirements under Section 1701.253(j), Occupations Code, as amended by this article, apply only to a peace officer who first begins to satisfy those requirements on or after April 1, 2018. SECTION 4.08. (a) Section 1701.310, Occupations Code, as amended by this article, takes effect January 1, 2018. (b) A person in the position of county jailer on September 1, 2017, must comply with Section 1701.310(a), Occupations Code, as amended by this article, not later than August 31, 2021. ARTICLE 5. MOTOR VEHICLE STOPS, RACIAL PROFILING, AND ISSUANCE OF CITATIONS SECTION 5.01. Article 2.132, Code of Criminal Procedure, is amended by amending Subsections (b) and (d) and adding Subsection (h) to read as follows: (b) Each law enforcement agency in this state shall adopt a detailed written policy on racial profiling. The policy must: (1) clearly define acts constituting racial profiling; (2) strictly prohibit peace officers employed by the agency from engaging in racial profiling; (3) implement a process by which an individual may file a complaint with the agency if the individual believes that a peace officer employed by the agency has engaged in racial profiling with respect to the individual; (4) provide public education relating to the agency's compliment and complaint process, including providing the telephone number, mailing address, and e-mail address to make a compliment or complaint with respect to each ticket, citation, or warning issued by a peace officer; (5) require appropriate corrective action to be taken against a peace officer employed by the agency who, after an investigation, is shown to have engaged in racial profiling in violation of the agency's policy adopted under this article; (6) require collection of information relating to motor vehicle stops in which a ticket, citation, or warning is issued and to arrests made as a result of those stops, including information Page 116 of 309 61 relating to: (A) the race or ethnicity of the individual detained; (B) whether a search was conducted and, if so, whether the individual detained consented to the search; [and] (C) whether the peace officer knew the race or ethnicity of the individual detained before detaining that individual; (D) whether the peace officer used physical force that resulted in bodily injury, as that term is defined by Section 1.07, Penal Code, during the stop; (E) the location of the stop; and (F) the reason for the stop; and (7) require the chief administrator of the agency, regardless of whether the administrator is elected, employed, or appointed, to submit an annual report of the information collected under Subdivision (6) to: (A) the Texas Commission on Law Enforcement; and (B) the governing body of each county or municipality served by the agency, if the agency is an agency of a county, municipality, or other political subdivision of the state. (d) On adoption of a policy under Subsection (b), a law enforcement agency shall examine the feasibility of installing video camera and transmitter-activated equipment in each agency law enforcement motor vehicle regularly used to make motor vehicle stops and transmitter-activated equipment in each agency law enforcement motorcycle regularly used to make motor vehicle stops. The agency also shall examine the feasibility of equipping each peace officer who regularly detains or stops motor vehicles with a body worn camera, as that term is defined by Section 1701.651, Occupations Code. If a law enforcement agency installs video or audio equipment or equips peace officers with body worn cameras as provided by this subsection, the policy adopted by the agency under Subsection (b) must include standards for reviewing video and audio documentation. (h) A law enforcement agency shall review the data collected under Subsection (b)(6) to identify any improvements the agency could make in its practices and policies regarding motor vehicle stops. SECTION 5.02. Article 2.133, Code of Criminal Procedure, is amended by amending Subsection (b) and adding Subsection (c) to read as follows: (b) A peace officer who stops a motor vehicle for an alleged violation of a law or ordinance shall report to the law enforcement agency that employs the officer information relating to the stop, including: (1) a physical description of any person operating the motor vehicle who is detained as a result of the stop, including: (A) the person's gender; and (B) the person's race or ethnicity, as stated by the person or, if the person does not state the person's race or ethnicity, as determined by the officer to the best of the officer's ability; (2) the initial reason for the stop; (3) whether the officer conducted a search as a result of the stop and, if so, whether the person detained consented to the search; (4) whether any contraband or other evidence was discovered in the course of the search Page 117 of 309 62 and a description of the contraband or evidence; (5) the reason for the search, including whether: (A) any contraband or other evidence was in plain view; (B) any probable cause or reasonable suspicion existed to perform the search; or (C) the search was performed as a result of the towing of the motor vehicle or the arrest of any person in the motor vehicle; (6) whether the officer made an arrest as a result of the stop or the search, including a statement of whether the arrest was based on a violation of the Penal Code, a violation of a traffic law or ordinance, or an outstanding warrant and a statement of the offense charged; (7) the street address or approximate location of the stop; [and] (8) whether the officer issued a verbal or written warning or a ticket or citation as a result of the stop; and (9) whether the officer used physical force that resulted in bodily injury, as that term is defined by Section 1.07, Penal Code, during the stop. (c) The chief administrator of a law enforcement agency, regardless of whether the administrator is elected, employed, or appointed, is responsible for auditing reports under Subsection (b) to ensure that the race or ethnicity of the person operating the motor vehicle is being reported. SECTION 5.03. Article 2.134(c), Code of Criminal Procedure, is amended to read as follows: (c) A report required under Subsection (b) must be submitted by the chief administrator of the law enforcement agency, regardless of whether the administrator is elected, employed, or appointed, and must include: (1) a comparative analysis of the information compiled under Article 2.133 to: (A) evaluate and compare the number of motor vehicle stops, within the applicable jurisdiction, of persons who are recognized as racial or ethnic minorities and persons who are not recognized as racial or ethnic minorities; [and] (B) examine the disposition of motor vehicle stops made by officers employed by the agency, categorized according to the race or ethnicity of the affected persons, as appropriate, including any searches resulting from stops within the applicable jurisdiction; and (C) evaluate and compare the number of searches resulting from motor vehicle stops within the applicable jurisdiction and whether contraband or other evidence was discovered in the course of those searches; and (2) information relating to each complaint filed with the agency alleging that a peace officer employed by the agency has engaged in racial profiling. SECTION 5.04. Article 2.137, Code of Criminal Procedure, is amended to read as follows: Art. 2.137. PROVISION OF FUNDING OR EQUIPMENT. (a) The Department of Public Safety shall adopt rules for providing funds or video and audio equipment to law enforcement agencies for the purpose of installing video and audio equipment in law enforcement motor vehicles and motorcycles or equipping peace officers with body worn cameras [as described by Article 2.135(a)(1)(A)], including specifying criteria to prioritize funding or equipment provided to law enforcement agencies. The criteria may include consideration of tax effort, financial hardship, Page 118 of 309 63 available revenue, and budget surpluses. The criteria must give priority to: (1) law enforcement agencies that employ peace officers whose primary duty is traffic enforcement; (2) smaller jurisdictions; and (3) municipal and county law enforcement agencies. (b) The Department of Public Safety shall collaborate with an institution of higher education to identify law enforcement agencies that need funds or video and audio equipment for the purpose of installing video and audio equipment in law enforcement motor vehicles and motorcycles or equipping peace officers with body worn cameras [as described by Article 2.135(a)(1)(A)]. The collaboration may include the use of a survey to assist in developing criteria to prioritize funding or equipment provided to law enforcement agencies. (c) To receive funds or video and audio equipment from the state for the purpose of installing video and audio equipment in law enforcement motor vehicles and motorcycles or equipping peace officers with body worn cameras [as described by Article 2.135(a)(1)(A)], the governing body of a county or municipality, in conjunction with the law enforcement agency serving the county or municipality, shall certify to the Department of Public Safety that the law enforcement agency needs funds or video and audio equipment for that purpose. (d) On receipt of funds or video and audio equipment from the state for the purpose of installing video and audio equipment in law enforcement motor vehicles and motorcycles or equipping peace officers with body worn cameras [as described by Article 2.135(a)(1)(A)], the governing body of a county or municipality, in conjunction with the law enforcement agency serving the county or municipality, shall certify to the Department of Public Safety that the law enforcement agency has taken the necessary actions to use and is using [installed] video and audio equipment and body worn cameras for those purposes [as described by Article 2.135(a)(1)(A) and is using the equipment as required by Article 2.135(a)(1)]. SECTION 5.05. Article 2.1385(a), Code of Criminal Procedure, is amended to read as follows: (a) If the chief administrator of a local law enforcement agency intentionally fails to submit the incident-based data as required by Article 2.134, the agency is liable to the state for a civil penalty in an [the] amount not to exceed $5,000 [of $1,000] for each violation. The attorney general may sue to collect a civil penalty under this subsection. SECTION 5.06. Article 2.135, Code of Criminal Procedure, is repealed. SECTION 5.07. Articles 2.132 and 2.134, Code of Criminal Procedure, as amended by this article, apply only to a report covering a calendar year beginning on or after January 1, 2018. SECTION 5.08. Not later than September 1, 2018, the Texas Commission on Law Enforcement shall: (1) evaluate and change the guidelines for compiling and reporting information required under Article 2.134, Code of Criminal Procedure, as amended by this article, to enable the guidelines to better withstand academic scrutiny; and (2) make accessible online: (A) a downloadable format of any information submitted under Article 2.134(b), Code of Criminal Page 119 of 309 64 Procedure, that is not exempt from public disclosure under Chapter 552, Government Code; and (B) a glossary of terms relating to the information to make the information readily understandable to the public. This Act takes effect September 1, 2017. ______________________________ ______________________________ President of the Senate Speaker of the House I hereby certify that S.B. No. 1849 passed the Senate on May 11, 2017, by the following vote: Yeas 31, Nays 0. ______________________________ Secretary of the Senate I hereby certify that S.B. No. 1849 passed the House on May 20, 2017, by the following vote: Yeas 137, Nays 0, one present not voting. ARTICLE 6. EFFECTIVE DATE SECTION 6.01. Except as otherwise provided by this Act, Approved: ______________________________ Date ______________________________ Governor ______________________________ Chief Clerk of the House Page 120 of 309 65 COLLEGE STATION POLICE DEPARTMENT RACIAL PROFILING POLICY Page 121 of 309 COLLEGE STATION POLICE DEPARTMENT POLICY MANUAL - CHAPTER 65 BIASED BASED POLICING REVISION DATE: 01/05/2024 1 The practice of bias based policing by law enforcement personnel undermines legitimate law enforcement efforts and may lead to claims of civil rights violations. It often alienates citizens and may foster distrust of law enforcement within the community. This directive reaffirms the department’s commitment to unbiased policing by identifying specific acts that would be considered bias based policing and outlining procedures to addres s requirements of Article 2.131- 137 of the Texas Code of Criminal Procedure. This directive does not prohibit police personnel from stopping or detaining individuals if a specific report exists in which an individual’s race, national origin, citizenship, religion, ethnicity, age, gender, sexual orientation is an identifying factor in determining the existence of probable cause for taking police action. POLICY: Members of the College Station Police Department will not engage in any activities that are discriminatory or indicative of the practice of bias based policing. Personnel will focus on the behavior of individuals and/or specific suspect information in taking police action. Individuals will not be targeted for enforcement action, detention, field contacts, asset seizure and forfeiture, or interdiction solely on the basis of race, ethnic background, national origin, citizenship, gender, sexual orientation, religion, economic status, age, cultural group or any other identifiable group. Appropriate corrective action will be taken, after investigation, against any employee who engages in bias based policing. Such an investigation may result in disciplinary action up to and including termination. LE 1.2.9.a DEFINITIONS: 1. Bias Based Profiling - The targeting of an individual for enforcement action, detention or interdiction based solely on a trait common to a group of people. This includes, but is not limited to, race, ethnic background, gender, sexual orientation, reli gion, economic status, age, cultural group or any other identifiable group. For purpose of this directive the term "racial profiling" is a part of Biased Based Profiling. 2. Race or Ethnicity – means White (W), Black (B), Hispanic (W/H), Asian (A), Pacific Islander (P), Alaskan Native or American Indian (I) 3. Motor Vehicle Stop – An occasion in which a sworn officer stops a motor vehicle for an alleged violation of a law or ordinance. 4. Seizure - Taking of property from an individual without the individua l's consent or any restriction of an individual's liberty without the individual's consent. A detention will be considered a seizure, as will an arrest. Seizure also includes any filing of documents with the District Attorney for the purpose of asset forfeiture. PROCEDURE: 1. Reporting Requirements a. Motor vehicle stops (1) Article 2.132(b)(6) of the Texas Code of Criminal Procedure requires a departmental policy on racial profiling requiring collection of information relating to motor vehicle stops in which a ticket, citation, or warning is issued; and to arrests made as a result of those stops. Article 2.133 of the Texas Code of Criminal Procedure requires that specific data are collected in a report for each motor vehicle stop for an alleged violation of a law or ordinance, including information relating to: (a) the gender of the individual detained; Page 122 of 309 COLLEGE STATION POLICE DEPARTMENT POLICY MANUAL - CHAPTER 65 BIASED BASED POLICING REVISION DATE: 01/05/2024 2 (b) the race or ethnicity of the individual detained; (c) whether the peace officer knew the race or ethnicity of the individual prior to detention; (d) the initial reason for the stop; (e) the location of the stop; (f) whether a search was conducted and, if so, whether the person d etained consented to the search; (g) whether contraband or other evidence was discovered, and a description of such; (h) the reason for the search, including whether: contraband was in plain view; any probable cause or reasonable suspicion existed to perform the search; the search was performed as a result of towing the vehicle or arrest of any person in the vehicle; (i) whether the peace officer used physical force that resulted in bodily injury, as defined by Section 1.07, Texas Penal Code, during the stop; SEE: Chapter - 42 Use of Force (2) The required data to satisfy the applicable Articles of Texas Code of Criminal Procedure shall be collected by this department. c. Compliant Warning (Verbal & Written), Citation and Search forms are available in Brazos Tech. d. Compliant Arrest and FIR forms are available in RMS. e. The reporting, processing, and documentation of seizure cases related to asset forfeitures shall follow the guidelines established in Chapter 40 - Search and Seizure. 2. Responsibilities a. Officers engaged in traffic enforcement (1) Responsible for ensuring audio/video recording equipment is fully operational throughout their tour of duty. Any equipment failures or repairs needed should be immediately reported to the on duty shift supervisor as soon as possible. (2) Conduct motor vehicle stops in a professional manner as outlined in Chapter 33 - Traffic Safety. (3) Responsible for ensuring all required fields on associated reports are completed. (4) Ensure that all documentation is turned in at the end of their tour of duty. b. Supervisors of Officers engaged in traffic enforcement (1) Traffic enforcement will be accompanied by consistent, ongoing supervisory oversight to ensure officers do not go beyond the parameters of reasonableness in conducting such activities. (2) Supervisors shall randomly review the BWC and In-car video data of their subordinates as part of their monthly video reviews with the intent to determine compliance with this policy, Chapter 62 – Audio and Video Recording, and other applicable directives. At a minimum, three BWC video reviews per officer per month shall be conducted. The three videos shall be from three separate cases. In- car videos are available in Axon Performance and should be reviewed with the relevant BWC video when appropriate. Any significant issues should be addressed through the officer’s chain of command. LE 1.2.9.a (3) The supervisor’s review of In-Car and BWC data shall be documented monthly on Axon Performance and reviewed periodically by the appropriate chain of command. c. Recruiting & Training Lieutenant LE 1.2.9.b Page 123 of 309 COLLEGE STATION POLICE DEPARTMENT POLICY MANUAL - CHAPTER 65 BIASED BASED POLICING REVISION DATE: 01/05/2024 3 (1) Will ensure all affected department personnel are trained on bias based profiling issues as determined appropriate by the Texas Commission on Law Enforcement. d. Internal Affairs Supervisor (1) The Internal Affairs Administrator is responsible for investigating any complaints of bias based profiling filed against any member of the College Station Police Department as outlined in Chapter 26 - Internal Affairs. (2) If a video or audio recording was made of an incident, which is the basis of a complaint, the Internal Affairs Administrator or his designee will provide a copy of the recording to the officer who is the subject of the complaint upon the officer's written request. The request is to be made in memo form, routed through the chain of command to the Chief of Police. (3) Ensure an annual documented comparative analysis is done of the data collected for motor vehicle stops and arrests resulting from motor vehicle stops (tier 1 reporting) and a separate comparative analysis for any data collected on motor vehicle stops due to non-operational or unavailable audio/video equipment (tier 2 reporting). LE 1.2.9.c (a) Analysis for each report will be based on a calendar year. (b) Summary reports of the analysis must be submitted to the office of the Chief of Police, the City Council, and TCOLE before March 1st of each year. (c) The reports must include: i. A determination of the prevalence of bias based profiling ii. An examination of the disposition of motor vehicle stops, including searches resulting from the stops iii. Information relating to each complaint filed within the department alleging bias based profiling. iv. The report may not include identifying information about an officer or about the person stopped. v. Any corrective measures taken. vi. A review of citizen’s concerns, if any. (4) Will review and update department brochures as needed, which serve to educate the public about the internal affairs complaint process. (5) May make recommendations to the department training committee, or the recruiting and training division based on findings of summary reports. e. Public Information Officer The Public Information Officer will annually post a statement in the local newspaper outlining the Department's internal affairs complaint process. The statement will specifically include the process by which a member of the public may file a complaint if the individual believes an employee of our department has engaged in bias based profiling with respect to the individual. f. Department Web page Master The Department's web page master will maintain a statement on the website outlining the Department's internal affairs complaint process. The statement will specifically include the process by which a member of the public may file a complaint if the individual believes an employee of our department has engaged in racial profiling with respect to the individual. Page 124 of 309 COLLEGE STATION POLICE DEPARTMENT POLICY MANUAL - CHAPTER 65 BIASED BASED POLICING REVISION DATE: 01/05/2024 4 3. Training Requirements LE 1.2.9.b a. Officers are responsible for adherence to all Texas Commission on Law Enforcement (TCOLE) training and the Law Enforcement Management Institute of Texas (LEMIT) requirements as mandated by law. b. Training on Biased Based Policing, including legal aspects, is required with the following frequency: (1) All sworn employees shall receive initial training during orientation. (2) All sworn employees shall receive annual training. 4. Complaint Investigation a. All complaints alleging Biased Based Policing will be readily accepted in accordance to Chapter 26 - Complaints/Internal Affairs. b. If practical, any video and/or audiotapes associated with a biased -based policing complaint shall be forwarded through the chain of command with the complaint. 5. Public Education: Required by Article 2.132(b)(4) of the Texas Code of Criminal Procedure a. This department will inform the public of its compliment and complaint process including: telephone number, mailing address, and email address with respect to each ticket, citation or warning issued. Methods that may be utilized to inform the public include but are not limited to television, radio, service or civic presentations, brochures, internet, social media as well as governing board meetings. b. Additionally, information will be made available as appropriate in languages other than English. Page 125 of 309 Copyright 2023 Del Carmen Consulting All Rights Reserved. Copyright: This report may not be altered or reproduced outside the agreed terms, in any manner whatsoever without the written permission of the author. For additional questions regarding the information presented in this report, please contact: Del Carmen Consulting 817.681.7840 www.texasracialprofiling.com www.delcarmenconsulting.com Disclaimer: The author of this report, Alejandro del Carmen/del Carmen Consulting , is not liable for any omissions or errors committed in the acquisition, analysis, or creation of this report. Further, Dr. del Carmen/del Carmen Consulting is not responsible for the inappropriate use and distribution of information contained in this report. Further, no liability shall be incurred as a result of any harm that may be caused to individuals and/or organizations as a result of the information contained in this report. Page 126 of 309 April 11, 2024 Item No. 8.1. Lincoln Ave Construction Contract Sponsor: Jennifer Cain, Director Capital Projects Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action on a construction contract with Larry Young Paving, Inc. for $9,362,556.25 for the Lincoln Avenue Rehab Project, plus the City’s contingency in the amount of $1,400,000 for a total appropriation of $10,762,556.25 and a Resolution Declaring Intention to Reimburse Certain Expenditures with Proceeds from Debt. 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 approving and recommends approval of the resolution declaring intention to reimburse certain expenditures with proceeds from debt. Summary: The project involves the construction of approximately 6,900 linear feet of improvements on Lincoln Avenue from Texas Avenue to University Drive. The existing asphalt road will be replaced with concrete pavement with curb and gutter with a shared use path on both sides of Lincoln Avenue. The project was bid via competitive sealed proposal (CSP) on January 23, 2024, bid # 24-024. Five (5) sealed bids were submitted. After evaluation and interviews, Larry Young Paving, Inc. offered the best value for the city based on the published selection criteria. The base bid was accepted. The project is proposed to begin in June of 2024 and is contracted to take 425 calendar days to complete. Budget & Financial Summary: A combined budget in the amount of $12,275,400 is included in the Streets (ST1801), Water (WA1900002), and Wastewater (WW190002) Capital Projects Fund. A combined total of $1,360,356 has been expended or committed to date, leaving a balance of $10,915,044 for this contract and related costs. The “Resolution Declaring Intention to Reimburse Certain Expenditures with Proceeds from Debt” is necessary for this project because all of the long term debt projected to be issued for this project has not yet been issued. The debt for the project is scheduled to be issued at a later date. Attachments: 1. Lincoln DRR 2. Lincoln Project Location Map 3. Lincoln Construction Contract Vendor Signed Page 127 of 309 RESOLUTION NO. _________________ RESOLUTION DECLARING INTENTION TO REIMBURSE CERTAIN EXPENDITURES WITH PROCEEDS FROM DEBT WHEREAS, the City of College Station, Texas (the "City") is a home-rule municipality and political subdivision of the State of Texas; WHEREAS, the City expects to pay expenditures in connection with the design, planning, acquisition and construction of the projects described on Exhibit "A" hereto (collectively, the "Project") prior to the issuance of obligations by the City in connection with the financing of the Project from available funds; WHEREAS, the City finds, considers, and declares that the reimbursement of the City for the payment of such expenditures will be appropriate and consistent with the lawful objectives of the City and, as such, chooses to declare its intention, in accordance with the provisions of Section 1.150-2 of the Treasury Regulations, to reimburse itself for such payments at such time as it issues obligations to finance the Project; THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS THAT: Section 1. The City reasonably expects it will incur debt, as one or more series of obligations, with an aggregate maximum principal amount not to exceed $12,275,400, for the purpose of paying the aggregate costs of the Project. Section 2. All costs to be reimbursed pursuant hereto will be capital expenditures. No tax-exempt obligations will be issued by the City in furtherance of this Statement after a date which is later than 18 months after the later of (1) the date the expenditures are paid or (2) the date on which the property, with respect to which such expenditures were made, is placed in service. Section 3. The foregoing notwithstanding, no tax-exempt obligation will be issued pursuant to this Statement more than three years after the date any expenditure which is to be reimbursed is paid. PASSED AND APPROVED THIS 11th DAY OF April, 2024. _______________________________ John Nichols, Mayor ATTEST: _________________________________ Tanya Smith, City Secretary (Seal) Page 128 of 309 Page 129 of 309 Exhibit "A" The project to be financed that are the subject of this Statement is: Lincoln Avenue Rehabilitation ($12,275,400) This project will rehab the pavement and utilities along Lincoln Avenue from Texas Avenue to University Drive. This project will include demo existing asphalt section and replace with new concrete pavement section. The project will also rehab the existing subgrade, street concrete aprons, ADA ramps, striping, and utilities. A right turn lane will be added to the intersection at University Drive and signal modifications will be required. Page 130 of 309 W A L T O N D R IVE FRANCISDRIVEWALTONDRIVEFRANCISDRIVEUNNAMEDTRIBUTARYTOBURTONCREEKBURTONCREEKTRIBUTARY1WOLFPEN CR E EK TRIBUTARY BC A R TERSCR EEKTRIBUT A RY 17 WOLF PENCREEKTRIBUTARYAPRIVATEACCESSEASEMENTTARROW STREET PRIVATE ACCESSEASEMENTPRIVATE ACCESSEASEMENTPRIVATE ACCESSEASEMENTPRIVATE ACCESSEASEMENTNEWMAINDRIVENEWMAINDRIVERAMPGRANDOAKSCIRCLEF ORESTDRIVE FORESTDRIVE LOOPLYCEUMCOURTMONTEC ARLO WILLIAMS STREET SANC TUARYCOURTBERKELEY STREET GILCHRISTAVENUEPURYEARDRIVE TURNERSTREET PASLER STREETPRE STONSTREETARGUELLODRIVE MACARTHUR STREET STALLI NGS DRI V E SUMMERGL E N DRIVEFRA N C I S CIR C L E LIVEOAKSTREETCHURCHILL STREET KYLE AVENUECOONERSTREETOAKHAVEN CIRCLE TARROWSTREETGILBERTSTREETOLYMPIA WAY NUNNSTREE T MUNSONAVENUECHIMNEYHILLDRIVE EISENHOWER STREET HARDWOODLANECAROL STREETWOODHAVEN CIRCLE ATHENS DRIVELIVE OAK STREETSHADY DRIVE NIMITZSTREET J A MESPARKWAY G IL C H R I S T A V E N U EASHSTREETPOPLARSTREETLAMPWICK CIRCLE FIRESIDE CIRCLE EMBER GLOW CIRCLE BANKSSTREETPEARCESTREETAVENUE BCHURCHILL STREET POST OAKCIRCLEBOLTONAVENUEWOODLANDPARKWAYEASTAVENUE A WALTONDRIVE BOLTON AVENUEPEYTONSTREETMERRY OAKS DRIVE ASHBURNAVENUE WOODLANDPARKWAYMARSTELLER AVENUEWELLESLEY COURTVASSAR COURTM ARSTE L L E R A V E N U E BAYOUWOODSDRIVEBROOKS AVENUEMERRY OAKS DRIVE NEAL PICKETT DRIVE NEAL PICKETT DRIVE HOLT STREETJ A M E S PARKWAY WESTOVER STREET MILNERDRIVE HARRINGTONAVENUE ROSE CIRCLETARROWSTREETTARRO W STREET E A S T TARROWSTREETSPRI NGL OOPUNIVERSITYOAKSBOULEVARDDOMINIKDRIVETARROW STREET WALTONDRIVEGLENH A V E NDRIV E LINCOLN AVENUEFOSTERAVENUE HARVEYROADNIMITZSTREET TARROW STREET TEXASAVENUETEXASAVENUETEXASAVENUETEXASAVENUEUNIVERSITYDRIVEEASTUNIVER S ITYDRIVE EASTHARVEYROADUNIVERSITYDRIVEEASTU N IV E R S IT Y D R IV E E A S T TEXAS AVENUE TEXAS AVENUE A A B B C C D D E E 5 5 4 4 3 3 2 2 1 1 E A R L R U D D E R F R E E WA Y S O U THLegend Streets Functional Classification MAJOR ARTERIAL MAJOR COLLECTOR MINOR ARTERIAL MINOR COLLECTOR LOCAL STREET PRIVATE STREET ALLEY TAMU ACCESS ROADS Property Parcels Rivers PROJECT LOCATION M APLINCOLN AVENUE REHAB TX AVE TO UNIVERSITY DR.ST1801WA1900002WW1900002 ± ± Created: 3/13/2024 0 1,400 2,800 4,200 5,600 7,0003507001,050Feet Feet Overview Map DISCLAIMER: This product is for informational purposes and may not have been prepared for or besuitable for legal, engineering, or surveying purposes. It does not represent an on-the-ground surveyand represents only the approximate relative location of property boundaries. No warranty is made bythe City of College Station regarding specific accuracy or completeness. Page 131 of 309 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 24300403 ST1801 RFQ 24-024 Lincoln Avenue Rehab Larry Young Paving, Inc 9,362,556.25 n n n n n The project was procured by Concealed Sealed Proposal through RFP 24-024. Five (5) proposals were received and reviewed. A combined budget in the amount of $12,275,400 is included in the Streets (ST1801), Water (WA1900002), and Wasterwater (WW190002) Capital Projects Fund. A combined total of $ 1,369,862 has been expended or committed to date, leaving a balance of $10,915,538 for this contract and related costs. N/A 04/11/24 BW BW N/A N/A Page 132 of 309 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. Nine Million Three Hundred Sixty Two Thousand Five Hundred Fifty Six Page 133 of 309 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 134 of 309 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 135 of 309 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 136 of 309 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 137 of 309 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 138 of 309 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 139 of 309 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 140 of 309 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 141 of 309 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 142 of 309 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 143 of 309 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 144 of 309 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 145 of 309 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 146 of 309 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 147 of 309 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 148 of 309 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 149 of 309 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 150 of 309 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 151 of 309 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 152 of 309 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 153 of 309 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 154 of 309 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 155 of 309 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 156 of 309 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 157 of 309 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 158 of 309 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 159 of 309 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 160 of 309 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 161 of 309 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 162 of 309 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 163 of 309 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 164 of 309 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 165 of 309 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 166 of 309 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 167 of 309 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 168 of 309 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 169 of 309 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 170 of 309 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 171 of 309 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: ______________ Mark Schinzler 3/28/2024 COO Page 172 of 309 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT A DAVIS BACON WAGE RATES Page 173 of 309 Page 174 of 309 Page 175 of 309 Page 176 of 309 Page 177 of 309 Page 178 of 309 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 179 of 309 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT B PERFORMANCE AND PAYMENT BONDS Page 180 of 309 Page 181 of 309 Page 182 of 309 Page 183 of 309 Page 184 of 309 Page 185 of 309 Page 186 of 309 Page 187 of 309 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT C CERTIFICATES OF INSURANCE AND ENDORSEMENTS Page 188 of 309 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT D PLANS AND SPECIFICATIONS Page 189 of 309 Page 190 of 309 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT E CONSTRUCTION SCHEDULE Page 191 of 309 Page 192 of 309 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT F SCHEDULE OF VALUES Page 193 of 309 Lincoln Avenue Rehabilitation Project Bid Form ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL GENERAL ITEMS 1 1 LS Mobilization, construction staking, bonds and insurance as required in the specifications. 643000 643000 Subtotal: General Items REMOVALS 2 22,557 SY Mill 5" average asphalt pavement per plans & specifications and dispose offsite, to include all material, labor and equipment to complete the work. 8.5 191734.5 3 2,143 SY Remove and haul concrete pavement per plans & specifications and dispose offsite, to include all material, labor and equipment to complete the work. 12 25716 4 17 SY Remove gravel driveway per plans & specifications and dispose offsite, to include of material, labor and equipment to complete the work. 3.25 55.25 5 1,241 SY Remove concrete driveway per plans & specifications and dispose offsite, to include of material, labor and equipment to complete the work. 13 16133 6 4,223 SY Remove sidewalk per plans & specifications and dispose offsite, to include all material, labor and equipment to complete the work.12 50676 7 10,133 LF Remove and haul concrete curb and gutter per plans & specifications and dispose offsite, to include all material, labor and equipment to complete the work. 5.75 58264.75 8 2,558 LF Remove storm sewer pipe, all sizes and material, per plans & specifications and dispose offsite, to include all material, labor and equipment to complete the work.32 81856 9 6 EA Remove junction box and manhole per plans & specifications and dispose offsite, to include all material, labor and equipment to complete the work.1200 7200 10 23 EA Remove storm sewer inlet per plans & specifications and dispose offsite, to include all material, labor and equipment to complete the work.1300 29900 11 5 LF Remove culvert pipe per plans & specifications and dispose offsite to include all material, labor and equipment to complete the work.530 2650 12 1 EA Remove safety end treatment per plans & specifications and dispose offsite to include all material, labor and equipment to complete the work.450 450 13 2 SY Remove 6" concrete channel lining for proposed water line connection on Eisenhower per plans & specifications and dispose offsite, to include all material, labor and equipment to complete the work.11.67 23.34 14 1,416 LF Remove or grout fill 6" sanitary sewer per plans & specifications and dispose offsite to include clean out, all material, labor and equipment to complete the work.12 16992 15 80 LF Remove 8" sanitary sewer per plans & specifications and dispose offsite, to include clean out, all material, labor and equipment to complete the work.25 2000 16 3 EA Remove sanitary manhole per plans & specifications and dispose offsite, to include all material, labor and equipment to complete the work.1800 5400 Lincoln Avenue Rehabiliation Bid Opening Tuesday, January 23, 2024at 2:00 p.m. CT BID NO. 24-024 The Undersigned proposes to furnish all labor, services, materials, tools, and necessary equipment for the annual price agreement for Lincoln Avenue Rehabilitation, 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. 643000 Bid Form 1 of 14 Page 194 of 309 Lincoln Avenue Rehabilitation Project Bid Form ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL 17 437 LF Cap and remove or grout fill water service line per plans & specifications, to include all material, labor and equipment to complete the work. 10 4370 18 200 LF Cap and remove or grout fill 2" water line, all materials, per plans & specifications, to include all material, labor and equipment to complete the work. 10 2000 19 102 LF Cap and remove or grout fill 3" water line, all materials, per plans & specifications, to include all material, labor and equipment to complete the work. 10 1020 20 3,515 LF Cap and remove or grout fill 6" water line, all materials, per plans & specifications, to include all material, labor and equipment to complete the work. 12 42180 21 791 LF Cap and remove or grout fill 8" water line, all materials, per plans & specifications, to include all material, labor and equipment to complete the work. 13 10283 22 481 LF Cap and remove or grout fill 12" water line, all materials, per plans & specifications, to include all material, labor and equipment to complete the work. 16 7696 23 1,760 LF Cap and remove or grout fill 16" DIP water line, per plans & specifications, to include all material, labor and equipment to complete the work. 40 70400 24 1,648 LF Cap and remove or grout fill 18" CIP water line, per plans & specifications, to include all material, labor and equipment to complete the work. 44 72512 25 38 EA Remove water valves, all sizes, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $300.00 11400 26 9 EA Remove fire hydrant per plans & specifications and dispose offsite, to include all materials, labor and equipment to complete the work, complete and in place. $890.00 8010 27 3 EA Remove fire hydrant per plans & specifications and return to the City of College Station, to include all materials, labor and equipment to complete the work, complete and in place.1000 3000 28 46 EA Remove water meter per plans & specifications to include all material, labor and equipment to complete the work.190 8740 29 248 LF Remove pavement marking 24" SLD (W) per plans & specifications, to include all material, labor and equipment to complete the work.3.75 930 30 4 EA Remove mailbox per plans & specifications and dispose of offsite, to include all material, labor and equipment to complete the work. 660 2640 31 54 EA Remove sign per plans & specifications and dispose of offsite, to include all material, labor and equipment to complete the work. 150 8100 32 41 LF Remove handrail per plans & specifications and dispose of offsite, to include all material, labor and equipment to complete the work. 22 902 33 543 LF Remove fence per plans & specifications and dispose of offsite, to include all material, labor and equipment to complete the work. 9.75 5294.25 34 467 LF Remove and replace various fence types per plans & specifications, to include all material, labor and equipment to complete the work. 90 42030 35 1,065 SF Remove retaining wall, all materials, per plans & specifications and dispose of offsite, to include all material, labor and equipment to complete the work. 8.5 9052.5 36 149 EA Remove and haul off trees per plans & specifications and dispose offsite, to include clearing and grubbing in vicinity of removals, all material, labor and equipment to complete the work. 540 80460 Bid Form 2 of 14 Page 195 of 309 Lincoln Avenue Rehabilitation Project Bid Form ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL 37 5 EA Remove bollard per plans & specifications and dispose of offsite, to include all material, labor and equipment to complete the work. 140 700 38 1 LS Remove signal at University Drive per plans & specifications and dispose of offsite, to include but not limited to traffic signal pole, foundation, mast arm, luminaire, ped pole, ground box, capping existing wires, and all material, labor and equipment to complete the work. 7600 7600 Subtotal: Removals ROADWAY & EARTHWORK 39 4,700 CY Excavation of material in right-of-way to meet design grades of roadway and temporary paving, to include crushed rock base, hauling, stockpiling, and disposing of excess, to include all material, labor and equipment to complete the work. 15 70500 40 836 CY Haul in and place select fill material for roadway and temporary paving, condition and compact to design standards, to include all material, labor and equipment to complete the work. 24 20064 41 735 CY As needed, remove and replace unsuitable soils with select fill to include all material, labor and equipment to complete the work. Limits of remove and replace soil to be approved by Engineer prior to initiating work. 46 33810 42 17,200 SY Install 9" jointed reinforced concrete pavement (JRCP) with monolithic curb, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. (To include Lincoln Ave, Eisenhower St, Nimitz St, and Munson Ave) 88.03 1514116 43 19,601 SY Install 8" lime (6%) treated and compacted subgrade per plans & specifications, to include proof-rolling, sprinkling, and rolling, all material, labor and equipment to complete the work, complete and in place. (Does not include cost of lime.) (To include Lincoln Ave, Eisenhower St, Nimitz St, and Munson Ave) 8.5 166608.5 44 285 SY Install 4" HMAC surface course, Type D, per plans & specifications, to include all material, labor and equipment to complete the work, complete and in place. 72 20520 45 371 SY Install 6" HMAC base course, Type B, per plans & specifications, to include all material, labor and equipment to complete the work, complete and in place. 62 23002 46 371 SY Install 6" lime (6%) treated and compacted subgrade per plans & specifications, to include proof-rolling, sprinkling, and rolling, all material, labor and equipment to complete the work, complete and in place. (Does not include cost of lime.) 53 19663 47 358 TON Lime for stabilization of subgrade.430 153940 48 564 LF Install 4" monolithic curb, Type I, per plans & specifications, to include all material, labor and equipment to complete the work, complete and in place. 16 9024 49 677 LF Install 6" monolithic full depth sidewalk curb, per plans & specifications, to include all material, labor and equipment to complete the work, complete and in place. 12 8124 888370.59 Bid Form 3 of 14 Page 196 of 309 Lincoln Avenue Rehabilitation Project Bid Form ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL 50 58 SY Install special 9" jointed reinforced concrete pavement median, colored (Brickform, Integral-Base: UMX-340 Garnet, Release: 200 Medium Gray) and stamped (Pattern: New Brick Running Bond), per plans & specifications, to include all material, labor and equipment to complete the work, complete and in place. 297.52 17256.16 51 2,761 SY Install 6" concrete shared use path, colored (Brickform, Integral-Base: UMX-340 Garnet, Release: 200 Medium Gray) and stamped (Pattern: New Brick Running Bond), per plans & specifications, to include all material, labor and equipment to complete the work, complete and in place. 120 331320 52 129 LF Install typical combined curb & gutter (ST1-01) per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. 46 5934 53 1,575 SY Install 6" high early strength concrete intersection (ST4-05) per plans & specifications, to include 8" lime (6%) treated and compacted subgrade, all materials, labor and equipment to complete the work, complete and in place. 140 220500 54 1,581 SY Install 6" high early strength concrete driveway per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. 94 148614 55 8,926 SY Install 6" concrete shared use path per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. 74 660524 56 1,175 SY Install 6" concrete shared use path (Special) (Type A) per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. 180 211500 57 2 EA Install 5' ADA concrete ramp and detectable warning per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. 1100 2200 58 4 EA Install 6' ADA concrete ramp and detectable warning per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. 1300 5200 59 22 EA Install 8' ADA concrete ramp and detectable warning per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. 1700 37400 60 4 EA Install 9' ADA concrete ramp and detectable warning per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. 1900 7600 61 41 EA Install 10' ADA concrete ramp and detectable warning per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. 2100 86100 62 2 EA Install 15' ADA concrete ramp and detectable warning per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. 3200 6400 63 24 CY Install concrete retaining wall per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. 890 21360 Bid Form 4 of 14 Page 197 of 309 Lincoln Avenue Rehabilitation Project Bid Form ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL 64 180 LF Install pedestrian handrail (SW1-01), powder coated, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. 260 46800 65 4 EA Install mailbox MB-S AASM TY (TWG) (TY 4) (TxDOT MB-15(1)) per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. 660 2640 66 18 EA Install 30 gallon Crepe Myrtle, to include all materials, labor and equipment to complete the work, complete and in-place.370 6660 67 15 EA Adjust sanitary sewer manhole to final grade per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. 950 14250 Subtotal: Roadway and Earthwork DRAINAGE 68 16 EA Furnish and Install 5' curb inlet, all depths, with structural backfill, per plans & specifications, to include (20) extension(s), ring & cover, plate, all materials, labor and equipment to complete the work, complete and in place. $6,800.00 $108,800.00 69 3 EA Furnish and Install 5' C1 curb inlet (TxDOT HIL-C1), all depths, with structural backfill, per plans & specifications, to include (2) extension(s), ring & cover, plate, all materials, labor and equipment to complete the work, complete and in place. $6,800.00 $20,400.00 70 4 EA Furnish and Install 10' full depth inlet, all depths, with structural backfill, per plans & specifications, to include ring & cover, plate, all materials, labor and equipment to complete the work, complete and in place. $7,400.00 $29,600.00 71 4 EA Furnish and Install 15' full depth inlet, all depths, with structural backfill, per plans & specifications, to include ring & cover, plate, all materials, labor and equipment to complete the work, complete and in place. $11,000.00 $44,000.00 72 1 EA Furnish and Install 15' C1 full depth inlet (TxDOT HIL-C1), all depths, with structural backfill, per plans & specifications, to include ring & cover, plate, all materials, labor and equipment to complete the work, complete and in place. $11,000.00 $11,000.00 73 2 EA Furnish and Install 5' inlet cover, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $3,200.00 $6,400.00 74 2 EA Furnish and Install 3' x 3' junction box, all depths, with structural backfill, per plans & specifications, to include all materials, ring & cover, plate, labor and equipment to complete the work, complete and in place. $4,600.00 $9,200.00 75 1 EA Furnish and Install 4' x 4' junction box, all depths, with structural backfill, per plans & specifications, to include all materials, ring & cover, plate, labor and equipment to complete the work, complete and in place. $5,800.00 $5,800.00 76 3 EA Furnish and Install 5' x 5' junction box, all depths, with structural backfill, per plans & specifications, to include all materials, ring & cover, plate, labor and equipment to complete the work, complete and in place. $6,600.00 $19,800.00 77 3 EA Furnish and Install 6' x 6' junction box, all depths, with structural backfill, per plans & specifications, to include all materials, ring & cover, plate, labor and equipment to complete the work, complete and in place. $6,700.00 $20,100.00 78 1 EA Furnish and Install 7' x 10' junction box, all depths, with structural backfill, per plans & specifications, to include all materials, ring & cover, plate, labor and equipment to complete the work, complete and in place. $11,000.00 $11,000.00 3871629.66 Bid Form 5 of 14 Page 198 of 309 Lincoln Avenue Rehabilitation Project Bid Form ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL 79 1 EA Furnish and Install 3' x 3' grate inlet, all depths, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $5,400.00 $5,400.00 80 1 EA Furnish and Install 3' x 3' grate inlet (traffic rated), all depths, with structural back fill, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $5,400.00 $5,400.00 81 3 EA Furnish and Install 4' x 1' sidewalk drainage trench with structural backfill, per plans & specifications, to include 12" PVC (EST 42 LF), all materials, grate, labor and equipment to complete the work, complete and in place. $4,300.00 $12,900.00 82 11 EA Furnish and Install sidewalk trench grate (SW3-02), all sizes, per plans & specifications, to include all materials, Neenah grate, labor and equipment to complete the work, complete and in place. $6,300.00 $69,300.00 83 23 SY Furnish and Install Common Stone RipRap with grout (6"-9") per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $135.00 $3,105.00 84 24 SY Furnish and Install 6" concrete riprap/apron per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $220.00 $5,280.00 85 909 LF Furnish and Install 18" diameter reinforced concrete pipe to include rubber gasket joints, Class III, with structural backfill, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $150.00 $136,350.00 86 134 LF Furnish and Install 18" diameter reinforced concrete pipe to include rubber gasket joints, Class IV, with structural backfill, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $160.00 $21,440.00 87 824 LF Furnish and Install 24" diameter reinforced concrete pipe to include rubber gasket joints, Class III, with structural backfill, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $160.00 $131,840.00 88 6 LF Furnish and Install 24" diameter reinforced concrete pipe to include rubber gasket joints, Class IV, with structural backfill, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $170.00 $1,020.00 89 42 LF Furnish and Install 30" diameter reinforced concrete pipe to include rubber gasket joints, Class III, with structural backfill, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $220.00 $9,240.00 90 280 LF Furnish and Install 30" diameter reinforced concrete pipe to include rubber gasket joints, Class IV, with structural backfill, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $230.00 $64,400.00 91 55 LF Furnish and Install 36" diameter reinforced concrete pipe to include rubber gasket joints, Class III, with structural backfill, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $260.00 $14,300.00 Bid Form 6 of 14 Page 199 of 309 Lincoln Avenue Rehabilitation Project Bid Form ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL 92 75 LF Furnish and Install 42" diameter reinforced concrete pipe to include rubber gasket joints, Class III, with structural backfill, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $340.00 $25,500.00 93 404 LF Furnish and Install 42" diameter reinforced concrete pipe to include rubber gasket joints, Class IV, with structural backfill, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $390.00 $157,560.00 94 46 LF Furnish and Install 48" diameter reinforced concrete pipe to include rubber gasket joints, Class III, with structural backfill, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $390.00 $17,940.00 95 20 LF Furnish and Install 48" diameter reinforced concrete pipe to include rubber gasket joints, Class IV, with structural backfill, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $520.00 $10,400.00 96 69 LF Furnish and Install 3' x 2' reinforced concrete box to include rubber gasket joints, with structural backfill, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $660.00 $45,540.00 97 6 LF Furnish and Install 5' x 2' reinforced concrete box to include rubber gasket joints, with structural backfill, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $910.00 $5,460.00 98 39 SY Install 6" concrete flume (D2-04) per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $110.00 $4,290.00 99 1 EA Furnish and Install concrete headwall and parallel wingwall assembly (PW-1) (HW=5 FT) per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $9,500.00 $9,500.00 100 1 EA Furnish and Install safety end treatment, all sizes and slopes, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $3,500.00 $3,500.00 101 1,397 LF Trench Safety $0.75 $1,047.75 Subtotal: Drainage SANITARY SEWER 102 952 LF Furnish and Install 6" SDR-26-D3034 with structural backfill, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $130.00 $123,760.00 103 2 EA Install 6" connection with structural backfill, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $1,100.00 $2,200.00 104 74 LF Furnish and Install 8" SDR-26-D3034 with structural backfill, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $140.00 $10,360.00 105 1 EA Install 8" connection with structural backfill, per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $1,200.00 $1,200.00 $1,046,812.75 Bid Form 7 of 14 Page 200 of 309 Lincoln Avenue Rehabilitation Project Bid Form ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL 106 4 EA Connect to existing manhole per plans & specifications, to include spacers, neoprene seal, and all materials, labor and equipment to complete the work, complete and in place. $2,200.00 $8,800.00 107 4 EA Furnish and Install standard 4' manhole with structural backfill per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $6,900.00 $27,600.00 108 2 EA Furnish and Install 4" sanitary sewer service connections (long) with structural backfill per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $3,200.00 $6,400.00 109 1 EA Furnish and Install 6" cap and plug per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $380.00 $380.00 110 1,026 LF Trench Safety $2.00 $2,052.00 111 1 LS Furnish and provide all sewer by-pass pumping during the installation of the sewer line system to include temporary fittings, plugs, boots, and wet well pumping. To include all materials, labor and equipment to complete the work, complete and in place. $2,000.00 $2,000.00 112 1,026 LF TV Sewer Inspection per 33 01 30.13 $5.00 $5,130.00 Subtotal: Sanitary Sewer WATER 113 28 EA Furnish and Install 1" short service per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $1,500.00 $42,000.00 114 7 EA Furnish and Install 1" long service per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $3,100.00 $21,700.00 115 5 EA Furnish and Install 1" short dual service per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $2,400.00 $12,000.00 116 1 EA Furnish and Install 1" long dual service per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $4,800.00 $4,800.00 117 47 EA Reset water meter with new box per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $250.00 $11,750.00 118 1 EA Furnish and Install 3" meter and vault assembly (W5-00) per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $19,000.00 $19,000.00 119 69 LF Furnish and Install 3" diameter DR14 C-900 PVC water pipe by open cut with non-structural backfill, per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $40.00 $2,760.00 120 6 LF Furnish and Install 3" diameter DR14 C-900 PVC water pipe by open cut with structural backfill, per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $57.00 $342.00 $189,882.00 Bid Form 8 of 14 Page 201 of 309 Lincoln Avenue Rehabilitation Project Bid Form ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL 121 8 LF Furnish and Install 6" diameter DR14 C-900 PVC water pipe by open cut with non-structural backfill, per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $55.00 $440.00 122 24 LF Furnish and Install 6" diameter DR14 C-900 PVC water pipe by open cut with structural backfill, per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $91.00 $2,184.00 123 442 LF Furnish and Install 8" diameter DR14 C-900 PVC water pipe by open cut with non-structural backfill, per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $66.00 $29,172.00 124 3,178 LF Furnish and Install 8" diameter DR14 C-900 PVC water pipe by open cut with restrained joints and structural backfill, per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $100.00 $317,800.00 125 16 LF Furnish and Install 12" diameter DR14 C-900 PVC water pipe by open cut with non-structural backfill, per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $110.00 $1,760.00 126 466 LF Furnish and Install 12" diameter DR14 C-900 PVC water pipe by open cut with restrained joints and structural backfill, per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $160.00 $74,560.00 127 85 LF Furnish and Install 12" diameter C151 CL350 ductile iron water pipe by open cut with structural backfill, per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $170.00 $14,450.00 128 756 LF Furnish and Install 16" diameter C151 CL250 ductile iron water pipe by open cut with non-structural backfill, per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $160.00 $120,960.00 129 991 LF Furnish and Install 16" diameter C151 CL250 ductile iron water pipe by open cut with structural backfill, per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $200.00 $198,200.00 130 85 LF Furnish and Install 18" diameter C151 CL250 ductile iron water pipe by open cut with non-structural backfill, per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $190.00 $16,150.00 131 1,586 LF Furnish and Install 18" diameter C151 CL250 ductile iron water pipe by open cut with structural backfill, per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $240.00 $380,640.00 132 432 LF Furnish and install 16" steel casing, 3/8" thick, (excluding carrier pipe) per plans & specifications, to include spacers, neoprene seal, and all materials, labor and equipment to complete the work, complete and in place. $360.00 $155,520.00 133 153 LF Furnish and install 20" steel casing, 3/8" thick, (excluding carrier pipe) per plans & specifications, to include spacers, neoprene seal, and all materials, labor and equipment to complete the work, complete and in place. $400.00 $61,200.00 Bid Form 9 of 14 Page 202 of 309 Lincoln Avenue Rehabilitation Project Bid Form ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL 134 43 LF Furnish and install 24" steel casing, 3/8" thick, (excluding carrier pipe) per plans & specifications, to include spacers, neoprene seal, and all materials, labor and equipment to complete the work, complete and in place. $430.00 $18,490.00 135 112 LF Furnish and install 30" steel casing, 1/2" thick, (excluding carrier pipe) per plans & specifications, to include spacers, neoprene seal, and all materials, labor and equipment to complete the work, complete and in place. $540.00 $60,480.00 136 1 EA Furnish and Install 2"- 45° MJ Bend with thrust blocking per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $300.00 $300.00 137 4 EA Furnish and Install 3"- 45° MJ Bend with thrust blocking per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $320.00 $1,280.00 138 2 EA Furnish and Install 6"- 11.25° MJ Bend with thrust blocking per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $450.00 $900.00 139 1 EA Furnish and Install 6"- 22.5° MJ Bend with thrust blocking per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $450.00 $450.00 140 5 EA Furnish and Install 6"- 45° MJ Bend with thrust blocking per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $450.00 $2,250.00 141 5 EA Furnish and Install 8"- 11.25° MJ Bend with thrust blocking per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $590.00 $2,950.00 142 57 EA Furnish and Install 8"- 45° MJ Bend with thrust blocking per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $590.00 $33,630.00 143 14 EA Furnish and Install 12"- 45° MJ Bend with thrust blocking per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $1,000.00 $14,000.00 144 2 EA Furnish and Install 16"- 22.5° MJ Bend with thrust blocking per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $2,200.00 $4,400.00 145 8 EA Furnish and Install 16"- 45° MJ Bend with thrust blocking per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $2,200.00 $17,600.00 146 2 EA Furnish and Install 18"- 22.5° MJ Bend with thrust blocking per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $3,100.00 $6,200.00 147 11 EA Furnish and Install 18"- 45° MJ Bend with thrust blocking per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $3,100.00 $34,100.00 148 1 EA Furnish and Install 3"x3" MJ Tee with thrust blocking per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $580.00 $580.00 Bid Form 10 of 14 Page 203 of 309 Lincoln Avenue Rehabilitation Project Bid Form ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL 149 5 EA Furnish and Install 8"x6" MJ Tee with thrust blocking per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $810.00 $4,050.00 150 8 EA Furnish and Install 8"x8" MJ Tee with thrust blocking per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $890.00 $7,120.00 151 2 EA Furnish and Install 12"x12" MJ Tee with thrust blocking per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $1,600.00 $3,200.00 152 2 EA Furnish and Install 16"x12" MJ Tee with thrust blocking per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $2,600.00 $5,200.00 153 3 EA Furnish and Install 16"x8" MJ Tee with thrust blocking per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $2,500.00 $7,500.00 154 6 EA Furnish and Install 16"x6" MJ Tee with thrust blocking per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $2,300.00 $13,800.00 155 1 EA Furnish and Install 16"x3" MJ Tee with thrust blocking per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $2,300.00 $2,300.00 156 1 EA Furnish and Install 18"x6" MJ Tee with thrust blocking per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $3,000.00 $3,000.00 157 2 EA Furnish and Install 18"x8" MJ Tee with thrust blocking per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $3,200.00 $6,400.00 158 1 EA Furnish and Install 18"x18" MJ Tee with thrust blocking per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $4,200.00 $4,200.00 159 2 EA Furnish and Install 8"x2" reducer per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $420.00 $840.00 160 6 EA Furnish and Install 8"x6" reducer per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $480.00 $2,880.00 161 2 EA Furnish and Install 12"x8" reducer per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $730.00 $1,460.00 162 1 EA Furnish and Install 18"x16" reducer per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $2,200.00 $2,200.00 163 1 EA Furnish and Install 18"x8" reducer per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $1,900.00 $1,900.00 164 3 EA Furnish and Install 6" MJ Gate Valve, extensions, and box with thrust blocking, per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $1,900.00 $5,700.00 Bid Form 11 of 14 Page 204 of 309 Lincoln Avenue Rehabilitation Project Bid Form ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL 165 25 EA Furnish and Install 8" MJ Gate Valve, extensions, and box with thrust blocking, per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $2,300.00 $57,500.00 166 3 EA Furnish and Install 12" MJ Gate Valve, extensions, and box with thrust blocking, per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $4,000.00 $12,000.00 167 5 EA Furnish and Install 16" MJ Gate Valve, extensions, and box with thrust blocking, per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $14,000.00 $70,000.00 168 6 EA Furnish and Install 18" MJ Gate Valve, extensions, and box with thrust blocking, per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $20,000.00 $120,000.00 169 2 EA Furnish and Install 8" end of line plug and blocking (W3-00) per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $500.00 $1,000.00 170 20 EA Connect to existing water line, all sizes, per plans & specifications to include all required fittings, adapters, etc., all material, labor and equipment to complete the work, complete and in place. $3,200.00 $64,000.00 171 3 EA Furnish and Install air release valve (W3-02) per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $5,700.00 $17,100.00 172 12 EA Furnish and Install fire hydrant assemblies (W1-02) per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $8,000.00 $96,000.00 173 2 SY Furnish and Install 6" concrete channel lining repair for water line connection at Eisenhower per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $610.00 $1,220.00 174 5,339 LF Trench Safety $2.25 $12,012.75 Subtotal: Water EROSION CONTROL 175 1 LS File notice of intent and storm water pollution prevention plan with TCEQ, maintain and post all project information and keep records and report to inspector and engineer. $18,000.00 $18,000.00 176 1 LS Furnish, install, maintain continuously, and remove sediment devices to include temporary seeding, (794 LF) inlet protection, (12 EA) construction entrance and exits, (63 LF) rock filter dams, (1 SY) filter fabric, watering and other sediment control devices per plans & specifications, complete and in place. $86,000.00 $86,000.00 177 2,669 LF Furnish, Install, and remove temporary sediment control fencing per plans & specifications to include all material, labor and equipment to complete the work, complete and in place. $3.00 $8,007.00 178 6,979 SY Hydro mulch disturbed areas to include smoothing, 4" topsoil, grading, fertilizer, watering, maintenance and clean-up per plans & specifications, to include all material, labor and equipment to complete the work, complete and in place. $0.50 $3,489.50 $2,207,580.75 Bid Form 12 of 14 Page 205 of 309 Lincoln Avenue Rehabilitation Project Bid Form ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL 179 2,879 SY Block sod disturbed areas to include smoothing, 4" topsoil, fertilizer, watering, maintenance and clean-up per plans & specifications, to include all material, labor and equipment to complete the work, complete and in place. $6.00 $17,274.00 180 1 LS Furnish a licensed arborist and provide tree protection (45 Trees), to include but not limited to: 2099 LF protection fencing, 508 LF root pruning, fertilization, and tree clearance pruning as shown on plans & specifications and as directed by the Arborist, complete and in place. $52,000.00 $52,000.00 Subtotal: Erosion Control SIGNAGE, PAVEMENT MARKINGS, STRIPING & TCP 181 1 LS Furnish, Install, and Remove all traffic control devices (TCP) to incl: All striping, barricades, temporary signage, cut and restore pavement, temporary curbing, and level-ups and all other temporary facilities required for the TCP per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $114,000.00 $114,000.00 182 1 LS Furnish and Install all reflective pavement markings, sealer, arrows, symbols and surface preparation per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $29,000.00 $29,000.00 183 57 EA Furnish and Install all sign assemblies with bronze powder coated posts and triangular slipbase supports per plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $930.00 $53,010.00 184 1 LS Modify signal phasing and timing at University Drive to work with all steps in the traffic control plan, to be performed by a qualified sub-consultant. Develop phasing and timing plan, to be submitted to the City Project Manager and Engineer for approval. This shall include all coordination, materials, labor and equipment to complete the work, complete and in place. $7,500.00 $7,500.00 Subtotal: Signage, Pavement Markings, Striping and TCP SIGNALIZATION 185 1 LS Furnish and install traffic signal assembly modification at University Dr with bronze powder coating per plans & specifications, to include but not limited to foundations, poles, mast arm, luminaire, removal and replacement of Opticom, street name sign (ILSN), signal heads, and ground boxes, and all materials, labor, and equipment to complete the work, complete and in place. $127,000.00 $127,000.00 Subtotal: Signalization Total Bid ALTERNATE 1 BID ITEMS - PVC WATER MAIN A1 -85 LF Subtract Item 127: Furnish and Install 12" diameter C151 CL350 ductile iron water pipe by open cut with structural backfill, per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $170.00 -$14,450.00 A2 -756 LF Subtract Item 128: Furnish and Install 16" diameter C151 CL250 ductile iron water pipe by open cut with non-structural backfill, per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $160.00 -$120,960.00 $184,770.50 $203,510.00 $127,000.00 $9,362,556.25 Bid Form 13 of 14 Page 206 of 309 Lincoln Avenue Rehabilitation Project Bid Form ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL A3 -991 LF Subtract Item 129: Furnish and Install 16" diameter C151 CL250 ductile iron water pipe by open cut with structural backfill, per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $200.00 -$198,200.00 A4 -85 LF Subtract Item 130: Furnish and Install 18" diameter C151 CL250 ductile iron water pipe by open cut with non-structural backfill, per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $190.00 -$16,150.00 A5 -1,586 LF Subtract Item 131: Furnish and Install 18" diameter C151 CL250 ductile iron water pipe by open cut with structural backfill, per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $240.00 -$380,640.00 A6 85 LF Add Item: Furnish and Install 12" diameter DR14 C-900 PVC water pipe by open cut with restrained joints and structural backfill, per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $175.00 $14,875.00 A7 756 LF Add Item: Furnish and Install 16" diameter DR14 C-905 PVC water pipe by open cut with restrained joints and non- structural backfill, per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $180.00 $136,080.00 A8 991 LF Add Item: Furnish and Install 16" diameter DR14 C-905 PVC water pipe by open cut with restrained joints and structural backfill, per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $210.00 $208,110.00 A9 85 LF Add Item: Furnish and Install 18" diameter DR14 C-905 PVC water pipe by open cut with restrained joints and non- structural backfill, per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $200.00 $17,000.00 A10 1,586 LF Add Item: Furnish and Install 18" diameter DR14 C-905 PVC water pipe by open cut with restrained joints and structural backfill, per plans & specifications, to include all materials, testing, disinfection, labor and equipment to complete the work, complete and in place. $250.00 $396,500.00 Total - Bid Alternate 1 (A1+A2+A3+A4+A5+A6+A7+A8+A9+A10=) Total Bid + Bid Alternate 1 $42,165.00 $9,404,721.25 per addendum #1 Bid Form 14 of 14 Page 207 of 309 April 11, 2024 Item No. 8.2. Carter Creek WWTP Diversion Lift Station and Force Main Sponsor: Jennifer Cain, Director Capital Projects Reviewed By CBC: City Council Agenda Caption: Presentation, discussion, and possible action regarding a construction contract with Dudley Construction, Inc. in the amount of $10,976,992.30 for the Carter Creek WWTP Diversion Lift Station and Force Main, plus the City’s contingency amount of $1,000,000 for a total appropriation of $11,976,992.30 for this project and a Resolution Declaring Intention to Reimburse Certain Expenditures with Proceeds from Debt. 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 approving and recommends approval of the resolution declaring intention to reimburse certain expenditures with proceeds from debt. Summary: As the University Corridor area continues to develop, sewer flows to the Carter Creek Waste Water Treatment Plant (WWTP) are growing. The plant is nearing its permitted capacity and its location does not allow for any significant expansion. This project will divert flow from the Carter Creek WWTP to the Lick Creek WWTP and was identified in the Wastewater Master Plan as a necessity to decrease the volume of flow being treated at the Carter Creek WWTP. This project will build a diversion lift station and force main to divert some of the existing flow into the Carter Creek Wastewater Treatment Plant (WWTP) to the newly expanded Lick Creek WWTP. The project will construct a 4 MGD diversion lift station within the Carter Creek WWTP near the existing headworks. A lift station is required to divert the flow because the preferred method of gravity flow is not an option at this location. The lift station construction will include a diversion junction box, pumps, valves, and other equipment. A new electrical building will be constructed along with the lift station to house the necessary equipment to run the pumps for the lift station. The lift station will be built to allow for future expansion. This project will also construct approximately 13,000 linear feet of 20” force main. The force main will tie into an existing manhole and existing trunkline to take flow to the Lick Creek WWTP via gravity flow. There have been several other projects completed in order to divert flows from the Carter Creek plant to the Lick Creek plant and they are identified on the attached map. This includes the newly completed expansion of the Lick Creek WWTP. This project was bid via competitive sealed proposals. 4 proposals were received. Dudley Construction, Inc. was selected as the best value to the City. Budget & Financial Summary: A budget of $15,550,000 is included for this project in the Wastewater Capital Improvement Projects Fund. A total of $3,030,931 has been expended or committed to date, leaving a balance of $12,519,069 for this contract and related expenses. The “Resolution Declaring Intention to Reimburse Certain Expenditures with Proceeds from Debt” is necessary for this project because all of the long term debt projected to be issued for this project has not yet been issued. The debt for the project is scheduled to be issued at a later date. Attachments: 1. CC WWTP Diversion Lift Station Force Main Location Map Page 208 of 309 2. CC WWTP Diversion Lift Station Force Main DRR Final 3. CCWWTP Diversion Lift Station Force Main Dudley Contract Vendor Signed 4. Carter Creek Diversion Lift Station and Force Main Project Overall Map Page 209 of 309 Page 210 of 309 RESOLUTION NO. _________________ RESOLUTION DECLARING INTENTION TO REIMBURSE CERTAIN EXPENDITURES WITH PROCEEDS FROM DEBT WHEREAS, the City of College Station, Texas (the "City") is a home-rule municipality and political subdivision of the State of Texas; WHEREAS, the City expects to pay expenditures in connection with the design, planning, acquisition and construction of the projects described on Exhibit "A" hereto (collectively, the "Project") prior to the issuance of obligations by the City in connection with the financing of the Project from available funds; WHEREAS, the City finds, considers, and declares that the reimbursement of the City for the payment of such expenditures will be appropriate and consistent with the lawful objectives of the City and, as such, chooses to declare its intention, in accordance with the provisions of Section 1.150-2 of the Treasury Regulations, to reimburse itself for such payments at such time as it issues obligations to finance the Project; THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS THAT: Section 1. The City reasonably expects it will incur debt, as one or more series of obligations, with an aggregate maximum principal amount not to exceed $15,550,000, for the purpose of paying the aggregate costs of the Project. Section 2. All costs to be reimbursed pursuant hereto will be capital expenditures. No tax-exempt obligations will be issued by the City in furtherance of this Statement after a date which is later than 18 months after the later of (1) the date the expenditures are paid or (2) the date on which the property, with respect to which such expenditures were made, is placed in service. Section 3. The foregoing notwithstanding, no tax-exempt obligation will be issued pursuant to this Statement more than three years after the date any expenditure which is to be reimbursed is paid. PASSED AND APPROVED THIS 11th DAY OF April, 2024. _______________________________ John Nichols, Mayor ATTEST: _________________________________ Tanya Smith, City Secretary (Seal) Page 211 of 309 Page 212 of 309 Exhibit "A" The project to be financed that are the subject of this Statement is: Carter Creek Diversion Lift Station and Force Main ($15,550,000) This project will build a diversion lift station and force main to divert some of the existing flow into the Carter Creek Wastewater Treatment Plant (WWTP) to the newly expanded Lick Creek WWTP. The project will construct a 4 MGD diversion lift station within the Carter Creek WWTP near the existing headworks. The lift station construction will include a diversion junction box, pumps, valves, and SCADA equipment. A new electrical building will be constructed along with the lift station to house VFDs and SCADA equipment to run the pumps for the lift station. The lift station will be built to allow future expansion. This project will also construct approximately 13,000 linear feet of 20” force main. The force main will tie into an existing manhole and existing trunkline to take flow to the Lick Creek WWTP via gravity flow. Page 213 of 309 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 24300373 WW1800002 24-018 Carter Creek WWTP Diversion Lift Station and Force Main Construction of a lift station at the Carter Creek WWTP and 13,000 linear feet of 20-inch force main. Dudley Construction, LLC. 10,976,992.30 n n n n n A budget of $15,550,000 is included for this project in the Wastewater Capital Improvement Projects Fund. A total of $3,030,533 has been expended of committed to date, leaving a balance of $12,519,467 for this contract and related expenses. N/A 04/11/24 BW BW N/A N/A N/A Page 214 of 309 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 215 of 309 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 216 of 309 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 217 of 309 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 218 of 309 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 219 of 309 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 220 of 309 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 221 of 309 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 222 of 309 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 223 of 309 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 224 of 309 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 225 of 309 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 226 of 309 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 227 of 309 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 228 of 309 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 229 of 309 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 230 of 309 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 231 of 309 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 232 of 309 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 233 of 309 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 234 of 309 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 235 of 309 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 236 of 309 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 237 of 309 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 238 of 309 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 239 of 309 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 240 of 309 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 241 of 309 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 242 of 309 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 243 of 309 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 244 of 309 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 245 of 309 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 246 of 309 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 247 of 309 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 248 of 309 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 249 of 309 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 250 of 309 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 251 of 309 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 252 of 309 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 253 of 309 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: ______________ Mark Dudley President 4/1/2024 Page 254 of 309 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT A DAVIS BACON WAGE RATES Page 255 of 309 "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 256 of 309 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 257 of 309 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 258 of 309 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 259 of 309 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 260 of 309 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 261 of 309 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT B PERFORMANCE AND PAYMENT BONDS Page 262 of 309 THE STATE OF TEXAS THE COUNTY OF BRAZOS PERFORMANCE BOND Bond No. 4472256 --~~~------- § § § KNOW ALL MEN BY THESE PRESENTS: THAT WE, __ D_u_d_le_,_y_C_01_1s_tru_c_tio_n-'-, _LL_C ____________ , as Principal, hereinafter called "Contractor" and the other subscriber hereto __ S_u_re_T_ec_I_ns_u_ra_nc_e_C_o1_np~a_ny~-----------' as Surety, do hereby acknowledge ourselves to be held and fomly bound to the City of College Station, a municipal corporation, in the sum of Ten Million Nine Hundred Seventy-Six Thousand Nine Hundred Ninety-Two and _30 ___ /100 Dollars($ 10,976,992.30 ) 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 RFP (CSP) 24-018 Carter Creek Force Main and Lift Station 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 perfmmance 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. 24300373 Construction Agreement Over $50,000 F01m 04-20-2023 Page 263 of 309 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 unde1iaking 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 incmTed 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 ( ce1iified mail, return receipt requested), addressed to the respective other pmiy 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 cunent Power of Attorney. Contract No. 24300373 Construction Agreement Over $50,000 Form 04-20-2023 Page 264 of 309 SureTec Insurance Company IMPORTANT NOTICE Statutory Complaint Notice/Filing of Claims To obtain information or make a complaint: You may call the Surety's toll free telephone number for information or to make a complaint or file a claim at: 1-866-732-0099. You may also write to the Surety at: SureTec Insurance Company 9500 Arboretum Blvd., Suite 400 Austin, TX 78759 You may contact the Texas Department of Insurance to obtain information on companies, coverage, rights or complaints at 1-800-252-3439. You may write the Texas Department of Insurance at: PO Box 149104 Austin, TX 78714- 9104 Fax#: 512-490-1007 Web: http://www.tdi.state.tx.us Email: ConsumerProtection@tdi.texas.gov PREMIUM OR CLAIMS DISPUTES: Should you have a dispute concerning your premium or about a claim, you should contact the Surety first. If the dispute is not resolved, you may contact the Texas Department of Insurance. SIC TX Rider TOI Required Notices rev 07 _2022 Page 1of1 Page 269 of 309 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT C CERTIFICATES OF INSURANCE AND ENDORSEMENTS Page 270 of 309 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY 3/7/2024 ANCO Insurance PO Box 3889 Bryan TX 77805 Juanice Smith 979-774-6504 979-774-5372 smithj@anco.com Valley Forge Insurance Co.20508 DUDLCON-02 Continental Insurance Co.35289Dudley Construction, LLC Attn: Mark Dudley 11370 State Hwy. 30 College Station TX 77845 American Casualty Co.20427 Westchester Surplus Lines Ins.10172 Continental Casualty Co.20443 327961141 A X 1,000,000 X 100,000 15,000 1,000,000 2,000,000 X 6072186638 8/1/2023 8/1/2024 2,000,000 B 1,000,000 X X X 6072186655 8/1/2023 8/1/2024 C X X 10,000,00060721866868/1/2023 8/1/2024 X 10,000 C X Y 7040323263 1/1/2024 8/1/2024 1,000,000 1,000,000 1,000,000 D E E Pollution Liability Installation/Builder Risk Equipment Floater G71798847004 6081395658 6081495565 8/1/2023 8/1/2023 8/1/2023 8/1/2024 8/1/2024 8/1/2024 Aggregate See attached Leased/Rented $1,000,000 $1,000,000 RE: 24-018 RFP (CSP) Carter Creek Force Main and Lift Station GENERAL LIABILITY Blanket Additional Insured for On Going Operations, Waiver of Subrogation, Primary Non-Contributory applies per form CNA74705XX 1-15; Blanket Additional Insured for Completed Operations per form CNA75079XX 10-16; 30 Day Notice of Cancellation, except 10 days for non payment of premium; All when required by written contract in accordance with policy terms and See Attached... City of College Station, its agents, officials, employees & volunteers P.O. Box 9960 College Station TX 77842 USA Page 271 of 309 ACORD 101 (2008/01) The ACORD name and logo are registered marks of ACORD © 2008 ACORD CORPORATION. All rights reserved. THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER:FORM TITLE: ADDITIONAL REMARKS ADDITIONAL REMARKS SCHEDULE Page of AGENCY CUSTOMER ID: LOC #: AGENCY CARRIER NAIC CODE POLICY NUMBER NAMED INSURED EFFECTIVE DATE: DUDLCON-02 1 1 ANCO Insurance Dudley Construction, LLC Attn: Mark Dudley 11370 State Hwy. 30 College Station TX 77845 25 CERTIFICATE OF LIABILITY INSURANCE provisions. GL Form CG0001. Policy includes Employee Theft $25,000 Each Occurrence. AUTOMOBILE LIABILITY Blanket Additional Insured, Waiver of Subrogation, Primary Non- Contributory apply per form CNA633599XX; 30 Day Notice of Cancellation, except 10 days for non payment of premium; All when required by written contract in accordance with policy terms and provisions. WORKERS COMPENSATION Waiver of Subrogation per policy form WC420304B. UMBRELLA/EXCESS LIABILIY Follow form policy in accordance with policy terms and as per policy provisions. BUILDERS RISK $30,000,000 Construction: Fire Resistive, Masonry NC Public Protection Class 1-7 $25,000,000 Metal NC; Public Protection Class: 1-7 $ 5,000,000 Construction: Jointed Masonry, Public Protection Class 1-7 $ 1,000,000 Construction: Frame, Public Protection Class 1-7 Named Storm Sub-Limit $15,000,000 with 2% Deductible FLOOD SUB-LIMIT Jobsite Limit up to $1,000,000 DEDUCTIBLES All other perils: $5,000 Named Storm Deductible: 2% completed value; minimum deductible $5,000 Wind or Hail Deductible: $5,000 Flood $25,000 INSTALLATION FLOATER $500,000 Limit $1,000 Deductible EQUIPMEMT FLOATER $1,000 Deductible Page 272 of 309 08/01/2023 CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement 1. ADDITIONAL INSUREDS a. WHO IS AN INSURED is amended to include as an Insured any person or organization described in paragraphs A. through H. below whom a Named Insured is required to add as an additional insured on this Coverage Part under a written contract or written agreement, provided such contract or agreement: (1) is currently in effect or becomes effective during the term of this Coverage Part; and (2) was executed prior to: (a) the bodily injury or property damage; or (b) the offense that caused the personal and advertising injury, for which such additional insured seeks coverage. b. However, subject always to the terms and conditions of this policy, including the limits of insurance, the Insurer will not provide such additional insured with: (1) a higher limit of insurance than required by such contract or agreement; or (2) coverage broader than required by such contract or agreement, and in no event broader than that described by the applicable paragraph A. through H. below. Any coverage granted by this endorsement shall apply only to the extent permissible by law. A. Controlling Interest Any person or organization with a controlling interest in a Named Insured, but only with respect to such person or organization's liability for bodily injury, property damage or personal and advertising injury arising out of: 1. such person or organization's financial control of a Named Insured; or 2. premises such person or organization owns, maintains or controls while a Named Insured leases or occupies such premises; provided that the coverage granted by this paragraph does not apply to structural alterations, new construction or demolition operations performed by, on behalf of, or for such additional insured. B. Co-owner of Insured Premises A co-owner of a premises co-owned by a Named Insured and covered under this insurance but only with respect to such co-owner's liability for bodily injury, property damage or personal and advertising injury as co-owner of such premises. C. Lessor of Equipment Any person or organization from whom a Named Insured leases equipment, but only with respect to liability for bodily injury, property damage or personal and advertising injury caused, in whole or in part, by the Named lnsured's maintenance, operation or use of such equipment, provided that the occurrence giving rise to such bodily injury, property damage or the offense giving rise to such personal and advertising injury takes place prior to the termination of such lease. D. Lessor of Land Any person or organization from whom a Named Insured leases land but only with respect to liability for bodily injury, property damage or personal and advertising injury arising out of the ownership, maintenance or use of such land, provided that the occurrence giving rise to such bodily injury, property damage or the offense giving rise to such personal and advertising injury takes place prior to the termination of such lease. The CNA74705XX (1-15) Page 2of17 VALLEY FORGE INSURANCE COMPANY Insured Name: DUDLEY CONSTRUCTION LLC Policy No: 6072186638 Endorsement No: 7 Effective Date: ... I -----. Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 274 of 309 08/01/2023 CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement a. the Named lnsured's acts or omissions; or b. the acts or omissions of those acting on the Named lnsured's behalf, in the performance of the Named lnsured's ongoing operations at the trade show event premises during the trade show event. 2. The coverage granted by this paragraph does not apply to bodily injury or property damage included within the products-completed operations hazard. 2. ADDITIONAL INSURED • PRIMARY AND NON-CONTRIBUTORY TO ADDITIONAL INSURED'S INSURANCE The Other Insurance Condition in the COMMERCIAL GENERAL LIABILITY CONDITIONS Section is amended to add the following paragraph: If the Named Insured has agreed in writing in a contract or agreement that this insurance is primary and non- contributory relative to an additional insured's own insurance, then this insurance is primary, and the Insurer will not seek contribution from that other insurance. For the purpose of this Provision 2., the additional insured's own insurance means insurance on which the additional insured is a named insured. Otherwise, and notwithstanding anything to the contrary elsewhere in this Condition, the insurance provided to such person or organization is excess of any other insurance available to such person or organization. 3. BODILY INJURY -EXPANDED DEFINITION Under DEFINITIONS, the definition of bodily injury is deleted and replaced by the following: Bodily injury means physical injury, sickness or disease sustained by a person, including death, humiliation, shock, mental anguish or mental injury sustained by that person at any time which results as a consequence of the physical injury, sickness or disease. 4. BROAD KNOWLEDGE OF OCCURRENCE/ NOTICE OF OCCURRENCE Under CONDITIONS, the condition entitled Duties in The Event of Occurrence, Offense, Claim or Suit is amended to add the following provisions: A. BROAD KNOWLEDGE OF OCCURRENCE The Named Insured must give the Insurer or the Insurer's authorized representative notice of an occurrence, offense or claim only when the occurrence, offense or claim is known to a natural person Named Insured, to a partner, executive officer, manager or member of a Named Insured, or an employee designated by any of the above to give such notice. B. NOTICE OF OCCURRENCE The Named lnsured's rights under this Coverage Part will not be prejudiced if the Named Insured fails to give the Insurer notice of an occurrence, offense or claim and that failure is solely due to the Named lnsured's reasonable belief that the bodily injury or property damage is not covered under this Coverage Part. However, the Named Insured shall give written notice of such occurrence, offense or claim to the Insurer as soon as the Named Insured is aware that this insurance may apply to such occurrence, offense or claim. 5. BROAD NAMED INSURED WHO IS AN INSURED is amended to delete its Paragraph 3. in its entirety and replace it with the following: 3. Pursuant to the limitations described in Paragraph 4. below, any organization in which a Named Insured has management control: a. on the effective date of this Coverage Part; or CNA74705XX (1-15) Page 4of17 VALLEY FORGE INSURANCE COMPANY Insured Name: DUDLEY CONSTRUCTION LLC Policy No: 6072186638 Endorsement No: 7 Effective Date: ....--------. Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 276 of 309 08/01/2023 CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement b. by reason of a Named Insured creating or acquiring the organization during the policy period, qualifies as a Named Insured, provided that there is no other similar liability insurance, whether primary, contributory, excess, contingent or otherwise, which provides coverage to such organization, or which would have provided coverage but for the exhaustion of its limit, and without regard to whether its coverage is broader or narrower than that provided by this insurance. But this BROAD NAMED INSURED provision does not apply to: (a) any partnership, limited liability company or joint venture; or (b) any organization for which coverage is excluded by another endorsement attached to this Coverage Part. For the purpose of this provision, management control means: A. owning interests representing more than 50% of the voting, appointment or designation power for the selection of a majority of the Board of Directors of a corporation; or B. having the right, pursuant to a written trust agreement, to protect, control the use of, encumber or transfer or sell property held by a trust. 4. With respect to organizations which qualify as Named Insureds by virtue of Paragraph 3. above, this insurance does not apply to: a. bodily injury or property damage that first occurred prior to the date of management control, or that first occurs after management control ceases; nor b. personal or advertising injury caused by an offense that first occurred prior to the date of management control or that first occurs after management control ceases. 5. The insurance provided by this Coverage Part applies to Named Insureds when trading under their own names or under such other trading names or doing-business-as names (dba) as any Named Insured should choose to employ. 6. BROADENED LIABILITY COVERAGE FOR DAMAGE TO YOUR PRODUCT AND YOUR WORK A. Under COVERAGES, Coverage A -Bodily Injury and Property Damage Liability, the paragraph entitled m Exclusions is amended to delete exclusions k. and I. and replace them with the following: 83 ~ This insurance does not apply to: ~ ~ k. Damage to Your Product a ~ Property damage to your product arising out of it, or any part of it except when caused by or resulting from: .... -== -- iiiiiiii iiiiiiii (1) fire; (2) smoke; (3) collapse; or (4) explosion. I. Damage to Your Work Property damage to your work arising out of it, or any part of it and included in the products-completed operations hazard. This exclusion does not apply: (1) If the damaged work, or the work out of which the damage arises, was performed on the Named lnsured's behalf by a subcontractor; or CNA74705XX (1-15) Page 5of17 VALLEY FORGE INSURANCE COMPANY Insured Name: DUDLEY CONSTRUCTION LLC Policy No: 6072186638 Endorsement No: 7 Effective Date: ....-------. Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 277 of 309 08/01/2023 CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement (2) If the cause of loss to the damaged work arises as a result of: (a) fire; (b) smoke; (c) collapse; or (d) explosion. B. The following paragraph is added to LIMITS OF INSURANCE: Subject to 5. above, $100,000 is the most the Insurer will pay under Coverage A for the sum of damages arising out of any one occurrence because of property damage to your product and your work that is caused by fire, smoke, collapse or explosion and is included within the product-completed operations hazard. This sublimit does not apply to property damage to your work if the damaged work, or the work out of which the damage arises, was performed on the Named lnsured's behalf by a subcontractor. C. This Broadened Liability Coverage For Damage To Your Product And Your Work Provision does not apply if an endorsement of the same name is attached to this policy. 7. CONTRACTUAL LIABILITY -RAILROADS With respect to operations performed within 50 feet of railroad property, the definition of insured contract is replaced by the following: Insured Contract means: a. A contract for a lease of premises. However, that portion of the contract for a lease of premises that indemnifies any person or organization for damage by fire to premises while rented to a Named Insured or temporarily occupied by a Named Insured with permission of the owner is not an insured contract; b. A sidetrack agreement; c. Any easement or license agreement; d. An obligation, as required by ordinance, to indemnify a municipality, except in connection with work for a municipality; e. An elevator maintenance agreement; f. That part of any other contract or agreement pertaining to the Named lnsured's business (including an indemnification of a municipality in connection with work performed for a municipality) under which the Named Insured assumes the tort liability of another party to pay for bodily injury or property damage to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. Paragraph f. does not include that part of any contract or agreement: (1) That indemnifies an architect, engineer or surveyor for injury or damage arising out of: (a) Preparing, approving or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; or (b) Giving directions or instructions, or failing to give them, if that is the primary cause of the injury or damage; (2) Under which the Insured, if an architect, engineer or surveyor, assumes liability for an injury or damage arising out of the insured's rendering or failure to render professional services, including those listed in (1) above and supervisory, inspection, architectural or engineering activities. 8. ELECTRONIC DATA LIABILITY CNA74705XX (1-15) Page 6of17 VALLEY FORGE INSURANCE COMPANY Insured Name: DUDLEY CONSTRUCTION LLC Policy No: 6072186638 Endorsement No: 7 Effective Date: -----..... Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 278 of 309 08/01/2023 CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement claims arising solely out of their capacity or status as such and, in the case of a spouse, where such claim seeks damages from marital community property, jointly held property or property transferred from such natural person Insured to such spouse. No coverage is provided for any act, error or omission of an estate, heir, legal representative, or spouse outside the scope of such person's capacity or status as such, provided however that the spouse of a natural person Named Insured and the spouses of members or partners of joint venture or partnership Named Insureds are Insureds with respect to such spouses' acts, errors or omissions in the conduct of the Named lnsured's business. 10. EXPECTED OR INTENDED INJURY -EXCEPTION FOR REASONABLE FORCE Under COVERAGES, Coverage A -Bodily Injury and Property Damage Liability, the paragraph entitled Exclusions is amended to delete the exclusion entitled Expected or Intended Injury and replace it with the following: This insurance does not apply to: Expected or Intended Injury Bodily injury or property damage expected or intended from the standpoint of the Insured. This exclusion does not apply to bodily injury or property damage resulting from the use of reasonable force to protect persons or property. 11. GENERAL AGGREGATE LIMITS OF INSURANCE • PER PROJECT A. For each construction project away from premises the Named Insured owns or rents, a separate Construction Project General Aggregate Limit, equal to the amount of the General Aggregate Limit shown in the Declarations, is the most the Insurer will pay for the sum of: 1. All damages under Coverage A, except damages because of bodily injury or property damage included in the products-completed operations hazard; and 2. All medical expenses under Coverage C, that arise from occurrences or accidents which can be attributed solely to ongoing operations at that construction project. Such payments shall not reduce the General Aggregate Limit shown in the Declarations, nor the Construction Project General Aggregate Limit of any other construction project. B. All: 1. Damages under Coverage B, regardless of the number of locations or construction projects involved; 2. Damages under Coverage A, caused by occurrences which cannot be attributed solely to ongoing operations at a single construction project, except damages because of bodily injury or property damage included in the products-completed operations hazard; and 3. Medical expenses under Coverage C caused by accidents which cannot be attributed solely to ongoing operations at a single construction project, will reduce the General Aggregate Limit shown in the Declarations. C. The limits shown in the Declarations for Each Occurrence, for Damage To Premises Rented To You and for Medical Expense continue to apply, but will be subject to either the Construction Project General Aggregate Limit or the General Aggregate Limit shown in the Declarations, depending on whether the occurrence can be attributed solely to ongoing operations at a particular construction project. D. When coverage for liability arising out of the products-completed operations hazard is provided, any payments for damages because of bodily injury or property damage included in the products-completed operations hazard will reduce the Products-Completed Operations Aggregate Limit shown in the Declarations, regardless of the number of projects involved. CNA74705XX (1-15) Page 8of17 VALLEY FORGE INSURANCE COMPANY Insured Name: DUDLEY CONSTRUCTION LLC Policy No: 6072186638 Endorsement No: .----"7 __ ____, Effective Date: Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 280 of 309 08/01/2023 CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement any actual or alleged violation of law with respect to Medicare, Medicaid, Tricare or any similar federal, state or local governmental program. Services Excluded by Endorsement Any health care incident for which coverage is excluded by endorsement. C. DEFINITIONS is amended to: i. add the following definitions: Health care incident means an act, error or omission by the Named lnsured's employees or volunteer workers in the rendering of: a. professional health care services on behalf of the Named Insured or b. Good Samaritan services rendered in an emergency and for which no payment is demanded or received. Professional health care services means any health care services or the related furnishing of food, beverages, medical supplies or appliances by the following providers in their capacity as such but solely to the extent they are duly licensed as required: a. Physician; b. Nurse; c. Nurse practitioner; d. Emergency medical technician; e. Paramedic; f. Dentist; g. Physical therapist; h. Psychologist; i. Speech therapist; j. Other allied health professional; or Professional health care services does not include any services rendered in connection with human clinical trials or product testing. ii. delete the definition of occurrence and replace it with the following: Occurrence means a health care incident. All acts, errors or omissions that are logically connected by any common fact, circumstance, situation, transaction, event, advice or decision will be considered to constitute a single occurrence; iii. amend the definition of Insured to: a. add the following: the Named lnsured's employees are Insureds with respect to: (1) bodily injury to a co-employee while in the course of the co-employee's employment by the Named Insured or while performing duties related to the conduct of the Named lnsured's business; and CNA74705XX (1-15) Page 10of17 VALLEY FORGE INSURANCE COMPANY Insured Name: DUDLEY CONSTRUCTION LLC Policy No: 6072186638 Endorsement No: 7 Effective Date: ....--------. Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 282 of 309 08/01/2023 gi "' 83 '"' ., ., co ~ C> l8 '"' C> C> C> .... 8 .... iiiiiiii iiiiiiiiii --== -- iiiiiiii iiiiiiii CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement (2) bodily injury to a volunteer worker while performing duties related to the conduct of the Named lnsured's business; when such bodily injury arises out of a health care incident. the Named lnsured's volunteer workers are Insureds with respect to: (1) bodily injury to a co-volunteer worker while performing duties related to the conduct of the Named lnsured's business; and (2) bodily injury to an employee while in the course of the employee's employment by the Named Insured or while performing duties related to the conduct of the Named lnsured's business; when such bodily injury arises out of a health care incident. b. delete Subparagraphs (a), (b), (c) and (d) of Paragraph 2.a.(1) of WHO IS AN INSURED. D. The Other Insurance condition is amended to delete Paragraph b.(1) in its entirety and replace it with the following: Other Insurance b. Excess Insurance (1) To the extent this insurance applies, it is excess over any other insurance, self insurance or risk transfer instrument, whether primary, excess, contingent or on any other basis, except for insurance purchased specifically by the Named Insured to be excess of this coverage. 14. JOINT VENTURES I PARTNERSHIP I LIMITED LIABILITY COMPANIES WHO IS AN INSURED is amended to delete its last paragraph and replace it with the following: No person or organization is an Insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations, except that if the Named Insured was a joint venturer, partner, or member of a limited liability company and such joint venture, partnership or limited liability company terminated prior to or during the policy period, such Named Insured is an Insured with respect to its interest in such joint venture, partnership or limited liability company but only to the extent that: a. b. c. any offense giving rise to personal and advertising injury occurred prior to such termination date, and the personal and advertising injury arising out of such offense first occurred after such termination date; the bodily injury or property damage first occurred after such termination date; and there is no other valid and collectible insurance purchased specifically to insure the partnership, joint venture or limited liability company; and If the joint venture, partnership or limited liability company is or was insured under a consolidated (wrap-up) insurance program, then such insurance will always be considered valid and collectible for the purpose of paragraph c. above. But this provision will not serve to exclude bodily injury, property damage or personal and advertising injury that would otherwise be covered under the Contractors General Liability Extension Endorsement provision entitled WRAP-UP EXTENSION: OCIP, CCIP, OR CONSOLIDATED (WRAP-UP) INSURANCE PROGRAMS. Please see that provision for the definition of consolidated (wrap-up) insurance program. 15. LEGAL LIABILITY -DAMAGE TO PREMISES I ALIENATED PREMISES I PROPERTY IN THE NAMED INSURED'S CARE, CUSTODY OR CONTROL A. Under COVERAGES, Coverage A -Bodily Injury and Property Damage Liability, the paragraph entitled Exclusions is amended to delete exclusion j. Damage to Property in its entirety and replace it with the following: This insurance does not apply to: CNA74705XX (1-15) Page 11 of 17 VALLEY FORGE INSURANCE COMPANY Insured Name: DUDLEY CONSTRUCTION LLC Policy No: 6072186638 Endorsement No: ..---..._7 __ ...., Effective Date: Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 283 of 309 08/01/2023 CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement j. Damage to Property Property damage to: (1) Property the Named Insured owns, rents, or occupies, including any costs or expenses incurred by you, or any other person, organization or entity, for repair, replacement, enhancement, restoration or maintenance of such property for any reason, including prevention of injury to a person or damage to another's property; (2) Premises the Named Insured sells, gives away or abandons, if the property damage arises out of any part of those premises; (3) Property loaned to the Named Insured; (4) Personal property in the care, custody or control of the Insured; (5) That particular part of real property on which the Named Insured or any contractors or subcontractors working directly or indirectly on the Named lnsured's behalf are performing operations, if the property damage arises out of those operations; or (6) That particular part of any property that must be restored, repaired or replaced because your work was incorrectly performed on it. Paragraphs (1), (3) and (4) of this exclusion do not apply to property damage (other than damage by fire) to premises rented to the Named Insured or temporarily occupied by the Named Insured with the permission of the owner, nor to the contents of premises rented to the Named Insured for a period of 7 or fewer consecutive days. A separate limit of insurance applies to Damage To Premises Rented To You as described in LIMITS OF INSURANCE. Paragraph (2) of this exclusion does not apply if the premises are your work. Paragraphs (3), (4), (5) and (6) of this exclusion do not apply to liability assumed under a sidetrack agreement. Paragraph (6) of this exclusion does not apply to property damage included in the products-completed operations hazard. Paragraphs (3) and (4) of this exclusion do not apply to property damage to: i. tools, or equipment the Named Insured borrows from others, nor ii. other personal property of others in the Named lnsured's care, custody or control while being used in the Named lnsured's operations away from any Named lnsured's premises. However, the coverage granted by this exception to Paragraphs (3) and (4) does not apply to: a. property at a job site awaiting or during such property's installation, fabrication, or erection; b. property that is mobile equipment leased by an Insured; c. property that is an auto, aircraft or watercraft; d. property in transit; or e. any portion of property damage for which the Insured has available other valid and collectible insurance, or would have such insurance but for exhaustion of its limits, or but for application of one of its exclusions. A separate limit of insurance and deductible apply to such property of others. See LIMITS OF INSURANCE as amended below. CNA74705XX (1-15) Page 12of17 VALLEY FORGE INSURANCE COMPANY Insured Name: DUDLEY CONSTRUCTION LLC Policy No: 6072186638 Endorsement No: 7 Effective Date: ------. Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 284 of 309 08/01/2023 CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement B. Under COVERAGES, the Insuring Agreement of Coverage C -Medical Payments is amended to replace Paragraph 1.a.(3)(b) with the following: (b) The expenses are incurred and reported to the Insurer within three years of the date of the accident; and 18. NON-OWNED AIRCRAFT Under COVERAGES, Coverage A -Bodily Injury and Property Damage Liability, the paragraph entitled Exclusions is amended as follows: The exclusion entitled Aircraft, Auto or Watercraft is amended to add the following: This exclusion does not apply to an aircraft not owned by any Named Insured, provided that: 1. the pilot in command holds a currently effective certificate issued by the duly constituted authority of the United States of America or Canada, designating that person as a commercial or airline transport pilot; 2. the aircraft is rented with a trained, paid crew to the Named Insured; and 3. the aircraft is not being used to carry persons or property for a charge. 19. NON-OWNED WATERCRAFT Under COVERAGES, Coverage A -Bodily Injury and Property Damage Liability, the paragraph entitled Exclusions is amended to delete subparagraph (2) of the exclusion entitled Aircraft, Auto or Watercraft, and replace it with the following. This exclusion does not apply to: (2) a watercraft that is not owned by any Named Insured, provided the watercraft is: (a) less than 75 feet long; and (b) not being used to carry persons or property for a charge. 20. PERSONAL AND ADVERTISING INJURY -DISCRIMINATION OR HUMILIATION A. Under DEFINITIONS, the definition of personal and advertising injury is amended to add the following tort: Discrimination or humiliation that results in injury to the feelings or reputation of a natural person. B. Under COVERAGES, Coverage B -Personal and Advertising Injury Liability, the paragraph entitled Exclusions is amended to: 1. delete the Exclusion entitled Knowing Violation Of Rights Of Another and replace it with the following: This insurance does not apply to: Knowing Violation of Rights of Another Personal and advertising injury caused by or at the direction of the Insured with the knowledge that the act would violate the rights of another and would inflict personal and advertising injury. This exclusion shall not apply to discrimination or humiliation that results in injury to the feelings or reputation of a natural person, but only if such discrimination or humiliation is not done intentionally by or at the direction of: (a) the Named Insured; or (b) any executive officer, director, stockholder, partner, member or manager (if the Named Insured is a limited liability company) of the Named Insured. 2. add the following exclusions: CNA74705XX (1-15) Page 14of17 VALLEY FORGE INSURANCE COMPANY Insured Name: DUDLEY CONSTRUCTION LLC Policy No: 6072186638 Endorsement No: 7 Effective Date: I.-------. Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 286 of 309 08/01/2023 CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement B. Solely for the purpose of the coverage provided by this PROPERTY DAMAGE -ELEVATORS Provision, the Other Insurance conditions is amended to add the following paragraph: This insurance is excess over any of the other insurance, whether primary, excess, contingent or on any other basis that is Property insurance covering property of others damaged from the use of elevators. 23. SUPPLEMENTARY PAYMENTS The section entitled SUPPLEMENTARY PAYMENTS -COVERAGES A AND Bis amended as follows: A. Paragraph 1.b. is amended to delete the $250 limit shown for the cost of bail bonds and replace it with a $5,000. limit; and B. Paragraph 1.d. is amended to delete the limit of $250 shown for daily loss of earnings and replace it with a $1,000. limit. 24. UNINTENTIONAL FAILURE TO DISCLOSE HAZARDS If the Named Insured unintentionally fails to disclose all existing hazards at the inception date of the Named lnsured's Coverage Part, the Insurer will not deny coverage under this Coverage Part because of such failure. 25. WAIVER OF SUBROGATION ·BLANKET Under CONDITIONS, the condition entitled Transfer Of Rights Of Recovery Against Others To Us is amended to add the following: The Insurer waives any right of recovery the Insurer may have against any person or organization because of payments the Insurer makes for injury or damage arising out of: 1. the Named lnsured's ongoing operations; or 2. your work included in the products-completed operations hazard. However, this waiver applies only when the Named Insured has agreed in writing to waive such rights of recovery in a written contract or written agreement, and only if such contract or agreement: 1. is in effect or becomes effective during the term of this Coverage Part; and 2. was executed prior to the bodily injury, property damage or personal and advertising injury giving rise to the claim. 26. WRAP-UP EXTENSION: OCIP, CCIP, OR CONSOLIDATED (WRAP-UP) INSURANCE PROGRAMS Note: The following provision does not apply to any public construction project in the state of Oklahoma, nor to any construction project in the state of Alaska, that is not permitted to be insured under a consolidated (wrap-up) insurance program by applicable state statute or regulation. If the endorsement EXCLUSION -CONSTRUCTION WRAP-UP is attached to this policy, or another exclusionary endorsement pertaining to Owner Controlled Insurance Programs (O.C.l.P.) or Contractor Controlled Insurance Programs (C.C.l.P.) is attached, then the following changes apply: A. The following wording is added to the above-referenced endorsement: With respect to a consolidated (wrap-up) insurance program project in which the Named Insured is or was involved, this exclusion does not apply to those sums the Named Insured become legally obligated to pay as damages because of: 1. Bodily injury, property damage, or personal or advertising injury that occurs during the Named lnsured's ongoing operations at the project, or during such operations of anyone acting on the Named lnsured's behalf; nor CNA74705XX (1-15) Page 16of17 VALLEY FORGE INSURANCE COMPANY Insured Name: DUDLEY CONSTRUCTION LLC Policy No: 6072186638 Endorsement No: ..---7...__ _ ____, Effective Date: Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 288 of 309 08/01/2023 CNA CNA PARAMOUNT Contractors' General Liability Extension Endorsement 2. Bodily injury or property damage included within the products-completed operations hazard that arises out of those portions of the project that are not residential structures. B. Condition 4. Other Insurance is amended to add the following subparagraph 4.b.(1)(c): This insurance is excess over: (c) Any of the other insurance whether primary, excess, contingent or any other basis that is insurance available to the Named Insured as a result of the Named Insured being a participant in a consolidated (wrap-up) insurance program, but only as respects the Named lnsured's involvement in that consolidated (wrap-up) insurance program. C. DEFINITIONS is amended to add the following definitions: Consolidated (wrap-up) insurance program means a construction, erection or demolition project for which the prime contractor/project manager or owner of the construction project has secured general liability insurance covering some or all of the contractors or subcontractors involved in the project, such as an Owner Controlled Insurance Program (O.C.l.P.) or Contractor Controlled Insurance Program (C.C.l.P.). Residential structure means any structure where 30% or more of the square foot area is used or is intended to be used for human residency, including but not limited to: 1. single or multifamily housing, apartments, condominiums, townhouses, co-operatives or planned unit developments; and 2. the common areas and structures appurtenant to the structures in paragraph 1. (including pools, hot tubs, detached garages, guest houses or any similar structures). However, when there is no individual ownership of units, residential structure does not include military housing, college/university housing or dormitories, long term care facilities, hotels or motels. Residential structure also does not include hospitals or prisons. This WRAP-UP EXTENSION: OCIP, CCIP, OR CONSOLIDATED (WRAP-UP) INSURANCE PROGRAMS Provision does not apply to any person or organization who otherwise qualifies as an additional insured on this Coverage Part. m All other terms and conditions of the Policy remain unchanged. 83 12 :g ~ This endorsement, which forms a part of and is for attachment to the Policy issued by the designated Insurers, takes effect ~ on the effective date of said Policy at the hour stated in said Policy, unless another effective date is shown below, and a 0 expires concurrently with said Policy. § .... - iiiiiiii iiiiiiii CNA74705XX (1-15) Page 17of17 VALLEY FORGE INSURANCE COMPANY Insured Name: DUDLEY CONSTRUCTION LLC Policy No: 6072186638 Endorsement No: ___ 7 __ ~ Effective Date: Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 289 of 309 08/01/2023 CNA CNA PARAMOUNT Blanket Additional Insured -Owners, Lessees or Contractors -with Products-Completed Operations Coverage Endorsement This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART It is understood and agreed as follows: I. WHO IS AN INSURED is amended to include as an Insured any person or organization whom you are required by written contract to add as an additional insured on this coverage part, but only with respect to liability for bodily injury, property damage or personal and advertising injury caused in whole or in part by your acts or omissions, or the acts or omissions of those acting on your behalf: A. in the performance of your ongoing operations subject to such written contract; or B. in the performance of your work subject to such written contract, but only with respect to bodily injury or property damage included in the products-completed operations hazard, and only if: 1. the written contract requires you to provide the additional insured such coverage; and 2. this coverage part provides such coverage. II. But if the written contract requires: A. additional insured coverage under the 11-85 edition, 10-93 edition, or 10-01 edition of CG2010, or under the 10- 01 edition of CG2037; or B. additional insured coverage with "arising out of' language; or C. additional insured coverage to the greatest extent permissible by law; then paragraph I. above is deleted in its entirety and replaced by the following: WHO IS AN INSURED is amended to include as an Insured any person or organization whom you are required by written contract to add as an additional insured on this coverage part, but only with respect to liability for bodily injury, property damage or personal and advertising injury arising out of your work that is subject to such written contract. i:i Ill. Subject always to the terms and conditions of this policy, including the limits of insurance, the Insurer will not provide ~ such additional insured with: 12 :g ~ A. coverage broader than required by the written contract; or 18 g B. a higher limit of insurance than required by the written contract. § .... IV. The insurance granted by this endorsement to the additional insured does not apply to bodily injury, property -!!!!!!!! - iiiiiiii iiiiiiii damage, or personal and advertising injury arising out of: A. the rendering of, or the failure to render, any professional architectural, engineering, or surveying services, including: 1. the preparing, approving, or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; and 2. supervisory, inspection, architectural or engineering activities; or B. any premises or work for which the additional insured is specifically listed as an additional insured on another endorsement attached to this coverage part. V. Under COMMERCIAL GENERAL LIABILITY CONDITIONS, the Condition entitled Other Insurance is amended to add the following, which supersedes any provision to the contrary in this Condition or elsewhere in this coverage part: CNA75079XX (10-16) Page 1 of2 VALLEY FORGE INSURANCE COMPANY Insured Name: DUDLEY CONSTRUCTION LLC Policy No: 6072186638 Endorsement No: ___ 9 __ _ Effective Date: Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 290 of 309 08/01/2023 CNA CNA PARAMOUNT Blanket Additional Insured -Owners, Lessees or Contractors -with Products-Completed Operations Coverage Endorsement Primary and Noncontributory Insurance With respect to other insurance available to the additional insured under which the additional insured is a named insured, this insurance is primary to and will not seek contribution from such other insurance, provided that a written contract requires the insurance provided by this policy to be: 1. primary and non-contributing with other insurance available to the additional insured; or 2. primary and to not seek contribution from any other insurance available to the additional insured. But except as specified above, this insurance will be excess of all other insurance available to the additional insured. VI. Solely with respect to the insurance granted by this endorsement, the section entitled COMMERCIAL GENERAL LIABILITY CONDITIONS is amended as follows: The Condition entitled Duties In The Event of Occurrence, Offense, Claim or Suit is amended with the addition of the following: Any additional insured pursuant to this endorsement will as soon as practicable: 1. give the Insurer written notice of any claim, or any occurrence or offense which may result in a claim; 2. send the Insurer copies of all legal papers received, and otherwise cooperate with the Insurer in the investigation, defense, or settlement of the claim; and 3. make available any other insurance, and tender the defense and indemnity of any claim to any other insurer or self-insurer, whose policy or program applies to a loss that the Insurer covers under this coverage part. However, if the written contract requires this insurance to be primary and non-contributory, this paragraph 3. does not apply to insurance on which the additional insured is a named insured. The Insurer has no duty to defend or indemnify an additional insured under this endorsement until the Insurer receives written notice of a claim from the additional insured. VII. Solely with respect to the insurance granted by this endorsement, the section entitled DEFINITIONS is amended to add the following definition: Written contract means a written contract or written agreement that requires you to make a person or organization an additional insured on this coverage part, provided the contract or agreement: A. is currently in effect or becomes effective during the term of this policy; and B. was executed prior to: 1. the bodily injury or property damage; or 2. the offense that caused the personal and advertising injury; for which the additional insured seeks coverage. Any coverage granted by this endorsement shall apply solely to the extent permissible by law. All other terms and conditions of the Policy remain unchanged. This endorsement, which forms a part of and is for attachment to the Policy issued by the designated Insurers, takes effect on the effective date of said Policy at the hour stated in said Policy, unless another effective date is shown below, and expires concurrently with said Policy. CNA75079XX (10-16) Page 2 of2 VALLEY FORGE INSURANCE COMPANY Insured Name: DUDLEY CONSTRUCTION LLC Policy No: 6072186638 Endorsement No: 9 Effective Date: ....-------. Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 291 of 309 08/01/2023 CNA Business Auto Policy Policy Endorsement II CONTRACTORS EXTENDED COVERAGE ENDORSEMENT -BUSINESS AUTO PLUS THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM I. LIABILITY COVERAGE A. Who Is An Insured The following is added to Section II, Paragraph A.1., Who Is An Insured: 1. a. Any incorporated entity of which the Named Insured owns a majority of the voting stock on the date of inception of this Coverage Form; provided that, b. The insurance afforded by this provision A. 1 . does not apply to any such entity that is an insured under any other liability "policy" providing auto coverage. 2. Any organization you newly acquire or form, other than a limited liability company, partnership or joint venture, and over which you maintain majority ownership interest. The insurance afforded by this provision A.2.: a. Is effective on the acquisition or formation date, and is afforded only until the end of the policy period of this Coverage Form, or the next anniversary of its inception date, whichever is earlier. b. Does not apply to: ( 1) Bodily injury or property damage caused by an accident that occurred before you acquired or formed the organization; or (2) Any such organization that is an insured under any other liability "policy" providing auto coverage. 3. Any person or organization that you are required by a written contract to name as an additional insured is an insured but only with respect to their legal liability for acts or omissions of a person, who qualifies as an insured under SECTION II -WHO IS AN INSURED and for whom Liability Coverage is afforded under this policy. If required by written contract, this insurance will be primary and non-contributory to insurance on which the additional insured is a Named Insured. 4. An employee of yours is an insured while operating an auto hired or rented under a contract or agreement in that employee's name, with your permission, while performing duties related to the conduct of your business. "Policy", as used in this provision A. Who Is An Insured, includes those policies that were in force on the inception date of this Coverage Form but: 1. Which are no longer in force; or 2. Whose limits have been exhausted. B. Bail Bonds and Loss of Earnings Section II, Paragraphs A.2. (2) and A.2. (4) are revised as follows: 1. In a.(2), the limit for the cost of bail bonds is changed from $2,000 to $5,000; and 2. In a.(4), the limit for the loss of earnings is changed from $250 to $500 a day. Form No: CNA63359XX (04-2012) Endorsement Effective Date: Endorsement No: 9; Page: 1 of 4 Endorsement Expiration Date: Underwriting Company: The Continental Insurance Company, 151 N Franklin St, Chicago, IL 60606 ©Copyright CNA All Rights Reserved. Includes copyrighted material of the Insurance Services Office, Inc., used with its permission. Policy No: BUA 6072186655 Policy Effective Date: I Policy Page: 57 of 19-;j----'I Page 293 of 309 08/01/2023 CNA C. Fellow Employee Section II, Paragraph B.5 does not apply. Business Auto Policy Policy Endorsement Such coverage as is afforded by this provision C. is excess over any other collectible insurance. II. PHYSICAL DAMAGE COVERAGE A. Glass Breakage -Hitting A Bird Or Animal -Falling Objects Or Missiles The following is added to Section Ill, Paragraph A.3.: With respect to any covered auto, any deductible shown in the Declarations will not apply to glass breakage if such glass is repaired, in a manner acceptable to us, rather than replaced. B. Transportation Expenses Section Ill, Paragraph A.4.a. is revised, with respect to transportation expense incurred by you, to provide: a. $60 per day, in lieu of $20; subject to b. $1,800 maximum, in lieu of $600. C. Loss of Use Expenses Section Ill, Paragraph A.4.b. is revised, with respect to loss of use expenses incurred by you, to provide: a. $1,000 maximum, in lieu of $600. D. Hired "Autos" The following is added to Section Ill. Paragraph A.: 5. Hired "Autos" If Physical Damage coverage is provided under this policy, and such coverage does not extend to Hired Autos, then Physical Damage coverage is extended to: a. Any covered auto you lease, hire, rent or borrow without a driver; and b. Any covered auto hired or rented by your employee without a driver, under a contract in that individual employee's name, with your permission, while performing duties related to the conduct of your business. c. The most we will pay for any one accident or loss is the actual cash value, cost of repair, cost of replacement or $75,000, whichever is less, minus a $500 deductible for each covered auto. No deductible applies to loss caused by fire or lightning. d. The physical damage coverage as is provided by this provision is equal to the physical damage coverage(s) provided on your owned autos. e. Such physical damage coverage for hired autos will: (1) Include loss of use, provided it is the consequence of an accident for which the Named Insured is legally liable, and as a result of which a monetary loss is sustained by the leasing or rental concern. (2) Such coverage as is provided by this provision will be subject to a limit of $750 per accident. E. Airbag Coverage The following is added to Section Ill, Paragraph B.3.: The accidental discharge of an airbag shall not be considered mechanical breakdown. Form No: CNA63359XX (04-2012) Endorsement Effective Date: Endorsement No: 9; Page: 2 of 4 Endorsement Expiration Date: Underwriting Company: The Continental Insurance Company, 151 N Franklin St, Chicago, IL 60606 ©Copyright CNA All Rights Reserved. Includes copyrighted material of the Insurance Services Office, Inc., used with its permission. Policy No: BUA 6072186655 Policy Effective Date: I Policy Page: 58 of 1 9""3 ___ __, 1 Page 294 of 309 08/01/2023 CNA F. Electronic Equipment Business Auto Policy Policy Endorsement Section Ill, Paragraphs B.4.c and B.4.d. are deleted and replaced by the following: c. Physical Damage Coverage on a covered auto also applies to loss to any permanently installed electronic equipment including its antennas and other accessories d. A $100 per occurrence deductible applies to the coverage provided by this provision. G. Diminution In Value The following is added to Section Ill, Paragraph B.6.: Subject to the following, the diminution in value exclusion does not apply to: a. Any covered auto of the private passenger type you lease, hire, rent or borrow, without a driver for a period of 30 days or less, while performing duties related to the conduct of your business; and b. Any covered auto of the private passenger type hired or rented by your employee without a driver for a period of 30 days or less, under a contract in that individual employee's name, with your permission, while performing duties related to the conduct of your business. c. Such coverage as is provided by this provision is limited to a diminution in value loss arising directly out of accidental damage and not as a result of the failure to make repairs; faulty or incomplete maintenance or repairs; or the installation of substandard parts. d. The most we will pay for loss to a covered auto in any one accident is the lesser of: (1) $5,000; or (2) 20% of the auto's actual cash value (ACV). Ill. Drive Other Car Coverage -Executive Officers The following is added to Sections II and Ill: 1. Any auto you don't own, hire or borrow is a covered auto for Liability Coverage while being used by, and for Physical Damage Coverage while in the care, custody or control of, any of your "executive officers", except: a. An auto owned by that "executive officer" or a member of that person's household; or b. An auto used by that "executive officer" while working in a business of selling, servicing, repairing or parking autos. Such Liability and/or Physical Damage Coverage as is afforded by this provision. ( 1) Equal to the greatest of those coverages afforded any covered auto; and (2) Excess over any other collectible insurance. 2. For purposes of this provision, "executive officer" means a person holding any of the officer positions created by your charter, constitution, by-laws or any other similar governing document, and, while a resident of the same household, includes that person's spouse. Such "executive officers" are insureds while using a covered auto described in this provision. IV. BUSINESS AUTO CONDITIONS A. Duties In The Event Of Accident, Claim, Suit Or Loss The following is added to Section IV, Paragraph A.2.a.: Form No: CNA63359XX (04-2012) Endorsement Effective Date: Endorsement No: 9; Page: 3 of 4 Endorsement Expiration Date: Underwriting Company: The Continental Insurance Company, 151 N Franklin St, Chicago, IL 60606 ©Copyright CNA All Rights Reserved. Includes copyrighted material of the Insurance Services Office, Inc., used with its permission. Policy No: BUA 6072186655 Policy Effective Date: I Policy Page: 59 of 1 9'=3----i Page 295 of 309 08/01/2023 CNA Business Auto Policy Policy Endorsement (4) Your employees may know of an accident or loss. This will not mean that you have such knowledge, unless such accident or loss is known to you or if you are not an individual, to any of your executive officers or partners or your insurance manager. The following is added to Section IV, Paragraph A.2.b.: (6) Your employees may know of documents received concerning a claim or suit. This will not mean that you have such knowledge, unless receipt of such documents is known to you or if you are not an individual, to any of your executive officers or partners or your insurance manager. B. Transfer Of Rights Of Recovery Against Others To Us The following is added to Section IV, Paragraph A.5. Transfer Of Rights Of Recovery Against Others To Us: We waive any right of recovery we may have, because of payments we make for injury or damage, against any person or organization for whom or which you are required by written contract or agreement to obtain this waiver from us. This injury or damage must arise out of your activities under a contract with that person or organization. You must agree to that requirement prior to an accident or loss. C. Concealment, Misrepresentation or Fraud The following is added to Section IV, Paragraph B.2.: Your failure to disclose all hazards existing on the date of inception of this Coverage Form shall not prejudice you with respect to the coverage afforded provided such failure or omission is not intentional. D. Other Insurance The following is added to Section IV, Paragraph B.5.: Regardless of the provisions of Paragraphs 5.a. and 5.d. above, the coverage provided by this policy shall be on a primary non-contributory basis. This provision is applicable only when required by a written contract. That written contract must have been entered into prior to Accident or Loss. E. Policy Period, Coverage Territory Section IV, Paragraph B. 7.(5).(a). is revised to provide: a. 45 days of coverage in lieu of 30 days. V. DEFINITIONS Section V. paragraph C. is deleted and replaced by the following: Bodily injury means bodily injury, sickness or disease sustained by a person, including mental anguish, mental injury or death resulting from any of these. Form No: CNA63359XX (04-2012) Endorsement Effective Date: Endorsement No: 9; Page: 4 of 4 Endorsement Expiration Date: Underwriting Company: The Continental Insurance Company, 151 N Franklin St, Chicago, IL 60606 ©Copyright CNA All Rights Reserved. Includes copyrighted material of the Insurance Services Office, Inc., used with its permission. Policy No: BUA 6072186655 Policy Effective Date) Policy Page: 60 of 1 rt-~3..-----~1 Page 296 of 309 08/01/2023 CNA II NOTICE OF CANCELLATION TO CERTIFICATEHOLDERS It is understood and agreed that: Business Auto Policy Policy Endorsement If you have agreed under written contract to provide notice of cancellation to a party to whom the Agent of Record has issued a Certificate of Insurance, and if we cancel a policy term described on that Certificate of Insurance for any reason other than nonpayment of premium, then notice of cancellation will be provided to such Certificateholders at least 30 days in advance of the date cancellation is effective. If notice is mailed, then proof of mailing to the last known mailing address of the Certificateholder on file with the Agent of Record will be sufficient to prove notice. Any failure by us to notify such persons or organizations will not extend or invalidate such cancellation, or impose any liability or obligation upon us or the Agent of Record. All other terms and conditions of the policy remain unchanged This endorsement, which forms a part of and is for attachment to the policy issued by the designated Insurers, takes effect on the Policy Effective date of said policy at the hour stated in said policy, unless another effective date (the Endorsement Effective Date) is shown below, and expires concurrently with said policy. Form No: CNA68021 XX (02-2013) Endorsement Effective Date: Endorsement No: 10; Page: 1 of 1 Endorsement Expiration Date: Underwriting Company: The Continental Insurance Company, 151 N Franklin St, Chicago, IL 60606 ©Copyright CNA All Rights Reserved. Policy No: BUA 6072186655 Policy Effective Date~ Policy Page: 61 of 19J...3,....------'I Page 297 of 309 Named Insured Endorsement Number Dudley Construction, Ltd. Policy Symbol I Policy Number I Policy Period Effective Date of Endorsement CPW G71798847 003 08/01/2022 to 08/01/2023 08/01/2022 Issued By (Name of Insurance Company) Westchester Surplus Lines Insurance Company Insert the policy number. The remainder of the information is to be completed only when this endorsement is issued subsequent to the preparation of the policy. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART CONTRACTORS POLLUTION LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization: As required by written contract, prior to a loss to which this insurance applies. (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) The TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US Condition is amended by the addition of the following: We waive any right of recovery we may have against the person or organization shown in the Schedule above because of payments we make for injury or damage arising out of your ongoing operations or your work done under a contract with that person or organization and included in the products-completed operations hazard. This waiver applies only to the person or organization shown in the Schedule above. All other terms and conditions remain the same. ENV-3143 (03-05) Includes copyrighted material of Insurance Services Office, Inc. with its permission Page 1of1 Page 298 of 309 Westchester A Chubb Company ADDITIONAL INSURED ENDORSEMENT -ONGOING WORK OR OPERATIONS Named Insured Endorsement Number Dudley Construction, Ltd. Policy Symbol I Policy Number I Policy Period Effective Date of Endorsement CPW G71798847 003 08/01/2022 to 08/01/2023 08/01/2022 Issued By (Name of Insurance Company) Westchester Surplus Lines Insurance Company Insert the policy number. The remainder of the information is to be completed only when this endorsement is issued subsequent to the preparation of the policy. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. THIS ENDORSEMENT MODIFIES INSURANCE PROVIDED UNDER THE FOLLOWING: CONTRACTORS POLLUTION LIABILITY COVERAGE PART SCHEDULE: Name of Person(s) or Organization(s): As required by written contract, prior to a loss to which this insurance applies. (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) A. SECTION II -WHO IS AN INSURED is amended to include as an additional insured the persons or organizations shown in the Schedule, but only with respect to liability for injury or damage, to which this insurance applies, caused in ,whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insureds. However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law; and 2. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B. With respect to the insurance afforded to these additional insureds, the following exclusion is added: Exclusions This insurance does not apply to injury or damage occurring after: a. All work or operations, including materials, parts or equipment furnished in connection with such work or operations, on the project (other than service, maintenance or repairs) to be performed by you or on your behalf at the site of the covered operations has been completed; or b. That portion of your work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for the additional insured as a part of the same project. ENV-3250 (12/18) (221012.1) Includes copyrighted material of Insurance Services Office, Inc. with its permission Page 1 of2 Page 299 of 309 Westchester A Chubb Company C. With respect to the insurance afforded to these additional insureds, the following is added to SECTION III -LIMITS OF INSURANCE: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement; or 2. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. All other terms and conditions of this policy remain unchanged. ENV-3250 (12/18) (221012.1) Includes copyrighted material of Insurance Services Office, Inc. with its permission Page 2 of2 Page 300 of 309 Westchester A Chubb Company ADDITIONAL INSURED ENDORSEMENT -PRODUCTS-COMPLETED OPERATIONS HAZARD Named Insured Endorsement Number Dudlev Construction, Ltd. Policy Symbol I Policy Number I Policy Period Effective Date of Endorsement CPW G71798847 003 08/01/2022 to 08/01/2023 08/01/2022 Issued By (Name of Insurance Company) Westchester Surolus Lines Insurance Comoanv Insert the policy number. The remainder of the information is to be completed only when this endorsement is issued subsequent to the preparation of the policy. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. THIS ENDORSEMENT MODIFIES INSURANCE PROVIDED UNDER THE FOLLOWING: CONTRACTORS POLLUTION LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization(s): As required by written contract, prior to a loss to which this insurance applies. (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) A. SECTION II -WHO IS AN INSURED is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for injury or damage, to which this insurance applies, caused by or resulting from your work performed for that additional insured and included in the products-completed operations hazard, and only to the extent that such injury or damage is caused, in whole or in part, by your negligence or the negligence of those acting on your behalf. However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law; and 2. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B. With respect to the insurance afforded to these additional insureds, the following is added to SECTION III - LIMITS OF INSURANCE: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement; or 2. Available under the applicable Limits oflnsurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. All other terms and conditions of this policy remain unchanged. ENV-3251 (12/18) (221012.2) Includes copyrighted material of Insurance Services Office, Inc. with its permission Page 1 ofl Page 301 of 309 ~NA Workers Compensation And Employers Liability Insurance Policy Endorsement II TEXAS WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT This endorsement applies only to the insurance provided by the policy because Texas is shown in Item 3.A. of the Information Page. We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule, but this waiver applies only with respect to bodily injury arising out of the operations described in the Schedule where you are required by a written contract to obtain this waiver from us. This endorsement shall not operate directly or indirectly to benefit anyone not named in the Schedule. The premium for this endorsement is shown in the Schedule. 1. D Specific Waiver Name of person or organization IKJ Blanket Waiver Schedule Any person or organization for whom the Named Insured has agreed by written contract to furnish this waiver. 2. Operations: All Texas Operations 3. Premium: The premium charge for this endorsement shall be 2% percent of the premium developed on payroll in connection with work performed for the above person(s) or organization(s) arising out of the operations described. 4. Advance Premium: Refer to Schedule of Operations All other terms and conditions of the policy remain unchanged. I This endorsement, which forms a part of end is for attachment to the policy issued by the designated Insurers, takes effect on the Policy Effective Date of said policy at the hour stated in said policy, unless another 1 ~~fective date (the Endorsement Effective Date) is shown below, and expires concurrently with said policy ~less another expiration date is shown below. Form No: WC 42 03 04 B (06-20141 EndorHment Effective Date: Endorsement No: 8; Page: 1 of 1 EndorHment Expiration Date: Underwriting Company: American Casualty Company of Reading, Pennsylvania, 151 N Franklin St, Chicago. IL 60606 Policy No: WC 7 40323263 Policy Effective Date: 01 /01 /2024 Policy Page: 45 of 48 a Copyright 2014 National Council on Compensation Insurance, Inc. All Rights Reserved. Page 303 of 309 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT D PLANS AND SPECIFICATIONS Plans and Specification from RFP/CSP #24-018 Carter Creek Wastewater Treatment Plant Diversion Lift Station and Force Main incorporated in the Contract by reference. Page 304 of 309 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT E CONSTRUCTION SCHEDULE Page 305 of 309 Contract No.___________ Construction Agreement Over $50,000 Form 04-20-2023 EXHIBIT F SCHEDULE OF VALUES Page 306 of 309 Item No.Description Unit Estimated Quantity Unit Price Extended Amount 1 Mobilization LS 1 385,000.00$ 385000 2 Site Work LS 1 165,500.00$ 165500 3 Diversion Box LS 1 248,000.00$ 248000 4 Lift Station Diversion Pipeline LS 1 197,000.00$ 197000 5 Lift Station LS 1 1,706,000.00$ 1706000 6 Electrical Improvements LS 1 2,891,000.00$ 2891000 7 Traffic Control LS 1 6,600.00$ 6600 8 Tree Protection LS 1 29,800.00$ 29,800.00$ 9 Clearing and Grubbing AC 16 3,360.00$ 53,760.00$ 10 Erosion and Sediment Control LS 1 95,300.00$ 95300 11 Trench Safety LF 9,981 2.40$ 23954.4 12 Hydromulch Seeding AC 16 3,120.00$ 49920 13 Remove Existing Sanitary Sewer Manhole EA 1 2,640.00$ 2640 14 Remove and Replace Existing Chain Link Fence LF 479 33.60$ 16094.4 15 Remove and Replace Existing Barbed Wire Fence LF 1,507 13.20$ 19892.4 16 Remove and Replace Existing Steel Gate EA 2 540.00$ 1080 17 Permanent Steel Tube Gate EA 2 1,740.00$ 3480 18 Remove and Replace Existing Driveway (Gravel)SY 702 30.00$ 21060 19 Remove & Replace Concrete Sidewalk SY 81 184.00$ 14904 20 Remove & Replace Curb & Gutter LF 150 35.00$ 5250 21 Remove and Replace Asphalt Pavement w/ Seal Coating SY 1,385 54.00$ 74790 22 Remove and Dispose of 36" RCP LF 30 180.00$ 5400 23 Install 36" RCP Plugs EA 2 2,930.00$ 5860 24 Remove and Replace Ex. 6" PVC Storm Drain LF 20 55.00$ 1100 25 Remove and Replace Ex. 15" Storm LF 33 215.00$ 7095 26 20" PVC DR-18 (235 psi) Force Main by Open Cut LF 9,951 202.30$ 2013087.3 27 20" PVC DR-18 (235 psi) Force Main with Casing Spacers LF 65 389.65$ 25327.25 28 20" Fusible PVC DR-18 (235 psi) Force Main by HDD LF 3,405 521.87$ 1776967.35 29 36" - 0.500" Thick Steel Casing Pipe by Open Cut LF 30 390.50$ 11715 30 36" - 0.500" Thick Steel Casing Pipe by Auger Bore LF 35 755.00$ 26425 31 6" Combination Air Release & Vacuum Valve with manhole with Odor Control - Type 1 EA 6 24,319.00$ 145914 32 6" Combination Air Release & Vacuum Valve with manhole with Odor Control - Type 2 EA 1 22,190.00$ 22190 33 20" Direct Bury Plug Valve EA 8 21,690.00$ 173520 34 5' Diameter Manhole EA 1 33,442.00$ 33442 35 Connect to Lift Station EA 1 10,000.00$ 10000 36 Connect to Transition Structure EA 1 10,000.00$ 10000 37 Hydrostatic Testing LF 13,421 1.20$ 16105.2 Item No.Description Unit Estimated Quantity Unit Price Extended Amount 38 Flygt Submersible Pumps - Allowance for furnishing the Submersible Pumps and Accessories as manufactured by Flygt LS 1 395,000.00$ 395,000.00$ 39 Furnish Yaskawa Variable Frequency Drives - Allowance for furnishing the VFD's as manufactured by Yaskawa LS 1 138,619.00$ 138,619.00$ 40 Extra Concrete Paving SY 300 150.00$ 45,000.00$ 41 Extra Flowable Fill CY 200 204.00$ 40,800.00$ 42 Extra 20" Ductile Iron Fittings EA 8 7,800.00$ 62,400.00$ 681,819.00$ 10,976,992.30$ per addendum #1 The Undersigned proposes to furnish all labor, services, materials, tools, and necessary equipment for the annual price agreement for Lincoln Avenue Rehabilitation, 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. CONTRACTOR'S PROPOSAL Carter Creek Force Main and Lift Station Bid Opening Wednesday, January 17, 2024 at 2:00 p.m. CT Total Bid BASE BID ITEMS Subtotal for Additional Items Carters Creek Diversion Lift Station and Force Main Extra Unit Items Allowances 10,295,173.30$ Subtotal for Carters Creek Diversion Lift Station and Force Main Page 307 of 309 20" Force Main CCWWTP 36" Gravity Main LCWWTP Rock Prairie Rd ERock Prairie Rd ES t a t e H w y 6Bird Pond RdBradley RdWilliam D Fitch Pkwy´Notice: The accuracy of this data is limited to the validity and accuracy of available data, and therefore the City makes no representation or warranties as to the accuracy of the data. Any party using the data does so at their own risk. This data isproduced pursuant to the Texas Public Information Act.Map created by Ashley Dorsett on 08/31/2020. Carter Creek Diversion Lift Station and Force MainProject Limits Map Page 308 of 309 April 11, 2024 Item No. 11.1. Council Reports on Committees, Boards, and Commissions Sponsor: City Council Reviewed By CBC: City Council Agenda Caption: A Council Member may make a report regarding meetings of City Council boards and commissions or meetings of boards and committees on which a Council Member serves as a representative that have met since the last council meeting. (Committees listed in Coversheet) Relationship to Strategic Goals: Good Governance Recommendation(s): Review meetings attended. Summary: Animal Shelter Board, Arts Council of Brazos Valley, Architectural Advisory Committee, Audit Committee, Bond Citizens Advisory Committee, Bicycle, Pedestrian, and Greenways Advisory Board, Bio-Corridor Board of Adjustments, Brazos County Health Dept., Brazos Valley Council of Governments, Brazos Valley Economic Development Corporation, Bryan/College Station Chamber of Commerce, Budget and Finance Committee, BVSWMA, BVWACS, Census Committee Group, Compensation and Benefits Committee, Experience Bryan-College Station, Design Review Board, Economic Development Committee, Gulf Coast Strategic Highway Coalition, Historic Preservation Committee, Interfaith Dialogue Association, Intergovernmental Committee, Joint Relief Funding Review Committee, Landmark Commission, Library Board, Metropolitan Planning Organization, Operation Restart, Parks and Recreation Board, Planning and Zoning Commission, Research Valley Technology Council, Regional Transportation Committee for Council of Governments, Sister Cities Association, Spring Creek Local Government Corporation, Transportation and Mobility Committee, TAMU Student Senate, Texas Municipal League, Walk with the Mayor, YMCA, Zoning Board of Adjustments. (Notice of Agendas posted on City Hall bulletin board.) Budget & Financial Summary: None. Attachments: None Page 309 of 309