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03.13.18 Town Council Regular Meeting PacketPage 1 of 3 ] Prosper is a place where everyone matters. 1. Call to Order/Roll Call. 2. Invocation, Pledge of Allegiance and Pledge to the Texas Flag. 3. Announcements of recent and upcoming events. 4. Presentations. • Presentation of a Proclamation declaring March 18, 2018, as Jim Spradley Day, in honor of Mr. Spradley’s 40 years of service as Postmaster of the Prosper Post Office. (RB) • Public Works Release/Renew/Recycle Presentation. (TC) 5. CONSENT AGENDA: (Items placed on the Consent Agenda are considered routine in nature and non- controversial. The Consent Agenda can be acted upon in one motion. Items may be removed from the Consent Agenda by the request of Council Members or staff.) 5a. Consider and act upon minutes from the following Town Council meeting. (RB) • Regular Meeting – February 27, 2018 5b. Consider and act upon authorizing the Town Manager to execute an Advance Funding Agreement for a Project Using Funds Held in the State Highway 121 Subaccount for the On-System Improvements between the Texas Department of Transportation and the Town of Prosper, Texas, related to the West Prosper Roads project. (HW) 5c. Consider and action upon an ordinance approving a tariff authorizing an annual rate review (RRM) mechanism settlement between the Atmos Cities Steering Committee and Atmos Energy Corporation regarding the Company’s 2017 rates set by the settlement as a substitution for the annual interim rate adjustment process defined by section 104.301 of the Texas Utilities Code. (KN) 5d. Consider and act upon ratifying an expenditure to Barbosa A. Construction, Inc., related to emergency construction services for the Parvin Road Culvert Reconstruction project; and authorizing the Town Manager to execute a construction agreement for same. (FJ) AGENDA Meeting of the Prosper Town Council Prosper Municipal Chambers 108 W. Broadway, Prosper, Texas Tuesday, January 23, 2018 6:00 p.m. AGENDA Meeting of the Prosper Town Council Prosper Municipal Chambers 108 W. Broadway, Prosper, Texas Tuesday, March 13, 2018 6:00 p.m. Page 2 of 3 6. CITIZEN COMMENTS: The public is invited to address the Council on any topic. However, the Council is unable to discuss or take action on any topic not listed on this agenda. Please complete a “Public Meeting Appearance Card” and present it to the Town Secretary prior to the meeting. REGULAR AGENDA: If you wish to address the Council during the regular agenda portion of the meeting, please fill out a “Public Meeting Appearance Card” and present it to the Town Secretary prior to the meeting. Citizens wishing to address the Council for items listed as public hearings will be recognized by the Mayor. Those wishing to speak on a non-public hearing related item will be recognized on a case-by-case basis, at the discretion of the Mayor and Town Council. PUBLIC HEARINGS: 7. Conduct a Public Hearing, and consider and act upon an ordinance for a Specific Use Permit (SUP) for a Utility Distribution/Transmission Facility (Brazos Electric), on 8.9± acres, located on the east side of FM 1385, 2,700± feet south of Parvin Road. The property is zoned Agricultural (A). (S17-0004). (AG) 8. Conduct a Public Hearing, and consider and act upon a request for a Variance to the Sign Ordinance, regarding construction screening, for Windsong Ranch Crystal Lagoon, located on the northeast corner of Windsong Parkway and Pepper Grass Lane. (V18- 0002). (AG) 9. Conduct a Public Hearing, and consider and act upon an ordinance for a Special Purpose Sign District for Westfork Crossing, located on the northwest corner of US 380 and Gee Road. (MD18-0001). (AG) DEPARTMENT ITEMS: 10. Consider and act upon a resolution appointing a member of the Prosper Town Council to the North Central Texas Regional 9-1-1 Emergency Communications District Board of Managers. (RB) 11. Consider and act upon awarding Bid No. 2018-54-B to Pavecon Public Works, L.P., related to construction services for the Frontier Parkway Reconstruction DNT to BNSF Railroad project; and authorizing the Town Manager to execute a construction agreement for same. (FJ) 12. Discussion on proposed amendments to the Zoning Ordinance regarding Home Occupation standards. (AG) 13. EXECUTIVE SESSION: Recess into Closed Session in compliance with Section 551.001 et seq. Texas Government Code, as authorized by the Texas Open Meetings Act, to deliberate regarding: 13a. Section 551.087 – To discuss and consider economic development incentives. Page 3 of 3 13b. Section 551.072 – To discuss and consider purchase, exchange, lease or value of real property for municipal purposes and all matters incident and related thereto. 13c. Section 551.074 – To discuss and review the Town Manager’s performance evaluation. 14. Reconvene in Regular Session and take any action necessary as a result of the Closed Session. 15. Possibly direct Town staff to schedule topic(s) for discussion at a future meeting. • Christmas Festival location (DR) • Christmas Decorations (DR) • Frontier Park North contingencies (DR) • Amend Zoning Ordinance Regarding Definitions (JW) 16. Adjourn. CERTIFICATION I, the undersigned authority, do hereby certify that this Notice of Meeting was posted at Prosper Town Hall, located at 121 W. Broadway Street, Prosper, Texas 75078, a place convenient and readily accessible to the general public at all times, and said Notice was posted by 5:00 p.m., on Friday, March 9, 2018, and remained so posted at least 72 hours before said meeting was convened. _______________________________ _________________________ Robyn Battle, Town Secretary Date Notice Removed Pursuant to Section 551.071 of the Texas Government Code, the Town Council reserves the right to consult in closed session with its attorney and to receive legal advice regarding any item listed on this agenda. NOTICE Pursuant to Town of Prosper Ordinance No. 13-63, all speakers other than Town of Prosper staff are limited to three (3) minutes per person, per item, which may be extended for an additional two (2) minutes with approval of a majority vote of the Town Council. NOTICE OF ASSISTANCE AT PUBLIC MEETINGS: The Prosper Town Council meetings are wheelchair accessible. For special services or assistance, please contact the Town Secretary’s Office at (972) 569- 1011 at least 48 hours prior to the meeting time. Page 1 of 7 ] Prosper is a place where everyone matters. 1.Call to Order/Roll Call. The meeting was called to order 6:02 p.m. Council Members Present: Mayor Ray Smith Mayor Pro-Tem Curry Vogelsang, Jr. Deputy Mayor Pro-Tem Jason Dixon Councilmember Michael Korbuly Councilmember Kenneth Dugger Councilmember Meigs Miller Councilmember Jeff Hodges Staff Members Present: Harlan Jefferson, Town Manager Robyn Battle, Town Secretary/Public Information Officer Terrence Welch, Town Attorney Hulon Webb, Executive Director of Development and Community Services John Webb, Development Services Director Alex Glushko, Planning Manager Paul Naughton, Landscape Architect Chuck Springer, Executive Director of Administrative Services Kelly Neal, Finance Director 2.Invocation, Pledge of Allegiance and Pledge to the Texas Flag. Pastor Jim Lugar of Life Journey Church led the invocation. The Pledge of Allegiance and the Pledge to the Texas Flag were recited. 3.Announcements of recent and upcoming events. Councilmember Hodges read the following announcements: The Council would like to extend a special thanks to Pastor Jim Lugar and Life Journey Church for allowing us to meet here tonight. The Town celebrated the Grand Opening of Frontier Park North on Sunday. The complex features two youth baseball/softball fields and two multi-purpose fields to accommodate game and practice space for a variety of sports. The Council would like to thank everyone who contributed to the success of this project. MINUTES Meeting of the Prosper Town Council Life Journey Church 104 W. Broadway Street Prosper, TX 75078 Tuesday, February 27, 2018 Item 5a Page 2 of 7 Early voting for the March 6 Primary election will continue in Prosper Municipal Chambers through this Friday. Election Day is March 6. Information and sample ballots are available on the Collin County and Denton County Election websites. The It’s Time Texas Community Challenge ends on March 4, but there is still time to help Prosper win a three-peat! Professional Black Belt Academy will lead a Community Workout this Saturday, March 3, at 9:00 a.m. at Windsong Park. All fitness levels are welcome. Residents are invited to attend a “Newcomer’s Guide to Gardening” event on March 3, from 8:00 a.m.-1:00 p.m., at the Collin College Central Park Campus in McKinney. This free event, presented by Texas A&M AgriLife and the North Texas Municipal Water District, will teach residents sustainable gardening and landscaping practices. Registration information is available on the Town website. The 7th Annual Prosper Spring Clean Up will be held on Saturday, March 24, from 8:00 a.m.-noon. The drop-off zone will be located along Craig Road in front of Rucker Elementary. Prosper residents may drop off unwanted items such as scrap lumber, appliances, old eyeglasses, and other household items. For more information, please visit the Town website. 4. CONSENT AGENDA: (Items placed on the Consent Agenda are considered routine in nature and non- controversial. The Consent Agenda can be acted upon in one motion. Items may be removed from the Consent Agenda by the request of Council Members or staff.) 4a. Consider and act upon minutes from the following Town Council meeting. (RB) • Regular Meeting – February 13, 2018 4b. Receive the Monthly Financial Report. (KN) 4c. Receive the Quarterly Investment Report. (KN) 4d. Consider and act upon whether to direct staff to submit a written notice of appeal on behalf of the Town Council to the Development Services Department, pursuant to Chapter 4, Section 1.5(C)(7) and 1.6(B)(7) of the Town’s Zoning Ordinance, regarding action taken by the Planning & Zoning Commission on any Site Plan or Preliminary Site Plan. (AG) Finance Director Kelly Neal responded to a question from Councilmember Korbuly about the Monthly Financial Report. After discussion, Councilmember Korbuly made a motion and Councilmember Hodges seconded the motion to approve all items on the Consent Agenda. The motion was approved by a vote of 7-0. Item 5a Page 3 of 7 5. CITIZEN COMMENTS: The public is invited to address the Council on any topic. However, the Council is unable to discuss or take action on any topic not listed on this agenda. Please complete a “Public Meeting Appearance Card” and present it to the Town Secretary prior to the meeting. Alan Michlin, 3526 Smiley Road, Prosper, addressed the Council about the condition of Parvin Road and other west side roads that were flooded during the recent rainstorms. He requested the Council take action to repair the roads. REGULAR AGENDA: If you wish to address the Council during the regular agenda portion of the meeting, please fill out a “Public Meeting Appearance Card” and present it to the Town Secretary prior to the meeting. Citizens wishing to address the Council for items listed as public hearings will be recognized by the Mayor. Those wishing to speak on a non-public hearing related item will be recognized on a case-by-case basis, at the discretion of the Mayor and Town Council. PUBLIC HEARINGS: 6. Conduct a Public Hearing, and consider and act upon an ordinance for a Specific Use Permit (SUP) for a Temporary Wireless Communication & Support Structure, on 0.1± acre, located on the northeast corner of Pine Leaf Lane and Mountain Laurel Drive. The property is zoned Planned Development-40 (PD-40). (S18-0001). (AG) Planning Manager Alex Glushko presented this item before the Town Council. The purpose of this request is to allow for a Temporary Wireless Communication & Support Structure, which consists of a 71-foot tall support structure with associated ground- mounted equipment within the 200 square-foot lease area. The site is located in a future phase of the townhome development within Windsong Ranch. The property owner, TVG Texas I, LLC, has requested a temporary Specific Use Permit for a one-year time period, which would begin from the date the ordinance is approved by Town Council. The purpose of the temporary antenna is to improve wireless communication services for the area within one mile of the structure. The structure will only accommodate a single carrier, AT&T. The requested one-year time period will allow AT&T and the property owner time to submit a request to the Town for a permanent wireless communication support structure. Mayor Smith opened the Public Hearing. K.D. Burdette, 4171 Pepper Grass Lane, Prosper, spoke on behalf of the applicant, AT&T. Mr. Burdette confirmed that the utility pole will be inspected by an engineering firm for wind load to ensure safety. The company is in negotiations for a permanent cell tower location in the area to be in place by the end of 2018. David Blom, representing the property owner, TVG Texas I, LLC, confirmed that the lease with AT&T prohibits any other carriers on the location, and does not contain a renewal Item 5a Page 4 of 7 provision after the initial one-year period. He stated that he feels confident the Windsong Ranch residents would support the installation of the temporary tower. With no one else speaking, Mayor Smith closed the Public Hearing. Councilmember Miller made a motion and Councilmember Korbuly seconded the motion to approve Ordinance 18-15 for a Specific Use Permit (SUP) for a Temporary Wireless Communication & Support Structure, on 0.1± acre, located on the northeast corner of Pine Leaf Lane and Mountain Laurel Drive, subject to the following: 1. Expiration of the Specific Use Permit one-year following the date of Town Council approval; 2. Removal of the wireless communication and support structure, all associated ground- mounted equipment, and gravel access drive, prior to expiration of the Specific Use Permit; and 3. Painting of the antennas and brackets to match the color of the main pole support structure. The motion was approved by a vote of 7-0. 7. Conduct a Public Hearing, and consider and act upon a request to rezone a portion of Planned Development-65-Single Family Residential/Commercial (PD-65-SF/C), to facilitate the development of an Automobile Dealership (Chrysler, Dodge, Jeep, Ram), on 16.6± acres, located on the north side of US 380, 875± feet east of Legacy Drive. (Z17-0016). (AG) Planning Manager Alex Glushko presented this item before the Town Council. The purpose of this request is to rezone 5.45± acres from PD-65-SF and 11.15± acres from PD-65-C to allow for a new automotive sales and leasing facility, Chrysler Dodge Jeep Ram (CDJR), as a permitted use, on the overall 16.6± acres. Currently, the PD-65-SF portion of the property does not permit the use, and the PD-65-C portion of the property permits the use with approval of a Specific Use Permit (SUP). This request, if approved, will create a new Planned Development District for the auto use in lieu of using an SUP. Mayor Smith opened the Public Hearing. Matt Moore of Claymoore Engineering, spoke on behalf of the applicant. Mr. Moore proposed the use of a basalt material in lieu of the porcelain tile that was originally proposed. He stated that the architectural details for the water feature are still under design. Bill Pye, the architect for the project, described the bamboo material for the project, noting that the material is a requirement for the company’s corporate identity. He described the tentative design for the proposed water features. At the Council’s request, Mr. Moore agreed to add staggered berming to the site. He also requested that the pond in the northwest corner be a dry detention pond, since it will be adequately screened from adjacent residential areas. Clint Richardson, representing Greater Texas Land Resources, an adjacent property owner, spoke in favor of the project and the request for the dry detention pond. With no one else speaking, Mayor Smith closed the Public Hearing. Item 5a Page 5 of 7 After discussion, Councilmember Dugger made a motion and Councilmember Miller seconded the motion to approve the request to rezone a portion of Planned Development- 65-Single Family Residential/Commercial (PD-65-SF/C) to Planned Development- Commercial, to facilitate the development of an Automobile Dealership (Chrysler, Dodge, Jeep, Ram), on 16.6± acres, located on the north side of US 380, 875± feet east of Legacy Drive; 1. Further, 2 x 6 basalt stone shall replace the porcelain tile proposed for the building facades depicted in Exhibit F; 2. The water features shall have the stone features as described by the applicant, and a 2-3 foot staggered berm shall be placed between the access road and the parking lot; and 3. A detention pond shall be located in the northwest corner of the site. The motion was approved by a vote of 7-0. DEPARTMENT ITEMS: 8. Consider and act upon awarding Bid No. 2018-46-B to SRH Landscapes LLC., related to construction services for the Town Hall Open Space Landscape and Irrigation Improvements project; and authorizing the Town Manager to execute a construction agreement for same. (PN) Landscape Architect Paul Naughton presented this item before the Town Council. The scope of this contract includes grading, landscaping and irrigation of the open space lot south of Town Hall. This work will commence after the site clearing work has been performed. It is anticipated the work will begin late April and will be complete by mid-May. Mr. Naughton confirmed that although the Town has not used the services of the proposed contractor previously, they have successfully completed projects of a similar scope, and Town staff is satisfied with their references. After discussion, Deputy Mayor Pro-Tem Dixon made a motion and Councilmember Hodges seconded the motion to approve awarding Bid No. 2018-46-B to SRH Landscapes LLC., related to construction services for the Town Hall Open Space Landscape and Irrigation Improvements project; and authorizing the Town Manager to execute a construction agreement for same. The motion was approved by a vote of 7-0. 9. Consider and act upon authorizing the Town Manager to execute Contract Amendment #1 to the Professional Engineering Services Agreement between Freese and Nichols, Inc., and the Town of Prosper, Texas, related to the design of the Lower Pressure Plane Water Supply Line Phase 1 project. (HW) Hulon Webb, Executive Director of Development and Community Services, presented this item before the Town Council. On April 11, 2017, the Town entered into an agreement with Freese and Nichols, Inc., to design the Lower Pressure Plane Water Supply Line Phase 1 project. Preliminary design plans for the water line indicate that easements will be required on 32 different properties. While staff anticipates that it will be able to obtain easements from the property owners of up to 15 of the 32 parcels, the remainder will require significant effort. Staff has received a proposal from Freese and Nichols, Inc., to provide easement acquisition services for the easements anticipated to require significant effort. The scope Item 5a Page 6 of 7 of services include negotiating with the property owners, obtaining appraisals, and if necessary, assisting with eminent domain. Councilmember Dugger made a motion and Councilmember Hodges seconded the motion to authorize the Town Manager to execute Contract Amendment #1 to the Professional Engineering Services Agreement between Freese and Nichols, Inc., and the Town of Prosper, Texas, related to the design of the Lower Pressure Plane Water Supply Line Phase 1 project. The motion was approved by a vote of 7-0 10. EXECUTIVE SESSION: Recess into Closed Session in compliance with Section 551.001 et seq. Texas Government Code, as authorized by the Texas Open Meetings Act, to deliberate regarding: 10a. Section 551.087 – To discuss and consider economic development incentives. 10b. Section 551.072 – To discuss and consider purchase, exchange, lease or value of real property for municipal purposes and all matters incident and related thereto. 10c. Section 551.074 – To discuss and review the Town Manager’s performance evaluation. 10d. Section 551.074 – To discuss appointments to the Board of Adjustment/Construction Board of Appeals, Parks & Recreation Board, Library Board, Prosper Economic Development Corporation Board, and Planning & Zoning Commission. The Town Council recessed into Executive Session at 7:22 p.m. 11. Reconvene in Regular Session and take any action necessary as a result of the Closed Session. The Town Council reconvened the Regular Session at 9:25 p.m. Councilmember Miller made a motion and Councilmember Dugger seconded the motion to appoint Amy Bartley to the Planning & Zoning Commission, Place 3; and Cameron Reeves to the Parks & Recreation Board, Place 5. The motion was approved by a vote of 7-0. 12. Possibly direct Town staff to schedule topic(s) for discussion at a future meeting. • Discussion on Field Naming (HW) Hulon Webb, Executive Director of Development and Community Services, briefed the Council on the Parks & Recreation Board’s efforts to create a field naming policy. The Council concurred with the plan to continue the practice of naming practice fields after former mayors of Prosper. Item 5a Page 7 of 7 Councilmember Korbuly requested that staff also come up with a way to name the new multi-purpose fields at Frontier Park North. Town Manager Harlan Jefferson addressed Council’s concerns about the west side roads, stating that staff would initiate a process to repair the roads damaged by recent flooding. 13. Adjourn. The meeting was adjourned at 9:31 p.m., on Tuesday, February 27, 2018. These minutes approved on the 13th day of February 2018. APPROVED: Ray Smith, Mayor ATTEST: Robyn Battle, Town Secretary Item 5a Page 1 of 2 To: Mayor and Town Council From: Hulon T. Webb, Jr, P.E., Executive Director of Development and Community Services Through: Harlan Jefferson, Town Manager Re: Town Council Meeting – March 13, 2018 Agenda Item: Consider and act upon authorizing the Town Manager to execute an Advance Funding Agreement for a Project Using Funds Held in the State Highway 121 Subaccount for the On-System Improvements between the Texas Department of Transportation and the Town of Prosper, Texas, related to the West Prosper Roads project. Description of Agenda Item: On February 24, 2015, the Town Council approved a Road Improvements and Construction Agreement (“West Prosper Roads Agreement”) to address the need to improve many of the existing roads on the west side of Town. The partnership between the Town of Prosper, Prosper Economic Development Corporation, TVG Texas I, LLC, and M/I Homes of DFW, LLC, as well as the North Central Texas Council of Governments (NCTCOG) through the Texas Department of Transportation State Highway 121 Subaccount, is providing the necessary funding for the design and construction of the following “West Prosper Roads:” • Gee Road (US 380 – FM 1385): four lanes north of US 380 to northern edge of Windsong Ranch Marketplace, then two lanes concrete curb and gutter to FM 1385 • Fishtrap Road (Gee Road – Teel Parkway): two lanes concrete curb and gutter • Teel Parkway (US 380 – Fishtrap Road): two lanes concrete curb and gutter • FM 1385 realignment at intersection with new Gee Road The State Highway 121 Subaccount for the West Prosper Roads project allocated $4,000,000 to the West Prosper Roads project. Of the $4,000,000, $3,000,000 is allocated to the Off-System Improvements, and $1,000,000 is allocated to the On-System Improvements. The Off-System Improvements include the design and construction for the widening and reconstructing of Gee Road (US 380 – Fishtrap Road), Teel Parkway (US 380 – Fishtrap Road), and Fishtrap Road (FM 1385 – Teel Parkway), including a three-lane bridge over Doe Branch. The reconstruction of Gee Road (US 380 – Fishtrap Road), Teel Parkway (US 380 – Fishtrap Road) and Fishtrap Road (Gee Road – Teel Parkway) are complete. The reconstruction of Fishtrap Road east of FM 1385 to Gee Road, including a three-lane bridge over Doe Branch is scheduled to begin this summer. Prosper is a place where everyone matters. ENGINEERING Item 5b Page 2 of 2 The On-System Improvements pertain to the design and construction of the realignment and intersection improvements on FM 1385 with the new Gee Road (Fishtrap Road). An exhibit is attached showing the current proposed alignment. It is anticipated that the Town will complete the acquisition of the ROW needed to construct the project and receive approval from the Texas Department of Transportation before the end of this year. In order for the Town to obtain the State Highway 121 Subaccount funding, the Town is required to enter into two Advance Funding Agreements with the Texas Department of Transportation. This agreement, in the amount of $1,000,000, is for the On-System Improvements. The agreement for the Off-System Improvements, in the amount of $3,000,000, was approved at the August 9, 2016, Town Council meeting. Budget Impact: There is $4,000,000 allocated from the State Highway 121 Subaccount for the West Prosper Roads project. Of that total amount, the Town has already received $3,000,000 for the Off-System Improvements portion of the project. This agreement will allocate the remaining $1,000,000 to the On-System Improvements portion of the project. Legal Obligations and Review: Terrence Welch of Brown & Hofmeister, L.L.P., has reviewed the Advance Funding Agreement as to form and legality. Attached Documents: 1. Map Depicting On-System Improvements 2. Advance Funding Agreement Town Staff Recommendation: Town staff recommends that the Town Council authorize the Town Manager to execute an Advance Funding Agreement for a Project Using Funds Held in the State Highway 121 Subaccount for the On-System Improvements between the Texas Department of Transportation and the Town of Prosper, Texas, related to the West Prosper Roads project. Proposed Motion: I move to the authorize the Town Manager to execute an Advance Funding Agreement for a Project Using Funds Held in the State Highway 121 Subaccount for the On-System Improvements between the Texas Department of Transportation and the Town of Prosper, Texas, related to the West Prosper Roads project. Item 5b Item 5b CSJ: 1315-01-027 Project: FM 1385 Limits: at Gee Road District: 18-Dallas Code Chart #: 34150 Funding Category: RTR SH 121 Subaccount RTR On System Page 1 of 9 Revised 4/24/2013 STATE OF TEXAS § COUNTY OF TRAVIS § ADVANCE FUNDING AGREEMENT FOR A PROJECT USING FUNDS HELD IN THE STATE HIGHWAY 121 SUBACCOUNT Highway Improvements On System THIS AGREEMENT (the Agreement) is between the State of Texas, acting by and through the Texas Department of Transportation (the State), and the Town of Prosper (Local Government), collectively, the “Parties.” WITNESSETH WHEREAS, the State has received money from the North Texas Tollway Authority for the right to develop, finance, design, construct, operate, and maintain the SH 121 toll project from Business SH 121 in Denton County to US 75 in Collin County (“SH 121 payments”); and WHEREAS, pursuant to Transportation Code, 228.006 the State shall authorize the use of surplus revenue of a toll project for a transportation project, highway project, or air quality project within the district of the Texas Department of Transportation in which any part of the toll project is located; pursuant to Transportation Code, §228.012 the State has created a separate subaccount in the state highway fund to hold such money (SH 121 Subaccount), and the State shall hold such money in trust for the benefit of the region in which a project is located, and may assign the responsibility for allocating money in the subaccount to a metropolitan planning organization (MPO); and WHEREAS, in Minute Order 110727, dated October 26, 2006, the Texas Transportation Commission (the “Commission”) approved a memorandum of understanding (MOU) with the Regional Transportation Council (RTC), which is the transportation policy council of the North Central Texas Council of Governments (NCTCOG) and a federally designated MPO, concerning in part the administration, sharing, and use of surplus toll revenue in the region; under the MOU the RTC shall select projects to be financed using surplus revenue from a toll project, subject to Commission concurrence; and Item 5b CSJ: 1315-01-027 Project: FM 1385 Limits: at Gee Road District: 18-Dallas Code Chart #: 34150 Funding Category: RTR SH 121 Subaccount RTR On System Page 2 of 9 Revised 4/24/2013 WHEREAS, the Local Government has requested money from the SH 121 Subaccount to realign and improve the intersection of FM 1385 at Gee Road in the Town of Prosper, Denton County (CSJ 1315-01-027) (Project); the RTC has selected the Project to be funded from the SH 121 Subaccount; and the Commission concurred in the selection and, authorized the expenditure of money in Minute Order 114666 dated July 28, 2016 for (CSJ 1315-01-027); and WHEREAS, the Local Government is a political subdivision and governmental entity by statutory definition; and WHEREAS, Government Code, Chapter 791, and Transportation Code, §201.209 authorize the State to contract with municipalities and political subdivisions to perform governmental functions and services; and WHEREAS, NCTCOG and the RTC should have authority to assist the Local Government’s implementation of financial reporting and environmental review related to a transportation project funded by the State using money from the SH 121 Subaccount. NOW, THEREFORE, the Parties agree as follows: AGREEMENT Article 1. Time Period Covered This Agreement becomes effective when signed by the last party whose signing makes the agreement fully executed, and the State and the Local Government will consider it to be in full force and effect until the Project described herein has been completed and accepted by all parties or unless terminated, as hereinafter provided. Article 2. Project Funding The State will pay money to the Local Government from the SH 121 Subaccount in the amounts specified in Attachment A, Payment Provision and Work Responsibilities. Except as provided in the next succeeding sentence, the payments will begin no later than upon the later of the following: (1) fifteen days after the Legislative Budget Board and the Governor each approve the expenditure, in accordance with Rider 27 of the Texas Department of Transportation bill pattern in House Bill 1, 84th Legislature; and (2) thirty days after execution of this Agreement. If Attachment A shows that the RTC has allocated payments to the Local Government for a certain expenditure (e.g. construction) for the Project in a certain fiscal year, then the State will make the payment from the SH 121 Subaccount to the Local Government for such expenditure no later than 30 days after the beginning of the designated Fiscal Year. A Fiscal Year begins on September 1 (for example, the 2014 Fiscal Year began September 1, 2013). Article 3. Separate Account; Interest All funds paid to the Local Government shall be deposited into a separate account, and Item 5b CSJ: 1315-01-027 Project: FM 1385 Limits: at Gee Road District: 18-Dallas Code Chart #: 34150 Funding Category: RTR SH 121 Subaccount RTR On System Page 3 of 9 Revised 4/24/2013 interest earned on the funds shall be kept in the account. Interest earned may be used only for the purposes specified in Attachment A, Payment Provision and Work Responsibilities, and only after obtaining the written approval of the RTC. The Local Government’s use of interest earned will not count towards the 20 percent local match requirement set forth in this Agreement. Article 4. Shortfalls in Funding The Local Government shall apply all funds to the scope of work of the Project described in Attachment A, Payment Provisions and Work Responsibilities, and to none other. All cost overruns are the responsibility of the Local Government. However, should the funds be insufficient to complete the work contemplated by the Project, the Local Government may make further request to the RTC and the State for additional funds from the SH 121 Subaccount. Funds may be increased only through an amendment of this Agreement. If the SH 121 Subaccount does not contain sufficient funds to cover the balance necessary to complete the Project, or if the RTC or the Commission decline the request for any other reason, then the Local Government shall be responsible for any shortfall. Article 5. Return of Project Funding The Local Government shall reimburse the State for any funds paid under this Agreement that are not expended in accordance with the requirements of this Agreement. Upon completion of the Project, the Local Government will issue a signed “Notification of Completion” document to the State acknowledging the Project’s completion. If at project end, or upon termination of this Agreement, excess SH 121 Subaccount funds exist, including interest earned, such funds shall be returned to the State within 30 days. Except for funds the Local Government has already expended in accordance with the Agreement, the Local Government shall return to the State the funds paid under this Agreement together with any interest earned on the funds if the Project is not completed within 10 years of execution of the Agreement. Article 6. Local Match The Local Government shall be responsible for the required 20 percent local match as described in Attachment A, Payment Provisions and Work Responsibilities. The costs incurred by the Local Government prior to the execution of this Agreement will count towards the 20 percent local match requirement provided such costs are for RTC-approved phases as shown in Attachment A. At the end of each Fiscal Year the Local Government’s cumulative expenditures of local match funds must be no less than 20 percent of the cumulative SH 121 Funds received by the Local Government up to that date under the Agreement, and must be for the uses approved for payments of SH 121 Funds up to that date as specified in Attachment A, Payment Provision and Work Responsibilities. Article 7. Procurement and Contracting Process The State may review the Local Government’s procurement of professional services for engineering, surveying, and right of way acquisition, letting of construction contracts, and conduct of construction management and inspection. The Local Government shall certify compliance with state law and regulations, and with local laws, regulations, rules, policies, Item 5b CSJ: 1315-01-027 Project: FM 1385 Limits: at Gee Road District: 18-Dallas Code Chart #: 34150 Funding Category: RTR SH 121 Subaccount RTR On System Page 4 of 9 Revised 4/24/2013 and procedures. The Local Government shall maintain a copy of the certification in the project files. Article 8. Design Standards and Construction Specifications The Local Government shall implement the Project using the State’s established construction specifications, procurement processes, and construction management and inspection procedures. The State will review and approve the City’s alignment plans. Article 9. Right of Way Except for right of way owned by the State or to be acquired by the State according to the plans of the Project as approved by the State, the Local Government shall acquire all necessary right of way needed for the Project. Right of way acquisition is an eligible cost for reimbursement provided such cost is an RTC-approved phase as shown in Attachment A. Article 10. Utilities The Local Government shall be responsible for the adjustment, removal, or relocation of utility facilities in accordance with State laws and regulations and local laws, regulations, rules, policies, and procedures applicable to the State. The RTC-approved costs for utilities as shown in Attachment A, if any, shall be used to adjust, remove, or relocate utility facilities. Article 11. Compliance with Laws, Environmental Review and Public Involvement Each Party shall comply with all applicable federal, state, and local laws, statutes, ordinances, rules and regulations, and the orders and decrees of any courts, administrative bodies or tribunals affecting the performance of this Agreement as applicable to it. When required, the Local Government shall furnish the State with satisfactory proof of compliance. As provided in 43 TAC 2.3(b)(1)(A), the State’s environmental review requirements do not apply to the Project because the State is funding the Project solely with money held in a project subaccount created under Transportation Code, Section 228.012. However, the Local Government shall ensure that the project complies with all environmental review and public involvement requirements applicable to the Local Government under State and federal law in connection with the Project. The Local Government shall obtain the opinion of legal counsel showing the Local Government’s environmental review and public involvement for the Project complies with state law and regulations, and with local laws, regulations, rules, policies, and procedures applicable to the Local Government. The Local Government shall maintain a copy of the certification in the project files. The State will review and approve the City’s applicable environmental documents. Article 12. Compliance with Texas Accessibility Standards and ADA The Local Government shall ensure that the plans for and the construction of the Project is in compliance with the Texas Accessibility Standards (TAS) issued by the Texas Department of Licensing and Regulation, under the Architectural Barriers Act, Article 9102, Texas Civil Statutes. The TAS establishes minimum accessibility requirements to be consistent with minimum accessibility requirements of the Americans with Disabilities Act (P.L. 101-336). Item 5b CSJ: 1315-01-027 Project: FM 1385 Limits: at Gee Road District: 18-Dallas Code Chart #: 34150 Funding Category: RTR SH 121 Subaccount RTR On System Page 5 of 9 Revised 4/24/2013 Article 13. Work Outside the Project Site The Local Government shall provide both the necessary right of way and any other property interests needed for the Project. Article 14. Insurance If this agreement authorizes the Local Government or its contractor to perform any work on State right of way, before beginning work the entity performing the work shall provide the State with a fully executed copy of the State's Form 1560 Certificate of Insurance verifying the existence of coverage in the amounts and types specified on the Certificate of Insurance for all persons and entities working on State right of way. This coverage shall be maintained until all work on the State right of way is complete. If coverage is not maintained, all work on State right of way shall cease immediately, and the State may recover damages and all costs of completing the work. Article 15. Audit Within 120 days of completion of the Project, the Local Government shall perform an audit of the costs of the Project. Any funds due to the State will be promptly paid by the Local Government. Article 16. Maintenance The State shall be responsible for maintenance of the Project, unless otherwise provided for in prior existing maintenance agreement with the Local Government. Article 17. Responsibilities of the Parties a. The State and the Local Government agree that neither party is an agent, servant, or employee of the other party and each party agrees it is responsible for its individual acts and deeds, as well as the acts and deeds of its contractors, employees, representatives, and agents. b. To the extent permitted by law, the Local Government agrees to indemnify and save harmless the State, its agents and employees from all suits, actions or claims and from all liability and damages resulting from any and all injuries or damages sustained by any person or property in consequence of any neglect, error, or omission in the performance of the design, construction, maintenance or operation of the Project by the Local Government, its contractor(s), subcontractor(s), agents and employees, and from any claims or amounts arising or recovered under the "Workers' Compensation laws"; the Texas Tort Claims Act, Chapter 101, Texas Civil Practice and Remedies Code; or any other applicable laws or regulations, all as from time to time may be amended. c. The Parties expressly agree that the Project is not a joint venture or enterprise. However, if a court should find that the Parties are engaged in a joint venture or enterprise, then the Local Government, to the extent provided by law, agrees to pay any liability adjudicated against the State for acts and deeds of the Local Government, its employees or agents during the performance of the Project. Item 5b CSJ: 1315-01-027 Project: FM 1385 Limits: at Gee Road District: 18-Dallas Code Chart #: 34150 Funding Category: RTR SH 121 Subaccount RTR On System Page 6 of 9 Revised 4/24/2013 d. To the extent provided by law, the Local Government shall also indemnify and save harmless the State from any and all expense, including, but not limited to, attorney’s fees which may be incurred by the State in litigation or otherwise resisting said claim or liabilities which may be imposed on the State as a result of such activities by the Local Government, its agents, or employees. e. If the Local Government is performing work on the state highway system, the Local Government, by contract, shall require its contractors(s) and subcontractor(s) prior to doing any work on the Project, to secure an insurance policy in the maximum statuary limits for tort liability, naming the State as an additional insured under its terms; and indemnify and hold harmless the Local Government and the State from all claims, liability, and damages resulting from the contractor’s performance under the contract. Article 18. Notices All notices to either party by the other required under this Agreement shall be delivered personally or sent by certified or U.S. mail, postage prepaid or sent by electronic mail, (electronic notice being permitted to the extent permitted by law but only after a separate written consent of the parties), addressed to such party at the following addresses: Local Government: Town of Prosper Attention: Town Manager 121 W. Broadway Prosper, Texas 75078 State: Texas Department of Transportation Attention: Director of Contract Services 125 East 11th Street Austin, Texas 78701 All notices shall be deemed given on the date so delivered or so deposited in the mail, unless otherwise provided herein. Either party may change the above address by sending written notice of the change to the other party. Either party may request in writing that such notices shall be delivered personally or by certified U.S. mail and such request shall be honored and carried out by the other party. Article 19. Right of Access If the Local Government is the owner or otherwise controls access to any part of site of the Project, the Local Government shall permit the State or its authorized representative access to the site to perform any activities authorized in this Agreement. Article 20. Project Documents Upon completion or termination of this Agreement, all documents prepared by the State shall remain the property of the State. All data prepared under this Agreement by the Local Government shall be made available to the State without restriction or limitation on their further use. All documents produced or approved or otherwise created by the Local Government shall be transmitted to the State in the form of photocopy reproduction as required by the State. The originals shall remain the property of the Local Government. At the request of the State, the Local Government shall submit any information required by the State in the format directed by the State. Item 5b CSJ: 1315-01-027 Project: FM 1385 Limits: at Gee Road District: 18-Dallas Code Chart #: 34150 Funding Category: RTR SH 121 Subaccount RTR On System Page 7 of 9 Revised 4/24/2013 Article 21. Inspection of Books and Records The Local Government shall keep a complete and accurate record to document the performance of the work on the Project and to expedite any audit that might be conducted. The Local Government shall maintain records sufficient to document that funds provided under the Agreement were expended only for eligible costs that were incurred in accordance with all applicable state and local laws, rules, policies, and procedures, and in accordance with all applicable provisions of this Agreement. The Local Government shall maintain all books, documents, papers, accounting records and other documentation relating to costs incurred under this Agreement and shall make such materials available to the State for review and inspection during the contract period and for four (4) years from the date of completion of work defined under this Agreement or until any pending litigation or claims are resolved, whichever is later. Additionally, the State shall have access to all governmental records that are directly applicable to this Agreement for the purpose of making audits, examinations, excerpts, and transcriptions. Article 22. NCTCOG Acceptance of funds directly under the Agreement or indirectly through a subcontract under the Agreement acts as acceptance of the authority of NCTCOG and RTC to assist the Local Government’s implementation of financial reporting and environmental review concerning the Project. The Local Government shall provide to NCTCOG on a monthly basis a report of expenses, including the Local Government’s expenditure of local match funds. The report shall list separately the expenditures by project phase as shown in Attachment A, including but not limited to engineering, environmental review, right of way acquisition, and construction. The report shall also describe interest earned on money from the SH 121 Subaccount, including the interest rate, interest earned during the month, and cumulative interest earned. The report shall further describe the status of developing the Project. Not less than 60 days before the environmental review document is submitted to the governing body of the Local Government for final approval, the Local Government shall submit the document to the State for review and comment. The State may provide the Local Government technical assistance on the environmental review of the Project as mutually agreed between the State and the Local Government. Article 23. State Auditor The state auditor may conduct an audit or investigation of any entity receiving funds from the State directly under the Agreement or indirectly through a subcontract under the Agreement. Acceptance of funds directly under the Agreement or indirectly through a subcontract under this Agreement acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. An entity that is the subject of an audit or investigation must provide the state auditor with access to any information the state auditor considers relevant to the investigation or audit. Article 24. Amendments By mutual written consent of the Parties, this contract may be amended prior to its expiration. Item 5b CSJ: 1315-01-027 Project: FM 1385 Limits: at Gee Road District: 18-Dallas Code Chart #: 34150 Funding Category: RTR SH 121 Subaccount RTR On System Page 8 of 9 Revised 4/24/2013 Article 25. Termination The Agreement may be terminated in the following manner: a. By mutual written agreement and consent of both parties; b. By either party upon the failure of the other party to fulfill the obligations set forth herein, after a 45 day period to cure after receiving written notice of non-compliance; c. By the State if the Local Government does not let the construction contract for the Project within one year after the State first provides SH 121 Funds for construction as shown in Attachment A, Payment Provision and Work Responsibilities; d. By the State if the Local Government does not complete the Project within ten years after the effective date of the Agreement. e. By the State if it determines that the performance of the Project is not in the best interest of the State, if the Local Government is working on the state highway system. Article 26. Work by Debarred Person The Local Government shall not contract with any person that is suspended, debarred, proposed for debarment, declared ineligible or voluntarily excluded from covered transactions by any federal agency or that is debarred or suspended by the State. Article 27. Sole Agreement The Agreement constitutes the sole and only agreement between the parties and supersedes any prior understandings or written or oral agreements respecting the Agreement’s subject matter. Article 28. Successors and Assigns The State and the Local Government each binds itself, its successors, executors, assigns, and administrators to the other party to this agreement and to the successors, executors, assigns, and administrators of such other party in respect to all covenants of this agreement. The Local Government may assign its interests under the Agreement only with the written approval of the State. Article 29. Remedies The Agreement shall not be considered as specifying an exclusive remedy for a breach of the Agreement. All remedies existing at law or in equity are available to either Party and are cumulative. Article 30. Legal Construction If a provision of the Agreement shall be held invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other provision, and the Agreement shall be construed as if it did not contain the invalid, illegal or unenforceable provision. Article 31. Signatory Warranty The signatories to this agreement warrant that each has the authority to enter into this agreement on behalf of the party they represent. Item 5b CSJ: 1315-01-027 Project: FM 1385 Limits: at Gee Road District: 18-Dallas Code Chart #: 34150 Funding Category: RTR SH 121 Subaccount RTR On System Page 9 of 9 Revised 4/24/2013 IN WITNESS WHEREOF, THE STATE AND THE LOCAL GOVERNMENT have executed duplicate counterparts to effectuate this Agreement. THE STATE OF TEXAS Executed for the Executive Director and approved for the Texas Transportation Commission for the purpose and effect of activating and/or carrying out the orders, established policies or work programs heretofore approved and authorized by the Texas Transportation Commission. By: __ Kenneth Stewart Director of Contract Services Texas Department of Transportation Date: _______________________________ THE LOCAL GOVERNMENT – TOWN OF PROSPER By: _________________________________ Harlan Jefferson Town Manager Date: __________________________ Item 5b CSJ: 1315-01-027 Project: FM 1385 Limits: at Gee Road District: 18-Dallas Code Chart #: 34150 Funding Category: RTR SH 121 Subaccount RTR On System Page 1 of 1 Attachment A ATTACHMENT A Payment Provisions and Work Responsibilities For CSJ#: 1315-01-027, the State will pay $1,000,000 from the SH 121 Subaccount to the Local Government for the construction of the realignment and intersection improvements on FM 1385 at Gee Road in the Town of Prosper, Denton County. In accordance with the allocation of funds approved by the RTC, and concurred with by the Texas Transportation Commission, the State will make the payments for the following work in the following Fiscal Years: PROJECT COSTS Description Fiscal Year Total Estimate Cost Regional Toll Revenue (RTR) SH 121 Subaccount Funds Participation Local Government Participation Construction (Local) 2017 $1,250,000 $1,000,000 $250,000 TOTAL $1,250,000 $1,000,000 $250,000 The Local Government required match is $250,000. Upon completion of the Project, the Local Government will issue a signed "Notification of Completion" document to the State. The notice shall certify that the Project has been completed, all necessary inspections have been conducted, and the Project is open to traffic. Item 5b Page 1 of 2 To: Mayor and Town Council From: Kelly Neal, Finance Director Through: Harlan Jefferson, Town Manager Re: Town Council Meeting – March 13, 2018 Agenda Item: Consider and act upon an ordinance approving a tariff authorizing an annual rate review (RRM) mechanism settlement between the Atmos Cities Steering Committee and Atmos Energy Corporation regarding the Company’s 2017 rates set by the settlement as a substitution for the annual interim rate adjustment process defined by section 104.301 of the Texas Utilities Code. Description of Agenda Item: The Town of Prosper, along with 171 other Mid-Texas municipalities served by Atmos Energy Corp., Mid-Tex Division (“Atmos Mid-Tex” or “Company”), is a member of the Atmos Cities Steering Committee (“ACSC”). In 2007, the Cities and Atmos Mid-Tex settled a rate application filed by the Company pursuant to Section 104.301 of the Texas Utilities Code for an interim rate adjustment commonly referred to as a GRIP filing (arising out of the Gas Reliability Infrastructure Program legislation). That settlement created a substitute rate review process, referred to as Rate Review Mechanism (“RRM”), as a substitute for future filings under the GRIP statute. Since 2007, there have been several modifications to the original RRM Tariff. The Ordinance that resolved the Company’s application under the RRM Tariff in 2017 also terminated the existing RRM Tariff and required a renegotiation of the terms of that tariff. Negotiations have taken place over the past several months, and have resulted in a revised RRM Tariff that has been agreed to by the Company. The Cities’ Executive Committee has recommended acceptance of the revised RRM Tariff, which is attached to the Ordinance. Cities strongly opposed the GRIP process because it constitutes piecemeal ratemaking by ignoring declining expenses and increasing revenues and rewarding the Company for increasing capital investment. The GRIP process does not allow any review of the reasonableness of capital investment and does not allow cities to participate in the Railroad Commission’s review of annual GRIP filings or recover their rate case expenses. The Railroad Commission undertakes a mere administrative review of GRIP filings (instead of a full hearing) and rate increases go into effect without any material adjustments. In the Steering Committee’s view, the GRIP process unfairly raises customers’ rates without any regulatory oversight. In contrast, the RRM process has allowed for a more comprehensive rate review and annual evaluation of expenses and revenues, as well as capital investment. The RRM Tariff on which the 2017 rates were based allowed a rate of return on equity of 10.50%. The revised RRM Tariff reduces that to 9.8%. The revised RRM Tariff also captures the reduction in federal income tax rates from 35% to 21%, and should result in a rate reduction effective by mid-March, 2018. Prior RRM tariffs allowed Cities only three months to review the Company’s Prosper is a place where everyone matters. FINANCE Item 5c Page 2 of 2 filing. The new revised Tariff expands that time period by two months. New applications by the Company should be made on or about April 1 of each year, with new rates effective October 1. A rate order from the Railroad Commission in an Atmos Texas Pipeline rate case adopted the position of Cities with regard to incentive compensation related to Atmos’ Shared Services Unit that reduced allowed expenses, and that reduced level of expenses will be applicable under the new RRM Tariff. Legal Obligations and Review: Geoffrey M. Gay, ACSC ‘s general council prepared the attached Ordinance and Exhibit A. Terrence Welch of Brown & Hofmeister, L.L.P., has reviewed the ordinance as to form and legality. Attached Documents: 1. Ordinance 2. Exhibit A – RRM Rate Review Mechanism Town Staff Recommendation: Town staff recommends approval of the ordinance approving a tariff authorizing an annual rate review (RRM) mechanism settlement between the Atmos Cities Steering Committee and Atmos Energy Corporation regarding the Company’s 2017 rates set by the settlement as a substitution for the annual interim rate adjustment process defined by section 104.301 of the Texas Utilities Code. Recommended Motion: I move to approve the ordinance authorizing an annual rate review (RRM) mechanism settlement between the Atmos Cities Steering Committee and Atmos Energy Corporation regarding the Company’s 2017 rates set by the settlement as a substitution for the annual interim rate adjustment process defined by section 104.301 of the Texas Utilities Code. Item 5c TOWN OF PROSPER, TEXAS ORDINANCE NO. 18-__ AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, APPROVING A TARIFF AUTHORIZING AN ANNUAL RATE REVIEW MECHANISM (“RRM”) AS A SUBSTITUTION FOR THE ANNUAL INTERIM RATE ADJUSTMENT PROCESS DEFINED BY SECTION 104.301 OF THE TEXAS UTILITIES CODE, AND AS NEGOTIATED BETWEEN ATMOS ENERGY CORP., MID-TEX DIVISION (“ATMOS MID-TEX” OR “COMPANY”) AND THE STEERING COMMITTEE OF CITIES SERVED BY ATMOS; REQUIRING THE COMPANY TO REIMBURSE CITIES’ REASONABLE RATEMAKING EXPENSES; ADOPTING A SAVINGS CLAUSE; DETERMINING THAT THIS ORDINANCE WAS PASSED IN ACCORDANCE WITH THE REQUIREMENTS OF THE OPEN MEETINGS ACT; DECLARING AN EFFECTIVE DATE; AND REQUIRING DELIVERY OF THIS ORDINANCE TO THE COMPANY AND LEGAL COUNSEL FOR THE STEERING COMMITTEE. WHEREAS, the Town of Prosper, Texas (“Town”), is a gas utility customer of Atmos Energy Corp., Mid-Tex Division (“Atmos Mid-Tex” or “Company”), and a regulatory authority with an interest in the rates and charges of Atmos Mid -Tex; and WHEREAS, the Town and similarly-situated Mid-Tex municipalities created the Steering Committee of Cities Served by Atmos to efficiently address all rate and service matters associated with delivery of natural gas; and WHEREAS, the Steering Committee formed an Executive Committee to direct legal counsel and to recommend certain specific actions to all aligned Mid-Tex Cities through resolution or ordinance; and WHEREAS, pursuant to the terms of a November 2007 agreement between the Steering Committee and Atmos Mid-Tex that settled the Company’s interim rate filing under Section 104.301 of the Texas Utilities Code (a “GRIP” rate case), the Steering Committee and the Company collaboratively developed a Rate Review Mechanism (“RRM”) Tariff, ultimately authorized by the Town in 2008, that allows for an expedited rate review process as a substitute for the GRIP process; and WHEREAS, the Town has kept some form of a RRM Tariff in place until 2017 when it adopted an ordinance approving an RRM Tariff filing settlement and specifically calling for termination of the existing RRM Tariff and negotiation of a replacement RRM Tariff following the Railroad Commission’s decision in a then-pending Atmos Texas Pipeline case (GUD No. 10580); and WHEREAS, the Steering Committee’s Executive Committee has recently approved a settlement with the Company on the attached RRM Tariff, attached hereto as Exhibit A and incorporated by reference, that contains certain notable improvements, from a consumer perspective, over the prior RRM Tariff, including a reduced rate of return on equity, acceptance of certain expense adjustments made by the Railroad Commission in the Order in GUD No. 10580, and the addition of two months to the time for processing a RRM Tariff application; and WHEREAS, the RRM Tariff contemplates reimbursement of Cities’ reasonable expenses associated with RRM Tariff applications; and Item 5c Ordinance No. 18-__, Page 2 WHEREAS, the Steering Committee’s Executive Committee recommends that all Steering Committee member cities adopt this ordinance and the attached RRM Tariff; and WHEREAS, the attached RRM Tariff is just, reasonable and in the public interest. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, THAT: SECTION 1 All of the above premises are hereby found to be true and correct legislative and factual findings of the Town of Prosper and they are hereby approved and incorporated into the body of this Ordinance as if copied in their entirety. SECTION 2 The attached RRM Tariff re-establishing a form of Rate Review Mechanism is just and reasonable and in the public interest, and is hereby adopted. SECTION 3 Atmos Mid-Tex shall reimburse the Cities’ reasonable expenses associated with adoption of this Ordinance and the attached RRM Tariff and in processing future RRM Tariff applications filed pursuant to the attached tariff. SECTION 4 To the extent any resolution or ordinance previously adopted by the Town is inconsistent with this Ordinance, it is hereby repealed. SECTION 5 The meeting at which this Ordinance was approved was in all things conducted in strict compliance with the Texas Open Meetings Act, Texas Government Code, Chapter 551. SECTION 6 If any one or more sections or clauses of this Ordinance is adjudged to be unconstitutional or invalid, such judgment shall not affect, impair or invalidate the remaining provisions of this Ordinance, and the remaining provisions of this Ordinance shall be interpreted as if the offending section or clause never existed. SECTION 7 This Ordinance shall become effective from and after its passage. SECTION 8 A copy of this Ordinance shall be sent to Atmos Mid-Tex, care of Chris Felan, Vice President of Rates and Regulatory Affairs, Atmos Energy Corporation, Mid-Tex Division, 5420 LBJ Freeway, Suite 1862, Dallas, Texas 75240, and to Geoffrey Gay, General Counsel to Mid- Item 5c Ordinance No. 18-__, Page 3 Tex Cities, at Lloyd Gosselink Rochelle & Townsend, P.C., 816 Congress Avenue, Suite 1900, Austin, Texas 78701. PASSED AND APPROVED by the Town Council of the Town of Prosper, Texas, on this the 13th day of March, 2018. APPROVED: ___________________________________ Ray Smith, Mayor ATTEST: _______________________________ Robyn Battle, Town Secretary APPROVED AS TO FORM: _______________________________ Terrence S. Welch, Town Attorney Item 5c ATMOS ENERGY CORPORATION MID-TEX DIVISION RATE SCHEDULE: RRM – Rate Review Mechanism APPLICABLE TO: ALL CITIES IN THE MID-TEX DIVISION AS IDENTIFIED IN EXHIBIT A TO THIS RATE SCHEDULE EFFECTIVE DATE:Bills Rendered on and after 04/01/2018 PAGE: 7 Exhibit A ACSC Cities Abilene Cleburne Frost Lincoln Park Addison Clyde Gainesville Little Elm Albany College Station Garland Lorena Allen Colleyville Garrett Madisonville Alvarado Colorado City Grand Prairie Malakoff Angus Comanche Grapevine Mansfield Anna Commerce Groesbeck Mckinney Argyle Coolidge Gunter Melissa Arlington Coppell Haltom City Mesquite Aubrey Copperas Cove Harker Heights Midlothian Azle Corinth Haskell Murphy Bedford Crandall Haslet Newark Bellmead Crowley Hewitt Nocona Benbrook Dalworthington Gardens Highland Park North Richland Hills Beverly Hills Denison Highland Village Northlake Blossom Denton Honey Grove Oak Leaf Blue Ridge Desoto Hurst Ovilla Bowie Draper Hutto Palestine Boyd Duncanville Iowa Park Pantego Bridgeport Eastland Irving Paris Brownwood Edgecliff Village Justin Parker Buffalo Emory Kaufman Pecan Hill Burkburnett Ennis Keene Petrolia Burleson Euless Keller Plano Caddo Mills Everman Kemp Ponder Canton Fairview Kennedale Pottsboro Carrollton Farmers Branch Kerens Prosper Cedar Hill Farmersville Kerrville Quitman Celeste Fate Killeen Red Oak Celina Flower Mound Krum Reno (Parker County) Centerville Forest Hill Lake Worth Rhome Cisco Forney Lakeside Richardson Clarksville Fort Worth Lancaster Richland Frisco Lewisville Richland Hills Item 5c ATMOS ENERGY CORPORATION MID-TEX DIVISION RATE SCHEDULE: RRM – Rate Review Mechanism APPLICABLE TO: ALL CITIES IN THE MID-TEX DIVISION AS IDENTIFIED IN EXHIBIT A TO THIS RATE SCHEDULE EFFECTIVE DATE:Bills Rendered on and after 04/01/2018 PAGE: 8 River Oaks Temple Roanoke Terrell Robinson The Colony Rockwall Trophy Club Roscoe Tyler Rowlett University Park Royse City Venus Sachse Vernon Saginaw Waco Sansom Park Watauga Seagoville Waxahachie Sherman Westlake Snyder Westover Hills Southlake Westworth Village Springtown White Settlement Stamford Whitesboro Stephenville Wichita Falls Sulphur Springs Woodway Sweetwater Wylie Item 5c Page 1 of 2 To: Mayor and Town Council From: Frank E. Jaromin, P.E., Director of Public Works Through: Harlan Jefferson, Town Manager Re: Town Council Meeting – March 13, 2018 Agenda Item: Consider and act upon ratifying an expenditure to Barbosa A. Construction, Inc., related to emergency construction services for the Parvin Road Culvert Reconstruction project; and authorizing the Town Manager to execute a construction agreement for same. Description of Agenda Item: Due to heavy precipitation on February 19, 2018, the triple culverts located on Parvin Road, west of Legacy Road, were compromised. Severe erosion around and under the culverts initiated a road closure by Public Works staff. The timeliness of reopening of Parvin Road is essential for access to the surrounding property owners, Prosper Independent School District and emergency responders. Good Hope is currently under construction to address the issues with it being a low water crossing, and Parvin Road, west of Good Hope, often floods during heavy rain events, leaving Parvin Road the sole access between Legacy Road, Smiley Road and Good Hope Road. The scope of this contract includes removal and replacement of 3 seventy-two inch (72”) corrugated metal pipes, installation of rock rip rap and replacing four inches (4”) of road base. The Engineers Estimate is $73,850.00, which is $14,934.40 over low bidder. The bid totals from the three bidders ranged between $58,915.60 and $79,915.20, with Barbosa A. Construction, Inc., being the lowest qualified bidder. Barbosa A. Construction, Inc., has successfully completed multiple utility projects in Prosper. Public Works began accepting bids on the Parvin Road Culvert Reconstruction on February 2, 2018. Repairs are anticipated to begin March 26, 2018, and the expected completion and reopen date is April 2, 2018. The project consists of furnishing all labor, equipment and materials, and performing all work necessary for the emergency replacement of the Parvin Road culverts. Budget Impact: This project will be funded from 100-5480-50-01 Streets Contract Services. The proposed construction cost of $58,915.60 is available in account 100-5480-50-01 due to cost savings in the amount of $328,769.00, from Bid No. 2018-39-B DNT Reconstruction project. $28,199.60 of the savings is being used for the Frontier Parkway Reconstruction project also on this agenda. Once this project is approved, the remaining cost savings from the DNT Reconstruction project will be reduced from $329,768.00 to $242,652.80. Prosper is a place where everyone matters. PUBLIC WORKS Item 5d Page 2 of 2 Legal Obligations and Review: Terrence Welch of Brown & Hofmeister, L.L.P., has approved the process under “Emergency” provisions within the Local Government Code. Attached Documents: 1.Location Map 2.Bid Proposal Town Staff Recommendation: Town staff recommends that the Town Council ratify an expenditure to Barbosa A. Construction, Inc., related to emergency construction services for the Parvin Road Culvert Reconstruction project; and authorize the Town Manager to execute a construction agreement for same. Proposed Motion: I move to ratify an expenditure to Barbosa A. Construction, Inc., related to emergency construction services for the Parvin Road Culvert Reconstruction project; and authorize the Town Manager to execute a construction agreement for same. Item 5d Parvin Road Repair polygonLayer Override 1 Lift Stations Wastewater Connections Wastewater Manholes Clean Outs Wastewater Force Mains Wastewater Gravity Mains Bridges Prosper City Limits March 1, 2018 0 0.025 0.050.0125 mi 0 0.045 0.090.0225 km 1:1,731 Item 5d Item 5d Page 1 of 1 To: Mayor and Town Council From: Alex Glushko, AICP, Planning Manager Through: Harlan Jefferson, Town Manager Re: Town Council Meeting – March 13, 2018 Agenda Item: Conduct a Public Hearing, and consider and act upon a request for a Specific Use Permit (SUP) for a Utility Distribution/Transmission Facility (Brazos Electric), on 8.9± acres located on the east side of FM 1385, 2,700± feet south of Parvin Road. The property is zoned Agriculture (A). (S17- 0004). Description of Agenda Item: The applicant has requested this item be tabled and the Public Hearing continued to the March 27, 2018, Town Council meeting, as outlined in the attached letter. Town Staff Recommendation: Town staff recommends this item be tabled and the Public Hearing continued to the March 27, 2018, Town Council meeting. Proposed Motion: I move to table this item and continue the Public Hearing to the March 27, 2018, Town Council meeting. Prosper is a place where everyone matters. PLANNING Item 7 kimley-horn.com 13455 Noel Road, Two Galleria Office Tower, Suite 700, Dallas, TX 972 770 1300 March 1, 2018 Town of Prosper Development Services Department Planning Division P.O. Box 307 Prosper, Texas 75078 RE:Table Letter S17-0004 Brazos Electric Parvin Substation Planning Division: As the representative of the Zoning Case, S17-0004, Specific Use Permit for Brazos Electric Parvin Substation Addition, Block A, Lot 1, Kimley-Horn and Associates, Inc. would like to request to Table the Town Council Public Hearing scheduled for March 13, 2018 to the next hearing on March 27, 2018. Sincerely, KIMLEY-HORN AND ASSOCIATES, INC. Shay Geach, P.E. Item 7 Page 1 of 2 On To: Mayor and Town Council From: Alex Glushko, AICP, Planning Manager Through: Harlan Jefferson, Town Manager Re: Town Council Meeting – March 13, 2018 Agenda Item: Conduct a Public Hearing, and consider and act upon a request for a Variance to the Sign Ordinance, regarding construction screening, for Windsong Ranch Crystal Lagoon, located on the northeast corner of Windsong Parkway and Pepper Grass Lane. (V18-0002). Description of Agenda Item: This request is for a Variance to the Sign Ordinance to allow for an alternate construction screening for the Windsong Ranch ‘Crystal Lagoon’ amenity. On January 23, 2018, the Town Council approved an amendment to Planned Development-40 (PD-40) regarding the proposed lagoon. Construction screening is a commonly used on a voluntary basis by developers to shield the visual impact during the construction process, as well as a means of keeping individuals off of a construction site. Typical construction screening is a black mesh material adhered to a fence, as shown on the picture below. The developer of the Crystal Lagoon is proposing mesh construction screening which includes digitally printed pictures and renderings of the proposed project, along with signage related to the development. The Town’s Sign Ordinance currently does not address this type of signage; therefore the proposed construction screening signage cannot be permitted, and the applicant is Prosper is a place where everyone matters. PLANNING Item 8 Page 2 of 2 requesting Council consider a Variance to allow for the proposed construction screening signage shown below. The applicant is proposing four-foot (4’) by twelve-foot (12’) screens for a length no greater than 1,600 feet along the south side of the construction site, along Pepper Grass Lane. The Sign Ordinance contains five criteria to be considered in determining the validity of a sign variance request. The applicant has provided a response letter addressing these criteria. 1.The literal enforcement of the sign regulations will create an unnecessary hardship or a practical difficulty on the applicant; 2.The proposed sign shall not adversely impact and will be wholly compatible with the use and permitted development of the adjacent property (visibility, size, etc.); 3.The proposed sign shall be of a unique design or configuration; 4.The special exception is needed due to a hardship caused by restricted area, shape, topography, or physical features that are unique to the property or structure on which the proposed sign would be erected, and such hardship is not self-imposed; and 5.The special exception will substantially improve the public convenience and welfare and does not violate the intent of this Ordinance. Staff believes that this request is in harmony with the intent of the Sign Ordinance, is reasonable, and that the criteria for variance approval has been satisfied. Legal Obligations and Review: Notification was provided to neighboring property owners as required by the Sign Ordinance. To date, no Public Hearing Notice Reply Forms have been received. Attached Documents: 1.Location map 2.Sign Variance exhibits 3.Request letter Staff Recommendation: Staff recommends the Town Council approve the Variance request. Proposed Motion: I move to approve a Variance to the Sign Ordinance, regarding construction screening, for Windsong Ranch Crystal Lagoon, located on the northeast corner of Windsong Parkway and Pepper Grass Lane. Item 8 V18-0002 BRAZORIA DRGOOD HOPE RDDEWBERRY LN WINDSONG PKWYPEPPER GRASS LN WOODBINE LN BLUE SAGE DR ASH CREEK DRBELLARDIA DRESPERANZA DRMUELLER LN LIBERTY DR WISTERIA LNHONEYVINE LN COTTON BELT LN PROVIDENCE DRMILL BRANCH DR JASMINE WAY CORLEY DRMANDELL LN±0 180 360 54090Feet Item 8 Sign Location 3’ setb a c k 3’ setback 3’ setback Approximately 1600 feet attached to existing fencing Banner may not extend the full 1600 depending on budget for signage Item 8 4’12’4’12’4’ x 12’ Mesh Banner to be attached to existing poles15222 KING RD. #901 FRISCO, TX 75034 469-777-3052 DR-SIGNS.NETItem 8 4’ x 12’ Mesh Banner to be attached to existing poles15222 KING RD. #901 FRISCO, TX 75034 469-777-3052 DR-SIGNS.NETItem 8 January 5, 2018 (original) February 27, 2018 (revision) PROJECT LOCATION: WINDSONG RANCH, PROSPER, TEXAS We are seeking permission to attach a digitally printed mesh banner to the poles and chain-link sections of a construction fence. Construction fences are typically covered in black mesh to prevent vision of the construction process. We would like to use a digitally printed mesh banner in place of the black mesh to provide project information while preserving the aesthetic appeal of Windsong Ranch. The literal enforcement of the sign regulation would make the digital banner impossible to permit. It is our position that this digital banner would substantially add to the overall aesthetics of the community in that citizens would not have to look at a construction site through a chain link construction fence or look upon a fence with plain black mesh. The digitally printed banners are 4 feet tall by 12 feet wide and would be attached to a chain link construction fence along Peppergrass Lane. The total length of the fence will be approximately 1600 feet. The banners will have approximately a 4-inch gap between each. The exact number of 12 foot banners depends on budget. The banners would replace unsightly black mesh banners and there would be nothing extra placed on the chain link construction fence. The banners will continue with the same high-quality branding standards set forth by the Windsong Ranch community, thus there will be no adverse impact visually. A special exception is needed due to a hardship caused by a restricted construction area. The amenity being created and built on this site is a 5-acre crystal clear lagoon (THE LAGOON), thus the topography and physical features are unique. The digital banners will assist in maintaining Windsong Ranch’s quality physical appearance, while providing a safety screen for residents and the public that will be more visually appealing. The Lagoon worksite is nearly 1500 feet in length so it is important to note that the digital banner will greatly assist with the street scene view for the public, residents and homeowners who reside directly across the street from the site. Sincerely, Daniel Zarate daniel@dr-signs.net Item 8 Page 1 of 2 To: Mayor and Town Council From: Alex Glushko, AICP, Planning Manager Through: Harlan Jefferson, Town Manager Re: Town Council Meeting – March 13, 2018 Agenda Item: Conduct a Public Hearing, and consider and act upon an ordinance for a Special Purpose Sign District for Westfork Crossing, located on the northwest corner of US 380 and Gee Road. (MD18-0001). Description of Agenda Item: As defined in the Sign Ordinance, a Special Purpose Sign District (SPSD) is an overlay district that allows an applicant the option of designating an area where signs may deviate from the underlying sign code regulations. Town Council has the authority to approve, conditionally approve, or deny requests for Special Purpose Sign Districts. The purpose of this request is to establish the location and style of monument and unified development signs within the Westfork Crossing development. In addition, the applicant is only seeking one (1) deviation to the standards of the Sign Ordinance, which is to eliminate the one- foot (1’) setback required for the three (3) proposed unified development signs along US 380. The purpose of the request is to create less of an encroachment into the City of Irving’s waterline easement. The proposed unified development signs are 10 feet (10’) in width, and Irving generally allows a ten-foot (10’) encroachment for such signage. For comparison purposes, the three (3) unified development signs within the Windsong Ranch Marketplace development, located adjacent to the east, received SPSD approval to encroach into the one- foot (1’) setback for the same purpose. The applicant is proposing a total of four (4) unified development signs and seven (7) monument signs. The signs meet all the spacing requirements of the Sign Ordinance and are constructed of stone, which are intended to match future buildings. Staff believes the request is reasonable given the restrictions of the City of Irving waterline easement and recommends approval of the request as submitted. Legal Obligations and Review: Notification was provided to neighboring property owners as required by the Sign Ordinance. Town staff has not received any Public Hearing Notice Reply Forms. Town Attorney, Terrence Welch of Brown & Hofmeister, L.L.P., has approved the standard ordinance as to form and legality. Prosper is a place where everyone matters. PLANNING Item 9 Page 2 of 2 Attachments: 1.Aerial Map 2.Proposed Ordinance 3.SPSD Exhibits Town Staff Recommendation: Town staff recommends approval of the request. Proposed Motion: I move to approve an ordinance for a Special Purpose Sign District for Westfork Crossing, located on the northwest corner of US 380 and Gee Road. Item 9 UNIVERSITY DR FISHTRAP RD WINDSONG PKWYFM 423 ACACIA P K W Y LAN C A S H I R E L N BRISTLELE A F L N AUTUMN S A G E D R ROCKROSE DRRED FOX DRDOE CREEK RDAGAVE DR CROSSVI N E D R DESERT WI L L O W D R HOLLYHOCK RDCRESTW O O D D R GRAY WOLF DREXETER D R LOCKWOOD DR OAKBROOK STYELLOWCRESS DRWESTMORELAND DRCASSIANO LNBLUE QU A I L D R EVENING STAR RD MANITO U D R DOLOROSA L N ANGELINA LNMILBY DR BLUESTEM DRCORALBEAD RD PER E G R I N E L N HYER CIR COTTONROSE LNGEE RDMD18-0001 ±0 360 720 1,080180Feet Item 9 TOWN OF PROSPER, TEXAS ORDINANCE NO. 18-__ AN ORDINANCE OF THE TOWN OF PROSPER, TEXAS, ADOPTING AND APPROVING A SPECIAL PURPOSE SIGN DISTRICT, PURSUANT TO SECTION 3.14.012 OF THE TOWN’S CODE OF ORDINANCES, AS AMENDED, FOR 97.452 ACRES OF LAND, MORE OR LESS, COMMONLY KNOWN AS WESTFORK CROSSING; MAKING FINDINGS; PROVIDING FOR A PENALTY FOR THE VIOLATION OF THIS ORDINANCE; PROVIDING FOR REPEALING, SAVING AND SEVERABILITY CLAUSES; PROVIDING FOR AN EFFECTIVE DATE OF THIS ORDINANCE; AND PROVIDING FOR THE PUBLICATION OF THE CAPTION HEREOF. WHEREAS, Section 3.14.012 of the Town’s Code of Ordinances, as amended, provides for the approval by the Town Council of the Town of Prosper, Texas (the “Town Council”), of a special district that exclusively addresses sign regulations; and WHEREAS, the special district, if approved by the Town Council, is designated a Special Purpose Sign District (“SPSD”), and in general, the purposes of an SPSD are to (1) promote consistency among signs within a development, thus creating visual harmony between signs, buildings, and other components of the property; (2) enhance the compatibility of signs with the architectural and site design features within a development; (3) encourage signage that is in character with planned and existing uses, thus creating a unique sense of place; and (4) encourage multi-tenant commercial uses to develop a unique set of sign regulations in conjunction with development standards; and WHEREAS, an application has been submitted to the Town for a SPSD for 97.452 acres of land, more or less (“the Property”), commonly known as Westfork Crossing, generally located on the northwest corner of US Highway 380 and Gee Road in the Town; and WHEREAS, all legal notices required for the creation of the proposed SPSD have been given in the manner and form set forth by law, and public hearings have been held on the proposed SPSD and all other requirements of notice and completion of such SPSD procedures have been fulfilled; and WHEREAS, the Town Council has further investigated and determined that it will be advantageous and beneficial to Prosper and its inhabitants to adopt a SPSD on the aforementioned property, subject to the terms and conditions as set forth herein. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, THAT: SECTION 1 The findings set forth above are incorporated into the body of this Ordinance as if fully set forth herein. SECTION 2 There is hereby created and approved a Special Purpose Sign District on the Property. All signage on the Property, more particularly described in Exhibit A, attached hereto and incorporated herein for all purposes as if set forth verbatim, shall be subject to the Statement of Item 9 Ordinance No. 18-__, Page 2 Intent and Purpose, attached hereto as Exhibit B and incorporated by reference, the Sign Coordination Plan, attached hereto as Exhibit C and incorporated by reference, the detailed elevations, attached hereto as Exhibit D, the Sign Schedule, attached hereto as Exhibit E and incorporated by reference. Any signage not specifically addressed in the attachments to this Special Purpose Sign District Ordinance shall comply with the Town’s Sign Ordinance, contained in Article 3.14, “Signs,” of Chapter 3, “Building Regulations,” of the Town’s Code of Ordinances, as amended. SECTION 3 No developer or property owner shall acquire any vested interest in this Ordinance or in any other specific regulations contained herein. Any portion of this Ordinance may be repealed by the Town Council in the manner provided for by law. SECTION 4 It shall be unlawful for any person, firm or corporation to make use of said premises in some manner other than as authorized by this Ordinance, and shall be unlawful for any person, firm or corporation to construct on said premises any signage that is not in conformity with this Ordinance. SECTION 5 Any person, firm, corporation or business entity violating this Ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined any sum not exceeding Five Hundred ($500.00). Each continuing day’s violation under this Ordinance shall constitute a separate offense. The penal provisions imposed under this Ordinance shall not preclude the Town from filing suit to enjoin the violation. The Town retains all legal rights and remedies available to it pursuant to local, state and federal law. SECTION 6 Should any section, subsection, sentence, clause or phrase of this Ordinance be declared unconstitutional or invalid by a court of competent jurisdiction, it is expressly provided that any and all remaining portions of this Ordinance shall remain in full force and effect. Prosper hereby declares that it would have passed this Ordinance, and each section, subsection, clause or phrase thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional or invalid. SECTION 7 All provisions of any ordinance in conflict with this Ordinance are hereby repealed to the extent they are in conflict; but such repeal shall not abate any pending prosecution for violation of the repealed ordinance, nor shall the appeal prevent a prosecution from being commenced for any violation if occurring prior to the repealing of the ordinance. Any remaining portions of said ordinances shall remain in full force and effect. SECTION 8 This Ordinance shall become effective from and after its adoption and publication as required by law. Item 9 Ordinance No. 18-__, Page 3 DULY PASSED, APPROVED, AND ADOPTED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, ON THIS 13TH DAY OF MARCH, 2018. ___________________________________ Ray Smith, Mayor ATTEST: _________________________________ Robyn Battle, Town Secretary APPROVED AS TO FORM AND LEGALITY: _________________________________ Terrence S. Welch, Town Attorney Item 9 EXHIBIT AItem 9 EXHIBIT AItem 9 EXHIBIT B – STATEMENT OF INTENT AND PURPOSE On behalf of UCD Real Estate, Comet Signs is requesting approval of a Special Purpose Sign District for the property located at 4650 West University Drive. This Special Purpose Sign District will address the free-standing signage along West University Drive and Gee Road, to allow tenants to be located on the four (4) signs not located on specific lots. All or any future submissions for signage at this property will follow the standard sign ordinance of the Town of Prosper. We are requesting a special purpose sign district to allow the construction of three (3) unified type pylon displays, located on West University, west of Gee Rd. The UD signs on West University will be 20’ OAH and located on the property line. In addition, we are requesting for six (6) tenant monuments, 6’ OAH, which will be located 1’ from the property line. The requested signage was designed to provide minimum yet adequate visibility from West University Drive, and Gee Road, providing much needed business identity while maintaining a unified visual harmony throughout the center. We appreciate your consideration in this matter. Thank you, Tommy Reynolds Comet Signs 214-957-7858 Item 9 Revisions © 2017 Comet Signs Job Name: Notes: Proposal Drawing Final Drawing Client: UCD Location: Salesperson: Tommy R. Prj. Mngr.: Michelle C. Date: 1/31/18 Designer: Kimberly P. File Name: Exhibit B Sign Coordination Plan.cdr Proposal #: 33553 Job #: n/a NWC SITE PLAN THIS DRAWING IS THE EXCLUSIVE PROPERTYOF COMETSIGNS, LLC. ANYUSE OR REPRODUCTION OF THIS DRAWING WITHOUT WRITTEN AUTHORIZATION FROM COMET SIGNS, LLC. IS STRICTLY PROHIBITED. OWNERSHIPAND COPYRIGHT IS RETAINED IN ACCORDANCE WITH U.S. AND INTERNATIONAL TRADEMARK / COPYRIGHT LAWS. License #: 18010 Page: of 11 Exhibit C © 2017 Comet Signs • ALL PYLON SIGNS ON US 380 TO HAVE A 0’ SETBACK FROM THE PROPERTY LINE. • ALL MONUMENT SIGNS ON US380TO HAVE A 1’ SETBACK FROM THE PROPERTY LINE. SITE PLAN SCALE: 1” = 200’-0” M2 M5 M1 M3 UD4 UD1 M4 UD3 2240’2240’2240’798’798’798’371’371’371’263’263’263’220’220’220’129’129’129’143’143’143’ 137’137’137’506’506’506’215’215’215’400’400’400’ 0’ SETBACK0’ SETBACK0’ SETBACK 0’ SETBACK0’ SETBACK0’ SETBACK 15’ SETBACK15’ SETBACK15’ SETBACK 1’ SETBACK1’ SETBACK1’ SETBACK 1’ SETBACK1’ SETBACK1’ SETBACK 1’ SETBACK1’ SETBACK1’ SETBACK 1’ SETBACK1’ SETBACK1’ SETBACK 1’ SETBACK1’ SETBACK1’ SETBACK 872’872’872’750’750’750’ 163’163’163’ UD2 0’ SETBACK0’ SETBACK0’ SETBACK M6 1’ SETBACK1’ SETBACK1’ SETBACK M7 15’ SETBACK15’ SETBACK15’ SETBACK 220’220’220’75’75’75’ 1 2 3 4 5 FUTURE FUTURE F D E C B 1 2 3 G TENANTS A TENANTS 1 2 3 4 5 G TENANTS F E D C B A G1234 5 6 © 2017 Comet Signs THIS UDZ CONSISTS OF 14 LOTS. INCLUDING THE RACETRAC MONUMENTS,THIS UDZ CONSISTS OF 14 LOTS. INCLUDING THE RACETRAC MONUMENTS,THIS DEVELOPMENT WILL CONTAIN 13 SIGNS. NO MORE THAN ONETHIS DEVELOPMENT WILL CONTAIN 13 SIGNS. NO MORE THAN ONE ADDITIONAL SIGN WILL BE ALLOWED WITHOUT REVISING THE SPSD.ADDITIONAL SIGN WILL BE ALLOWED WITHOUT REVISING THE SPSD. THIS UDZ CONSISTS OF 14 LOTS. INCLUDING THE RACETRAC MONUMENTS,THIS DEVELOPMENT WILL CONTAIN 13 SIGNS. NO MORE THAN ONE ADDITIONAL SIGN WILL BE ALLOWED WITHOUT REVISING THE SPSD. M7 COMPLIESM7 COMPLIES WITH THE SIGNWITH THE SIGN ORDINANCE AS IS.ORDINANCE AS IS. M7 COMPLIES WITH THE SIGN ORDINANCE AS IS. UD4 COMPLIESUD4 COMPLIES WITH THE SIGNWITH THE SIGN ORDINANCE AS IS.ORDINANCE AS IS. UD4 COMPLIES WITH THE SIGN ORDINANCE AS IS. RACETRAC SIGNS Item 9 Revisions © 2017 Comet Signs Job Name: Notes: R1/2-27-18/MP:Cabinet Sq. Ft. Chng Proposal Drawing Final Drawing Client: UCD Location: Salesperson: Tommy R. Prj. Mngr.: Michelle C. Date: 1/31/18 Designer: Kimberly P. File Name: Exhibit C R1 Elevations/Sign Details.cdr Proposal #: 33553 Job #: n/a THIS DRAWING IS THE EXCLUSIVE PROPERTYOF COMETSIGNS, LLC. ANYUSE OR REPRODUCTION OF THIS DRAWING WITHOUT WRITTEN AUTHORIZATION FROM COMET SIGNS, LLC. IS STRICTLY PROHIBITED. OWNERSHIPAND COPYRIGHT IS RETAINED IN ACCORDANCE WITH U.S. AND INTERNATIONAL TRADEMARK / COPYRIGHT LAWS. License #: 18010 Page: of 4 D/F MONUMENT SIGN 1/4”=1’-0” 54 SQ. FT. TOTAL STRUCTURE 9’-0” (W) x 1’-10” (L) x 5” DEEP CONCRETE SLAB FOR MASONRY. STREET MATTHEWS SATIN BLACK 5.56” DIA. STEEL PIPE @ .258 WALL. 1’-6” DIA. CONCRETE PIER, 3’-0” DEEP. *EXACT STEEL SUPPORT & FOUNDATION SIZES TO BE CONFIRMED BY ENGINEER. ELECTRICALELECTRICALELECTRICAL •3.20 AMPS TOTAL.• 3.20 AMPS TOTAL. •(1) 120V 20AMP CIR. REQ’D.• (1) 120V 20AMP CIR. REQ’D. • 3.20 AMPS TOTAL. • (1) 120V 20AMP CIR. REQ’D. FAB. SHEET ALUM. SIGN CABINET (PAINTED BLACK) MED. IMPACT RESISTANT SIGN FACE. INT. ILLUM. W/ T8 FLUORESCENT LIGHTING, & 2” RETAINER.MATCH BLDG. STONE PAINTED SW6141 SOFTER TAN PAINTED SW6141 SOFTER TAN 9’-0” 6”6” 1 *Comet Signs to provide for manufacturing M M1 M2 M3 M4 M5 M SIGNS WILL NOT INCLUDE OFF-SITE TENANT SIGNAGE.M SIGNS WILL NOT INCLUDE OFF-SITE TENANT SIGNAGE.M SIGNS WILL NOT INCLUDE OFF-SITE TENANT SIGNAGE. Exhibit D INDIVIDUAL TENANT PER EXHIBIT B, THESE MONUMENT SIGNS ARE PROPOSED TO BE LOCATED 1’ FROM THE PROPERTY LINE.PER EXHIBIT B, THESE MONUMENT SIGNS ARE PROPOSED TO BE LOCATED 1’ FROM THE PROPERTY LINE.PER EXHIBIT B, THESE MONUMENT SIGNS ARE PROPOSED TO BE LOCATED 1’ FROM THE PROPERTY LINE. Item 9 Revisions © 2017 Comet Signs Job Name: Notes: R1/2-27-18/MP:Cabinet Sq. Ft. Chng Proposal Drawing Final Drawing Client: UCD Location: Salesperson: Tommy R. Prj. Mngr.: Michelle C. Date: 1/31/18 Designer: Kimberly P. File Name: Exhibit C R1 Elevations/Sign Details.cdr Proposal #: 33553 Job #: n/a THIS DRAWING IS THE EXCLUSIVE PROPERTYOF COMETSIGNS, LLC. ANYUSE OR REPRODUCTION OF THIS DRAWING WITHOUT WRITTEN AUTHORIZATION FROM COMET SIGNS, LLC. IS STRICTLY PROHIBITED. OWNERSHIPAND COPYRIGHT IS RETAINED IN ACCORDANCE WITH U.S. AND INTERNATIONAL TRADEMARK / COPYRIGHT LAWS. License #: 18010 Page: of 42 D/F MONUMENT SIGN 1/4”=1’-0” 54 SQ. FT. TOTAL STRUCTURE 9’-0” (W) x 1’-10” (L) x 5” DEEP CONCRETE SLAB FOR MASONRY. STREET MATTHEWS SATIN BLACK 5.56” DIA. STEEL PIPE @ .258 WALL. 1’-6” DIA. CONCRETE PIER, 3’-0” DEEP. *EXACT STEEL SUPPORT & FOUNDATION SIZES TO BE CONFIRMED BY ENGINEER. ELECTRICALELECTRICALELECTRICAL •3.20 AMPS TOTAL.• 3.20 AMPS TOTAL. •(1) 120V 20AMP CIR. REQ’D.• (1) 120V 20AMP CIR. REQ’D. • 3.20 AMPS TOTAL. • (1) 120V 20AMP CIR. REQ’D. FAB. SHEET ALUM. SIGN CABINET (PAINTED BLACK) MED. IMPACT RESISTANT SIGN FACE. INT. ILLUM. W/ T8 FLUORESCENT LIGHTING, & 2” RETAINER.MATCH BLDG. STONE PAINTED SW6141 SOFTER TAN PAINTED SW6141 SOFTER TAN 9’-0” 6”6” *Comet Signs to provide for manufacturing M SIGNS WILL NOT INCLUDE OFF-SITE TENANT SIGNAGE.M SIGNS WILL NOT INCLUDE OFF-SITE TENANT SIGNAGE.M SIGNS WILL NOT INCLUDE OFF-SITE TENANT SIGNAGE. 11” 3’-6” Exhibit D MULTI-TENANT PER EXHIBIT B, M6 1’ FROM THE PROPERTY LINE.PER EXHIBIT B, M6 1’ FROM THE PROPERTY LINE.PER EXHIBID B, M7 IS 15’ FROM THE PROPERTY LINE.PER EXHIBID B, M7 IS 15’ FROM THE PROPERTY LINE.PER EXHIBIT B, M6 1’ FROM THE PROPERTY LINE.PER EXHIBID B, M7 IS 15’ FROM THE PROPERTY LINE. Item 9 Revisions © 2017 Comet Signs Job Name: Notes: R1/2-27-18/MP:Cabinet Sq. Ft. Chng Proposal Drawing Final Drawing Client: UCD Location: Salesperson: Tommy R. Prj. Mngr.: Michelle C. Date: 1/31/18 Designer: Kimberly P. File Name: Exhibit C R1 Elevations/Sign Details.cdr Proposal #: 33553 Job #: n/a THIS DRAWING IS THE EXCLUSIVE PROPERTYOF COMETSIGNS, LLC. ANYUSE OR REPRODUCTION OF THIS DRAWING WITHOUT WRITTEN AUTHORIZATION FROM COMET SIGNS, LLC. IS STRICTLY PROHIBITED. OWNERSHIPAND COPYRIGHT IS RETAINED IN ACCORDANCE WITH U.S. AND INTERNATIONAL TRADEMARK / COPYRIGHT LAWS. License #: 18010 Page: of 4 IMPORTANT DISCLAIMER: Site signage specification and sign positioning is based on information/data provided by the customer at time of drawing request. Any freestanding sign, to include signs defined as pylons, multi- tenant pylons, and monument signs may be subject to review as required by the City, County or governing body in which said property is positioned. Freestanding signs positioned in proximity to urban corridors, utility easements, overhead power lines, ROW Transmission lines, State Department of Transportation ROW and underground pipelines/fiber optic lines may also be subject to review in regards to setbacks or encroachment requirements by those specific entities. NOTE: Steel and foundation for this sign to be determined based on site specific basis, local soil conditions, and wind load requirements. 120 SQ. FT. TOTAL STRUCTURE 66 SQ. FT. ACTIVE SIGN AREA SIDE VIEWSIDE VIEW AA D/F SIGN ELEVATION SCALE= 1/4”=1’-0”D/F SIGN ELEVATION SCALE= 1/4”=1’-0” EE A B C E F G H A FAB. SHEET ALUM. CAP (PAINTED SW6141 SOFTER TAN). B FAB. SHEET ALUM. SIGN CABINET (PAINTED BLACK) MED. IMPACT SIGN FACES. 2” RET. & 1 3/4” DIVIDER BARS INT. ILLUM. W/ T8 FLUORESCENT LIGHTING. C TENANT E STONE VENEER TO MATCH BUILDING. F FAB. SHEET ALUM. TRIM SCREWED TO STONE BASE (SEE DETAIL A). G STONE VENEER TO MATCH BUILDING. H BELL BOX. HH GG B12’-0” OAH8’-3”1’-10 5/8”2’-3”6” 3”4”4”6”8 3/8”FI FJ HI 8.625” DIA. STEEL PIPE @ .322 WALL. HJ 2’-6” DIA. CONCRETE PIER, 6’-0” DEEP. HK 10’-0” (W) x 3’-0” (L) x 6” DEEP CONCRETE HK SLAB FOR MASONRY. STREET *EXACT STEEL SUPPORT & FOUNDATION SIZES TO BE CONFIRMED BY ENGINEER. ELECTRICALELECTRICALELECTRICAL •4.70 AMPS TOTAL.• 4.70 AMPS TOTAL. •(1) 120V 20AMP CIR. REQ’D.• (1) 120V 20AMP CIR. REQ’D. • 4.70 AMPS TOTAL. • (1) 120V 20AMP CIR. REQ’D. 2'-6" 3'-0" 3'-6" 8'-0" 10'-0" 11'-0" 1'1' 2"4" LED LIGHTING SLIM STIK SINGLE SIDED (117) PL-OP1-SL4-P/SL-SS-117-TW 4”X4” FAB. SHEET ALUM. CHANNEL FF DETAIL A WIRING INTO PVC TO POWER SUPPLY INSIDE SIGN CABINET. DIVIDER BAR DETAIL PAINTED SW6141 SOFTER TAN 3 UD4 *COMET SIGNS TO PROVIDE FOR MANUFACTURING C BBB 3'-9" Exhibit D PER EXHIBIT B, UD4 IS PROPOSED TO BE SETBACK 15’ FROM THEPER EXHIBIT B, UD4 IS PROPOSED TO BE SETBACK 15’ FROM THEPROPERTY LINE, WHICH COMPLIES WITH THE CURRENTLY ADOPTEDPROPERTY LINE, WHICH COMPLIES WITH THE CURRENTLY ADOPTEDSIGN ORDINANCE.SIGN ORDINANCE. PER EXHIBIT B, UD4 IS PROPOSED TO BE SETBACK 15’ FROM THEPROPERTY LINE, WHICH COMPLIES WITH THE CURRENTLY ADOPTEDSIGN ORDINANCE. THE CABINET IS NOT MORE THAN 55% OF THE AREA OF THE UDS.THE CABINET IS NOT MORE THAN 55% OF THE AREA OF THE UDS.THE CABINET IS NOT MORE THAN 55% OF THE AREA OF THE UDS.1’-10 5/8”1’-10 5/8”1’-10 5/8”Item 9 Revisions © 2017 Comet Signs Job Name: Notes: R1/2-27-18/MP:Cabinet Sq. Ft. Chng Proposal Drawing Final Drawing Client: UCD Location: Salesperson: Tommy R. Prj. Mngr.: Michelle C. Date: 1/31/18 Designer: Kimberly P. File Name: Exhibit C R1 Elevations/Sign Details.cdr Proposal #: 33553 Job #: n/a THIS DRAWING IS THE EXCLUSIVE PROPERTYOF COMETSIGNS, LLC. ANYUSE OR REPRODUCTION OF THIS DRAWING WITHOUT WRITTEN AUTHORIZATION FROM COMET SIGNS, LLC. IS STRICTLY PROHIBITED. OWNERSHIPAND COPYRIGHT IS RETAINED IN ACCORDANCE WITH U.S. AND INTERNATIONAL TRADEMARK / COPYRIGHT LAWS. License #: 18010 Page: of 420’-0” OAH13’-4”3’-0”4’-1”5” 8” 3” II4”HH FF DD EE GG IMPORTANT DISCLAIMER: Site signage specification and sign positioning is based on information/data provided by the customer at time of drawing request. Any freestanding sign, to include signs defined as pylons, multi- tenant pylons, and monument signs may be subject to review as required by the City, County or governing body in which said property is positioned. Freestanding signs positioned in proximity to urban corridors, utility easements, overhead power lines, ROW Transmission lines, State Department of Transportation ROW and underground pipelines/fiber optic lines may also be subject to review in regards to setbacks or encroachment requirements by those specific entities. NOTE: Steel and foundation for this sign to be determined based on site specific basis, local soil conditions, and wind load requirements. SIDE VIEWSIDE VIEWD/F SIGN ELEVATION SCALE= 1/4”=1’-0”D/F SIGN ELEVATION SCALE= 1/4”=1’-0” 200 SQ. FT. TOTAL STRUCTURE 110 SQ. FT. MAX ACTIVE SIGN AREA AA FAB. SHEET ALUM. CAP ( FAB. SHEET ALUM. CAP (PAINTED SW6141 SOFTER TAN).). BB FAB. SHEET ALUM. SIGN CABINET (PAINTED BLACK) FAB. SHEET ALUM. SIGN CABINET (PAINTED BLACK) DD FAB. SHEET ALUM. SIGN CABINET (PAINTED BLACK) FAB. SHEET ALUM. SIGN CABINET (PAINTED BLACK) EE STONE VENEER TO MATCH BUILDING. FF FAB. SHEET ALUM. TRIM SCREWED TO STONE BASE GG CONTROL BOX. HH STONE VENEER TO MATCH BUILDING. II BELL BOX. JJ 10.75” DIA. STEEL PIPE @ .365 WALL. KK 3’-0” DIA. CONCRETE PIER, 8’-0” DEEP. A FAB. SHEET ALUM. CAP (PAINTED SW6141 SOFTER TAN). B FAB. SHEET ALUM. SIGN CABINET (PAINTED BLACK) MED. IMPACT RESISTANT SIGN FACE. INT. ILLUM. W/ T8 FLUORESCENT LIGHTING, 2” RET. D FAB. SHEET ALUM. SIGN CABINET (PAINTED BLACK) MED. IMPACT RESISTANT TENANT FACES W/ VINYL GRAPHICS. INT. ILLUM. W/ T8 FLUORESCENT LIGHTING. E STONE VENEER TO MATCH BUILDING. F FAB. SHEET ALUM. TRIM SCREWED TO STONE BASE (SEE DETAIL A) PAINTED SW6141 SOFTER TAN G CONTROL BOX. H STONE VENEER TO MATCH BUILDING. I BELL BOX. J 10.75” DIA. STEEL PIPE @ .365 WALL. K 3’-0” DIA. CONCRETE PIER, 8’-0” DEEP. BB 6”8 3/8”FJ HL 10’-0” (W) x 3’-0” (L) x 6” DEEP CONCRETE HK SLAB FOR MASONRY. STREET *EXACT STEEL SUPPORT & FOUNDATION SIZES TO BE CONFIRMED BY ENGINEER. ELECTRICALELECTRICALELECTRICAL •12.0 AMPS TOTAL FOR CAB. SIGNS.•12.0 AMPS TOTAL FOR CAB. SIGNS. •(1) 120V 20AMP CIR. REQ’D.• (1) 120V 20AMP CIR. REQ’D. FUEL PRICER: (2) 120V 20AMP CIRS.FUEL PRICER: (2) 120V 20AMP CIRS. RE Q‘D.RE Q‘D. •1.0 AMP. FOR LIGHTING, (1) 20AMP• 1.0 AMP. FOR LIGHTING, (1) 20AMP CIR. REQ’D.CIR. REQ’D. •1.5 AMP. FOR LEDS, (1) 20AMP CIR.• 1.5 AMP. FOR LEDS, (1) 20AMP CIR. REQ’DREQ’D •12.0 AMPS TOTAL FOR CAB. SIGNS. • (1) 120V 20AMP CIR. REQ’D. FUEL PRICER: (2) 120V 20AMP CIRS. RE Q‘D. • 1.0 AMP. FOR LIGHTING, (1) 20AMP CIR. REQ’D. • 1.5 AMP. FOR LEDS, (1) 20AMP CIR. REQ’D 2'-6" 3'-0" 4'-0" 3"6" 8'-3" 10'-0" 11'-6" 10 1/2" AA LED LIGHTING SLIM STIK SINGLE SIDED (117) PL-OP1-SL4-P/SL-SS-117-TW 4”X4” FAB. SHEET ALUM. CHANNEL DETAIL A WIRING INTO PVC TO POWER SUPPLY INSIDE SIGN CABINET. HL 4 UD1 UD2 *COMET SIGNS TO PROVIDE FOR MANUFACTURING UD3 13 1/4”UD SIGNS DEVIATE FROM THE SIGN ORDINANCE DUE TO THEUD SIGNS DEVIATE FROM THE SIGN ORDINANCE DUE TO THE ENCROACHMENT OF THE REQUIRED 1’ SETBACK.ENCROACHMENT OF THE REQUIRED 1’ SETBACK.UD SIGNS DEVIATE FROM THE SIGN ORDINANCE DUE TO THE ENCROACHMENT OF THE REQUIRED 1’ SETBACK. Exhibit D THE CABINET IS NOT MORE THAN 55% OF THE AREA OF THE UDS.THE CABINET IS NOT MORE THAN 55% OF THE AREA OF THE UDS.THE CABINET IS NOT MORE THAN 55% OF THE AREA OF THE UDS. PER EXHIBIT B, THESE SIGNS ARE PROPOSED TO BE PLACEDPER EXHIBIT B, THESE SIGNS ARE PROPOSED TO BE PLACEDON THE PROPERTY LINE.ON THE PROPERTY LINE.PER EXHIBIT B, THESE SIGNS ARE PROPOSED TO BE PLACEDON THE PROPERTY LINE.3’-0”3’-0”13 1/4”13 1/4”10 1/2" 5 1/2” 5 1/2” Item 9 EXHIBIT E – SIGN SCHEDULE / DEVELOPMENT STANDARDS Unified Development Signs: Signs UD1, UD2, UD3, UD4 Sign UD4 is conforming as per Town of Prosper code allowance section G (8) which states that one (1) unified development sign is allowed per street frontage. Signs UD1, UD2 & UD3 along HWY 380 meet the necessary distance requirements for that street frontage as per section G (8) which states one additional unified development monument sign is permitted along a street for each additional 750 linear feet, or portion thereof. Our street frontage on HWY 380 is approximately 2207’ giving us ample room to use UD1, UD2 & UD3. UD1 – Shall be permitted to be located within 872’ of UD2, in accordance with Exhibit B. UD2 – Shall be permitted to be located within 750’ of UD3, in accordance with Exhibit B. Single/Multi-Tenant Monument Signs: Signs M1, M2, M3, M4, M5, M6, M7 All monument displays are within Town of Prosper code allowance. Only tenants within the lot of each sign location will be allowed on that display. (No off-site advertising) Item 9 Page 1 of 2 To: Mayor and Town Council From: Robyn Battle, Town Secretary Through: Harlan Jefferson, Town Manager Re: Town Council Meeting – March 13, 2018 Agenda Item: Consider and act upon a resolution appointing a member of the Prosper Town Council to the North Central Texas Regional 9-1-1 Emergency Communications District Board of Managers. Description of Agenda Item: On April 26, 2016, the Town Council approved Resolution 16-28 authorizing the creation of the North Central Texas Regional 9-1-1 Emergency Communications District (RECD). Implementation of a RECD allows funds collected through the 50-cent fee on the phone bills of residents in the district to be retained by the district to be used for regional 9-1-1 system administration. Under the current system, the funds are collected by the state, and then redistributed to the region at the direction of the state legislature. Implementation of the RECD allows for regional control of this revenue. NCTCOG’s 9-1-1 Regional Advisory Committee has drafted proposed bylaws for the RECD, and has requested all of the participating entities appoint a representative to the Board of Managers. The participating entities include the Town of Prosper, the City of McKinney, the City of Allen, the City of Frisco, the City of Murphy, and Collin County. The Board will convene its first meeting once all entities have appointed a representative. Legal Obligations and Review: Terrence Welch of Brown & Hofmeister, L.L.P. has reviewed the resolution as to form and legality. Attached Documents: 1. Resolution 16-28 2. Proposed Bylaws – NCT Regional 9-1-1 Emergency Communications District 3. Resolution Town Staff Recommendation: Town staff recommends the Town Council approve a resolution appointing a member of the Prosper Town Council to the North Central Texas Regional 9-1-1 Emergency Communications District Board of Managers. Prosper is a place where everyone matters. TOWN SECRETARY’S OFFICE Item 10 Page 2 of 2 Proposed Motion: I move to approve a resolution appointing ________________ to the North Central Texas Regional 9-1-1 Emergency Communications District Board of Managers. Item 10 Item 10 Item 10 Proposed Bylaws North Central Texas Regional 9-1-1 Emergency Communications District Article 1. Creation and Authority 1. The North Central Texas Council of Governments is authorized to create a Regional 9- 1-1 Emergency Communications District (District) pursuant to Chapter 772, Subchapter H, of the Texas Health and Safety Code as amended by the 84th Legislature, through the passage of resolutions by County Commissioners Courts and City Councils within the potential District’s service area. 2. The service area of the District would consist of Collin, Ellis, Erath, Hood, Hunt, Johnson, Kaufman, Navarro, Palo Pinto, Parker, Rockwall, Somervell, Wise, including 5 municipalities in Dallas County ( Cockrell Hill, Balch Springs, Sachse, Seagoville, and Wilmer), and all cities therein, except for any city served by another emergency communications district. 3. A District is a political subdivision and carries out essential governmental functions by providing high-quality 9-1-1 emergency communications services to all jurisdictions served by the District. Article 2. Board of Managers 1. The District shall be governed by a Board of Managers (the Board), consisting of elected officials. Each member county will be entitled to one Board member, except for Collin County, which will be entitled to six. Each Board member shall represent an entity that serves as a Public Safety Answering Point (PSAP) within the county. The Board shall be constituted of a maximum of nineteen members. 2. A Board member’s term of office shall be two (2) years. Board members may serve multiple terms. 3. Members of the Board who are unable to attend District meetings may be represented by a designated alternate with the vote. 4. The Board shall be the governing body of the District and shall adopt plans, policies, procedures, budgets, orders, and motions as necessary to carry out the purpose of the District. 5. The Board shall meet at least quarterly, and may meet more frequently as it determines necessary, at a time and place it shall designate. Meetings may be called by the Chair, the Executive Director, or by written request of at least three Board members. 6. The officers of the Board shall be a Chair, a Vice-Chair and a Secretary/Treasurer, who shall be members of the Board, and who shall be elected by the Board at its first meeting of the year. If both the Chair and Vice Chair are absent at any meeting, Board members in attendance shall designate a presiding officer pro tem. The Chair or other presiding Board Member shall vote only in case of a tie. 7. A quorum of the Board shall consist of those members present. 8. The Board shall annually adopt a strategic plan, budget, and service fee for the District. 9. The Board shall appoint a technical advisory committee of staff members from entities operating as a PSAP; and may create other special committees as deemed appropriate. Item 10 The Chair and Vice Chair will be invited to attend technical advisory committee meetings. 10. The District is subject to, and shall operate in accordance with, the Texas Public Information Act. Article 3. Board of Managers Responsibilities 1. Annually adopt a Strategic Plan, Budget, and Service Fee providing for current operation of the District and, to the extent revenues allow, for the orderly development of a system upgrading and replacement program. 2. Ensure that an annual independent audit is performed on accounts of the District. 3. Enter into contracts, agreements, or memoranda of understanding to carry out the District’s purpose. 4. Designate the District financial depository and authorize signatories on District accounts. 5. Take any and all actions necessary to carry out the purpose of the District, consistent with these Bylaws and applicable laws. Article 4. Administration 1. The Executive Director of the North Central Texas Council of Governments shall be the Executive Director of the District and, consistent with the direction of the Board, shall function as the Chief Administrative Officer of the District in accordance with Sec. 772.609, Health and Safety Code. 2. The North Central Texas Council of Governments shall function as planning, program, fiscal, and administrative agent for the District, in accordance with Sec. 772.609 of the Health and Safety Code. Article 5. Dissolution The District may be dissolved by majority approval of a dissolution resolution by the Board (in accordance with Chapter 772.621 Health and Safety Code) and its duties will revert back to the North Central Texas Council of Governments. Article 6. Amendments 1. These Bylaws may be amended by majority vote of the Board at a duly called meeting. Requires two-thirds (2/3) member vote. 2. The proposed text of any amendment shall be furnished to all Board members at least ten days prior to the meeting at which the amendment is considered by the Board. Other Considerations Item 10 Removal of Board Members – any board member may be removed for cause by two-third 2/3 majority vote of the members. Item 10 TOWN OF PROSPER, TEXAS RESOLUTION NO. 18-__ A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, APPOINTING A REPRESENTATIVE TO THE NORTH CENTRAL TEXAS REGIONAL 9-1-1 EMERGENCY COMMUNICATIONS DISTRICT BOARD OF MANAGERS; MAKING FINDINGS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Resolution No. 16-28, approved by the Prosper Town Council on April 26, 2016, provides that the Town Council has authorized the creation of the North Central Texas Regional 9-1-1 Emergency Communications District; and WHEREAS, the proposed bylaws of the District provide that the District shall be governed by a Board of Managers consisting of elected officials, which shall be comprised of one representative from each of the following entities: Collin County, the Town of Prosper, the City of McKinney, the City of Allen, the City of Frisco, and the City of Murphy. WHEREAS, the Town Council desires to appoint a representative to the Board of Managers. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, THAT: SECTION 1 The Prosper Town Council hereby appoints __________________ as the Town of Prosper representative to the Regional 9-1-1 Emergency Communications District Board of Managers. Such term will be effective upon the approval date of this resolution. SECTION 2 This Resolution shall become effective immediately upon its passage. DULY PASSED AND APPROVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS ON THIS 13TH DAY OF MARCH, 2018. APPROVED: ________________________________ Ray Smith, Mayor ATTEST: ___________________________________ Robyn Battle, Town Secretary Item 10 Resolution No. 18-__, Page 2 APPROVED AS TO FORM AND LEGALITY: __________________________________ Terrence S. Welch, Town Attorney Item 10 Page 1 of 2 To: Mayor and Town Council From: Frank E. Jaromin, P.E., Director of Public Works Through: Harlan Jefferson, Town Manager Re: Town Council Meeting – March 13, 2018 Agenda Item: Consider and act upon awarding Bid No. 2018-54-B to Pavecon Public Works, L.P., related to construction services for the Frontier Parkway Reconstruction DNT to BNSF Railroad project; and authorizing the Town Manager to execute a construction agreement for same. Description of Agenda Item: On February 9, 2018, at 3:00 PM, nine (9) bids were opened for the Town of Prosper Frontier Parkway Reconstruction DNT to BNSF Railroad project. The verified bid totals from the bidders ranged between $178,199.60 and $298,439.02, with Pavecon Public Works, L.P., being the lowest qualified bidder. Pavecon Public Works, L.P., has successfully completed multiple paving projects in Prosper. The scope of this contract includes removal and replacement of existing asphalt paving, installation of cement treated sub-base and installation of thermoplastic pavement markings. The contractor will replace twelve (12) feet of pavement on approximately 3,400 square feet of the eastbound lane from CR 50 to just past the east entrance into Frontier Park. Public Works has discussed the reconstruction of the north side of Frontier Parkway with the City of Celina; however, monies are not available for replacing the westbound lane at this time. The Engineers Estimate is $150,090.00, which is $29,109.60 under low bidder and $28,199.60 over current budget. During construction, Frontier Parkway will be reduced to one (1) lane allowing one-way, westbound traffic only. Staff will coordinate with Prosper ISD, the Post Office, and public safety personnel to provide updates of the construction activity. Contract time for this project is thirty (30) calendar days. The Notice to Proceed is expected to be sent out the second week of April, and construction is estimated to be completed in mid-May. Budget Impact: $150,000.00 was approved in the FY 2017-2018 Budget for the cost of this project. The proposed construction cost of $178,199.60 is available in account 100-5480-50-01, due to cost savings, in the amount of $329,768, from the Bid No. 2018-39-B DNT Reconstruction project. Prosper is a place where everyone matters. PUBLIC WORKS Item 11 Page 2 of 2 Legal Obligations and Review: Terrence Welch of Brown & Hofmeister, L.L.P., has approved the standard construction agreement as to form and legality. Attached Documents: 1. Location Map 2. Bid Tabulation Summary 3. Construction Agreement Town Staff Recommendation: Town staff recommends that the Town Council award Bid No. 2018-54-B to Pavecon Public Works, L.P., related to construction services for the Frontier Parkway Reconstruction DNT to BNSF Railroad project; and authorize the Town Manager to execute a construction agreement for same. Proposed Motion: I move to award Bid No. 2018-54-B to Pavecon Public Works, L.P., related to construction services for the Frontier Parkway Reconstruction DNT to BNSF Railroad project; and authorize the Town Manager to execute a construction agreement for same. Item 11 Item 11 TOWN OF PROSPER BID TABULATION SUMMARY BID NO: 2018-54-B FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD Bid Opening: 02/09/2018 at 3:00 PM Grand Total Pavecon Public Works, L.P. $ 178,199.60 Anderson Asphalt & Concrete Paving, LLC $ 182,461.50 Wopac Construction, Inc. $ 201,177.20 Advanced Paving Company $ 202,038.50 Oldcastle Material Texas, Inc., dba TexasBit $ 205,789.10 GRod Construction, LLC $ 208,710.00 Peachtree Construction, Ltd. $ 219,705.00 Reynolds Asphalt & Construction Company $ 254,235.00 SPI Asphalt, LLC $ 298,439.02 Certified By: January M. Cook, CPPO, CPPB Date: 02/09/2018 Purchasing Agent Town of Prosper, Texas **All bids/proposals submitted for the designated project are reflected on this tabulation sheet. However, the listing of the bid/proposal on this tabulation sheet shall not be construed as a comment on the responsiveness of such bid/proposal or as any indication that the agency accepts such bid/proposal as being responsive. The agency will make a determination as to the responsiveness of the vendor responses submitted based upon compliance with all applicable laws, purchasing guidelines and project documents, including but not limited to the project specifications and contract documents. The agency will notify the successful vendor upon award of the contract and, as according to the law, all bid/proposal responses received will be available for inspection at that time. Item 11 CONTRACT DOCUMENTS AND SPECIFICATIONS FOR FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD BID NO. 2018-54-B TOWN OF PROSPER COLLIN COUNTY, TEXAS TOWN OFFICIALS Ray Smith, Mayor Curry Vogelsang, Jr., Mayor Pro-Tem Jason Dixon, Deputy Mayor Pro-Tem Michael Korbuly, Place 1 Kenneth Dugger, Place 2 Meigs Miller, Place 4 Jeff Hodges, Place 5 Harlan Jefferson, Town Manager Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 1 TABLE OF CONTENTS TABLE OF CONTENTS .................................................................................................. 1 LEGAL NOTICE .............................................................................................................. 2 INSTRUCTIONS TO BIDDERS ...................................................................................... 3 BID PROPOSAL FORM .................................................................................................. 4 BID BOND ................................................................................................................... 100 OUT-OF-STATE CONTRACTOR COMPLIANCE TO STATE LAW ............................ 122 CONSTRUCTION AGREEMENT ................................................................................ 133 PERFORMANCE BOND ............................................................................................. 266 PAYMENT BOND.......................................................................................................... 29 MAINTENANCE BOND ............................................................................................... 323 GENERAL CONDITIONS ............................................................................................ 355 SPECIFICATIONS AND STANDARDS………………………….......................................52 TECHINICAL SPECIFICATIONS………………………………………………………….....53 Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 2 LEGAL NOTICE The Town of Prosper is accepting sealed bids for BID NO. 2018-54-B Frontier Parkway RECONSTRUCTION DNT to BNSF Railroad. Bids will be accepted until 3:00 P.M. on Friday, February 9, 2018 at the Town Hall Annex, 151 S. Main St., Prosper, Texas 75078. Any bids received after this time will not be accepted, and will be returned unopened. Bids will be publicly opened and read aloud at the Town Hall Annex, 151 S. Main St., Prosper, Texas 75078 immediately following this time. The Project consists of furnishing all labor, equipment and materials, and performing all work necessary for the construction 4,030 square yards of 5” asphalt pavement, demolition of 4,030 square yards of 5” asphalt paving, installation of concrete stabilized subgrade, installation of thermoplastic pavement markings and traffic control. Each bid submitted shall be accompanied by a cashier's check in the amount of 5% of the maximum amount bid, payable without recourse to the Town of Prosper, or a Bid Bond in the same amount from a reliable surety company as a guarantee that, if awarded the contract, the Bidder will execute a Construction Agreement with the Town, including all required bonds and other documents. The successful bidder shall furnish a Performance Bond in the amount of 115% of the contract amount, and a Payment Bond in the amount of 100% of the contract amount, as well as evidence of all required insurance coverage within ten (10) calendar days of notice of award. The successful bidder shall also furnish a Maintenance Bond in the amount of 100% of the contract amount covering defects of material and workmanship for two calendar years following the Town's approval and acceptance of the construction. An approved surety company, licensed in the State of Texas, shall issue all bonds in accordance with Texas law. Copies of Plans, Specifications, and Contract Documents may be examined at Public Works, 601 W Fifth Street, Prosper, TX 75078, (972) 347-9969 without charge. These documents may be acquired from that office for the non-refundable purchase price of $10.00 per set, payable to the Town of Prosper. Copies of Plans, Specifications, and Contract Documents may also be downloaded free of charge from Current Bidding Opportunities, at the following link: http://www.prospertx.gov/business/bid-opportunities/. Questions and requests for clarifications in regards to this bid should be emailed directly to January Cook, CPPO, CPPB, Purchasing Agent, at january_cook@prospertx.gov. Friday, February 2, 2018, at 12:00 P.M. will be the deadline for receipt of questions and requests for clarifications. After that day and time, no further questions or requests for clarifications will be accepted or answered by the Engineer or Town. Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 3 INSTRUCTIONS TO BIDDERS 1. Submittal Deadline: Bids will be accepted until 3:00 P.M. on Friday, February 9, 2018. 2. Submittal Location: Bids will be accepted at the Town Hall Annex, 151 S. Main St., Prosper, Texas 75078. Submittal Requirements: Each Bidder shall submit one (1) original and one (1) copy of their bid, along with their bid security and Out of State Contractor Compliance (if necessary), in a sealed envelope clearly marked with their name and BID NO. 2018-54-B, FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD. 3. Bid Opening: Bids will be publicly opened and read aloud at the Town Hall Annex, 151 S. Main St., Prosper, Texas 75078, immediately following the bid deadline. 4. Bidding Documents: Copies of Plans, Specifications, and Contract Documents may be examined without charge at the following location: Town of Prosper Development Services 409 E First Street Prosper TX. 75078 Phone: 972-569-1099 or Download free of charge from Current Bidding Opportunities, at the following link: http://www.prospertx.gov/business/bid-opportunities/. 5. Questions and Requests for Clarification: Questions and requests for clarifications in regards to this bid should be emailed directly to January Cook, CPPO, CPPB, Purchasing Agent, at january_cook@prospertx.gov. Friday, February 2, 2018, at 12:00 P.M. will be the deadline for receipt of questions and requests for clarifications. After that day and time, no further questions or requests for clarifications will be accepted or answered by the Engineer or Town. 6. Addenda: If it becomes necessary to provide additional information to potential Bidders, the Town of Prosper will issue an addendum containing the necessary information. 7. Pre-Bid Meeting: A pre-bid meeting will not be held for this project. Attachment 3Item 11 Attachment 3Item 11 Attachment 3Item 11 Attachment 3Item 11 Attachment 3Item 11 Attachment 3Item 11 Attachment 3Item 11 Attachment 3Item 11 Attachment 3Item 11 Attachment 3Item 11 Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 12 OUT-OF-STATE CONTRACTOR COMPLIANCE TO STATE LAW Texas Government Code §2252.002 provides that, in order to be awarded a contract as low bidder, a non-resident bidder (out-of-state contractor whose corporate office or principal place of business is outside the State of Texas) bid projects in Texas at an amount lower than the lowest Texas resident bidder by the same amount that a Texas resident bidder would be required to underbid a non-resident bidder in order to obtain a comparable contract in the state in which the non-resident's principal place of business is located. The appropriate blanks in the following statement must be filled out by all out-of -state or non-resident bidders in order for those bids to meet specifications. (This information may be obtained from the Texas Register.) The failure of out-of-state or non-resident contractors to do so will automatically disqualify that bidder. Non-resident contractor in ___________________ (give state), our principal place of business, is required to be _________ percent lower than resident bidders by State Law. The exact language of the statute is set out below. Non-resident contractor in ___________________ (give state), our principal place of business, is not required to underbid resident bidders. BIDDER By Company (Please Print) Address Signature City State Zip Title (Please Print) “Tex. Gov’t Code Sec. 2252.002. AWARD OF CONTRACT TO NONRESIDENT BIDDER. A governmental entity may not award a governmental contract to a nonresident bidder unless the nonresident underbids the lowest bid submitted by a responsible resident bidder by an amount that is not less than the amount by which a resident bidder would be required to underbid the nonresident bidder to obtain a comparable contract in the state in which the nonresident's principal place of business is located.” Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 13 CONSTRUCTION AGREEMENT THE STATE OF TEXAS ) ) KNOW ALL MEN BY THESE PRESENTS: COUNTY OF COLLIN ) This Construction Agreement (the "Agreement") is made by and between Pavecon Public Works, L.P., a Texas limited partnership (the "Contractor") and the Town of Prosper, Texas, a municipal corporation (the "Owner"). For and in consideration of the payment, agreements and conditions hereinafter mentioned, and under the conditions expressed in the bonds herein, Contractor hereby agrees to complete the construction of improvements described as follows: BID NO. 2018-54-B FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD in the Town of Prosper, Texas, and all extra work in connection therewith, under the terms as stated in the terms of this Contract, including all Contract Documents incorporated herein; and at his, her or their own proper cost and expense to furnish all superintendence, labor, insurance, equipment, tools and other accessories and services necessary to complete the said construction in accordance with all the Contract Documents, incorporated herein as if written word for word, and in accordance with the Plans, which include all maps, plats, blueprints, and other drawings and printed or written explanatory manner therefore, and the Specifications as prepared by Town of Prosper or its consultant hereinafter called Engineer, who has been identified by the endorsement of the Contractor's written proposal, the General Conditions of this Contract, the Special Conditions of this Contract, the payment, performance, and maintenance bonds hereto attached; all of which are made a part hereof and collectively evidence and constitute the entire Contract. A. Contract Documents and Order of Precedence The Contract Documents shall consist of the following documents: 1. this Construction Agreement; 2. properly authorized change orders; 3. the Special Conditions of this Contract; 4. the General Conditions of this Contract; 5. the Technical Specifications & Construction Drawings of this Contract; 6. the OWNER's Standard Construction Details; 7. the OWNER's Standard Construction Specifications; 8. the OWNER’s written notice to proceed to the CONTRACTOR; Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 14 9. the Contractor’s Bid Proposal; 10. any listed and numbered addenda; 11. the Performance, Payment, and Maintenance Bonds; and, 12. any other bid materials distributed by the Owner that relate to the Project. These Contract Documents are incorporated by reference into this Construction Agreement as if set out here in their entirety. The Contract Documents are intended to be complementary; what is called for by one document shall be as binding as if called for by all Contract Documents. It is specifically provided, however, that in the event of any inconsistency in the Contract Documents, the inconsistency shall be resolved by giving precedence to the Contract Documents in the order in which they are listed herein above. If, however, there exists a conflict or inconsistency between the Technical Specifications and the Construction Drawings it shall be the Contractor’s obligation to seek clarification as to which requirements or provisions control before undertaking any work on that component of the project. Should the Contractor fail or refuse to seek a clarification of such conflicting or inconsistent requirements or provisions prior to any work on that component of the project, the Contractor shall be solely responsible for the costs and expenses - including additional time - necessary to cure, repair and/or correct that component of the project. B. Total of Payments Due Contractor For performance of the Work in accordance with the Contract Documents, the Owner shall pay the Contractor in current funds an amount not to exceed One Hundred Seventy-Eight Thousand One Hundred Ninety-Nine Dollars and Sixty cents ($ 178,199.60). This amount is subject to adjustment by change order in accordance with the Contract Documents. C. Dates to Start and Complete Work Contractor shall begin work within ten (10) calendar days after receiving a written Notice to Proceed or written Work Order from the Owner. All Work required under the Contract Documents shall be substantially completed within 30 calendar days after the date of the Notice to Proceed for the base bid. Within 30 additional calendar days after Substantial Completion, all outstanding issues shall be addressed and ready for final payment. Under this Construction Agreement, all references to “day” are to be considered “calendar days” unless noted otherwise. D. CONTRACTOR'S INDEMNITY TO THE OWNER AND OTHERS CONTRACTOR DOES HEREBY AGREE TO WAIVE ALL CLAIMS, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS THE TOWN OF PROSPER (OWNER) TOGETHER WITH ITS MAYOR AND TOWN COUNCIL AND ALL OF ITS OFFICIALS, OFFICERS, AGENTS AND EMPLOYEES, IN BOTH THEIR PUBLIC AND PRIVATE CAPACITIES, FROM AND AGAINST ANY AND ALL CITATIONS, CLAIMS, COSTS, DAMAGES, DEMANDS, EXPENSES, FINES, JUDGMENTS, LIABILITY, LOSSES, PENALTIES, SUITS OR CAUSES OF ACTION OF EVERY KIND INCLUDING ALL EXPENSES OF LITIGATION AND/OR SETTLEMENT, COURT COSTS AND ATTORNEY FEES WHICH MAY ARISE BY REASON OF INJURY TO OR DEATH OF ANY PERSON OR FOR LOSS OF, Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 15 DAMAGE TO, OR LOSS OF USE OF ANY PROPERTY OCCASIONED BY ERROR, OMISSION, OR NEGLIGENT ACT OF CONTRACTOR, ITS SUBCONTRACTORS, ANY OFFICERS, AGENTS OR EMPLOYEES OF CONTRACTOR OR ANY SUBCONTRACTORS, INVITEES, AND ANY OTHER THIRD PARTIES OR PERSONS FOR WHOM OR WHICH CONTRACTOR IS LEGALLY RESPONSIBLE, IN ANY WAY ARISING OUT OF, RELATING TO, RESULTING FROM, OR IN CONNECTION WITH THE PERFORMANCE OF THIS CONTRACT, AND CONTRACTOR WILL AT HIS OR HER OWN COST AND EXPENSE DEFEND AND PROTECT TOWN OF PROSPER (OWNER) FROM ANY AND ALL SUCH CLAIMS AND DEMANDS. CONTRACTOR DOES HEREBY AGREE TO WAIVE ALL CLAIMS, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS TOWN OF PROSPER (OWNER) TOGETHER WITH ITS MAYOR AND TOWN COUNCIL AND ALL OF ITS OFFICIALS, OFFICERS, AGENTS, AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CITATIONS, CLAIMS, COSTS, DAMAGES, DEMANDS, EXPENSES, FINES, JUDGMENTS, LIABILITY, LOSSES, PENALTIES, SUITS OR CAUSES OF ACTION OF EVERY KIND INCLUDING ALL EXPENSES OF LITIGATION AND/OR SETTLEMENT, COURT COSTS AND ATTORNEYS FEES FOR INJURY OR DEATH OF ANY PERSON OR FOR LOSS OF, DAMAGES TO, OR LOSS OF USE OF ANY PROPERTY, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THIS CONTRACT. SUCH INDEMNITY SHALL APPLY WHETHER THE CITATIONS, CLAIMS, COSTS, DAMAGES, DEMANDS, EXPENSES, FINES, JUDGMENTS, LIABILITY, LOSSES, PENALTIES, SUITS OR CAUSES OF ACTION ARISE IN WHOLE OR IN PART FROM THE NEGLIGENCE OF THE TOWN OF PROSPER (OWNER), ITS MAYOR AND TOWN COUNCIL, OFFICERS, OFFICIALS, AGENTS OR EMPLOYEES. IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY CONTRACTOR TO INDEMNIFY AND PROTECT TOWN OF PROSPER (OWNER) FROM THE CONSEQUENCES OF TOWN OF PROSPER’S (OWNER'S) OWN NEGLIGENCE, WHETHER THAT NEGLIGENCE IS A SOLE OR CONCURRING CAUSE OF THE INJURY, DEATH OR DAMAGE. IN ANY AND ALL CLAIMS AGAINST ANY PARTY INDEMNIFIED HEREUNDER BY ANY EMPLOYEE OF THE CONTRACTOR, ANY SUB-CONTRACTOR, ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM OR ANYONE FOR WHOSE ACTS ANY OF THEM MAY BE LIABLE, THE INDEMNIFICATION OBLIGATION HEREIN PROVIDED SHALL NOT BE LIMITED IN ANY WAY BY ANY LIMITATION ON THE AMOUNT OR TYPE OF DAMAGES, COMPENSATION OR BENEFITS PAYABLE BY OR FOR THE CONTRACTOR OR ANY SUB- CONTRACTOR UNDER WORKMEN'S COMPENSATION OR OTHER EMPLOYEE BENEFIT ACTS. INDEMNIFIED ITEMS SHALL INCLUDE ATTORNEYS' FEES AND COSTS, COURT COSTS, AND SETTLEMENT COSTS. INDEMNIFIED ITEMS SHALL ALSO INCLUDE ANY EXPENSES, INCLUDING ATTORNEYS' FEES AND EXPENSES, INCURRED BY AN INDEMNIFIED INDIVIDUAL OR ENTITY IN ATTEMPTING TO ENFORCE THIS INDEMNITY. In its sole discretion, the Owner shall have the right to approve counsel to be retained by Contractor in fulfilling its obligation to defend and indemnify the Owner. Contractor shall retain approved counsel for the Owner within seven (7) business days after receiving written notice from the Owner that it is invoking its right to indemnification under this Construction Agreement. If Contractor does not retain counsel for the Owner within the required time, then the Owner shall have the right to retain counsel and the Contractor shall pay these attorneys' fees and expenses. The Owner retains the right to provide and pay for any or all costs of defending indemnified items, but it shall not be required to do so. To the extent that Owner elects to provide and pay for any such costs, Contractor shall indemnify and reimburse Owner for such costs. Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 16 (Please note that this “broad-form” indemnification clause is not prohibited by Chapter 151 of the Texas Insurance Code as it falls within one of the exclusions contained in Section 151.105 of the Texas Insurance Code.) E. Insurance Requirements 1. Before commencing work, the Contractor shall, at its own expense, procure, pay for and maintain the following insurance coverage written by companies approved by the State of Texas and acceptable to the Town of Prosper. The Contractor shall furnish to the Town of Prosper Purchasing Agent certificates of insurance executed by the insurer or its authorized agent stating the type of coverages, limits of each such coverage, expiration dates and compliance with all applicable required provisions. Certificates shall reference the project/contract number and be addressed as follows: BID NO. 2018-54-B FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD Attn: Purchasing Agent 121 W. Broadway Prosper, Texas 75078 (a) Commercial General Liability insurance, including, but not limited to Premises/Operations, Personal & Advertising Injury, Products/Completed Operations, Independent Contractors and Contractual Liability, with minimum combined single limits of $1,000,000 per-occurrence, $1,000,000 Products/Completed Operations Aggregate and $2,000,000 general aggregate. If high risk or dangerous activities are included in the Work, explosion, collapse and underground (XCU) coverage is also required. Coverage must be written on an occurrence form. The General Aggregate shall apply on a per project basis. (b) Workers’ Compensation insurance with statutory limits; and Employers’ Liability coverage with minimum limits for bodily injury: a) by accident, $100,000 each accident, b) by disease, $100,000 per employee with a per policy aggregate of $500,000. (c) Umbrella or Excess Liability insurance with minimum limits of $2,000,000 each occurrence and annual aggregate for bodily injury and property damage, that follows form and applies in excess of the above indicated primary coverage in subparagraphs a and b. The total limits required may be satisfied by any combination of primary, excess or umbrella liability insurance provided all policies comply with all requirements. The Contractor may maintain reasonable deductibles, subject to approval by the Owner. 2. With reference to the foregoing required insurance, the Contractor shall endorse applicable insurance policies as follows: Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 17 (a) A waiver of subrogation in favor of Town of Prosper, its officials, employees, and officers shall be contained in the Workers’ Compensation insurance policy. (b) The Town of Prosper, its officials, employees and officers shall be named as additional insureds on the Commercial General Liability policy, by using endorsement CG2026 or broader. (Please note that this “additional insured” coverage requirement is not prohibited by Chapter 151 of the Texas Insurance Code as it falls within one of the exclusions contained in Section 151.105 of the Texas Insurance Code.) (c) All insurance policies shall be endorsed to the effect that Town of Prosper will receive at least thirty (30) days’ notice prior to cancellation, non- renewal, termination, or material change of the policies. 3. All insurance shall be purchased from an insurance company that meets a financial rating of “A” or better as assigned by the A.M. BEST Company or equivalent. 4. With respect to Workers’ Compensation insurance, the Contractor agrees to comply with all applicable provisions of 28 Tex. Admin Code § 110.110, “Reporting Requirements for Building or Construction Projects for Governmental Entities,” as such provision may be amended, and as set forth in Paragraph F following. F. Workers' Compensation Insurance Coverage 1. Definitions: Certificate of coverage ("certificate")- A copy of a certificate of insurance, a certificate of authority to self-insure issued by the commission, or a coverage agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-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 ("subcontractor" in §406.096) - 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. Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 18 2. The Contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which 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. 3. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. 4. 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. 5. The Contractor shall obtain from each person providing services on a project, and provide to the governmental entity: (a) 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 (b) no later than seven 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. 6. The Contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. 7. The Contractor shall notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the Contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project. 8. The Contractor shall post on each project site a notice, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, 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. 9. The Contractor shall contractually require each person with whom it contracts to provide services on a project, to: (a) provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which 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; (b) provide to the Contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 19 for all employees of the person providing services on the project, for the duration of the project; (c) 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; (d) obtain from each other person with whom it contracts, and provide to the Contractor: (1) a certificate of coverage, prior to the other person beginning work on the project; and (2) 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; (e) retain all required certificates of coverage on file for the duration of the project and for one year thereafter; (f) notify the governmental entity in writing by certified mail or personal delivery, within 10 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 (g) contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. 10. 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. 11. The Contractor's failure to comply with any of these provisions is a breach of contract by the Contractor which entitles the governmental entity to declare the contract void if the Contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 20 G. Performance, Payment and Maintenance Bonds The Contractor shall procure and pay for a Performance Bond applicable to the work in the amount of one hundred fifteen percent (115%) of the total bid price, and a Payment Bond applicable to the work in the amount of one hundred percent (100%) of the total bid price. The Contractor shall also procure and pay for a Maintenance Bond applicable to the work in the amount of one hundred percent (100%) of the total bid price. T he period of the Maintenance Bond shall be two years from the date of acceptance of all work done under the contract, to cover the guarantee as set forth in this Construction Agreement. The performance, payment and maintenance bonds shall be issued in the form attached to this Construction Agreement as Exhibits B, C and D. Other performance, payment and maintenance bond forms shall not be accepted. Among other things, these bonds shall apply to any work performed during the two-year warranty period after acceptance as described in this Construction Agreement. The performance, payment and maintenance bonds shall be issued by a corporate surety, acceptable to and approved by the Town, authorized to do business in the State of Texas, pursuant to Chapter 2253 of the Texas Government Code. Further, the Contractor shall supply capital and surplus information concerning the surety and reinsurance information concerning the performance, payment and maintenance bonds upon Town request. In addition to the foregoing requirements, if the amount of the bond exceeds One Hundred Thousand Dollars ($100,000) the bond must be issued by a surety that is qualified as a surety on obligations permitted or required under federal law as indicated by publication of the surety’s name in the current U.S. Treasury Department Circular 570. In the alternative, an otherwise acceptable surety company (not qualified on federal obligations) that is authorized and admitted to write surety bonds in Texas must obtain reinsurance on any amounts in excess of One Hundred Thousand Dollars ($100,000) from a reinsurer that is authorized and admitted as a reinsurer in Texas who also qualifies as a surety or reinsurer on federal obligations as indicated by publication of the surety’s or reinsurer’s name in the current U.S. Treasury Department Circular 570. H. Progress Payments and Retainage As it completes portions of the Work, the Contractor may request progress payments from the Owner. Progress payments shall be made by the Owner based on the Owner's estimate of the value of the Work properly completed by the Contractor since the time the last progress payment was made. The "estimate of the value of the work properly completed" shall include the net invoice value of acceptable, non-perishable materials actually delivered to and currently at the job site only if the Contractor provides to the Owner satisfactory evidence that material suppliers have been paid for these materials. No progress payment shall be due to the Contractor until the Contractor furnishes to the Owner: 1. copies of documents reasonably necessary to aid the Owner in preparing an estimate of the value of Work properly completed; 2. full or partial releases of liens, including releases from subcontractors providing materials or delivery services relating to the Work, in a form acceptable to the Owner releasing all liens or claims relating to goods and services provided up to the date of the most recent previous progress payment; Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 21 3. an updated and current schedule clearly detailing the project’s critical path elements; and 4. any other documents required under the Contract Documents. Progress payments shall not be made more frequently than once every thirty (30) calendar days unless the Owner determines that more frequent payments are appropriate. Further, progress payments are to be based on estimates and these estimates are subject to correction through the adjustment of subsequent progress payments and the final payment to Contractor. If the Owner determines after final payment that it has overpaid the Contractor, then Contractor agrees to pay to the Owner the overpayment amount specified by the Owner within thirty (30) calendar days after it receives written demand from the Owner. The fact that the Owner makes a progress payment shall not be deemed to be an admission by the Owner concerning the quantity, quality or sufficiency of the Contractor's work. Progress payments shall not be deemed to be acceptance of the Work nor shall a progress payment release the Contractor from any of its responsibilities under the Contract Documents. After determining the amount of a progress payment to be made to the Contractor, the Owner shall withhold a percentage of the progress payment as retainage. The amount of retainage withheld from each progress payment shall be set at five percent (5%). Retainage shall be withheld and may be paid to: a. ensure proper completion of the Work. The Owner may use retained funds to pay replacement or substitute contractors to complete unfinished or defective work; b. ensure timely completion of the Work. The Owner may use retained funds to pay liquidated damages; and c. provide an additional source of funds to pay claims for which the Owner is entitled to indemnification from Contractor under the Contract Documents. Retained funds shall be held by the Owner in accounts that shall not bear interest. Retainage not otherwise withheld in accordance with the Contract Documents shall be returned to the Contractor as part of the final payment. I. Withholding Payments to Contractor The Owner may withhold payment of some or all of any progress or final payment that would otherwise be due if the Owner determines, in its discretion, that the Work has not been performed in accordance with the Contract Documents. The Owner may use these funds to pay replacement or substitute contractors to complete unfinished or defective Work. The Owner may withhold payment of some or all of any progress or final payment that would otherwise be due if the Owner determines, in its discretion, that it is necessary and proper to provide an additional source of funds to pay claims for which the Owner is entitled to indemnification from Contractor under the Contract Documents. Amounts withheld under this section shall be in addition to any retainage. Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 22 J. Acceptance of the Work When the Work is completed, the Contractor shall request that the Owner perform a final inspection. The Owner shall inspect the Work. If the Owner determines that the Work has been completed in accordance with the Contract Documents, it shall issue a written notice of acceptance of the Work. If the Owner determines that the Work has not been completed in accordance with the Contract Documents, then it shall provide the Contractor with a verbal or written list of items to be completed before another final inspection shall be scheduled. It is specifically provided that Work shall be deemed accepted on the date specified in the Owner's written notice of acceptance of the Work. The Work shall not be deemed to be accepted based on "substantial completion" of the Work, use or occupancy of the Work, or for any reason other than the Owner's written Notice of Acceptance. Further, the issuance of a certificate of occupancy for all or any part of the Work shall not constitute a Notice of Acceptance for that Work. In its discretion, the Owner may issue a Notice of Acceptance covering only a portion of the Work. In this event, the notice shall state specifically what portion of the Work is accepted. K. Acceptance of Erosion Control Measures When the erosion control measures have been completed, the Contractor shall request that the Owner perform a final inspection. The Owner shall inspect the Work. If the Owner determines that the Work has been completed in accordance with the Contract Documents and per TPDES General Construction Permit, it shall issue a written Notice of Acceptance of the Work. If the Owner determines that the Work has not been completed in accordance with the Contract Documents or TPDES General Construction Permit, then it shall provide the Contractor with a verbal or written list of items to be completed before another final inspection shall be scheduled. L. Final Payment After all Work required under the Contract Documents has been completed, inspected, and accepted, the Town shall calculate the final payment amount promptly after necessary measurements and computations are made. The final payment amount shall be calculated to: 1. include the estimate of the value of Work properly completed since the date of the most recent previous progress payment; 2. correct prior progress payments; and 3. include retainage or other amounts previously withheld that are to be returned to Contractor, if any. Final payment to the Contractor shall not be due until the Contractor provides original full releases of liens from the Contractor and its subcontractors, or other evidence satisfactory to the Owner to show that all sums due for labor, services, and materials furnished for or used in connection with the Work have been paid or shall be paid with the final payment. To ensure this result, Contractor consents to the issuance of the final payment in the form of joint checks made payable to Contractor and others. The Owner may, but is not obligated to issue final payment using joint checks. Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 23 Final payment to the Contractor shall not be due until the Contractor has supplied to the Owner original copies of all documents that the Owner determines are reasonably necessary to ensure both that the final payment amount is properly calculated and that the Owner has satisfied its obligation to administer the Construction Agreement in accordance with applicable law. The following documents shall, at a minimum, be required to be submitted prior to final payment being due: redline as-built construction plans; consent of surety to final payment; public infrastructure inventory; affidavit of value for public infrastructure; and, final change order(s). “Redline as-built construction plans” shall include, but are not limited to markups for change orders, field revisions, and quantity overruns as applicable. The list of documents contained in this provision is not an exhaustive and exclusive list for every project performed pursuant to these Contract Documents and Contractor shall provide such other and further documents as may be requested and required by the Owner to close out a particular project. Subject to the requirements of the Contract Documents, the Owner shall pay the Final Payment within thirty (30) calendar days after the date specified in the Notice of Acceptance. This provision shall apply only after all Work called for by the Contract Documents has been accepted. M. Contractor’s Warranty For a two-year period after the date specified in a written notice of acceptance of Work, Contractor shall provide and pay for all labor and materials that the Owner determines are necessary to correct all defects in the Work arising because of defective materials or workmanship supplied or provided by Contractor or any subcontractor. This shall also include areas of vegetation that did meet TPDES General Construction Permit during final close out but have since become noncompliant. Forty-five (45) to sixty (60) calendar days before the end of the two-year warranty period, the Owner may make a warranty inspection of the Work. The Owner shall notify the Contractor of the date and time of this inspection so that a Contractor representative may be present. After the warranty inspection, and before the end of the two-year warranty period, the Owner shall mail to the Contractor a written notice that specifies the defects in the Work that are to be corrected. The Contractor shall begin the remedial work within ten (10) calendar days after receiving the written notice from the Town. If the Contractor does not begin the remedial work timely or prosecute it diligently, then the Owner may pay for necessary labor and materials to effect repairs and these expenses shall be paid by the Contractor, the performance bond surety, or both. If the Owner determines that a hazard exists because of defective materials and workmanship, then the Owner may take steps to alleviate the hazard, including making repairs. These steps may be taken without prior notice either to the Contractor or its surety. Expenses incurred by the Owner to alleviate the hazard shall be paid by the Contractor, the performance bond surety, or both. Any Work performed by or for the Contractor to fulfill its warranty obligations shall be performed in accordance with the Contract Documents. By way of example only, this is to ensure that Work performed during the warranty period is performed with required insurance and the performance and payment bonds still in effect. Work performed during the two-year warranty period shall itself be subject to a one-year warranty. This warranty shall be the same as described in this section. Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 24 The Owner may make as many warranty inspections as it deems appropriate. N. Compliance with Laws The Contractor shall be responsible for ensuring that it and any subcontractors performing any portion of the Work required under the Contract Documents comply with all applicable federal, state, county, and municipal laws, regulations, and rules that relate in any way to the performance and completion of the Work. This provision applies whether or not a legal requirement is described or referred to in the Contract Documents. Ancillary/Integral Professional Services: In selecting an architect, engineer, land surveyor, or other professional to provide professional services, if any, that are required by the Contract Documents, Contractor shall not do so on the basis of competitive bids but shall make such selection on the basis of demonstrated competence and qualifications to perform the services in the manner provided by Section 2254.004 of the Texas Government Code and shall so certify to the Town the Contractor's agreement to comply with this provision with Contractor's bid. O. Other Items The Contractor shall sign the Construction Agreement, and deliver signed performance, payment and maintenance bonds and proper insurance policy endorsements (and/or other evidence of coverage) within ten (10) calendar days after the Owner makes available to the Contractor copies of the Contract Documents for signature. Six (6) copies of the Contract Documents shall be signed by an authorized representative of the Contractor and returned to the Town. The Construction Agreement "effective date" shall be the date on which the Town Council acts to approve the award of the Contract for the Work to Contractor. It is expressly provided, however, that the Town Council delegates the authority to the Town Manager or his designee to rescind the Contract award to Contractor at any time before the Owner delivers to the Contractor a copy of this Construction Agreement that bears the signature of the Town Manager and Town Secretary or their authorized designees. The purpose of this provision is to ensure: 1. that Contractor timely delivers to the Owner all bonds and insurance documents; and 2. that the Owner retains the discretion not to proceed if the Town Manager or his designee determines that information indicates that the Contractor was not the lowest responsible bidder or that the Contractor cannot perform all of its obligations under the Contract Documents. THE CONTRACTOR AGREES THAT IT SHALL HAVE NO CLAIM OR CAUSE OF ACTION OF ANY KIND AGAINST OWNER, INCLUDING A CLAIM FOR BREACH OF CONTRACT, NOR SHALL THE OWNER BE REQUIRED TO PERFORM UNDER THE CONTRACT DOCUMENTS, UNTIL THE DATE THE OWNER DELIVERS TO THE CONTRACTOR A COPY OF THE CONSTRUCTION AGREEMENT BEARING THE SIGNATURES JUST SPECIFIED. The Contract Documents shall be construed and interpreted by applying Texas law. Exclusive venue for any litigation concerning the Contract Documents shall be Collin County, Texas. Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 25 Although the Construction Agreement has been drafted by the Owner, should any portion of the Construction Agreement be disputed, the Owner and Contractor agree that it shall not be construed more favorably for either party. The Contract Documents are binding upon the Owner and Contractor and shall insure to their benefit and as well as that of their respective successors and assigns. If Town Council approval is not required for the Construction Agreement under applicable law, then the Construction Agreement "effective date" shall be the date on which the Town Manager and Town Secretary or their designees have signed the Construction Agreement. If the Town Manager and Town Secretary sign on different dates, then the later date shall be the effective date. PAVECON PUBLIC WORKS, L.P. TOWN OF PROSPER, TEXAS By: By: HARLAN JEFFERSON Title: Title: Town Manager Date: Date: Address: 3022 Roy Orr Blvd. Grand Prairie, Texas 75050 Phone: (972) 263-3223 Fax: (972) 263-6551 Address: 121 W. Broadway Prosper, Texas 75078 Phone: (972) 346 - 2640 Fax: (972) 569 - 9335 ATTEST: ROBYN BATTLE Town Secretary Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 26 PERFORMANCE BOND STATE OF TEXAS ) ) COUNTY OF COLLIN ) KNOW ALL MEN BY THESE PRESENTS: That __________________ whose address is __________________________________________________________________________, hereinafter called Principal,and __________________________________________________________, a corporation organized and existing under the laws of the State of ______________________________, and fully licensed to transact business in the State of Texas, as Surety, are held and firmly bound unto the TOWN OF PROSPER, a home-rule municipal corporation organized and existing under the laws of the State of Texas, hereinafter called “Beneficiary”, in the penal sum of __________________ Dollars ($____________) plus fifteen percent (15%) of the stated penal sum as an additional sum of money representing additional court expenses, attorneys’ fees, and liquidated damages arising out of or connected with the below identified Contract in lawful money of the United States, to be paid in Collin County, Texas, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators and successors, jointly and severally, firmly by these presents. The penal sum of this Bond shall automatically be increased by the amount of any Change Order or Supplemental Agreement, which increases the Contract price, but in no event shall a Change Order or Supplemental Agreement, which reduces the Contract price, decrease the penal sum of this Bond. THE OBLIGATION TO PAY SAME is conditioned as follows: Whereas, the Principal entered into a certain Contract with the Town of Prosper, the Beneficiary, dated on or about the _________ day of ___________________, A.D. 20____, a copy of which is attached hereto and made a part hereof, to furnish all materials, equipment, labor, supervision, and other accessories necessary for the construction of: BID NO. 2018-54-B FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD in the Town of Prosper, Texas, as more particularly described and designated in the above-referenced contract such contract being incorporated herein and made a part hereof as fully and to the same extent as if written herein word for word. NOW, THEREFORE, if the Principal shall well, truly and faithfully perform and fulfill all of the undertakings, covenants, terms, conditions and agreements of said Contract in accordance with the Plans, Specifications and Contract Documents during the original term thereof and any extension thereof which may be granted by the Beneficiary, with or without notice to the Surety, and during the life of any guaranty or warranty required under this Contract, and shall also well and truly perform and fulfill all the undertakings, covenants, terms, conditions and agreements of any and all duly authorized modifications of said Contract that may hereafter be made, notice of which modifications to the Surety being hereby waived; and, if the Principal shall repair and/or replace all defects due to faulty materials and workmanship that appear within a period of one (1) year from the date of final completion and final acceptance of the Work by Owner; and, if the Principal shall fully indemnify and save harmless the Beneficiary from and against all costs and damages which Beneficiary may suffer by reason of failure to so perform herein and shall fully reimburse and repay Beneficiary all outlay and expense which the Beneficiary may incur in 13th March 18 Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 27 making good any default or deficiency, then this obligation shall be void; otherwise, it shall remain in full force and effect. PROVIDED FURTHER, that if any legal action were filed on this Bond, exclusive Venue shall lie in Collin County, Texas. AND PROVIDED FURTHER, that the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract or to the Work to be performed thereunder or the Plans, Specifications and Drawings, etc., accompanying the same shall in anywise affect its obligation on this Bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the Work or to the Specifications. This Bond is given pursuant to the provisions of Chapter 2253 of the Texas Government Code, and any other applicable statutes of the State of Texas. The undersigned and designated agent is hereby designated by the Surety herein as the Resident Agent in Collin County or Dallas County to whom any requisite notices may be delivered and on whom service of process may be had in matters arising out of such suretyship, as provided by Article 7.19-1 of the Insurance Code, Vernon’s Annotated Civil Statutes of the State of Texas. IN WITNESS WHEREOF, this instrument is executed in three copies, each one of which shall be deemed an original, this, the ________ day of ________________, 20____. ATTEST: PRINCIPAL: ___________________________________ Company Name By: _________________________________ By: ________________________________ Signature Signature ____________________________________ ___________________________________ Typed/Printed Name Typed/Printed Name ____________________________________ ___________________________________ Title Title ____________________________________ ___________________________________ Address Address ____________________________________ ___________________________________ City State Zip City State Zip ___________________________________ ___________________________________ Phone Fax Phone Fax [Signatures continued on following page.] Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 28 ATTEST: SURETY: By: _________________________________ By: ________________________________ Signature Signature ____________________________________ ___________________________________ Printed Name Printed Name ____________________________________ ___________________________________ Title Title ____________________________________ ___________________________________ Address Address ____________________________________ ___________________________________ City State Zip City State Zip ___________________________________ ___________________________________ Phone Fax Phone Fax The Resident Agent of the Surety in Collin County or Dallas County, Texas, for delivery of notice and service of the process is: NAME: STREET ADDRESS: CITY, STATE, ZIP: NOTE: Date on Page 1 of Performance Bond must be same date as Contract. Date on Page 2 of Performance Bond must be after date of Contract. If Resident Agent is not a corporation, give a person’s name. Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 29 PAYMENT BOND STATE OF TEXAS ) ) COUNTY OF COLLIN ) KNOW ALL MEN BY THESE PRESENTS: That __________________ whose address is ____________________________________________________________________________, hereinafter called Principal, and__________________________________________________________, a corporation organized and existing under the laws of the State of ______________________________, and fully licensed to transact business in the State of Texas, as Surety, are held and firmly bound unto the TOWN OF PROSPER, a home-rule municipal corporation organized and existing under the laws of the State of Texas, hereinafter called “Owner”, and unto all persons, firms, and corporations who may furnish materials for, or perform labor upon the building or improvements hereinafter referred to in the penal sum of ___________________________________ DOLLARS ($_______________) (one hundred percent (100%) of the total bid price) in lawful money of the United States, to be paid in Collin County, Texas, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators and successors, jointly and severally, firmly by these presents. The penal sum of this Bond shall automatically be increased by the amount of any Change Order or Supplemental Agreement, which increases the Contract price, but in no event shall a Change Order or Supplemental Agreement, which reduces the Contract price, decrease the penal sum of this Bond. THE OBLIGATION TO PAY SAME is conditioned as follows: Whereas, the Principal entered into a certain Contract with the Town of Prosper, the Owner, dated on or about the __________ day of _________________, A.D. 20___, a copy of which is attached hereto and made a part hereof, to furnish all materials, equipment, labor, supervision, and other accessories necessary for the construction of: BID NO. 2018-54-B FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD NOW THEREFORE, if the Principal shall well, truly and faithfully perform its duties and make prompt payment to all persons, firms, subcontractors, corporations and claimants supplying labor and/or material in the prosecution of the Work provided for in the above-referenced Contract and any and all duly authorized modifications of said Contract that may hereafter be made, notice of which modification to the Surety is hereby expressly waived, then this obligation shall be void; otherwise it shall remain in full force and effect. PROVIDED FURTHER, that if any legal action were filed on this Bond, exclusive venue shall lie in Collin County, Texas. AND PROVIDED FURTHER, that the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract, or to the Work performed thereunder, or the Plans, Specifications, Drawings, etc., accompanying the same, shall in anywise affect its obligation on this Bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the Work to be performed thereunder. 13th March 18 Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 30 This Bond is given pursuant to the provisions of Chapter 2253 of the Texas Government Code, and any other applicable statutes of the State of Texas. The undersigned and designated agent is hereby designated by the Surety herein as the Resident Agent in Collin County or Dallas County to whom any requisite notices may be delivered and on whom service of process may be had in matters arising out of such suretyship, as provided by Article 7.19-1 of the Insurance Code, Vernon’s Annotated Civil Statutes of the State of Texas. IN WITNESS WHEREOF, this instrument is executed in three copies, each one of which shall be deemed an original, this, the _______ day of _________________, 20___. ATTEST: PRINCIPAL: ___________________________________ Company Name By: _________________________________ By: ________________________________ Signature Signature ____________________________________ ___________________________________ Typed/Printed Name Typed/Printed Name ____________________________________ ___________________________________ Title Title ____________________________________ ___________________________________ Address Address ____________________________________ ___________________________________ City State Zip City State Zip ___________________________________ ___________________________________ Phone Fax Phone Fax [Signatures continued on following page.] Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 31 ATTEST: SURETY: By: _________________________________ By: ________________________________ Signature Signature ____________________________________ ___________________________________ Printed Name Printed Name ____________________________________ ___________________________________ Title Title ____________________________________ ___________________________________ Address Address ____________________________________ ___________________________________ City State Zip City State Zip ___________________________________ ___________________________________ Phone Fax Phone Fax The Resident Agent of the Surety in Collin County or Dallas County, Texas, for delivery of notice and service of the process is: NAME: STREET ADDRESS: CITY, STATE, ZIP: NOTE: Date on Page 1 of Performance Bond must be same date as Contract. Date on Page 2 of Performance Bond must be after date of Contract. If Resident Agent is not a corporation, give a person’s name. Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 32 MAINTENANCE BOND STATE OF TEXAS ) ) COUNTY OF COLLIN ) KNOW ALL MEN BY THESE PRESENTS: That _______________________________ whose address is________________________________________________, hereinafter referred to as “Principal,” and ___________________________________, a corporate surety/sureties organized under the laws of the State of ____________ and fully licensed to transact business in the State of Texas, as Surety, hereinafter referred to as “Surety” (whether one or more), are held and firmly bound unto the TOWN OF PROSPER, a Texas municipal corporation, hereinafter referred to as “Owner,” in the penal sum of ___________________________________ DOLLARS ($_______________) (one hundred percent (100%) of the total bid price), in lawful money of the United States to be paid to Owner, its successors and assigns, for the payment of which sum well and truly to be made, we bind ourselves, our successors, heirs, executors, administrators and successors and assigns, jointly and severally; and firmly by these presents, the condition of this obligation is such that: WHEREAS, Principal entered into a certain written Contract with the Town of Prosper, dated on or about the _____ day of ________________________, 20____, to furnish all permits, licenses, bonds, insurance, products, materials, equipment, labor, supervision, and other accessories necessary for the construction of: BID NO. 2018-54-B FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD in the Town of Prosper, Texas, as more particularly described and designated in the above- referenced contract, such contract being incorporated herein and made a part hereof as fully and to the same extent as if written herein word for word: WHEREAS, in said Contract, the Principal binds itself to use first class materials and workmanship and of such kind and quality that for a period of two (2) years from the completion and final acceptance of the improvements by Owner the said improvements shall require no repairs, the necessity for which shall be occasioned by defects in workmanship or materials and during the period of two (2) years following the date of final acceptance of the Work by Owner, Principal binds itself to repair or reconstruct said improvements in whole or in part at any time within said period of time from the date of such notice as the Town Manager or his designee shall determine to be necessary for the preservation of the public health, safety or welfare. If Principal does not repair or reconstruct the improvements within the time period designated, Owner shall be entitled to have said repairs made and charge Principal and/or Surety the cost of same under the terms of this Maintenance Bond. NOW, THEREFORE, if Principal will maintain and keep in good repair the Work herein contracted to be done and performed for a period of two (2) years from the date of final acceptance and do and perform all necessary work and repair any defective condition (it being understood that the purpose of this section is to cover all defective conditions arising by reason of defective materials, work or labor performed by Principal) then this obligation shall be void; otherwise it shall remain in full force and effect and Owner shall have and recover from Principal and its Surety damages in the premises as provided in the Plans and Specifications and Contract. 13th March 18 Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 33 PROVIDED, however, that Principal hereby holds harmless and indemnifies Owner from and against any claim or liability for personal injury or property damage caused by and occurring during the performance of said maintenance and repair operation. PROVIDED, further, that if any legal action be filed on this Bond, exclusive venue shall lie in Collin County, Texas. AND PROVIDED FURTHER, Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract or to the Work performed thereunder, or the Plans, Specifications, Drawings, etc. accompanying same shall in any way affect its obligation on this Bond; and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract or to the Work to be performed thereunder. The undersigned and designated agent is hereby designated by Surety as the resident agent in either Collin or Dallas Counties to whom all requisite notice may be delivered and on whom service of process may be had in matters arising out of this suretyship. IN WITNESS WHEREOF, this instrument is executed in three copies, each one of which shall be deemed an original, on this the _____ day of ____________, 20____. ATTEST: PRINCIPAL: ___________________________________ Company Name By: _________________________________ By: ________________________________ Signature Signature ____________________________________ ___________________________________ Typed/Printed Name Typed/Printed Name ____________________________________ ___________________________________ Title Title ____________________________________ ___________________________________ Address Address ____________________________________ ___________________________________ City State Zip City State Zip ___________________________________ ___________________________________ Phone Fax Phone Fax [Signatures continued on following page.] Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 34 ATTEST: SURETY: By: _________________________________ By: ________________________________ Signature Signature ____________________________________ ___________________________________ Printed Name Printed Name ____________________________________ ___________________________________ Title Title ____________________________________ ___________________________________ Address Address ____________________________________ ___________________________________ City State Zip City State Zip ___________________________________ ___________________________________ Phone Fax Phone Fax Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 35 GENERAL CONDITIONS GC.01 PURPOSE: The General Conditions contained herein set forth conditions or requirements common to this Contract and all other construction contracts issued by the Town of Prosper. GC.02 DEFINITIONS: The following words and expressions, or pronouns used in their place, shall wherever they appear in this Contract, be construed as follows, unless a different meaning is clear from the context: CALENDAR DAY: Any days of the week or month, no days being excepted. CONTRACT DOCUMENTS: All of the written, printed, typed, and drawn instruments that comprise and govern the performance of the contract as defined by the Construction Agreement. ENGINEER: The ENGINEER of the OWNER or his designee. EXTRA WORK: Work required by the OWNER other than that which is expressly or impliedly required by the Contract Documents at the time of execution of the Contract. HOLIDAYS: The ten official holidays observed are New Year's Day, Martin Luther King Day, Good Friday, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Day After Thanksgiving Day, Christmas Eve, and Christmas Day. If a holiday falls on a Saturday, it shall be observed on the preceding Friday. If a holiday falls on a Sunday, it shall be observed on the following Monday. OWNER: The Town of Prosper, Texas, acting through the Town Manager under authority granted by the Town Council. OWNER'S REPRESENTATIVE: The Executive Director of Development and Community Services of the Town of Prosper or his designee. SUB-CONTRACTOR: Any persons, firm or corporation, other than employees of the CONTRACTOR, who or which contracts with the CONTRACTOR to furnish, or who actually furnishes, labor and/or materials and equipment at or about the site. SUBSTANTIALLY COMPLETE: The condition upon which the Work has been made suitable for use and may serve its intended purpose but may still require minor miscellaneous work and adjustment. WORK: All work to be performed by the CONTRACTOR under the terms of the Contract, including the furnishing of all materials, supplies, machinery, equipment, tools, superintendence, labor, submittals, services, insurance, permits, certificates, licenses, and all water, light, power, fuel, transportation, facilities, and other incidentals. WRITTEN NOTICE: Notice required by the Contract shall be served concurrently to the OWNER'S REPRESENTATIVE, ENGINEER, and/or CONTRACTOR. Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 36 Notice delivered by mail shall be effective on the postmark date, notice delivered by hand shall be effective the date of delivery, and notice delivered by facsimile or e-mail shall be effective the date of transmission, provided that any notice served after 5 PM or on a weekend or holiday shall be effective the following business day. GC.03 GENERAL RESPONSIBILITIES AND UNDERSTANDINGS: (a) Intent of Contract Documents: The intent of the Contract Documents is to prescribe a complete work or improvement, which the CONTRACTOR undertakes to do in full compliance with the plans, specifications, special provisions, proposal and contract. The CONTRACTOR shall do all work as provided in the plans, specifications, special provisions, proposal and contract, and shall do such additional extra work as may be considered necessary to complete the work in satisfactory and acceptable manner. The CONTRACTOR shall furnish all labor, tools, materials, machinery, equipment and incidentals necessary to the satisfactory prosecution and completion of the work. (b) No Waiver of Legal Right: Inspection by the OWNER or ENGINEER, any order, measurement, or certificate by OWNER or ENGINEER, any order by the OWNER for payment of money, any payment for or acceptance of any work, or any extension of time, or any possession taken by the OWNER, shall not operate as a waiver of any provisions of the Contract Documents or any power therein reserved to the OWNER of any rights or damages therein provided. Any waiver of any breach of contract shall not be held to be a waiver of any other subsequent breach. The OWNER deserves the right to correct any error that may be discovered in any estimate that may have been paid and to adjust the same to meet the requirements of the contract and specifications. The OWNER reserves the right to claim and recover by process of law sums as may be sufficient to correct any error or make good any deficiency in the work resulting from such error, dishonesty or collusion, upon the conclusive proof of collusion or dishonesty by the CONTRACTOR or his agents and the ENGINEER or his assistants, discovered in the work after the final payment has been made. (c) Changes and Alterations: The CONTRACTOR further agrees that the OWNER or ENGINEER may make such changes and alterations as the OWNER may see fit, in the line, grade, form, dimensions, plans or materials for the work herein contemplated, or any part thereof, either before or after the beginning of the construction, without affecting the validity of this contract and the accompany Performance and Payment Bonds. If such changes or alterations diminish the quantity of the work to be done, they shall not constitute the basis for a claim for damages for anticipated profits on the work that may be dispensed with. If the amount of work is increased, such additional work shall be paid for as provided under Extra Work. In case the OWNER shall make such changes or alterations as shall make useless any work already done or material already furnished or used in said work, then the OWNER shall recompense 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. Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 37 (d) Discrepancies and Omissions: It is further agreed that it is the intent of this contract that all work must be done and all material must be furnished in accordance with the generally accepted practice, and in the event of any discrepancies between the separate contract documents, the priority of interpretation defined by the Construction Agreement shall govern. In the event that there is still any doubt as to the meaning and intent of any portion of the contract, specifications or drawings, the ENGINEER shall define which is intended to apply to the work. (e) Plans and Specifications: The OWNER shall furnish the CONTRACTOR with an adequate and reasonable number of copies of all plans and specifications without expense to him, and the CONTRACTOR shall keep one copy of the same constantly accessible on the work, with the latest revisions noted thereon. (f) Ownership of Drawings: All drawings, specifications and copies thereof furnished by the OWNER shall not be reused on other work, and, with the exception of the signed contract sets, are to be returned to him on request, at the completion of the work. All models are the property of the OWNER. (g) Adequacy of Design: It is understood that the OWNER believes it has employed competent engineers and designers. It is, therefore, agreed that, as to the CONTRACTOR only, the OWNER shall be responsible for the adequacy of the design, sufficiency of the Contract Documents, and the practicability of the operations of the completed project; provided the CONTRACTOR has complied with the requirements of the said Contract Documents, all approved modifications thereof, and additions and alterations thereto approved in writing by the OWNER. The burden of proof of such compliance shall be upon the CONTRACTOR to show that he has complied with the said requirements of the Contract Documents, approved modifications thereof and all approved additions and alterations thereto. (h) Line and Grade: The ENGINEER will furnish control benchmarks for the construction of the Work. The CONTRACTOR shall use the control benchmarks and data shown on the drawings. No construction staking will be provided by the ENGINEER or owner for this project. Any restaking, and all construction staking, required shall be at the sole cost of the CONTRACTOR. (i) Right of Way and Easements: The OWNER will obtain all necessary right of ways and easements required for the completion of the Work. No work shall be undertaken on nor shall men, tools, equipment, or other supplies occupy any ground outside right of ways and easements. If Contractor wants to work outside right of ways and easements and is able to make an agreement with the Property Owner, then the agreement should be documented and signed by the Property Owner and CONTRACTOR with a copy submitted to the OWNER before work off the easement commences. The OWNER will obtain permits and/or license agreements necessary for work to be performed on right of ways or easements owned by other agencies including, but not limited to, the Texas Departments of Transportation, North Texas Tollway Authority, BNSF Railway, and utility companies. The CONTRACTOR shall comply with the conditions of these permits and/or license agreements as if they were a part of the Contract Documents. Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 38 (j) Existing Utilities and Structures: The location of existing utilities shown on the plans are based on the interpretation of the best available information and are not warranted by the OWNER or ENGINEER. It shall be the responsibility of the CONTRACTOR to verify and/or locate the various locations of pertinent utilities prior to or during construction. If any utility or irrigation system is broken by the Contractor, it shall be the responsibility of the CONTRACTOR to repair, at his own expense, the damaged line and restore it to its functional use. (k) Right of Entry: The OWNER reserves the right to enter the property or location on which the works herein contracted for are to be constructed or installed, by such agent or agents as he may elect, for the purpose of inspecting the work, or for the purpose of constructing or installing such collateral work as said OWNER may desire. The CONTRACTOR shall conduct his work so as not to impede unnecessarily any work being done by others on or adjacent to the site. (l) Collateral Contracts: The OWNER agrees to provide by separate contract or otherwise, all labor and material essential to the completion of the work specifically excluded from this contract, in such manner as not to delay the progress of the work or damage said CONTRACTOR, except where such delays are specifically mentioned elsewhere in the Contract Documents. (m) Objections and Determinations: The ENGINEER shall determine all claims disputes and other matters in question between the CONTRACTOR and the OWNER relating to the execution or progress of the work or the interpretation of the Contract Documents. The ENGINEER'S decision shall be rendered in writing within a reasonable time and shall be binding. (n) Owner-Engineer Relationship: The duties, responsibilities and limitations of authority of the ENGINEER during construction are as set forth in the Contract Documents and shall not be extended or limited without written consent of the OWNER and ENGINEER. The ENGINEER will advise and consult with the OWNER, and OWNER'S instructions to the CONTRACTOR may be issued through the ENGINEER as if they were issued by the OWNER directly. GC.04 CONTRACTOR RESPONSIBILITIES: (a) Contractor Independence: The CONTRACTOR is and at all times shall remain an independent contractor, solely responsible for the manner and method of completing his work under this contract, with full power and authority to select the means, method and manner of performing such work, so long as such methods do not adversely affect the completed improvements, the OWNER and ENGINEER being interested only in the result obtained and conformity of such completed improvements to the Contract Documents. (b) Assignment and Subletting: The CONTRACTOR agrees that he will retain personal control and will give his personal attention to the fulfillment of this contract and that he will not assign by Power of Attorney, or otherwise, or sublet said contract without the written consent of the OWNER or ENGINEER, and that no part or feature of the work will be sublet to anyone objectionable to the ENGINEER or the OWNER. The CONTRACTOR further agrees that the subletting of any portion or feature of the work, or materials required in the performance of this Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 39 contract, shall not relieve the CONTRACTOR from his full obligations to the OWNER, as provided by this Agreement. (c) Contractor’s Understanding: It is understood and agreed that the CONTRACTOR has, by careful examination, satisfied himself as to the nature and location of the work, the conformation of the ground, the character, quality and quantity of the materials to be encountered, the character of equipment and facilities needed preliminary to and during the prosecution of the work, the general and local conditions, and all other matters which can in any way affect the work under this contract. No verbal agreement or conversation with any officer, agent or employee of the OWNER or ENGINEER, either before or after the execution of this contact, shall affect or modify any of the terms or obligations herein contained. (d) Duty of Contractor: The CONTRACTOR shall be solely responsible for the safety of himself, his employees and other persons, as well as for the protection of the safety of the improvements being erected and the property of himself or any other person, as a result of his operations hereunder. CONTRACTOR shall be fully and completely liable, at his own expense, for design, construction, installation and use, or non-use, of all items and methods incident to performance of the contract, and for all loss, damage or injury incident thereto, either to person or property, including, without limitation, the adequacy of all temporary supports, shoring, bracing, scaffolding, machinery or equipment, safety precautions or devices, and similar items or devices used by him during construction (e) Supervision by Contractor: The CONTRACTOR shall give adequate attention to the faithful prosecution and completion of this contract and shall keep on the work, during its progress, a competent superintendent and any necessary assistants. The superintendent shall represent the CONTRACTOR in his absence and all directions given to him shall be as binding as if given to the CONTRACTOR. (f) Character of Workmen: The CONTRACTOR agrees to employ only orderly and competent men, skillful in the performance of the type of work required under this contract, to do the work; and agrees that whenever the OWNER or ENGINEER shall inform him in writing that any man or men on the work are, in his opinion, incompetent, unfaithful or disorderly, such man or men shall be discharged from the work and shall not again be employed on the work without the OWNER’S or ENGINEER'S written consent. (g) Contractor’s Buildings: The building of structures or the erection of tents or other forms of protection will be permitted only for use as temporary office space or for storage of materials, equipment, and supplies and only at such places as the OWNER or ENGINEER shall direct, and the sanitary conditions of the grounds in or about such structures shall at all times be maintained in a manner satisfactory to the OWNER or ENGINEER. At no time shall employees or agents of the CONTRACTOR occupy such facilities except in conjunction with performance of the Work. (h) Protection of Site: The Contractor shall protect all structures, walks, pipe lines, trees, shrubbery, lawns and other improvements during the progress of his work and shall remove from the site all debris and unused materials. Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 40 (i) Sanitation: Necessary sanitary conveniences for the use of laborers on the work, properly secluded from public observation, shall be constructed and maintained by the CONTRACTOR in such manner and at such points as shall be approved by the OWNER or ENGINEER, and their use shall be strictly enforced. (j) Equipment, Materials, and Construction Plant: The CONTRACTOR shall be responsible for the care, preservation, conservation, protection and replacement of all materials, supplies, machinery, equipment, tools, apparatus, accessories, facilities, all means of construction, and any and all parts of the work, whether the CONTRACTOR has been paid, partially paid, or not paid for such work, or whether OWNER has taken possession of completed portions of such work, until the entire work is completed and accepted. (k) Losses from Natural Causes: Unless otherwise specified, all loss or damage to the CONTRACTOR arising out of the nature of the work to be done, or from the action of the elements, or from any unforeseen circumstance in the prosecution of the same, or from unusual obstructions or difficulties which may be encountered in the prosecution of the work, shall be sustained and borne by the CONTRACTOR at his own cost and expense. GC.05 PROTECTION OF PERSONS AND PROPERTY: (a) Protection Against Claims: If any person files a claim against the OWNER, OWNER’s Agent or CONTRACTOR for personal injury or property damage resulting from, arising out of, or caused by, the operations of the CONTRACTOR, or any Work within the limits of the Project, the CONTRACTOR must either submit to the OWNER a duly executed full release within thirty (30) calendar days from the date of written claim, or immediately report the claim to his liability insurance carrier for their action in adjusting the claim. If the CONTRACTOR fails to comply with this provision within the stipulated time limit, it will be automatically deemed that the CONTRACTOR has appointed the OWNER as its irrevocable Attorney In Fact authorizing the OWNER to report the claim directly with the CONTRACTOR’s liability insurance carrier. This provision is in and of itself a Power of Attorney from the CONTRACTOR to the OWNER, which authorizes the OWNER to take said action on behalf of the CONTRACTOR without the necessity of the execution of any other document. If the CONTRACTOR fails to comply with the provisions of this item, the OWNER, at its own discretion, may terminate this contract or take any other actions it deems appropriate. Any payment or portion thereof due the CONTRACTOR, whether it is a final payment, progress payment, payment out of retainage or refund payment may be withheld by the OWNER. Bankruptcy, insolvency or denial of liability by the CONTRACTOR’s insurance carrier shall not exonerate the CONTRACTOR from liability. As a result of the additional work created to OWNER due to non-response of claims for damages by CONTRACTOR to third parties, CONTRACTOR shall incur penalties for failure to abide by this Special Condition. The CONTRACTOR shall respond to the claimant in writing regarding the status of the claim, including whether CONTRACTOR disputes the claim, wishes to settle, or will notify its liability insurance carrier regarding the claim. CONTRACTOR will be assessed a penalty by OWNER of $75.00 per claim, for its failure to respond to Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 41 the claimant as described above within thirty (30) calendar days of its written notice of claim by the City. To ensure CONTRACTOR compliance, the OWNER shall be notified, by copied correspondence of responses or settlement by CONTRACTOR. (b) Protection Against Accidents to Employees and the Public: The CONTRACTOR shall at all times exercise reasonable precautions for the safety of employees and others on or near the work and shall comply with all applicable provisions of Federal, State, and Municipal safety laws and building and construction codes. All machinery and equipment and other physical hazards shall be guarded in accordance with the "Manual of Accident Prevention in Construction" of the Associated General contractors of America except where incompatible with Federal, State, or Municipal laws or regulations. The CONTRACTOR shall provide such machinery guards, safe walkways, ladders, bridges, gangplanks, and other safety devices. The safety precautions actually taken and their adequacy shall be the sole responsibility of the CONTRACTOR, acting at his discretion as an independent contractor. (c) Protection of Adjoining Property: The CONTRACTOR shall take proper means to communicate with the adjacent or adjoining property owners and protect the adjacent or adjoining property or properties in any way encountered, which might be injured or seriously affected by any process of construction to be undertaken under this Agreement, from any damage or injury by reason of said process of construction; and he shall be liable for any and all claims for such damage on account of his failure to fully protect all adjoining property. (d) Protection Against Royalties or Patented Invention: The CONTRACTOR shall pay all royalties and license fees, and shall provide for the use of any design, device, material or process covered by letters patent or copyright by suitable legal agreement with the patentee or owner. (e) Threats to Persons or Property: The CONTRACTOR shall respond promptly to any imminent threat to persons or property arising from or in relation to performance of the Work. Failure to promptly correct any threat to persons or property may result in a temporary suspension of work until such time as the threat is resolved. GC.06 PROSECUTION AND PROGRESS: (a) Time and Order of Completion: It is the meaning and intent of this contract, unless otherwise herein specifically provided, that the CONTRACTOR shall be allowed to prosecute his work in such manner as shall be most conducive to economy of construction; provided however, that the order and the time of prosecution shall be such that the work shall be Substantially Completed as a whole and in part in accordance with this contract, the plans and specifications, and within the time of completion designated in the Proposal; provided, also, that when the OWNER is having other work done, either by contract or by his own force, the ENGINEER may direct the time and manner of constructing the work done under this contract, so that conflict will be avoided and the construction of the various works being done for the OWNER shall be harmonized. Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 42 The CONTRACTOR shall submit prior to beginning work, with each pay estimate, and at other such times as may reasonably be requested by the OWNER or ENGINEER, schedules which shall show 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 estimated dates of completion of the several parts. (b) Working Hours: Permissible working hours are 7:00 AM to 7:00 PM Monday through Saturday, excluding holidays. Working hours are enforced by the Town of Prosper Police Department. Any variance to these working hours must be requested by the CONTRACTOR in writing at least two weeks in advance and will require approval from the OWNER upon positive recommendation of the ENGINEER. (c) Extension of Time: Should the CONTRACTOR be delayed in the completion of the work by any act or neglect of the OWNER or ENGINEER, or of any employee of either, or by other contractors employed by the OWNER, or by changes ordered in the work, or by strikes, lockouts, fires, and unusual delays by common carriers, or uncontrollable cause or causes beyond the CONTRACTOR'S control, and the OWNER and ENGINEER decides such cause justifies the delay, then an extension of time sufficient to compensate for the delay as determined by the OWNER or ENGINEER shall be allowed for completing the work; provided, however, that the CONTRACTOR shall give the OWNER or ENGINEER prompt notice in writing of the cause of such delay. (d) Hindrances and Delays: No claims shall be made by the CONTRACTOR for damages resulting from hindrances or delays from any cause (except where the work is stopped by order of the OWNER) during the progress of any portion of the work embraced in this contract. In case said work shall be stopped by the act of the OWNER, then such expense as in the judgment of the ENGINEER is caused by such stoppage of said work shall be paid by the OWNER to the CONTRACTOR. (e) Liquidated Damages: The time of completion is of the essence for this Contract. For each day that any work shall remain uncompleted after the time specified in the Contract or in an executed Change Order, including milestone completion dates, substantial completion, and final completion, the OWNER may deduct the following sum from monies due to the CONTRACTOR for each day the work remains uncompleted: GC.07 Amount of Contract Amount of Liquidated Damages Less than $50,000 $100 per day $50,000 to $100,000 $150 per day $100,000 to $500,000 $200 per day $500,000 to $1,000,000 $250 per day $1,000,000 to $5,000,000 $500 per day Greater than $5,000,000 $750 per day Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 43 GC.08 CONTROL OF WORK AND MATERIAL: (a) Shop Drawings and Submittals: The CONTRACTOR shall submit to the OWNER or ENGINEER, with such promptness as to cause no delay in his own work or in that of any other contractor, four (4) checked copies, unless otherwise specified, of all shop and/or setting drawings and schedules required for the work of the various trades, and the OWNER or ENGINEER shall pass upon them with reasonable promptness, noting desired corrections. The CONTRACTOR shall make any corrections required by the OWNER or ENGINEER, file with him two corrected copies and furnish such other copies as may be needed. The OWNER’S or ENGINEER'S approval of such drawings or schedules shall not relieve the CONTRACTOR from responsibility for deviations from drawings or specifications, unless he has in writing called the OWNER’S or ENGINEER'S attention to such deviations at the time of submission, nor shall it relieve him from responsibility for errors of any sort in shop drawings or schedules. It shall be the CONTRACTOR'S responsibility to fully and completely review all shop drawings to ascertain their effect on his ability to perform the required contract work in accordance with the plans and specifications and within the contract time. Such review by the OWNER or ENGINEER shall be for the sole purpose of determining the sufficiency of said drawings or schedules to result in finished improvements in conformity with the plans and specifications, and shall not relieve the CONTRACTOR of his duty as an independent contractor as previously set forth, it being expressly understood and agreed that the OWNER or ENGINEER does not assume any duty to pass upon the propriety or adequacy of such drawings or schedules, or any means or methods reflected thereby, in relation to the safety of either person or property during CONTRACTOR'S performance hereunder. (b) Temporary Traffic Control: Where the Work is carried on, in or adjacent to any road, alley, sidewalk, trail, or other public space, the CONTRACTOR shall at his own cost and expense furnish, erect and maintain temporary traffic control devices and shall take such other precautionary measures for the protection of persons or property and of the Work as are necessary. A sufficient number and arrangement of temporary traffic control devices shall be erected to keep vehicles and persons from entering on or into any work under construction. The CONTRACTOR's responsibility for the maintenance of barricades, signs and lights, and for providing watchmen, shall not cease until the project has been accepted by the Owner. All temporary traffic control devices shall be clearly visible at all times of day and night. Signs and barricades shall constructed of retro-reflective sheeting, and cones and other channelizing devices shall have retro-reflective banding. All temporary traffic control devices shall comply with and have the meanings prescribed by the Texas Manual of Uniform Traffic Control Devices. The Contractor shall at all times coordinate the closing of any section of road, alley, sidewalk, trail, or other public space with the OWNER or ENGINEER. When such a closing is anticipated to have a duration longer than one (1) hour, the CONTRACTOR shall submit a traffic control plan at least 72 hours in advance to the OWNER or ENGINEER for review and approval. Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 44 The CONTRACTOR shall be held responsible for all damage to the Work due to failure of barricades, signs, to protect it, and whenever evidence is found of such damage, the OWNER or ENGINEER may order the damaged portion immediately removed and replaced by the CONTRACTOR at his cost and expense. (c) Public Convenience: Materials stored about the Work shall be so placed, and the Work shall at all times to be so conducted, as to cause no greater obstruction to the traveling public than is considered necessary by the OWNER. The CONTRACTOR shall make provisions at all roads, alleys, sidewalks, trails, and private driveways for the free passage of pedestrians and vehicles provided that where free passage is impractical or unnecessary in the opinion of the OWNER, the CONTRACTOR may make arrangements satisfactory to the OWNER for the diversion of traffic and shall, at his own expense, provide all material and perform all work necessary for the construction and maintenance of such diversions. The materials excavated, and the construction materials or plant used in the construction of the W ork, shall be placed so as not to endanger the W ork or prevent free access to all public and private utilities and related appurtenances. The OWNER reserves the right to remedy any neglect on the part of the CONTRACTOR as regards to the public convenience and safety which may come to its attention after twenty-four (24) hours notice in writing the CONTRACTOR, save in cases of emergency, when it shall have the right to remedy any neglect without notice; and in either case, the cost of such work done by the OWNER shall be deducted from monies due or to become due to the Contractor. (d) Testing of Materials: Testing and inspection of materials required by the specifications shall be performed by a commercial testing laboratory selected by the CONTRACTOR and approved by the OWNER. Except as otherwise noted, the costs of laboratory tests will be paid by the CONTRACTOR, including any materials or specimens for testing. Any testing of material or workmanship required due to failure will be paid for by the CONTRACTOR. This payment will be made direct to the testing laboratory by the CONTRACTOR. The CONTRACTOR shall furnish at his own expense, suitable evidence that the materials he proposes to incorporate into the work are in accordance with the specifications. Mill tests for reinforcing steel and cement will be acceptable if it is definite that the test sheets apply to the material being furnished. Manufacturer's or supplier's test results will be acceptable for such items as pipe, valves, hydrants when it is definite that the material being furnished is in accordance with the manufacturer's or supplier's specifications to which the test results apply. Supplier's evidence of quality and gradation of asphaltic material will be acceptable as long as the material is secured from the sources to which the evidence applies. Should the CONTRACTOR fail to provide the above information, or should the validity of the above information be called into question, the OWNER shall have the right to require tests to be made by the OWNER's laboratory to obtain this information and the cost therefore shall be borne by the CONTRACTOR or deducted from monies owed by the OWNER to the CONTRACTOR. (e) Trench Excavation Protection: It is the sole duty, responsibility, and prerogative of the CONTRACTOR, not the OWNER or ENGINEER, to determine the specific Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 45 applicability of a trench safety system to each field condition encountered on the project as required by Part 1926, Sub-part P-Excavations, Trenching, and Shoring of the Occupational Safety and Health Administration's Standards and Interpretations. It will be the Contractor's responsibility to identify the soil type and to accurately adjust his trench safety methods according to the OSHA requirements. (f) Explosives: The use of explosives shall not be permitted. GC.09 INSPECTION AND ACCEPTANCE: (a) Inspection of Work: Inspection will be performed by representatives of the OWNER, ENGINEER, other reviewing agencies, and their designees. It is the intent of the OWNER to inspect all work on this project. The CONTRACTOR is responsible for verifying with the OWNER, ENGINEER, or other reviewing agencies when an inspector is and is not required. The CONTRACTOR shall furnish the OWNER, ENGINEER, other reviewing agencies, and their designees reasonable access and facilities for inspecting the Work and determining whether or not the Work is in accordance with the Contract Documents The CONTRACTOR shall be responsible for all costs associated with verifying the acceptability of work completed without proper inspection, as directed by the OWNER, ENGINEER, or other reviewing agency. If deemed to be unacceptable, the work may be ordered removed at the CONTRACTOR's expense. (b) Inspection Overtime: The OWNER and ENGINEER will provide inspection staff on weekdays between 8:00 AM and 5:00 PM. Inspection performed outside these hours or on weekends or holidays may be subject to an inspection overtime fee determined by the OWNER and ENGINEER. The CONTRACTOR is responsible for determining inspection overtime rules of other reviewing agencies. (c) Use of Completed Portions: The OWNER shall have the right to take possession of and use any completed or partially completed portions of the work, notwithstanding the time for completing the entire work or such portions may not have expired. Such taking possession and use shall not be deemed an acceptance of any work not completed in accordance with the Contract Documents, nor shall the risk of loss change from CONTRACTOR to OWNER. If such prior use increases the cost of or delays the work, the CONTRACTOR shall be entitled to such extra compensation, or extension of time, or both, as the OWNER or ENGINEER may determine. (d) Defects and their Remedies: If the Work or any portion thereof, or any material brought on the site of the Work for use in the Work or selected for the same, shall be deemed by the OWNER or ENGINEER as unsuitable or not in conformity with the specifications, the CONTRACTOR shall, after receipt of written notice thereof from the OWNER or ENGINEER, forthwith remove such material and rebuild or otherwise remedy such work so that it shall be in full accordance with this contract. (e) Preliminary Final Inspection: Upon substantial completion of the Work, the CONTRACTOR shall request a preliminary final inspection of the Work by representatives of the OWNER, ENGINEER, and other reviewing agencies. The Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 46 OWNER or ENGINEER will provide written notice of any defects to the CONTRACTOR and the CONTRACTOR shall promptly remedy such defects in accordance with the Contract Documents. (f) Final Inspection: Upon completion of all items identified on the punch list, the CONTRACTOR shall request a final inspection of the Work by representatives of the OWNER, ENGINEER, and other reviewing agencies. If additional defects are noted, the CONTRACTOR shall promptly remedy such defects and repeat this process. If the Work is found to be acceptable, the OWNER or ENGINEER will provide written notice of Completion of the Work to the CONTRACTOR. (g) Acceptance: Upon Completion, the CONTRACTOR shall submit to the OWNER or ENGINEER such documentation as is necessary to insure that the work has been completed, subcontractors and suppliers have been paid, any claims received have been settled, and other documentation as required by the OWNER or ENGINEER. If the documentation is found to be acceptable, the OWNER or ENGINEER will issue a written notice of Acceptance of the Work to the CONTRACTOR. GC.10 MEASUREMENT AND PAYMENT: (a) Estimated Quantities: The quantities of each item on the bid proposal blank represent the approximate amount of work to be done. Final quantities actually built will be determined and paid for by actual measurements on the ground of the final work completed. Bidders are especially notified that no incidental items of work will be paid for unless there appears an item in the proposal blank for such work. It must be strictly understood that the prices bid are for complete and acceptable work. (b) Measurement: Quantities of individual items of work shall be based on the final, in- place quantity of the item of work, measured or computed using the units specified in the Proposal. Where a discrepancy in measured or computed quantities occurs among the OWNER, ENGINEER, and CONTRACTOR, the parties attempt to reconcile the discrepancy. If no reconciliation is possible, the determination of the ENGINEER shall be used. (c) Progress Payments: As close as practical to the end of each month in which work has been performed, the CONTRACTOR shall prepare and submit to the OWNER an application for payment showing as completely as practicable the total value of the work done by the CONTRACTOR up to and including the last day immediately preceding the date of such application and the value of all sound materials delivered on the site of the work that are to be fabricated into the work. The OWNER'S REPRESENTATIVE and/or ENGINEER shall promptly review CONTRACTOR'S application for payment, shall either approve or modify the total value of the work done by CONTRACTOR and the value of materials delivered on the site, and shall submit to OWNER such application for payment as approved or modified with OWNER’S REPRESENTATIVE'S and/or ENGINEER'S recommendation affixed thereto within ten (10) business days following the receipt of the application from CONTRACTOR. Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 47 The OW NER shall pay the CONTRACTOR within thirty (30) days following receipt of the application from CONTRACTOR, less any amount held for retainage or outstanding claims or defective work. (d) Payment Withheld: The OWNER may withhold any payment otherwise due to the CONTRACTOR. The amount of any withheld payment shall be as necessary to protect the OWNER's interest in the following circumstances: (i) unsatisfactory progress of the Work within the CONTRACTOR's control; (ii) reasonable doubt that the Work can be completed for the unpaid balance; (iii) failure of the CONTRACTOR to carry out orders of the OWNER; (iv) defective work not remedied; (v) the filing of a claim against the CONTRACTOR or reasonable evidence that a claim will be filled against the CONTRACTOR; (vi) failure of the CONTRACTOR to make payment to subcontractors or suppliers for material and labor used in performance of the Work; (vii) unsafe working conditions or threats to persons or property allowed to persist by the CONTRACTOR; (viii) failure of the CONTRACTOR to provide work schedules, invoices, or other records requested by the OWNER; (ix) use of subcontractors without the consent of the ENGINEER or OWNER; (x) or, failure of the CONTRACTOR to keep current redline as-built drawings at the job site or to turn redline as-built drawings over to the OWNER. GC.11 EXTRA WORK AND CLAIMS: (a) Change Orders: Without invalidating this Agreement, the OWNER may, at any time or from time to time, order additions, deletions or revisions to the work; such changes will be authorized by written Change Order prepared by the OWNER for execution by the CONTRACTOR. The Change Order shall set forth the basis for any change in contract price, as hereinafter set forth for Extra Work, and any change in contract time which may result from the change. In the event the CONTRACTOR shall refuse to execute a Change Order which has been prepared by the OWNER, the OWNER may in writing instruct the CONTRACTOR to proceed with the work as set forth in the Change Order and the CONTRACTOR may make claim against the OWNER for Extra Work involved therein, as hereinafter provided. (b) Minor Changes: The OWNER or ENGINEER may authorize minor changes in the work not inconsistent with the overall intent of the Contract Documents and not involving an increase in Contract Price. If the CONTRACTOR believes that any minor change or alteration authorized by the OWNER or ENGINEER involves Extra Work and entitles him to an increase in the Contract Price, the CONTRACTOR shall make written request to the OWNER or ENGINEER for a written Field Order. Any request by the CONTRACTOR for a change in Contract Price shall be made in writing in accordance with the provisions of this section prior to beginning the work covered by the proposed change. Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 48 (c) Extra Work: It is agreed that the basis of compensation to the CONTRACTOR for work either added or deleted by a Change Order or for which a claim for Extra Work is made 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) be agreed upon before the Extra Work is commenced, then the CONTRACTOR shall be paid the "actual field cost" of the work, plus fifteen (15) percent. In the event said Extra Work be performed and paid for under Method (C), then the provisions of this paragraph shall apply and the "actual field cost" is hereby defined to include the cost to the CONTRACTOR of all workmen, such as foreman, timekeepers, mechanics and laborers, and materials, supplies, teams, trucks, rentals on machinery and equipment, for the time actually employed or used on such Extra Work, plus actual transportation charges necessarily incurred, together with all power, fuel, lubricants, water and similar operating expenses, also all necessary incidental expenses incurred directly on account of such Extra Work, including Social Security Old Age Benefits and other payroll taxes, and, a rateable proportion of premiums on Performance and Payment Bonds and Maintenance Bonds, Public Liability and Property Damage and Workmen's Compensation, and all other insurance as may be required by any law or ordinance, or directed by the OWNER, or by them agreed to. The OWNER or ENGINEER may direct the form in which accounts of the "actual field cost" shall be kept and the records of these accounts shall be made available to the OWNER or ENGINEER. The OWNER or ENGINEER may also specify in writing, before the work commences, the method of doing the work and the type and kind of machinery and equipment to be used; otherwise these matters shall be determined by the CONTRACTOR. Unless otherwise agreed upon, the prices for the use of machinery and equipment shall be determined by using 100 percent, unless otherwise specified, of the latest schedule of Equipment Ownership Expense adopted by the Associated General Contractors of America. Where practicable the terms and prices for the use of machinery and equipment shall be incorporated in the written Change Order. The fifteen percent (15%) of the "actual field cost" to be paid the CONTRACTOR shall cover and compensate him for his profit, overhead, general superintendence and field office expense, and all other elements of cost and expense not embraced within the "actual field cost" as herein defined; save that where the CONTRACTOR'S Camp or Field Office must be maintained primarily on account of such Extra Work, then the cost to maintain and operate the same shall be included in the "actual field cost." No claim for Extra Work of any kind will be allowed unless ordered in writing by the OWNER or ENGINEER. In case any orders or instructions, either oral or written, appear to the CONTRACTOR to involve Extra Work for which he should receive compensation or an adjustment in the construction time, he shall make written request to the OWNER or ENGINEER for written order authorizing such Extra Work. Should a difference of opinion arise as to what does or does not constitute Extra Work, or as to the payment therefore, and the OWNER or ENGINEER insists upon its performance, the CONTRACTOR shall proceed with the work after making written request for written order and shall keep an accurate account of the "actual field cost" thereof, as provided under Method (C). The CONTRACTOR will Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 49 thereby preserve the right to submit the matter of payment to a court of general jurisdiction to decide the matter, otherwise the CONTRACTOR shall waive all claims for payment for Extra Work. GC.12 CONTRACT TERMINATION (a) Abandonment by CONTRACTOR: In case the CONTRACTOR should abandon and fail or refuse to resume work within ten (10) days after written notification from the OWNER or ENGINEER, or if the CONTRACTOR fails to comply with the orders of the OWNER or ENGINEER, when such orders are consistent with the Contract Documents, then, and in that case, where performance and payment bonds exist, the Sureties on these bonds shall be notified in writing and directed to complete the work, and a copy of said notice shall be delivered to the CONTRACTOR. After receiving said notice of abandonment, the CONTRACTOR shall not remove from the work any machinery, equipment, tools, materials or supplies then on the job, but the same, together with any materials and equipment under contract for the work, may be held for use on the work by the OWNER or the Surety on the performance bond, or another contractor in completion of the work; and the CONTRACTOR shall not receive any rental or credit therefore (except when used in connection with Extra Work, where credit shall be allowed as provided for under Section 6, Extra Work and Claims), it being understood that the use of such equipment and materials will ultimately reduce the cost to complete the work and be reflected in the final settlement. In case the Surety should fail to commence compliance with the notice for completion hereinbefore provided for, within ten (10) days after service of such notice, then the OWNER may provide for completion of the work in either of the following elective manners: The OWNER may employ such force of men and use such machinery, equipment, tools, materials and supplies as said OWNER may deem necessary to complete the work and charge the expense of such labor, machinery, equipment, tools, materials and supplies to said CONTRACTOR, and expense so charged shall be deducted and paid by the OWNER out of such moneys as may be due, or that may thereafter at any time become due to the CONTRACTOR under and by virtue of this Agreement. In case such expense is less than the sum which would have been payable under this contract, if the same had been completed by the CONTRACTOR, then said CONTRACTOR shall receive the difference. In case such expense is greater than the sum which would have been payable under this contract, if the same had been completed by said CONTRACTOR, then the CONTRACTOR and/or his Surety shall pay the amount of such excess to the OWNER; or The OWNER under sealed bids, after five (5) days’ notice published one or more times in a newspaper having general circulation in the county of the location of the work, may let the contract for the completion of the work under substantially the same terms and conditions which are provided in this contract. In the case of any increase in cost to the OWNER under the new contract as compared to what would have been the cost under this contract, such increase shall be charged to the CONTRACTOR and the Surety shall be and remain bound therefore. However, Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 50 should the cost to complete any such new contract prove to be less than what would have been the cost to complete under this contract, the CONTRACTOR and/his Surety shall be credited therewith. When the work shall have been substantially completed the CONTRACTOR and his Surety shall be so notified and Certificates of Completion and Acceptance shall be issued. A complete itemized statement of the contract accounts, certified to by the OWNER or ENGINEER as being correct, shall then be prepared and delivered to the CONTRACTOR and his Surety, whereupon the CONTRACTOR and/or his Surety, or the OWNER as the case may be, shall pay the balance due as reflected by said statement, within fifteen (15) days after the date of such Certificate of Completion. After final completion of the work and in the event the statement of accounts shows that the cost to complete the work is less than that which would have been the cost to the OWNER had the work been completed by the CONTRACTOR under the terms of this contract; or when the CONTRACTOR and/or his Surety shall pay the balance shown to be due by them to the OWNER, then all machinery, equipment, tools, materials or supplies left on the site of the work shall be turned over the CONTRACTOR and/or his Surety. Should the cost to complete the work exceed the contract price, and the CONTRACTOR and/or his Surety fail to pay the amount due the OWNER within the time designated hereinabove, and there remains any machinery, equipment, tools, materials or supplies on the site of the work, notice thereof, together with an itemized list of such equipment and materials, shall be mailed to the CONTRACTOR and his Surety at the respective addresses designated in this contract; provided, however, that actual written notice given in any manner will satisfy this condition. After mailing, or other giving of such notice, such property shall be held at the risk of the CONTRACTOR and his Surety subject only to the duty of the OWNER to exercise ordinary care to protect such property. After fifteen (15) days from the date of said notice the OWNER may sell such machinery, equipment, tools, materials or supplies and apply the net sum derived from such sale to the credit of the CONTRACTOR and his Surety. Such sale may be made at either public or private sale, with or without notice, as the OWNER may elect. The OWNER shall release any machinery, equipment, tools, materials, or supplies, which remain on the work, and belong to persons other than the CONTRACTOR or his Surety, to their proper owners. (b) Abandonment by OWNER: In case the OWNER shall fail to comply with the terms of this contract within ten (10) days after written notification by the CONTRACTOR, then the CONTRACTOR may suspend or wholly abandon the work, and may remove therefrom all machinery, tools and equipment, and all materials on the site of work that have not been included in payments to the CONTRACTOR and have not been wrought into the work. Thereupon the ENGINEER shall make an estimate of the total amount earned by the CONTRACTOR, which estimate shall include the value of all work actually completed by said CONTRACTOR, the value of all partially completed work at a fair and equitable price, and the amount of all Extra Work performed at the prices agreed upon, or provided for by the items of this contract, and a reasonable sum to cover the cost of any provisions made by the CONTRACTOR to carry the whole work to completion and which cannot be utilized. The ENGINEER shall then make a final statement of the balance due the CONTRACTOR by deducting from the above estimate all previous payments by Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 51 the OWNER and all other sums that may be retained by the OWNER under the terms of this Agreement and shall certify same to the OWNER who shall pay to the CONTRACTOR on or before thirty (30) days after the date of delivery to OWNER of such certified final statement. (c) Termination of Contract in Case of National Emergency: Whenever, because of a national emergency, so declared by the President of the United States or other lawful authority, it becomes impossible for the Contractor to obtain all of the necessary labor, material and equipment for the prosecution of the work with reasonable continuity for a period of two (2) months, the Contractor shall within seven (7) days notify the Owner in writing, giving a detailed statement of the efforts which have been made and listing all necessary items of labor, material and equipment not obtainable. If, after investigation, the Owner finds that such conditions exist and that the inability of the Contractor to proceed is not attributable in whole or in part to the fault or neglect of the Contract, then if the Owner cannot after reasonable effort assist the Contractor in procuring and making available the necessary labor, materials, and equipment within thirty (30) days, the Contractor may request the Owner to terminate the contract and the Owner shall within thirty (30) days comply with the request, and the termination shall be based on a final settlement, which shall include, but not be limited to, the payment for all work executed. Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 52 SPECIAL CONDITIONS SC.01 PURPOSE: The Special Conditions contained herein set forth conditions or requirements particular to this Contract: BID NO. 2018-54-B FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD The Special Conditions supplement the General Conditions and the Standard Specifications and take precedence over any conditions or requirements of the General Conditions and the Standard Specifications with which they are in conflict. SC.02 DEFINITIONS: The following words and expressions, or pronouns used in their place, shall wherever they appear in this Contract, be construed as follows, unless a different meaning is clear from the context: ENGINEER: The Engineer of Record as shown on the Construction Drawings: Frank E. Jaromin P.E, Town of Prosper, Texas, or his designee. Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD 2018-54-B PAGE 53 TECHNICAL SPECIFICATIONS BID NO. 2018-54-B FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD Technical Specifications: Section 1. Location Maps Section 2. Typical Sections Section 3. SW3P – Storm Water Section 4. Special Instructions Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD BID NO. BID NUMBER 2018-54-B LOCATION MAP A Attachment 3Item 11 Attachment 3Item 11 Attachment 3Item 11 Attachment 3Item 11 Attachment 3Item 11 Attachment 3Item 11 Attachment 3Item 11 Attachment 3Item 11 Attachment 3Item 11 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD BID NO. BID NUMBER 2018-54-B TYPICAL SECTIONS B Attachment 3Item 11 SW3P-1 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD BID NO. BID NUMBER 2018-54-B SECTION SW3P C STORM WATER POLLUTION PREVENTION PLAN Attachment 3Item 11 SW3P-2 SECTION SW3P STORM WATER POLLUTION PREVENTION PLAN 1. The Contractor will be required to provide a separate Storm Water Pollution Prevention Plan. The Erosion Control Plans included in the construction plans will not be considered a Storm Water Pollution Prevention Plan. 2. The Contractor will be required to submit a Storm Water Pollution Prevention Plan (SW3P) to the Town of Prosper for this project before the Notice to Proceed will be granted. The SW3P shall comply with the regulations established by the Texas Commission on Environmental Quality (TCEQ). 3. The Contractor will be required to submit all appropriate forms, including the NOI and NOT, as well as being responsible for producing and submitting all inspection reports throughout the duration of the project to the TCEQ and the Town of Prosper. The Contractor will be responsible for submitting the NOI and NOT on behalf of the Town of Prosper, including all fees associated with these forms. The Contractor shall submit two (2) copies of all NOIs and proof of payment of NOIs to the Town of Prosper before the Notice to Proceed will be granted. Payment: Payment for this work shall be considered subsidiary to the pay items. Attachment 3Item 11 Special Instructions 1 FRONTIER PARKWAY RECONSTRUCTION DNT TO BNSF RAILROAD BID NO. BID NUMBER 2018-54-B SPECIAL INSTRUCTIONS 1.00 GENERAL 1.01 WORK INCLUDED Furnish labor, materials, equipment, testing and incidentals necessary to perform operations in connection with the reconstruction of 5” Asphalt paving. Roadways will remain open to one way traffic during construction. ANTICPATED PROCEEDURE A. Prior to the start of construction the Contactor shall submit a traffic control plan for approval by the Town. Frontier Parkway will be one way W estbound. B. Remove existing pavement in one phases and maintain traffic per approved Traffic Control Plan. C. Grade and compact and install sub grade treatment roadway to near preexisting profile and configuration less thickness of future pavement. Paving may require additional excavation or fill for proper transition to existing driveways and street connections. Additional material may be graded off to form the future shoulder. D. Cement slurry will be required. E. Pull shoulders after paving. F. Cores to be at 300 lf, right center and left configuration. G. Contractor will arrange access with residents and provide access to residents at all times. H. Quantities are for bidding only, in place quantities will be paid. I. Town will supply temporary mail boxes to be moved by the contractor. J. Ties to existing streets by hot mix asphalt shall be subsidiary to Item for Type B 6” Asphalt which includes tack. For a copy of the General Notes please visit http://www.prospertx.gov/wp-content/uploads/Prosper- General-Notes-New-Bonds-2.pdf. Attachment 3Item 11 Special Instructions 2 1.02 TRAFFIC CONTROL SIGNAGE The contractor shall install and maintain all required signage and shall comply with Texas Department of Transportation (TXDOT) Standards. The Contractor shall supply the Town with a Traffic Control plan prior to work. As the project progresses expect to add or move traffic control devices as required by the inspector. 1.03 RESIDENTS MEETING There could be as many as one evening meeting to discuss this work with the residents. The Contractors Superintendent May be required to be present at this meeting to discuss process and what to expect. 1.04 ACCESS TO THE PROJECT During in raining weather the contractor shall provide manpower, materials, and equipment to maintain driveways and intersections. END OF SECTION Attachment 3Item 11 Page 1 of 7 To: Mayor and Town Council From: Alex Glushko, AICP, Planning Manager Through: Harlan Jefferson, Town Manager Re: Town Council Meeting – March 13, 2018 Agenda Item: Discussion on proposed amendments to the Zoning Ordinance regarding Home Occupation standards. Description of the Agenda Item: Current Home Occupation Regulations The Zoning Ordinance defines a “home occupation” as: An occupation, which is secondary to the primary use of a dwelling as a residence, conducted on residential premises by the occupant of the residence. Home occupations shall be subject to the conditions set forth in Chapter 3, Section 1.4(5) of this Ordinance. The Zoning Ordinance permits home occupations by right in all residential districts with the following conditional development standards: Chapter 3, Section 1.4(5) 5.Home Occupation A home occupation is a business that is customarily carried on in a home by the resident and shall adhere to all of the following conditions and requirements: a)No signage associated with the home occupation and visible from outside of the dwelling shall be allowed on the premises. b)Only two (2) employees other than the occupants of the residence may be employed on- site at any one time. This shall not include the coordination or supervision of employees who do not regularly visit the house for purposes related to the business. c)Hours of operation shall be limited to 8:00 a.m. to 8:00 p.m. for outdoor activities. d)Outdoor activities are not allowed, unless the activities are screened from neighboring property and public rights-of-way. e)No exterior storage of material, equipment, vehicles, and/or supplies used in conjunction with the home occupation. Prosper is a place where everyone matters. PLANNING Item 12 Page 2 of 7 f) The home occupation shall not produce offensive noises, vibrations, smoke, dust, odors, heat or glare beyond the property lines. g) A home occupation shall not serve as an office or storage facility for a vehicle fleet operation in which fleet vehicles visit the site. h) No major alterations to the property or exterior of the dwelling unit shall be allowed that changes the residential character of the home. i) No repair or servicing of vehicles, internal combustion engines, large equipment or large appliances shall be allowed. j) No storage of hazardous materials for business purposes shall be allowed on the premises. k) Merchandise shall not be offered or displayed for sale on the premises. Sales incidental to a service shall be allowed; and orders previously made by telephone or at a sales party may be filled on the premises. l) No traffic shall be generated by a home occupation in greater volumes than normally expected in a residential neighborhood, and any need for parking must be accommodated within the off-street parking provided for the residence (i.e., the driveway or garage) and along the street frontage of the lot. Homeowners/occupants who establish an occupation in their residence must adhere to all of the above conditions. Issues & Recommendations There are issues with certain businesses operating as home occupations that have potential adverse impacts upon residential neighborhoods, such as the parking of contractor construction equipment on a residential lot. The proposed amendment expands upon the existing requirements by providing lists of specific uses that are permitted and prohibited. It also indicates that a home occupation must occur entirely within the main structure; that the storage of merchandise is not permitted on the property; and allows for the Director of Development Services to determine if a business qualifies as a home occupation and provides for an appeal process to the Planning & Zoning Commission. Proposed Home Occupation Regulations Create new Conditional Development Standards with the following requirements: a) A home occupation, in districts where allowed, shall meet the following standards to maintain the residential character of the neighborhood while providing opportunities for home-based businesses: 1. Unless specifically permitted by this section, home occupations shall be conducted entirely within the main building. 2. The home occupation shall be clearly incidental and secondary to the use of the premises for residential purposes. 3. Home occupations shall not produce any alteration or change in the exterior appearance of the residence which is inconsistent with the typical appearance of a residential dwelling. Item 12 Page 3 of 7 4. No external evidence of the occupation shall be detectable at any lot line, including advertising, signs, smoke, dust, noise, fumes, glare, vibration, or electrical disturbance beyond the property line; 5. No exterior storage of material, equipment, vehicles, and/or supplies used in conjunction with the home occupation; 6. No storage of hazardous materials for business purposes shall be allowed on the premises; 7. The home occupation shall not have a separate entrance; 8. Not more than two (2) patron- or business-related vehicles shall be present at any one time, and the proprietor shall provide adequate off-street parking for such vehicles; 9. A maximum of one (1) commercial vehicle, capacity one (1) ton or less, may be used or parked on the property in connection with the home occupation. The commercial vehicle shall not be parked on the street; 10. The home occupation shall not require regular or frequent deliveries by large delivery trucks or vehicles in excess of one and one-half (1½) tons. This shall not be construed to prohibit deliveries by commercial package delivery companies; 11. The home occupation shall not display advertising signs or other visual or audio devices which call attention to the business use; 12. Merchandise shall not be offered or displayed for sale on the premises. Sales incidental to a service shall be allowed; and orders previously made via the telephone, internet, or at a sales party may be filled on the premises; and 13. No traffic shall be generated by a home occupation in greater volumes than normally expected in a residential neighborhood, and any need for parking must be accommodated within the off-street parking provided for the residence (i.e. the driveway or garage) and along the street frontage of the lot. 14. The home occupation shall prohibit non-resident employees from regularly visiting the home for purposes related to the business. 15. The home occupation shall not offer a ready inventory of any commodity for sale. 16. The home occupation shall not accept clients or customers before 7:00 a.m. or after 10:00 p.m. This limitation on hours of operation shall not apply to allowed child care home occupations. Hours of operation shall be limited to 8:00 a.m. to 8:00 p.m. for outdoor activities. 17. Outdoor activities are not allowed, unless the activities are screened from neighboring property and public rights-of-way. 18. Uses permitted as home occupations shall include the following: a) Office of an accountant, architect, attorney, engineer, realtor, minister, rabbi, clergyman, or similar profession; b) Office of a salesman or manufacturer’s representative, provided that no retail or wholesale transactions or provision of services may be personally and physically made on premises; c) Author, artist, sculptor; d) Dressmaker, seamstress, tailor, milliner; Item 12 Page 4 of 7 e) Music/dance teacher, tutoring, or similar instruction, provided that no more than three (3) pupils may be present at any one time; f) Swimming lessons or water safety instruction provided that a maximum of six (6) pupils may be present at any one time; g) Home crafts, such as weaving, model making, etc. h) Child Care: Licensed Child Care Home and Registered Child Care Home. Homes with seven (7) or more children shall meet the City’s building and/or fire codes. i) Community home and other residential care facility that qualifies as a community home under the Community Homes for Disabled Persons Location Act, Chapter 123 of the Texas Human Resources Code and as amended, provided such facilities meet the requirements set out within this Ordinance; j) Internet based businesses; and k) Food Production Operations that produce non-potentially hazardous food. Examples of non-potentially hazardous foods include; bread, rolls, biscuits, sweet breads, muffins, cakes, pastries, cookies, fruit pies, jams, jellies, dried fruit and vegetables, pickles, and dry herbs. [Please note that the production of certain food products are allowed as cottage food uses under State law, which was adopted in 2011. A full list of allowed items is available from the Texas Department of State Health Services.] 19. Uses prohibited as home occupations shall include, but are not limited to the following: a) Animal hospital, commercial stable, kennel; b) Hair or Nail Salon/Barbershop c) Boardinghouse or rooming house; d) Schooling or instruction with more than five (5) pupils; e) Restaurant or the sale of on premise food/beverage consumption of any kind; f) Automobile, boat, or trailer repair, small engine or motorcycle repair, large appliance repair, repair of any items with internal combustion engines, or other repairs shops; g) Cabinetry, metal work, or welding shop; h) Office for doctor, dentist, veterinarian, or other medical-related profession for the purpose of providing care to patients; i) On-premise retail or wholesale sale of any kind, except cottage food items produced entirely on premises as indicated in Paragraph h, 12 above; j) Commercial clothing laundering or cleaning; k) Mortuary or funeral home; l) Trailer, vehicle, tool, or equipment rental; m) Antique, gift, or specialty shop; n) Office or storage facility for a vehicle fleet operation; and o) Any use defined by the building code as assembly, factory/industrial, hazardous, institutional, or mercantile occupancy. Item 12 Page 5 of 7 20. Determination of a Home Occupation Use not specifically listed. The Director shall determine whether a proposed use not specifically listed is appropriate as a home occupation. The Director shall evaluate the proposed home occupation in terms of its impact on neighboring property, its similarity to other allowed and prohibited uses, and its conformance with the regulations herein. 21. Appeal of the Director’s Home Occupation Determination. If the applicant disagrees with the determination of the Director, the applicant may appeal to the Planning & Zoning Commission. 22. Any home occupation that was legally in existence as of the effective date of this Ordinance and that is not in full conformity with these provisions shall be deemed a legal nonconforming use. To assist in comparing the existing ordinance requirements and the proposed ordinance requirements a side by side comparison is provided in Attachment A. Day Care Centers Issues & Recommendations State licensing of day care facilities has been moved to the Department of Health and Human Services and certain terms have been modified. Child day care facilities are now referred to as child care facilities. A new addition is licensed child care home category which allows for up to twelve (12) children on a full-time basis. This is different from the “registered” category which allows for up to twelve (12) with the addition of after school children. 1. Amend Chapter 3, Section 1 Use of Land and Buildings and Section 2 Definitions to reflect the new State terms and requirements. Chapter 3, Section 1 Use of Land and Buildings 20. Day Care Center, Child Child Care Center, Licensed Notwithstanding anything to the contrary herein, a public independent school district is not required to obtain a SUP for the operation of a Licensed Day Child Care Center, Child in a public school. A Licensed Child Day Care Center, Child not operated by a public independent school district is permitted by SUP in all districts except the Industrial Zoning District. 21. Day Child Care Center, In-Home Permitted by right as a home occupation in the designated zoning districts and is subject to the regulations of Home Occupation. Chapter 3, Section 2 Definitions Day Care Center, Child - A commercial institution or place designed for the care of four (4) or more children during the hours of 6:00 a.m. to 10:00 p.m. The term “day care center” shall not include overnight lodging, medical treatment, counseling, or rehabilitative services and does not apply to any school. This use is subject to registration/licensing with appropriate State agencies. Child Day Care Center, Incidental – An accessory use designed only for the care of children belonging to employees of the primary use. The center shall be completely contained within the primary use and shall not constitute more than fifteen percent (15%) of the main use. The operating hours of the center shall be the same as the primary use and shall not include overnight Item 12 Page 6 of 7 lodging, medical treatment, counseling, or rehabilitative services. This use is subject to registration/licensing with appropriate State agencies. Day Care Center, In-Home - A home occupation that provides care for less than twenty four (24) hours a day to no more than six (6) children under the age of fourteen, plus no more than six (6) additional elementary school-age children (age five (5) to thirteen (13)). The total number of children, including the caretaker’s own children, is no more than twelve (12) at any time. This use is subject to registration/licensing with appropriate State agencies. Licensed Child Care Center - A non-residential institution that provides care for less than twenty four (24) hours a day for seven (7) or more children under the age of fourteen. This use is subject to registration/licensing with appropriate State agencies. Licensed/Registered Child Care Home - A home occupation that occurs in the caregiver’s home that provides care for less than twenty four (24) hours a day to no more than six (6) children under the age of fourteen, plus six (6) additional children after school hours. The total number of children, including the caretaker’s own children, is no more than twelve (12) at any time. This use is subject to registration/licensing with appropriate State agencies. Household Care Facilities/Community Home Issues & Recommendations The State has adopted regulations that require cities to allow Community Homes in residential zoning districts under specific requirements. The Zoning Ordinance currently does not address this land use category. 1. Amend Chapter 3, Section 1 Use of Land and Buildings and Section 2 Definitions to amend the Household Care Facility definition to reduce the number of residents from nine to six and to add Community Home. Household Care Facility - A dwelling unit which provides residence and care to not more than nine six (6) persons, regardless of legal relationship, who are elderly; disabled; orphaned, abandoned, abused, or neglected children; victims of domestic violence; convalescing from illness; terminally ill; or rendered temporarily homeless due to fire, natural disaster or financial setbacks, living together with not more than two supervisory personnel as a single housekeeping unit. This definition is subject to Personal Care Facility Licensing Act (Texas Health and Safety Code, Section 247.001 et seq.) and Community Homes for Disabled Persons Location Act (Texas Human Resources Code, Section 123.001 et seq.) as they presently exist or may be amended in the future. Community Home – A residence for persons with disabilities, limited to a maximum of six (6) persons with disabilities and two supervisors, no closer than one-half mile to an existing community home, permitted by right in all residential zoning districts. This use is subject to registration/licensing with appropriate State agencies. This definition is subject to the Community Homes for Disabled Persons Act (Texas Human Resources Code, Section 123.001 et seq.) as it exists or may be amended. 45. Community Home Community Homes are permitted in any residential zoning district but may not be located within one-half (1/2) mile of an existing Community Home. That distance is to be measured Item 12 Page 7 of 7 in a straight line. The number of motor vehicles permitted on the site or on a public right-of- way adjacent to the site shall not exceed the number of bedrooms in the home. Attached Documents: 1. Attachment A – Current and Proposed Standards Comparison Planning & Zoning Commission Discussion: At their meeting on December 5, 2017, the Planning & Zoning Commission meeting discussed the following items related to the proposed standards: 1. The continuation of legal non-conforming home occupations. 2. Limitations to the number of employees and/or vehicles permitted per home occupation. 3. Requirements for Specific Use Permits for Licensed Child Care Facilities, Registered Child Care Facilities and/or Household Care Facilities. At their meeting on February 20, 2018, staff presented responses to each of the items, which have been included in the proposed standards. Recommended Amendments to the Zoning Ordinance: Staff is requesting the Town Council’s input on the proposed amendments. Item 12 Page 1 of 2 ATTACHMENT A Comparison of Existing and Proposed Requirements Topic Existing Ordinance Requirements Proposed Ordinance Requirements Signage No signage associated with the home occupation and visible from outside of the dwelling shall be allowed on the premises. The home occupation shall not display advertising signs or other visual or audio devices which call attention to the business use; Employees On-Site Only two (2) employees other than the occupants of the residence may be employed on-site at any one time. Only the occupants of the residence may be employed on-site at any one time. Hours of Operation Hours of operation shall be limited to 8:00 a.m. to 8:00 p.m. for outdoor activities. Hours of operation shall be limited to 8:00 a.m. to 8:00 p.m. for outdoor activities. Outdoor Activities Outdoor activities are not allowed, unless the activities are screened from neighboring property and public rights-of-way. Outdoor activities are not allowed, unless the activities are screened from neighboring property and public rights-of-way. Exterior Storage No exterior storage of material, equipment, vehicles, and/or supplies used in conjunction with the home occupation. No exterior storage of material, equipment, vehicles, and/or supplies used in conjunction with the home occupation; External Evidence of Home Occupation The home occupation shall not produce offensive noises, vibrations, smoke, dust, odors, heat or glare beyond the property lines. No external evidence of the occupation shall be detectable at any lot line, including advertising, signs, smoke, dust, noise, fumes, glare, vibration, or electrical disturbance beyond the property line; Fleet Vehicle A home occupation shall not serve as an office or storage facility for a vehicle fleet operation in which fleet vehicles visit the site. Office or storage facility for a vehicle fleet operation is not permitted. Exterior Alterations No major alterations to the property or exterior of the dwelling unit shall be allowed that changes the residential character of the home. Home occupations shall not produce any alteration or change in the exterior appearance of the residence which is inconsistent with the typical appearance of a residential dwelling. Machine Repair No repair or servicing of vehicles, internal combustion engines, large equipment or large appliances shall be allowed. Automobile, boat, or trailer repair, small engine or motorcycle repair, large appliance repair, repair of any items with internal combustion engines, or other repairs shops are not permitted. Item 12 Page 2 of 2 Hazardous Materials No storage of hazardous materials for business purposes shall be allowed on the premises. No storage of hazardous materials for business purposes shall be allowed on the premises; Merchandise Merchandise shall not be offered or displayed for sale on the premises. Sales incidental to a service shall be allowed; and orders previously made by telephone or at a sales party may be filled on the premises. Merchandise shall not be offered or displayed for sale on the premises. Sales incidental to a service shall be allowed; and orders previously made via the telephone, internet, or at a sales party may be filled on the premises Traffic No traffic shall be generated by a home occupation in greater volumes than normally expected in a residential neighborhood, and any need for parking must be accommodated within the off-street parking provided for the residence (i.e., the driveway or garage) and along the street frontage of the lot. No traffic shall be generated by a home occupation in greater volumes than normally expected in a residential neighborhood, and any need for parking must be accommodated within the off-street parking provided for the residence (i.e. the driveway or garage) and along the street frontage of the lot. Item 12