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CC 2011-11-14 Agendas
CITY OF NORTH RICHLAND HILLS CITY COUNCIL WORK SESSION AGENDA NORTH RICHLAND HILLS CITY COUNCIL WORKROOM 7301 NORTHEAST LOOP 820 NORTH RICHLAND HILLS, TEXAS Monday, November 14, 2011 5:30 P.M. A.0 Discuss Items from Regular City Council Meeting A.1 NRH Centre Construction Progress Update and Renderings of Interior Rooms with Furniture (10 Minutes) A.2 Boulevard 26 Corridor Update (30 minutes) A.3 Wayfinding Status Update (10 Minutes) A.4 Discussion Regarding a Potential Bond Refunding (5 Minutes) B.0 EXECUTIVE SESSION - The City Council may enter into closed Executive Session to discuss the following as authorized by Chapter 551, Texas Government Code B.1 Executive Session: Pursuant to Section 551.071, Texas Government Code for Consultation with Attorney regarding Pending Litigation - 1) State of Texas v. City of North Richland Hills (No. 2011 - 002840 -1); and 2) State of Texas v. City of North Richland Hills (No. 2011 - 000462 -1) C.0 Adjournment Certification I do hereby certify that the above notice of meeting of the North Richland Hills City Council was posted at City Hall, City of North Richland Hills, Texas in compliance with Chapter 551, Texas Government Code on November 11, 2011 at �k'.C)LO a.m. A sls ant CI y Secretary This facility is wheelchair accessible and accessible parking spaces are available. Requests for accommodations or interpretive services must be made 48 hours prior to this meeting. Please contact the City Secretary's office at 817 - 427 -6060 for further information. The City Council may confer privately with its attorney to seek legal advice on any matter listed on the agenda or on any matter in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with Chapter 551, Texas Government Code. City Council Agenda — November 14, 2011 Page 1 of 5 CITY OF NORTH RICHLAND HILLS CITY COUNCIL AGENDA CITY HALL COUNCIL CHAMBERS 7301 NORTHEAST LOOP 820 NORTH RICHLAND HILLS, TEXAS Monday, November 14, 2011 7:00 P.M. Hard copies of the full City Council agenda information packet are accessible prior to every regularly scheduled Monday Council meeting according to the following locations and schedule: ❑ City Hall on the day of the meeting Additionally, the agenda packet is available for download from the City's web site at www.nrhtx.com after 10 a.m. the day of every regularly scheduled Council meeting. A.0 Call to Order - Mayor Trevino A.1 Invocation - Councilman Rodriguez A.2 Pledge - Councilman Rodriguez A.3 Special Presentation(s) and Recognition(s) No items for this category AA Citizens Presentation An opportunity for citizens to address the City Council on matters which are not scheduled for consideration by the City Council or another City Board or Commission at a later date. In order to address the Council, please complete a Public Meeting Appearance Card and present it to the City Secretary prior to the start of the Council meeting. The Texas Open Meetings Act prohibits deliberation by the Council of any subject which is not on the posted agenda, therefore the Council will not be able to discuss or take action on items brought up during the citizens presentation. A.5 Removal of Item(s) from the Consent Agenda B.0 CONSIDER APPROVAL OF CONSENT AGENDA ITEMS All consent agenda items listed below are considered to be routine items deemed to require little or no deliberation by the City Council and will be voted on in one motion. There will be no separate discussion of these items unless a Council Member so requests, in which event the item will be removed from the Consent Agenda and considered. B.1 Approval of Minutes of October 24, 2011 City Council Meeting City Council Agenda — November 14, 2011 Page 2 of 5 B.2 GN 2011 -095 Cancellation of the November 28 and December 26 City Council Meetings B.3 GN 2011 -096 Approve an Interlocal Agreement between the City of North Richland Hills and Birdville Independent School District and Addendum A.1 to the City's current Dark Fiber Agreement with Charter Communications, Inc. B.4 GN 2011 -100 Approve Resolution Adopting Ethical and Training Standards for Juvenile Case Manager - Resolution No. 2011 -034 B.5 GN 2011 -101 Approve the Custodial and Safekeeping Services Agreement with JP Morgan Chase Bank, N.A B.6 GN 2011 -102 Approve Resolution to Authorize Investment Officers - Resolution No. 2011 -037 B.7 PU 2011 -039 Authorize Payment, in the amount of $55,500.00, to DFW Communications to Relocate Radio Equipment B.8 PW 2011 -020 Approve Ordinance Revising Section 54.121 of the North Richland Hills Code of Ordinances to Reflect Updated Block Numbers for Hawk Avenue - Ordinance No. 3172 B.9 PU 2011 -040 Authorizing the Purchase of an All- Terrain Jet Trac Drilling Machine System (Utility Boring Machine) in the Amount of $260,000.00 from EKA, Inc. B.10 GN 2011 -085 Approve Fiber Agreement between the City of North Richland Hills and Charter Communications, Inc. for $3,099.00 Monthly and Construction Fee of $2,000 C.0 PUBLIC HEARINGS C.1 GN 2011 -092 Public Hearing and Action on Amending Section 74 -38 of the North Richland Hills Code of Ordinances Providing for the Continuation of Taxation of Goods in Transit - Ordinance No. 3168 C.2 ZC 2011 -10 Public Hearing and Consideration of a request from the City of North Richland Hills for a Zoning Change from U Institutional and LR Local Retail to CS Community Services (located at the Southeast corner of Rufe Snow Drive and NE Loop 820) - Ordinance No. 3170 C.3 SUP 2011 -07 Public Hearing and Consideration of a Request from Dick Calvert for a Special Use Permit for a Research Lab with Limited Assembly (located at 8825 Bud Jensen Dr.) - Ordinance No. 3169 D.0 PLANNING AND DEVELOPMENT City Council Agenda — November 14, 2011 Page 3 of 5 D.1 RP 2011 -06 Consideration of a Request from The Mega Life and Health Insurance Co. for a Replat to create Lots 1R & 2R, Block 1, U.I.C.I. Addition (located at 8825 Bud Jensen Dr.) D.2 RP 2011 -05 Consideration of a Request from QuikTrip Corporation for a Replat to create Lot 3R -1, Block 1, North Edgley Addition (located at 7541 Boulevard 26.) E.0 PUBLIC WORKS E.1 PW 2011 -019 Approve a Resolution Supporting a Municipal Setting Designation (MSD) Application to the Texas Commission on Environmental Located at 2525 Brennan Avenue, Fort Worth TX - Resolution No. 2011 -033 E.2 PW 2011 -021 Approve a Utility Assembly (820 -U -0508) for the City's Utility Relocations as Part of the North Tarrant Express Project F.0 GENERAL ITEMS F.1 GN 2011 -097 Cast Ballot for Tarrant Appraisal District Board of Directors - Resolution Number 2011 -036 F.2 GN 2011 -098 Intent to Reimburse Expenditures with Proceeds of Future Debt - Resolution No. 2011 -035 F.3 GN 2011 -099 Consider all matters incident and related to the issuance and sale of "City of North Richland Hills, Texas, General Obligation Refunding Bonds, Series 2012 ", including the adoption of Ordinance No. 3171 authorizing the issuance of such bonds, establishing parameters for the sale and issuance of such bonds and delegating certain matters to an authorized official of the City. F.4 PU 2011- 041 Shared Services Agreement between the Cities of North Richland Hills, Haltom City, Watauga and Richland Hills F.5 PU 2011 -042 Award a contract to J.P. Morgan Chase Bank, N.A., in the amount of $402,695.90 to Finance the lease- purchase of Cardio Fitness Equipment for the NRH Centre (RFP 12 -001 Cardio Equipment Lease) F.6 PU 2011 -043 Authorize the Purchase of Fitness Equipment for the NRH Centre from LifeFitness in the amount of $138,515.24, FITCO in the amount of $1,390.00 and Bodywork Fitness in the amount of $1,799.25 F.7 PU 2011 -044 Authorize the Purchase of Furniture and Equipment for the NRH Centre from Miller Office Interiors in the amount of for $131,983.61, Wilson Office Interiors in the amount of $119,463.11 and Pro Solutions, in the amount of $10,391.04 F.8 PU 2011 -045 Approve Contract for Professional Architectural Consulting Services with Brinkley Sargent Architects and Appropriate Fund Balance. City Council Agenda — November 14, 2011 Page 4 of 5 G.0 EXECUTIVE SESSION ITEMS G.1 Action on Any Item Discussed in Executive Session Listed on Work Session Agenda H.0 INFORMATION AND REPORTS H.1 Announcements - Councilman Sapp H.2 Adjournment All items on the agenda are for discussion and /or action. Certification I do hereby certify that the above notice of meeting of the North Richland Hills City Council was posted at City Hall, City of North Richland Hills, Texas in compliance with Chapter 551, Texas Government Code on November 11, 2011 at a.m, A s"ant City Secretary This facility is wheelchair accessible and accessible parking spaces are available. Requests for accommodations or interpretive services must be made 48 hours prior to this meeting. Please contact the City Secretary's office at 817 - 427 -6060 for further information. The City Council may confer privately with its attorney to seek legal advice on any matter listed on the agenda or on any matter in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with Chapter 551, Texas Government Code. City Council Agenda — November 14, 2011 Page 5 of 5 CITY OF NORTH RICHLAND HILLS CITY COUNCIL WORK SESSION AGENDA NORTH RICHLAND HILLS CITY COUNCIL WORKROOM 7301 NORTHEAST LOOP 820 NORTH RICHLAND HILLS, TEXAS Monday, November 14, 2011 5:30 P.M. A.0 Discuss Items from Regular City Council Meeting A.1 NRH Centre Construction Progress Update and Renderings of Interior Rooms with Furniture (10 Minutes) A.2 Boulevard 26 Corridor Update (30 minutes) A.3 Wayfinding Status Update (10 Minutes) A.4 Discussion Regarding a Potential Bond Refunding (5 Minutes) B.0 EXECUTIVE SESSION - The City Council may enter into closed Executive Session to discuss the following as authorized by Chapter 551, Texas Government Code B.1 Executive Session: Pursuant to Section 551.071, Texas Government Code for Consultation with Attorney regarding Pending Litigation - 1) State of Texas v. City of North Richland Hills (No. 2011 - 002840 -1); and 2) State of Texas v. City of North Richland Hills (No. 2011 - 000462 -1) C.0 Adjournment Certification I do hereby certify that the above notice of meeting of the North Richland Hills City Council was posted at City Hall, City of North Richland Hills, Texas in compliance with Chapter 551, Texas Government Code on November 11, 2011. City Secretary This facility is wheelchair accessible and accessible parking spaces are available. Requests for accommodations or interpretive services must be made 48 hours prior to this meeting. Please contact the City Secretary's office at 817427 -6080 for further information. The City Council may confer privately with its attorney to seek legal advice on any matter listed on the agenda or on any matter in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with Chapter 551, Texas Government Code. CITY OF NORTH RICHLAND HILLS CITY COUNCIL AGENDA CITY HALL COUNCIL CHAMBERS 7301 NORTHEAST LOOP 820 NORTH RICHLAND HILLS, TEXAS Monday, November 14, 2011 7:04 P.M. Hard copies of the full City Council agenda information packet are accessible prior to every regularly scheduled Monday Council meeting according to the following locations and schedule: ❑ City Hall on the day of the meeting Additionally, the agenda packet is available for download from the City's web site at www.nrhtx.com after 10 a. m. the day of every regularly scheduled Council meeting. ---------------------------------------------------------------------------------------------------------------------- - - - - -- A.0 Call to Order - Mayor Trevino A.1 Invocation - Councilman Rodriguez A.2 Pledge - Councilman Rodriguez A.3 Special Presentation(s) and Recognition(s) No items for this category A.4 Citizens Presentation An opportunity for citizens to address the City Council on matters which are not scheduled for consideration by the City Council or another City Board or Commission at a later date. In order to address the Council, please complete a Public Meeting Appearance Card and present it to the City Secretary prior to the start of the Council meeting. The Texas Open (Meetings Act prohibits deliberation by the Council of any subject which is not on the posted agenda, therefore the Council will not be able to discuss or take action on items brought up during the citizens presentation. A.5 Removal of Item(s) from the Consent Agenda B.0 CONSIDER APPROVAL OF CONSENT AGENDA ITEMS All consent agenda items listed below are considered to be routine items deemed to require little or no deliberation by the City Council and will be voted on in one motion. There will be no separate discussion of these items unless a Council Member so requests, in which event the item will be removed from the Consent Agenda and considered. B.1 Approval of Minutes of October 24, 2011 City Council Meeting B.2 GN 2011 -095 Cancellation of the November 28 and December 26 City Council Meetings B.3 GN 2011 -096 Approve an Interlocal Agreement between the City of North Richland Hills and Birdville Independent School District and Addendum A.1 to the City's current Dark Fiber Agreement with Charter Communications, Inc. B.4 GN 2011 -100 Approve Resolution Adopting Ethical and Training Standards for Juvenile Case Manager - Resolution No. 2011 -034 B.5 GN 2011 -101 Approve the Custodial and Safekeeping Services Agreement with JP Morgan Chase Bank, N.A B.6 GN 2011 -102 Approve Resolution to Authorize Investment Officers - Resolution No. 2011 -037 B.7 PU 2011 -039 Authorize Payment, in the amount of $55,500.00, to DFW Communications to Relocate Radio Equipment B.8 PW 2011 -020 Approve Ordinance Revising Section 54.121 of the North Richland Hills Code of Ordinances to Reflect Updated Block Numbers for Hawk Avenue - Ordinance No. 3172 B.9 PU 2011 -040 Authorizing the Purchase of an All- Terrain Jet Trac Drilling 'Machine System (Utility Boring Machine) in the Amount of $260,000.00 from EKA, Inc. B.10 GN 2011 -085 Approve Fiber Agreement between the City of North Richland Hills and Charter Communications, Inc. for $3,099.00 Monthly and Construction Fee of $2,000 C.0 PUBLIC HEARINGS C.1 GN 2011 -092 Public Hearing and Action on Amending Section 74 -38 of the (North Richland Hills Code of Ordinances Providing for the Continuation of Taxation of Goods in Transit - Ordinance No. 3168 C.2 ZC 2011 -10 Public Hearing and Consideration of a request from the City of North Richland Hills for a Zoning Change from U Institutional and LR Local Retail to CS Community Services (located at the Southeast corner of Rufe Snow Drive and 'NE Loop 820) - Ordinance No. 3170 C.3 SUP 2011 -07 Public Hearing and Consideration of a Request from Dick Calvert for a Special Use Permit for a Research Lab with Limited Assembly (located at 8825 Bud Jensen Dr.) - Ordinance No. 3169 D.1 RP 2011 -06 Consideration of a Request from The Mega Life and Health Insurance Co. for a Replat to create Lots 1R & 2R, Block 1, U.I.C.I. Addition (located at 8825 Bud Jensen Dr.) D.2 RP 2011 -05 Consideration of a Request from QuikTrip Corporation for a Replat to create Lot 3R -1, Block 1, North Edgley Addition (located at 7541 Boulevard 26.) � � � 1 � 7 : j � C � i ►► � Li] : � E.1 PW 2011 -010 Approve a Resolution Supporting a Municipal Setting Designation (MSD) Application to the Texas Commission on Environmental Located at 2525 Brennan Avenue, Fort Worth TX - Resolution No. 2011 -033 E.2 PW 2011 -021 Approve a Utility Assembly (820 -U -0508) for the City's Utility Relocations as Part of the North Tarrant Express Project F.0 GENERAL ITEMS F.1 GN 2011 -097 Cast Ballot for Tarrant Appraisal District Board of Directors - Resolution Number 2011 -036 F.2 GN 2011 -098 Intent to Reimburse Expenditures with Proceeds of Future Debt - Resolution No. 2011 -035 F.3 GN 2011 -099 Consider all matters incident and related to the issuance and sale of 'City of North Richland Hills, Texas, General Obligation Refunding Bonds, Series 2012 ", including the adoption of Ordinance No. 3171 authorizing the issuance of such bonds, establishing parameters for the sale and issuance of such bonds and delegating certain matters to an authorized official of the City. F.4 PU 2011- 041 Shared Services Agreement between the Cities of North Richland Hills, Haltom City, Watauga and Richland Hills F.5 PU 2011 -042 Award a contract to J.P. Morgan Chase Bank, N.A., in the amount of $402,695.90 to Finance the lease- purchase of Cardio Fitness Equipment for the NRH Centre (RFP 12 -0101 Cardio Equipment Lease) F.6 PU 2011 -043 Authorize the Purchase of Fitness Equipment for the NRH Centre from LifeFitness in the amount of $138,515.24, FITCO in the amount of $1,394.00 and Bodywork Fitness in the amount of $1,799.25 F.7 PU 2011 -044 Authorize the Purchase of Furniture and Equipment for the NRH' Centre from Miller Office Interiors in the amount of for $131,983.61, Wilson Office Interiors in the amount of $119,463.11 and Pro Solutions, in the amount of $10,391.04 F.8 PU 2011 -045 Approve Contract for Professional Architectural Consulting Services with Brinkley Sargent Architects and Appropriate Fund Balance. G.0 EXECUTIVE SESSION ITEMS G.1 Action on Any Item Discussed in Executive Session Listed on Work Session Agenda air =l01go] V i►1'_111[6]r1 =10191:7:11 go] :i�-3 H.1 Announcements - Councilman Sapp H.2 Adjournment All items on the agenda are for discussion and/or action. Certification I do hereby certify that the above notice of meeting of the North Richland Hills City Council was posted at City Hall, City of North Richland Hills, Texas in compliance with Chapter 551, Texas Government Code on November 11, 2011. City Secretary This facility is wheelchair accessible and accessible parking spaces are available. Requests for accommodations or interpretive services must be made 48 hours prior to this meeting. Please contact the City Secretary's office at 817427 -6060 for further information. The City Council may confer privately with its attorney to seek legal advice on any matter listed on the agenda or on any matter in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with Chapter 551, Texas Government Code. City of North Richland Hills Work Session Work Session Meeting Agenda North Richland Hills City Hall City Council Workroom 7301 Northeast Loop 820 North Richland Hills, TX 76180 Monday, November 14, 2011 5:30 P.M. A.0 Discuss Items from Regular Citv Council Meeting A.1 NRH Centre Construction Proaress Update and Renderings of Interior Rooms with Furniture (10 Minutes) A.2 Boulevard 26 Corridor Update (30 minutes) A.3 Wavfindina Status Update (10 Minutes) AA Discussion Reqardinq a Potential Bond Refundinq (5 Minutes) B.0 EXECUTIVE SESSION - The Citv Council may enter into closed Executive Session to discuss the followina as authorized by Chapter 551, Texas Government Code B.1 Executive Session: Pursuant to Section 551.071, Texas Government Code for Consultation with Attornev reaardina Pending Litiaation - 1) State of Texas v. Citv of North Richland Hills (No. 2011- 002840 -1); and 2) State of Texas v. Citv of North Richland Hills (No. 2011- 000462 -1) C.0 Adiournment M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. A.0 Discuss Items from Regular City Council Meeting M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. A.1 NRH Centre Construction Progress Update and Renderings of Interior Rooms with Furniture (10 Minutes) Presenter: Vickie Loftice, Managing Director Summarv: Brinkley Sargent Architects will provide a brief update of construction activities and progress of the NRH Centre. General Description: The NRH Centre continues to take shape and form with approximately 70 -75% of construction activities completed. The facility is on schedule for an April 2012 ribbon cutting and grand opening. Staff is currently reviewing applications for several key positions and will be interviewing within the next couple of weeks. Most of the part-time positions will be hired in early 2012. For the past several months staff has been procuring equipment and supplies, as well as selecting furniture and fixtures for the facility. Dwayne Brinkley from Brinkley Sargent Architects will provide a brief update on construction activities and show several renderings of selected fumiture and colors for the facility. The renderings are intended to provide a look and feel of the interior spaces and unique amenities. For the Senior Center, the Senior Advisory Committee worked with the interior design team to provide input for furniture and color selection that is harmonious with the rest of the facility. M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. A.2 Boulevard 26 Corridor Update (30 minutes) Presenter: Mike Curtis, Managing Director Summarv: Staff will present an update on the Boulevard 26 Corridor revitalization efforts, with recommended changes regarding some of the design elements on the two intersections slated for improvement and an update on the overhead utility burial project as well as the status of TIF #1. General Description: In 2004 the Cities of NRH and Richland Hills conducted the South Grapevine Highway Corridor Study by the Leland Group and HNTB which included an economic feasibility study and proposed public and private improvements. The objectives of the study were to find a way to bring new people to the Grapevine Highway corridor which split both communities, rejuvenate the area and improve the neighborhood for residents currently living in the area. The study found that the best ways to accomplish the objectives were by creating a branding strategy and a marketing communication plan. A joint oversight committee was established, and was comprised of individuals from both NRH and Richland Hills. In 2005 'both cities commissioned a branding and marketing plan developed by the Jet Powered Group and Carter & Burgess which involved city wide stakeholder input and further refined the need for a total revitalization and face lift. The initial result of the branding study created the change in the street name to Boulevard 26 with a unique "twentysix" logo and plans for public intersection improvements to stimulate private investment. In 2006, the Boulevard 26 Oversight Committee approved intersection plans for Rufe Snow /Boulevard 26 and Glenview /Boulevard 26. Recommendations from the study included a color scheme and the style of several design elements to be constructed at the intersections. As Council is aware many of the colors and recommended design elements are not allowed on TxDOT roadways. Staff has had several meetings with TxDOT trying to reach a compromise, but has not had a great deal of success. TxDOT has made it very clear that only TxDOT approved roadway striping and colors can be used in the corridor within their rights -of -way. Even though it's been a very lengthy process trying to get TxDOT to accept the non- standard design elements the City has continued to work to accomplish the objectives of the South Grapevine Corridor Study. For example, the City has focused on creating programs that promote the area, such as the Business Improvement and Growth Program, the Neighborhood Improvement Program and the Sign Topper Program. All of these program promote reinvestment in both commercial and residential properties and provide a sense of community in the area. In 1998, the taxing entities approved the Tax Incremental Financing District #1 (TIF #1) which included the old Richland Plaza property on the far southern end of the city with proposed drainage improvements to bring the aging shopping center out of flood prone areas. The Hills shopping center redeveloped and has been successful. TIF #1 was expanded in 2008 to TIF #1a to include more of Boulevard 26. Within the expanded district, the two Boulevard 26 intersections were slated to be improved and much of the overhead utilities were to be buried along Boulevard 26. While we are moving forward with the underground utilities, as mentioned above the intersection improvements have come to a standstill. Staff has been vigorously working toward solutions to get these projects in motion. Below is Staff's recommendation to move towards approval of the Boulevard 26 design elements and a status update on TIF #1. Intersection Improvernents The two intersections to be improved in the TIF are located at Rufe Snow and Boulevard 26 as well as Glenview and Boulevard 26. Schrickel Rollins was hired in 2006 to design the intersection improvements. After 5 years of unsuccessful attempts to get TxDOT to approve the design it was decided that staff reevaluate the designs and come up with some alternatives to the original design that will improve the look and feel of the corridor, but still meet the design standards of TxDOT. Below are three charts that summarize staffs findings after the review. The first chart is made up of items TxDOT has voiced ,u„1;r::i � � about and staff believes would be ok to back down on and still accomplish the intent of the original study: �� 6L.— _M===ffiM=d 40 Black Oval Traffic Signal Wind -load concerns, does not Remove — not a necessity to the Back Plate meet TxDOT's design design standards VVayfinding Signage Lettering must be a minimum Staff is currently working on a of 6" in height, the cities Wayfinding program that will desired the lettering to be 3" in encompass the whole height community, staff will revisit when the program is ready to cover this area White Oval in the Intersection Could be confusing to motorists Remove — Not a necessity to the design "26 Logo" Pavement Marking Could be confusing to motorists Remove — Not a necessity to th design Pedestrian Lighting Not warranted Remove from design — Staff evaluating other alternatives No slurry seal or overlay TxDOT overlaid) the street Not necessary within past 6 months The next chart lists items TxDOT has expressed concern over, but staff feels are vital to the design of the intersections and should be pushed for either in its original design or a close OF Tx DO T Landscaping Landscaping shown in design This is an important aspect to not up to TxDOT standards the design, staff feels the landscape design can be altered to meet TxDOT standards Cobblestone Cobblestone is not a TxDOT Staff believes the use of standard FJUv l•.l:i«➢1 i : would be a nice alternative to cobblestone and would meet TxDOT standards Backlit Street Signs Modified Luminaire Arms off , he Traffic Signal Poles Desired colors are not standard and the Blvd 26 logo will not be allowed on the sign Not the TxDOT standard Change the color from cyan to green and white for NRH signs and blue and white for RH signs (both blue and green are allowed per TxDOT standards). Incorporate the Boulevard 26 Logo on signs. Change the design to a luminaire arm that follows TxDOT standards (maybe the NRH standard). The last chart features alternative items, not included in the original design that may also be attractive in the Boulevard 26 Corridor: L �--4;teasoning e06 Blvd 26 Logo Incorporated into the Would bring more visibility to the Boulevard 26 µ Landscaping Around the Intersections brand, this may be either through landscaping or a monument sign within the landscaping Paint the Signal Light Poles Black This would bring some conformity to the intersection in regards to NRH standards. Staff believes the look is clean and modern. The luminaire arm could remain different from the NRH standard to still define the corridor. Design New Signal Light Poles Landscaping: Because the current poles were built to carry certain wind loads, TxDOT has concern with adding all the new elements on the current poles. If the city were to replace the poles with newly designed poles, staff believes TxDOT may be more amenable to the items we are requesting for the light poles (i.e. new luminaire arms). Last month, TxDOT announced that they have approximately $3 million in funds available through the Green Ribbon Program for landscaping. This is the same program that is funding the Davis Boulevard streetscape project. The landscaping around the two Boulevard 26 intersections is eligible for the program. This will provide another funding source to get the intersections completed. Staff is working to get landscape estimates prepared to submit to TxDOT before Thanksgdving. The plans for the project must be submitted to TxDOT by March 1, 2012 and all projects must be let by the end of the fiscal year. This gives us an extremely short timeline to get the plans finalized and ready to be turned in. Staff believes the best way to proceed would be to have the landscaping and intersection improvements occur at the same time, but if there are holdups on the intersection improvements themselves the best course of action is to take the landscaping on its own to TxDOT to assure we receive the Green Ribbon funding for that aspect of the project. Status of Overhead Utility Burial The overhead utility burial design is underway. Council approved a contract with Cobb Fendley this past summer for the design aspect of the project. The Preliminary Design is currently 70% complete. Last week, staff met with representatives from Cobb Fendley and the franchise utility companies to discuss the design. As the design of the intersections move forward, Cobb Fendley and Shrickle Rollins will be working closely to coordinate the two projects together. Status of TIF #1 Financinq TIF 1 was created in 1998 with a 20 year financing plan to improve drainage in the amount of $850,000 to allow for private developer improvements to the old Richland Plaza Shopping Center. The value of the property within the zone in 1998 was slightly more than $1 million. The TIF 1 boundaries are approximately 95 acres, and over $10.5 million in new real property improvements have been made to the 300,000 square foot business center from 1999 through 2010. TIF 1A was created in 2008 with a 10 year financing plan as an expansion of the existing TIF 1 district. The boundaries of the expansion include all commercial properties in the Boulevard 25 corridor area (except North Hills Hospital and Calloway Creek property) from the southern City limits to Loop 820. Public improvements totaling $3.5 million in the original plan included burying above ground utilities for approximately 1.25 miles on the NRH side of Boulevard 26 totaling $3 million, and for Boulevard 26 Intersection Improvements at Rufe Snow Drive and Glenview Drive totaling $500,000. Originally, the incremental growth in value of property within the expanded area was estimated to be $30 million over 10 years. The plan estimated an average of $3 million growth in values per year over 10 years. The original base value of the expanded area in 2008 was $84 million. The taxable value for tax year 2011 is $75.3 million or nearly a $9 million loss in value since 2008. Fortunately, when TIF 1A was created the City was able to incorporate the existing balances and future tax revenues to be collected from TIF1 to pay for TIF 1A projects. In 2008 the combined TIFs began with over $1 million cash from net operations of TIF1 since 1999. TIF1 also produces net revenues over expenditures of over $200,000 annually. In view of the decline in property values in the expanded TIF area, it is estimated that sufficient revenues will not be produced to meet the debt service for the original $3.5 million project plan. Based on projected combined TIF tax revenues through the expiration of the TIFs in 2018, it is estimated that a maximum of $2.5 million in projects could be funded. In 2010, bonds in the amount of $1 million were sold for TIF 1A projects. Based on the total $2.5 million capacity, a maximum of $1.5 in additional debt could be issued. Recommendation: Most of this work session item is informational but Staff does need direction and/or consensus from Council on the recommended changes to the design elements for the intersection improvements. M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. A.3 Wayfinding Status Update (10 Minutes) Presenter: Craig Hulse, Economic Development Director Summarv: Staff will be presenting an update on the Wayfinding Signage project (ED1101. General Descrir)tion: The Wayfinding Signage project was approved by City Council in the 2010/2011 Capital Improvements Budget. Wayfinding is the methodology of providing indicators to guide people to major destinations. Not only do wayfinding signs improve mobility but they also illustrate a sense of community and a marketing function by highlighting various amenities available to both citizens and visitors. The central sector of the City contains many local and regional destinations where wayfinding will serve as enhanced guide. A result from the last Council Goals Session was the desire to partner with neighboring cities on projects or programs that provide mutual benefit, with the Wayfinding project identified as an initial opportunity. Given the direction, staff approached the City of Hurst about a Wayfinding partnership as both cities share borders and intersections, whereby Hurst agreed that a partnership would be beneficial. A cooperative inter -local plan has been developed that includes the amount, location and number of destinations featured for each sign within the Wayfinding network. Staff would like to update City Council on the status and next steps. M RH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. A.4 Discussion Regarding a Potential Bond Refunding (5 Minutes) Presenter: Larry Koonce, Finance Director Summarv: Recent market conditions have created the 1 p otential to refund or refinance existing bonds at significantly lower rates than the original issue. Staff would like to discuss this with the City Council. General Description: Staff is exploring the possibility of a potential refunding. Recent market conditions, which include lower interest rates on bonds, have created the potential to refund or refinance existing bonds at significantly lower rates than the original issue. The circumstances surrounding this refunding are slightly different than in past years, but potentially at least as beneficial as prior refundings. In April 2011, the City issued bonds that were identified as "bank qualifying ". This designation allowed the City to realize a lower interest rate, thus significant interest expense savings, than "non -bank qualifying" bonds would have. In order to keep the "bank qualifying" designation, the City is not allowed to issue more than $10,000,000 in a calendar year, including refunding bonds. Because the refunding issue we are contemplating would put our calendar year total over $10,000,000 in calendar year 2011, we will not be able to close on the refunding before January 1, 2012. We can, however, negotiate and establish the bond interest rates prior to January 1 st. Staff believes we have a window of opportunity in the market. We would like to take advantage of this opportunity if conditions meet our criterion for refunding. In order to give ourselves some flexibility in negotiating a deal without setting a "fixed date" we would like to request that Council consider a "Parameters Ordinance ". This ordinance gives the City Manager as the "pricing officer" the ability to approve final pricing only if it falls within the Council's approved parameters. The parameters ordinance puts the bond issue in `Day -to -Day' mode. This means that bonds can be priced at any time and in an interest rate environment that is advantageous to the City, rather than being locked into pricing on the date of a Council meeting. Proposed Parameters Included in Parameter Ordinance for Council Consideration /Action Delegated Pricing Officer: City Manager Maximum True Interest Cost: 3.50% (the average rate on the existing bonds is 4.38 %) Y Minimum Savings Threshold: 3.00% PV Savings Maximum Principal Amount: $8,000,000 r Final Maturity Date: February 15, 2023 Expiration of Parameter Authority: 180 Days (maximum allowed by law) These benchmarks are in line with refunding the City has completed in the past. These rates and savings parameters would ensure significant reduced interest expense over the remaining maturity of the bonds (about 11 years). When pricing is accepted by the City Manager, we will communicate this information to Council in a work session or in another acceptable format. Once the Parameters Ordinance is approved, no further formal action is required by Council. This item is also on the regular agenda for formal council consideration. Staff will discuss the potential refunding and parameters ordinance at the November 14 work session. A representative with First Southwest Company will be present to help answer questions related to this process. M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. B.0 EXECUTIVE SESSION - The City Council may enter into closed Executive Session to discuss the following as authorized by Chapter 551, Texas Government Code M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. B.1 Executive Session; 'Pursuant to Section 551.071, Texas Government Code for Consultation with Attorney regarding Pending Litigation - 1) State of Texas v. City of North Richland Hills (No. 2011 - 002840 -1); and 2) State of Texas v. City of North Richland Hills (No. 2011- 000462 -1) M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -201 Subject: Agenda Item No. C.0 Adjournment City of North. Richland Hills Regular Session City Council Regular Meeting Agenda North Richland Hills City Hall Council Chambers 7301 Northeast Loop 820 North Richland Hills, TX 76180 Monday, November 14, 2011 7:00 P.M. A.0 Call to Order - Mavor Trevino A.1 Invocation - Councilman Rodriquez A.2 Pledae - Councilman Rodriquez. A.3 Special Presentation(s) and Recoanition(s) No items for this category A.4 Citizens Presentation An opportunity for citizens to address the City Council on matters which are not scheduled for consideration by the City Council or another City Board or Commission at a later date. In order to address the Council, please complete a Public Meeting Appearance Card and present it to the City Secretary prior to the start of the Council meeting. The Texas Open Meetings Act prohibits deliberation by the Council of any subject which is not on the posted agenda, therefore the Council will not be able to discuss or take action on items brought up during the citizens presentation. A.5 Removal of Item(s) from the Consent Agenda B.0 CONSIDER APPROVAL OF CONSENT AGENDA ITEMS All consent agenda items listed below are considered to be routine items deemed to require little or no deliberation by the City Council and will be voted on in one motion. There will be no separate discussion of these items unless a Council Member so requests, in which event the item will be removed from the Consent Agenda and considered. B.1 Approval of Minutes of October 24. 2011 Citv Council Meetina B.2 GN 2011 -095 Cancellation of the November 28 and December 26 Citv Council Meetings B.3 GN 2011 -096 Approve an Interlocal Aqreement between the Citv of North Richland Hills and Birdville Independent School District and Addendum A.1 to the Citv`s current Dark Fiber Aareement with Charter Communications. Inc. B.4 GN 2011 -100 Approve Resolution Adopting Ethical and Trainina Standards for Juvenile Case Manaaer - Resolution No. 2011 -034 B.5 GN 2011 -101 Approve the Custodial and Safekeepina Services Aareement with JP Moraan Chase Bank, N.A B.6 GN 2011 -102 Approve Resolution to Authorize Investment Officers - Resolution No. 2011 -037 B.7 PU 2011 -039 Authorize Pavment. in the amount of $55,500.00, to DFW Communications to Relocate Radio Equipment B.8 PW 2011 -020 Approve Ordinance Revisina Section 54.121 of the North Richland Hills Code of Ordinances to Reflect Updated Block Numbers for Hawk Avenue - Ordinance No. 3172 B.9 PU 2011 -040 Authorizina the Purchase of an All- Terrain Jet Trac Drillina Machine Svstem (Utility Borina Machine) in the Amount of $260,000.00 from EKA. Inc. B.10 GN 2011 -085 Approve Fiber Aareement between the Citv of North Richland Hills and Charter Communications, Inc. for $3.099.00 Monthlv and Construction Fee of $2,000. C.0 PUBLIC HEARINGS C.1 GN 2011 -092 Public Hearinq and Action on Amendinq Section 74 -38 of the North Richland Hulls Code of Ordinances Providina for the Continuation of Taxation of Goods in Transit - Ordinance No. 3158 C.2 ZC 2011 -10 Public Hearinq and Consideration of a request from the Citv of North Richland Hills for a Zonina Chanae from U Institutional and LR Local Retail to CS Community Services (located at the Southeast corner of Rufe Snow Drive and NE Loop 820) - Ordinance No. 3170 C.3 SUP 2011 -07 Public Hearina and Consideration of a Request from Dick Calvert for a Special Use Permit for a Research Lab with Limited Assemblv (located at 8825 Bud Jensen Dr.) - Ordinance No. 3169 01=NW_l10 =11KNI,r►1:110 D.1 RP 2011 -06 Consideration of a Request from The Meaa Life and Health Insurance Co. for a Replat to create Lots 1R & 2R, Block 1, U.I.C.I. Addition (located at 8825 Bud Jensen Dr.) D.2 RP 2011 -05 Consideration of a Request from QuikTriq Corporation for a Replat to create Lot 3R -1, Block 1, North Edalev Addition (located at 7541 Boulevard 26.) :KIM I g J 0 .11 C' 4l T►T L6] : V :09 E.1 PW 2011 -019 Approve a Resolution Supportinq a Municipal Settinq Designation (MSD) Application to the Texas Commission on Environmental Located at 2525 Brennan Avenue, Fort Worth TX - Resolution No. 2011 -033 E.2 PW 2011 -021 Approve a Utility Assemblv (820 -U -0508) for the Citv's Utility Relocations as Part of the North Tarrant Express Proiect F.0 GENERAL ITEMS F.1 GN 2011 -097 Cast Ballot for Tarrant Appraisal District Board of Directors - Resolution Number 2011 -036 F.2 GN 2011 -098 Intent to Reimburse Expenditures with Proceeds of Future Debt - Resolution No. 2011 -035 F.3 GN 2011 -099 Consider all matters incident and related to the issuance and sale of "City of North Richland Hills, Texas, General Obliqation Refundinq Bonds, Series 2012", includina the adoption of Ordinance No. 3171 authorizina the issuance of such bonds, establishina parameters for the sale and issuance of such bonds and deleaatina certain matters to an authorized official of the Citv. F.4 PU 2011- 041 Shared Services Aareement between the Cities of North Richland Hills, Haltom Citv, Watauaa and Richland Hills F.5 PU 2011 -042 Award a contract to J.P. Morqan Chase Bank, N.A., in the amount of $402,695.90 to Finance the lease- purchase of Cardio Fitness Equipment for the NRH Centre (RFP 12 -001 Cardio Equipment Lease) F.6 PU 2011 -043 Authorize the Purchase of Fitness Equipment for the NRH Centre from LifeFitness in the amount of $138,515.24, FITCO in the amount of $1,390.00 and Bodvwork Fitness in the amount of $1,799.25 F.7 PU 2011 -044 Authorize the Purchase of Furniture and Equipment for the NRH Centre from Miller Office Interiors in the amount of for $131,983.61, Wilson Office Interiors in the amount of $119,463.11 and Pro Solutions, in the amount of $10,391.04 F.8 PU 2011 -045 Approve Contract for Professional Architectural Consultina Services with Brinklev Saraent Architects and Appropriate Fund Balance G.D EXECUTIVE SESSION ITEMS G.1 Action on Any Item Discussed in Executive Session Listed on Work Session Aaenda H.0 INFORMATION AND REPORTS H.1 Announcements - Councilman Sapp H.2 Adiournment M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject Agenda Item No. A.0 Call to Order - Mayor Trevino M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject Agenda Item No. A.1 Invocation - Councilman Rodriguez M RH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11-14-2011 Subject: Agenda Item No. A.2 Pledge - Councilman Rodriguez M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject Agenda Item No. A.3 Special Presentation(s) and Recognition(s) No items for this category M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. A.4 Citizens Presentation An opportunity for citizens to address the City Council on matters which are not scheduled for consideration by the City Council or another City Board or Commission at a later date. In order to address the Council, please complete a Public Meeting Appearance Card and present it to the City Secretary prior to the start of the Council meeting. The Texas Open Meetings Act prohibits deliberation by the Council of any subject which is not on the posted agenda, therefore the Council will not be able to discuss or take action on items brought up during the citizens presentation. M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject Agenda Item No. A.5 Removal of Item (s) from the Consent Agenda M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. B.0 CONSIDER APPROVAL OF CONSENT AGENDA ITEMS All consent agenda items listed below are considered to be routine items deemed to require little or no deliberation by the City Council and will be voted on in one motion. There will be no separate discussion of these items unless a Council Member so requests, in which event the item will be removed from the Consent Agenda and considered. M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. B.1 Approval of Minutes of October 24, 2011 City Council Meeting Presenter: Patricia Hutson, City Secretary Recommendation: To approve the minutes of the October 24, 2011 City Council Meeting. MINUTES OF THE WORK SESSION AND REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF NORTH RICHLAND HILLS, TEXAS, HELD IN THE CITY HALL, 7301 NORTHEAST LOOP 820 — OCTOBER 24, 2011 WORK SESSION The City Council of the City of North Richland Hills, Texas met in work session on the 24 day of October 2011 at 6:00 p.m. in the City Council Workroom prior to the 7:00 p.m. regular Council meeting. Present: Oscar Trevino Mayor Tim Barth Mayor Pro Tern, Council, Place 4 Tito Rodriguez Council, Place 1 Tom Lombard Council, Place 3 David Whitson Council, Place 5 Scott Turnage Council, Place 6 Tim Welch Council, Place 7 Staff Members: Mark Hindman City Manager Jared Miller Assistant City Manager Karen Bostic Assistant City Manager Mike Curtis Managing Director Patricia Hutson City Secretary George Staples City Attorney Mary Peters Public Information Officer Kristin Weegar Assistant to City Manager John Pitstick Director of Planning & Development Craig Hulse Director of Economic Development Gregory VanNieuwenhuize Assistant Public Works Director Dave Pendley Building Official Andy Kancel Assistant Police Chief Absent: Ken Sapp Council, Place 2 Call to Order Mayor Trevino called the work session to order at 6:00 p.m. A.0 Discuss Items from Reaular Citv Council Meeting There were no questions. A.1 Discuss the Schedulina of the November and December Council Meetings Ms. Patricia Hutson, City Secretary, advised that the November 28 Council meeting was in close proximity to the Thanksgiving holiday and the December 26 Council meeting was on a city holiday. Staff is recommending that the second council meetings in November and December be cancelled. The consensus of the Council was to cancel the November 28 and December 26 City Council meetings. A.2 Discuss Ur)comina Construction alona the North Tarrant Express Mr. Craig Hulse, Director of Economic Development updated Council on the upcoming construction of the North Tarrant Express project within the city limits of North Richland Hills. Construction is set to begin in North Richland Hills in November. Mr. Hulse explained to Council the construction activity and traffic impact associated with the expansion of the westbound frontage road, new eastbound frontage road, the expansion of the Loop 820 bridge over Holiday Lane and expanded lane capacity below Iron Horse Bridge. The Iron Horse Bridge will remain open through the holiday season. Council was advised of driveways that would remain open through the holiday season and that directional signage will be erected at closed driveways to direct traffic to the next driveway. Council discussed how the reduction of the westbound frontage road to one lane during construction will not allow truck traffic to maneuver across the bridge. Council requested that signage also be erected prohibiting truck traffic along this section of the roadway. Council was advised that all businesses directly impacted by the construction are being notified and the NRH Business Mobility Team has a meeting scheduled for November 16. B.0 EXECUTIVE SESSION - The Citv Council may enter into closed Executive Session to discuss the followina as authorized by Chapter 551. Texas Government Code B.1 Executive Session: Pursuant to Section 551.071, Texas Government Code for Consultation with Attorney reaardina Pendina Litiaation - 1) State of Texas v. Citv of North Richland Hills (No. 2011- 002840 -1); and 2) State of Texas v. Citv of North Richland Hills (No. 2011- 000462 -1) Mayor Trevino announced at 6:17 p.m. that the Council would convene into Executive Session as authorized by Chapter 551, Texas Government Code, pursuant to Section 551.071 to consult with Attorney regarding Pending Litigation — 1) State of Texas v. City of North Richland Hills (No. 2011- 002840 -1); and 2) State of Texas v. City of North Richland Hills (No. 2011- 000462 -1). C.0 Adiournment Mayor Trevino announced at 6:21 p.m. that the Council would adjourn to the regular Council meeting. REGULAR COUNCIL MEETING A.0 CALL TO ORDER Mayor Trevino called the meeting to order October 24, 2011 at 7:00 p.m. ROLL CALL Present: Oscar Trevino Tim Barth Tito Rodriguez Tom Lombard David Whitson Scott Turnage Tim Welch Staff: Mark Hindman Jared Miller Karen Bostic Mike Curtis Patricia Hutson George Staples Absent: Ken Sapp Mayor Mayor Pro Tem, Council, Place 4 Council, Place 1 Council, Place 3 Council, Place 5 Council, Place 6 Council, Place 7 City Manager Assistant City Manager Assistant City Manager Managing Director City Secretary Attorney Council, Place 2 A.1 INVOCATION Councilman Rodriguez gave the invocation. A.2 PLEDGE OF ALLEGIANCE Councilman Rodriguez led the pledge of allegiance. A.3 SPECIAL PRESENTATION(S) AND RECOGNITION(S) SCENIC CITY CERTIFICATION AWARD Mr. Mark Hindman, City Manager, advised the City was recently certified by Scenic Texas as a Scenic City. The award was announced at Texas Municipal League's annual October conference. Mr. Hindman presented the award to the Mayor and City Council and recognized the Staff members who contributed to the application — Dave Pendley, Joe Pack, John Pitstck, Caroline Waggoner and Craig Hulse. The Scenic City Certification Program incorporates a comprehensive set of standards for design and development of public roadways and public spaces. Cities who receive the highest evaluation scores are certified. North Richland Hills was able to achieve Silver status in its first year and enjoys certification with the neighboring cities of Keller, Trophy Club, Roanoke, Westlake and Grapevine. A.4 REPORT ON FALL FIX -IT BLITZ Ms. JoAnn Stout, Director of Neighborhood Services, presented an overview of the accomplishments of the Neighborhood Initiative Program since its inception in 2004. The program was expanded in 2009 to include volunteers assisting in repairing the exterior of properties that meet the qualifications of being low income, a senior citizen, single parent or persons with disabilities. The City recently partnered with the Community Enrichment Center to hire a NIP Project Manager. Ms. Stout introduced the NIP Project Manager, Mike Glover. Mr. Glover gave a report on the Fall Fix -it Blitz held October 15 and 16. Mr. Glover reported that over 280 volunteers worked together to complete 18 projects that included projects such as home maintenance, repairs, and yard work. A.5 CITIZENS PRESENTATION ►Cm A.6 REMOVAL OF ITEM(S) FROM THE CONSENT AGENDA None. B.4 APPROVAL OF CONSENT AGENDA ITEMS APPROVED B.1 APPROVAL OF MINUTES OF OCTOBER 10, 2011 CITY COUNCIL MEETING COUNCILMAN LOMBARD MOVED TO APPROVE THE CONSENT AGENDA. COUNCILMAN TURNAGE SECONDED THE MOTION.. MOTION TO APPROVE CARRIED 6 -0. C.0 PUBLIC HEARINGS No items for this category. D.0 PLANNING & DEVELOPMENT No items for this category. E.0 PUBLIC WORKS E.1 PW 2011 -018 APPROVE A CHANGE ORDER TO L.H. LACY CONSTRUCTION, LTD. IN THE AMOUNT OF $71,103.50 ON THE NORTH TARRANT PARKWAY STREET IMPROVEMENTS PROJECT (ST0201) APPROVED Mr. Gregory VanN'ieuwenhuize, Assistant Public Works Director, advised Staff was requesting approval of a change order on the North Tarrant Parkway Street Improvements Project to L.H. Lacy Construction, LTD. The project is a joint project with the City of Keller and the change order will be wholly paid by the City of Keller for improvements in the City of Keller. The Interlocal Agreement with Keller provides that North Richland Hills is the "lead" City and as the lead city, any grants for funding and contracts associated with the project are in the name of North Richland Hills. The project is divided into three phases — Keller Section, Joint Section and North Richland Hills Section. In the Joint and NRH sections, the entire right -of way width will be irrigated to provide irrigation coverage for all trees, grass and landscape plantings. The Keller section project plans call for a limited irrigation system to water trees only. During construction, Keller has decided to expand their irrigation coverage. The contractor provided a price of $71,103.50 to the City of Keller for the expanded irrigation system in their section. The Keller City Council has approved expending $71,103.50 with a recommendation to North Richland Hills to approve the corresponding change order. COUNCILMAN WELCH MOVED TO APPROVE PW 2811 -818, APPROVING A CHANGE ORDER TO L.H. LACY CONSTRUCTION, LTD. IN THE AMOUNT OF $71,183.50 ON THE NORTH TARRANT PARKWAY STREET IMPROVEMENTS PROJECT (ST0201 ). COUNCILMAN WHITSON SECONDED THE MOTION. MOTION TO APPROVE CARRIED 6 -8. F.0 GENERAL ITEMS F.1 GN 2411 -493 APPOINTMENT OF CHAIR TO REINVESTMENT ZONE NUMBER 1 (TIF 1) AND CHAIR TO REINVESTMENT ZONE NUMBER 2 (TIF 2) APPROVED Patricia Hutson, City Secretary, presented the item. The Bylaws for Reinvestment Zones Number 1 and Number 2 require the Council to appoint annually a chair to each board. Mayor Trevino has been serving as the Chair on both boards. Council is requested to make their annual appointment of the Chair of Reinvestment Zone Number 1 and the Chair of Reinvestment Zone Number 2. COUNCILMAN LOMBARD MOVED TO APPOINT MAYOR TREVINO AS THE CHAIR OF REINVESTMENT ZONE NUMBER 1 AND CHAIR OF REINVESTMENT ZONE NUMBER 2. COUNCILMAN WHITSON SECONDED THE MOTION.. MOTION TO APPROVE CARRIED 6 -8. F.2 GN 2011 -094 CONSIDERATION OF ORDINANCE REGARDING RESIDENTIAL HOUSING STANDARDS FOR SINGLE- FAMILY RENTAL UNITS - ORDINANCE NO. 3162 APPROVED Mayor Trevino advised that this item is not a public hearing but that several individuals were requesting to speak on the item. Council Rules of Procedure provides that any person wishing to speak on an item on an agenda, which is not listed as a public hearing, may complete a public meeting appearance request card and present it to the city secretary prior to the matter being reached. Any member of the council, including the mayor, may request that the person be heard. Unless another member of the council objects, the mayor shall allow such person to speak. If there is an objection the mayor shall submit to the council the question of whether the person shall be heard. If a majority votes to hear the requestor, the mayor shall allow such person to speak. Mayor Trevino asked Council if they would concur with allowing the individuals who had submitted requests to speak, to speak on the item. All members of the Council concurred with receiving input from the individuals who had submitted a public meeting appearance request card. Mr. Dave Pendley, Building Official, presented a PowerPoint presentation 'highlighting a proposed ordinance that would require a Certificate of Occupancy (C.O.) be issued to a building owner prior to a tenant occupying a rental unit in a single - family, two- family, three - family, four - family, or townhome. Mr. Pendley explained why a housing standard program for single - family rentals was being recommended, discussed other DFW municipalities with rental programs and examples were given of rental units in need of repair. Mr. Pendley highlighted provisions of the ordinance: • All rental units would be required to pass an inspection for minimum maintenance /safety standards found in the city's substandard building provisions prior to tenant occupancy • No registration or annual fees • Inspection at tenant turnover • Effective date of January 1, 2012 • Building permit fees for required repairs waived until July 1, 2012 • Units occupied by the landlord's direct family member(s) exempt • 1 st time rentals to prevent foreclosure (or similar hardship) exempt Mr. Pendley explained how he envisioned the inspection program would work and clarified some of the concerns brought to Staff's attention: • Does not require rentals to be brought to current building code requirements • No fees in foreseeable future • Similar programs in other cities have not discouraged investment • Inspections will not cause delays • Inspections take place at "make - ready'. Mayor Trevino questioned if the ordinance could be reviewed in two or three years for effectiveness, if the start date could be changed to April 2 and if no fees in the future could be guaranteed. Council was advised that there would not be any issues with reviewing the ordinance in the future for its effectiveness and with revising the effective date, but that Council could not commit future councils to not implementing fees. The following individuals spoke against the proposed ordinance. • Johnny Williams, 4904 Delta Court, NRH ( realtor, investor and resident) • Linda Sutphin, 5031 Mary Anna Way, NRH (resident, realtor and owner of multi - rent properties in NRH) • Steve Kettering, 8605 Hudson Street, NRH (landlord with 4 residential properties in NRH) • Charles Reading, 7324 & 7320 Meadowbrook Drive, NRH (property occupied by family member) • Cindy Carriger, 8448 Ruthette Drive, NRH (owner of fourplex) • Loyce Shirley, 8324 Thornhaven Court, NRH (resident, landlord and realtor) • Steve Behringer, 14300 Scenic Ridge Road, Haslet 1 office 5755 Rufe Snow • Ron Koehn, 5400 Oak Haven Road, Keller (owns property in NRH and property manager for 20 rental units) • Lila Daniels, 7008 Sao Paulo Court, NRH (landlord) • Mary Sue Wood, 415 Fairhaven, Hurst (owns property in NRH) — concerns addressed by others and opted not to speak • Cathy Brandon, 1220 -G Airport Freeway, Bedford (resident of Haslet; 3 rental properties in NRH) • Aaron Miller, 605 Elaine Street, Keller (19 rental properties in NRH and property manager of 60f in NRH) • Eileen Miller, 605 Elaine Street, Keller (real estate broker and property manager) • Judy ,Jones, representing Metro Tex Association of Realtors Comments from the individuals who spoke included: • Opposed to any restrictions • Code enforcement should be strengthened • Clearer definitions needed in the ordinance; ordinance too open- ended. • Enforce substandard properties through condemnation; use current regulations to address maintenance issues with rental properties • Suggestion — allow properties receiving a favorable CO to be exempt the next two or three times • Concerns with serious long term unexpected consequences • Regulations will discourage property investments, statistics show property values do not increase in cities with rental programs • Restrictions don't apply to owner occupied homes; enforcement of health and safety ordinances should not depend on the occupancy status of a property but should be applied to all property • Concern that fees will be added in future years • Alternative methods suggested to address maintenance issues — complaint based program, rental registration program requiring local contact information for each rental unit; one year trial program similar to the city's current Neighborhood Initiative Program with a task force comprised of realtors, investors, landlords and vendors • Metro Tex Association would welcome the opportunity to partner with City to develop a program to bridge the gap through Metro Texas Association of Realtors property management community. Mayor Trevino requested the City Manager address 1) exempting those rental properties receiving favorable inspections from inspections if they have tenant move outs within two or three years of inspection; 2) the Council's philosophy on code enforcement; 3) the length of time this regulation has been under consideration and stakeholder input. Mr. Hindman advised the extended time frame is technically possible for those units receiving favorable inspections with the establishment of some criteria. Mr. Hindman discussed the perception that the City was not aggressively looking at owner occupied properties and explained how there is a lot of activity going on behind the scene that is not evident. Staffs approach has been and Council has instructed staff to work with property owners, to educate them and try to attain cooperation to remedy the problem rather than issuing notices of violation, citations, and attaching liens to property. Through the Neighborhood Initiative Program, 78% of the owner occupied properties considered to be substandard in the target area have been brought into compliance. Over the last year the City has also pursued through the Substandard Building Board the demolition of approximately 14 properties. This program is becoming a difficult, if not impossible program to pursue through the courts. The City has been working on a rental program for over two years considering a variety of programs and receiving input from stakeholders during the two -year process. Mayor Trevino requested Council consider amending the ordinance to review the effectiveness of ordinance in two years and move the start date from January to April 2, 2412. COUNCILMAN LOMBARD MOVED TO APPROVE GN 2011 -094, ORDINANCE NO. 3162. COUNCILMAN TURNAGE SECONDED THE MOTION. MAYOR PRO TEM BARTH REQUESTED THE MOTION BE AMENDED TO ADD A PROVISION TO REVIEW THE EFFECTIVENESS OF THE ORDINANCE IN TWO YEARS, AND TO CHANGE THE EFFECTIVE DATE TO APRIL 2, 2012. COUNCILMAN LOMBARD SECONDED THE AMENDMENT. COUNCILMAN TURNAGE ACCEPTED THE AMENDMENT. COUNCILMAN TURNAGE FURTHER AMENDED THE MOTION TO ADD THAT HOMES THAT HAVE PASSED INSPECTION PREVIOUSLY WOULD NOT BE SUBJECT TO INSPECTION AGAIN FOR AT LEAST ONE YEAR. COUNCILMAN RODRIGUEZ SECONDED THE AMENDMENT. COUNCILMAN LOMBARD ACCEPTED THE AMENDMENT TO THE MOTION.. MAYOR TREVINO ADVISED THE MOTION ON THE FLOOR WAS TO APPROVE ORDINANCE NO. 3162 AS WRITTEN WITH ADDITIONAL PROVISIONS TO REVIEW THE EFFECTIVENESS OF THE ORDINANCE IN TWO YEARS, CHANGE THE EFFECTIVE DATE TO APRIL 2, 2012 AND THAT NO INDIVIDUAL RENTAL UNIT AFTER IT PASSES ITS INSPECTION GETS AN INSPECTION FOR 375 DAYS. COUNCILMAN WELCH REQUESTED AN AMENDMENT TO THE MOTION THAT WOULD REDUCE THAT TO A ONE -YEAR TRIAL RENTAL PROGRAM IF AND ONLY IF THE NORTH RICHLAND HILLS LANDLORDS OR THE RENTAL GROUPS PUT TOGETHER SOME KIND OF TASK FORCE WORKING WITH THE CITY MANAGER AND RECOMMEND AN ALTERNATIVE EFFECTIVE ORDINANCE FOR COUNCIL TO CONSIDER. COUNCILMAN WHITSON SECONDED THE AMENDMENT. COUNCILMAN LOMBARD AND COUNCILMAN TURNAGE ACCEPTED THE ADDITIONAL AMENDMENT. At the request of Council, Staff will bring back for Council consideration before the April 2 effective date language for an "Atta boy" for those homes in excellent condition that would be on top of the one -year inspection exemption and if complaints are receive the Atta boy would go away. Mayor Trevino advised that Councilman Sapp was unable to attend the Council meeting but had submitted an email with his comments. Mayor Trevino read Councilman Sapp's email which expressed his opposition to the ordinance and his reasons. The email also stated that he would support ordinances that would require all houses to be brought up to a common exterior standard, which would be non - discriminatory and help raise neighborhood values through improved appearance. AFTER COMMENTS FROM THE MAYOR AND COUNCIL, MAYOR TREVINO REQUESTED CLARIFICATION ON COUNCILMAN WELCH'S AMENDMENT TO THE MOTION. MAYOR TREVINO STATED THE AMENDMENT WAS BASED ON REALTOR GROUP PARTICIPATION AND HE ASKED FOR CLARIFICATION ON WHAT PARTICIPATION MEANS (I.E., IS IT ONLY WRITING A PROGRAM) AND IF THEY DO NOT DO IT WHAT HAPPENS. COUNCILMAN WELCH ADVISED HE FELT THAT THE FIRST SIX MONTHS WOULD GIVE THE LANDLORDS AN OPPORTUNITY TO UNDERSTAND HOW THE PROGRAM WORKS. IF THE LANDLORDS ARE NOT PLEASED WITH THE PROGRAM, HE WOULD LIKE TO SEE THEM WORK TOGETHER AND DEVELOP AN ALTERNATIVE PROGRAM FOR COUNCIL TO CONSIDER. The Council concurred with the clarification. MOTION TO APPROVE CARRIED 6 -0. G.a EXECUTIVE SESSION ITEMS G.1 ACTION ON ANY ITEM DISCUSSED IN EXECUTIVE SESSION LISTED ON WORK SESSION AGENDA No action needed. H.0 INFORMATION AND REPORTS H.1 ANNOUNCEMENTS Councilman Whitson made the following announcements. Early voting for the election to amend the State Constitution began today and continues through Friday, November 4th. In North Richland Hills, early voting is being conducted at the Recreation Center located at 6720 NE Loop 820. For more information about the election, visit the Tarrant County Elections website at tarrantcounty.comleVote or call 817 -831 - 8683. Join us for the 8th Annual Hoot n' Howl event from 5 to 8 p.m. this Saturday, October 29th, at Green Valley Park. Activities include free games, bounce houses, hayrides, storytelling, a costume contest and more. This annual event is a safe alternative to trick or treating. For more details, please call 817 - 427 -6600. The NRH Police Department is partnering with the Drug Enforcement Administration for the national "Take Back" initiative. This initiative provides the public an opportunity to safely discard prescription medication for proper destruction. Unused, expired and unwanted prescription drugs can be dropped off at the NRH Fire Administration Building on Saturday, October 29th between 10 a.m. and 2 p.m. For more information, please call 817- 427 -7000. Kudos Korner - David Lopez, Wesley Layfield and Miguel Bermea, Public Works Department. A resident called to thank the men who worked in the early morning hours on a water main break on his street. They were quiet, considering the job they had to do, and they were quick. The water was back on before his wife even knew there was a problem, the resident said. He was very pleased and wanted the City to know these employees did a great job. H.2 ADJOURNMENT Mayor Trevino adjourned the meeting at 8:48 p.m. Oscar Trevino — Mayor Patricia Hutson, City Secretary M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. B.2 GN 2011 -095 Cancellation of the November 28 and December 26 City Council Meetings Presenter: Patricia Hutson, City Secretary Summarv: Due to the close proximity of the Thanksgiving and Christmas holidays, the City Council will consider cancelling the November 28 and December 26 Council meetings. General Descrirstion: At the October 24 Work Session, Council discussed cancelling the November 28 and December 26 City Council meetings due to the Thanksgiving and Christmas holidays. The consensus of the Council was to cancel the two meetings and if there is unexpected business that cannot be handled at the remaining meetings a special meeting will be scheduled. Recommendation: To cancel the November 28 and December 26 City Council meetings. M RH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. B.3 GN 2011-096 Approve an Interlocal Agreement between the City of North Richland Hills and Birdville Independent School District and Addendum A.1 to the City's current Dark Fiber Agreement with Charter Communications, Inc. Presenter: Kyle Spooner, Information Services Director Summary: The City Council is being asked to approve an interlocal agreement between the City of North Richland Hills and Birdville Independent School District (BISD) and addendum A.1 to the City's current dark fiber agreement with Charter Communications, Inc. for fiber previously covered under the expired franchise agreement. General Descrivtion: In the past, franchise agreements were handled at the municipal level and provisions were made for Charter Communications (Marcus Cable) to provide communication infrastructure between City facilities and all schools located within the City of North Richland Hills for no charge. When the franchise agreements were moved to the state level, companies were granted the ability to charge maintenance fees for this infrastructure. This year, the City negotiated maintenance fees with Charter and entered into a dark fiber agreement with them to continue to provide the City's communication infrastructure. Under this proposed addendum, the fiber currently in use by BISD will be added to the City's dark fiber agreement with Charter Communications, Inc. The City will act as a pass - through between BISD and Charter. This will result in a substantial savings for the school district by receiving the City's negotiated rate with Charter for dark fiber services. Recommendation: Approve an Interlocal Agreement for Charter dark fiber between the City of North Richland Hills and Birdville Independent School District and addendum A.1 to the City's current dark fiber agreement with Charter Communications, Inc. and authorize the City Manager to execute such agreements. STATE OF TEXAS § COUNTY OF TARRANT § INTERLOCAL AGREEMENT FOR INET Fiber This INTERLOCAL AGREEMENT FOR (INET) FIBER ACCESS (the "Agreement ") is made and entered into by and between the City of North Richland Hills ( "City ") a home rule municipality of Tarrant County, Texas, acting herein by and through its duly authorized City Council, and Birdville Independent School District ( "BISD "), acting herein by and through its duly authorized Board of Trustees , collectively referred to herein as the "Parties." WITNESSETH WHEREAS, BISD desires to continue to use existing dark fiber connecting schools and facilities so that faculty, students and staff can access productivity software, district applications and online resources; and, WHEREAS, the provider of such dark fiber, Charter Communications has agreed to provide such dark fiber at a reduced price if it is included in City's INET agreement rather than under a contract between Charter and BISD; and, WHEREAS, such dark fiber and its estimated costs are described in Exhibit A hereto generated by the provider of such services if covered under City's INET agreement with such provider and City is willing to allow such coverage as long as BISD will pay the cost for such coverage and City will be fully reimbursed for the inclusion of the BISD coverage in its INET agreement ; and, WHEREAS, the Texas Government Code, Chapter 791, the "Interlocal Cooperation Act," authorizes local governmental entities to enter into an interlocal agreement for governmental purposes; and, WHEREAS, the governing body of City and BISD have each authorized the execution of this Agreement. NOW, THEREFORE, for the consideration and mutual promises set forth herein, the receipt and sufficiency of which is hereby acknowledged, the Parties do hereby agree as follows: SECTION 1. City agrees to include in its INET agreement with Charter Business, a unit of Charter Communications, Inc., dark fiber connections to the facilities and schools described in Exhibit A hereto so that BISD can continue to use dark fiber under the City's INET agreement. SECTION 2. BISD agrees to reimburse City from BISD current revenues for the fees billed City for the dark fiber service connecting the facilities described in Exhibit A hereto at the rate billed City under its INET agreement with its provider plus any applicable sales tax and Federal, State, or local mandated fees. SECTION 3. TERM This Agreement shall remain in full force and effect until either Party terminates in writing by providing the other Party with sixty (60) days advance notice; provided, however, BISD shall be obligated to pay City for any expense or charges it incurs under its INET agreement with the provider for the facilities serving BISD until such INET Agreement can be modified to eliminate the facilities serving BISD. SECTION 4. CHANGES City agrees to request any additional or changed services sought by BISD and BISD agrees to pay City any increased charge incurred by City for such changes from its INET provider. Should any requested changes reduce the charges to City, City will accept payments from BISD reduced accordingly. Should the City's provider increase its charges, City will notify BISD of such increased charges. SECTION 5. NOTICES Notices shall be given as follows: To BISD: Dr. Darrell Brown, Superintendent Birdville ISD 3125 Carson St. Haltom City, TX. 76117 817- 547 -5601 (Office) darrel1 .brown("a.birdvilleschools.net To City: Kyle Spooner City of North Richland Hills Director of Information Services 7301 Loop 820 North Richland Hills, TX 76180 kspooner@nrhtx.com 817- 427 -6230 CITY OF NORTH RICHLAND HILLS Mark Hindman, City Manager Date: APPROVED AS TO FORM AND LEGALITY: in George Staples Attorney BIRDVILLE INDEPENDENT SCHOOL DISTRICT President, Board of Trustees Date: APPROVED AS TO FORM AND LEGALITY: Tom Myers, BISD Attorney ADDENDUM A.1 ADDENDUM # 1 MASTER FIBER A(t vffi i Between City of North Richland Hills _AND Marcus Cable Lssociates, LLC This Addendum shall operate to modify the Master Fiber Agreement C'Agreement ") made as of In3110 by and between Marcus Cable Associates, LLC and the City of North Richland Hills. Except as specifically modified herein, all other terms and conditions of the Agreement shall remain unamended and in full force and effect. The following chart represents those Licensed Fibers which Provider has granted specific license for use to Recipient and the monthly service fees to be paid by Recipient to Provider in consideration of such license. Dark Fiber Maintenance Breakdown {per site} A Location Z Location Maine Address Name Addre4s D Fiber Fiber Cost r_&, 0035 Miles Footage Count cents/strand- foot 9100 Mid Cities 8780 Bridge: Birdville Boulevard N. Walker Creek Street, N. $83.16 High School Richland Elementary Richland TT11 Hills, TX, TX, 76190 76180 7020 Mid Cities Blvd., 7332 Douglas Brrdville North North Ridge Lane, N. Richland 0.5 2 610 �: $55.44 CATE Center Richland - Middle School Hills, TX, 76180 Hills, TX, 76180 7900 Smithfield Green Valley Road, N. Smithfield 8400 Main Street, Elementary Richland Middle School N. Richland Hills, t -, 2640 is $55.44 Hills, TX, TX, 76182 76180 5221 Susan 5201 Holida Holiday Lee Lane, N. Richland High Lane East, N. Heights Richland Schaal Richland Bills. 0 2640 6 $55.44 Elementary Hills, TX, 76180 TX 76180 Alliene 4100 Flory Hub H 1 5280 6 $11!0.88 IUfullend.re Street, N. Elementary Richland Hills, TX, 76180 4800 Rufe North Snow Drive, Snow Heights 4801 Vance Road, Richland N. Richland Elementary Richland Hills, 0.5 Middle Hills, E19, TX, 76180 76108 7332 Douglas North Ridge Lane, N. Smithfield 6724 Smithfield Middle Richland Elementary Road, N. Richland 1.25 School Hills, TX, Hills, TX, 76180 76180 820k-) O'Brian Academy at Way W.A. Porter 2750 Prestondale C.F. Thomas N. Richland Elementary Drive, Hirst, TX , 75 Hills, TX, TX, 76054 76180 5201 Holiday 4800 Rufe Snow Richland Lane East, N. North Richland Drive, N. High School Richland Middle Richland Hills; 0.75 Hills, TX, E19,76108 76180 6724 Smithfield 8400 Main Street, Smithfield Road, N. Smithfield N Richland Hills, 0.25 Elementary Richland Middle School TX, 76182 Hills, TX, 76180 8400 Main Smithfield Street, N. Academy at C.F. 8200 O'Brian Middle Richland Thomas Way, N. Richland 0.5 School Hills, TX, Hills TX, 76180: 76182 4801 Vance Snow Heights- Road, N. Alliene 4100 Flory Street, Elementary Richland 1vIullondore N. Richland Hills, 1 Hills, TX, Elementary TX, 76180 76180 8780 Bridge Walker Creek Street, N. Holiday Heights 5221 Susan Lee Elementary Richland. Elementary Lane, N. Richland 0.75 Hills, TX, Hills, TX, 76180 76180 6724 Smithfield 6800 Springdale Smithfiled Road, N. Foster Village Lane, N. Richland 1.7 Elementary Richland Elementary Hills, TX, 76180 Hills, TX 76180 TOTAL 2640 6 $55.44 6600 6 $138.60 3960 6 $83.16 3960 6 $83.16 1320 6 $27.72 2640 6 $55.44 5280 6 $110.88 3960 6 $83.16 8976 6 $188.50 56,496 $1,186.42 N SERVICE PERIOD. 60 Months PAYMENT AMOUNT. 51,186.42 per Month TERMINATION. This addendum with respect to the fibers as stated above shall automatically terminate at the end of the Sen ice Period unless extended by mutual consent of the parties and executed by the Parties as stated in section 13.1 of the .Agreement Except as amended above, the Agreement and Sera ice Order shall remain in full force and effect. IN WITNESS WHEREOF, this Amendment has been duly executed by the undersigned. Prodder By. Mareus Cable Associates, LLC By; Charter Communications, Inc., its Manager By: Name: Recipient 13v: City of North Richland Hills By: Name: Title- Date: Title: Bate: 3 M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. B.4 GN 2011 -100 Approve Resolution Adopting Ethical and Training Standards for Juvenile Case Manager - Resolution No. 2011 -034 Presenter: Debbie Durko, Municipal Court Administrator Summarv: Council is requested to approve a resolution adopting ethical and training standards for the Juvenile Case Manager position. Senate Bill 81 passed the requirement that all municipalities who employee a Juvenile Case Manager adopt reasonable rules for ethics and educational standards prior to December 1, 2011. General Description: Prior to the 2011 legislative session, Texas law did not provide any minimum standard of training or education for juvenile case managers. SB 61 was passed during the 82 Legislative Session to create consistency across court systems and to enable juvenile case managers to be more effective in their intended role as problem solvers who foster interaction between defendants and the judge, integrate social services into the disciplinary process, and evoke cooperation between the juvenile, their parents, schools, and courts to best serve the interests of the juvenile and the community. Recommendation: Approve Resolution 2011 -034 RESOLUTION NO. 2011 -034 A RESOLUTION ADOPTING ETHICAL AND TRAINING STANDARDS FOR JUVENILE CASE MANAGERS EMPLOYED BY THE CITY OF NORTH RICHLAND HILLS, TEXAS, PROVIDING FOR IMPLEMENTATION OF SAID STANDARDS, AND PROVIDING FOR PERIODIC REVIEW TO ENSURE IMPLEMENTATION OF THE REQUISITE STANDARDS WHEREAS, the City has, pursuant to Code of Criminal Procedure 102.0174, authorized a juvenile case manager fund supported by additional costs assessed and collected in municipal court; and WHEREAS, the City has, pursuant to Code of Criminal Procedure 45.056, employed a juvenile case manager to provide services in cases involving juvenile offenders before the court; and WHEREAS, the 82 Texas Legislature enacted Senate Bill 61, which requires the governing body employing a juvenile case manager to adopt, by December 1, 2011, reasonable rules for juvenile case managers that provide for a code of ethics, educational pre - service and in- service training standards, and training in relevant substantive areas; and WHEREAS, the City wishes to ensure that its juvenile case managers receive the requisite training and are held to the highest ethical standards; NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF NORTH RICHLAND HILLS, TEXAS, AS FOLLOWS: 1. The City hereby adopts the Juvenile Case Manager Code of Ethics attached hereto as Exhibit "A," as the ethical standards to which the City's juvenile case managers shall be held. 2. The City hereby requires that its juvenile case managers receive a minimum of eight (8) hours of training per fiscal year. Areas of focus could include, but are not limited to: the role of the juvenile case manager, case planning and management, applicable procedural and substantive law, courtroom proceedings and presentations, services to at -risk youth, local programs for juveniles, and the detection and prevention of abuse, exploitation and neglect of juveniles. 3. The City hereby directs that the rules adopted herein be implemented by the appropriate personnel. 4. The City hereby requires an annual review of its juvenile case managers to ensure implementation of the rules adopted herein. AND IT IS SO RESOLVED. PASSED AND APPROVED on the 14th day of November, 2011. CITY OF NORTH RICHLAND HILLS Oscar Trevino, Mayor ATTEST: Patricia Hutson, City Secretary APPROVED AS TO FORM AND LEGALITY: George A. Staples, City Attorney APPROVED AS TO CONTENT: Debbie Durko, Municipal Court Administrator EXHIBIT "A" PREAMBLE The goal of the Juvenile Case Manager is to assist the Court in administering the Court's juvenile docket and in supervising its court orders in juvenile cases. The mission of the Juvenile Case Manager is to assist judges in providing juveniles the resources to shape their futures, connect with the community and become law abiding citizens. When applying this Code of Ethics, keep foremost in mind that the City is guided at all times by the values of integrity, excellence, compassion and respect for the dignity of every person. STANDARDS Confidentiality. A Juvenile Case Manager shall not disclose to any unauthorized person any confidential information acquired in the course of employment. A Juvenile Case Manager shall not violate the confidentiality of juvenile clients, unless it is to seek consultation services from within the case management program, school campus, or the juvenile has threatened to harm himself, herself, or others, or to provide details of any criminal activity or enterprise. Conflicts of Interest. A Juvenile Case Manager shall be alert to and avoid conflicts of interest that interfere with the exercise of professional discretion and impartial judgment. In order to maintain the community's trust in the judicial system, a Juvenile Case Manager should avoid soliciting or accepting improper gifts, gratuities, or loans and should avoid engaging in business relationships that give rise to an appearance of impropriety. Competence. A Juvenile Case Manager shall endeavor at all times to perform official duties properly and with courtesy and diligence. A Juvenile Case Manager shall fulfill his or her duty and represent himself or herself only within the boundaries of their education, training, license, certification, consultation received, supervised experience, or other relevant professional experience. Respect for the Law. A Juvenile Case Manager shall abide by all federal, state, county and municipal laws, guidelines, ordinances and rules. A Juvenile Case Manager shall be familiar with the Texas Code of Judicial Conduct and the basic standards to which members of the judiciary are held. Abuse of Position. A Juvenile Case Manager shall not use or attempt to use his or her official position to secure unwarranted privileges or exemptions for himself, herself or any other person. A Juvenile Case Manager shall always maintain an appropriate relationship with juveniles coming under the jurisdiction of the Court. A Juvenile Case Manager shall not discriminate against any person on the basis of age, sex, creed, sexual preference, disability or national origin. ENFORCEMENT Any alleged violation of applicable ethical standards shall be subject to investigation and discipline by the hiring entity's designated non - judicial department or supervisor. M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. B.5 GN 2011 -101 Approve the Custodial and Safekeeping Services Agreement with JP Morgan Chase Bank, N.A Presenter: Laury Fiorello, Assistant Finance Director Summarv: JP Morgan Chase Bank, N.A. has recently amended their internal processes to align with recently implemented banking regulatory changes. To adhere to compliance with the new banking regulations each customer of JP Morgan Chase Bank, N.A. must have their governing board approve the custodial and safekeeping agreement and also assign authorizations to personnel who can conduct investment transactions (this is a separate agenda item). General Descrir)tion: JP Morgan Chase Bank, N.A. has modified the legal requirements of their internal policies and procedures to be in alignment with stricter banking regulations. One of these changes mandates that all JP Morgan Chase Bank, N.A. customers have their governing bodies formally and separately adopt an agreement for custodial and safekeeping services for holding of the City's investment instruments, as well as authorize personnel of the City who can conduct investment transactions for the City. This separate agreement stipulates the business relationship and grants approval for JP Morgan Chase Bank, N.A. to house the security instruments for the City's portfolio. This agreement does not extend the life of Chase's original award for banking services; nor does it change the costs associated with the original contract. Recommendation: Approve the Custodial and Safekeeping Services Agreement with JP Morgan Chase Bank, N.A. DOMESTIC CUSTODY AGREEMENT BETWEEN [THE CUSTOMER] AND JPMORGAN CHASE BANK, N.A t►► ►Loll 4 o l fi► ►I Id l IIIII&I 11 i l l l: i I I I *01 :1: i VI [ 4 IL7 jpmorgan.com iF1.1441073K4191ZI1N :4zk&I Domestic Custody Agreement .................................. ............................... 4 1. INTENTION OF THE PARTIES; DEFINITIONS .............. ............................... 4 1.1 Intention of the Parties 4 1.2 Definitions; Interpretation 4 2. What J.P. Morgan is Required to Do ..................... ............................... 6 2.1 Set Up Accounts 6 2.2 Cash Account 7 2.3 Segregation of Assets; Nominee Name 7 2.4 Settlement of Transactions 8 2.5 [Reserved.] 8 2.6 Actual Settlement Date Accounting 8 2.7 Income Collection 8 2.8 Miscellaneous Administrative Duties 9 2.9 Corporate Actions 9 2.10 Class Action Litigation 9 2.11 Proxies 10 2.12 Statements of Account 10 2.13 Access to J.P. Morgan's Records 11 2.14 [Reserved.] 11 2.15 Notification 11 3 . Instructions ................................................... ..............................1 1 3.1 Acting on Instructions; Method of Instruction and Unclear Instructions 11 3.2 Verification and Security Procedures 12 3.3 Instructions Contrary to Law /Market Practice 12 3.4 Cut -Off Times 12 3.5 Electronic Access 12 4. Fees, Expenses and Other Amounts Owing to J.P. Morgan ........................ 12 4.1 Fees and Expenses 12 4.2 Overdrafts 12 4.3 J. P. Morgan's Right Over Securities; Set -off 13 5. Securities Depositories ...................................... .............................13 5.1 Use of Securities Depositories 13 6. Additional Provisions ....................................... ..............................1 4 6.1 Representations of the Customer and J.P. Morgan 14 6.2 The Customer is Liable to J.P. Morgan Even if it is Acting for Another Person 14 7. When J.P. Morgan is Liable to the Customer ........... .............................15 Form Domestic Custody Agreement (NY Law) July 2010 7.1 Standard of Care; Liability 15 7.2 Force Majeure 15 7.3 J.P. Morgan May Consult With Counsel 16 7.4 J.P. Morgan Provides Diverse Financial Services and May Generate Profits as a Result 16 7.5 Assets Held Outside J.P. Morgan's Control 16 7.6 Ancillary Services 16 8. Taxation ........................................................ .............................17 8.1 Tax Obligations 17 9 . Termination ................................................... .............................17 9.1 Term and Termination 17 9.2 Exit Procedure 18 10. Miscellaneous ................................................. .............................18 10.1 Notifications 18 10.2 Successors and Assigns 18 10.3 Entire Agreement 19 10.4 Insurance 19 10.5 Security Holding Disclosure 19 10.6 USA PATRIOT Act Disclosure 19 10.7 Governing Law and Jurisdiction 19 10.8 Severability; Waiver; and Survival 20 10.9 Confidentiality 20 10.10 Counterparts 21 10.11 No Third Party Beneficiaries 21 SCHEDULE 1 Form of Board Resolution 22 ANNEX A Electronic Access 23 Form Domestic aistody Agreement (NY Law) July 2010 Domestic Custody Agreement This Agreement, dated _October 17 . 2011, is between JPMORGAN CHASE BANK, NATIONAL ASSOCIATION ( "J. P. Morgan "), with a place of business at 1111 Polaris Parkway, Suite 3J, Columbus, OH 43240; and (City of North Richland Hills ] (the "Customer ") with a place of business at [7301 N.E. Loop 820, North Richland Hills, TX 76180] . 1. INTENTION OF THE PARTIES; DEFINITIONS 1.1 Intention of the Parties (a) This Agreement sets out the terms on which J.P. Morgan will be providing custodial, settlement and other associated services to the Customer. J.P. Morgan will be responsible for the performance of only those duties set forth in this Agreement. (b) The Customer acknowledges that J.P. Morgan is not providing any legal, tax or investment advice in providing the services under this Agreement. (c) It is the intention of the parties that the services offered by J.P. Morgan under this Agreement with respect to the custody of Securities and related settlement services will be limited to Securities that are issued in the United States ( "U.S. ") by an issuer that is organized under the laws of the U.S. or any state thereof, or that are both traded in the U.S. and eligible for deposit in a U.S. Securities Depository. (d) The terms and conditions of this Agreement are applicable only to the services which are specified in this Agreement. Other services are subject to separate terms and conditions, which J.P. Morgan will make available to the Customer upon request. 1.2 Definitions; Interpretation (a) As used herein, the following terms have the meaning hereinafter stated. "Account" has the meaning set forth in Section 2.1 of this Agreement. "Affiliate" means an entity controlling, controlled by, or under common control with, J.P. Morgan or the Customer as the case may be. "Applicable Law" means any applicable statute, treaty, rule, regulation or common law and any applicable decree, injunction, judgment, order, formal interpretation or ruling issued by a court or governmental entity. "Authorized Person" means any person who has been designated by written notice from the Customer in the form as provided by J.P. Morgan (or by written notice in the form as provided by J.P. Morgan from any agent designated by the Customer, including, without limitation, an investment manager) to act on behalf of the Customer under this Agreement and any person who has been given an access code by a security administrator appointed by the Customer which allows the provision of Instructions. Such persons will continue to be Authorized Persons until such time as J.P. Morgan Form Domestic Custody Agreement (NY Law) July 20 1® receives and has had reasonable time to act upon Instructions from the Customer (or its agent) that any such person is no longer an Authorized Person. "Cash Account" has the meaning set forth in Section 2.1(a)(ii). "Confidential Information" means and includes all non - public information concerning the Customer or the Accounts which J.P. Morgan receives in the course of providing services under this Agreement. nevertheless, the term Confidential Information shall not include information which is or becomes available to the general public by means other than J. P. Morgan's breach of the terms of this Agreement or information which J. P. Morgan obtains on a non- confidential basis from a person who is not known to be subject to any obligation of confidence to any person with respect to that information. "Corporate Action" means any subscription right, bonus issue, stock repurchase plan, redemption, exchange, tender offer, or similar matter with respect to a Financial Asset in the Securities Account that requires discretionary action by the beneficial owner of the Security, but does not include rights with respect to class action litigation or proxy voting. "Entitlement Holder" means the person named on the records of a Securities Intermediary as the person having a Securities Entitlement against the Securities Intermediary. "Financial Asset" means a Security and refers, as the context requires, either to the asset itself or to the means by which a person's claim to it is evidenced, including a Security, a security certificate or a Securities Entitlement. "Financial Asset" does not include cash. "Instruction" means an instruction that has been verified in accordance with a Security Procedure or, if no Security Procedure is applicable, which J.P. Morgan believes in good faith to have been given by an Authorized Person. "J.P. Morgan Indemnitees" means J.P. Morgan, its Affiliates its nominees, directors, officers, employees and agents. "'Liabilities" means any liabilities, losses, claims, costs, damages, penalties, fines, obligations, taxes (other than taxes based solely on J.P. Morgan's income),or expenses of any kind whatsoever (including, without limitation, reasonable attorneys', accountants', consultants' or experts' fees and disbursements). "Securities" means shares, stocks, debentures, bonds, notes or other like obligations, whether issued in certificated or uncertificated form, and any certificates, receipts, warrants or other instruments representing rights to receive, purchase or subscribe for the same that are commonly traded or dealt in on securities exchanges or financial markets or other obligations of an issuer, or shares, participations and interests in an issuer recognized in the country in which it is issued or dealt in as a medium for investment and any other property as may be acceptable to J.P. Morgan for the Securities Account. "Securities Account" means each Securities custody account on J.P. Morgan's records to which Financial Assets are or may be credited under this Agreement. "Securities Depository" means any securities depository, dematerialized book entry system or similar system for the central handling of Securities. "Securities Entitlement" means the rights and property interests of an Entitlement Holder with respect to a Financial Asset as set forth in Part 5 of Article 8 of the Uniform Form Domestic Custody Agreement (NY Law) July 20 1® Commercial Code of the State of New York, as the same may be amended from time to time. "Securities Intermediary" means J.P. Morgan, a Securities Depository and any other financial institution which in the ordinary course of business maintains Securities custody accounts for others and acts in that capacity. "Security Procedure" means security procedure to be followed by the Customer upon the issuance of an Instruction and/or by J.P. Morgan upon the receipt of an Instruction, so as to enable J.P. Morgan to verify that such Instruction is authorized, as set forth in service level documentation in effect from time to time between the parties with respect to the services set forth in this Agreement, or as otherwise agreed in writing by the parties. A Security Procedure may, without limitation, involve the use of algorithms, codes, passwords, encryption or telephone call backs, and may be updated by J.P. Morgan from time to time upon notice to the Customer. The Customer acknowledges that the Security Procedure is designed to verify the authenticity of, and not detect errors in, Instructions. For the avoidance of doubt, the parties agree that a SWIFT message issued in the name of the Customer through any third party utility agreed upon by the parties as being a method for providing Instructions and authenticated in accordance with that utility's customary procedures shall be deemed to be an authorized Instruction. (b) Headings are for reference and convenience only and are not intended to affect interpretation. (c) References to Articles and Sections are to Articles and Sections of this Agreement and references to sub - sections and paragraphs are to sub - sections of the Sections and paragraphs of the sub - sections in which they appear. (d) Unless the context requires otherwise, references in this Agreement to "persons" shall include legal as well as natural entities; references importing the singular shall include the plural (and vice versa); use of the generic masculine pronoun shall include the feminine; use of the term "including" shall be deemed to mean "including but not limited to," and references to appendices and numbered sections shall be to such addenda and provisions herein; all such addenda are hereby incorporated in this Agreement by reference. 2. What J.P. Morgan is Required to Do 2.1 Set Up Accounts (a) J.P. Morgan will establish and maintain the following accounts ( "Accounts "): (i) one or more Securities Accounts in the name of the Customer (or in another name requested by the Customer that is acceptable to J.P. Morgan) for Financial Assets, which may be held by J.P. Morgan or a Securities Depository for J.P. Morgan on behalf of the Customer, including as an Entitlement Holder; and one or more accounts in the name of the Customer (or in another name requested by the Customer that is acceptable to J.P. Morgan) ( "Cash Account ") for any and all cash received by or on behalf of J.P. Morgan for the account of the Customer. (b) At the request of the Customer, additional Accounts may be opened in the future, and such additional Accounts shall be subject to the terms of this Agreement. Form Domestic Custody Agreement (NY Law) July 20 1® (c) In the event that the Customer requests the opening of any additional Account for the purpose of holding collateral pledged by the Customer to a securities exchange, clearing corporation, or other central Counterparty (a "Counterparty ") to secure trading activity by the Customer, or the pledge to a Counterparty of cash or individual Securities held in an Account, that Account (or the pledged cash or Securities) shall be subject to the collateral arrangements in effect between J.P. Morgan and the Counterparty in addition to the terms of this Agreement. (d) J.P. Morgan's obligation to open Accounts pursuant to Section 2.1(a) is conditional upon J.P. Morgan receiving such of the following documents as J.P. Morgan may require: (i) a certified copy of the Customer's constitutional documents as currently in force; (ii) evidence reasonably satisfactory to J.P. Morgan of the due authorization and execution of this Agreement by the Customer (for example by a certified copy of a resolution of the Customers board of directors or equivalent governing body, substantially in the form set out in Schedule 1); (iii) J.P. Morgan's standard form fund manager mandate completed by the fund manager designated by the Customer; and (iv) in the case of any Account opened in a name not that of the Customer, documentation with respect to that name similar to that set forth in sub - sections (i) - (iii). (e) J.P. Morgan reserves the right to reverse any transactions that were credited to the Accounts due to mis- postings and other similar causes. 2.2 Cash Account (a) Any amount standing to the credit of the Cash Account is a debt due from J.P. Morgan to Customer as banker. Except as otherwise provided in Instructions acceptable to J.P. Morgan, all cash held in the Cash Account will be deposited during the period it is credited to the Accounts in one or more deposit accounts at J.P. Morgan. (b) Any amounts credited by J.P. Morgan to the Cash Account on the basis of a notice or an interim credit from a third party, may be reversed if J.P. Morgan does not receive final payment in a timely manner. J.P. Morgan will notify the Customer promptly of any such reversal. (c) (d) With J.P. Morgan's consent, the Customer may use as the Cash Account a separate demand deposit account established by the Customer at J.P. Morgan which is electronically linked to the Securities Account. 2.3 Segregation of Assets; Nominee Name (a) J.P. Morgan will identify in its books that Financial Assets credited to the Customer's Securities Account belong to the Customer (except as otherwise may be agreed by J.P. Morgan and the Customer). (b) J.P. Morgan is authorized, in its discretion: Form Domestic Custody Agreement (NY Law) July 20 1® (i) to hold in bearer form, such Financial Assets as are customarily held in bearer form or are delivered to J.P. Morgan in bearer form; (ii) to hold Securities in or deposit Securities with any Securities Depository; (iii) to hold Securities in omnibus accounts on a fungible basis and to accept delivery of Securities of the same class and denomination as those deposited with J.P. Morgan; and (iv) to register in the name of the Customer, J.P. Morgan, a Securities Depository, or their respective nominees, such Financial Assets as are customarily held in registered form. 2.4 Settlement of Transactions Subject to Article 3 and Section 4.2 of this Agreement, J.P. Morgan will act in accordance with Instructions with respect to settlement of transactions. Settlement will be conducted in accordance with prevailing standards of the market in which the transaction occurs. Without limiting the generality of the foregoing, the Customer authorizes J.P. Morgan to deliver Securities or payment in accordance with applicable market practice in advance of receipt or settlement of consideration expected in connection with such delivery or payment, and the Customer acknowledges and agrees that such action alone will not of itself constitute negligence, fraud, or willful misconduct of J.P. Morgan, and the risk of loss arising from any such action will be borne by the Customer. In the case of the failure of the Customer's counterparty (or other appropriate party) to deliver the expected consideration as agreed, J.P. Morgan will contact the counterparty to seek settlement and will notify the Customer of such failure. If the Customer's counterparty continues to fail to deliver the expected consideration, J.P. Morgan will provide information reasonably requested by the Customer that J.P. Morgan has in its possession to allow the Customer to enforce rights that the Customer has against the Customer's counterparty, but J.P. Morgan will not be obliged to institute legal proceedings, file a proof of claim in any insolvency proceeding or take any similar action. 2.5 [Reserved.] 2.6 Actual Settlement Date Accounting J.P. Morgan will post the transaction on the date on which the cash or Financial Assets received as consideration for the transaction is actually received and settled by J.P. Morgan. 2.7 Income Collection (a) J.P. Morgan will monitor information publicly available in the applicable market about forthcoming income payments on the Financial Assets, and will promptly notify the Customer of such information. (b) Income on Financial Assets, net of any taxes withheld by J.P. Morgan or any third party, will be credited only after actual receipt and reconciliation by J.P. Morgan. (c) J.P. Morgan will use reasonable efforts to contact appropriate parties to collect unpaid interest, dividends or redemption proceeds and notify the Customer of the late payment, but J.P. Morgan will not be obliged to file any formal notice of Form Domestic Custody Agreement (NY Law) July 20 1® default, institute legal proceedings, file a proof of claim in any insolvency proceeding or take any similar action. 2.8 Miscellaneous Administrative Duties (a) Until J.P. Morgan receives Instructions to the contrary, J.P. Morgan will: (i) present all Financial Assets for which J.P. Morgan has received notice of a call for redemption or that have otherwise matured, and all income and interest coupons and other income items that call for payment upon presentation; (ii) execute in the name of the Customer such certificates as may be required to obtain payment in respect of Financial Assets; and (iii) exchange interim or temporary documents of title held in the Securities Account for definitive documents of title. (b) In the event that, as a result of holding of Financial Assets in an omnibus account, the Customer receives fractional interests in Financial Assets arising out of a Corporate Action or class action litigation, J.P. Morgan will credit the Customer with the amount of cash it would have received had the Financial Assets not been held in an omnibus account, and the Customer shall relinquish to J.P. Morgan its interest in such fractional interests. (c) If some, but not all, of an outstanding class of Financial Assets is called for redemption, J.P. Morgan may allot the amount redeemed among the respective beneficial holders of such a class of Financial Assets on a pro rata basis or in a similar manner J.R. Morgan deems fair and equitable. 2.9 Corporate Actions (a) J.P. Morgan will act in accordance with local market practice to obtain information concerning Corporate Actions that is publicly available in the local market. J.P. Morgan also will review information obtained from sources to which it subscribes for information concerning such Corporate Actions. J.P. Morgan will promptly provide that information (or summaries that reflect the material points concerning the applicable Corporate Action) to the Customer or its Authorized Person. (b) J.P. Morgan will act in accordance with the Customer's Instructions in relation to such Corporate Actions. If the Customer fails to provide J.P. Morgan with timely Instructions with respect to any Corporate Action, neither J.P. Morgan nor its nominees will take any action in relation to that Corporate Action, except as otherwise agreed in writing by J.P. Morgan and the Customer or as may be set forth by J.P. Morgan as a default action in the notification it provides under Section 2.9(a) with respect to that Corporate Action. 2.10 Class Action Litigation Any notices received by J.P. Morgan's corporate actions department about settled securities class action litigation that requires action by affected owners of the underlying Financial Assets will be promptly notified to the Customer if J.P. Morgan, using reasonable care and diligence in the circumstances, identifies that the Customer was a shareholder and held the relevant Financial Assets in custody with J.P. Morgan at the relevant time. J.P. Morgan will not make filings in the name of the Customer in respect to such notifications except as otherwise agreed in writing between the Form Domestic Custody Agreement (NY Law) July 20 1® Customer and J.P. Morgan. The services set forth in this Section 2.10E are available only in certain markets, details of which are available from J.P. Morgan on request. 2.11 Proxies (a) J.P. Morgan will monitor information distributed to holders of Financial Assets about upcoming shareholder meetings, promptly notify the Customer of such information and, subject to Section 2.11(c), act in accordance with the Customer's Instructions in relation to such meetings (the "Proxy Voting Service "). (b) The Proxy Voting Service is available only in certain markets, details of which are available from J.P. Morgan on request. Provision of the Proxy Voting Service is conditional upon receipt by J.P. Morgan of a duly completed enrolment form as well as additional documentation that may be required for certain markets. (c) The Proxy Voting Service does not include physical attendance at shareholder meetings. Requests for physical attendance at shareholder meetings can be made but they will be evaluated and agreed to by J.P. Morgan on a case by case basis. (d) The Customer acknowledges that the provision of the Proxy Voting Service may be precluded or restricted under a variety of circumstances. These circumstances include, but are not limited to: (i) the Financial Assets being on loan or out for registration; (ii) the pendency of conversion or another corporate action; (iii) the Financial Assets being held in a margin or collateral account at J.P. Morgan or another bank or broker, or otherwise in a manner which affects voting; (iv) local market regulations or practices, or restrictions by the issuer; and (v) J.P. Morgan being required to vote all shares held for a particular issue for all of J.P. Morgan's customers on a net basis (i.e., a net yes or no vote based on voting instructions received from all its customers). Where this is the case, J.P. Morgan will notify the Customer. 2.12 Statements of Account (a) J.P. Morgan will provide the Customer with a statement of account for each Account, identifying cash and Financial Assets held in the Account and any transfers to and from the Account. Statements of account may be delivered electronically or on -line over the Internet and are deemed delivered when sent electronically or posted on the Internet. The Customer will review its statement of account and give J.P. Morgan written notice of (i) any suspected error or omission or (ii) non - receipt of a statement of account within a reasonable time after the statement of accounts is sent or made available to the Customer, as the case may be. (b) The Customer acknowledges that information available to it electronically with respect to transactions posted after the close of the prior business day may not be accurate due to mis- postings, delays in updating Account records, and other causes. J.P. Morgan will not be liable for any loss or damage arising out of any such information accessed electronically that is subsequently updated or corrected by 10 Form Domestic Custody Agreement (NY Law) July 20 1® the close of business on the first business day after the original transaction was posted. 2.13 Access to J.P. Morgan's Records (a) J.P. Morgan will allow the Customer's auditors and independent public accountants such reasonable access to the records of J.P. Morgan relating to the Accounts as is required in connection with their examination of books and records pertaining to the customers affairs. (b) J.P. Morgan will, upon reasonable written notice, allow the customer reasonable access during normal working hours to the records of J.P. Morgan relating to the Accounts. J.P. Morgan may impose reasonable restrictions on the number of individuals allowed access, the frequency and length of such access, and the scope of the records made available. The Customer shall reimburse J.P. Morgan for the reasonable cost of copying, collating and researching archived information. 2.14 [Reserved.] 2.15 Notification If the Customer has agreed to access information concerning the Accounts through J.P. Morgan's website, J.P. Morgan may make any notifications required under this Agreement by posting it on the website. 3. Instructions 3.1 Acting on Instructions; Method of Instruction and Unclear Instructions (a) The Customer authorizes J.P. Morgan to accept, rely upon and/or act upon any Instructions received by it without inquiry. To the extent permitted under Applicable Law, the Customer will reimburse the J.P. Morgan Indemnitees for expenses incurred in defending against third party claims asserted against the J.P. Morgan Indemnitees as a result of any action or omission taken in accordance with any Instruction. (b) To the extent possible, instructions to J.P. Morgan shall be sent via electronic instruction or trade information system acceptable to J.P. Morgan or via facsimile transmission. Where reasonably practicable, the customer will use automated and electronic methods of sending Instructions. (c) J.P. Morgan shall promptly notify an Authorized Person if J.P. Morgan determines that an Instruction does not contain all information reasonably necessary for J.P. Morgan to carry out the Instruction. J.P. Morgan may decline to act upon an Instruction if it does not receive clarification or confirmation satisfactory to it. J.P. Morgan will not be liable for any loss arising from any reasonable delay in carrying out any such Instruction while it seeks information, clarification or confirmation or in declining to act upon any Instruction for which it does not receive clarification satisfactory to it. Form Domestic Custody Agreement (NY Law) July 20 1® 3.2 Verification and Security (Procedures (a) J.P. Morgan and the Customer shall comply with any applicable Security Procedures with respect to the delivery or authentication of Instructions and shall ensure that any codes, passwords or similar devices are reasonably safeguarded. (b) Either party may record any of their telephone communications. 3.3 Instructions Contrary to Law /Market Practice J.P. Morgan need not act upon Instructions which it reasonably believes to be contrary to law, regulation or market practice, and J.P. Morgan shall be under no duty to investigate whether any Instructions comply with Applicable Law or market practice. In the event J.P. Morgan does not act upon such Instructions, J.P. Morgan will notify the Customer where reasonably practicable. 3.4 Cut -Off Times J.P. Morgan has established cut -off times for receipt of Instructions, which will be made available to the Customer. If J.P. Morgan receives an Instruction after its established cut -off time, J.P. Morgan will attempt to act upon the Instruction on the day requested if J.P. Morgan deems it practicable to do so or otherwise as soon as practicable after that day. 3.5 Electronic Access Access by the Customer to certain applications or products of J.P. Morgan via J.P. Morgan's web site or otherwise shall be governed by this Agreement and the terms and conditions set forth in Annex A. 4. Fees, Expenses and Other Amounts Owing to J.P. Morgan 4.1 Fees and Expenses The Customer will pay J.P. Morgan for its services under this Agreement such fees as may be agreed upon in writing from time to time, together with J.P. Morgan's reasonable out -of- pocket or incidental expenses, including, but not limited to, legal fees and tax or related fees incidental to processing charged directly or indirectly by governmental authorities, issuers, or their agents. Invoices will be payable within thirty (30) days of the date of the invoice. If the Customer disputes an invoice it shall nevertheless pay on or before the date that payment is due such portion of the invoice that is not subject to a bona fide dispute. J.P. Morgan may deduct amounts invoiced from the Cash Account except to the extent that the Customer has objected to the invoice within thirty (30) days of the date of the invoice (or such other period as the parties may agree in writing). Without prejudice to J.P. Morgan's other rights, J.P. Morgan reserves the right to charge interest on overdue amounts from the due date until actual payment at such rate as J.P. Morgan customarily charges for similar overdue amounts. 4.2 Overdrafts If a debit to the Cash Account results in a debit balance, then J.P. Morgan may, in its discretion, (i) advance an amount equal to the overdraft, (ii) refuse to settle in whole Form Domestic Custody Agreement (NY Law) July 20 1® or in part the transaction causing such debit balance, or (iii) if any such transaction is posted to the Securities Account, reverse any such posting. If J.P. Morgan elects to make such an advance, the advance will be deemed a loan to the Customer, payable on demand, bearing interest at the applicable rate charged by J.P. Morgan from time to time, for such overdrafts, from the date of such advance to the date of payment. (including after the date any judgment may be entered against the Customer with respect to any overdraft) and otherwise on the terms on which J.P. Morgan makes similar overdrafts available from time to time. No prior action or course of dealing on J.R. Morgan's part with respect to the settlement of transactions on the Customer's behalf will be asserted by the Customer against J.P. Morgan for J.P. Morgan's refusal to make advances to the Cash Account or to settle any transaction for which the Customer does not have sufficient available funds in the Account. The Customer shall be deemed to be in default with respect to any such advance upon the occurrence of any event of the type specified in section 365(e)(1) of the U.S. Bankruptcy Code, as amended from time to time. 4.3 J.P. Morgan's Right Over Securities; Set -off (a) Without prejudice to J.P. Morgan's rights under Applicable Law, to the extent J.P. Morgan or an Affiliate has advanced funds on the Customer's behalf in connection with the settlement of purchases or sales of Financial Assets for the Securities Account (such advance, "Credit Liability "), J.P. Morgan and its Affiliates shall have, and the Customer grants to J.P. Morgan a security interest in and a lien on the Financial Assets which are the subject of such purchase or sale, until J.P. Morgan or the Affiliate has been repaid the amount of such Credit Liability by the Customer and J.P. Morgan's security interest in such Financial Assets shall be released upon the Customer's repayment of such Credit Liability to J.P. Morgan or the Affiliate. J.P. Morgan shall be entitled without notice to the Customer, to withhold delivery of such Financial Assets, sell or otherwise realize any of such Financial Assets and to apply the proceeds and any other monies credited to the Cash Account in satisfaction of such Credit Liability. (b) Without prejudice to J.P. Morgan's rights under Applicable Law, J.P. Morgan may set off against any Credit Liability of the Customer to J.P. Morgan or any of its Affiliates any amount in any currency standing to the credit of any of the Customer's accounts (whether deposit or otherwise) with any J.P. Morgan branch or office or with any Affiliate of J.R. Morgan. For this purpose, J.P. Morgan shall be entitled to accelerate the maturity of any fixed term deposits. 5. Securities Depositories 5.1 Use of Securities depositories (a) J.P. Morgan may deposit Securities with, and hold Securities in any Securities Depository on such terms as such Securities Depository customarily operates and the Customer will provide J.P. Morgan with such documentation or acknowledgements that J.P. Morgan may require to hold the Financial Assets in such Securities Depository. (b) J.P. Morgan is not responsible for the selection or monitoring of any Securities Depository and will not be liable for any act or omission by (or the insolvency of) 13 Form Domestic Custody Agreement (NY Law) July 20 1® any Securities Depository. In the event the Customer incurs a loss due to the negligence, willful misconduct, or insolvency of a Securities Depository, J.P. Morgan will make reasonable efforts, in its discretion, to seek recovery from the Securities Depository, but J.P. Morgan will not be obligated to institute legal proceedings, file proof of claim in any insolvency proceeding, or take any similar action. 5. Additional Provisions 6.1 Representations of the Customer and J.P. Morgan (a) The Customer represents, warrants and covenants that (i) it has full authority and power, and has obtained all necessary authorizations and consents, to deposit and control the Financial Assets and cash in the Accounts, to use J.P. Morgan as its custodian in accordance with the terms of this Agreement, to borrow money (either short term or intraday borrowings in order to settle transactions prior to receipt of covering funds), and grant a lien over Financial Assets as contemplated by Section 4.3; (ii) assuming execution and delivery of this Agreement by J.P. Morgan, this Agreement is the Customer's legal, valid and binding obligation, enforceable against the Customer in accordance with its terms and it has full power and authority to enter into and has taken all necessary corporate action to authorize the execution of this Agreement; (iii) it has not relied on any oral or written representation made by J.P. Morgan or any person on its behalf, and acknowledges that this Agreement sets out to the fullest extent the duties of J.P. Morgan; (iv) it is a resident of the United States and shall notify J.P. Morgan of any changes in residency; and (v) the Financial Assets and cash deposited in the Accounts are not subject to any encumbrance or security interest whatsoever and the Customer undertakes that, so long as Liabilities are outstanding, it will not create or permit to subsist any encumbrance or security interest over such Financial Assets or cash. J.P. Morgan may rely upon the certification of such other facts as may be required to administer J.P. Morgan's obligations under this Agreement and the Customer shall indemnify J.P. Morgan against all losses, liability, claims or demands arising directly or indirectly from any such certifications. (b) J.P. Morgan represents and warrants that (i) assuming execution and delivery of this Agreement by the Customer, this Agreement is J.P. Morgan's legal, valid and binding obligation, enforceable against J.P. Morgan in accordance with its terms and (ii) it has full power and authority to enter into and has taken all necessary corporate action to authorize the execution of this Agreement. 5.2 The Customer is Liable to J.P. Morgan Even if it is Acting for Another Person If the Customer is acting as an agent or for another person as envisaged in Section 2.1(a) in respect of any transaction, cash or Financial Asset, J.P. Morgan nevertheless will treat the Customer as its principal for all purposes under this Agreement. In this regard, the Customer will be liable to J.P. Morgan as a principal in respect of any transactions relating to the Account. The foregoing will not affect any rights J.P. Morgan might have against the Customers principal or the other person envisaged by Section 2.1(a). 14 Form Domestic Custody Agreement (NY Law) July 20 1® 7. When J.P. Morgan is Liable to the Customer 7.1 Standard of Care; Liability (a) J.P. Morgan will use reasonable care in performing its obligations under this Agreement. J.P. Morgan will not be in violation of this Agreement with respect to any matter as to which it has satisfied its obligation of reasonable care. (b) J.P. Morgan will be liable for the Customer's direct damages to the extent they result from J.P. Morgan's fraud, negligence or willful misconduct in performing its duties as set out in this Agreement. Nevertheless, under no circumstances will J.P. Morgan be liable for any indirect, incidental, consequential or special damages (including, without limitation, lost profits) of any form incurred by any person or entity, whether or not foreseeable and regardless of the type of action in which such a claim may be brought, with respect to the Accounts, J.P. Morgan's performance under this Agreement, or J.P. Morgan's role as custodian. (c) To the extent permitted under Applicable Law, the Customer shall reimburse the J.P. Morgan Indemnitees for expenses incurred by any of the J.P. Morgan Indemnitees in defending against third party claims against J.P. Morgan with respect to J.P. Morgan's performance under this Agreement where the J.P. Morgan Indemnitees were not negligent and did not engage in fraud or willful misconduct. (d) Without limiting Subsections 7.1(a), (b) or (c), the Customer agrees that J.P. Morgan provides no service in relation to, and therefore has no duty or responsibility to: (i) question Instructions or make any suggestions to the Customer or an Authorized Person regarding such Instructions; (ii) supervise or make recommendations with respect to investments or the retention of Financial Assets; (iii) advise the Customer or an Authorized Person regarding any default in the payment of principal or income of any Security other than as provided in Section 2.7(b) of this Agreement; and (iv) evaluate or report to the Customer or an Authorized Person regarding the financial condition of any broker, agent or other party to which J.P. Morgan is instructed to deliver Financial Assets or cash. 7.2 Force Majeure J.R. Morgan will maintain and update from time to time business continuation and disaster recovery procedures with respect to its custody business that it determines from time to time meet reasonable commercial standards. J.P. Morgan will have no Liability, however, for any damage, loss, expense or liability of any nature that the Customer may suffer or incur, caused by an act of God, fire, flood, civil or labor disturbance, war, terrorism, act of any governmental authority or other act or threat of any authority (de jure or de facto), legal constraint, fraud or forgery (other than on the part of J.P. Morgan or its employees), malfunction of equipment or software (except where such malfunction is primarily and directly attributable to J.P. Morgan's negligence in maintaining the equipment or software), failure of or the effect of rules or operations of any external funds transfer system, inability to obtain or interruption 15 Form Domestic Custody Agreement (NY Law) July 20 1® of external communications facilities, or any other cause beyond the reasonable control of J.P. Morgan (including, without limitation, the non- availability of appropriate foreign exchange). 7.3 J.P. Morgan May Consult With Counsel J.P. Morgan will be entitled to rely on, and may act upon the advice of professional advisors in relation to matters of law, regulation or market practice (which may be the professional advisors of the Customer), and will not be liable to the Customer under this Agreement for any action taken or omitted pursuant to such advice. 7.4 J.P. Morgan Provides Diverse Financial Services and May Generate Profits as a Result The Customer hereby authorizes J.P. Morgan to act under this Agreement notwithstanding that: (a) J.P. Morgan or any of its divisions, branches or Affiliates may have a material interest in transactions entered into by the Customer with respect to the Account or that circumstances are such that J.P. Morgan may have a potential conflict of duty or interest, including the fact that J.P. Morgan or its Affiliates may act as a market maker in the Financial Assets to which Instructions relate, provide brokerage services to other customers, act as financial adviser to the issuer of such Financial Assets, act in the same transaction as agent for more than one customer, have a material interest in the issue of the Financial Assets; or earn profits from any of the activities listed herein and (b) J.P. Morgan or any of its divisions, branches or Affiliates may be in possession of information tending to show that the Instructions received may not be in the best interests of the Customer. J.P. Morgan is not under any duty to disclose any such information. 7.5 Assets Held Outside J.P. Morgan's Control J.P. Morgan will not be obliged to (a) hold Financial Assets or cash with any person not agreed to by J.P. Morgan or (b) register or record Financial Assets in the name of any person not agreed to by J.P. Morgan. Furthermore, J.P. Morgan will not be obliged to register or record on J.P. Morgan's records Financial Assets held outside J.P. Morgan's control. 7.6 Ancillary Services J.P. Morgan may use third party delivery services and providers of information regarding matters such as pricing, proxy voting, corporate actions and class action Litigation and use local agents to provide extraordinary services such as attendance at annual meetings of issuers of Securities. Although J.P. Morgan will use reasonable care in the selection and retention of such third party providers and local agents, it will not be responsible for any errors or omissions made by them in providing the relevant information or services. 16 Form Domestic Custody Agreement (NY Law) July 20 1® 8. Taxation 8.1 Tax Obligations (a) The Customer will pay or reimburse J.P. Morgan, and confirms that J.P. Morgan is authorized to deduct from any cash received or credited to the Cash Account any taxes or levies required by any revenue or governmental authority for whatever reason in respect of the Customers Accounts. (b) The Customer will provide to J.P. Morgan such certifications, declarations, documentation, and information as it may require in connection with taxation, and warrants that, when given, this information is true and correct in every respect, not misleading in any way, and contains all material information. The Customer undertakes to notify J.P. Morgan immediately if any information requires updating or correcting. J.P. Morgan provides no service of controlling or monitoring, and therefore has no duty in respect of, or liability for any taxes, penalties, interest or additions to tax, payable or paid that result from: (i) the inaccurate completion of documents by the Customer or any third party; (ii) the provision to J.P. Morgan or a third party of inaccurate or misleading information by the Customer or any third party; (iii) the withholding of material information by the Customer or any third party; or (iv) any delay by any revenue authority or any other cause beyond J.P. Morgan's control. (c) If J.P. Morgan does not receive appropriate certifications, documentation and information then, as and when appropriate and required, additional tax shall be deducted from all income received in respect of the Financial Assets issued (including, but not limited to, United States non - resident alien tax and/or backup withholding tax). (d) The Customer will be responsible in all events for the timely payment of all taxes relating to the Financial Assets in the Securities Account; provided, however, that J.P. Morgan will be responsible for any penalty or additions to tax due solely as a result of J.P. Morgan's negligent acts or omissions with respect to paying or withholding tax or reporting interest, dividend or other income paid or credited to the Cash Account. 9. Termination 9.1 Term and Termination (a) The initial term of this Agreement shall be for a period of three years following the date on which J.P. Morgan commenced providing services under the Agreement. Following the initial term, the Customer may terminate this Agreement on sixty (bo) days' written notice to J.P. Morgan and J.P. Morgan may terminate this Agreement on one hundred and eighty (180) days' written notice to the Customer. (b) Notwithstanding Section 9.1(a): (i) Either party may terminate this Agreement immediately on written notice to the other party in the event that a material breach of this Agreement by the 17 Form Domestic Custody Agreement (NY Law) July 20 1® other party has not been cured within thirty (30) days of that party being given written notice of the material breach; (ii) Either party may terminate this Agreement immediately on written notice to the other party upon the other party being declared bankrupt, entering into a composition with creditors, obtaining a suspension of payment, being put under court controlled management or being the subject of a similar measure; (iii) J.P. Morgan may terminate this Agreement on sixty (60) days' written notice to the Customer in the event that J.P. Morgan reasonably determines that the Customer has ceased to satisfy J.P. Morgan's customary credit requirements; and (iv) [Reserved.] 9.2 Exit Procedure The Customer will provide J.P. Morgan full details of the persons to whom J.P. Morgan must deliver Financial Assets and cash within a reasonable period before the effective time of termination of this Agreement. If the Customer fails to provide such details in a timely manner, J.P. Morgan shall be entitled to continue to be paid fees under this Agreement until such time as it is able to deliver the Financial Assets and cash to a successor custodian, but J.P. Morgan may take such steps as it reasonably determines to be necessary to protect itself following the effective time of termination, including ceasing to provide transaction settlement services in the event that J.P. Morgan is unwilling to assume any related credit risk. J.P. Morgan will in any event be entitled to deduct any amounts owing to it prior to delivery of the Financial Assets and cash (and, accordingly, J.P. Morgan will be entitled to sell Financial Assets and apply the sale proceeds in satisfaction of amounts owing to it). The Customer will reimburse J.P. Morgan promptly for all out -of- pocket expenses it incurs in delivering Financial Assets upon termination. Termination will not affect any of the liabilities either party owes to the other arising under this Agreement prior to such termination. 10. Miscellaneous 10.1 Notifications Notices pursuant to Section 9 of this Agreement shall be sent or served by registered mail, overnight delivery services, such as Federal Express (Fed Ex) or United Parcel Service (UPS), etc., courier services or hand delivery to the address of the respective parties as set out on the first page of this Agreement, unless notice of a new address is given to the other party in writing. 10.2 Successors and Assigns This Agreement will be binding on each of the parties' successors and assigns, but the parties agree that neither party can assign any of its rights or obligations under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed; except J.P. Morgan may assign this Agreement without the Customer's consent to (a) any Affiliate or subsidiary of J.P. Morgan or (b) in connection with a merger, reorganization, stock sale or sale of all or substantially all of J.P. Morgan's custody business. is Form Domestic Custody Agreement (NY Law) July 20 1® 10.3 Entire Agreement This Agreement, including the Schedules, Exhibits and Riders (and any separate agreement which J.P. Morgan and the Customer may enter into with respect to any Cash Account), sets out the entire Agreement between the parties in connection with the subject matter hereof, and this Agreement supersedes any other agreement, statement or representation relating to custody, whether oral or written. Amendments must be in writing and, except where this Agreement provides for amendments by notice from J.P. Morgan, signed by both parties. 10.4 Insurance The Customer acknowledges that J.P. Morgan will not be required to maintain any insurance coverage specifically for the benefit of the Customer. J.P. Morgan will, however, provide summary information regarding its own general insurance coverage to the Customer upon written request. 10.5 Security Holding Disclosure With respect to Securities and Exchange Commission Rule 14b -2 under The U.S. Shareholder Communications Act regarding disclosure of beneficial owners to issuers of Securities, J.P. Morgan is instructed not to disclose the name, address or Security positions of the Customer in response to shareholder communications requests regarding the Account. i1111•'=1131- 1:x_41:NIf] W -Ing 1=1587Ra Section 326 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2(1(11 ( "USA PATRIOT Act ") requires J.P. Morgan to implement reasonable procedures to verify the identity of any person that opens a new Account with it. Accordingly, the Customer acknowledges that Section 326 of the USA PATRIOT Act and J.P. Morgan's identity verification procedures require J.P. Morgan to obtain information which may be used to confirm the Customer's identity, including without limitation the Customer's name, address and organizational documents ( "identifying information "). The Customer may also be asked to provide information about its financial status, such as its current audited and unaudited financial statements. The Customer agrees to provide J.P. Morgan with and consents to J.P. Morgan obtaining from third parties any such identifying and financial information required as a condition of opening an account with or using any service provided by J.P. Morgan. 10.7 Governing Law and Jurisdiction This Agreement will be construed, regulated and administered under the laws of the United States or State of New York, as applicable, without regard to New York's principles regarding conflict of laws, except that the foregoing shall not reduce any statutory right to choose New York law or forum. The United States District Court for the Southern District of Texas will have the sole and exclusive jurisdiction over any Lawsuit or other judicial proceeding relating to or arising from this Agreement. If that court lacks federal subject matter jurisdiction, the District Court of the State of Texas, Located in the county in which the Customer maintains its principal place of business, will have sole and exclusive jurisdiction. Either of these courts will have the proper 14 Form Domestic Custody Agreement (NY Law) July 20 1® venue for any such lawsuit or judicial proceeding, and the parties waive any objection to venue or their convenience as a forum. The parties agree to submit to the jurisdiction of any of the courts specified and to accept service of process to vest personal jurisdiction over them in any of these courts. The parties further hereby knowingly, voluntarily and intentionally waive, to the fullest extent permitted by Applicable Law, any right to a trial by jury with respect to any such lawsuit or judicial proceeding arising or relating to this Agreement or the transactions contemplated hereby. To the extent that in any jurisdiction the Customer may now or hereafter be entitled to claim, for itself or its assets, immunity from suit, execution, attachment (before or after judgment) or other legal process, the Customer acknowledges that such immunity will not apply with respect to claims arising out of the breach of this Agreement. 10.8 Severability; Waiver; and Survival (a) If one or more provisions of this Agreement are held invalid, illegal or unenforceable in any respect on the basis of any particular circumstances or in any jurisdiction, the validity, legality and enforceability of such provision or provisions under other circumstances or in other jurisdictions and of the remaining provisions will not in any way be affected or impaired. (b) Except as otherwise provided herein, no failure or delay on the part of either party in exercising any power or right under this Agreement operates as a waiver, nor does any single or partial exercise of any power or right preclude any other or further exercise, or the exercise of any other power or right. No waiver by a party of any provision of this Agreement, or waiver of any breach or default, is effective unless it is in writing and signed by the party against whom the waiver is to be enforced. (c) The parties' rights, protections, and remedies under this Agreement shall survive its termination. 10.9 Confidentiality (a) Subject to Section 10.9(b), J.P. Morgan will hold all Confidential Information in confidence and will not disclose any Confidential Information except as may be required by Applicable Law, a regulator with jurisdiction over J.P. Morgan's business, or with the consent of the Customer. (b) The Customer authorizes J.P. Morgan to disclose Confidential Information to: (i) any subcontractor, agent, Securities Depository, securities exchange, broker, third party agent, proxy solicitor, issuer, or any other person that J.P. Morgan believes it is reasonably required in connection with J.P. Morgan's provision of relevant services under this Agreement; (ii) its professional advisors, auditors or public accountants; (iii) its Affiliates and branches; and (iv) any revenue authority or any governmental entity in relation to the processing of any tax relief claim. 20 Form Domestic Custody Agreement (NY Law) July 20 1® (c) Except as otherwise required by Applicable Law or as needed to enforce the terms of this Agreement, the parties shall hold the terms and conditions, including, without limitation, any commercial terms, of this Agreement in confidence. 10.10 Counterparts This Agreement may be executed in several counterparts each of which will be deemed to be an original and together will constitute one and the sa uT 10.11 No Third Party Beneficiaries A person who is not a party to this Agreement shall have no right to enforce any term of this Agreement. JPMORGAN CHASE BANK, N.A. By: Name: Title: Date: 21 By: Flame: Title: Date: Form Domestic Custody Agreement (NY Law) July 20 1® SCHEDULE1 Form of Board Resolution To: JPMorgan Chase Bank, N.A. ........................... 20... We hereby certify that the following is a true copy of the minutes of the Board of Directors of .......... (the "Company ") which was duly called and held on ........ ............................... 20....... and at which a duly qualified quorum was present throughout and entitled to vote. 1. There was produced to the meeting a form of Custody Agreement provided by JPMorgan Chase Bank, N.A. ("J.P. Morgan") for use in connection with the opening of one or more cash and securities accounts and the conduct of such other transactions between the Company and J.P. Morgan as referred to therein. The form of Custody Agreement produced had been completed by an officer of the Company, and in particular it was noted that details of the Authorized Persons (as defined therein) and details of persons authorized to give instructions on behalf of the Company had been provided to J.P. Morgan. Details of any Fund Managers and Advisers had also been provided to J.P. Morgan. The indemnities given to J.P. Morgan in the Custody Agreement were also noted. The meeting considered the form of the Custody Agreement. 2. IT WAS RESOLVED that the form of Custody Agreement (together with the Schedule and Appendices), completed in the manner and form produced at the meeting, be and is hereby approved and that............................................................. ............................... ........................** be and he/she is hereby authorized, for and on behalf of the Company, to sign and deliver the same together with such changes and amendments thereto as he/she may in his /her sole discretion think fit. ......................................... ............................... Di rector ....................................... ............................... Secretary Nape of Company in filll. 22 Form Domestic Custody Agreement (NY Law) July 2010 ANNEX A Electronic Access 1. J.P. Morgan may permit the Customer and its Authorized Persons to access certain electronic systems, applications and Data (as defined below) in connection with the Agreement (collectively, the "Products "). J.P. Morgan may, from time to time, introduce new features to the Products or otherwise modify or delete existing features of the Products in its sole discretion. J.P. Morgan shall endeavor to give the Customer reasonable notice of its termination or suspension of access to the Products, but may do so immediately if J.P. Morgan determines, in its sole discretion, that providing access to the Products would violate Applicable Law or that the security or integrity of the Products is at risk. Access to the Products shall be subject to the Security Procedures. 2. In consideration of the fees paid by the Customer to J.P. Morgan and subject to any applicable software license addendum in relation to J.P. Morgan -owned or sublicensed software provided for a particular application and Applicable Law, J.P. Morgan grants to the Customer a non- exclusive, non- transferable, limited and revocable license to use the Products and the information and data made available through the Products (the "Data ") for the Customer's internal business use only. The Customer may download the Data and print out hard copies for its reference, provided that it does not remove any copyright or other notices contained therein. The license granted herein will permit use by Customer's Authorized Person, provided that such use shall be in compliance with the Agreement, including this Annex. 3. The Customer acknowledges that there are security, corruption, transaction error and access availability risks associated with using open networks such as the internet, and the Customer hereby expressly assumes such risks. The Customer is solely responsible for obtaining, maintaining and operating all software (including antivirus software, anti- spyware software, and other internet security software) and personnel necessary for the Customer to access and use the Products. All such software must be interoperable with J.P. Morgan's software. Each of the Customer and J.P. Morgan shall be responsible for the proper functioning, maintenance and security of its own systems, services, software and other equipment. 4. In cases where J.P. Morgan's web site is unexpectedly down or otherwise unavailable, J.P. Morgan shall, absent a force majeure event, provide other appropriate means for the Customer or its Authorized Persons to instruct J.P. Morgan or obtain reports from J.P. Morgan. J.P. Morgan shall not be liable for any Liabilities arising out of Customer's use of, access to or inability to use the Products via J.P. Morgan's web site in the absence of J.P. Morgan's gross negligence or willful misconduct. 5. Use of the Products may be monitored, tracked, and recorded. In using the Products, the Customer hereby expressly consents to such monitoring, tracking, and recording. Individuals and organizations should have no expectation of privacy unless local law, regulation, or contract provides otherwise. J.P. Morgan shall own all right, title and interest in the data reflecting Customer usage of the Products or J.P. Morgan's web site (including, but not limited to, general usage data and aggregated transaction data). J.P. Morgan may use and sublicense data obtained by it regarding the Customer's use of the Products or J.P. Morgan's website, as long as J.P. Morgan does not disclose to others that the Customer was the source of such data or the details of individual transactions effected using the Products or web site. 23 Form Domestic Custody Agreement (NY Law) July 20 1® 6. The Customer shall not knowingly use the Products to transmit (i) any virus, worm, or destructive element or any programs or data that may be reasonably expected to interfere with or disrupt the Products or servers connected to the Products; (ii) material that violates the rights of another, including but not limited to the intellectual property rights of another; and (iii) "junk mail ", "spam ", "chain letters" or unsolicited mass distribution of e- mai L. 7. The Customer shall promptly and accurately designate in writing to J.P. Morgan the geographic location of its users upon written request. The Customer further represents and warrants to J.P. Morgan that the Customer shall not access the service from any jurisdiction which J.P. Morgan informs the Customer or where the Customer has actual knowledge that the service is not authorized for use due to local regulations or laws, including applicable software export rules and regulations. Prior to submitting any document which designates the persons authorized to act on the Customer's behalf, the Customer shall obtain from each individual referred to in such document all necessary consents to enable J.P. Morgan to process the data set out therein for the purposes of providing the Products. 8. The Customer will be subject to and shall comply with all applicable laws, rules and regulations concerning restricting collection, use, disclosure, processing and free movement of the Data (collectively, the "Privacy Regulations "). The Privacy Regulations may include, as applicable, the Federal "Privacy of Consumer Financial Information" Regulation (12 CFR Part 30), as amended from time to time, issued pursuant to Section 504 of the Gramm - Leach- Bliley Act of 1999 (15 U.S.C. S6801, et seq. ), the Health and Insurance Portability and Accountability Act of 1996 (42 U.S.C. 51320d), The Data Protection Act 1998 and Directive 95 /46 /EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to processing of personal data and the free movement of such data. 9. The Customer shall be responsible for the compliance of its Authorized Persons with the terms of the Agreement, including this Annex. 24 Form Domestic Custody Agreement (NY Law) July 20 1® M RH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. B.6 GN 2011 -102 Approve Resolution to Authorize Investment Officers - Resolution No. 2011 -137 Presenter: Laury Fiorello, Assistant Finance Director Summarv: This resolution will update current investment officer authorizations. General Description: This item is a periodic update to re- authorize the investment officers for the City of North Richland Hills and to redefine what specific class of investment transactions they are authorized to do. This is the result of a new definition to custodial and banking services. The following positions are recommended to be included on the list of authorized individuals who can conduct investment transactions with authorized securities dealers, banking institutions, and custodial and safekeeping service institutions: Director of Finance Larry Koonce Assistant Director of Finance Laury Fiorello Accountant II Dickie Stearns This resolution revises the council authorization approved in 2008. The changes are removing one authorized personnel position due to attrition and adding verbiage to include within the scope of transactions custodial and safekeeping services. Recommendation: To approve Resolution No. 2011 -037. NRH RESOLUTION NO. 2011-037 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF NORTH RICHLAND HILLS, TEXAS: SECTION 1. THAT the following officers of the City of North Richland Hills, Texas are hereby authorized to execute all investment transactions of the City with all securities dealers, banking institutions, and custodial and safekeeping service institutions approved by the "City" investment Committee in accordance with the City's Investment Policy. Larry 'Koonce Director of Finance Signature Laury Fiorello Asst. Director of Finance Signature Dickie Stearns Accountant II Signature PASSED AND APPROVED this the 14th day of November, 2011. CITY OF NORTH RICHLAND HILLS ATTEST: Patricia Hutson, City Secretary r,1 ;Jl,:t91►►=1 11F:1 11911 to] N k►, IF-11 ► I •l1 *0:1111 Wiii George A. Staples, City Attorney APPROVED AS TO CONTENT: Oscar Trevino, Mayor Larry Koonce, Finance Director M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. B.7 PU 2011 -039 Authorize Payment, in the amount of $55,500..00, to DFW Communications to Relocate Radio Equipment Presenter: Sean Hughes, Emergency Management Coordinator Summarv: This item is to authorize payment to DFW Communications for an amount not to exceed $55,500 for moving radio equipment from Haltom City to North Richland Hills as part of the Communications Consolidation Project. General Description: As part of the Communications Consolidation Project, the re- distribution of radio equipment is essential to keeping the cost of the consolidation down. In order to expand the Communications Center from 3 console positions to 6 console positions, equipment from Haltom City needs to be moved to North Richland Hills to expand the Communications Center capability. The needed equipment will be moved from the Haltom City Communications Center to the North Richland Hills center in a planned manner to allow both facilities to continue to operate up until the scheduled move date. Extra equipment from both cities will be installed in what is now the Watauga Communications Center, which will act as a backup site. DFW Communications is the only gold authorized Motorola Center in Tarrant County. Recommendation: Authorize payment to DFW Communications for an amount not to exceed $55,500 to move radio equipment from Haltom City. D IV �C7M WII, At W Communications Inc. _ IW1CATOWS Dispatch Consolidation Proposal Sean Hughes, City of North Richland Hills Re; Dispatch Center Consolidation 5-20 -2011 Mr Hughes, Please find below a proposal to consolidate the dispatch operations of Haltom City, Richland Hills and Watauga into the dispatch center of North Richland Hills. This quote is intended to cover only the land mobile radio operations of Police, Fire and Public Works. No 9 -1 -1 call operations are covered by this statement of work. This migration Plan assumes that the three migrating entities have NR44 talkgroups already programmed in their subscribers. No radio programming outside the Fire Alert radios is quoted, North Richland Hills will be responsible to order and install the additional 'Cl. Me to the complexity and diversity of the outdoor warning systems at each city, those systems are riot quoted. Statement of Work City of Haltom City Migration We recommend the migration of Haltom City be done in two phases. Please 1 will consist of moving the Haltom City Police and Fire to the NRH talkgoups on the City of Ft Worth t raked system. • This may be accomplished for the Police and Fire subscribers by simply having all units move to an existing NRH talkgroup already in the radios. • The Haltom City subscriber alias data base will have to be added to the NRH Gold Elite system. • The three (3) Haltom. City fire alert radios will be programmed with the NRH fire alert talkgroup and the tone plan added to the NRH tone plan. Phase U will consist of the actual trove of the Haltom City console equipment move to the North Richland Hills. • An additional Tl line to the City of Ft Worth EOC wi11 be required to add the additional consoles to the system. • To maintain c. ramunications between dispatch and the Public Works radios the conventional UHF control station will have to be moved to the NRH dispatch center and added to the consoles. • The Central Electronics Bank will be disassembled_ removed and relocated to the empty rack at the NRH facility. • Due to the added load at NRH a dedicated circuit protection system should be added to the facility. This will require electrical work at the site and is included in this quote. • The three (3) console positions will then be disassembled and relocated to the existing furniture at the NRH site. • The NRH CDM will have to be updated to accommodate the new positions. City of Forth Richland Hills Price Proposal Y �B�,� DFW Communications lrs¢. Dispatch Consolidation Yrapvsal • As well, with the expansion to six positions, it is recommended to add a server to the console system. ► We recommend two HC trun king control stations be moved to the NRH system for backup on the additional CEB. This will require adding a control station combiner to the equipment room to accommodate the new radios. Cities of Richland Hills and Watauga Since no console equipment will be moved from either of these cities, their migration plans are essentially the same. Both cities have Public Works departments operating on a separate conventional UIIF radios system which will require a control station to be relocated to NRH and added to the consoles. • This may be accomplished for the police and Fire subscribers by simpty having all units move to an existing. NRH tatkgroup already in the radios. • The alias databases of both cities will be added to the NRH consoles. • The NRH Fire Alert talky oup will be programmed into the alert radios at each cities fire stations. • The tone plans for each city will be added to the NRH tone plan. • A control station for the public works systems will be moved to the equipment room at the NRH facility and added to the consoles. Backup Radios To maintain a backup radio system for the additional CEB, four (4) 800n1ha radios will need to be moved and added to the equipment room at NRH. This will require a control station combiner to accommodate the antennas systems. Backup EDC (Watauga Dispatch) Provision the new MCC5500 consoles and control stations to provide for PD and FD communications. Watauga has four (4) dedicated radios and two (2) selectable radios on the consoles. We will program NRH Fire 1 & 2 and NRFI PI) 1 & 2 into the radios and add these talk groups to the consoles. We will also program 2 additional talk groups into the selectable radios and add those to the consoles. Tl (Test Only) Electrical Work (Parts and labor) Console Server (Parts and labor) Control Station Combiner (Parts and Labor) 1,030.00 3,544.00 6,1 14.04 8,270.04 Haltom City Migration Richland Hills migration Watauga Migration S 18,473.50 4,625.50 $ 4,625.50 City of No rib Richland 11 ill s _ Prier l'rulmal / T # DF CCJMMUFIIP°ATOK9 17iHW Communications Inc. Backup EOC: (Watauga Dispatch) Program NRH talk groups into 6 radios Create two templates Program NRH talk groups into MCC5500 consoles Total Dispatch Consolidation Proposal 330.00 400.00 420.00 47,484.50 NOTES: Any Labor or material not speci fic:ally identified in this quote will be considered above scope and subject to time and material billing at the prevailing rates. This quote does not include the migration of outdoor warning system equipment migration. No radio programming outside of the fire alert radios is quoted. Thank you again for the opportunity to quote and service your communications needs. If you should have any questions regarding this quote or any communications needs, please feel tree to contact me at the numbers below. Darwin Breland Projects Manager DF'W Communications Inc. 817 - 7304339 x3011 Dfe. 469236 -3952 Cell City of North Richland Hills Price Proposal M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. B.8 PW 2011 -020 Approve Ordinance Revising Section 54.121 of the North Richland Hills Code of Ordinances to Reflect Updated Block Numbers for 'Hawk Avenue - Ordinance No. 3172 Presenter: Jimmy Cates, Public Works Operations Manager Summarv: Council is being asked to revise sub- sections 54 -121 (b)(1)(i)(3) and 54 -121 (b)(3)(b) of Section 54.121 of the Code of Ordinances due to changes in the block numbers for Hawk Avenue. A part of Section 54.121 of the Code of Ordinances deals with school speed zones on Hawk Avenue and refers to specific blocks. General Descrir)tion: The block numbers on Hawk Avenue were recently changed by the city from 8600 — 8g00 to 6000 — 6300 to reflect the new address for the NRH Centre (6000 Hawk Avenue). With this change, the block numbers for school speed zones along this stretch of roadway need to be updated in the Code of Ordinances. Two school sites, Birdville High and Walker Creek Elementary have school speed zones on Hawk Avenue. In order to continue enforcement of the school speed zones, the block numbers for Hawk Avenue must match the block numbers per ordinance. Revising the ordinance will accomplish this. Revisions to the ordinance are noted as below: 54 -121 (b)(1)(i)(3) "Walker Creek Elementary 6000 — 6100 Blocks of Hawk Avenue" 54 -121 (b)(3)(b) "Birdville High School 6200 — 6300 Blocks of Hawk Avenue" Recommendation: Approve Ordinance No. 3172 MiD 7 - -- +1 y r . a T f JJri' � T � I t { r {� L Hawuk Ave address update 4b block range DF determination 3123/2011 pared by GIS -I.S.) 3 200 404 XO] IT1ES BLV i CD Cz i II� rn Frcfrl NRH Rey' C'ti 6000 Hawk Ave LO 0 .Future th�rous�hFare interse�ti ®r� N."N t� i Ilvd 0 9005 `rand Ave 61 01 8T , C , ZZ Parker Blvd Feet 9015 Grand l4 CARDINAL LN N RH ORDINANCE NO. 3172 AN ORDINANCE AMENDING SECTION 54.121 OF THE NORTH RICHLAND HILLS CODE OF ORDINANCES; CHANGING THE LOCATION OF SCHOOL ZONES ON HAWK AVENUE FOR WALKER ELEMENTARY AND BIRDVILLE HIGH; ESTABLISHING A PENALTY FOR VIOLATION; PROVIDING FOR PUBLICATION; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, City Staff has recommended the school zone changes herein established; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF NORTH RICHLAND HILLS, TEXAS: Section 1: THAT subsections 54.121(b)(1)i.3 and 54.121(b)(3)b. of the North Richland Hills Code of Ordinances be amended to read as follows: "Sec. 54 -121. Established. (b) Designated school zones. On that portion of those streets or highways listed below marked as a school zone, the maximum prima facie reasonable and prudent speed limit in miles per hour (mph) as posted Monday through Friday on days when school is in session shall be the speed as indicated below, provided that an appropriate sign giving notice thereof is erected. The times of operation of each school zone shall be established by the city engineer. (1) Birdville Independent School District (BISD) Elementary School Zones listed below: 20 mph. Walker Creek Elementary School Zones: 3. 6000 -6100 Blocks of Hawk Avenue (3) Birdville Independent School District (BISD) High School Zones listed below: 20 mph. b. Birdville High School: 6200 -6300 Hawk Avenue Section 2. No person shall drive a motor vehicle at a speed greater than established by this section in a school zone when such school zone is in force. Violators shall be punished by a fine not exceeding $200.00. It shall be a defense to prosecution for a violation of this section that school was not in session on the day of such offense. Section 3: The City Secretary is hereby authorized and directed to cause the publication of the descriptive caption and penalty clauses of this ordinance as an alternative method of publication provided by lava. Section 4: This ordinance shall be in full force and effect immediately upon passage. P_1'I1l1rE. 017-11►140 PASSED AND APPROVED this 14th day of November, 2011. ATTEST: Patricia Hutson, City Secretary APPROVED AS TO FORM AND LEGALITY: George A. Staples, City Attorney APPROVED AS TO CONTENT: CITY OF NORTH RICHLANID HILLS Oscar Trevino, Mayor Mike Curtis, P.E., Managing Director M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. B.9 PU 2011 -040 Authorizing the Purchase of an All-Terrain Jet Trac Drilling Machine System (Utility Boring Machine) in the Amount of $260,000.00 from EKA, Inc. Presenter: Jimmy Cates, Public Works Operations Manager Summarv: This item is a request for authorization to purchase an All-Terrain Jet Trac drilling system in the amount of $260,000, after a $15,000 trade in value for the city's existing drill boring machine. General Descrirstion: The construction division uses a directional drill boring machine for replacing 8,000 - 10,000 linear feet of water supply lines and sanitary sewer lines on an annual basis. The machine allows the division to bore and replace the lines underground without (raving to excavate street pavement or resident's yards. The use of the machine saves the city money and time by not having to open cut and excavate the replacement of the lines. Residents are also impacted less by boring than they would be if we had to dig up their yards or driveways. The existing directional drill boring machine is over ten years old and needs to be replaced. It is too small and does not have the power required to drill through the hard soils in the City. The machine breaks down frequently and needs major costly repairs. EKA, Inc. is giving the City a $15,000 trade in for the old piece of equipment. This will be applied as a credit toward the new piece of equipment which cost $275,000, making the total purchase $260,000. The City of North Richland Hills is a member of several inter -local groups and utilized existing contracts through the Local Government Purchasing Cooperative (BuyBoard). The required piece of equipment will be purchased through The Local Government Purchasing Cooperative (BuyBoard) contract 345 -10 with EKA, Inc. The Local Government Code states that purchases made through a cooperative purchasing agreement satisfy any state law that would require the City to solicit competitive bids. Sufficient funding has been budgeted for the FY 2011 -2012 for the purchase of the machine. Recommendation: To authorize the purchase of an All- Terrain Jet Trac Drilling Machine System (Utility Boring Machine) in the amount of '$264,000.00 from EKA, Inc. EKA, Int. 21 A West Park Court - Stone Mountain, GA 300 87 066,498.9316 •770.498.9316 •770,498.9318 (fax) www.EKASafw�-ctsw Customer Quote tMd' CITY OF NORTH RICHLAND HILLS I Solicitation number 10 I 111< EKAL "T m TO GOVERNMENT BALMS EXPERTS EKA Quote # e � aA4:vgjid unt.1 242 3 10119/2011 1V18/2011 .—eliveryALddre s s D DEST I WITCH EQUIP P UNS� 07m 544 9G ' I N' 58 13 -2 85 . ..... . ........ . :'Ne. a ppmd Me .. the:.p . ppo . rt.0 n i ty tp e rvi!�. yqu r gQVbrr.1M Ot bu s i ne ss : ..ri ecd 8 Tota Page 1 kr_ "T m TO F, 345 10 NET 30 DAYS DEST I WITCH EQUIP . . .. .. .... n:, .............. . . y PriGS. Each Total' . #AT3020-2 DITCH WITCH AT302 0 All Terrain J a( Trac drilling system - 1 275,000.00 275,000,00 Indudes: #270 English decal kit #650 -1166 Without cab #400 -1 043 Stan saver- #211-333 Thrust pressure gauge #2 -334 Inner rotation pressure gauge #211-335 Rotation pressure gauge 4211-336 Drilling fl pressure gauge #369-448 Power p ipe (J T3020 An Terrain) #359.717 Lead pipe(MO20 AN Terrain) #190.1141 ship kit 4190-1138 pipe box ass'y (tell) (holds 36 sticks) #300 -3676 Anchor shatt (2) *500-3693 Centering cap (2) #300 -4040 Rock bit assembly #369448 Power pipe (JT3020 All Terrain) (35) #101 -160 Umbrella Kit #190-1139 Antifreeze kit #369-283 2.84' wrench jaw #400-004 3,25'jaw (1'thick) #40D.231 Transition sub 238" (Pin to Pin) #400-1065 3.34* 86 sidek)ad (non-taper) 2.69 - 4F 6-16mm (uses 400-1 adapter) (86 or 850 beacon) #401-329 Rockmaster tool 86 4400.172 4.5 - 6116 - 75 -10 Tuff bit #400.971 5.25' Soft to rn b it #400-355 8' - 3.6 3 wing rock backreamer #300-1159 Socket swivel - $0,0001b. #022-1 FM1 3V Standard unit #271 665 English decal kit #190 -1256 Shipped with. ship kit #602-150 1,000 gal, tank assembly #190-1188 Shipped with: shipkk #100 -068 2' hose ad k it P UNS� 07m 544 9G ' I N' 58 13 -2 85 . ..... . ........ . :'Ne. a ppmd Me .. the:.p . ppo . rt.0 n i ty tp e rvi!�. yqu r gQVbrr.1M Ot bu s i ne ss : ..ri ecd 8 Tota Page 1 EKA, Inc. 21 66-A West Park Court • Sane Mourlta:n, CA 30007 B66.495.9316 • 770.498,9316 • 770,488.9318 (lax) wvw wv. E KA %-";;x Customer Quote CITY OF NORTH RICHLAND HILLS Solichazion number I 4 '5 bqr CKA F let 346-10 NET 30 DAYS GOVERNMENT DEST SALES EXPERTS KA: Q . vola, 0. bate: Quote - -44d%unkfl: 2 426 10/1912011 1111812011 4 '5 bqr FayrtetsS Tens F let 346-10 NET 30 DAYS DEST WITCH EQUIP .err,:/ Resc� n Qty Price Ea ch: T661 N 07- 'R'mS644 TIN `5 e .. ... .... . Wthe . . .... .. . ... . . . 2Y ...... : ..e.apprq�!fttp� oppo Un1 ...Yt0...$.erv-0 40Ur government b . usdiness nee T otal needs 2 EKI1, Inc. 2166 -A West Park Court • Stone Mountain, CA 30087 866. 399.9316 ■ 770.498.9316 • 770 458.9318 (fax] Uuw1N. E KA0v1ens. Git Cf i Customer Quote Narcie Address CITY OF NORTH RICHLAND HILLS Solicitation number M ME` W E 1 A _ v Q v r= F1. M M E rV T SALES EXPERTS 24 1 U. 11/1812011 l J Delivery Add re s s GOntract Number payment Tsrrns F C`i;8 tdrriss FSeatler 345 -10 NET 30 DAYS IDES WITCH EQUIP ItrrI�riion Qt y';, :. .x•� . §a i x-<t . max..: .: ..,. .... ;f -,: Trade -In 1 - 15,000.170' - 15,000.00 TEXAS BUY BOARD 345 -10 QUOTE INCLUDES DITCH WITCH 1 YEAR WARRANTY, TRAINING AND MANUALS IJNS 964�; 5:8 °1328.593;; Cagy :2Y851:: uN : appreciate;:the appartun ty to serve yotiir goverrilnenf b�s:ness needs Total S260,00c.O0 Page 3 M RH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. B.10 GN 2011 -085 Approve Fiber Agreement between the City of North Richland Hills and Charter Communications, Inc. for $3,099.00 Monthly and Construction Fee of $2,000. Presenter: Kyle Spooner, Information Services Director Summarv: Staff is recommending a 60 month agreement with Charter Communications, Inc. to provide fiber connections from the City of North Richland Hills to the cities of Richland Hills, Watauga and Haltom City for $3,099.00 monthly with a one -time construction fee of $2,000.00. Under this agreement Charter will provide the necessary connectivity to provide consolidated dispatch and detention services. General Descrir)tion: During the work session on September 26, 2011, the City Council was briefed on the specifics of how the consolidated dispatch and detention services would functionally work. In order to achieve this cooperative effort, the four different physical sites must have data connections in order to communicate. Staff tasked Charter Communications with designing these connections in such a way that the North Tarrant Express highway construction would not interfere and/or interrupt communications. Charter will provide fiber connectivity between the City of (North Richland Hills and each of the participating cities. The connection to the participating cities will be at a rate of 30 MB with a 100 MB backhaul in our city hall. This will position the cities to successfully pass data from the centralized dispatch system to the decentralized records management systems. Additionally, it will provide staff the access to necessary data regardless of its physical location. This is a two phased project with the connection to Richland Hills being completed in mid - November and the connections with Watauga and Haltom City being completed after January 1, 2012. This consolidation effort takes a tremendous step in achieving regional communication interoperability. Recommendation: Approve the 60 month agreement with Charter Communications, Inc. for fiber connectivity. � Charter Business 411N111[$A0", 0" �e�:] DATA TRANSPORT SERVICE AGREEMENT This Service Agreement ("Agreement") is executed and effective upon the latest date of the signatures set forth in the signature block below ( "Effective Date ") by and between Charter Fiberlink TX -CCO, LLC , ( "Charter Business" or "Charter) with local offices at 15100 Trinity Blvd. Ste 500, Fort Worth TX 76155 and City of North Richland Hills - Dispatch Center, ( "Customer') with offices located at 7301 NE Loop 820, North Richland Hills, TX 76180 -6949. Both parties desire to enter into this Agreement in order to set forth the general terms under which Charter is to provide Customer with Charter's services ("Service" or "Services ") to Customer site(s), the scope and description to be specified per site below and/or in a Service order(s) executed by both parties (each instance of site identification and order a "Service Order' or collectively the "Service Orders "), which shall be incorporated in this Agreement upon execution. This Agreement and each Service Order will be effective only after both parties have signed each document. 6 =I:IT1 163 :991 11=I N Under the Data Transport Service Agreement CUSTOMER INFORMATION: Account Name: City of North Richland Hills - Dispatch Center Invoicing Address: , Invoicing Special Instructions: 1. SITE - SPECIFIC INFORMATION: V New ❑ Renew ❑ Change: Order Type: New Customer Service Location (Address): 7301 NE Loop 820, North Richland Hills, TX 76180 -6949 Service Location Name ( for purposes of identification): Service Location Special Instructions: CUSTOMER INFORMATION: Account Name: City of Richland Hills — Police Dept Invoicing Address: Invoicing Special Instructions: 2. SITE- SPECIFIC INFORMATION: V New ❑ Renew ❑ Change: Order Type: New Customer Service Location (Address): 6700 Baker Blvd, Richland Hills TX 76118 Service Location Name (for purposes of idenfrfication): Service Location Special Instructions: V1 Non - Hospitality or Non -Video C'BCR v2 :006000000097th3 Customer Contact Information. To facilitate communication the following information is provided as a convenience and may be updated at any time without affecting the enforceability of the terms and conditions herein: Billing Site Contact Contact Name Bob Weakley Phone (817) 427 -6233 Fax Cell Email bweakley@nrhtx.com Address MONTHLY SERVICE FEES: Site #1 Data Services: Charter Business Bundle: No Bundle' Base Service MEF Service Types (if applicable): Speed: 100 Mbps (Down/Up) CPE: Additional Services FG -200B Site #2 Data Services: Charter Business Bundle: No Bundle' Base Service N1EF Service Types (if applicable): Speed: CPE: Additional Services FG -80C Totals Technical Contact $819.00 $180.00 $610.00 30Mbps (Down /Up) $ 90.00 $1699.00 CBCR V2 :006000000097th3 k if Customer has selected the Charter Business Special Offers, the Section 2(k) of the Standard Terms of Service (for Charter Business Bundle) shall apply.0 N E - T I M E C H A R G E S: One -Time Standard Installation Fee- FOR 2 SITES $ 500.00 per Site $1000.00 ONE -TIME CHARGES $1000.00 2. TOTAL FEES. Total Monthly Service Fees of $1599.00 are due upon receipt of the monthly invoice.Total One -Time Charges of $1000.00 are included in the first monthly invoice. 3. SERVICE PERIOD. The initial Service Period of this Service Order shall begin on the date installation is completed and shall continue for a period of 60 months. Upon expiration of the initial term, this Service Order shall automatically renew for successive one -month terms at Charter's then current Monthly Service Fees unless either party terminates this Service Order by giving thirty (30) days prior written notice to the other party before the expiration of the current term. 4. TROUBLE REPORTS. Charter shall monitor its fiber optic -based data transport Services twenty -four (24) hours a day, seven (7) days a week. Charter shall provide Customer with a toll free telephone number the Customer may call to report service problems. Charter shall provide a telephone response to such calls within one (1) hour, and, if necessary, initiate a physical response within four (4) hours of receiving Customer's call reporting the problem. 5. SERVICE CREDITS. Customer shall be entitled to one (1) hour of service credit per Site per affected fiber optic -based Service (i.e. circuit) for each hour of Service Interruption if the interruption: (a) exceeds four (4) consecutive hours, (b) is not caused by Customer, or its agents, employees, licensees, or contractors, or a Force Majeure Event, (c) is not caused by Customer - provided equipment or facilities beyond the demarcation point, (d) is not caused by scheduled maintenance, and (e) is reported to Charter within twenty -four (24) hours of the commencement of the interruption. Service Credits shall not apply to any period of time for which Charter is not granted access, if necessary, to the applicable Customer Site. A "Service Interruption" is the continuous period of time during which a respective Service is not provided substantially as warranted to one or more Customer Sites. A Service Interruption commences when Charter becomes aware of such Service Interruption of a Service and ends when the Service is operational and the Trouble Ticket is closed. A Service Credit is calculated as follows- • Service Credit = Per Hour Rate X (# of consecutive hours during Service interruption) • Per Hour Rate = Per Day Rate/twenty-four (24) • Per Day Rate = Monthly Service Charge /thirty (30) days (30 = average days in one [1] month) Any Service interruption that exceeds a consecutive period of twelve (12) hours shall be considered an outage for one (1) day_ Example: If Customer is paying a $10,000 Monthly Service Fee and a Service interruption of one (1) day (or 24 hours) occurs, the Service Credit shall be equal to $333.33 and shall be applied on the billing cycle following the date Charter makes its credit determination: Per Day Rate = $10,000/30 days = $333.33 Per Hour Rate = $333.33124 hours = $13.89 Service Credit = 1 day X $333.33 = $333.33 OR 24 hours X $13.89 = $333.33 Service credits will be based on the Customer's Monthly Service Fee for those Sites and specific Services affected by the Service Interruption. Non- recurring, equipment and usage -based charges are excluded. The sum of all Service Credits shall not exceed the Customer's total Monthly Service Fees for the month in which the Service interruption occurred. The Customer must contact Charter Business at 866.603.3199 (or successor applicable toll -free number) to request a Service Credit for a specific Service Interruption. Charter Business will exercise commercially reasonable efforts to respond to such Service Credit requests within C'BCR v2 :006000000097th3 fifteen (15) business days of receipt thereof. The approved Service Credit will be applied on the billing cycle following the date Charter makes its credit determination. Service Credits shall be Customer's sole and exclusive remedy for Charter's failure to provide Services as warranted. 6. NO UNTRUE STATEMENTS. Customer further represents and warrants to Charter that neither this Service Order, nor any other information, including without limitation, any schedules or drawings furnished to Charter contains any untrue or incorrect statement of material fact or omits or fails to state a material fact. 7. CONFIDENTIALITY. Customer hereby agrees to keep confidential and not to disclose directly or indirectly to any third party, the terms of this Service Order or any other related Service Orders, except as may be required by law. If any unauthorized disclosure is made by Customer and/or its agent or representative, Charter shall be entitled to, among other damages arising from such unauthorized disclosure, injunctive relief and a penalty payment in the amount of the total One -Time Charges associated with this Service Order, and Charter shall have the option of terminating this Service Order, other related Service Orders and/or the Service Agreement. 8. FACSIMILE. A facsimile of a duly executed Agreement and Service Order signed by both authorized parties shall be considered evidence of a valid order and Charter may rely on such facsimile copy of the Agreement and Service Order as if it were the original. NOW THEREFORE, Charter and Customer agree to the terms and conditions included within this Service Agreement, including the Commercial Terms of Service which follow, and hereby execute this Service Agreement by their duly authorized representatives. C'BCR v2 :006000000097th3 Charter Piberlink TX -CC4, LLC By: Sy: Charter Communications, Inc., its Manager Signature: Printed Name: Title: Date: Charter Business Account iExecutive: Name: Adam Kuehn Telephone: 817 -288 -3653 Fax: 817- 358 -7502 City of North Richland Hills - Dispatch Center Signature: Printed Name: Title: Date: CBCR v2 :006000000097th3 STANDARD TERMS OF SERVICE SERVICE. Charter agrees to provide the Services during Customer of such charges. Customer shall be the Service period to the Customer at the site(s) identifed assessed such additional One -Time Charges and/or in the Service Order(s). "Service Period," is the time period adjusted Monthly Service Fees, either (i) in advance starting on the date the Services are fully functional in all of implementation of the change request or (ii) material respects and available for use as described in a beginning on the Customer's next and /or subsequent Service Order or as reflected in the first invoice (the "Turn- invoice(s). up Date "), and continuing for the number of months (e) Site Visits and Repairs. If Customer's misuse, abuse specified in the Service Order(s). d'i f' 4; th S E ' t K1_+1__ k STANDARD PAYMENT TERMS. Customer agrees to pay the monthly Service fees and one -time charges as set forth in the Service Order(s) incorporated under this Service Agreement by execution thereof by the parties. "`Monthly Service Fees" is the amount specified as the monthly fee to be paid by the Customer for the Services. "One -Time Charges" include, but are not limited to, construction, Service installation charge(s), repair, replacement, or any non- recurring charges. "Service Installation Charge" is the amount specified as the fee for installation of equipment and network facilities. "Equipment" means components including, but not limited to, any gateway or edge electronic device, antenna, node, concentrator, bridge, receiver, transmitter, transceiver, router, switch, hub or communications lines /cables that makes up the network of Charter - provided Equipment, facilities and materials (the "Network ") necessary to provide the Services. (a) Monthlv Service Fees. Customer agrees to pay Monthly Service Fees in advance of the provision of the Services. Monthly Service Fees are due upon receipt of the invoice. (b) One -Time Charges. Customer agrees to pay the One -Time Charges as described on the applicable Service Order(s) and /or as otherwise set forth in this Agreement. (c) Taxes. Fees, and Government Charges. Customer agrees to pay any sales, use, property, excise or other taxes, franchise fees, and governmental charges (excluding income taxes), arising under this Agreement, including, without limitation, applicable state property taxes. A copy of the Customer's tax exemption document, if applicable, must be provided to Charter to certify tax - exempt status. Tax - exempt status shall not relieve Customer of its obligation to pay any applicable franchise fees. (d) Charges for Change Requests. Any charges associated with Service and Equipment installations, additions, modifications, substitutions, upgrades, reconfigurations, rebuilds or relocations at a site and requested by Customer subsequent to executing a Service Order for that site, are the sole financial responsibility of Customer. Charter shall notify Customer, orally or in writing, of any additional One - Time Charges and/or adjustments to Monthly Service Fees associated with or applicable to such Customer change requests prior to making any such additions or modifications. Customer's failure to object to such additional charges within three (3) days of receiving such notice shall be deemed an acceptance by U1 mo ica ion o e ervices, quspmen or r facilities supplied by Charter necessitates a visit to the Customer site for inspection, correction or repair, Charter shall charge Customer a site visit fee as well as charges for any Equipment or Network repair or replacement necessary to restore Service. (f) Invoicing Errors. Customer must provide notice to Charter of any invoice errors or disputed charges within thirty (30) days of the invoice date on which the errors and/or disputed charges appear in order for Customer to receive any credit that may be due. (g) Late Fees. If Customer fails to pay an invoice within thirty (30) days of issuance, Charter will issue a notice of late payment. Customer will be charged a late fee of not more than one and one half percent (1.5°1x) per month on any outstanding past -due balance. (h) Non - Pavment. If Services are disconnected because Customer does not pay the invoice, Charter may, in its sole discretion, require that Customer pay all past due charges, a reconnect fee, and a minimum of one month's Monthly Service Fees in advance before Charter will reconnect Services. (i) Returned Checks. Bankcard or Credit Card Charae- Backs and Collection Fees. Charter may charge a reasonable service fee for all returned checks and bankcard, credit card or other charge card charge - backs. (j) Collection Fees. Customer shall be responsible for all expenses, including reasonable attorney's fees and collection costs, incurred by Charter in collecting any unpaid amounts due under this Agreement. (k) Bundled Pricing. In the event Customer has selected a Charter Business Bundle (as must be specifically indicated by component Service in this Service Order), the following conditions shall apply: In consideration for Customer's purchase of the Charter Business Bundle and only with respect to that period of time during which Customer continues to purchase such Charter Business Bundle (for purposes of clarification, continues purchase of each bundled Service component of such Charter Business Bundle), Charter agrees to apply a discount to the Services ordered under this Service Order. Such discount has been applied to the Services included in Charter's bundled pricing offer and is reflected in the Monthly Services Fees for such Services contained in this Service Order. For purposes of clarification, in the event Charter's provision to Customer of one or more of the bundled C'BCR v2 :006000000097th3 Service components of the Charter Business Bundle, is discontinued or otherwise terminated for any reason, the pricing for the remaining Service components listed above shall revert to Charter's a la carte pricing for such Services in effect at the time of the discontinuation or termination. Termination liabilities applicable to the Services under the Service Agreement shall otherwise remain unchanged. 3. SERVICE LOCATION ACCESS and INSTALLATION. (a) Access Customer shall provide Charter with reasonable access to each Service Location listed on a Service Order as necessary for Charter to review, install, inspect, maintain or repair any Equipment or Materials necessary to provide the Services. If Customer owns and/or controls the Service Location(s), Customer grants to Charter permission to enter the sites) for the exercise of such right. If a site is not owned and /or controlled by Customer then Customer will obtain, with Charter's assistance, appropriate right of access. if Customer is not able to gain right of access for a site from owner and/or controlling party, Charter's obligations under this Agreement and the appropriate Service Order for such site are terminated, null and void. (b) Installation Review: Subseauent Interference. Charter may perform an installation review of each Service Location prior to installation of the Services at that Service Location. Customer may be required to provide Charter with accurate site and /or physical network diagrams or maps of a Service Location prior to the installation review. Charter may directly or through its agents inspect the Customer Premises before beginning installation, and shall satisfy itself that safe installation and proper operation of its Equipment and the Services are possible in the location(s) provided by Customer. If Charter, in its sole discretion, determines that safe installation and /or activation of one or more of the Services will have negative consequences to Charter's personnel or Network and /or cause technical difficulties to Charter or its customers, Charter may terminate the Service Order effective upon prior written notice to Customer or may require the Customer to correct the situation before proceeding with installation or activation of the Services. In the event during the initial or any renewal Service Period, (i) proper operation of Charters Equipment and /or unhindered provision of the Services is no longer possible as a result of interference or obstruction caused by the acts or omissions of Customer, a third party or any Force Majeure Event, or (ii) such interference /obstruction or the cause thereof will have negative consequences to Charter's personnel or Network and/or cause technical difficulties to Charter or its customers, as Charter may determine in its sole discretion, Charter may terminate the affected Service Order(s) without liability upon written notice to Customer. (c) Site Preparation. Customer shall be responsible, at its own expense, for all site preparation activities necessary for delivery and installation of the Equipment and the installation and ongoing provision of Services, including, but not limited to, the relocation of Customer's equipment, furniture and furnishings as necessary to access the Equipment and/or Services. To ensure proper installation of the Equipment and the Services, Customer may be required to provide electrical or other utility service, and/or accurate physical network diagrams and /or maps prior to installation. (d) Installation. Charter will schedule one or more installation visits with Customer. Customer's authorized representative must be present during installation. During installation, Charter shall test to confirm that the Services can be accessed from the Service Location. In the event that during the course of installation Charter determines additional work is necessary to enable Charter to deliver the Services to the Service Location, Charter will notify Customer of any new or additional One -Time Charges that may be necessary. In the event the Customer does not agree to pay such One -Time Charges by executing a revised Service Order reflecting such new charges (and superseding the underlying applicable Service Order) within five (5) business days of receiving the revised Service Order. Customer and/or Charter shall have the right to terminate the applicable Service Order. Customer shall be responsible for access paths, moving or relocating furniture, furnishings, or equipment, or other preparation activities necessary for Charter to install the Services. Customer shall connect any Equipment provided by Charter to Customers computer or network to enable access to the Services. With respect to any excavation, Charter shall be responsible for reasonable restoration efforts necessary to address any displacement resulting from such excavation. (e) Ongoing Visits. Charter will need access to the Customer Premises from time to time for inspecting, constructing, installing, operating and maintaining Charter's Network facilities, Equipment or materials and /or any related facilities. Except in emergency situations, Charter will obtain approval from the Customer (not to be unreasonably withheld or delayed) before entering the Customer Premises. At Charter's request, Customer, or a representative designated by Customer, will accompany Charter's employees or agents into any unoccupied unit for the purpose of installing, repairing, maintaining, upgrading, and /or removing the Equipment. 4. EQUIPMENT AND MATERIALS. (a) Responsibilities and Safeguards. Except as otherwise provided in this Service Agreement or any Service Order(s), neither party shall be responsible for the maintenance or repair of cable, electronics, structures, Equipment or materials owned by the other party, provided, however, that subject to the Indemnification limitations set forth in section 11 C'BCR v2 :006000000097th3 hereunder, each party shall be responsible to the other for any physical damage or harm such party causes to the other party's personal or real property through the damage- causing party's negligence or willful misconduct. Without limiting the foregoing, Customer will not be liable for loss of or damage to cable, electronics, structures or Equipment owned by Charter and located on Customer Premises which occurred as a result of the occurrence of any Force Majeure Event, natural disaster or other casualty loss over which Customer has no control. Customer shall: i Safeguard Charter - provided Equipment against others; ii Not add other equipment nor move, modify, disturb, alter, remove, nor otherwise tamper with any portion of the Equipment; iii Not hire nor permit anyone other than personnel authorized by Charter acting in their official capacity to perform any work on the Equipment; and iv Not move nor relocate Equipment to another location or use it at an address other than the Service location without the prior written consent of Charter. Any unauthorized connection or other tampering with the Services, Equipment, any system or its components shall be cause for immediate disconnection of Services, termination of this Agreement and/or legal action, and Charter shall be entitled to recover damages, including, but not limited to, the value of any Services and/or Equipment obtained in violation of this Agreement in addition to reasonable collection costs including, but not limited to, reasonable attorneys' fees. Should any antenna, or signal amplification system for use in connection with communication equipment hereafter be installed on the Premises which interferes with the Services provided by Charter hereunder, Customer acknowledges and agrees that Charter shall not be obligated to distribute a quality signal to the Premises better than the highest quality which can be furnished as a result of such interference, until such time as the interference is eliminated or corrected by Customer or a third party. (b) Customer Security Responsibilities. Customer shall be responsible for the implementation of reasonable security procedures and standards with respect to use of and access to the Service and/or Equipment. Charter may temporarily discontinue or disconnect the Services upon learning of a breach of security and will attempt to contact Customer in advance, if possible. The temporary discontinuation or disconnection of the Services shall not constitute a breach of this Agreement. (c) Ownership. Customer understands and agrees that notwithstanding any other provision contained herein to the contrary, all Equipment and materials installed or provided by Charter are and shall always remain the property of Charter, shall not become a fixture to the Premises, and must be returned to Charter at any time Services are disconnected in the condition in which they were received subject to ordinary wear and tear. Customer will not sell, lease, assign nor encumber any Equipment. Customer shall not obtain or acquire title to, interest or right (including intellectual property rights) in the Service or Equipment other than to the limited extent of use rights expressly granted under this Agreement. (d) Equipment Return, Retrieval. Repair and Replacement. Immediately upon termination of Services ( "Termination" shall mean the termination of the Service Agreement and/or Service Order(s)), at the discretion of Charter, Customer shall return, or allow Charter to retrieve, the Equipment supplied by Charter to Customer, in good condition. Failure of Customer to return, or allow Charter to retrieve, Equipment within ten (10) days after Services are terminated will result in a charge to Customer's account equal to the full retail cost of replacement of the unreturned Equipment. In addition, Customer agrees to pay for the repair or replacement of any damaged Equipment (whether or not caused by Customers negligent act, except such repairs or replacements as may be necessary due to normal and ordinary wear and tear or material /workmanship defects), together with any costs incurred by Charter in obtaining or attempting to regain possession of such Equipment, including, but not limited to, reasonable attorneys' fees. VIDEO, MUSIC AND CONTENT SERVICE. This Video, Music and Content Service section shall only apply if Video, Music and Content Services are included in a Service Order under this Agreement. Continued reception of the Video Services is subject to these Terms and Conditions. Charter may, in its sole discretion, preempt, rearrange, delete, add, discontinue, modify or otherwise change any or all of the advertised programming, packaging, and distribution of its Video Services or of any of Charter's Video Services packages. (a) Payment Terms. Increases in any and all programming, license, copyright, retransmission and/or other costs, charges, fees or amounts including, without limitation, taxes and any and all other governmental fees, charges and /or other amounts, shall not be deemed to be included in the Monthly Service Fees or limited by any provision in this Agreement, and may be passed on to Customer at any time when such costs are incurred by, assessed or required of Charter. The initial Monthly Service Fees shall remain in effect for the first 12- months of this Agreement. Thereafter, Charter may increase the Monthly Service Fees from time to time upon thirty (30) days' prior written notice C'BCR v2 :006000000097th3 to Customer. Customer hereby agrees to any such increases that do not exceed ten percent (10 %) of the Customer's total Monthly Service Fees incurred in the month immediately preceding the month in which the increase is to be effective. Increases shall not occur more frequently than once per 12 -month period. In the event such increased Monthly Service Fee would exceed the amount permitted under applicable law, the Monthly Service Fees shall be increased only to the maximum allowable under applicable law. Notwithstanding the foregoing, increases in any and all programming, license, copyright, retransmission and/or other costs, charges, fees or amounts including, without limitation, taxes and any and all other governmental fees, charges and/or other amounts, shall not be limited by any provision in this Agreement, and may be passed onto Customer at any time when such costs are passed on to Charter. (b) Music Riahts Fees. In all cases, Customer is responsible for and must secure any music rights and /or pay applicable fees required by the American Society of Composers, Authors & Publishers ( "ASCAP "), Broadcast Music, Inc. ( "BMI ") and SESAC, Inc. ( "SESAC ") or their respective successors, and any other entity, person or governmental authority from which a license is necessary or appropriate in connection with Customer's transmission, retransmission, communication, distribution, performance or other use of the Services. (c) Premium and Pav- Per -View. Customer may not exhibit any premium Services such as HBO or Showtime in any public or common viewing area. Customer may not order or request Pay - Per -View (PPV) programming for receipt, exhibition or taping in a commercial establishment. Customer may not exhibit nor assist in the exhibition of PPV programming in a commercial establishment unless explicitly authorized to do so by agreement with an authorized program provider and subject to Charter's prior written consent. If Customer fails to abide by these restrictions, in addition to all other liability and not by way of limitation, Customer accepts liability for any and all claims made against Customer or Charter of any unauthorized commercial exhibition and Customer agrees to indemnify and hold Charter harmless from any loss, cost, liability, or expense, including reasonable attorney's fees, arising from a breach of this provision. (d) HD Formatted Programmina. If Customer has selected High Definition ( °'HD ") formatted programming, Customer understands it is responsible for provision, installation and maintenance of the receiving equipment and /or facilities necessary for reception and display of such HD signal. Any failure of the Customer to fulfill the foregoing obligation shall not relieve Customer of its obligation to pay the applicable Monthly Service Fees or One -Time Charges for the HD Formatted Programming. (e) Provision of Service. Charter may, in its sole discretion, from time to time, rearrange, delete, add or otherwise change packaging and programming of Services contained in Charter's basic cable, Digital Music or other Services provided pursuant to this Agreement. Customer acknowledges that Charter has the right at any time to preempt without notice specific advertised programming and to substitute programming that Charter deems to be comparable. (f) Restrictions. Customer shall not and shall not authorize or permit any other person to (i) copy, record, dub, duplicate, alter, make or manufacture any recordings or other reproductions of the Services (or any part thereof); (ii) transmit the Services (or any part thereof) by any television or radio broadcast or by any other means or use the Services (or any part thereof) outside the Service Location. Customer acknowledges that such duplication, reproduction or transmission may subject Customer to criminal penalties and /or civil liability and damages under applicable copyright and /or trademark laws. . With respect to the music programming comprising a portion of the Services, Customer shall not, and shall not authorize or permit any other person to do any of the following unless Customer has obtained a then - current music license permitting such activity: (i) charge a cover charge or admission fee to any Service Location(s) at the time the Services (or any part thereof) are being performed or are to be performed; or (ii) permit dancing, skating or other similar forms of entertainment or physical activity in conjunction with the performance of the Services (or any part thereof ). Customer shall not, and shall not authorize or permit any other person to insert any commercial announcements into the Services or interrupt any performance of the Services for the making of any commercial announcements. If Customer fails to abide by these restrictions, Customer accepts liability for any and all claims made against Customer or Charter due to any unauthorized commercial exhibition and Customer agrees to defend, indemnify and hold Charter harmless from any damages, loss, cost, liability, or expense, including reasonable attorneys' fees, arising from a breach of these restrictions. 6. INTERNET ACCESS SERVICE. This Internet Access Service section shall only apply if Internet Access Services are included in a Service Order under this Agreement. Continued use of the Internet Service is subject to these Terms and Conditions. (a) Eauioment and Software Requirements. Customer shall maintain certain minimum Equipment and software to receive the Service. Please refer to www.charter- business.com (or the applicable successor URL) for the current specifications. (b) Internet Service Speeds. Charter shall use commercially reasonable efforts to achieve the Internet speed selected by the Customer on the C'BCR v2 :006000000097th3 Service Order. However, Customer understands and agrees that such speeds may vary. (c) Access and Use. Customer agrees to ensure that any person who has access to the Internet Services through Customer's computer(s), wireless access points, Service Location, facilities or account shall comply with the terms of this Agreement. Customer shall be responsible for setting up password /access security measures. Customer shall be responsible for all charges incurred and all conduct, whether authorized or unauthorized, caused by use of Customer's computers, service locations, facilities or account using the Internet Services. Customer acknowledges and understands that various factors, for which Charter is not responsible, may contribute to interference with the Internet Service signal transmitted /accessible by a wireless router. (d) Electronic Addresses. All e-mail addresses, e-mail account names, and IP addresses ( "Electronic Addresses ") provided by Charter are and shall remain the property of Charter. Customer may not alter, modify, sell, lease, assign, encumber or otherwise tamper with the Electronic Addresses. (e) No Liability for Chances of Address. Due to growth, acquisitions and changes in technology, Charter reserves the right to change addressing schemes, including e-mail and IP addresses. (f) No Liabilitv for Risks of Internet Use. The Internet is a shared network and Charter does not warrant that Service will be error free. The Service, Charter's network and the Internet are not secure, and others may access or monitor the Customer's traffic. Charter does not warrant that data or files sent or received by the Customer over the Network will not be subject to unauthorized access by others, that other users will not gain access to the Customer's data, nor that the data or files will be free from computer viruses or other harmful components. Charter has no responsibility and assumes no liability for such acts or occurrences. (g) No Liabilitv for Purchases. Through use of the Service, the Customer may access certain information, products and services of others, for which there is a charge. The Customer shall be solely liable and responsible for all fees or charges for these online services, products or information. Charter shall have no responsibility to resolve disputes with other vendors. (h) Blocking and Filterina. While the computer industry may provide blocking and filtering software that empowers Customer to monitor and restrict access to Customer's computer and its data, Charter is not the publisher of this software. Charter strongly recommends that the Customer employ a "frewall" or other security software. The Customer assumes all responsibility for providing and configuring any "firewall" or security measures for use with the Service. Except to the extent set forth in the Supplemental Charter Business Security Service Section, Charter shall not be responsible in any manner for the effectiveness of these blocking and filtering technologies. Charter does not warrant that other users will be unable to gain access to Customer's computers) and/or data even if the Customer utilizes blocking and filtering technologies. (i) Acceotable Use Policv. Customer agrees to comply with the terms of Charter's Acceptable Use Policy ( "AUP "), found at wwwv.charter- business.com (or the applicable successor URL) and that policy is incorporated by reference into this Agreement. Customer represents and warrants that Customer has read the AUP and agrees to be bound by its terms as they may from time to time be amended, revised, replaced, supplemented or otherwise changed. Customer expressly understands and agrees that the AUP may be updated or modified from time to time by Charter, with or without notice to Customer. Charter may discontinue or disconnect Services immediately for any violation of the Charter AUP with or without notice to Customer. (j} Supplemental Services. The following subsections shall only apply in the event such referenced supplemental services have been selected by and /are being delivered to Customer. The supplemental Services may be made up of software and hardware components. Charter shall ensure the supplemental services are operational and updated from time to time based on manufacturer -sent updates. Except to the limited extent described in the foregoing sentence, Charter makes no warranties of any kind (express or implied) regarding the supplemental services and hereby disclaims any and all warranties pertaining thereto (including but not limited to implied warranties of title, non- infringement, merchantability, or fitness for a particular purpose). Customer understands and acknowledges that Charter does not have title to and is not the manufacturer of any software or hardware components of the supplemental services nor is Charter the supplier of any components of such software or hardware. Customer shall return or destroy all software components provided to Customer upon the termination of the applicable Service Order, and in the case of the destruction thereof, shall, upon request, provide Charter with certification that such components have been destroyed. IN ADDITION TO BUT WITHOUT ABROGATING THE TERMS SET FORTH UNDER THESE TERMS OF SERVICE REGARDING LIMITATIONS OF LIABILITY, CHARTER SHALL IN NO EVENT BE LIABLE FOR ANY DAMAGES ARISING FROM THE PERFORMANCE OR NON- PERFORMANCE OF ANY SUPPLEMENTAL SERVICES (INCLUDING BUT NOT LIMITED TO THAT ATTRIBUTABLE TO BLOCKED CONTENT OR EMAIL OR CANCELLATION OF A DOMAIN NAME BY THIRD PARTY). REGARDLESS OF CAUSE OR FAULT, MAXIMUM LIABILITY TO CUSTOMER WITH REGARD TO PURCHASE OR USE OF THE SUPPLEMENTAL SERVICE(S), SHALL IN NO C'BCR v2 :006000000097th3 EVENT EXCEED THE AMOUNT PAID BY CUSTOMER TO CHARTER FOR THE APPLICABLE SUPPLEMENTAL SERVICE. No rights for trademarks use is granted for any Supplemental Services and associated third parties. Charter shall not be liable for any claims arising from the disclosure of personally identifiable information provided by Customer to a Third Party Provider. (i) Supplemental CB Hosting Service. This Hosting Service subsection shall only apply if one of Charter's Hosting Services ("Hosting") is included as part of the Service in a Service Order under this Agreement. Charter will provide to Customer Hosting Service in accordance with the Specifications associated with the plan Customer has selected on the Service Order. I. Third Party Software via Hosting Service. The Hosting Service will permit access to a variety of resources available from selected third parties, including developer tools, communication forums and product information (collectively, "Hosting Software "). The Hosting Software, including any updates, enhancements, new features, and/or the addition of any new Web properties, may be subject to, and Customer hereby agrees to comply with applicable product use rights /end user license agreements between such third parties and Customer. Without abrogating or limiting anything set forth in section 6(j), Charter (not the manufacturer) shall provide technical support for the CB Hosting Service, but version changes of any such software compatibility and /or suitability with any other Customer provided software shall be Customer's responsibility. Furthermore, Customer hereby consents to the disclosure to the provider of Third Party Software, Customer's name and any other necessary information for the limited purpose of licensing rights. Customer shall not use the CB Hosting Service for or in connection with any high risk use or activity such as aircraft or other modes of human mass transportation, nuclear, or chemical facilities. or Class III medical devices under the Federal Food, Drug, and Cosmetic Act. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE HOSTING SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED IN WRITING BY CHARTER. WITHOUT LIMITING OR ABROGATING THE TERMS SET FORTH IN SECTION 7, CHARTER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE HOSTING SOFTWARE, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON - INFRINGEMENT. Domain Names. Customer shall be solely responsible for registering for or renewing a desired domain name, which may be done via the CB Hosting Service if such domain name registration option has been included or from a third party outside of this Agreement. Customer may identify the domain name registrar by accessing the "Whois Look Up' service at url:whis.domaintools.com, subsequent url or similar service of their choice. Charter disclaims such responsibility, and Customer acknowledges that Charter does not guarantee that Customer will be able to register or renew a desired domain name, even if an inquiry indicates that domain name is available at the time of such inquiry. Specification Limitations. Individual websites may not at any time exceed the Hosting Specifications identified on the applicable Service Order. If a Customer's Hosting account is found exceed the Specifications set forth in the applicable Service Order, or is adversely impacting Charter's network or server(s), Charter may (i) contact the Customer to resolve the issues: or if Customer has exceeded the then - applicable Specifications in any given month, (ii) upgrade the Customer's account on the next available billing cycle to the next service level tier or (iii) suspend of terminate the Hosting Service. Notvithstanding anything to the contrary, in the event Customer's use of the Hosting Service is causing an adverse impact on Charter's network or servers, Charter may (i) suspend or terminate the Hosting Service or (ii) terminate the Agreement in its entirety. 6. Limitation of Charter - Provided Services. Customer understands and agrees that certain services are not provided by Charter as part of the Hosting Service (e.g., Charter does not provide nor offer web page creation, development, design or content services). 7. No Additional Warranties. Charter makes no warranties of any kind (express or implied) regarding Hosting and hereby disclaims any and all warranties pertaining thereto (including but not limited to implied warranties of title, non - infringement, merchantability, or fitness for a particular purpose). IN ADDITION TO, BUT WITHOUT ABROGATING AND LIMITING THE TERMS SET FORTH IN THE LIMITATION OF LIABILITY SECTION OF THIS AGREEMENT, CHARTER SHALL IN NO EVENT BE LIABLE FOR ANY DAMAGES ARISING FROM THE PERFORMANCE OR NON- PERFORMANCE OF CHARTER HOSTING REGARDLESS OF CAUSE OR FAULT. CHARTER'S MAXIMUM LIABILITY TO CUSTOMER WITH REGARD TO CUSTOMER'S PURCHASE OR USE OF THE HOSTING SERVICE SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY CUSTOMER TO CHARTER FOR HOSTING SERVICE. 8. Hosting Fees. The applicable Service Order sets forth the Monthly Service Fees for the Hosting Service. Customer is responsible for payment whether or not the hosting platform is used. Customer shall not be C'BCR v2 :006000000097th3 relieved of its responsibility to continue to pay for Hosting in the event Hosting does not function properly as a result of (i) Customer's failure to install or properly use any software; or (ii) Customer's failure to utilize in any way or less than the maximum Specifications the Hosting Service. Content Liability and Use Restrictions. Customer acknowledges Charter exercises no control whatsoever over the content of the information passing through Customer's sites) and that it is Customer's sole responsibility to ensure that Customer and Customer's users use of the Hosting Service complies at all times with all applicable laws and regulations and Charter's AUP. Upon activation of Customer's account, Charter shall have the right to disclose any, or all available information collected from Customer to law enforcement authorities upon written request by such authorities. Information that may be disclosed includes, but is not limited to IP addresses, account history, and files stored on Charter servers. In addition to the foregoing, Customer expressly understands and agrees that the following activities are prohibited. In the event that Customer engages in such activities, Charter shall have the right to suspend or terminate the Hosting Services and/or this Agreement: (a) The hosting of unlicensed software that is available to the public; (b) Use of software or files that contain computer viruses or files that may harm user's computers; (c) Any attempt or actual unauthorized access by Customer or through Customer's equipment to any Charter website or the website of any Charter customer; (d) The collection or any attempt to collect personally identifiable information of any person or entity without their express written consent. Customer shall maintain records of any such written consent throughout the Term (and any Renewal Term) of this agreement and for three years thereafter; (e) Any action which is harmful or potentially harmful to the Charter server structure; (f) Running a banner exchange, free adult tgp (thumbnail gallery post) and/or free adult image galleries on your website; (g) inclusion of sites with material, links, or resources for hacking, phreaking, viruses, or any type of site that promotes or participates in willful harm to Internet sites or providers. (h) Impositions on Customer's End Users. Customer is responsible for charging and collecting from Customers end -user customers any and all applicable taxes. If Customer fails to impose and/or collect any tax from its end users or customers as required herein, then, as between Charter and Customer, Customer shall remain liable for such uncollected tax and any interest and penalty assessed thereon with respect to the uncollected tax by the applicable taxing authority. With respect to any tax that Customer has agreed to pay or impose on and/or collect from Customer's end users or customers, Customer agrees to indemnify and hold harmless Charter for any costs incurred as a result of actions taken by the applicable taxing authority to collect such tax from Charter due to Customer's failure to pay or collect and remit such tax to such authority. (ii) CB Security Service — desktop and Managed. This Charter Business Security Service subsection shall only apply if Charter's managed or desktop security service ( "CB Desktop Security" and /or "CB Managed Security ") is /are included in this Service Agreement or any related Service Order. CB Managed Security and CB Desktop Security are each made up of software and hardware components. Charter shall ensure that the selected CB Security Service(s) is/are operational and updated from time to time based on manufacturer -sent updates. Except to the limited extent described in the foregoing sentence, Charter makes no warranties of any kind (express or implied) regarding either CB Security Service and hereby disclaims any and all warranties pertaining thereto (including but not limited to implied warranties of title, non - infringement, merchantability, or fitness for a particular purpose). Customer understands and acknowledges that Charter is not the manufacturer of any software or hardware components of either Charter Business Security Service nor is Charter the supplier of any components of such software or hardware. IN ADDITION TO BUT WITHOUT ABROGATING THE TERMS SET FORTH IN SECTION 11, CHARTER SHALL IN NO EVENT BE LIABLE FOR ANY DAMAGES ARISING FROM THE PERFORMANCE OR NON- PERFORMANCE OF A CHARTER BUSINESS SECURITY SERVICE (INCLUDING BUT NOT LIMITED TO THAT ATTRIBUTABLE TO BLOCKED CONTENT OR EMAIL). REGARDLESS OF CAUSE OR FAULT, CHARTER'S MAXIMUM LIABILITY TO CUSTOMER WITH REGARD TO CUSTOMER'S PURCHASE OR USE OF A CHARTER BUSINESS SECURITY SERVICE, SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY CUSTOMER TO CHARTER FOR THE APPLICABLE CHARTER BUSINESS SECURITY SERVICE. (iii) CB Back -Up Service. This CB Back -Up service subsection shall apply only if Charter's data storage service ( "CB Back -Up ") is requested by the Customer. Customer shall be assessed applicable One -Time Charges and Monthly Service Fees which shall be based upon Customers selection of version retention quantity and storage tier (e.g., 5 gigabits). The version retention quantity selected specifies the maximum number of separate versions of a document that will C'BCR v2 :006000000097th3 be retained (running in sequential order based on the last version created). For example, if Customer has selected 7 as the version retention quantity, a Customer will be able to access the last 7 versions of a particular document. In addition to One Time Charges and Monthly Service Fees, monthly storage overage fees shall apply each month Customer exceeds the respective subscribed storage level. Additional One Time Charges and Monthly Service Fees also apply to Customer- requested media and/or professional services. CB Back -Up is made up of software components. Customer understands and acknowledges that Charter is not the manufacturer or supplier of any CB Back -Up software components. Customer shall be responsible for updating CB Back -Up from time to time based on updates provided by the software manufacturer, and any failure of Customer to perform such updates shall relieve Charter from any responsibility to ensure that CB Back -Up remains operational. Except to the limited extent described in the foregoing sentences, Charter makes no warranties of any kind (express or implied) regarding CB Back -Up and disclaims any and all warranties pertaining to CB Back -Up (including but not limited to implied warranties of title, non - infringement, merchantability, or fitness for a particular purpose). IN ADDITION TO, BUT WITHOUT ABROGATING OR LIMITING THE TERMS SET FORTH IN THE LIMITATION OF LIABILITY SECTION OF THIS AGREEMENT, CHARTER SHALL IN NO EVENT BE LIABLE FOR ANY DAMAGES ARISING FROM THE PERFORMANCE OR NON- PERFORMANCE OF CB BACK -UP REGARDLESS OF CAUSE OR FAULT. CHARTER'S MAXIMUM LIABILITY TO CUSTOMER WITH REGARD TO CUSTOMER'S PURCHASE OR USE OF CB BACK -UP SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY CUSTOMER TO CHARTER FOR CB BACK -UP SERVICE. In the event the functionality of the CB Back -Up service cannot be maintained by Charter or the manufacturer, Charter shall have the right to discontinue providing the service immediately and Charter shall credit Customer's account for any pre- paid Monthly Service Fees attributable to the service, except where such lack of functionality is caused by the Customer or any end user gaining access to the service through the Customer's facilities, equipment, or point of access. Customer shall not be relieved of its responsibility to continue to pay for CB Back -Up in the event CB Back -Up does not function properly as a result of Customer's failure to install and configure the software, activate the service or install manufacturer - provided updates. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES (1) THAT IT IS CUSTOMER'S SOLE RESPONSIBILITY TO CREATE AND RETAIN THE CB BACK -UP PASSWORD THAT IS NECESSARY FOR ACCESS TO ANY DATA STORED VIA THE CB BACK -UP SERVICE AND (2) THAT CHARTER HAS NO ACCESS TO AND DOES NOT KNOW NOR KEEP ANY RECORD OF THE PASSWORD CREATED BY CUSTOMER. FAILURE BY CUSTOMER TO RETAIN CUSTOMER'S CB BACK -UP PASSWORD SHALL RESULT IN COMPLETE LOSS OF ACCESSABILITY TO DATA STORED VIA THE CB BACK -UP SERVICE. 7. DATA NETWORKING This Data Networking Service section shall only apply if Data Networking Services (e.g. Ethernet, Optical Ethernet, Optical Transport) are included in any Service Order under this Agreement. Continued reception of the Data Networking Service is subject to these Terms and Conditions. (a) Charter will provide Data Networking Services for Customer locations connected over coaxial and /or fiber -optic cable. Connectivity is established between two or more customer end- points under a unique customer topology. Charter will install the coaxial or fiber -optic cable into each Customer site as listed in the Service Order(s). The parties hereby acknowledge that Charter will also supply an edge device at each site that will be capable of receiving the service as specified in the Service Order(s). (b) Charter will terminate fiber -optic cable on a patch panel or provide a coaxial outlet at an agreed upon Minimum Point of Penetration (MPOP) up to 50 (fifty) feet within each facility (unless otherwise specified in the Service Order). If the hand -off point of the Service at the Customer's Premises exceeds this distance, the Customer may be responsible for any additional costs that may be incurred for internal wiring. (c) The basic Data Networking Service that the Customer will receive includes connectivity at each of the Service Locations as identified in the Service Order(s). (d) The Customer will make available to Charter a building ground connection at each location that meets current electrical codes for the placement of a fiber -optic patch panel and/or coaxial outlet. It is recommended that the Customer provide a separate 20 Amp 110V AC circuit for the edge electronics, which is powered by a UPS system. Customer - supplied routing will be necessary for communication between each Service Location. (e) If Customer has selected "Monitoring" for a Service then Charter shall monitor the Services twenty -four (24) hours a day seven (7) days a week. Customer shall contact the Charter Business Network Operations Center ( °CBNOC ") at 1 -866 -603 -3199 or subsequent number to report service problems. Additional fees may apply. 8. NO THIRD -PARTY HARDWARE OR SOFTWARE SUPPORT. Customer is responsible for the installation, repair and use of Customer - supplied third -party hardware and/or software. For purposes of this Agreement the Hosting Software shall be considered third party software. C'BCR v2 :006000000097th3 Charter does not support third -party hardware or software individually to be considered a separate event of supplied by Customer. Any questions concerning third- default) and the Customer fails to correct each such party hardware or software should be directed to the noncompliance within twenty (20) days of receipt of provider of that product. Charter assumes no liability or written notice in cases involving non - payment or responsibility for the installation, maintenance, within thirty (30) days of receipt of written notice in compatibility or performance of third party software, any cases involving any other noncompliance: Customer- supplied hardware or software with the i Customer is more than thirty (30) days past due Services. If such third -party equipment or software with respect to any payment required hereunder; impairs the Services, Customer shall remain liable for payments as agreed (if any) without recourse for credit or ii Customer otherwise has failed to comply with the prorated refund for the period of impairment. Charter has terms of this Service Agreement or any other no responsibility to resolve the difficulties caused by such Service Order(s) incorporated herein by third -party equipment or software. If, at Customer's execution thereof by the parties. request, Charter should attempt to resolve difficulties caused by such third -party equipment or software, such (b) Charter's Rioht to Terminate and Termination Charae. efforts shall be performed at Charter's discretion and at In the event Customer is in default, Charter shall have then - current commercial rates and terms. the right, at its option, and in addition to any other rights of Charter expressly set forth in this Agreement 9. CUSTOMER USE. Customer agrees not to re -sell or re- and any other remedies it may have under applicable distribute access to the Services) or system capacity, or law to: any part thereof, in any manner without the express prior written consent of Charter. Customer agrees not to use or i Immediately suspend Services to the Customer permit third parties to use the Service(s), including but not until such time as the underlying noncompliance limited to the Equipment and software provided by has been corrected without affecting Customer's Charter, for any illegal purpose, or to achieve on -going obligation to pay Charter any amounts unauthorized access to any computer systems, software, due under this Agreement (e.g., the Monthly data, or other copyright or patent protected material. Service Fees), as if such suspension of Services Customer agrees not to interfere with other customers' had not taken place; use of the Equipment or Services or disrupt the Charter ii Terminate the Services; or Network, backbone, nodes or other Services. Violation of any part of this section is grounds for immediate iii After the occurrence of two (2) such events of Termination of this Service Agreement and/or all Service Customer default in any twelve (12) month period Orders in addition to any other rights or remedies Charter of time, terminate this Service Agreement and/or may have hereunder. any or all of the applicable Service Order(s). 10. PERFORMANCE. Charter will use commercially if Termination is due to noncompliance by the reasonable efforts in keeping with normal industry Customer, Customer must pay Charter a Termination standards to ensure that the Service is available to charge (a "Termination Charge "), which the parties Customer twenty -four (24) hours per day, seven (7) days recognize as liquidated damages. This Termination per week. It is possible, however, that there will be Charge shall be equal to fifty percent (50 %) of the interruptions of Service. Specifically, Customer unpaid balance of the Monthly Service Fees that understands and agrees that the Service may be would have been due throughout the remainder of the unavailable from time to time either for scheduled or applicable Service Period plus one hundred percent unscheduled maintenance. technical difficulties, or for (100 %) of (1) the outstanding balance of any and all other reasons beyond Charter's reasonable control. One -Time Charges plus (2) any and all previously Temporary service interruptions /outages for such reasons, waived One -Time Charges. as well as service interruptions /outages caused by the (c) Default by Charter. Charter shall be in default under Customer, its agents and employees, or by a Force this Service Agreement in the event that Charter fails Majeure Event, shall not constitute a failure by Charter to to comply with the terms of this Service Agreement perform its obligations under this Service Agreement, and and /or any or all of the applicable Service Orders), Customer will not hold Charter at fault for loss of Customer and Charter fails to remedy each such noncompliance revenue or lost employee productivity due to Service or occurrence within thirty (30) days of receipt of outages. written notice from Customer describing in reasonable 11. DEFAULT; SUSPENSION OF SERVICE; detail the nature, scope and extent of the default or TERMINATION. No express or implied waiver by Charter noncompliance: of any event of default shall in any way be a waiver of any (d) Customer's Riaht to Terminate and Termination further subsequent event of default. Nothing herein, Charge including, but not limited to Termination, shall relieve Customer of its obligation to pay Charter all amounts due. i Customer shall have the right, at its option and in addition to any other remedies it may have, to (a) Default by Customer. Customer shall be in default terminate any applicable Service Order(s), if the under this Service Agreement in the event that the underlying event of default and/or noncompliance Customer does one (1) or more of the following (each C'BCR v2 :006000000097th3 by Charter is limited to Services provided under the applicable Service Order(s) or this Service Agreement, if such noncompliance is not so limited, provided that Charter's diligent efforts to correct such breach are not commenced and pursued within thirty (30) days after Charter's receipt of a written notice from the Customer describing in reasonable detail the nature, scope and extent of the event of default/noncompliance. If Termination is due to noncompliance by Charter, Charter shall reimburse Customer for any pre -paid, unused Monthly Service Fees attributable to such terminated Service Order(s). In addition, if Termination is due to noncompliance by Charter within one (1) year of the applicable Turn -Up Date, Charter shall pay a Termination Charge, which the parties recognize as liquidated damages, equal to a portion of any One -Time Charge that has already been paid by the Customer to Charter relative to Service at the sites covered by the terminated Service Order. This Termination Charge Charter must pay Customer shall be equal to the product of a) the number of months (or portion thereof) remaining in the initial twelve (12) months of the initial Service Period at the time of Termination and b) a ratio in which the numerator is the total of One - Time Charges paid to date and the denominator is twelve (12). 12. LIMITATION OF LIABILITY. PLEASE READ THIS SECTION CAREFULLY, IT CONTAINS DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY. (a) Limited Warrantv. At all times during the Service Period, Charter warrants that it will use commercially reasonable efforts in keeping with industry standards to cause the Services to be available to the Customer. THE FOREGOING LIMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL EXPRESS AND IMPLIED WARRANTIES WHATSOEVER. EXCEPT AS OTHERWISE STATED IN THIS SERVICE AGREEMENT, CHARTER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SERVICE PROVISIONED HEREUNDER AND SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NON - INFRINGEMENT OF THIRD PARTY RIGHTS. WITHOUT LIMITING ANY EXPRESS PROVISIONS PROVIDED FOR ELSEWHERE IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF SERVICES HEREUNDER (INCLUDING ANY SERVICE IMPLEMENTATION DELAYS AND /OR FAILURES), UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY STRICT LIABILITY OR NEGLIGENCE, EVEN IF THE PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS APPLIES TO ALL CAUSES OF ACTIONS AND CLAIMS, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. Any warranty claim by Customer must be made within thirty (30) days after the applicable Services have been performed. Charter's sole obligation and Customer's sole remedy, with respect to any breach of the limited warranty set forth herein, shall be a prorated refund of the fees paid by Customer based on the period of time when the Services are out of compliance with this limited warranty provision. (b) Content Customer acknowledges that any content that Customer may access or transmit through any Service is provided by independent content providers, over which Charter does not exercise and disclaims any control. Charter neither previews content nor exercises editorial control; does not endorse any opinions or information accessed through any Service: and assumes no responsibility for content. Charter specifically disclaims any responsibility for the accuracy or quality of the information obtained using the Service. Such content or programs may include, without limitation, programs or content of an infringing, abusive, profane or sexually offensive nature. Customer and their authorized users accessing other parties' content through Customer's facilities do so at Customer's own risk, and Charter assumes no liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to such content. (c) Damage, Loss or Destruction of Software Files and/or Data Customer agrees that Customer uses the Services and Equipment supplied by Charter at its sole risk. Charter does not manufacture the Equipment, and the Services and Equipment are provided on an "as is basis" without warranties of any kind. Charter assumes no responsibility whatsoever for any damage to or loss or destruction of any of Customer's hardware, software, files, data or peripherals which may result from Customer's use of any Service. Charter does not warrant that data or files sent by or to Customer will be transmitted in uncorrupted form or within a reasonable period of time. (d) Unauthorized Access. If Customer chooses to run or offer access to applications from its equipment that permits others to gain access through the Network, Customer must take appropriate security measures. Failing to do so may cause immediate Termination of C'BCR v2 :006000000097th3 Customer's Service by Charter without liability for 15. COMPLIANCE WITH LAWS. Customer shall not use or Charter. Charter is not responsible for and assumes permit third parties to use the Services in any manner that no liability for any damages resulting from the use of violates applicable law or causes Charter to violate such applications, and Customer shall hold Charter applicable law. Both parties shall comply with all harmless from and indemnify Charter against any applicable laws and regulations when carrying out their claims, losses, or damages arising from such use. respective duties hereunder. Charter is not responsible and assumes no liability for losses, claims, damages, expenses, liability, or costs 16. PRIVACY. Charter treats private communications on or resulting from others accessing the Customer's through its Network or using any Service as confidential computers, its internal network and/or the Network and does not access, use or disclose the contents of through Customer's equipment, and Customer shall private communications, except in limited circumstances hold Charter harmless from and indemnify Charter and as permitted by law. Charter also maintains a Privacy against any such claims, losses, or damages to the Policy with respect to the Services in order to protect the full extent arising from such access. privacy of its customers. The Privacy Policy can be found on Charter's website at www.Charter- Business.com. (e) Force Maieure Event. Customer agrees that Charter Customer represents and warrants that Customer has shall not be liable for any inconvenience, loss, liability read the Privacy Policy and agrees to be bound by its or damage resulting from any failure or interruption of terms. Customer expressly understands and agrees that Services, directly or indirectly caused by the Privacy Policy may be updated or modified from time circumstances beyond Charter's control, including but to time by Charter, with or without notice to Customer. not limited to denial of use of poles or other facilities of a utility company, labor disputes, acts of war or 17. GENERAL CUSTOMER REPRESENTATIONS AND terrorism, criminal, illegal or unlawful acts, natural OBLIGATIONS. Customer represents to Charter that causes, mechanical or power failures, or any order, Customer has the authority to execute, deliver and carry law or ordinance in any way restricting the operation out the terms of this Service Agreement and associated of the Services. Service Orders. Customer also represents that any person who accesses any Services through Customer's 13. INDEMNIFICATION. In addition to its specific equipment or through the NeNvork facilities in Customer's indemnification responsibilities set forth elsewhere in this Premises will be an authorized user, will use the Service, Service Agreement and as permissible under applicable Network and/or Network facilities in an appropriate and law, Customer agrees, at its own expense, to indemnify, legal manner, and will be subject to the terms of this defend and hold harmless Charter and its directors, Service Agreement. Customer shall be responsible for employees, representatives, officers and agents, (the ensuring that all such users understand the Service "Indemnified Parties ") against any and all claims, liabilities, Agreement and comply with its terms. lawsuits, damages, losses, judgments, costs, fees and expenses incurred by Charter Indemnified Parties, The Customer shall be responsible for all access to and including but not limited to, reasonable attorneys' fees and use of the Service by means of the Customer's equipment, court costs incurred by Charter Indemnified Parties under whether or not the Customer has knowledge of or this Service Agreement, to the full extent that such arise authorizes such access or use. The Customer shall be from Customer's misrepresentation with regard to or solely liable and responsible for all charges incurred and noncompliance with the terms of this Service Agreement all conduct through either authorized or unauthorized use and any or all Service Orders, Customer's failure to of the Service, until the Customer informs Charter of any comply with applicable law, and/or Customer's negligence breach of security. or willful misconduct. Charter Indemnified Parties shall Charter expressly prohibits using the Service for the have the right but not the obligation to participate in the posting or transferring of sexually explicit images, material defense of the claim at Customer's cost and Customer inappropriate for minors, or other offensive materials. By agrees to cooperate with Charter Indemnified Parties in signing, Customer expressly acknowledges that Customer such case. will not post or transfer or permit others to post or transfer 14. TITLE. Title to the Equipment shall remain with Charter such materials using the Service. during the applicable Service Period. Customer shall keep 18. NOTICES. Any notices to be given under this Service that portion of the Equipment located on Customer Agreement shall be validly given or served only if in writing Premises free and clear of all liens, encumbrances and and sent by nationally recognized overnight delivery security interests. Upon Termination of Service or service or certified mail, return receipt requested, to the expiration of a Service Orders Service Period for a following addresses: specific site, Charter shall have the right to remove all Equipment components and /or leave any of such If to Charter: components in place, assigning title and interest in such Charter Communications components to the Customer, it being understood that no ATTN: Charter Business further notice or action is required to accomplish the 15100 Trinity Blvd. Ste 500 assignment contemplated hereunder. Charter shall have Fort Worth, TX 75155 the right to remove the Equipment and all components with copies to: within sixty (60) days after such Termination. Charter Communications C'BCR v2 :006000000097th3 ATTN: Legal department Dept: Corporate Operations 12495 Powerscourt Drive St. Louis, MO. 63131 and Charter Communications ATTN: CB Corporate — Contracts Management 12495 Powerscourt Drive St. Louis, MO. 63131 If to Customer: City of North Richland Hills - Dispatch Center ATTN: Bob Weakley 7391 NE Loop 829 North Richland Hills, TX 76189 -6949 Each party may change its respective address(es) for legal notice by providing notice to the other party. 19. MISCELLANEOUS. (a) Entire Agreement. This Service Agreement and any related, executed Service Order(s) constitute the entire Agreement with respect to the Services, Network and Equipment. This Service Agreement supersedes all prior understandings, promises and undertakings, if any, made orally or in writing by or on behalf of the parties with respect to the subject matter of this Service Agreement. (b) No Amendments. Supplements or Changes. This Service Agreement and the associated executed Service Order(s) may not be amended, supplemented or changed without both parties' prior written consent. (c) No Assianment or Transfer. The parties may not assign or transfer (directly or indirectly by any means, by operation of law or otherwise) this Service Agreement and the associated Service Order(s), or their rights or obligations hereunder to any other entity without first obtaining written consent from the other party, which consent shall not be unreasonably withheld, provided, however, that Charter may assign this Service Agreement and the associated executed Service Order(s) to affiliates controlling, controlled by or under common control with Charter, or to its successor -in- interest in the event Charter sells the underlying communications system, without Customer's consent. (d) Severabilitv. If any term, covenant, condition or portion of this Service Agreement, any related, executed Service Order(s) shall, to any extent, be invalid or unenforceable, the remainder of this Service Agreement, any related, executed Service Order(s), shall not be affected and each remaining term, covenant or condition shall be valid and enforceable to the fullest extent permitted by law. (e) Section Headings. The section headings are furnished for the convenience of the parties and are not to be considered in the construction or interpretation of this Service Agreement. (f) Governing Law. This Service Agreement and all matters arising out of or related to this Agreement shali be governed by the laws of the State of Texas, without regard to conflicts of law provisions. IN ANY AND ALL CONTROVERSIES OR CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, ITS NEGOTIATION. ENFORCEABILITY OR VALIDITY, OR THE PERFORMANCE OR BREACH THEREOF OR THE RELATIONSHIPS ESTABLISHED HEREUNDER, CUSTOMER AND CHARTER EACH HEREBY WAIVES ITS RIGHT, IF ANY, TO TRIAL BY JURY. (g) Jointly Drafted. Both parties hereby acknowledge that they participated equally in the negotiation and drafting of this Service Agreement and any related, executed Service Order(s) and that, accordingly, no court construing this Service Agreement and any related, executed Service Order(s) shall construe it more stringently against one party than against the other. (h) No Third Partv Beneficiaries. The parties agree that the terms of this Service Agreement and the parties' respective performance of obligations as described are not intended to benefit any person or entity not a party to this Service Agreement, that the consideration provided by each party under this Service Agreement only runs to the respective parties hereto, and that no person or entity not a party to this Service Agreement shall have any rights under this Service Agreement nor the right to require the performance of obligations by either of the parties under this Service Agreement. (i) Waiver Except as otherwise provided herein, the failure of Charter to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision. C'BCR v2 :006000000097th3 CBCR v2 :006000000097th3 � Charter Business 411N111[$A0", 0" �e�:] DATA TRANSPORT SERVICE AGREEMENT This Service Agreement ( "Agreement ") is executed and effective upon the latest date of the signatures set forth in the signature block below ( "Effective Date ") by and between Charter Fiberlink TX -CCO, LLC , ( "Charter Business" or "Charter ") with local offices at 15100 Trinity Blvd. Ste 500, Fort Worth TX 76155 and City of Watauga - Dispatch Center, ( "Customer ") with offices located at 7101 Whitey Rd, Watauga TX 76148. Both parties desire to enter into this Agreement in order to set forth the general terms under which Charter is to provide Customer with Charter's services ( "Service" or "Services ") to Customer site(s), the scope and description to be specified per site belovv and/or in a Service order(s) executed by both parties (each instance of site identification and order a "Service Order" or collectively the "Service Orders "), which shall be incorporated in this Agreement upon execution. This Agreement and each Service Order will be effective only after both parties have signed each document. 6 =I:IT1 163 :991 11=I N Under the Data Transport Service Agreement CUSTOMER INFORMATION: Account Name: City of Watauga — Police Station Invoicing Address: , Invoicing Special Instructions: 1. SITE - SPECIFIC INFORMATION: V New ❑ Renew ❑ Change: Order Type: New Customer Service Location (Address): 7101 Whitley Rd, Watauga TX 76148 Service Location Name (for purposesofidentification): Service Location Special Instructions: Non - Hospitality or Non -Video CUSTOMER INFORMATION: Account Name: Haltom City Police Admin Invoicing Address: I , Invoicing Special Instructions: 2. SITE - SPECIFIC INFORMATION: New ❑ Renew ❑ Change: Order Type: New Customer Service Location (Address): 5110 Broadway Ave, Haltom City TX 76117 Service Location Name (for purposes of identification: Service Location Special Instructions: Dispatch Consolidation -WAN C'BCR v2 :006000000097th3 Customer Contact Information. To facilitate communication the following information is provided as a convenience and may be updated at any time without affecting the enforceability of the terms and conditions herein: Billing Site Contact Technical Contact Contact Name Bob Weakley Phone (817) 427 -6233 Fax Cell Email bweakley(�7a nrhtx.com Address d,HIVIS0 :1WElMa'f[e1MOMWE Site #1 Data Services: Charter Business Bundle: No Bundle' Base Service $610.00 MEF Service Types (if applicable): Speed: 30 Mbps (Down/Up) CPE: Additional Services FG -80C $ 9000 Site #2 Data Services: Charter Business Bundle: No Bundle' Base Service $610.00 MEF Service Types (if applicable): Speed: 30 Mbps (Down/Up) CPE: Additional Services FG -80C $ 90.00 TOTAL SERVICES $1400.00 CBCR v2 :006000000097th3 k if Customer has selected the Charter Business Special Offers, the Section 2(k) of the Standard Terms of Service (for Charter Business Bundle) shall apply.0 N E - T I M E C H A R G E S: One -Time Standard Installation Fee- FOR 2 SITES $ 500.00 per Site $1000.00 ONE -TIME CHARGES $1000.00 2. TOTAL FEES. Total Monthly Service Fees of $1400.00 are due upon receipt of the monthly invoice. Total One -Time Charges of $1000.00 are included in the first monthly invoice.. 3. SERVICE PERIOD. The initial Service Period of this Service Order shall begin on the date installation is completed and shall continue for a period of 60 months. Upon expiration of the initial term, this Service Order shall automatically renew for successive one -month terms at Charter's then current Monthly Service Fees unless either party terminates this Service Order by giving thirty (30) days prior written notice to the other party before the expiration of the current term. 4. TROUBLE REPORTS. Charter shall monitor its fiber optic -based data transport Services twenty -four (24) hours a day, seven (7) days a week. Charter shall provide Customer with a toll free telephone number the Customer may call to report service problems. Charter shall provide a telephone response to such calls within one (1) hour, and, if necessary, initiate a physical response within four (4) hours of receiving Customer's call reporting the problem. 5. SERVICE CREDITS. Customer shall be entitled to one (1) hour of service credit per Site per affected fiber optic -based Service (i.e. circuit) for each hour of Service Interruption if the interruption: (a) exceeds four (4) consecutive hours, (b) is not caused by Customer, or its agents, employees, licensees, or contractors, or a Force Majeure Event, (c) is not caused by Customer- provided equipment or facilities beyond the demarcation point, (d) is not caused by scheduled maintenance, and (e) is reported to Charter within twenty -four (24) hours of the commencement of the interruption. Service Credits shall not apply to any period of time for which Charter is not granted access, if necessary, to the applicable Customer Site. A "Service Interruption" is the continuous period of time during which a respective Service is not provided substantially as warranted to one or more Customer Sites. A Service Interruption commences when Charter becomes aware of such Service Interruption of a Service and ends when the Service is operational and the Trouble Ticket is closed. A Service Credit is calculated as follows- • Service Credit = Per Hour Rate X (# of consecutive hours during Service interruption) • Per Hour Rate = Per Day Rate/twenty-four (24) • Per Day Rate = Monthly Service Charge /thirty (30) days (30 = average days in one [1] month) Any Service interruption that exceeds a consecutive period of twelve (12) hours shall be considered an outage for one (1) day_ Example: If Customer is paying a $10,000 Monthly Service Fee and a Service interruption of one (1) day (or 24 hours) occurs, the Service Credit shall be equal to $333.33 and shall be applied on the billing cycle following the date Charter makes its credit determination: Per Day Rate = $10,000/30 days = $333.33 Per Hour Rate = $333.33124 hours = $13.89 Service Credit = 1 day X $333.33 = $333.33 OR 24 hours X $13.89 = $333.33 Service credits will be based on the Customer's Monthly Service Fee for those Sites and specific Services affected by the Service Interruption. Non- recurring, equipment and usage -based charges are excluded. The sum of all Service Credits shall not exceed the Customer's total Monthly Service Fees for the month in which the Service interruption occurred. The Customer must contact Charter Business at 866.603.3199 (or successor applicable toll -free number) to request a Service Credit for a specific Service Interruption. Charter Business will exercise commercially reasonable efforts to respond to such Service Credit requests within C'BCR v2 :006000000097th3 fifteen (15) business days of receipt thereof. The approved Service Credit will be applied on the billing cycle following the date Charter makes its credit determination. Service Credits shall be Customer's sole and exclusive remedy for Charter's failure to provide Services as warranted. 6. NO UNTRUE STATEMENTS. Customer further represents and warrants to Charter that neither this Service Order, nor any other information, including without limitation, any schedules or drawings furnished to Charter contains any untrue or incorrect statement of material fact or omits or fails to state a material fact. 7. CONFIDENTIALITY. Customer hereby agrees to keep confidential and not to disclose directly or indirectly to any third party, the terms of this Service Order or any other related Service Orders, except as may be required by law. If any unauthorized disclosure is made by Customer and/or its agent or representative, Charter shall be entitled to, among other damages arising from such unauthorized disclosure, injunctive relief and a penalty payment in the amount of the total One -Time Charges associated with this Service Order, and Charter shall have the option of terminating this Service Order, other related Service Orders and/or the Service Agreement. 8. FACSIMILE. A facsimile of a duly executed Agreement and Service Order signed by both authorized parties shall be considered evidence of a valid order and Charter may rely on such facsimile copy of the Agreement and Service Order as if it were the original. NOW THEREFORE, Charter and Customer agree to the terms and conditions included within this Service Agreement, including the Commercial Terms of Service which follow, and hereby execute this Service Agreement by their duly authorized representatives. C'BCR v2 :006000000097th3 Charter Fiberlink TX -CC4, LLC By: Sy: Charter Communications, Inc., its Manager Signature: Printed Name: Title: Date: Charter Business Account iExecutive: Name: Adam Kuehn Telephone: 817 -288 -3653 Fax: 817- 358 -7502 City of North Richland Hills - Dispatch Center Signature: Printed Name: Title: Date: CBCR v2 :006000000097th3 STANDARD TERMS OF SERVICE SERVICE. Charter agrees to provide the Services during Customer of such charges. Customer shall be the Service period to the Customer at the site(s) identifed assessed such additional One -Time Charges and/or in the Service Order(s). "Service Period," is the time period adjusted Monthly Service Fees, either (i) in advance starting on the date the Services are fully functional in all of implementation of the change request or (ii) material respects and available for use as described in a beginning on the Customer's next and /or subsequent Service Order or as reflected in the first invoice (the "Turn- invoice(s). up Date "), and continuing for the number of months (e) Site Visits and Repairs. If Customer's misuse, abuse specified in the Service Order(s). d'i f' 4; th S E ' t K1_+1__ k STANDARD PAYMENT TERMS. Customer agrees to pay the monthly Service fees and one -time charges as set forth in the Service Order(s) incorporated under this Service Agreement by execution thereof by the parties. "`Monthly Service Fees" is the amount specified as the monthly fee to be paid by the Customer for the Services. "One -Time Charges" include, but are not limited to, construction, Service installation charge(s), repair, replacement, or any non- recurring charges. "Service Installation Charge" is the amount specified as the fee for installation of equipment and network facilities. "Equipment" means components including, but not limited to, any gateway or edge electronic device, antenna, node, concentrator, bridge, receiver, transmitter, transceiver, router, switch, hub or communications lines /cables that makes up the network of Charter - provided Equipment, facilities and materials (the "Network ") necessary to provide the Services. (a) Monthlv Service Fees. Customer agrees to pay Monthly Service Fees in advance of the provision of the Services. Monthly Service Fees are due upon receipt of the invoice. (b) One -Time Charges. Customer agrees to pay the One -Time Charges as described on the applicable Service Order(s) and /or as otherwise set forth in this Agreement. (c) Taxes. Fees, and Government Charges. Customer agrees to pay any sales, use, property, excise or other taxes, franchise fees, and governmental charges (excluding income taxes), arising under this Agreement, including, without limitation, applicable state property taxes. A copy of the Customer's tax exemption document, if applicable, must be provided to Charter to certify tax - exempt status. Tax - exempt status shall not relieve Customer of its obligation to pay any applicable franchise fees. (d) Charges for Change Requests. Any charges associated with Service and Equipment installations, additions, modifications, substitutions, upgrades, reconfigurations, rebuilds or relocations at a site and requested by Customer subsequent to executing a Service Order for that site, are the sole financial responsibility of Customer. Charter shall notify Customer, orally or in writing, of any additional One - Time Charges and/or adjustments to Monthly Service Fees associated with or applicable to such Customer change requests prior to making any such additions or modifications. Customer's failure to object to such additional charges within three (3) days of receiving such notice shall be deemed an acceptance by U1 mo ica ion o e ervices, quspmen or r facilities supplied by Charter necessitates a visit to the Customer site for inspection, correction or repair, Charter shall charge Customer a site visit fee as well as charges for any Equipment or Network repair or replacement necessary to restore Service. (f) Invoicing Errors. Customer must provide notice to Charter of any invoice errors or disputed charges within thirty (30) days of the invoice date on which the errors and/or disputed charges appear in order for Customer to receive any credit that may be due. (g) Late Fees. If Customer fails to pay an invoice within thirty (30) days of issuance, Charter will issue a notice of late payment. Customer will be charged a late fee of not more than one and one half percent (1.5°1x) per month on any outstanding past -due balance. (h) Non - Pavment. If Services are disconnected because Customer does not pay the invoice, Charter may, in its sole discretion, require that Customer pay all past due charges, a reconnect fee, and a minimum of one month's Monthly Service Fees in advance before Charter will reconnect Services. (i) Returned Checks. Bankcard or Credit Card Charae- Backs and Collection Fees. Charter may charge a reasonable service fee for all returned checks and bankcard, credit card or other charge card charge - backs. (j) Collection Fees. Customer shall be responsible for all expenses, including reasonable attorney's fees and collection costs, incurred by Charter in collecting any unpaid amounts due under this Agreement. (k) Bundled Pricing. In the event Customer has selected a Charter Business Bundle (as must be specifically indicated by component Service in this Service Order), the following conditions shall apply: In consideration for Customer's purchase of the Charter Business Bundle and only with respect to that period of time during which Customer continues to purchase such Charter Business Bundle (for purposes of clarification, continues purchase of each bundled Service component of such Charter Business Bundle), Charter agrees to apply a discount to the Services ordered under this Service Order. Such discount has been applied to the Services included in Charter's bundled pricing offer and is reflected in the Monthly Services Fees for such Services contained in this Service Order. For purposes of clarification, in the event Charter's provision to Customer of one or more of the bundled C'BCR v2 :006000000097th3 Service components of the Charter Business Bundle, is discontinued or otherwise terminated for any reason, the pricing for the remaining Service components listed above shall revert to Charter's a la carte pricing for such Services in effect at the time of the discontinuation or termination. Termination liabilities applicable to the Services under the Service Agreement shall otherwise remain unchanged. 3. SERVICE LOCATION ACCESS and INSTALLATION. (a) Access Customer shall provide Charter with reasonable access to each Service Location listed on a Service Order as necessary for Charter to review, install, inspect, maintain or repair any Equipment or Materials necessary to provide the Services. If Customer owns and/or controls the Service Location(s), Customer grants to Charter permission to enter the sites) for the exercise of such right. If a site is not owned and /or controlled by Customer then Customer will obtain, with Charter's assistance, appropriate right of access. if Customer is not able to gain right of access for a site from owner and/or controlling party, Charter's obligations under this Agreement and the appropriate Service Order for such site are terminated, null and void. (b) Installation Review: Subseauent Interference. Charter may perform an installation review of each Service Location prior to installation of the Services at that Service Location. Customer may be required to provide Charter with accurate site and /or physical network diagrams or maps of a Service Location prior to the installation review. Charter may directly or through its agents inspect the Customer Premises before beginning installation, and shall satisfy itself that safe installation and proper operation of its Equipment and the Services are possible in the location(s) provided by Customer. If Charter, in its sole discretion, determines that safe installation and /or activation of one or more of the Services will have negative consequences to Charter's personnel or Network and /or cause technical difficulties to Charter or its customers, Charter may terminate the Service Order effective upon prior written notice to Customer or may require the Customer to correct the situation before proceeding with installation or activation of the Services. In the event during the initial or any renewal Service Period, (i) proper operation of Charters Equipment and /or unhindered provision of the Services is no longer possible as a result of interference or obstruction caused by the acts or omissions of Customer, a third party or any Force Majeure Event, or (ii) such interference /obstruction or the cause thereof will have negative consequences to Charter's personnel or Network and/or cause technical difficulties to Charter or its customers, as Charter may determine in its sole discretion, Charter may terminate the affected Service Order(s) without liability upon written notice to Customer. (c) Site Preparation. Customer shall be responsible, at its own expense, for all site preparation activities necessary for delivery and installation of the Equipment and the installation and ongoing provision of Services, including, but not limited to, the relocation of Customer's equipment, furniture and furnishings as necessary to access the Equipment and/or Services. To ensure proper installation of the Equipment and the Services, Customer may be required to provide electrical or other utility service, and/or accurate physical network diagrams and /or maps prior to installation. (d) Installation. Charter will schedule one or more installation visits with Customer. Customer's authorized representative must be present during installation. During installation, Charter shall test to confirm that the Services can be accessed from the Service Location. In the event that during the course of installation Charter determines additional work is necessary to enable Charter to deliver the Services to the Service Location, Charter will notify Customer of any new or additional One -Time Charges that may be necessary. In the event the Customer does not agree to pay such One -Time Charges by executing a revised Service Order reflecting such new charges (and superseding the underlying applicable Service Order) within five (5) business days of receiving the revised Service Order. Customer and/or Charter shall have the right to terminate the applicable Service Order. Customer shall be responsible for access paths, moving or relocating furniture, furnishings, or equipment, or other preparation activities necessary for Charter to install the Services. Customer shall connect any Equipment provided by Charter to Customers computer or network to enable access to the Services. With respect to any excavation, Charter shall be responsible for reasonable restoration efforts necessary to address any displacement resulting from such excavation. (e) Ongoing Visits. Charter will need access to the Customer Premises from time to time for inspecting, constructing, installing, operating and maintaining Charter's Network facilities, Equipment or materials and /or any related facilities. Except in emergency situations, Charter will obtain approval from the Customer (not to be unreasonably withheld or delayed) before entering the Customer Premises. At Charter's request, Customer, or a representative designated by Customer, will accompany Charter's employees or agents into any unoccupied unit for the purpose of installing, repairing, maintaining, upgrading, and /or removing the Equipment. 4. EQUIPMENT AND MATERIALS. (a) Responsibilities and Safeguards. Except as otherwise provided in this Service Agreement or any Service Order(s), neither party shall be responsible for the maintenance or repair of cable, electronics, structures, Equipment or materials owned by the other party, provided, however, that subject to the Indemnification limitations set forth in section 11 C'BCR v2 :006000000097th3 hereunder, each party shall be responsible to the other for any physical damage or harm such party causes to the other party's personal or real property through the damage- causing party's negligence or willful misconduct. Without limiting the foregoing, Customer will not be liable for loss of or damage to cable, electronics, structures or Equipment owned by Charter and located on Customer Premises which occurred as a result of the occurrence of any Force Majeure Event, natural disaster or other casualty loss over which Customer has no control. Customer shall: i Safeguard Charter - provided Equipment against others; ii Not add other equipment nor move, modify, disturb, alter, remove, nor otherwise tamper with any portion of the Equipment; iii Not hire nor permit anyone other than personnel authorized by Charter acting in their official capacity to perform any work on the Equipment; and iv Not move nor relocate Equipment to another location or use it at an address other than the Service location without the prior written consent of Charter. Any unauthorized connection or other tampering with the Services, Equipment, any system or its components shall be cause for immediate disconnection of Services, termination of this Agreement and/or legal action, and Charter shall be entitled to recover damages, including, but not limited to, the value of any Services and/or Equipment obtained in violation of this Agreement in addition to reasonable collection costs including, but not limited to, reasonable attorneys' fees. Should any antenna, or signal amplification system for use in connection with communication equipment hereafter be installed on the Premises which interferes with the Services provided by Charter hereunder, Customer acknowledges and agrees that Charter shall not be obligated to distribute a quality signal to the Premises better than the highest quality which can be furnished as a result of such interference, until such time as the interference is eliminated or corrected by Customer or a third party. (b) Customer Security Responsibilities. Customer shall be responsible for the implementation of reasonable security procedures and standards with respect to use of and access to the Service and/or Equipment. Charter may temporarily discontinue or disconnect the Services upon learning of a breach of security and will attempt to contact Customer in advance, if possible. The temporary discontinuation or disconnection of the Services shall not constitute a breach of this Agreement. (c) Ownership. Customer understands and agrees that notwithstanding any other provision contained herein to the contrary, all Equipment and materials installed or provided by Charter are and shall always remain the property of Charter, shall not become a fixture to the Premises, and must be returned to Charter at any time Services are disconnected in the condition in which they were received subject to ordinary wear and tear. Customer will not sell, lease, assign nor encumber any Equipment. Customer shall not obtain or acquire title to, interest or right (including intellectual property rights) in the Service or Equipment other than to the limited extent of use rights expressly granted under this Agreement. (d) Equipment Return, Retrieval. Repair and Replacement. Immediately upon termination of Services ( "Termination" shall mean the termination of the Service Agreement and/or Service Order(s)), at the discretion of Charter, Customer shall return, or allow Charter to retrieve, the Equipment supplied by Charter to Customer, in good condition. Failure of Customer to return, or allow Charter to retrieve. Equipment within ten (10) days after Services are terminated will result in a charge to Customer's account equal to the full retail cost of replacement of the unreturned Equipment. In addition, Customer agrees to pay for the repair or replacement of any damaged Equipment (whether or not caused by Customers negligent act, except such repairs or replacements as may be necessary due to normal and ordinary wear and tear or material /workmanship defects), together with any costs incurred by Charter in obtaining or attempting to regain possession of such Equipment, including, but not limited to, reasonable attorneys' fees. VIDEO, MUSIC AND CONTENT SERVICE. This Video, Music and Content Service section shall only apply if Video, Music and Content Services are included in a Service Order under this Agreement. Continued reception of the Video Services is subject to these Terms and Conditions. Charter may, in its sole discretion, preempt, rearrange, delete, add, discontinue, modify or otherwise change any or all of the advertised programming, packaging, and distribution of its Video Services or of any of Charter's Video Services packages. (a) Payment Terms. Increases in any and all programming, license, copyright, retransmission and/or other costs, charges, fees or amounts including, without limitation, taxes and any and all other governmental fees, charges and /or other amounts, shall not be deemed to be included in the Monthly Service Fees or limited by any provision in this Agreement, and may be passed on to Customer at any time when such costs are incurred by, assessed or required of Charter. The initial Monthly Service Fees shall remain in effect for the first 12- months of this Agreement. Thereafter, Charter may increase the Monthly Service Fees from time to time upon thirty (30) days' prior written notice C'BCR v2 :006000000097th3 to Customer. Customer hereby agrees to any such increases that do not exceed ten percent (10 %) of the Customer's total Monthly Service Fees incurred in the month immediately preceding the month in which the increase is to be effective. Increases shall not occur more frequently than once per 12 -month period. In the event such increased Monthly Service Fee would exceed the amount permitted under applicable law, the Monthly Service Fees shall be increased only to the maximum allowable under applicable law. Notwithstanding the foregoing, increases in any and all programming, license, copyright, retransmission and/or other costs, charges, fees or amounts including, without limitation, taxes and any and all other governmental fees, charges and/or other amounts, shall not be limited by any provision in this Agreement, and may be passed onto Customer at any time when such costs are passed on to Charter. (b) Music Riahts Fees. In all cases, Customer is responsible for and must secure any music rights and /or pay applicable fees required by the American Society of Composers, Authors & Publishers ( "ASCAP "), Broadcast Music, Inc. ( "BMI ") and SESAC, Inc. ( "SESAC ") or their respective successors, and any other entity, person or governmental authority from which a license is necessary or appropriate in connection with Customer's transmission, retransmission, communication, distribution, performance or other use of the Services. (c) Premium and Pav- Per -View. Customer may not exhibit any premium Services such as HBO or Showtime in any public or common viewing area. Customer may not order or request Pay - Per -View (PPV) programming for receipt, exhibition or taping in a commercial establishment. Customer may not exhibit nor assist in the exhibition of PPV programming in a commercial establishment unless explicitly authorized to do so by agreement with an authorized program provider and subject to Charter's prior written consent. If Customer fails to abide by these restrictions, in addition to all other liability and not by way of limitation, Customer accepts liability for any and all claims made against Customer or Charter of any unauthorized commercial exhibition and Customer agrees to indemnify and hold Charter harmless from any loss, cost, liability, or expense, including reasonable attorney's fees, arising from a breach of this provision. (d) HD Formatted Programmina. If Customer has selected High Definition ( °'HD ") formatted programming, Customer understands it is responsible for provision, installation and maintenance of the receiving equipment and /or facilities necessary for reception and display of such HD signal. Any failure of the Customer to fulfill the foregoing obligation shall not relieve Customer of its obligation to pay the applicable Monthly Service Fees or One -Time Charges for the HD Formatted Programming. (e) Provision of Service. Charter may, in its sole discretion, from time to time, rearrange, delete, add or otherwise change packaging and programming of Services contained in Charter's basic cable, Digital Music or other Services provided pursuant to this Agreement. Customer acknowledges that Charter has the right at any time to preempt without notice specific advertised programming and to substitute programming that Charter deems to be comparable. (f) Restrictions. Customer shall not and shall not authorize or permit any other person to (i) copy, record, dub, duplicate, alter, make or manufacture any recordings or other reproductions of the Services (or any part thereof); (ii) transmit the Services (or any part thereof) by any television or radio broadcast or by any other means or use the Services (or any part thereof) outside the Service Location. Customer acknowledges that such duplication, reproduction or transmission may subject Customer to criminal penalties and /or civil liability and damages under applicable copyright and /or trademark laws. . With respect to the music programming comprising a portion of the Services, Customer shall not, and shall not authorize or permit any other person to do any of the following unless Customer has obtained a then - current music license permitting such activity: (i) charge a cover charge or admission fee to any Service Location(s) at the time the Services (or any part thereof) are being performed or are to be performed; or (ii) permit dancing, skating or other similar forms of entertainment or physical activity in conjunction with the performance of the Services (or any part thereof ). Customer shall not, and shall not authorize or permit any other person to insert any commercial announcements into the Services or interrupt any performance of the Services for the making of any commercial announcements. If Customer fails to abide by these restrictions, Customer accepts liability for any and all claims made against Customer or Charter due to any unauthorized commercial exhibition and Customer agrees to defend, indemnify and hold Charter harmless from any damages, loss, cost, liability, or expense, including reasonable attorneys' fees, arising from a breach of these restrictions. 6. INTERNET ACCESS SERVICE. This Internet Access Service section shall only apply if Internet Access Services are included in a Service Order under this Agreement. Continued use of the Internet Service is subject to these Terms and Conditions. (a) Eauioment and Software Requirements. Customer shall maintain certain minimum Equipment and software to receive the Service. Please refer to www.charter- business.com (or the applicable successor URL) for the current specifications. (b) Internet Service Speeds. Charter shall use commercially reasonable efforts to achieve the Internet speed selected by the Customer on the C'BCR v2 :006000000097th3 Service Order. However, Customer understands and agrees that such speeds may vary. (c) Access and Use. Customer agrees to ensure that any person who has access to the Internet Services through Customer's computer(s), wireless access points, Service Location, facilities or account shall comply with the terms of this Agreement. Customer shall be responsible for setting up password /access security measures. Customer shall be responsible for all charges incurred and all conduct, whether authorized or unauthorized, caused by use of Customer's computers, service locations, facilities or account using the Internet Services. Customer acknowledges and understands that various factors, for which Charter is not responsible, may contribute to interference with the Internet Service signal transmitted /accessible by a wireless router. (d) Electronic Addresses. All e-mail addresses, e-mail account names, and IP addresses ( "Electronic Addresses ") provided by Charter are and shall remain the property of Charter. Customer may not alter, modify, sell, lease, assign, encumber or otherwise tamper with the Electronic Addresses. (e) No Liability for Chances of Address. Due to growth, acquisitions and changes in technology, Charter reserves the right to change addressing schemes, including e-mail and IP addresses. (f) No Liabilitv for Risks of Internet Use. The Internet is a shared network and Charter does not warrant that Service will be error free. The Service, Charter's network and the Internet are not secure, and others may access or monitor the Customer's traffic. Charter does not warrant that data or files sent or received by the Customer over the Network will not be subject to unauthorized access by others, that other users will not gain access to the Customer's data, nor that the data or files will be free from computer viruses or other harmful components. Charter has no responsibility and assumes no liability for such acts or occurrences. (g) No Liabilitv for Purchases. Through use of the Service, the Customer may access certain information, products and services of others, for which there is a charge. The Customer shall be solely liable and responsible for all fees or charges for these online services, products or information. Charter shall have no responsibility to resolve disputes with other vendors. (h) Blocking and Filterina. While the computer industry may provide blocking and filtering software that empowers Customer to monitor and restrict access to Customer's computer and its data, Charter is not the publisher of this software. Charter strongly recommends that the Customer employ a "frewall" or other security software. The Customer assumes all responsibility for providing and configuring any "firewall" or security measures for use with the Service. Except to the extent set forth in the Supplemental Charter Business Security Service Section, Charter shall not be responsible in any manner for the effectiveness of these blocking and filtering technologies. Charter does not warrant that other users will be unable to gain access to Customer's computers) and/or data even if the Customer utilizes blocking and filtering technologies. (i) Acceotable Use Policv. Customer agrees to comply with the terms of Charter's Acceptable Use Policy ( "AUP "), found at wvAv.charter- business.com (or the applicable successor URL) and that policy is incorporated by reference into this Agreement. Customer represents and warrants that Customer has read the AUP and agrees to be bound by its terms as they may from time to time be amended, revised, replaced, supplemented or otherwise changed. Customer expressly understands and agrees that the AUP may be updated or modified from time to time by Charter, with or without notice to Customer. Charter may discontinue or disconnect Services immediately for any violation of the Charter AUP with or without notice to Customer. (j} Supplemental Services. The following subsections shall only apply in the event such referenced supplemental services have been selected by and /are being delivered to Customer. The supplemental Services may be made up of software and hardware components. Charter shall ensure the supplemental services are operational and updated from time to time based on manufacturer -sent updates. Except to the limited extent described in the foregoing sentence, Charter makes no warranties of any kind (express or implied) regarding the supplemental services and hereby disclaims any and all warranties pertaining thereto (including but not limited to implied warranties of title, non- infringement, merchantability, or fitness for a particular purpose). Customer understands and acknowledges that Charter does not have title to and is not the manufacturer of any software or hardware components of the supplemental services nor is Charter the supplier of any components of such software or hardware. Customer shall return or destroy all software components provided to Customer upon the termination of the applicable Service Order, and in the case of the destruction thereof, shall, upon request, provide Charter with certification that such components have been destroyed. IN ADDITION TO BUT WITHOUT ABROGATING THE TERMS SET FORTH UNDER THESE TERMS OF SERVICE REGARDING LIMITATIONS OF LIABILITY, CHARTER SHALL IN NO EVENT BE LIABLE FOR ANY DAMAGES ARISING FROM THE PERFORMANCE OR NON- PERFORMANCE OF ANY SUPPLEMENTAL SERVICES (INCLUDING BUT NOT LIMITED TO THAT ATTRIBUTABLE TO BLOCKED CONTENT OR EMAIL OR CANCELLATION OF A DOMAIN NAME BY THIRD PARTY). REGARDLESS OF CAUSE OR FAULT, MAXIMUM LIABILITY TO CUSTOMER WITH REGARD TO PURCHASE OR USE OF THE SUPPLEMENTAL SERVICE(S), SHALL IN NO C'BCR v2 :006000000097th3 EVENT EXCEED THE AMOUNT PAID BY CUSTOMER TO CHARTER FOR THE APPLICABLE SUPPLEMENTAL SERVICE. No rights for trademarks use is granted for any Supplemental Services and associated third parties. Charter shall not be liable for any claims arising from the disclosure of personally identifiable information provided by Customer to a Third Party Provider. (i) Supplemental CB Hosting Service. This Hosting Service subsection shall only apply if one of Charter's Hosting Services ("Hosting") is included as part of the Service in a Service Order under this Agreement. Charter will provide to Customer Hosting Service in accordance with the Specifications associated with the plan Customer has selected on the Service Order. I. Third Party Software via Hosting Service. The Hosting Service will permit access to a variety of resources available from selected third parties, including developer tools, communication forums and product information (collectively, "Hosting Software "). The Hosting Software, including any updates, enhancements, new features, and/or the addition of any new Web properties, may be subject to, and Customer hereby agrees to comply with applicable product use rights /end user license agreements between such third parties and Customer. Without abrogating or limiting anything set forth in section 6(j), Charter (not the manufacturer) shall provide technical support for the CB Hosting Service, but version changes of any such software compatibility and /or suitability with any other Customer provided software shall be Customer's responsibility. Furthermore, Customer hereby consents to the disclosure to the provider of Third Party Software, Customer's name and any other necessary information for the limited purpose of licensing rights. Customer shall not use the CB Hosting Service for or in connection with any high risk use or activity such as aircraft or other modes of human mass transportation, nuclear, or chemical facilities. or Class III medical devices under the Federal Food, Drug, and Cosmetic Act. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE HOSTING SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED IN WRITING BY CHARTER. WITHOUT LIMITING OR ABROGATING THE TERMS SET FORTH IN SECTION 7, CHARTER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE HOSTING SOFTWARE, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON - INFRINGEMENT. Domain Names. Customer shall be solely responsible for registering for or renewing a desired domain name, which may be done via the CB Hosting Service if such domain name registration option has been included or from a third party outside of this Agreement. Customer may identify the domain name registrar by accessing the "Whois Look Up' service at url:whis.domaintools.com, subsequent url or similar service of their choice. Charter disclaims such responsibility, and Customer acknowledges that Charter does not guarantee that Customer will be able to register or renew a desired domain name, even if an inquiry indicates that domain name is available at the time of such inquiry. Specification Limitations. Individual websites may not at any time exceed the Hosting Specifications identified on the applicable Service Order. If a Customer's Hosting account is found exceed the Specifications set forth in the applicable Service Order, or is adversely impacting Charter's network or server(s), Charter may (i) contact the Customer to resolve the issues: or if Customer has exceeded the then - applicable Specifications in any given month, (ii) upgrade the Customer's account on the next available billing cycle to the next service level tier or (iii) suspend of terminate the Hosting Service. Notvithstanding anything to the contrary, in the event Customer's use of the Hosting Service is causing an adverse impact on Charter's network or servers, Charter may (i) suspend or terminate the Hosting Service or (ii) terminate the Agreement in its entirety. 6. Limitation of Charter - Provided Services. Customer understands and agrees that certain services are not provided by Charter as part of the Hosting Service (e.g., Charter does not provide nor offer web page creation, development, design or content services). 7. No Additional Warranties. Charter makes no warranties of any kind (express or implied) regarding Hosting and hereby disclaims any and all warranties pertaining thereto (including but not limited to implied warranties of title, non - infringement, merchantability, or fitness for a particular purpose). IN ADDITION TO, BUT WITHOUT ABROGATING AND LIMITING THE TERMS SET FORTH IN THE LIMITATION OF LIABILITY SECTION OF THIS AGREEMENT, CHARTER SHALL IN NO EVENT BE LIABLE FOR ANY DAMAGES ARISING FROM THE PERFORMANCE OR NON- PERFORMANCE OF CHARTER HOSTING REGARDLESS OF CAUSE OR FAULT. CHARTER'S MAXIMUM LIABILITY TO CUSTOMER WITH REGARD TO CUSTOMER'S PURCHASE OR USE OF THE HOSTING SERVICE SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY CUSTOMER TO CHARTER FOR HOSTING SERVICE. 8. Hosting Fees. The applicable Service Order sets forth the Monthly Service Fees for the Hosting Service. Customer is responsible for payment whether or not the hosting platform is used. Customer shall not be C'BCR v2 :006000000097th3 relieved of its responsibility to continue to pay for Hosting in the event Hosting does not function properly as a result of (i) Customer's failure to install or properly use any software; or (ii) Customer's failure to utilize in any way or less than the maximum Specifications the Hosting Service. Content Liability and Use Restrictions. Customer acknowledges Charter exercises no control whatsoever over the content of the information passing through Customer's sites) and that it is Customer's sole responsibility to ensure that Customer and Customer's users use of the Hosting Service complies at all times with all applicable laws and regulations and Charter's AUP. Upon activation of Customer's account, Charter shall have the right to disclose any, or all available information collected from Customer to law enforcement authorities upon written request by such authorities. Information that may be disclosed includes, but is not limited to IP addresses, account history, and files stored on Charter servers. In addition to the foregoing, Customer expressly understands and agrees that the following activities are prohibited. In the event that Customer engages in such activities, Charter shall have the right to suspend or terminate the Hosting Services and/or this Agreement: (a) The hosting of unlicensed software that is available to the public; (b) Use of software or files that contain computer viruses or files that may harm user's computers; (c) Any attempt or actual unauthorized access by Customer or through Customer's equipment to any Charter website or the website of any Charter customer; (d) The collection or any attempt to collect personally identifiable information of any person or entity without their express written consent. Customer shall maintain records of any such written consent throughout the Term (and any Renewal Term) of this agreement and for three years thereafter; (e) Any action which is harmful or potentially harmful to the Charter server structure; (f) Running a banner exchange, free adult tgp (thumbnail gallery post) and/or free adult image galleries on your website; (g) inclusion of sites with material, links, or resources for hacking, phreaking, viruses, or any type of site that promotes or participates in willful harm to Internet sites or providers. (h) Impositions on Customer's End Users. Customer is responsible for charging and collecting from Customers end -user customers any and all applicable taxes. If Customer fails to impose and/or collect any tax from its end users or customers as required herein, then, as between Charter and Customer, Customer shall remain liable for such uncollected tax and any interest and penalty assessed thereon with respect to the uncollected tax by the applicable taxing authority. With respect to any tax that Customer has agreed to pay or impose on and/or collect from Customer's end users or customers, Customer agrees to indemnify and hold harmless Charter for any costs incurred as a result of actions taken by the applicable taxing authority to collect such tax from Charter due to Customer's failure to pay or collect and remit such tax to such authority. (ii) CB Security Service — desktop and Managed. This Charter Business Security Service subsection shall only apply if Charter's managed or desktop security service ( "CB Desktop Security" and /or "CB Managed Security ") is /are included in this Service Agreement or any related Service Order. CB Managed Security and CB Desktop Security are each made up of software and hardware components. Charter shall ensure that the selected CB Security Service(s) is/are operational and updated from time to time based on manufacturer -sent updates. Except to the limited extent described in the foregoing sentence, Charter makes no warranties of any kind (express or implied) regarding either CB Security Service and hereby disclaims any and all warranties pertaining thereto (including but not limited to implied warranties of title, non - infringement, merchantability, or fitness for a particular purpose). Customer understands and acknowledges that Charter is not the manufacturer of any software or hardware components of either Charter Business Security Service nor is Charter the supplier of any components of such software or hardware. IN ADDITION TO BUT WITHOUT ABROGATING THE TERMS SET FORTH IN SECTION 11, CHARTER SHALL IN NO EVENT BE LIABLE FOR ANY DAMAGES ARISING FROM THE PERFORMANCE OR NON- PERFORMANCE OF A CHARTER BUSINESS SECURITY SERVICE (INCLUDING BUT NOT LIMITED TO THAT ATTRIBUTABLE TO BLOCKED CONTENT OR EMAIL). REGARDLESS OF CAUSE OR FAULT, CHARTER'S MAXIMUM LIABILITY TO CUSTOMER WITH REGARD TO CUSTOMER'S PURCHASE OR USE OF A CHARTER BUSINESS SECURITY SERVICE, SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY CUSTOMER TO CHARTER FOR THE APPLICABLE CHARTER BUSINESS SECURITY SERVICE. (iii) CB Back -Up Service. This CB Back -Up service subsection shall apply only if Charter's data storage service ( "CB Back -Up ") is requested by the Customer. Customer shall be assessed applicable One -Time Charges and Monthly Service Fees which shall be based upon Customers selection of version retention quantity and storage tier (e.g., 5 gigabits). The version retention quantity selected specifies the maximum number of separate versions of a document that will C'BCR v2 :006000000097th3 be retained (running in sequential order based on the last version created). For example, if Customer has selected 7 as the version retention quantity, a Customer will be able to access the last 7 versions of a particular document. In addition to One Time Charges and Monthly Service Fees, monthly storage overage fees shall apply each month Customer exceeds the respective subscribed storage level. Additional One Time Charges and Monthly Service Fees also apply to Customer- requested media and/or professional services. CB Back -Up is made up of software components. Customer understands and acknowledges that Charter is not the manufacturer or supplier of any CB Back -Up software components. Customer shall be responsible for updating CB Back -Up from time to time based on updates provided by the software manufacturer, and any failure of Customer to perform such updates shall relieve Charter from any responsibility to ensure that CB Back -Up remains operational. Except to the limited extent described in the foregoing sentences, Charter makes no warranties of any kind (express or implied) regarding CB Back -Up and disclaims any and all warranties pertaining to CB Back -Up (including but not limited to implied warranties of title, non - infringement, merchantability, or fitness for a particular purpose). IN ADDITION TO, BUT WITHOUT ABROGATING OR LIMITING THE TERMS SET FORTH IN THE LIMITATION OF LIABILITY SECTION OF THIS AGREEMENT, CHARTER SHALL IN NO EVENT BE LIABLE FOR ANY DAMAGES ARISING FROM THE PERFORMANCE OR NON- PERFORMANCE OF CB BACK -UP REGARDLESS OF CAUSE OR FAULT. CHARTER'S MAXIMUM LIABILITY TO CUSTOMER WITH REGARD TO CUSTOMER'S PURCHASE OR USE OF CB BACK -UP SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY CUSTOMER TO CHARTER FOR CB BACK -UP SERVICE. In the event the functionality of the CB Back -Up service cannot be maintained by Charter or the manufacturer, Charter shall have the right to discontinue providing the service immediately and Charter shall credit Customer's account for any pre- paid Monthly Service Fees attributable to the service, except where such lack of functionality is caused by the Customer or any end user gaining access to the service through the Customer's facilities, equipment, or point of access. Customer shall not be relieved of its responsibility to continue to pay for CB Back -Up in the event CB Back -Up does not function properly as a result of Customer's failure to install and configure the software, activate the service or install manufacturer - provided updates. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES (1) THAT IT IS CUSTOMER'S SOLE RESPONSIBILITY TO CREATE AND RETAIN THE CB BACK -UP PASSWORD THAT IS NECESSARY FOR ACCESS TO ANY DATA STORED VIA THE CB BACK -UP SERVICE AND (2) THAT CHARTER HAS NO ACCESS TO AND DOES NOT KNOW NOR KEEP ANY RECORD OF THE PASSWORD CREATED BY CUSTOMER. FAILURE BY CUSTOMER TO RETAIN CUSTOMER'S CB BACK -UP PASSWORD SHALL RESULT IN COMPLETE LOSS OF ACCESSABILITY TO DATA STORED VIA THE CB BACK -UP SERVICE. 7. DATA NETWORKING This Data Networking Service section shall only apply if Data Networking Services (e.g. Ethernet, Optical Ethernet, Optical Transport) are included in any Service Order under this Agreement. Continued reception of the Data Networking Service is subject to these Terms and Conditions. (a) Charter will provide Data Networking Services for Customer locations connected over coaxial and /or fiber -optic cable. Connectivity is established between two or more customer end- points under a unique customer topology. Charter will install the coaxial or fiber -optic cable into each Customer site as listed in the Service Order(s). The parties hereby acknowledge that Charter will also supply an edge device at each site that will be capable of receiving the service as specified in the Service Order(s). (b) Charter will terminate fiber -optic cable on a patch panel or provide a coaxial outlet at an agreed upon Minimum Point of Penetration (MPOP) up to 50 (fifty) feet within each facility (unless otherwise specified in the Service Order). If the hand -off point of the Service at the Customer's Premises exceeds this distance, the Customer may be responsible for any additional costs that may be incurred for internal wiring. (c) The basic Data Networking Service that the Customer will receive includes connectivity at each of the Service Locations as identified in the Service Order(s). (d) The Customer will make available to Charter a building ground connection at each location that meets current electrical codes for the placement of a fiber -optic patch panel and/or coaxial outlet. It is recommended that the Customer provide a separate 20 Amp 110V AC circuit for the edge electronics, which is powered by a UPS system. Customer - supplied routing will be necessary for communication between each Service Location. (e) If Customer has selected "Monitoring" for a Service then Charter shall monitor the Services twenty -four (24) hours a day seven (7) days a week. Customer shall contact the Charter Business Network Operations Center ( °CBNOC ") at 1 -866 -603 -3199 or subsequent number to report service problems. Additional fees may apply. 8. NO THIRD -PARTY HARDWARE OR SOFTWARE SUPPORT. Customer is responsible for the installation, repair and use of Customer - supplied third -party hardware and/or software. For purposes of this Agreement the Hosting Software shall be considered third party software. C'BCR v2 :006000000097th3 Charter does not support third -party hardware or software individually to be considered a separate event of supplied by Customer. Any questions concerning third- default) and the Customer fails to correct each such party hardware or software should be directed to the noncompliance within twenty (20) days of receipt of provider of that product. Charter assumes no liability or written notice in cases involving non - payment or responsibility for the installation, maintenance, within thirty (30) days of receipt of written notice in compatibility or performance of third party software, any cases involving any other noncompliance: Customer- supplied hardware or software with the i Customer is more than thirty (30) days past due Services. If such third -party equipment or software with respect to any payment required hereunder; impairs the Services, Customer shall remain liable for payments as agreed (if any) without recourse for credit or ii Customer otherwise has failed to comply with the prorated refund for the period of impairment. Charter has terms of this Service Agreement or any other no responsibility to resolve the difficulties caused by such Service Order(s) incorporated herein by third -party equipment or software. If, at Customer's execution thereof by the parties. request, Charter should attempt to resolve difficulties caused by such third -party equipment or software, such (b) Charter's Rioht to Terminate and Termination Charae. efforts shall be performed at Charter's discretion and at In the event Customer is in default, Charter shall have then - current commercial rates and terms. the right, at its option, and in addition to any other rights of Charter expressly set forth in this Agreement 9. CUSTOMER USE. Customer agrees not to re -sell or re- and any other remedies it may have under applicable distribute access to the Services) or system capacity, or law to: any part thereof, in any manner without the express prior written consent of Charter. Customer agrees not to use or i Immediately suspend Services to the Customer permit third parties to use the Service(s), including but not until such time as the underlying noncompliance limited to the Equipment and software provided by has been corrected without affecting Customer's Charter, for any illegal purpose, or to achieve on -going obligation to pay Charter any amounts unauthorized access to any computer systems, software, due under this Agreement (e.g., the Monthly data, or other copyright or patent protected material. Service Fees), as if such suspension of Services Customer agrees not to interfere with other customers' had not taken place; use of the Equipment or Services or disrupt the Charter ii Terminate the Services; or Network, backbone, nodes or other Services. Violation of any part of this section is grounds for immediate iii After the occurrence of two (2) such events of Termination of this Service Agreement and/or all Service Customer default in any twelve (12) month period Orders in addition to any other rights or remedies Charter of time, terminate this Service Agreement and/or may have hereunder. any or all of the applicable Service Order(s). 10. PERFORMANCE. Charter will use commercially if Termination is due to noncompliance by the reasonable efforts in keeping with normal industry Customer, Customer must pay Charter a Termination standards to ensure that the Service is available to charge (a "Termination Charge "), which the parties Customer twenty -four (24) hours per day, seven (7) days recognize as liquidated damages. This Termination per week. It is possible, however, that there will be Charge shall be equal to fifty percent (50 %) of the interruptions of Service. Specifically, Customer unpaid balance of the Monthly Service Fees that understands and agrees that the Service may be would have been due throughout the remainder of the unavailable from time to time either for scheduled or applicable Service Period plus one hundred percent unscheduled maintenance. technical difficulties, or for (100 %) of (1) the outstanding balance of any and all other reasons beyond Charter's reasonable control. One -Time Charges plus (2) any and all previously Temporary service interruptions /outages for such reasons, waived One -Time Charges. as well as service interruptions /outages caused by the (c) Default by Charter. Charter shall be in default under Customer, its agents and employees, or by a Force this Service Agreement in the event that Charter fails Majeure Event, shall not constitute a failure by Charter to to comply with the terms of this Service Agreement perform its obligations under this Service Agreement, and and /or any or all of the applicable Service Orders), Customer will not hold Charter at fault for loss of Customer and Charter fails to remedy each such noncompliance revenue or lost employee productivity due to Service or occurrence within thirty (30) days of receipt of outages. written notice from Customer describing in reasonable 11. DEFAULT; SUSPENSION OF SERVICE; detail the nature, scope and extent of the default or TERMINATION. No express or implied waiver by Charter noncompliance: of any event of default shall in any way be a waiver of any (d) Customer's Riaht to Terminate and Termination further subsequent event of default. Nothing herein, Charge including, but not limited to Termination, shall relieve Customer of its obligation to pay Charter all amounts due. i Customer shall have the right, at its option and in addition to any other remedies it may have, to (a) Default by Customer. Customer shall be in default terminate any applicable Service Order(s), if the under this Service Agreement in the event that the underlying event of default and/or noncompliance Customer does one (1) or more of the following (each C'BCR v2 :006000000097th3 by Charter is limited to Services provided under the applicable Service Order(s) or this Service Agreement, if such noncompliance is not so limited, provided that Charter's diligent efforts to correct such breach are not commenced and pursued within thirty (30) days after Charter's receipt of a written notice from the Customer describing in reasonable detail the nature, scope and extent of the event of default/noncompliance. If Termination is due to noncompliance by Charter, Charter shall reimburse Customer for any pre -paid, unused Monthly Service Fees attributable to such terminated Service Order(s). In addition, if Termination is due to noncompliance by Charter within one (1) year of the applicable Turn -Up Date, Charter shall pay a Termination Charge, which the parties recognize as liquidated damages, equal to a portion of any One -Time Charge that has already been paid by the Customer to Charter relative to Service at the sites covered by the terminated Service Order. This Termination Charge Charter must pay Customer shall be equal to the product of a) the number of months (or portion thereof) remaining in the initial twelve (12) months of the initial Service Period at the time of Termination and b) a ratio in which the numerator is the total of One - Time Charges paid to date and the denominator is twelve (12). 12. LIMITATION OF LIABILITY. PLEASE READ THIS SECTION CAREFULLY, IT CONTAINS DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY. (a) Limited Warrantv. At all times during the Service Period, Charter warrants that it will use commercially reasonable efforts in keeping with industry standards to cause the Services to be available to the Customer. THE FOREGOING LIMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL EXPRESS AND IMPLIED WARRANTIES WHATSOEVER. EXCEPT AS OTHERWISE STATED IN THIS SERVICE AGREEMENT, CHARTER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SERVICE PROVISIONED HEREUNDER AND SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NON - INFRINGEMENT OF THIRD PARTY RIGHTS. WITHOUT LIMITING ANY EXPRESS PROVISIONS PROVIDED FOR ELSEWHERE IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF SERVICES HEREUNDER (INCLUDING ANY SERVICE IMPLEMENTATION DELAYS AND /OR FAILURES), UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY STRICT LIABILITY OR NEGLIGENCE, EVEN IF THE PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS APPLIES TO ALL CAUSES OF ACTIONS AND CLAIMS, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. Any warranty claim by Customer must be made within thirty (30) days after the applicable Services have been performed. Charter's sole obligation and Customer's sole remedy, with respect to any breach of the limited warranty set forth herein, shall be a prorated refund of the fees paid by Customer based on the period of time when the Services are out of compliance with this limited warranty provision. (b) Content Customer acknowledges that any content that Customer may access or transmit through any Service is provided by independent content providers, over which Charter does not exercise and disclaims any control. Charter neither previews content nor exercises editorial control; does not endorse any opinions or information accessed through any Service: and assumes no responsibility for content. Charter specifically disclaims any responsibility for the accuracy or quality of the information obtained using the Service. Such content or programs may include, without limitation, programs or content of an infringing, abusive, profane or sexually offensive nature. Customer and their authorized users accessing other parties' content through Customer's facilities do so at Customer's own risk. and Charter assumes no liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to such content. (c) Damage, Loss or Destruction of Software Files and/or Data Customer agrees that Customer uses the Services and Equipment supplied by Charter at its sole risk. Charter does not manufacture the Equipment, and the Services and Equipment are provided on an "as is basis" without warranties of any kind. Charter assumes no responsibility whatsoever for any damage to or loss or destruction of any of Customer's hardware, software, files, data or peripherals which may result from Customer's use of any Service. Charter does not warrant that data or files sent by or to Customer will be transmitted in uncorrupted form or within a reasonable period of time. (d) Unauthorized Access. If Customer chooses to run or offer access to applications from its equipment that permits others to gain access through the Network, Customer must take appropriate security measures. Failing to do so may cause immediate Termination of C'BCR v2 :006000000097th3 Customer's Service by Charter without liability for 15. COMPLIANCE WITH LAWS. Customer shall not use or Charter. Charter is not responsible for and assumes permit third parties to use the Services in any manner that no liability for any damages resulting from the use of violates applicable law or causes Charter to violate such applications, and Customer shall hold Charter applicable law. Both parties shall comply with all harmless from and indemnify Charter against any applicable laws and regulations when carrying out their claims, losses, or damages arising from such use. respective duties hereunder. Charter is not responsible and assumes no liability for losses, claims, damages, expenses, liability, or costs 16. PRIVACY. Charter treats private communications on or resulting from others accessing the Customer's through its Network or using any Service as confidential computers, its internal network and/or the Network and does not access, use or disclose the contents of through Customer's equipment, and Customer shall private communications, except in limited circumstances hold Charter harmless from and indemnify Charter and as permitted by law. Charter also maintains a Privacy against any such claims, losses, or damages to the Policy with respect to the Services in order to protect the full extent arising from such access. privacy of its customers. The Privacy Policy can be found on Charter's website at www.Charter- Business.com. (e) Force Maieure Event. Customer agrees that Charter Customer represents and warrants that Customer has shall not be liable for any inconvenience, loss, liability read the Privacy Policy and agrees to be bound by its or damage resulting from any failure or interruption of terms. Customer expressly understands and agrees that Services, directly or indirectly caused by the Privacy Policy may be updated or modified from time circumstances beyond Charter's control, including but to time by Charter, with or without notice to Customer. not limited to denial of use of poles or other facilities of a utility company, labor disputes, acts of war or 17. GENERAL CUSTOMER REPRESENTATIONS AND terrorism, criminal, illegal or unlawful acts, natural OBLIGATIONS. Customer represents to Charter that causes, mechanical or power failures, or any order, Customer has the authority to execute, deliver and carry law or ordinance in any way restricting the operation out the terms of this Service Agreement and associated of the Services. Service Orders. Customer also represents that any person who accesses any Services through Customer's 13. INDEMNIFICATION. In addition to its specific equipment or through the Network facilities in Customer's indemnification responsibilities set forth elsewhere in this Premises will be an authorized user, will use the Service, Service Agreement and as permissible under applicable Network and/or Network facilities in an appropriate and law, Customer agrees, at its own expense, to indemnify, legal manner, and will be subject to the terms of this defend and hold harmless Charter and its directors, Service Agreement. Customer shall be responsible for employees, representatives, officers and agents, (the ensuring that all such users understand the Service "Indemnified Parties ") against any and all claims, liabilities, Agreement and comply with its terms. lawsuits, damages, losses, judgments, costs, fees and expenses incurred by Charter Indemnified Parties, The Customer shall be responsible for all access to and including but not limited to, reasonable attorneys' fees and use of the Service by means of the Customer's equipment, court costs incurred by Charter Indemnified Parties under whether or not the Customer has knowledge of or this Service Agreement, to the full extent that such arise authorizes such access or use. The Customer shall be from Customer's misrepresentation with regard to or solely liable and responsible for all charges incurred and noncompliance with the terms of this Service Agreement all conduct through either authorized or unauthorized use and any or all Service Orders, Customer's failure to of the Service, until the Customer informs Charter of any comply with applicable law, and/or Customer's negligence breach of security. or willful misconduct. Charter Indemnified Parties shall Charter expressly prohibits using the Service for the have the right but not the obligation to participate in the posting or transferring of sexually explicit images, material defense of the claim at Customer's cost and Customer inappropriate for minors, or other offensive materials. By agrees to cooperate with Charter Indemnified Parties in signing, Customer expressly acknowledges that Customer such case. will not post or transfer or permit others to post or transfer 14. TITLE. Title to the Equipment shall remain with Charter such materials using the Service. during the applicable Service Period. Customer shall keep 18. NOTICES. Any notices to be given under this Service that portion of the Equipment located on Customer Agreement shall be validly given or served only if in writing Premises free and clear of all liens, encumbrances and and sent by nationally recognized overnight delivery security interests. Upon Termination of Service or service or certified mail, return receipt requested, to the expiration of a Service Orders Service Period for a following addresses: specific site, Charter shall have the right to remove all Equipment components and/or leave any of such If to Charter: components in place, assigning title and interest in such Charter Communications components to the Customer, it being understood that no ATTN: Charter Business further notice or action is required to accomplish the 15100 Trinity Blvd. Ste 500 assignment contemplated hereunder. Charter shall have Fort Worth, TX 75155 the right to remove the Equipment and all components with copies to: within sixty (60) days after such Termination. Charter Communications C'BCR v2 :006000000097th3 ATTN: Legal department Dept: Corporate Operations 12495 Powerscourt drive St. Louis, MO. 63131 and Charter Communications ATTN: CB Corporate — Contracts Management 12495 Powerscourt Drive St. Louis, MO. 63131 If to Customer: City of North Richland Hills - Dispatch Center ATTN: Bob Weakley 7391 NE Loop 829 North Richland Hills, TX 76189 -6949 Each party may change its respective address(es) for legal notice by providing notice to the other party. 19. MISCELLANEOUS. (a) Entire Agreement. This Service Agreement and any related, executed Service Order(s) constitute the entire Agreement with respect to the Services, Network and Equipment. This Service Agreement supersedes all prior understandings, promises and undertakings, if any, made orally or in writing by or on behalf of the parties with respect to the subject matter of this Service Agreement. (b) No Amendments. Supplements or Changes. This Service Agreement and the associated executed Service Order(s) may not be amended, supplemented or changed without both parties' prior written consent. (c) No Assianment or Transfer. The parties may not assign or transfer (directly or indirectly by any means, by operation of law or otherwise) this Service Agreement and the associated Service Order(s), or their rights or obligations hereunder to any other entity without first obtaining written consent from the other party, which consent shall not be unreasonably withheld, provided, however that Charter may assign this Service Agreement and the associated executed Service Order(s) to affiliates controlling, controlled by or under common control with Charter, or to its successor -in- interest in the event Charter sells the underlying communications system, without Customer's consent. (d) Severabilitv. If any term, covenant, condition or portion of this Service Agreement, any related, executed Service Order(s) shall, to any extent, be invalid or unenforceable, the remainder of this Service Agreement, any related, executed Service Order(s), shall not be affected and each remaining term, covenant or condition shall be valid and enforceable to the fullest extent permitted by law. (e) Section Headings. The section headings are furnished for the convenience of the parties and are not to be considered in the construction or interpretation of this Service Agreement. (f) Governing Law. This Service Agreement and all matters arising out of or related to this Agreement shall be governed by the laws of the State of Texas, without regard to conflicts of law provisions. IN ANY AND ALL CONTROVERSIES OR CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, ITS NEGOTIATION. ENFORCEABILITY OR VALIDITY, OR THE PERFORMANCE OR BREACH THEREOF OR THE RELATIONSHIPS ESTABLISHED HEREUNDER, CUSTOMER AND CHARTER EACH HEREBY WAIVES ITS RIGHT, IF ANY, TO TRIAL BY JURY. (g) Jointly Drafted. Both parties hereby acknowledge that they participated equally in the negotiation and drafting of this Service Agreement and any related, executed Service Order(s) and that, accordingly, no court construing this Service Agreement and any related, executed Service Order(s) shall construe it more stringently against one party than against the other. (h) No Third Partv Beneficiaries. The parties agree that the terms of this Service Agreement and the parties' respective performance of obligations as described are not intended to benefit any person or entity not a party to this Service Agreement, that the consideration provided by each party under this Service Agreement only runs to the respective parties hereto, and that no person or entity not a party to this Service Agreement shall have any rights under this Service Agreement nor the right to require the performance of obligations by either of the parties under this Service Agreement. (i) Waiver Except as otherwise provided herein, the failure of Charter to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision. C'BCR v2 :006000000097th3 CBCR v2 :006000000097th3 M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject Agenda Item No. C.0 PUBLIC HEARINGS M RH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. C.1 GN 2011 -092 Public Hearing and Action on Amending Section 74 -38 of the North Richland Hills Code of Ordinances Providing for the Continuation of Taxation of Goods in Transit - Ordinance No. 3168 Presenter: Karen Bostic, Assistant City Manager Summarv: In 2007, the 80 Texas Legislature enacted Tex. Tax Code § 11.253 (HB 621) which implemented the goods -in- transit exemption authorized by Texas Constitution, Art. 8 sec. 1 -n. That bill defined goads -in- transit in part as tangible personal property detained in a location in this state whose owner did not have direct or indirect ownership of the facility at which the property was assembled, stored, manufactured, processed, or fabricated. HB 821 also provided for a local option to tax goods -in- transit notwithstanding the authorized exemption. A number of taxing units, including North Richland Hills, chose to do so beginning in tax year 2008 by taking official action through their governing bodies. The 82 " Legislature has now enacted Senate Bill 1, amending § 11.253 and, through that amendment, has narrowed the definition of goods -in- transit. The amendment became effective October 1, 2011 and it applies to tax year 20112 and subsequent years. This amendment exempts only those goods being stored. In order to continue taxing goods -in- transit, it is necessary for City Council to hold a public hearing to receive public input, as well as approve an Ordinance that amends Section 74 -38 of the North Richland Hills Code of Ordinances. General Descrir)tion: In October 2007, City Council approved an ordinance amending Article II of Chapter 74 of the North Richland Hills Code of Ordinances by enacting a new section 74 -38 providing for the taxation of goods -in- transit exempted under § 11.253, subsection b, of the Tax Code. During the 82" Legislature, Senate Bill 1 was passed and signed into law by the Governor. This bill included narrowing of the definition of goads -in- transit which requires that Council must now take action to "opt out" of this exemption. The purpose of the public hearing is to provide taxpayers the opportunity to express their opinions on the subject. The public hearing may be held in conjunction with a regular council meeting. There is no requirement for publishing notice of the hearing other than including notice of the public hearing on a regular meeting agenda. If Council chooses to continue taxing goods -in- transit for tax year 2012 and subsequent years, action must be taken between October 1 and December 31, 2011. There are several reasons why staff would recommend City Council approve Ordinance No. 3188 to continue taxation of goods -in- transit: • This is not a "new" tax. The City of North Richland Hills passed on ordinance in 2007 to not exempt goods -in- transit. • The City is not in a position to start giving away taxes that we are already collecting to keep businesses that we already have. • Based on a recent survey by the North Central Texas Council of Governments, it appears most cities will be opting to continue the taxation of these goods. • With most other cities not providing the exemption, concerns about tax migration are eliminated. • Warehouse operations tend to be expensive to serve from a transportation perspective and do not carry high property values. • Most importantly, we can choose to exempt or reimburse taxes on goods -in- transit for companies we are trying to attract or retain. Currently the City receives nominal amounts of tax revenue from goods -in- transit. However, without approval of this ordinance, a large warehouse business could locate within North Richland Hills and the City could potentially lose a significant amount of revenue by providing an exemption for goods -in- transit. This is revenue that could be used to repair city streets that are damaged by the heavy truck traffic as a result of a large warehouse operation. Recommendation: Approve Ordinance No. 3188 Amending Section 74 -38 of the North Richland Hills Code of Ordinances Providing for Taxation of Goods -in- Transit. M RH ORDINANCE NO. 3168 AN ORDINANCE AMENDING SECTION 74 -38 OF THE NORTH RICHLAND HILLS CODE OF ORDINANCES PROVIDING FOR THE AD VALOREM TAXATION OF TANGIBLE PERSONAL PROPERTY IN TRANSIT OR "SUPER FREEPORT" GOODS PURSUANT TO SECTION 11.253 OF THE TEXAS TAX CODE; AND PROVIDING FOR SAID ORDINANCE TO TAKE IMMEDIATE EFFECT. WHEREAS, in 2001, the Texas Legislature approved Senate Joint Resolution 5, which was subsequently approved by the eligible voters of the State of Texas authorizing a "super freeport" property tax exemption for certain tangible personal property; and, WHEREAS, the Texas Legislature in the 80th Legislative Session approved House Bill 521 (hereinafter referred to as "HB 621"), as the enabling statute for the "super freepost" property tax exemption approved by the voters in 2001; and, WHEREAS, Section 11.2530) of the Texas Tax Code provided that municipalities, may in the manner required for official action by the governing body, provide for the taxation of goods -in- transit otherwise exempt pursuant to Section 11.253(b) of the Texas Tax Code, and not exempt under other law, which provision was approved by passage of Ordinance 2950; and, WHEREAS, the Texas Legislature in the 82" d regular session passed SB 1 which amended Section 11.253 of the Texas Tax Code to again exempt goods in transit from taxation unless municipalities, pursuant to new Section j -1 of Section 11.253 of the Tax Code, again enact measures taxing such goods in transit by an ordinance passed between October 1, 2011 and before December 31, 2011 after a public hearing thereon; and, WHEREAS, the City Council held a public hearing prior to the passage of this Ordinance, consistent with SB 1 and Section 11.253 of the Texas Tax Code; and, WHEREAS, the City Council finds and determines that the super freeport exemption as authorized by Section 11.253 of the Texas Tax Code is not in the best interest of the City of North Richland Hills, Texas; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF NORTH RICHLAND HILLS, TEXAS: Section 1. The findings set forth above are incorporated into the 'body of this Ordinance as if fully set forth herein. Section 2. Section 74 -38 of the North Richland Hills Code of Ordinances is hereby amended to read as follows: "Sec. 74 -38 - Goods in transit. Goods in transit, as defined by section 11.253, Texas Tax Code which are not exempt from taxation under other law shall be subject to ad valorem taxation and shall not be exempt from taxation as provided by subsection (b) of such section." Section 2. This Ordinance shall become effective immediately upon its passage. PASSED AND APPROVED on this the 24 day of October, 2011. ATTEST: Patricia Hutson, City Secretary +] ►J=I I1_l& 011111010 i 1=1'► 11111 xHi141 vial George A. Staples, City Attorney APPROVED AS TO CONTENT: CITY OF NORTH RICHLAND HILLS Oscar Trevino, Mayor Karen Bostic, Assistant City Manager M RH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. C.2 ZC 2011 -10 Public Hearing and Consideration of a request from the City of North Richland Hills for a Zoning Change from U Institutional and LR Local Retail to CS Community Services (located at the Southeast corner of Rufe Snow Drive and NE Loop 820) - Ordinance No. 3170 Presenter: John Pitstick, Planning and Development Director Case Summary: The City of North Richland Hills is requesting a zoning change from "Institutional" and "Local Retail" to "Community Services on 7.32E acres owned by the City of North Richland Hills at the southeast corner of Rufe Snow Drive and NE Loop 820. The purpose of the request is to zone the property to conform to the recommendations of the Comprehensive Land Use Plan ( " Retail ") and the Loop 820 Corridor Plan. Existing Site Conditions: The property currently includes the North Richland Hills Recreation Center and the administrative offices of the Parks & Recreation Department and Citicable. It was once the home of the North Richland Hills Library and the lot on the hard corner was previously a gas station. Comprehensive Plan: The Comprehensive Plan depicts "Retail" uses for this area. The Retail Land Use is intended to permit a variety of retail trade, personal and business services establishments and offices. Thoroughfare Plan: The lot has frontage on NE Loop 820 which will soon be under reconstruction as part of the North Tarrant Express (NTE) project for widening that roadway. The property also has street frontage on Rufe Snow Dr, a four -lane undivided minor arterial (M4U). Surrounding Zoning 1 Land Use: North: ROW (NE Loop 820) West: HC (Heavy Commercial) l Retail South: R -2 (Single Family) I Low Density Residential East: CS (Community Services) / Commercial Case Review: The zoning request to "Community Services" is consistent with the Comprehensive Land Use Plan and the Loop 820 Corridor Plan for retail and commercial uses. In the event that the property is no longer viable for use by the City, the property could be marketed for private development. If and when private development does occur, current zoning regulations require the installation of a six -foot masonry wall and a 15 -foot landscape setback to protect the existing residents on Corona Drive to the south of this property. Planning and Economic Development staff hosted a meeting on Monday.. October 17 for property owners that are adjacent to the proposed rezoning. The purpose of the meeting was to update residents on the status of the NE Loop 820 project and answer questions about the rezoning request. The residents along Corona were primarily interested in an 8 foot masonry wall to screen from any future retail uses and they also requested the closing of the Redondo Drive access. Planning & Zoning Commission Recommendation: The Planning & Zoning Commission met on Thursday, October 20, 2011 and recommended approval of ZC 2011 -10 for straight zoning to Community Services. No residents were present at the P &Z public hearing. Staff Recommendation: Staff is recommending approval of Zoning Change request ZC 2011 -10 for straight zoning to the Community Services district. Other concerns expressed by the neighborhood regarding the requirement for an 8 foot wall and closing Redondo Drive can be controlled through private deed restrictions if warranted. LOCATION MAP ll%r F F^ I - 1 - � 0 1 =m WTT.Mlw:vll� AERIAL PHOTO PROPERTY OWNER NOTIFICATION NOTICE OF PUBLIC HEARING CITY OF NORTH RICHLAND HILLS PLANNING AND ZONING COMMISSION AND CITY COUNCIL Gage #: ZC 2011- 10 Applicant: The City of North Richland Hills Location: Southeast Corner of Rufe Snow Dr and NE Loop 820 You are receiving this notice because you are a property owner of record within 200 feet of the property shown on the attached map. Purpose of Public Hearinq: A Public Hearing is being held to Consider a request from the City of North Richland Hills for a Zoning Change from U Institutional and LR Local Retail to CS Community Services at the Southeast corner of Rufe Snow Drive and NE Loop 820. Public Hearinq Schedule: Public Hearing Dates: PLANNING AND ZONING COMMISSION THURSDAY, OCTOBER 20, 20'1'1 If recommended for approval by the Planning and Zoning Commission, this zoning request will be heard by the City Council on: CITY COUNCIL MONDAY, NOVEMBER 14, 20'11 Both Meeting Times: 7 :00 P.M. Both Meeting Locations: CITY COUNCIL CHAMBERS 7301 N. E. LOOP 820 NORTH RICHLAND HILLS, TEXAS If you have any questions or wish to submit a petition or letter concerning the above request, please contact: Planning Department - City of North Richland Hills 7301 Northeast Loop 820 North Richland Hills, Texas 76180 Phone (817) 427 -6300 Fax (817) 427.5303 LIST OF NOTIFIED PROPERTY OWNERS Doris Nell Nix Mary I Arrick Est Gil W Barnett 6821 Corona Dr 6817 Corona Dr 1519 Creekview Dr Fort Worth Tx 76180 -7913 Fort Worth Tx 76180 -7913 Keller Tx 76248 -5355 Milton S Etux Carmen Coleman Donna Conn Anders Julian T Etux Fira Perez 6713 Corona Dr 6709 Corona Dr 6705 Corona Dr Fort Worth Tx 76180 -7909 Fort Worth Tx 7 6180-79 09 Fort Worth Tx 76180 -7909 Community Horne Investors Charles B Etux Cinda C Tyler Lois Nikirk LLC PO Box 224 6809 Corona Dr 6805 Corona Dr Keller Tic 76294 -0224 Fort Worth Tx 76180 -7911 NRH Tx 76180 -7911 Bradley J Etux Donna Russell Jay 'Boden Victor M Droguett 6801 Corona Dr 6741 Corona Dr 2Wnstead Ct NRH Tx 76180 -7911 NRH Tx 76180 -7909 Trophy Club Tx 76262 -3405 Angel R Etux Rose L Izquierdo Jas F Cato Jeanne Pace Casten 6733 Corona Dr 6733 Parkwood Dr 6725 Corona Dr NRH Tx 76180 -7909 NRH Tx 76182 -7645 Fort Worth Tx 76180 -7909 Steven L Etux Sherry C Duncan The Hills Church of Christ Jerry Max Vaughan 6721 Corona Dr 6300 NE Loop 820 6820 Corona Dr Fort Worth Tx 761980 --7909 NRF-1 Tx 76180 -7899 Fort Worth Tx 76180 -7912 Doris A Daniel Kristy Bobo Carl E & Carol E Baker 6816 Corona Dr 6808 Corona Dr 6800 Corona Dr Fort Worth Tx 76180 -7912 f=art Worth Tx 76180 -7914 NRH Tx 76180-7914 Leora (Lee) Menders Witherspoon Properties In Jennifer C Hargrave 6804 Corona or 632 Lonesome Prairie TO 6732 Corona Dr Fort Worth Tx 76180-7914 Haslet Tx 76052 -4193 NRH Tx 76180 -7907 Alan R Etux Melynda E Davis Darryl W Etux Barbara A,Cason Jeffrey G & ,Julie M 8736 Corona Dr 6724 Corona Dr 6716 Corona Dr Fort Worth Tx 76180 -7907 Fort Worth Tx 76180 -7910 NRH Tx 76180-7910 Gerald C Sloan Betty Etvir Johnny Rodriguez Virginia M Chamblee 6720 Corona Dr 5721 Larue Cir 6700 Corona Dr Fort Worth Tx 78180 -7910 NRH Tx 76180 -7923 Fort Worth Tx 76180-7908 Qulktrip Corp Pack Properties 1120 N Industrial Blvd P© Box 110098 Euless Tx 76039 -7700 Carrollton Tx 75099 -0098 ORDINANCE NO. 3170 ZONING CASE ZC 2011 -10 AN ORDINANCE AMENDING THE COMPREHENSIVE PLAN AND THE COMPREHENSIVE ZONING ORDINANCE OF THE CITY OF NORTH RICHLAND HILLS; AMENDING THE ZONING MAP OF THE CITY OF NORTH RICHLAND HILLS, TEXAS, AND REZONING A 7.3260 ACRE TRACT OF PROPERTY LOCATED IN LOTS 1R AND 1, BLOCK 25, SNOW HEIGHTS ADDITION FROM U (INSTITUTIONAL) AND LR (LOCAL RETAIL) TO CS (COMMUNITY SERVICES) ZONING; ESTABLISHING A PENALTY; PROVIDING FOR PUBLICATION; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, notice of a hearing before the Planning and Zoning Commission was sent to real property owners within 2001 feet of the property herein described at least 10 days before such hearing; and, WHEREAS, notice of a public hearing before the City Council was published in a newspaper of general circulation in the City at least 15 days before such hearing; and, WHEREAS, public hearings to zone the property herein described were held before both the Planning and Zoning Commission and the City Council, and the Planning and Zoning Commission has heretofore made a recommendation concerning the zone change; and, WHEREAS, the City Council is of the opinion that the zone change herein effectuated furthers the purpose of zoning as set forth in the Comprehensive Zoning Ordinance and is in the best interest of the citizens of the City of North Richland Hills; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF NORTH RICHLAND HILLS, TEXAS: Section 1: THAT the Comprehensive Plan, the Comprehensive Zoning Ordinance and the zoning map of the City of North Richland Hills are hereby amended by rezoning a 7.3260 acre tract of land located in Lots 1 R and 2, Block 25, Snow Heights Addition to the City North Richland Hills, Tarrant County, Texas, more particularly described in the legal description attached hereto as Exhibit A from U (Institutional) and LR (Local Retail) to CS (Community Services) zoning. Section 2: Any person, firm or corporation violating any provision of the Comprehensive Zoning Ordinance as amended hereby shall be deemed guilty of a misdemeanor and upon final conviction thereof fined in an amount not to exceed Two Thousand Dollars ($2,000.00). Each day any such violation shall be allowed to continue shall constitute a separate violation and punishable hereunder. Section 3: The City Secretary is hereby authorized and directed to cause the publication of the descriptive caption and penalty clauses of this ordinance as an alternative method of publication provided by law. Section 4: This ordinance shall be in full force and effect immediately after passage. ►_1'r I III 19 Pvf*xel N Bl I Z 14 53 PASSED AND APPROVED on the 14th day of November, 2011. CITY OF NORTH RICHLAND HILLS F -AW U Oscar Trevino, Mayor Patricia Hutson, City Secretary ►=1 »:1 +1►J=I11_RM 119110106I_12 11111 x0i141 vim George A. Staples, City Attorney APPROVED AS TO CONTENT: John Pitstick, Planning & Development Director I WA: ii =1kr=l r-•Ir9cr ALL that certain tract or parcel Of land situated in the W, W. WALLACE SURVEY, ABSTRACT NC. 1606, Tarrant County, Texas and being a portion of Lot 1 -R, Block 25, SNOW HEIGHTS ADDITION, an Addition to the City of North Richland Hills, Tarrant County, Texas as recorded in Volume 3BB -206, Page 89, Plat Records, Tarrant County, Texas and being more particularly described by metes and bounds as follows: BEGINNING at a 1/2 inch capped steel rod stamped "MOAK SURV INC" set for the southeast corner of said Lot 1 -R, also being the southwest comer of Lot 3 of said Block 25, SNOW HEIGHTS ADDITION, (Vol. 388 -208, Pg. 89); THENCE North 89 degrees 38 minutes 30 seconds West with the southerly boundary line of said Block 25, 952.72 feet to a 1/2 inch capped steel rod stamped " 8RI•iTAIN A CRAW FORD' found for the southwest corner of said Lot 1 -R; THENCE North 00 degrees 01 minutes 57 seconds West with the westerly boundary line of said Lot 1 -11, at 54,86 feet passing a 1/2 Inch steel rod found far the southeast comer of said Lot 2, continuing with said westerly boundary line, 252.36 feet to a 1/2 inch steel rod found for the southwest corner of a proposed unrecorded right -of -way description to the State Of Texas for the southerly right -of -way line of Interstate Highway Loop 820; THENCE with said proposed southerly right -of -way line as follows: North 83 degrees 16 minutes 14 seconds East with said proposed right -of -way line, 284.76 feet to a pk nall found for the beginning of a curve to the right, from which the center bears South 03 degrees 02 minutes 00 seconds East, at 5233.85 feet; Northeasterly continuing with said proposed right -of -way line and with said curve to the right, having an arc length of 265.44 feet, a central angle of 02 degrees 54 minutes 21 seconds and chord bearing of North 88 degrees 25 minutes 10 seconds East, at 265.41 feet to a pk nail found for the beginning of a curve to the right, from which the center bears South 00 degrees 08 minutes 52 seconds East, at 2609.16 feet; Southeasterly continuing with said proposed right -of -way line and with said curve to the right, having an arc length of 407.97 feet, a central angle of 08 degrees 57 minutes 32 seconds and chord bearing of South 85 degrees 40 minutes 06 seconds East, at 407.56 feet to a pk nail set In the easterly boundary line of said Lot 1 -R, from which a 1/2 inch capped steel rod stamped 'LANDES & ASSO." found for the northeast corner thereof bears North 00 degrees 21 minutes 30 seconds East, at 25.66 feet; Thence South 00 degrees 21 minutes 30 seconds West with the easterly boundary line of said Lot 1 -11, 268.23 feet the PLACE OF BEGINNING and containing 6.2161 acres of land, more or less as surveyed by Moak Surveyors, Inc- LOT 2 ALL that certain tract or parcel or land situated In the W. W, WALLACE SURVEY, ABSTRACT N0. 1606, Tarrant county, Texas and being a portion of Lot 2, 'Block 25, SNOW HEIGHTS ADDITION to the Clty of North Richland Hills, Tarrant County, Texas, as recorded . in Volume 388 -130, Page 55, Plat Records and being more particularly described by metes and bounds as follows: BEGINNING at a 112 Inch steel rod found for the southeast comer of said Lot 2, being. the westerly boundary fine of Lot 1 -R, Block. 25, SNOW HEIGHTS ADOMON, an Addition to the City of North Richland HIIJs, Tarrant County, Texas as recorded in Volume 388 - 208, Page 89 of said Plat Records, from which a 1/2 inch capped steel -rod stamped "BRITT;AIN Ik CRAWFORD" found for the southwest corner thereof bears South 00 degrees D1 minutes 57 seconds East, at 54.86 feat; Thence North 89 degrees 38 minutes 30 seconds West with the southerly boundary line of said Lot 2, 199.82 feet to the most southerly southeast comer of a tract described in Deed to the State Of Texas as recorded In Document No. D202192276 and Volume 15816, Page 136 of the Deed Records, Tarrant County, Texas, from which a 4 inch brass disc stamped "TXD0T" found bears South 01 degrees 04 minutes 16 seconds West, gt 4.30 feet, also being the easterly right-of-way line of Rufe Snow drive; THENCE with the easterly and southerly right -of -way lines of said State Of `texas tract as follows: North 01 degrees 04 minutes 16 seconds East with said easterly right -of -way line, 151..01 feet to a 4 Inch brass disc stamped "TXDOT" found; North 45 degrees 14 minutes 55 seconds East continuing with said southeriy right -of -way line of interstate Highway Loop 820, 54.27 feet to a 4 inch brass disc stamped "TXDOT" found; North 87 degrees 45 minutes 27 seconds East continuing with said right -of -way line, 147.55 feet to a 4 inch brass disc stamped "TXDOT" found; . North 83 degrees 18 minutes 34 seconds East continuing with said night -of -way line, 10,97 feet to a 1/2 Inch steel rod found In the westerly boundary line of said Lot 1 -11; Thence South 00 degrees 01 minutes 57 seconds East with the common boundary line between said Lots 1 -R and 2, 197.50 feet the PLACE OF BEGINNING and containing 0.8576 acres of land, more or less as surveyed by Moak Surveyors, Inc.. EXHIBIT A, CONTINUED 0.2523 ACRE TRACT ALL that certain tract or parcel of land situated in the W_ W. r,AL IACE SURVEY, ABSTRACT No. 1606, Tarrant County, Texas and being that same tract as described in Deed to the City of North Richland Hills as recorded in Volume 3907, Page 574 of the Deed Records, Tarrant County, Texas and being more particularly described by metes and bounds as follows: BEGINNING at a 1/2 inch capped steel rod stamped "BRITTAIN 6 CRAWFORD" found for the southwest cornier of Lot I -R, Block 25, SNOW HEIGETS ADDITION, an Addition to the City of North Richland Hills, Tarrant county, Texas as recorded in Volume 386 -208, Page 89, Plat Records, Tarrant County, Texas_ Thence North 89 degrees 38 minutes 30 seconds - West with the southerly boundary line of said City of North Richland Trills tract and the northerly boundary line Block 22, SNOW HEIGHTS ADDITION, an Addition to the City of Borth Richland Hills, Tarrant County, Texas as recorded in Volume 388 -24, Page 34 of said Plat Records, 200.67 feet to a 1/2 inch capped steel rod stamped ^MOAK SURV INC" set ja the apparent easterly right -of -way line of Rufe Snow Drive (a variable width right -of -way) ; THENCE North 01 degrees 04 minutes 16 seconds East with said easterly right -of- way line, at 54.56 feet passing a 4 inch brass disc stamped "TKDOT" found, in all 54.66 feet to the southerly boundary line of Lot 2, Block 25, SNOW HEIGHTS AUDITION to the City of Worth Richland Hills, Tarrant County, Texas as recorded in Volume 368 -130, Page 55 of said Plat Records Thence South 89 degrees 38 minutes 30 seconds East with the southerly boundary luxe of saiJ Lot 2, 199.02 feet 1/2 inch steel rod found in the westerly boundary line of said Lot 1 -Ra Thence South 0P degrees 01 minutes 57 seconds East with said westerly hcuudary line, 54.86 feet the PLACE OF BEGINNING and containing 0.2523 acres of land, more or less as surveyed by Moak surveyors, Inc.. ZONING EXHIBIT INTERSTATE HIGHWAY LOOP 820 BLOCK 25 41 51 FbMa of &9 To M .- —4 —1 d 1. Z ZONT LOTS I-R SNOM AD - AN ADDITION TO' HILLS, TAF 0.2523 AC sr W. W WALLACE NORTH RICHLAND OWNUL/"PUCANT rnr or mm almulm Mm mms FdCBLMM BILLS. TEW, 7*1" BEV-427-,6091 C_tj - M, fnil I.L. NRH My 4 N..b Richlmd HUI&, I— a M tX ZON L(A Lo 7-3260 ACf -z— [om� sf�,�Y e S9SV01Y11" �� , y N 1 1 wea - � �P�'9��5�l4;E � i , .4 VICINITY MA BLOCK 25 41 51 FbMa of &9 To M .- —4 —1 d 1. Z ZONT LOTS I-R SNOM AD - AN ADDITION TO' HILLS, TAF 0.2523 AC sr W. W WALLACE NORTH RICHLAND OWNUL/"PUCANT rnr or mm almulm Mm mms FdCBLMM BILLS. TEW, 7*1" BEV-427-,6091 C_tj - M, fnil I.L. NRH My 4 N..b Richlmd HUI&, I— a M tX ZON L(A Lo 7-3260 ACf -z— EXCERPT FROM THE MINUTES OF THE OCTOBER 20, 201'1 PLANNING AND ZONING COMMISSION MEETING ZC 201 1 -10 Public Hearing and Consideration of a request from the City of North Richland Hills for a Zoning Change from U Institutional and LR Local Retail to CS Community Services (located at the Southeast corner of Rufe Snow Drive and NE Loop 820.) Chairman Shiflet opened the Public Hearing at this time. John Pitstick came forward stating he and Craig Hulse had met with most of the citizens on Corona Monday night. There are no citizens present at the meeting tonight. This is initiated by the City in preparation to put the property back on the tax rolls for redevelopment. Since the new library has been built, the old library has been vacated their portion, the new recreation center will be open in April. The Courts and Citicable are still occupying the building and it may be few years before they move to another location. We felt the timing was right with the construction of Loop 820 due to be completed in 2015. There have been Rufe Snow improvements and the new Quick Trip on the corner so we felt this was the time to recommend rezoning for future development to Community Services. This would allow for typical office, retail and restaurant uses. This would not allow for the heavier commercial or automotive uses. We are recommending a straight zoning request to Community Services. Mr. Pitstick said if the rezoning was successful and new development occurred on any portion of that property, the new land owner or developer to construct a minimum of a 6 foot masonry wall on the back side and a 15 feet landscape buffer on the rear and in the front of the property. Our conversation with many of the property owners along Corona felt that was important. Many of the citizens would recommend an 8 foot wall, but Staff would recommend a straight zoning to the CS zoning and if there are additional issues to be brought up, the City owns the property so we can deed restrict the property if necessary. The other issues brought up by the neighborhood were recommending closing Redondo Street on the east end and the City can work with that since we are the owners of the property. APPROVED Bill Schopper motioned to approve ZC 2011 -10 as a straight zoning change, seconded by Steven Cooper. The motion carried unanimously (7 -0). M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. C.3 SUP 2011-07 Public Hearing and Consideration of a Request from Dick Calvert for a Special Use Permit for a Research Lab with Limited Assembly (located at 8825 'Bud Jensen Dr.) - Ordinance No. 3169 Presenter: John Pitstick, Planning and Development Director CASE SUMMARY: Sey Tec is requesting a Special Use Permit for a 1,300 square foot research lab within a 30,781 square foot building currently zoned O (Office) at 8825 Bud Jensen Drive. Sey Tec is a specialty distributor and proto -type builder of Aerospace Fasteners and related hardware. The SUP request for a research lab is being limited to Sey Tec only, and only for non - hazardous aerospace products limited to a maximum of 1,300 square feet. Sey Tec is currently located in Hurst, off of SH 10. They propose to relocate their entire operations to 8825 Bud Jensen. The bulk of the building will be used as office (19,376 square feet) and accessory storage space (10,105 square feet) which are allowed by right in the 0-1 zone. However, a small area (1,300 square feet) will be used as a research lab and proto -type assembly area that will house four fully- enclosed, computer- controlled, single spindle screw machines. These machines will produce up to 20 parts per week. They are proposing to allow future lease space for office uses with allowance for a secondary wall sign on the building. The existing tilt wall building has been previously used by Health Markets. Landscape buffers currently exist along Bud Jensen Drive. Sey Tec will be installing additional Red Oak trees and a hedge row in front of the parking lot to the east. A replat is running concurrently with this request that will combine the parking area on the east side of the building. Adequate parking is provided for the proposed use. The applicant originally indicated on the site plan the use of 1,200 square feet for the research lab. Recent measurements taken at the site following the Planning & Zoning Commission's consideration indicate that the proposed research lab is actually 1,300 square feet. The proposed lab space is an existing sound proof room previously used by Health Markets for video production. The applicant is agreeing to the P &Z Commission stipulations to limit the research lab to only Sey Tec and only for aerospace products and is requesting approval for 1,300 square feet rather than the previously mentioned 1,200 square feet. EXISTING ZONING: 0-1 Office EXISTING PLATTING: U.I.C.I Addition, Lot 2, Block 1. A request will be heard at tonight's meeting to replat this lot and a portion of the adjacent lot (Lot 1) into a single lot. ADJACENT ZONING /LAND USE: North: U f Institutional East: 0-1 1 Office South: U 1 Institutional West: 0-1 1 Office THOROUGHFARE PLAN: The site has frontage on Bud Jensen Drive, an R2U Local Street. PLANNING & ZONING RECOMMENDATION: The Planning & Zoning Commission met on Thursday, October 22, 2011 and recommended 7 -0 to approve SUP 2011 -07 with the stipulation that the SUP for research lab be limited only to Sey Tec, with only non- hazardous aerospace prototyping and only for 1,200 square feet. STAFF RECOMMENDATION: Staff recommends approval of this SUP 2011 -07 with restrictions limited to only Sey Tec, only non - hazardous aerospace prototyping with a change from 1,200 to 1,300 square feet limit on the research lab. AERIAL PHOTO jo arm - - r: a I t I BU nsen_Gr y ,.t •a . r .'° m y." ! Y y� y�]dI'• LOCATION MAP � J L Mid Cities Blvd PROPERTY OWNER NOTIFICATION NOTICE OF PUBLIC HEADING CITY OF NORTH RICHLAND HILLS PLANNING AND ZONING COMMISSION AND CITY COUNCIL Case #: SUP 2011- 07 Applicant: Dick Calvert Location: 8825 Bud Jensen Dr You are receiving this notice because you are a property owner of record within 200 feet of the property shown on the attached map. Purpose of Public Hearing: A Public Hearing is being held to Consider a request from the City of North Richland Hills for a Zoning Change from U Institutional and LR Local Retail to CS Community Services at the Southeast corner of Rufe Snow Drive and NE Loop 820. Public Hearing Schedule: Public Hearing Dates: PLANNING AND ZONING COMMISSION THURSDAY, OCTOBER 20, 2011 If recommended for approval by the Planning and Zoning Commission, this zoning request will be heard by the City Council on: CITY COUNCIL MONDAY, NOVEMBER 14, 201'1 Both Meeting Times: 7:00 P.M. Both Meeting Locations: CITY COUNCIL CHAMBERS 7301 N. E. LOOP 820 NORTH RICHLAND HILLS, TEXAS If you have any questions or wish to submit a petition or letter concerning the above request, please contact: Planning Department - City of North Richland Hills 7381 (Northeast Loop 820 North Richland Hills, Texas 76180 Phone (817) 427 -6300 Fax (817) 427 -6303 LIST OF NOTIFIED PROPERTY OWNERS Mega We & Health Ins Co Branch Banking & Trust Co Birdville ISIS Attn Glenn W Reed 2000 Interstate Pk fir Ste 400 6199 E Belknap St 9151 Grapevine Hwy Montgomery Al 36109 -5414 Fort Worth Tx 76117 -4204 NRH Tx 761180 -5505 ORDINANCE NO. 3169 SUP 2011 -07 AN ORDINANCE OF THE CITY OF NORTH RICHLAND HILLS, TEXAS, AMENDING THE COMPREHENSIVE PLAN AND THE COMPREHENSIVE ZONING ORDINANCE BY APPROVING A SPECIAL USE PERMIT TO ALLOW A RESEARCH LAB WITH LIMITED ASSEMBLY ON PROPERTY LOCATED AT 8825 'BUD JENSEN DRIVE; ESTABLISHING A PENALTY; PROVIDING FOR PUBLICATION AND PROVIDING AN EFFECTIVE DATE. WHEREAS, notice of a hearing before the Planning and Zoning Commission was sent to real property owners within 200 feet of the property herein described at least 10 days before such hearing; and, WHEREAS, notice of a public hearing before the City Council was published in a newspaper of general circulation in the City at least 15 days before such hearing; and, WHEREAS, public hearings to zone the property herein described were held before both the Planning and Zoning Commission and the City Council, and the Planning and Zoning Commission has heretofore made a recommendation concerning the zone change; and, WHEREAS, the City Council is of the opinion that the zone change herein effectuated furthers the purpose of zoning as set forth in the Comprehensive Zoning Ordinance and is in the best interest of the citizens of the City of North Richland Hills; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF NORTH RICHLAND HILLS, TEXAS: Section 1: THAT the Comprehensive Plan and the Comprehensive Zoning Ordinance are hereby amended by approving a special use permit and site plan to allow a research lab with limited assembly located at 8825 Bud Jensen Drive. Section 2: Any person, firm or corporation violating any provision of the Comprehensive Zoning Ordinance and the zoning map of the City of North Richland Hills as amended hereby shall be deemed guilty of a misdemeanor and upon final conviction thereof fined in an amount not to exceed Two Thousand Dollars ($2,000.00). Each day any such violation shall be allowed to continue shall constitute a separate violation and punishable hereunder. Section 3: The City Secretary is hereby authorized and directed to cause the publication of the descriptive caption and penalty clause of this ordinance two times. Section 4: This ordinance shall be in full force and effect immediately after passage. AND IT IS SO ORDAINED. PASSED AND APPROVED on the 14th day of November, 2011. CITY OF NORTH RICHLAND HILLS In ATTEST: Oscar Trevino, Mayor Patricia Hutson, City Secretary APPROVED AS TO FORM AND LEGALITY: George A. Staples, City Attorney APPROVED AS TO CONTENT: Mahn Pitstick, Planning & Development Director MONUMENT SIGN, RE:41Z -2 2 5' BUIL S .T 10 ' WAT E R EASE BUD JEt (Variable void A. MANUFACTURING LIMITED TO NON- HAZARDOU; B. MANUFACTURING LIMITED TO 1,300 SQUARE FE C. THIS SPECIAL USE PERMIT IS VALID ONLY FOR TRA Z7 3C WILLIE HAROLD GRAY, et ux VOLUME 3347, PAGE 288 ZONED: AG I SITE PLAN SCRLE =1 °= 30' -a" z 211 EXISTING FLOOR PLAN SCALE= 1116 " =1' -Q" WALL SIGNAGIE CONC. TILT WALL ---- - - - - -- I I L---- -___ -J II I II II _ J _ EXISTING SOUTH ELEVATION 2 N.l MONUMENT SIGN RE :4 /Z -2 Z ' 2 5' B UIL DI NG S E:T B AC i 1 o' ' RQ P32 RQ Ex. CITY SIDEWALI! (`I,,,fariabl( TRACT 3CI WILLIE HAROLD GRAY, et ux VOLUME 3347, PA ?E 288 ZONED: AG LANDSCAPE PLAN SCALE= EXCERPT FROM THE MINUTES OF THE OCTOBER 20, 201'1 PLANNING AND ZONING COMMISSION AGENDA SUP 2011 -07 Public Hearing and Consideration of a Request from Dick Calvert for a Special Use Permit for a Research Lab with Limited Assembly (located at 8825 Bud Jensen Dr.) Dick Calvert, Calvert Company Architect, 1001 W. Main Street, Carrollton, TX came forward and said Sey Tec is currently located in Hurst and a company that distributes specialty fasteners primarily to the aircraft industry. They sell to most of major aircraft manufacturers. This building was owned by Health Markets and two thirds finished out for office and one third is unfinished for storage and it will be left this way. Sey Tec sells specialty fasteners and has a research and development lab within the building and will have production of proto -type work. The existing building already has a room set up for video production where this set up will take space. He said it is not a manufacturing facility but they work on specialty products for special needs of their client base. Mr. Calvert said the building is currently on a lot A and does not have adequate parking spaces. There was a fifty space parking lot built on the property next door so this will all be replatted into the lot with the building, which is the next case on the agenda tonight. Clayton Comstock said Sey Tec does propose to add some additional landscaping. The red oaks and hedgerow on the eastern parking lot will be added to the site plan as well. The Special Use Permit is for the research lab which is limited to only 1200 square feet within the existing building. Staff's recommendation is for approval of this case subject to 1200 square feet space being used for research lab and for Sey Tec's stay in the building. Don Bowen asked if we had a definition of exactly what a research lab is. He said he understands what Sey Tec wants to do but does not want the term to be used to get out of hand. John Pitstick said this area is zoned Office and a Special use Permit allowance for a research lab would be appropriate with the Staff's limited recommendation to the 1200 square and Sey Tec's exclusive occupancy. Don Bowen said his thoughts of a research lab could include dangerous chemicals and wants to make sure it is clear. John Pitstick stated we would state limited to strictly to non- hazardous aerospace products and only to the 1200 square feet for Sey Tec only. Chairman Shiflet opened the Public Hearing and asked anyone wishing to speak for or against to come forward. Seeing none, he closed the Public Hearing and entertained a motion. 0aa;19]v1=If Mark Haynes motioned to SLIP 2011 -07 with Staff recommendations, seconded by Mike Benton. The motion as approved unanimously (7 -0). M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject Agenda Item No. D.0 PLANNING AND DEVELOPMENT M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. D.1 RP 2011 -06 Consideration of a Request from The Mega Life and Health Insurance Co. for a Replat to create Lots 1R & 2R, Block 1, U.I.C.I. Addition (located at 8825 Bud Jensen Dr.) Presenter: John Pitstick, Planning and Development Director Case Summary: The applicant, The Mega Life and Health Insurance Company, is requesting a replat of a 16.565 acre tract on Bud Jensen Drive. Specifically, a small portion of Lot 1 is being added to Lot 2 so that all the parking for the building on Lot 2 will be on the same lot. The adjacent parking lot was constructed sometime prior to 2009, apparently to serve the adjacent building. This replat will combine the building and required parking on a single lot to be sold to Sey Tec corporation. Current Zoning: Both lots are currently zoned 0-1 Office. A Special Use Permit is being considered at this meeting for the proposed Lot 2R. Lot 1R will remain 0-1 zoning. Thoroughfare Plan: The lots will front on Bud Jensen Drive, an R2U Local Street. Comprehensive Plan: The Comprehensive Plan depicts Office uses for this area. Staff Review /Rough Proportionality Determination: The Development Review Committee has reviewed the plat and has determined that it complies with Iboth the Zoning and Subdivision Ordinances. No public improvements are necessary for this Subdivision. Planning & Zoning Commission Recommendation: The Planning & Zoning Commission met on Thursday, October 22, 2011 and voted 7 -0 to recommend approval of RP 2011 -06. Staff Recommendation: Approval of replat request RP 2011 -06. LOCATION MAP � I � I i I I ) F --- F - �fFfl i Fil =101 :109:D]1101 REPLAT EXHIBIT eu ---------- �:-p pry j F III vww� ZA. mZ1. A Kam tNE 1 ABLE Z6 CeME TABLE nx— EXCERPT FROM THE MINUTES OF THE OCTOBER 20, 2011 PLANNING AND ZONING COMMISSION MEETING RP 2011 -06 Consideration of a Request from The Mega Life and Health Insurance Co. for a Replat to create Lots 1R & 2R, Block 1, U.I.C.L Addition (located at 8825 Bud Jensen Dr.) Clayton Comstock said the purpose of the replat is to include additional acreage to the Lot 2 R Block 1 on the north side for the purpose of the parking so the numbers can be attributed to the proposed building requirements. Staff recommends approval of this replat. APPROVED Mike Benton motioned to approve the SUP 2411 -06, seconded by Don Bowen. The motion as approved unanimously (7 -0). M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. D.2 RP 2011-05 Consideration of a Request from QuikTrip Corporation for a Replat to create Lot 3R -1, Block 1, North Edgley Addition (located at 7541 Boulevard 26.) Presenter: John Pitstick, Planning and Development Director Case Summary: QuikTrip Corporation is requesting a replat for the purpose of combining two lots in the North Edgley Addition into one lot of 1.7768 acres for the redevelopment of vacant IHOP and Room Store buildings to a new QuikTrip (QT) gas station and convenience store at the southwest corner of Road to the Mall and Boulevard 26. This replat accommodates the newly proposed QuikTrip convenience store. The proposed replat also reflects common access to Boulevard 26 with the Five Star Car Wash property to the north and Harbor Freight property to the west as well as a five -foot dedication of right -of -way for Boulevard 26. Current Zoning: The property was zoned PD (Planned Development) on August 8, 2011 for the QuikTrip gas station and convenience store. Thoroughfare Plan: The lot has access to both Boulevard 26 and Road to the Mall. Boulevard 26 is planned as a six -lane divided principal arterial (P6D) on the City's Thoroughfare Plan. This TxDOT roadway was recently overlayed with asphalt and is not planned to be improved in the near future. Comprehensive Plan: The Comprehensive Plan depicts Retail uses for this area. Retail land uses are intended to permit a variety of retail trade, personal and business services establishments and offices. Staff Review /Rough Proportionality Determination: The Development Review Committee has reviewed the plat and has determined that it complies with both the Zoning and Subdivision Ordinances. The public improvements necessary for the Subdivision include the installation of public water, sanitary sewer and sidewalk facilities. The construction of these public infrastructure items is required for the development of the Subdivision as proposed by the developer. Therefore, the developer will be required to assume 100% of the amount required for such public infrastructure improvements which will be indicated on the final approved public infrastructure construction plans for the Subdivision. As part of this replat Quik Trip will also be burying the above ground utilities along Boulevard 2E. Planning & Zoning Recommendation: The Planning & Zoning Commission met on Thursday, October 22, 2011 and voted 7 -0 to recommend approval of RP 2011 -05. Staff Recommendation: Approval of replat request RP 2011 -05. LOCATION MAP o "j r AERIALPHOTO REPLAT EXHIBIT 0 NER FIVE STAR CAR WAS I LOT 4R NORTH ED � # V I r M RD FLING CWME 388-137. RACE 5. P.R_T_C T. NqIPW Y - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - L - - - - - - - - - - ZONED C-2 -w-730-E. Ell F I LOT Mk 9OOHr 'g pl NORTH MGLEY AD01TgN FOURTH FK�Q 1.7768 ACRL 7SI>-225 UM, TED PARTNERSHIP LOT 1 R, RLQOK I NORTH EUGLEW ADDIDUN Le� soffl� FlXMy SECOND ril-ING (521} d m 0 Ru�[,� NET A. SUDE 952% 1 3� L . XL Pu- S, O I M_ 37. m I. PRTO.T. 6 PJRI 4 T. P. R. ZONED Q-Z p cc p9r¢won a4? T I.T T1 " W-1 = i s - - - - - - - - - - � s�� - - W IT .— U 1� - ------------ T S +8'07'OT W 294-W Or — - — - — - — - — - — - STATE RGHWAY NO. 26-BOULEVARD 26 �l 1-1— H — C H J 111) F= INS RAT RUD . =NTV MERrS nU W__ OA IEb EXCERPT FROM THE MINUTES OF THE OCTOBER 20, 2011 PLANNING AND ZONING COMMISSION MEETING RP 2011 -fly Consideration of a Request from QuikTrip Corporation for a Replat to create Lot 3R -1, Block 1, North Edgley Addition (located at 7541 Boulevard 26.) Jake Barron, 1120 North Industrial Blvd, Euless, TX came forward stating they are combining two lots into one. A couple of things to note that are being done to the plat currently are the old tenants had each dedicated 12.5 feet into an access easement between the two properties as a shared driveway. Quick Trip is abandoning it and becoming one lot because it is useless as it will run right through the middle of the store. You can also see the future access easements we are proposing, closing a drive and reconfiguring a shared drive with Harbor Freight. We are also granting access from the carwash behind the site up to Boulevard 26. We are dedicating 5 feet of additional right -of -way along Boulevard 26 and are anxious to get started on the project. Mike Benton asked if the new concrete between the Quick Trip store and the asphalt at Harbor (Freight meet and be seamless or how will it tie in? Jake Barron said because of economic constraints we will not be able to match their finished floor. We have developed a grading plan and a large portion will be torn out with a gradual transition into the Quick Trip lot. It is only about a foot of transition between the lots. The new portion will be concrete and tie into the asphalt. Clayton Comstock came forward stating that Staff agrees with the proposed replat and recommends approval. ►.1 »:Z�1�1 � �1 Kathy Luppy motioned to approve the RP 2011 -05, seconded by Steven Cooper. The motion as approved unanimously (7 -0). M RH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject Agenda Item No. E.0 PUBLIC WORKS M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. E.1 PW 2011 -019 Approve a Resolution Supporting a Municipal Setting Designation (MSD) Application to the Texas Commission on Environmental Located at 2525 Brennan Avenue, Fort Worth TX - Resolution No. 2011 -033 Presenter: Mike Curtis, Managing Director Summary: Council is being requested to approve a resolution supporting the application to the Texas Commission on Environmental Quality (TCEQ) for a Municipal Setting Designation (MSD) on the property located at 2525 Brennan Avenue, Fort Worth TX. General Descrir)tion: In 2003, HB 3152 created Municipal Setting Designations (MSD). This is a process in which persons addressing environmental impacts to groundwater may be subject to less stringent groundwater investigation and mitigation requirements under the Texas Risk Reduction Program (TRR). A person, typically a developer or property owner, must apply to the Texas Commission on Environmental Quality (TCEQ) for certification of their property as an MSD. This process consists of the following steps: 1. File an application with TCEQ establishing compliance with the eligibility criteria for an MSD. 2. Notify affected municipalities, retail public utilities and private owners of registered water wells. 3. Demonstrate that the property for which the designation is sought is subject to a municipal ordinance or deed restrictions prohibiting potable uses of affected groundwater. 4. Obtain a resolution in support of the application from municipalities and public utilities located within a 5 -mile radius. 5. Satisfy TCEQ (after the CEO -day public comment period) that the application is administratively complete and there are no grounds for denial of the application based on current and future regional water resource needs or obligations. If granted, the applicant will not be required to clean up designated groundwater on their site to drinking water standards. However, other cleanup standards such as inhalation and contact must still be met. This agenda item addresses step number 4 listed above which is to approve a resolution supporting the application to the TCEQ establishing the MSD property. Chevron USA, Inc. is trying to obtain TCEQ approval for a MSD on property located at 2525 Brennan Avenue in the City of Fort Worth. The location of this property results in the 5 mile radius clipping the southwest corner of the city. The attached map furnished by the applicant does indicate 2 potable water wells owned by the City of North Richland Hills 'however both of the wells are closed and have not been used for several years. The attached resolution that Council is being asked to approve indicates the City of North Richland Hills' support. Chevron USA Inc. has indicated that that this is the last resolution needed for their application. Recommendation: To Approve Resolution No. 2011 -033 a 422' dwo 12TW SCAL,E V- 0 1 W G e g� Search 2705 Bee Caves Rit, S!j r.B 330 - Aasun, Texas 78748 - vha.na • SBS- S -W42 - rax, - 512 - 472 -9987 . s.:1 2-9 - �le,.IIIL =.W 2525 BRENNAN AVE 74Y[9 FORT WORTH, Texas E 0 70EQ 76 - 100 r • Yr JD y N RH RESOLUTION NO. 2011-033 A RESOLUTION IN SUPPORT OF THE APPLICATION TO THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY FOR A MUNICIPAL SETTING DESIGNATION A 22.490 ACRE SITE DESCRIBED HEREIN. WHEREAS, on August 9, 2011 the Fort Worth City Council, approved ordinance number 19836 -2011 prohibiting the use of shallow groundwater at a 22.490 acre site in the City of Fort Worth known as 2525 Brennan Avenue, Fort Worth Texas more fully described in Exhibit "A "; and WHEREAS, the City Council of the City of Fort Worth, Texas, made a finding that it is in the best interest of the public and the city to facilitate the efforts of Chevron USA, Inc., to secure a municipal setting designation with the Texas Commission on Environmental Quality (TCEQ) for said Site; and WHEREAS, Applicant has filed an application with the TCEQ for certification of a municipal setting designation for the Site pursuant to Texas Health and Safety Code, Chapter 361, Subchapter W, and has provided notice of such application to the City of North Richland Hills; WHEREAS, Texas Health and Safety Code, ' 361.8065 provides that an application to the TCEQ for a municipal setting designation will not be certified unless the application is supported by a resolution adopted by certain entities, including the city council of each municipality that owns or operates a groundwater supply well located not more than five miles from the property for which the designation is sought; and WHEREAS, the City of North Richland Hills owns or operates groundwater supply wells located not more than five miles from the boundary of said Site; and WHEREAS, Applicant has continuing obligations to satisfy applicable statutory and regulatory provisions concerning groundwater contamination investigation and response actions at the Site; and WHEREAS, the certification of a (Municipal Setting Designation for the Site will not endanger the water supply of the City; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF NORTH RICHLAND HELLS, TEXAS: SECTION 1. The City of North Richland Hills supports Applicant's application to the Texas Commission of Environmental Setting Designation on the Site described in Exhibit A hereto. P_1 r Ib] Id1. ;1 *191 Ay1=01A PASSED AND APPROVED on the 14th day of November, 2011. ►,rid = "6 Patricia Hutson, City Secretary Oscar Trevino, Mayor ►=1 »:T +1►J=I11_RM 1197010 iii FA211lixHi1i1vim George A. Staples, City Attorney Mike Curtis, P.E., Managing Director EXHIBIT A A 22.490 acre tract of land out of the E. Little Survey, abstract No. 954, and the S. K. Smith Survey, abstract No. 1417, same being the remainder of that certain called 25.9 acre tract of land described in a deed from Freehold Property Co. to Gulf Refining Co. and recorded in volume 392, page 413 of the deed records of Tarrant County, Texas, and being more particularly described by metes and bounds as follows to wit: BEGINNING at an iron rod found in the North margin of Brennan Avenue for the Southeast comer of lot 2, block I of the Gorbett Industrial Addition to the City of Fort Worth, recorded in volume 388 -23, at page 98 of the plat records, said rod being the Southwest comer of the herein described tract; THENCE N23 0 59'0 0 0 "E along the East line of lots 1 and 2 and the West line of the herein described tract a distance of 633.49 feet to a 2" iron pipe found in the South right of way line of a railroad spur, for the Northwest comer of the herein described tract; THENCE S71 0 44'20 "E along the South right -of -way line of a railroad spur a distance of 1291.30 feet to an iron rod found for the point of curvature of a curve to the left having a radius of 1654.01 feet; THENCE Easterly along said curve, through a central angle of 12 °14'10 ", an arc distance of353.23 feet to an iron rod found in the West margin of Cold Springs Road for the Northeast comer of this tract; THENCE S32 0 35'14 "W along the West margin of Cold Springs Road a distance of192.88 feet to an iron rod found for an angle point; THENCE S14 11 30'31 "W continuing along the West margin of Cold Springs Road a distance of 383.22 feet to an iron rod found for the point of curvature of a curve to the right having a radius of 92.57 feet; THENCE Southwesterly along said curve, through a central angle of 93 0 40'40 ", an arc distance of 151.35 feet to an iron rod found in the North margin of Brennan Avenue; THENCE N71 0 48'27 "W along the North margin of Brennan Road a distance of398.18 feet to an iron rod found for the Southeast comer of a called 1.331 acre tract of land; THENCE N18 0 18 "03 "E a distance of227.94 feet to an iron rod found for the Northeast comer of a called 1.331 acre tract of land; THENCE N71 °34'38 "W a distance of254.09 feet to an iron rod found for the Northwest comer of a called 1.331 acre tract; THENCE S18 0 15'34 "W a distance of228.62 feet to an iron rod found in the North margin of Brennan Avenue for the Southwest comer of a called 1.331 acre tract; THENCE N71 0 42'42 "W along the North margin of Brennan Avenue a distance of 938.00 feet to the place of beginning and containing 22.490 acres of land, more or less; M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. E.2 PW 2011 -021 Approve a Utility Assembly (820 -U -0508) for the City's Utility Relocations as Part of the North Tarrant Express Project Presenter: Greg VanNieuwenhuize, Assistant Public Works Director Summarv: Council is being asked to approve the necessary documents authorizing Bluebonnet Contractors, the construction arm of North Tarrant Express (Mobility Partners, the developer of the North Tarrant Express Project, to relocate a portion of the City's public utility infrastructure in order for the construction of the North Tarrant Express Project to continue to proceed. General Descrir)tion: Last year, the State of Texas acting through TxDOT entered into a comprehensive development agreement (CDA) with North Tarrant Express Mobility Partners (NTEMP) to design and reconstruct Loop 820 from its 1 -35W interchange to the SH 121/SH 183 interchange and to design and reconstruct SH 121/SH 183 from its interchange with Loop 820 to approximately Murphy Drive/Westpark Way in the Bedford /Euless area. The CDA requires NTEMP to complete the construction of the indicated roadway limits on or prior to December 31, 2015. NTEMP has determined that they will accomplish this task by reconstructing these roadways in sub- sections. The initial sub - sections chosen to be reconstructed are based on the right -of -way having been acquired and any conflicting utilities being relocated in a timely manner. It is important to note that the "Loop 820 section" of the North Tarrant Express (NTE) Project is entirely federal interstate and that the "SH 121/SH 183 interchange to Murphy DrivefWestpark Way section" of the NTE Project is state highway. This is important because on the federal section of the NTE project, the City's utilities are relocated at no expense to the City. However, whenever the City desires an increase in size to any of the City's utilities (called betterments), the City is responsible for the cost of the betterment. On the state highway section of the NTE Project, the City's utilities are relocated at fifty percent (50 %) of the cost of such relocation. Here again, the costs of any betterments in this section are also the sole responsibility of the City. NTEMP has turned over the utility relocation portion of the project to their construction arm, Bluebonnet Contractors (BBC). While BBC is working within the entire NTE corridor (I -35W interchange to Murphy Drive[Westpark Way), they would like to begin relocating NRH's utility infrastructure within the Loop 820 corridor. As this area is on the federal highway section of the project, the City will only be responsible for betterments of the construction and construction - related (design, inspection, testing, etc.) costs of our utility relocations. Over the last year, staff has been working with BBC to determine the extent of the City's utility infrastructure that needs to be relocated. It appears that NRH will be sub - sectioned into 3 — 5 parts. At the August 8, 2011 City Council Meeting, Council approved the Utility Assembly for the relocation of the City's water and wastewater mains on the east side of the interchange (5H 121 & SH 183). The current Utility Assembly, while within the federal portion or the project, will include a number of betterments, therefore, the City will have a financial obligation. All betterments within this corridor were designed to comply with the recently approved Water and Wastewater Capital Improvements Master Plans. These betterments include increasing the size of a number of water mains as well as increasing the number (and size) of water mains that cross Loop 820. Presently, BBC is requesting that the City approve the necessary documents in order for them to relocate the City's utility infrastructure within the Loop 820 corridor. These documents include: • TxDOT's Utility Adjustment Checklist - This document is simply a checklist that TxD ©T requires the developer (NTEMP /BBC) and the utility owner to execute which upon full completion indicates that all of TxD ©T's requirements for utility relocation have been met. • Master Utility Adjustment Agreement - This document is the crux of the utility relocation agreement; it is to be executed by TxDOT, NTEMP, BBC and the City. - This document has been reviewed and approved by the City Attorney. • Cost Estimate for Utility Assembly (820 -U -0508) - This document is the cost estimate for the design and relocation costs of the betterments to the City's utilities within the Loop 820 corridor. • Water & Wastewater (Facility Abandonment - This document authorizes the abandonment of certain utilities (it should be noted that abandoning utilities is fairly routine on infrastructure projects when new utilities are being constructed as replacements and the utilities being abandoned have been reviewed and approved by the Public Works Department's Engineering and Operations Divisions). • Property Affidavit - This document indicates that the City of North Richland Hills is the owner of an easement dedicated as a Water Line Utility Easement. • Utility Joint Use Acknowledgement Reimbursable Utility Adjustment - This document allows the relocated utilities to exist within TxDQT's right -of- way, allows the City to access such utilities and indicates that the costs for utility relocation will be in accordance with the applicable laws of the State of Texas. - This document has also been reviewed and approved by the City Attorney. • Quitclaim Deed - This document quitclaims the City's interest in approximately 5,700 square feet of the Water Line Utility Easement. [The City will be compensated $11,400 ($2.00 per square foot) for this easement.] - This document has also been reviewed and approved by the City Attorney. These documents comprise the majority of the "Utility Assembly (820 -U- 0508)" instrument. Presently, it is estimated that the costs to relocate these City utilities in the Loop 820 corridor is $3,239,846.54 and the City's portion of this amount (betterments) is $421,794.73. After the utilities are relocated and final costs known, BBC will invoice the City for the actual costs. The actual costs are not expected to be greatly different than the indicated amounts. The betterments that are being requested by staff are portions of 3 Utility CIP projects that have been approved in the 201112012 Capital Projects Budget and are in conflict with the North Tarrant Express (NTE) widening project. It will cost the city less to include these betterments during the NTE construction than to come back after the fact to construct the entire utility project. There is sufficient funding in the current Capital Projects Budget (Project Nos. UT0203, UT1207 and UT1208) to cover the City's share (estimated at $421,794.73) of the utility relocation costs. Recommendation: Approve Utility Assembly (820 -U -0508) for the City's Utility Relocations as Part of the North Tarrant Express Project. Enclosures: • Exhibit A • Exhibit B • Exhibit C • Exhibit D • Exhibit E • Exhibit F: • Exhibit G TxDOT's Utility Adjustment Checklist Master Utility Adjustment Agreement Cost Estimate for Utility Assembly (820 -U -0508) Water & Wastewater Facility Abandonment Property Affidavit Utility Joint Use Acknowledgement Reimbursable Utility Adjustment Quitclaim Deed Exhibit A: TxDQT's Utility Adjustment Checklist TxDOT UTILITY ADJUSTMENT CHECKLIST Citv of North Richland Hills �� ► C•�E:3►��IlIJS�l•�F1:? Utility Owner Name: City of North Richland Hills County: Tarrant Jurisdictions: TxDOT Ft. Worth District (City of North Richland Hills) Estimated Doi Iar Amount of Utility Adjustment /Cost to Developer: $2,658,149.86 ROW CSJ No.: 0008 -14 -093 Construction CSJ No.: 0008 -14 -058 Section or Segment Number: NTE — Segment West ® Actual Cost or ❑ Lump Sum (Check one) Federal -Aid ROW Project No.: N/A Alternate Procedure Approval Date: June 23, 2010 Highway Station Limits (To & From): NTE BL Sta. 842 +05 to 957 +46 Description /Scope of Work: This Assembly consists of adjusting approximately 9366 linear feet of water lines and approximately 2570 linear feet of wastewater lines for the City of North Richland Hills. These facilities conflict with the proposed pavement structure for the NTE from approx NTE Utility Base Line Stations 842 +05 to 957 +46 and are being adjusted to comply with the TxDOT Utility Accomodation Rules (UAR). This Assembly is UAR Compiant. 1. Yes ® No ❑ N/A ❑ Approved & current ROW Maps on file with TxDOT? 2. Yes ❑ No ❑ N/A ❑ Is the Utility Adjustment within the Facility ROW limits or directly related to work required within Facility ROW limits? 3. Yes E No ❑ N/A ❑ Are explanations and clarifications included in the transmittal to describe unique conditions affecting the Utility? 4. Yes ® No ❑ N/A ❑ Have (3) identical originals of the Utility Assembly with plans been submitted, of which one original should be color- coded? 5. Yes ® No ❑N /A ❑ Has the Developer's Utility Design Coordinator located on the plans the major items of material listed on the estimate by scaling or stationing? 6. Yes ® No ❑ N/A ❑ Have the existing and proposed Utility facilities been plotted on the ROW map and attached with this submission? 7. Yes ® No ❑ N/A ❑ Have the Utility Adjustments been designed for the Proposed Configuration? 8. Yes ® No ❑ N/A ❑ Has the Utility Owner signed the plans for a Developer Managed MUAA (DM)? 9. Yes ❑ No ❑ N/A ® Has the Utility Owner signed the plans for an Owner Managed (OM) MUAA that allows for the Developer to design for the Utility Adjustment? 10. Yes ❑ No ❑ N/A ® If the agreed sum method has been marked, has a detailed, itemized estimate and matching plans been provided? 11. Yes ® No ❑ N/A ❑ Is the Utility consultant- engineering contract reviewed and approved by the Developer's Utility Manager (UM)? 12. Yes ® No ❑ N/A ❑ Are all forms submitted complete and correct for the situation /circumstance of the Utility Adjustment? 13. Yes ❑ No ❑ N/A ® Has the Statement Covering Utility Construction Contract Work (TxDOT Form ROW -U -48) been submitted far work completed by an owner - managed contractor? 14. Yes ® No ❑ N/A ❑ Is the Utility Assembly folded so as to fit into an 8.5" x 11" file? 15. Yes ❑ No ® N/A ❑ Are any of the proposed Utility facilities installed longitudinally inside the control of access, excluding areas near ramp terminals? 16. Yes ❑ No ❑ N/A ® Has Barlow's Formula information been submitted for unencased high- pressure pipelines? The following information is required to complete Barlow's formula. S =Yield Strength, Wall thickness = t, Outside Diameter = D, Design Factor = F. Maximum Operating Pressure must also be given and compared to the pressure calculated with Barlow's. The Barlow calculation must be shown with the submission. 17. Yes ❑ No ❑ N/A ® If the pipeline is unencased, is there adequate coating, wrapping and cathodic protection? 18. Yes ® No ❑ N/A ❑ Are replacement Utility ROW charges justified and supported? 19. Yes ® No ❑ N/A ❑ If yes to #18, is an affidavit and an ownership instrument (i.e. easement, license or deed) included? 20. Yes ® No ❑ N/A ❑ Do Utility Adjustment plans demonstrate Utility Accommodation Rules compliance, including minimum depth of cover from proposed grade and casing requirements? 21. Yes ®No ❑ N/A ❑ Is the proposed Utility Adjustment shown on the plans with stationing and offsets from centerline, edge of pavement, or ROW lines? 22. Yes ® No ❑ N/A ❑ Are backfill requirements met? 23. Yes ❑ No ❑ N/A ® Is a schedule of work provided by /required of the Utility Company if the Utility Adjustment is large and complex? 24. Yes ® No ❑ N/A ❑ Is a Betterment credit applicable? 25. Yes ® No ❑ N/A ❑ If yes to #24, is the credit calculated and applied properly? 26. Yes ❑ No ❑ N/A ❑ Is accrued depreciation credit applicable? 27. Yes ❑ No ❑ N/A ❑ If accrued depreciation is applicable, is credit applied properly? 28. Yes ❑ No ❑ N/A ® Is salvage credit applicable? 29. Yes ❑ No ❑ N/A ❑ If salvage credit applicable, is the credit applied properly? 30. Yes ® No ❑ N/A ❑ Are overheads and loadings checked for reasonableness? 31. Yes ® No ❑ N/A ❑ Are cost estimate extensions checked? 32. Yes ® No ❑ N/A ❑ Is a correct & recorded Quitclaim Deed (TxDOT Form ROW -N -30) submitted, if required? 33. Yes ® No ❑ N/A ❑ Has a recommendation for approval been stated on the transmittal memorandum? 34. Yes ® No ❑ N/A ❑ Is the Utility Adjustment in only one jurisdiction? 35. Yes ❑ No ❑ N/A ® If the Utility Adjustment is in more than one jurisdiction, have the percentages in each jurisdiction been detailed in the transmittal memorandum? 36. Yes ® No ❑ N/A ❑ Are the sign -off forms attached? 37. Yes ® No ❑ N/A ❑ Have the plans for the Utility Adjustment been sealed by a Registered Professional Engineer? Prepared by: Utility Design Coordinator Approved by: Director of Utilities Recommended for Approval by: Quality Control Date: Comments: Exhibit B: (Master Utility Adjustment Agreement MASTER UTILITY ADJUSTMENT AGREEMENT (Developer Managed) Agreement No.: 820 -U -0508 THIS AGREEMENT, by and between NTE Mobility Partners LLC, hereinafter identified as the "Developer ", Bluebonnet Contractors, LLC, hereinafter identified as the "Design -Build Contractor" and City of North Richland Hills, hereinafter identified as the "Owner ", is as follows: WITNESSETH WHEREAS, the STATE OF TEXAS, acting by and through the Texas Department of Transportation, hereinafter identified as "TxDOT ", is authorized to design, construct, operate, maintain, and improve turnpike projects as part of the state highway system throughout the State of Texas, all in conformance with the provisions of Chapters 203 and 223, Texas Transportation Code, as amended; and WHEREAS, the TxDOT proposes to construct a turnpike project identified as the North Tarrant Express Project (the "Facility "); and WHEREAS, pursuant to that certain Comprehensive Development Agreement by and between TxDOT and the Developer with respect to the Facility (the "CDA "), the Developer has undertaken the obligation to design, construct, finance, operate and maintain the Facility; and WHEREAS, the Developer's duties pursuant to the CDA include causing the removal, relocation, or other necessary adjustment of existing utilities impacted by the Facility (collectively, "Adjustment "), subject to the provisions herein; and WHEREAS, pursuant to that certain Design -Build Contract by and between the Developer and the Design -Build Contractor with respect to the Facility (the "Design -Build Contract "), the Design -Build Contractor has undertaken the obligation to design and construct the Facility, which includes the Adjustment at Design - Builder's expense, subject to the provisions herein; and WHEREAS, the Facility may receive Federal funding, financing and /or credit assistance; and WHEREAS, the Design -Build Contractor has notified the Owner that certain of its facilities and appurtenances (the "Owner Utilities ") are in locational conflict with the Facility (and /or with the "Ultimate Configuration" of the Facility), and the Owner has requested that the Developer and the Design -Build Contractor undertake the Adjustment of the Owner Utilities pursuant to §203.092, Texas Transportation Code, as amended, and Rule 21.23 of Title 43, as necessary to accommodate the Facility (and the Ultimate Configuration); and WHEREAS, the Owner Utilities to adjust seven (7) water distribution lines totaling approximately 9366 linear feet and three (3) wastewater lines totaling approximately 2570 linear feet for the City of North Richland Hills. These facilities conflict with the proposed pavement structure for the NTE from approx NTE Utility Base Line Stations 842 +05 to 957 +46. The adjustment will consist of replacing these facilities with like -kind. By increasing the depth of cover and moving facilities to the new ROW limits we will fulfill compliance to the Utility Accommodation Rules (UAR). and WHEREAS, the Owner recognizes that time is of the essence in completing the work contemplated herein; and WHEREAS, the Developer, the Design -Build Contractor and the Owner desire to implement the Adjustment of the Owner Utilities by entering into this Agreement. ►-ITC1N44L'►I40 NOW, THEREFORE, in consideration of these premises and of the mutual covenants and agreements of the parties hereto and other good and valuable consideration, the receipt and sufficiency of which being hereby acknowledged, the Developer, the Design -Build Contractor and the Owner agree as follows: 1. Preparation of Plans. [Cheek one box that applies:] The Design -Build Contractor has hired engineering firm(s) acceptable to the Owner to perform all engineering services needed for the preparation of plans, required specifications, and cost estimates, attached hereto as Exhibit A (collectively, the "Plans "), for the proposed Adjustment of the Owner Utilities. The Design -Build Contractor represents and warrants that the Plans will conform to the most recent Utility Accommodation Rules issued by the Texas Department of Transportation ( "TxDOT"), set forth in 43 Tex. Admin. Code Part 1, Chapter 21, Subchapter C et seq., (the "UAR "). Owner will approve the Plans if they conform to the UAR and comply with Owner's "standards" described in Paragraph 3 (d). ❑ The Owner has provided plans, required specifications and cost estimates, attached hereto as Exhibit A (collectively, the "Plans "), for the proposed Adjustment of the Owner Utilities. The Owner represents and warrants that the Plans conform to the UAR. By its execution of this Agreement, the Developer and the Design -Build Contractor hereby approve the Plans. The Owner also has provided to the Design -Build Contractor a utility plan view map illustrating the location of existing and proposed utility facilities on the Developer's right of way map of the Facility. With regard to its preparation of the Plans, the Owner represents as follows [check one box that applies]: ❑ The Owner's employees were utilized to prepare the Plans, and the charges therefore do not exceed the Owner's typical costs for such work. ❑ The Owner utilized consulting engineers to prepare the Plans, and the fees for such work are not based upon a percentage of construction costs. Further, such fees encompass only the work necessary to prepare the Plans for Adjustment of the Owner Utilities described herein, and do not include fees for work done on any other project. The fees of the consulting engineers are reasonable and are comparable to the fees typically charged by consulting engineers in the locale of the Facility for comparable work for the Owner. Z. Review by TxDOT. The parties hereto acknowledge and agree as follows: (a) Upon execution of this Agreement by the Developer, the Design -Build Contractor and the Owner, the Developer will submit this Agreement, together with the attached Plans, to TxDOT for its review and approval as part of a package referred to as a "Utility Assembly". The parties agree to cooperate in good faith to modify this Agreement and /or the UAAA and its corresponding Plans, as necessary and mutually acceptable to all parties, and to respond to any comments made by TxDOT thereon. Without limiting the generality of the foregoing, (i) the Owner agrees to respond (with comment and /or acceptance) to any modified Plans for a specific Utility Adjustment and /or Agreement prepared by the Design - Build Contractor in response to TxDOT comments within fourteen (14) business days after receipt of such modifications; and (ii) if the Owner originally prepared the Plans for the specific Utility Adjustment, the Owner agrees to modify the Plans in response to TxDOT comments and to submit such modified Plans to the Design -Build Contractor for its comment and /or approval (and re- submittal to TxDOT for its comment and/or approval) within fourteen (14) business days after receipt of TxDOT's comments. The Owner's failure to timely respond to any modified Plans submitted by the Design -Build Contractor pursuant to this paragraph shall be deemed the Owner's approval of same. If the Owner fails to timely prepare modified Plans which are its responsibility hereunder, then the Design -Build Contractor shall have the right to modify the Plans for the Owner's approval as if the Design -Build Contractor had originally prepared the Plans. The Design -Build Contractor shall be responsible for providing Plans to and obtaining comments on and approval of the Plans from the Developer. Approval of the Plans by the Design -Build Contractor shall be deemed to be Developer approval of the Plans. The process set forth in this paragraph will be repeated until the Owner, the Developer, the Design -Build Contractor and TxDOT have all approved this Agreement and accepted the Plans for a specific Utility Adjustment. (b) The parties hereto acknowledge and agree that TxDOT's review, comments, and /or approval of a Utility Assembly or any component thereof is solely for the purpose of ascertaining matters of particular concern to TxDOT, and TxDOT has, and by its review, comments and /or approval of such Utility Assembly or any component thereof undertakes, no duty to review the Utility Assembly or its components for their quality or for the adequacy of adjusted utility facilities (as designed) for the purposes for which they are intended to be used or for compliance with law or applicable standards (other than TxDOT requirements). The City of North Richland Hills shall determine if such Utility Adjustment adheres to their requirements and shall have reasonable authority to approve or reject the construction of the Utility Adjustment. 3. Design and Construction Standards. All design and construction performed for the Adjustment work which is the subject of this Agreement shall comply with and conform to the following: (a) All applicable local (including the City of North Richland Hills' Public Works Design Manual) and state laws, regulations, decrees, ordinances and policies, including the UAR, the Utility Manual issued by TxDOT (to the extent its requirements are mandatory for the Adjustment necessitated by the Facility, as communicated to the Owner by the Developer, the Design -Build Contractor or TxDOT), the requirements of the CDA, and the policies of TxDOT; (b) All Federal laws, regulations, decrees, ordinances and policies applicable to projects receiving Federal funding, financing and /or credit assistance (including without limitation 23 CFR 545 Subparts A and B, incorporated herein by this reference); (c) The terms of all governmental permits or other approvals, as well as any private approvals of third parties necessary for such work; and (d) The standard specifications, standards of practice, and construction methods (collectively, "standards ") which the Owner customarily applies to utility facilities comparable to the Owner Utilities that are constructed by the Owner or for the Owner by its contractors at the Owner's expense, which standards are current at the time this Agreement is signed by the Owner, and which the Owner has submitted to the Design -Build Contractor in writing. (e) Upon completion of construction of each specific Utility Adjustment, the Design -Build Contractor will provide "As Builts" (including Plans and Specifications). All "As Builts" will be submitted in GIS format. (f) Upon completion of construction of each specific Utility Adjustment, the Owner shall be provided with a 2 -Year Maintenance Bond. Such design and construction also shall be consistent and compatible with (i) the Developer's and the Design -Build Contractor's current design and construction of the Facility, (ii) the "Ultimate Configuration" for the Facility, and {iii} any other utilities being installed in the same vicinity. The Owner acknowledges receipt from the Design -Build Contractor of Facility plans and Ultimate Configuration documents as necessary to comply with the foregoing. In case of any inconsistency among any of the standards referenced in this Agreement, the most stringent standard shall apply 4. Resvonsibility for Costs of Adiustment Work. With the exception of any Betterment (hereinafter defined), the parties shall allocate the cost of any Adjustment between themselves as identified in Exhibit A and in accordance with § 203.092, Texas Transportation Code. An allocation percentage may be determined by application of an Eligibility Ratio, if appropriate, as detailed in Exhibit A. TxDOT shall have no liability to the Owner for any such costs. The Owner expressly acknowledges that it shall be entitled to compensation only from the Design -Build Contractor for any Adjustment costs for the Owner Utilities covered by this Agreement, including costs with respect to real property interests (either acquired or relinquished), and specifically acknowledges that it shall not be entitled to compensation or reimbursement from TxDOT or the State of Texas. 5. Construction by the Design -Build Contractor. (a) The Owner hereby requests that the Design -Build Contractor perform the construction necessary to adjust the Owner Utilities and the Design -Build Contractor hereby agrees to perform such construction. All construction work hereunder shall be performed in a good and workmanlike manner, and in accordance with the Plans (except as modified pursuant to Paragraph 16). (b) The Design -Build Contractor shall retain such contractor or contractors as are necessary to adjust the Owner Utilities, in accordance with the CDA. (c) The Design -Build Contractor shall obtain all permits necessary for the construction to be performed by the Design -Build Contractor hereunder, and the Owner shall cooperate in that process as needed. (d) The Design -Build Contractor shall notify the City of North Richland Hills 48 hours prior to the construction of any of the Utility Adjustments. 6. Reimbursement of Owner's Indirect Costs. (a) Design -Build Contractor agrees to reimburse the Owner its share of the Owner's indirect costs (e.g., engineering, inspection, stand -by pay, testing, ROW) as identified in Exhibit A. When requested by the Owner, monthly progress payments will be made. The monthly payment will not exceed 80 of the estimated indirect work done to date. Once the indirect work is complete, final payment of the eligible indirect costs will be made. Intermediate payments shall not be construed as final payment for any items included in the intermediate payment. (b) The Owner's indirect costs associated with Adjustment of the Owner Utilities shall be developed pursuant to the method checked and described below [check only one box]: (1) Actual related indirect costs accumulated in accordance with (i) a work order accounting procedure prescribed by the applicable Federal or State regulatory body, or (ii) established accounting procedure developed by the Owner and which the Owner uses in its regular operations or, ❑ (2) The agreed sum of $ ("Agreed Sum ") as supported by the analysis of the Owner's estimated costs attached hereto as part of Exhibit A; or (c) All indirect costs charged to the Design -Build Contractor by the Owner shall be reasonable and shall be computed using rates and schedules not exceeding those applicable to similar work performed by or for the Owner at the Owner's expense. Design -Build Contractor's performance of the Adjustment work hereunder and payment of the Design -Build Contractor's share of the Owner's costs pursuant to this Agreement, if applicable, shall be full compensation to the Owner for all costs incurred by the Owner in Adjusting the Owner Utilities (including without limitation costs of relinquishing and/or acquiring right of way), and TxDOT shall have no liability to the Owner for any such costs. (d) Eligible Owner indirect costs shall include only those authorized under 23 C.F.R. Part 645, Subpart A. The Owner agrees that costs referenced in 23 C.F.R. Section 645.117 (d) (2) are not eligible for reimbursement. These regulations can be found at: http: / /www.access.epo.eov /nara /cfr /waisidx 04/23cfr645 04.html 7. Advancement of Funds by Owner for Construction Costs. (a) Advancement of Owner's Share of Estimated Costs Exhibit A shall identify all estimated engineering and construction - related costs, including labor, material, equipment and other miscellaneous construction items. Exhibit A shall also identify the Owner's and Design -Build Contractor's respective shares of the estimated costs. The Owner shall advance to the Design -Build Contractor its allocated share of the estimated costs for construction and engineering work to be performed by Design -Build Contractor, in accordance with the following terms: ® The adjustment of the Owner's Utilities does not require advancement of fu nds. ❑ The adjustment of the Owner's Utilities does require advancement of funds and the terms agreed to between the Design -Build Contractor and Owner are listed below. [insert terms of advance funding to be agreed between Design -Build Contractor and Owner.] (b) Adjustment Based on Actual Costs or Agreed Sum [Check the one appropriate provision]: The Owner is responsible for its share of the Design -Build Contractor's actual cost for the Adjustment, including the identified Betterment. Accordingly, upon completion of all Adjustment work to be performed by both parties pursuant to this Amendment, (i) the Owner shall pay to the Design -Build Contractor the amount, if any, by which the actual cost of the Betterment (as determined in Paragraph 9 (b)) plus the actual cost of Owner's share of the Adjustment (based on the allocation set forth in Exhibit A) exceeds the estimated cost advanced by the Owner, or (ii) the Design -Build Contractor shall refund to the Owner the amount, if any, by which such advance exceeds such actual cost, as applicable. ❑ The Agreed Sum is the agreed and final amount due for the Adjustment, including any Betterment, under this Agreement. Accordingly, no adjustment (either up or down) of such amount shall be made based on actual costs. 8. Invoices. Each invoice submitted 'by the Owner shall be prepared in the form and manner prescribed by 23 C.FR. Part 645, Subpart A. On invoices prepared by either the Owner or the Design -Build Contractor, all costs developed using the "Actual Cost" method shall be itemized in a format allowing for comparisons to the approved Estimates, including listing each of the services performed, the amount of time spent and the date on which the service was ; performed. The original and three (3) copies of each invoice, together with (1) such supporting information to substantiate all invoices as reasonably requested, and (2) such waivers and releases of liens as the other party may reasonably require, shall be submitted to the other party at the address for notices stated in Paragraph 22, unless otherwise directed pursuant to Paragraph 22. The Owner and the Design -Build Contractor shall make commercially reasonable efforts to submit final invoices not dater than one hundred twenty (120) days after completion of work. The Owner and the Design -Build Contractor hereby acknowledge and agree that any costs not submitted to the other party within eighteen months following completion of all Adjustment work to be performed by the parties pursuant to this Agreement shall be deemed to have been abandoned and waived. 9. Betterment and Salvage. (a) For purposes of this Agreement, the term "Betterment" means any upgrading of an Owner Utility being adjusted that is not attributable to the construction of the Facility and is made solely for the benefit of and at the election of the Owner, including but not limited to an increase in the capacity, capability, efficiency or function of the adjusted Utility over that provided by the existing Utility facility or an expansion of the existing Utility facility; provided, however, that the following are not considered Betterments: (i) any upgrading which is required for accommodation of the Facility; (ii) replacement devices or materials that are of equivalent standards although not identical; (iii) replacement of devices or materials no longer regularly manufactured with the next highest grade or size; (iv) any upgrading required by applicable laws, regulations or ordinances; (v) replacement devices or materials which are used for reasons of economy (e.g., non- stocked items may be uneconomical to purchase); or (vi) any upgrading required by the Owner's written "standards" meeting the requirements of Paragraph 3(d). {Include the following for fiber optic Owner Utilities only) Extension of an Adjustment to the nearest splice boxes shall not be considered a Betterment if required by the Owner in order to maintain its written telephony standards. Any upgrading required by the Owner's written "standards" meeting the requirements of Paragraph 3(d) shall be deemed to be of direct benefit to the Facility. (b) It is understood and agreed that neither the Developer nor the Design - Build Contractor shall pay for any Betterments and that the Owner shall be solely responsible therefore. No Betterment may be performed hereunder which is incompatible with the Facility or the Ultimate Configuration or which cannot be performed within the other constraints of applicable law, any applicable governmental approvals, and the requirements imposed on the Developer by the CDA, including without limitation the scheduling requirements thereunder. Accordingly, the parties agree as follows [check one box that applies, and complete if appropriate]: The Adjustment of the Owner Utilities pursuant to the Plans does not ❑ include any Betterment. ® The Adjustment of the Owner Utilities pursuant to the Plans includes Betterment to the Owner Utilities by reason of constructing four ( betterment facilities for the City of North Richland Hills totaling approximately 1353 linear feet (two upsized lines from 8" to 16" and two new facilities). The estimated cost for these facilities is 581,696.78, which will be billed to the City of North Richland Hills. The Design -Build Contractor has provided to the Owner comparative estimates for (i) all work to be performed by the Design -Build Contractor pursuant to this Agreement, including work attributable to the Betterment, and (ii) the cost to perform such work without the Betterment, which estimates are hereby approved by the Owner. The estimated cost of the Design -Build Contractor's work hereunder which is attributable to Betterment is $581.696.78, calculated by subtracting (ii) from (i). The percentage of the total cost of the Design -Build Contractor's work hereunder which is attributable to Betterment is 26.36 %, calculated by subtracting (ii) from (i), which remainder is divided by (i). (c) If Paragraph 9 (b) identifies Betterment, the Owner shall advance to the Design -Build Contractor, at least fourteen (14) business days prior to the date scheduled for commencement of construction for Adjustment of the Owner Utilities, the estimated cost attributable to Betterment as set forth in Paragraph 9(b).. Should the Owner fail to advance payment to the Design -Build Contractor fourteen (14) business days prior to commencement of the Adjustment construction, the Design -Build Contractor shall have the option of commencing and completing (without delay) the Adjustment work without installation of the applicable Betterment. [1f Paragraph 9(b) identifies Betterment, check the one appropriate provision]: ❑ The estimated cost stated in Paragraph g(b) is the agreed and final amount due for Betterment hereunder, and accordingly no adjustment (either up or down) of such amount shall be made based on actual costs. ® The Owner is responsible for the Design -Build Contractor's actual cost for the identified Betterment. Accordingly, upon completion of all Adjustment work to be performed by both parties pursuant to this Agreement, (i) the Owner shall pay to the Design -Build Contractor the amount, if any, by which the actual cost of the Betterment (determined as provided below in this paragraph) exceeds the estimated cost advanced by the Owner, or (ii) the Design -Build Contractor shall refund to the Owner the amount, if any, by which such advance exceeds such actual cost, as applicable. Any additional payment by the Owner shall be due within sixty (60) calendar days after the Owner's receipt of the Design -Build Contractor's invoice therefor, together with supporting documentation; any refund shall be due within sixty (60) calendar days after completion of the Adjustment work hereunder. The actual cost of Betterment incurred by the Design -Build Contractor shall be calculated by multiplying (i) the Betterment percentage stated in Paragraph 9(b), by (ii) the actual cost of all work performed by the Design -Build Contractor pursuant to this Agreement (including work attributable to the Betterment), as invoiced by the Design -Build Contractor to the Owner. (d) If Paragraph 9(b) identifies Betterment, the amount of Betterment in Owner's indirect costs shall be determined by applying the percentage of the Betterment calculated in Paragraph 9(b). The Owner's invoice to the Design -Build Contractor for the Design -Build Contractor's share of the Owner's indirect costs shall credit the Design -Build Contractor with any Betterment amount determined pursuant to this Paragraph 9(d). (e) For any Adjustment from which the Owner recovers any materials and /or parts and retains or sells the same, after application of any applicable Betterment credit, the Owner's invoice to the Design -Build Contractor for its costs shall credit the Design -Build Contractor with the salvage value for such materials and/or parts, determined in accordance with 23 C.F.R. Section 645.105(j). (f) The determinations and calculations of Betterment described in this Paragraph 9 shall exclude right of way acquisition costs. Betterment in connection with right -of -way acquisition is addressed in Paragraph 15. 10. Management of the Adjustment Work. The Design -Build Contractor will provide project management during the Adjustment of the Owner Utilities. (a) If the Owner determines it necessary, the Design -Build Contractor shall schedule and conduct a Pre -Bid Conference during the advertisement period of each specific Utility Adjustment. (b) The contractor selected to conduct the necessary work for each specific Utility Adjustment shall be approved by the Owner prior to any such work. (c) Prior to any construction for each specific Utility Adjustment, the Design - Build Contractor shall schedule and conduct a Pre- Construction Conference. 11. Utility Investigations. At the Design -Build Contractor's request, the Owner shall assist the Design -Build Contractor in locating any Utilities (including appurtenances) which are owned and/or operated 'by Owner and may be impacted by the Facility. Without limiting the generality of the foregoing, in order to help assure that neither the adjusted Owner Utilities nor existing, unadjusted utilities owned or operated by the Owner are damaged during construction of the Facility, the Owner shall mark in the field the location of all such utilities horizontally on the ground in advance of Facility construction in the immediate area of such utilities. 12. Inspection and Acceptance bra the Owner. (a) Throughout the Adjustment construction hereunder, the Owner shall provide adequate inspectors for such construction. The work shall be inspected by the Owner's inspector(s) at least once each working day, and more often if such inspections are necessary for prudent installation. Further, upon request by the Design -Build Contractor or its contractors, the Owner shall furnish an inspector at any reasonable time in which construction is underway pursuant to this Agreement, including occasions when construction is underway in excess of the usual forty (40) hour work week and at such other times as reasonably required. The Owner agrees to promptly notify the Design -Build Contractor of any concerns resulting from any such inspection. (b) The Owner shall perform a final inspection of the adjusted Owner Utilities, including conducting any tests as are necessary or appropriate, within ten (10) business days after completion of construction hereunder. The Owner shall accept such construction if it is consistent with the performance standards described in Paragraph 3, by giving written notice of such acceptance to the Design -Build Contractor within said ten (10) day period. If the Owner does not accept the construction, then the Owner shall, not later than the expiration of said ten (10) day period, notify the Design -Build Contractor in writing of its grounds for non - acceptance and suggestions for correcting the problem, and if the suggested corrections are justified, the Design -Build Contractor will comply. The Owner shall re- inspect any revised construction (and re -test if appropriate) and give notice of acceptance, not later than ten (10) business days after completion of corrective work. The Owner's failure to inspect and/or to give any required notice of acceptance or non- acceptance within the specified time period shall be deemed acceptance. (c) From and after the Owner's acceptance (or deemed acceptance) of an adjusted Owner Utility, the Owner agrees to accept ownership of, and full operation and maintenance responsibility for, such Owner Utility. 13. Design Changes. The Developer and the Design -Build Contractor will be responsible for additional Adjustment design and the Design -Build Contractor will be responsible for additional construction costs necessitated by design changes to the Facility, upon the terms specified herein. 14. Field Modifications. No field modifications shall be made without the prior approval of the Owner, which shall not be unreasonably withheld. When the Owner has approved a field modification, the Developer and the Design -Build Contractor shall ,provide the Owner with documentation of any field modifications, including Utility Adjustment Field Modifications as well as minor changes described in Paragraph 16 (b), occurring in the Adjustment of the Owner Utilities. 15. Real Pror)erty Interests. (a) The Owner has provided, or upon execution of this Agreement shall promptly provide to the Design -Build Contractor, documentation acceptable to TxDOT indicating any right, title or interest in real property claimed by the Owner with respect to the Owner Utilities in their existing locations). Such claims are subject to TxDOT's approval as part of its review of the Developer and Design -Build Contractor Utility Assembly as described in Paragraph 2. Claims approved by TxDOT as to rights or interests are referred to herein as "Existing Interests ". (b) If acquisition of any new easement or other interest in real property ( "New Interest") is necessary for the Adjustment of any Owner Utilities, then the Owner shall be responsible for undertaking such acquisition. The Owner shall implement each acquisition hereunder expeditiously so that related Adjustment construction can proceed in accordance with the Developer's and the Design -Build Contractor's Facility schedules. The Design -Build Contractor shall be responsible for its share (as specified in Paragraph 4) of the actual and reasonable acquisition costs of any such New Interest (including without limitation the Owner's reasonable overhead charges and reasonable legal costs as well as compensation paid to the landowner), excluding any costs attributable to Betterment as described in Paragraph 15(c), and subject to the provisions of Paragraph 15(e); provided, however, that all acquisition costs shall be subject to the Design -Build Contractor's prior written approval. Eligible acquisition costs shall be segregated from other costs on the Owner's estimates and invoices. Any such New Interest shall have a written valuation and shall be acquired in accordance with applicable law. (c) The Design -Build Contractor shall pay its share only for a replacement in kind of an Existing Interest (e.g., in width and type), unless a New Interest exceeding such standard (i) is required in order to accommodate the Facility or by compliance with applicable law, or (ii) is called for by the Design -Build Contractor in the interest of overall Facility economy. Any New Interest which is not the Design -Build Contractor's responsibility pursuant to the preceding sentence shall be considered a Betterment to the extent that it upgrades the Existing Interest which it replaces, or in its entirety if the related Owner Utility was not installed pursuant to an Existing Interest. Betterment costs shall be solely the Owner's responsibility. (d) For each Existing Interest located within the final Facility right of way, upon completion of the related Adjustment work and its acceptance by the Owner, the Owner agrees to execute a quitclaim deed or other appropriate documentation relinquishing such Existing Interest to TxDOT, unless the affected Owner Utility is remaining in its original location or is being reinstalled in a new location within the area subject to such Existing Interest. All quitclaim deeds or other relinquishment documents shall be subject to TxDOT's approval as part of its review of the Utility Assembly as described in Paragraph 2. For each such Existing Interest relinquished by the Owner, the Design -Build Contractor shall do one of the following to compensate the Owner for such Existing Interest, as appropriate: (e) (i) If the Owner acquires a New Interest for the affected Owner Utility, the Design -Build Contractor shall reimburse the Owner for the Design -Build Contractor's share of the Owner's actual and reasonable acquisition costs in accordance with Paragraph 15(b), subject to Paragraph 15(c); or (ii) If the Owner does not acquire a New Interest for the affected Owner Utility, the Design -Build Contractor shall compensate the Owner for the Design -Build Contractor's share of the fair market value of such relinquished Existing Interest, as mutually agreed between the Owner and the Design -Build Contractor and supported by a written valuation. The compensation provided to the Owner pursuant to either subparagraph (i) or subparagraph (ii) above shall constitute complete compensation to the Owner for the relinquished Existing Interest and any New Interest, and no further compensation shall be due to the Owner from the Developer, the Design -Build Contractor or TxDOT on account of such Existing Interest or New Interests). (f) The Owner shall execute a Utility Joint Use Acknowledgment (ROW -U- JUAA) for each Adjustment where required pursuant to TxDOT policies. All Utility Joint Use Acknowledgments shall be subject to TxDOT approval as part of its review of the Utility Assembly as described in Paragraph 2. 16. Amendments and Modifications. This Agreement may be amended or modified only by a written instrument executed by the parties hereto, in accordance with Paragraph 16(a) or Paragraph 16(b) below, (a) Except as otherwise provided in Paragraph 16(b), any amendment or modification to this Agreement or the Plans attached hereto shall be implemented by a Utility Adjustment Agreement Amendment ( "UAAA ") in the form of Exhibit B hereto (TxDOT- CDA- U- 35A -DM). The UAAA form can be used for a new scope of work with concurrence of the Developer, the Design -Build Contractor and TxDOT as long as the Design and Construction responsibilities have not changed. Each UAAA is subject to the review and approval of TxDOT, prior to its becoming effective for any purpose and prior to any work being initiated thereunder. The Owner agrees to keep and track costs for each UAAA separately from other work being performed. (b) For purposes of this Paragraph 16(b), "Utility Adjustment Field Modification" shall mean any horizontal or vertical design change from the Plans included in a Utility Assembly previously approved by TxDOT and the Owner, due either to design of the Facility or to conditions not accurately reflected in the approved Utility Assembly (e.g., shifting the alignment of an S in. water line to miss a modified or new roadway drainage structure). A Utility Adjustment Field Modification agreed upon by the Developer, the Design -Build Contractor and the Owner does not require a UAAA, provided that the modified Plans have been submitted to TxDOT for its review and comment. A minor change (e.g., an additional water valve, an added utility marker at a ROW line, a change in vertical bend, etc.) will not be considered a Utility Adjustment Field Modification and will not require a UAAA, but shall be shown in the documentation required pursuant to Paragraph 14. 17. Relationship of the Parties. (a) Although some of the duties described in this Aereement are assigned specifically to either the Developer or the Desien -Build Contractor. the oblieation under this Aereement to design and construct the Facilitv at the Developer's or Desien -Build Contractor's expense. includine the Adiustment. is iointiv shared by the Develooer and the Desien -Build Contractor. To the extent Design -Build Contractor fails to oerform an express dutv or oblieation of this Aereement. the Develooer is authorized and obligated to provide such performance. Nothing in this Paraeraph 17(a) however. alters or shall be construed in anv wav to alter the obligations. responsibilities. benefits. riehts. remedies. and claims between Develooer and the Desien -Build Contractor under the Desien- Build Contract to perform and oav for the Adiustment. (b) Except as provided in Paragraph 17(a) above, this Agreement does not in any way, and shall not be construed to, create a principal /agent or joint venture relationship between the Owner and the other parties hereto and under no circumstances shall the Owner, the Design -Build Contractor or the Developer be considered as or represent itself to be an agent of another. (c) Neither this Agreement nor the Design -Build Contract alters, or shall be construed in any way to alter the obligations, responsibilities, benefits, rights, remedies, and claims between the Developer and TxDOT under the CDA to design and construct the Facility, including the Adjustment. 18. Entire Aereement. This Agreement embodies the entire agreement between the parties and there are no oral or written agreements 'between the parties or any representations made which are not expressly set forth herein. 19. Assignment; Binding Effect; TxDOT as Third Partv Beneficiarv. None of the Owner, the Developer or the Design -Build Contractor may assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other parties and of TxDOT, which consent may not be unreasonably withheld or delayed; provided, however, that the Developer and the Design - Builder may assign any of their rights and /or delegate any of their duties to TxDOT or to any other entity engaged by TxDOT to fulfill the Developer's obligations under the CDA, at any time without the ,prior consent of the Owner. This Agreement shall bind the Owner, the Developer, the Design -Build Contractor and their successors and permitted assigns, and nothing in this Agreement nor in any approval subsequently provided by any party hereto shall be construed as giving any benefits, rights, remedies, or claims to any other person, firm, corporation or other entity, including, without limitation, any contractor or other party retained for the Adjustment work or the public in general; provided, however, that the Owner, the Developer and the Design -Build Contractor agree that although TxDOT is not a party to this Agreement, TxDOT is intended to be a third -party beneficiary to this Agreement. 20. Breach by the Parties. (a) If the Owner claims that the Developer or the Design -Build Contractor (the "Defaulting Party ") has breached any of its obligations under this Agreement, the Owner will notify the Developer, the Design -Build Contractor and TxDOT in writing of such breach, and the Defaulting Party shall have 30 days following receipt of such notice in which to cure such breach, before the Owner may invoke any remedies which may be available to it as a result of such breach; provided, however, that both during and after such period TxDOT shall have the right, but not the obligation, to cure any breach by the Defaulting Party. Without limiting the generality of the foregoing, (a) TxDOT shall have no liability to the Owner for any act or omission committed by the Defaulting Party in connection with this Agreement, including without limitation any reimbursement owed to the Owner hereunder and any claimed defect in any design or construction work supplied by the Developer, the Design - Build Contractor or by its contractors, and (b) in no event shall TxDOT be responsible for any repairs or maintenance to the Owner Utilities Adjusted pursuant to this Agreement. (b) If the Developer or the Design -Build Contractor claims that the Owner has breached any of its obligations under this Agreement, the Developer or the Design -Build Contractor will notify the Owner and TxDOT in writing of such breach, and the Owner shall have 30 days following receipt of such notice in which to cure such breach, before the Developer or the Design -Build Contractor may invoke any remedies which may be available to it as a result of such breach. 21. Traffic Control. The Design -Build Contractor shall provide traffic control or shall reimburse the Owner for the Design -Build Contractor's share of any, as specified in Paragraph 4) of the costs for traffic control made necessary by the Adjustment work performed by either the Design -Build Contractor or the Owner pursuant to this Agreement, in compliance with the requirements of the Texas Manual on Uniform Traffic Control Devices. Betterment percentages calculated in Paragraph 9 shall also apply to traffic control costs. 22. Notices. Except as otherwise expressly provided in this Agreement, all notices or communications ,pursuant to this Agreement shall be sent or delivered to the following: The Owner: CITY OF NORTH RICHLAND HILLS Attn: Director of Public Works 7301 NE Loop 820 North Richland Hills, TX 76180 Phone: 817 - 427 -6400 Fax: 817 - 427 -6404 The Developer: NTE MOBILITY PARNTERS LLC 8713 Airport Freeway, Suite 100 North Richland Hills, TX 76180 Phone: 888- 683 -2015 Fax: The Design -Build Contractor: BLUEBONNET CONTRACTORS, LLC 6851 NE Loop 820, Suite 102 North Richland Hills, TX 76180 Phone: 817 -510 -3557 Fax: 817- 510 -3691 A party sending a notice of default of this Agreement to another party shall also send a copy of such notice to TxDOT and the CDA Utility Manager at the following addresses: TxDOT: TxDOT Department of Transportation Attention: TTA Right of Way 125 E. 11 Street Austin, Texas 78701 -2483 Phone: (512) 936 -0980 CDA Utility Manager:. PBSJ/ ATKINS GLOBAL Attention: Michael Crain North Texas CDA Project Office 3301 W. Airport Freeway Bedford, Texas 76021 Phone: (817) 508 -7602 Any notice or demand required herein shall be given (a) personally, (b) by certified or registered mail, postage prepaid, return receipt requested, or (c) by reliable messenger or overnight courier to the appropriate address set forth above. Any notice served personally shall be deemed delivered upon receipt, and any notice served by certified or registered mail or by reliable messenger or overnight courier shall be deemed delivered on the date of receipt as shown on the addressee's registry or certification of receipt or on the date receipt is refused as shown on the records or manifest of the U.S. Postal Service or such courier. Any party may from time to time designate any other address for this purpose by written notice to all other parties; TxDOT may designate another address by written notice to all parties. 23. Approvals. Any acceptance, approval, or any other like action (collectively "Approval") required or permitted to be given by either the Developer, the Design - Build Contractor, the Owner or TxDOT pursuant to this Agreement: (a) Must be in writing to be effective (except if deemed granted pursuant hereto), (b) Shall not be unreasonably withheld or delayed; and if Approval is withheld, such withholding shall be in writing and shall state with specificity the reason for withholding such Approval, and every effort shall be made to identify with as much detail as possible what changes are required for Approval, and (c) Except for approvals by TxDOT, and except as may be specifically provided otherwise in this Agreement, shall be deemed granted if no response is provided to the party requesting an Approval within the time period prescribed by this Agreement (or if no time period is prescribed, then fourteen (14) calendar days), commencing upon actual receipt by the party from which an Approval is requested or required, of a request for Approval from the requesting party. All requests for Approval shall be sent out by the requesting party to the other party in accordance with Paragraph 22. 24. Time (a) Time is of the essence in the performance of this Agreement. (b) All references to "days" herein shall be construed to refer to calendar days, unless otherwise stated. (c) No party shall be liable to another party for any delay in performance under this Agreement from any cause beyond its control and without its fault or negligence ( "Force Majeure "), such as acts of God, acts of civil or military authority, fire, earthquake, strike, unusually severe weather, floods or power blackouts.. 25. Continuing Performance. In the event of a dispute, the Owner, the Developer and the Design - Build Contractor agree to continue their respective performance hereunder to the extent feasible in light of the dispute, including paying billings, and such continuation of efforts and payment of billings shall not be construed as a waiver of any legal right. 26. Equitable Relief. The Developer, the Design -Build Contractor and the Owner acknowledge and agree that delays in Adjustment of the Owner Utilities will impact the public convenience, safety and welfare, and that (without limiting the parties' remedies hereunder) monetary damages would be inadequate to compensate for delays in the construction of the Facility. Consequently, the parties hereto (and TxDOT as well, as a third party beneficiary) shall be entitled to specific performance or other equitable relief in the event of any breach of this Agreement which threatens to delay construction of the Facility; provided, however, that the fact that specific performance or other equitable relief may be granted shall not prejudice any claims for payment or otherwise related to performance of the Adjustment work hereunder. Nothing contained in this Agreement shall be construed as a waiver of the Owner's governmental immunity except to the extent expressly provided or necessarily implied herein. 27. Authoritv. The Owner, the Developer and the Design -Build Contractor each represents and warrants to the other parties that the warranting party possesses the legal authority to enter into this Agreement and that it has taken all actions necessary to exercise that authority and to lawfully authorize its undersigned signatory to execute this Agreement and to bind such party to its terms. Each person executing this Agreement on behalf of a party warrants that he or she is duly authorized to enter into this Agreement on behalf of such party and to bind it to the terms hereof. 28. Cooperation. The parties acknowledge that the timely completion of the Facility will be influenced by the ability of the Owner (and its contractors), the Developer and the Design -Build Contractor to coordinate their activities, communicate with each other, and respond promptly to reasonable requests. Subject to the terms and conditions of this Agreement, the Owner, the Developer and the Design - Builder agree to take all steps reasonably required to coordinate their respective duties hereunder in a manner consistent with the Developer's and the Design -Build Contractor's current and future construction schedules for the Facility. 29. Termination. If the Facility is canceled or modified so as to eliminate the necessity of the Adjustment work described herein, then the Developer shall notify the Owner and Design -Build Contractor in writing and the Developer reserves the right to thereupon terminate this Agreement. Upon such termination, the parties shall negotiate in good faith an amendment that shall ,provide mutually acceptable terms and conditions for handling the respective rights and liabilities of the parties relating to such termination. 30. Nondiscrimination. Each party hereto agrees, with respect to the work performed by such party pursuant to this Agreement, that such party shall not discriminate on the grounds of race, color, sex, national origin or disability in the selection and /or retention of contractors and consultants, including procurement of materials and Teases of equipment. 31. Applicable Law, Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of Texas. without regard to the conflict of laws DrinciDles thereof. Venue for anv action brought to enforce this Agreement or relating to the relationship between anv of the parties shall be the District Court of Travis Countv. Texas or the United States District Court for the Western District of Texas (Austin), or, such other venue as agreed to by the parties_ 32. Waiver of Conseauential Damages. No party hereto shall be liable to any other party to this Agreement, whether in contract, tort, equity, or otherwise (including negligence, warranty, indemnity, strict liability, or otherwise,) for any ,punitive, exemplary, special, indirect, incidental, or consequential damages, including, without limitation, loss of profits or revenues, loss of use, claims of customers, or loss of business opportunity. 33. Captions. The captions and headings of the various paragraphs of this Agreement are for convenience and identification only, and shall not be deemed to limit or define the content of their respective paragraphs. 34. Counterparts. This Agreement may be executed in any number of counterparts. Each such counterpart hereof shall be deemed to be an original instrument but all such counterparts together shall constitute one and the same instrument. 35. Effective Date. Except for the provisions of Paragraph 2(a) (which shall become effective immediately upon execution of this Agreement by the Owner, the Developer and the Design -Build Contractor without regard to TxDOrs signature), this Agreement shall become effective upon the later of (a) the date of signing by the last party (either the Owner, the Developer or the Design -Build Contractor) signing this Agreement, and (b) the date of TxDOT's approval as indicated by the signature of TxDors representative, below. APPROVED BY: TEXAS DEPARTMENT OF TRANSPORTATION CITY OF NORTH RICHLAND HILLS [Print Owner Name] Authorized Signature Printed Name: Donald C. TonerJr. SR /WA Title: Director— Turnpike Right of Way Texas Turnpike Authority Division Date: DESIGN -BUILD CONTRACTOR Bluebonnet Contractors, LLC Duly Authorized Representative Printed Name: Jose Carlos Esteban Title: Chief Executive Officer Date: By: Duly Authorized Representative Printed Name: Title: Date: Ml :k xel »:l NTE Mobility Partners LLC as Duly Authorized Representative Printed Name: Steve Hankins, PE Title: Director of Design & Construction Date: County: TARRANT ROW CSJ No.: 0008-14-093 Const. CSJ No.: 0008 -14 -058 Highway: NTE (IH 820) Limits: NTE (IH 820) from 1 -35W to SH 183 EXHIBIT A PLANS, SPECIFICATIONS, COST ESTIMATES AND ALLOCATION County: TARRANT ROW CSJ No.:0008 -14 -093 Const. CSJ No_: 0008 -14 -058 Highway: NTE (IH 820) Limits: NTE (IH 820) from I -35W to SH 183 EXHIBIT B UTILITY ADJUSTMENT AGREEMENT AMENDMENT (TxDOT- CDA- U- 35A -DM) Exhibit C: Cost Estimate for Utility Assembly (820 -U -0508) City of North Richland Hills f MUAA 820 -U -0548 Conflicts. 104, 107, 108, 110, 111, 114 115` 116 ', 1 17, 120.. 176 " 177 (`include bettellnent) Eligiblity Ratio: 100% j Estimated Direct Costs for Bluebonnet Contractors, LLC 1 $ 2,206,712.20 l Estimated Direct Costs for North Richland Hills 1 $ - IEstimated Indirect Costs for Bluebonnet Contractors, LLC 1 $ 302,935.61 Estimated Indirect Costs for North Richland Hills 1 $ 148,502.05 Estimated Costs for Bluebonnet Contractors, LLC (replace'like- kind') 1 $ 2,658,149.85 IEstimated Costs for Betterment Facilities 1 $ 581,696.78 I7otal Cost for Relocation 1 $ 3,239,846.64 l Estimated Reimbursement to NRH [wlprnpaoy interest} 1 $ 159,902.05 Betterment Cost less reimbursement for NRH 1 $ 421,794.73 Eligiblity Ratio: 100 % Betterment Ratio: 26.36 % Estimated amount to be paid to BBC $ 421,794.73 North Richland Hills J 820 -1J -0508 Estimated Indirect Costs for Bluebonnet Contractors, L LC dike - kind, Description I Quantityi Unit. I Unit Price I Subtotal Plan Review I Quantityi 240 HR $ 115.00 $ 27,800.00 Project Inspection $ 115.00 $ 400 HR $ 100.00 $ 40,000.00 Design Fees City overhead 1000 FIR $ 125.00 $ 125,000.00 BBC Overhead 1 LS $ 110,335.61 $ 110,335.61 JTotal I $ 302,935.61 Estimated amount for NRH Property Reimbursement Description Quantity i Unit I Unit Price Subtotal Easement Reimbursement 5700 SF S 2.00 $ 11,400.00 Total I $ 11,400.00 Estimated Indirect Costs for North Richland Hills Description I Quantityi Unit I Unit Price I Subtotal Plan Review $ 80 HR $ 115.00 $ 9,200.00 Project Inspection $ 400 HR $ 100.00 $ 40,000.00 City overhead 200 1 LS $ 99,302.05 $ 99,302.05 JTotal 1 $ 148.,502.05 BBC Indirect Costs Associated with NRH Betterment Description I Quantity Unit I Unit Price I Subtotal Plan. Review 32 HR $ 115.00 $ 3,680.00 Project Inspection 80 HR $ 100.00 $ 8,000.00 Design Fees 200 HR $ 125.00 $ 25,000.00 BBC overhead 1 LS $ 25,953.18 $ 25,953,18 Total 1 $ 62.633.18 Exhibit D: Water & Wastewater Facility Abandonment Attn: Mr. Donald C. Toner Jr. SRIWA From: Gregory Van Nieuwenhuize, PE Date: November 15, 2011 Subject: City of North Richland Hills Water & Wastewater Facility Abandonment Dear Mr. Toner, The City of North Richland Hills recommends that portions of the water & wastewater facilities that are not being removed according to the plan set be abandoned in place. During the utility adjustment the permanent vacated facilities to remain shall be capped and filled with a minimum of 100 psi grout. Abandoned facilities conflicting with roadway construction shall be removed by others during the construction and excavation stages. The facilities to be abandoned consist of seven (7) water lines (Conflict Nos. 108, 110, 111, 107, 115, 116, 120) and three (3) wastewater lines (Conflict Nos. 104, 114, 117). • Conflict 704 18" Concrete Cylinder Pipe approximately 30 -35 years old * Currently active and in good working condition * Begin: N= 6991907.70, E= 2351278.(]9; End: N= 6991544.36, E= 2351317.33 * Typical offset from: PL= Perpendicular; CL= Perpendicular • Conflict 707 a 12" PVC Pipe approximately 25 years old n Currently active and in good working condition Begin: N= 6991473.69, E= 2352299.47; End: N= 6991569.59, E= 2354754.19 o Typical Offset from: PL= 79'; CL = 147' • Conflict 708 0 12" Ductile Iron Pipe approximately 30 years old © Currently active and in good working condition o Begin: N= 6991995.69, E= 2356589.54; End: N= 6991832.69, E= 2358357.28 o Typical Offset from: PL= 15'; CL= 180' • Conflict 770 * 12" Ductile Iron Pipe approximately 30 years old © Currently active and in good working condition o Begin: N= 6991956.86, E= 2357455.59; End: N= 6991616.37, E= 2357440.99 * Typical Offset from PL= Perpendicular; CL= Perpendicular • Conflict 999 © 12" and 8" cast iron pipe approximately 40 -45 years old o Currently active and in good working condition o Begin: N= 6991616.37, E= 2357440.99; End: N= 6996312.41, E= 2360635.65 Typical Offset from: CL= 165' PLC 20' • Conflict 994 a 8" PVC Pipe approximately 20 -25 years old * Currently active and in good working condition Begin: N= 6990700.96, E= 2360014.27: End: N= 6989790.90, E= 2361445.42 * Typical Offset from: • Conflict 995 * 8" cast iron pipe approximately 40-45 years old o Currently active and in good working condition o Begin: N= 6990776.50, E= 2360620.41; End: N= 6990611.26, E= 2360928.58 * Typical offset from: PL= 30.33'; CL= 183.66 • Conflict 996 * 8" cast iron pipe approximately 40-45 years old Currently active and in good working condition * Begin: N= 6990734.10, E= 2360640.62; End: N= 6990312.41, E= 2360635.65 a Typical offset from: PL= Crossing ; CL= Crossing • Conflict 997 10" PVC pipe approximately 25 years old a Currently active and in good working condition o Begin: N= 6990548.96, E= 2360931.45; End: N= 6990253.09, E= 2360746.23 * Typical Offset from; PL= Perpendicular; CL = Perpendicular • Conflict 920 a 8" PVC Pipe approximately 30 years old * Currently active and in good working condition Q Begin: N= 6990073.74 E= 2361792.28; End: N= 6989714.20, E= 2362368.16 o Typical Offset from PL= 38'; CL= 181.6' The proposed abandonment is along Loop 820 beginning at NTE BL Sta. 842 +05 to 957 +46 along IH 820. This abandonment shall not be construed as a change in ownership of the facility. The City of North Richland Hills will be responsible for maintaining abandonment facility records in accordance with the UAR. The City of North infrastructure does materials. There is abandonment. Signed, Richland Hills certifies that this abandonment of the City's not contain, or is composed of, hazardous or contaminated no known hazardous material associated with this proposed Gregory Van Nieuwenhuize, PE Date Exhibit E: Property Affidavit NTE -U1 Rev. 912009 Page 1 of 2 County: C SJ No.: Highway Limits: Fed. Proj. No.: ROW Acct. No AFFIDAVIT Agreement No. 820 -U -0508 THE STATE OF TEXAS ) COUNTY OF Tai ) Tarrant 0008 -14 -058 NTE - West DART Rail to IH 8201 SH 183 Interchange NIA L 0608 -14 -093 WHEREAS, the State of Texas, acting by and through the Texas Department of Transportation, herein called TxDOT, has deemed it necessary to make certain highway improvements on Interstate Highway IH 820 in Tarrant County. Texas, fiom NTE DL Stations 864 +14 to 869 +12 and, WHEREAS, it is anticipated that the hereinabove Mentioned improvements will affect the facilities of Citv of North Richland Hills hereinafte- called the Owner, at the following described locations: A Water Line Utility Easement (UE) running along the south ROW of IH 820 has been affected by the North Tarrant Express Project. Vol. 8212; Pg. 1784 and: WHEREAS, TxDOT has requested that the Owner fru to the information relative to interests that Owner hold in lands at each of the hereinabove referenced locations: NOW THEREFORE. before me, the undersigned authority, this day personally appeared who, after being by ore drily sworn, did depose and say That he/ she is of City of North Richland Dills and, as such, has knowledge of the facts contained herein, and That, to the best of his/her knowledge, said Owner is the owner of the following described interests in the hereinabove- indicated lands, copies of the instrlunents under which said Owner claims said interests being attached hereto and made a part hereof. FN NTT -Ul F&i- 912009 Page 2 of Signature Title Company Swofii to and subscribed before me this day of , A.D. 2011. Notary Public, State of Texas My Counuission expires: Exhibit F: Utility Joint Use Acknowledgement Reimbursable Utility Adjustment =E- 4 I. y FDFM RQW- U�JUAA -NTE ReV 9113147 ReplfaCe& FUTM r1- 15 -24A and 0- 15- 8(At4. GSD43Pc Page 1 of 2 UTILITY JOINT USE ACKNOWLEDGEMENT REIMBURSABLE UTILITY ADJUSTMENT U- Number: 820 -U -0508 District: Forth Worth Highway: SH 183 County: Tarrant WHEREAS, the State of Texas, ('State'), acting by and through the Texas Department of Transportation ('70OT" ), proposes to make certain highway improvements on that section of the above- indicated highway; and WHEREAS, the City of North Richland Hills, ('Utility"), proposes to adjust or relocate certain of its facilities.. if applicable, and retain title to any property rights it may have on, along or across, and within or over such limits of the highway right of way as indicated by the location map attached hereto. NOW, THEREFORE, in consideration of the covenants and acknowledgements herein contained, the parties mutually agree as follows: It is agreed that joint usage for both highway and utility purposes will be made of the area within the highway right of way limits as such area is defined and to the extent indicated on the aforementioned plans or sketches. Nothing in this Acknowledgement shall serve to modify or extinguish any compensable property interest vested in the Utility within the above described area. If the facilities shown in the aforementioned plans need to be altered or modified or new facilities constructed to either accommodate the proposed highway improvements or as part of Utility's future proposed changes to its own facilities, Utility agrees to notify TXDOT at least 30 days prior thereto, and to furnish necessary plans showing location and type of construction, unless an emergency situation occurs and immediate action is required. If an emergency situation occurs and immediate action is required.. Utility agrees to notify TXDOT promptly. If such alteration, modification or new construction is in conflict with the current highway or planned future highway improvements, or could endanger the traveling public using said highway, T %DOT shall have the right, after receipt of such notice, to prescribe such regulations as necessary for the protection of the highway facility and the traveling public using said highway. Such regulations shall not extend, however, to requiring the placement of intended overhead lines underground or the routing of any lines outside of the area of joint usage above described. If Utility's facilities are located along a controlled access highway, Utility agrees that ingress and egress for servicing its facilities will be limited to frontage roads where provided nearby or adjacent public roads and streets. or trails along or near the highway right of way lines which only connect to an intersecting road. Entry may be made to the outer portion of the highway right of way from any one or all access points. Where supports, manholes or other appurtenances of the Utility's facilities are located in medians or interchange areas, access from the through - traffic roadways or ramps will be allowed by permit issued by the State to the Utility setting forth the conditions for policing and other controls to protect highway users. In an emergency situation, if the means of access or service operations as herein provided will not permit emergency repairs as required for the safety and welfare of the public, the Utility shall have a temporary right of access to and from the through- traffic roadways and ramps as necessary to accomplish the required repairs, provided Tx DOT is notified immediately when such repairs are initiated and adequate provision is made by Utility for the convenience and safety of highway traffic. Except as expressly provided herein, the Utility's rights of access to the through- traffic roadways and/or ramps shall be subject to the same rules and regulations as apply to the general public. If Utility's facilities are located along a non - controlled access highway, the Utility's rights of ingress and egress to the through - traffic roadways and /or ramps are subject to the same rules and regulations as apply to the general public. Initial Date Participation in actual costs incurred by the Utility for any future adjustment, removal or relocation of utillity facilities required by highway construction shall be in accordance with applicable laws of the State of Texas. It is expressly understood that Utility conducts the new installation, adjustment, removal.. and/or relocation at its own risk, and that Tx00T makes no warranties or representations regarding the existence or location of utilities currently within its right of way. The Utility and the State, by execution of this Acknowledgement , do not waive or relinquish any right that they may have under the law. The signatories to this Acknowledgemen: ••.varrant that each has the authority to enter into this Acknowledgement on behalf of the party represented. IN WITNESS WHEREOF. the parties hereto have affixed their signatures. Owner: City of North Richland Hills Utility Name By Printed Name: Title: Date: Authorized Signature The State of Texas Executed and approved for the Texas Transportation Commission for the puirl_lose 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: Donald C. Toiler Jr. SR'WA Title: Director — Turnpike Right of Way Texas Turnpike Authority Division Date: rirlfr t� 55M Exhibit G: Quitclaim Deed Forth Richland Hills KH November 15, 2011 Donald C. Toner Jr. SR /WA Director- Turnpike Right of Way Texas Turnpike Authority Division 3301 W. Airport Freeway Bedford, TX 76201 RE: Property interest along IH 820 between NTE BL Sta. 864 +14 to 869 +11 Mr. Toner, For your use the City of North Richland Hills has attached these exhibits which detail their current property interests for a utility easement along the south ROW of IH 820. The relative property interest includes approximately 5700 W. The City has agreed to execute a quitclaim deed for these portions of the utility easements upon mutually agreeable fair compensation by the Design -Build Contractor (Bluebonnet Contractors, LLC) to the City. The City recommends acceptance of this proposed property relinquishment for the North Tarrant Expressway. Sincerely, City of North Richland Hills Date Notice of Confidentiality Rights: If you are a natural person, you may remove or strike any of the following information from this instrument before it is filed for record in the public records: your Social Security Number or your Driver's License Number. AVM`— ROW-N-30 Rev. 8/')003 (GSD -EPt.) Page 1 of 2 QUITCLAIM DEED THE STATE OF TEXAS 820 -U -0508 COUNTY OF TARRANT S KNOW ALL MEN BY THESE PRESENTS: That, The City of North Richland Hills of the County of Tarrant, State of Texas, hereinafter referred to as Grantors, whether one or more, for and in consideration of the sum of ten dollars (110) and other good and valuable consideration to Grantors in hand paid by the State of Texas, acting by and through the Texas Transportation Commission, the receipt of which is hereby acknowledged, and for which no lien is retained, either expressed or implied, have Quitclaimed and do by these presents Bargain, Sell, Release acid fbleVCr Quitclaim trrrto the Stale of Texas all of Grantors' right, Lille, interest, claim and demand in and to that certain tract or parcel of land, situated in the County of Tarrant. State of Texas, more particularly described in Exhibit "A.." attached hereto and incorporated herein for any and all purposes. The City of North Richland Hills agrees to quitclaim their property interest for a 10' Water Line Utility Easement along IH 82.0 (Vol. 8212 Pg. 1784). TO HAVE AND TO HOLD for said purposes together with all and singular the rights, privileges. and appurtenances thereto in any manner belonging unto the said State of Texas forever. IN WITNESS WHEREOF, this instrunneut is executed on this the day of , 2411. ROW -N -30 R--v- 8/2003 Page 2 of 2 State of Texas County of Tarrant This instrument was acknowledged before ine on by Ackno -sledgtment Notary Public's Signature State of Texas County of Tarrant Corporate Acknowledgment This instrument Was acknowledged before me on by of corporation, on behalf of &iid corporation. Notate Public's Signature M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject Agenda Item No. F.0 GENERAL ITEMS M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. F.1 GN 2.011 -097 Cast Ballot for Tarrant Appraisal District Board of Directors - Resolution Number 2011 -036 Presenter: Mark Mills, Budget Director Summarv: The City Council is asked to consider the candidates for the Tarrant Appraisal District Board of Directors and cast the City's allocated 39 votes for the candidate(s) of the Council's choosing. General Descrivtion: In September of this year the Tarrant Appraisal District (TAD) notified all affected taxing entities that the term of service (two years) of the five- member Board of Directors will expire on December 31, 2011. Each entity was provided the opportunity to make one nomination for each of the five positions to be filled, though no nomination was required. At the October 10, 2011 City Council meeting, staff made a presentation to Council regarding these nominations and Council consensus was to not make a nomination. The official ballot for nominees to serve as directors of the five - member board was received and distributed to Council on November 2, 2011. North Richland Hills has been allocated 39 votes which may be cast collectively or separately for any nominees) on the official ballot. Votes cast for persons not listed on the ballot will not be considered. A complete list of nominees on the official ballot is as follows: • Mr. David Averitt • Mr. Roger Chavez • Mr. John Fegan * • Mr. Michael Glaspie • Mr. John Molyneaux • Mr. Joe Potthoff * ( *) indicates current board members. Background information was received for all candidates except Mr. Chavez. This information and has been provided as attachments. The attached resolution will cast 39 votes for the nominee(s) chosen by the City Council. Those nominees receiving the greatest number of votes will be elected to the TAD Board of Directors for a two -year term, beginning January 1, 2012. Attached is a letter from TAD concerning the casting of votes, a copy of the official ballot, a list of current board members, a list of nominees, the number of votes for each entity, and information for each of the nominees that was received from TAD. Also attached is a copy of an email from one of the candidates requesting support. Recommendation: Approval of Resolution No. 2011 -436, casting the City of North Richland Hills' 39 allocated votes for the nominee(s) of the Council's choosing. Jeff Caw FxecL#ive OMector TarrarrtApprafsal Plsbla Chief Appraiser October 25, 2011 Mr. Mark Hindman City Manager City of N. Richland Hills F. 0. Box 820609 N. Richland Hills, Texas 76180 Dear Mr. Nmdman: The terms of service for the five (5) elected Directors of the Tarrant Appraisal District expire December 31, 2011. The deadline for nominations has passer). Enclosed is a list of nominees for these five (5) positions and an official ballot. The property Tax Code requires that votes be in an open meeting by resolution. All votes may be cast for one candidate or distributed among any number of candidates listed on the official ballot. There is NO provision for write in candidates. Votes cast for someone other than the candidates linked on the ballot cannot be counted.. Time d €or voting i s _ December 14. 2 0 . 11, You may mail time ballot resolution, fax to (817) 595 -6198 or email to mmccoy@tad.ozg. The five (5) candidates receiving the most votes are elected to a two (2) year term beginning January 1, 2012. 2011. All tax unite will be notified of the results of the election before December 31, Sincerely, I W' .Jeff Law Executive Director Chief Appraiser 7L:mnm Encl. OFFICIAL BALLOT ELECTION OF MEMBERS TO THE BOARD OF DIRECTORS TAItRANT APPRAISAL DISTRICT We, the governing body of City of North Richland Hills having been advised by the Chief Appraiser of Tarrant Appraisal Dlstrict that we are entitled to cast 39 votes collectively or separately for the following nominees for the Board of Tarrant Appraisal Dlstrict: David Averitt Roger Chavez John Fegan Michael Claspie John Molyneaux Joe Potthoff do hereby resolve and order that cast and does hereby cast its votes as follows: votes for votes for votes for I votes for votes for Passed this day of . 2011 Presiding Officer ATTEST , Secretary or Clerk, City of North Richland Dills IMPORTANT. 'This ballot should be returned by December 15, 2011 to Jeff Law, Chief Appraiser, Tarrant Appraisal District, 2504 Handley- Ederville Rd., Fort Worth, Texas, 76118 Tarrant Appraisal District Board of Directors Current Members Through December 31, 2011 + .Poe Potthoff, Chairman Tommy Brown + John Feagan ■ Michael Glaspie 9 John M.olyneaux NoMinations for Board of Directors 2012 — 2013 Term Mr. David. Averitt Mr. Roger Chavez Mr. Jahn Fegan Mr. Michael Glaspie Mr. Jahn Moiyneaux Mr. Joe Potthoff City of Haltom City City of Sansom Park Tarrant County City of Mansfield Tarrant County City of Mansfield Arlington I.S.D. Tarrant County City of Mansfield Tarrant County City of Mansfield Azle I.S.D. TARRANT APPRAISAL DISTRICT 2011 Calculation of Taxing Entity Votes for Bow of Directors Per Section 6.03(d) of Texas Property Tax Cade 2410 TAXES % OF 2011 IMPOSED TOTAL VOTES School Districts: Aledo $ 1,908,268 0.07238 %a 4 Arlington $ 251,881,343 9.55423% 478 Azle $ 16,749,130 (1.63532% 32 Birdville $ 95,759,248 3.67022 % 184 Burleson $ 17,317,694 0.65689% 33 Carroll $ 77,366,025 2.93461% 147 Castleberry $ 6,316,546 0.23960% 12 Crowley $ 67,290,515 2.55243% 128 Eagle Mountain/Saginaw $ 87,744,116 3.32826% 166 Everman $ 13,628,226 0.51694 % 26 Fort Worth $ 327,537,549 12.42398% 621 Godley $ 852,288 0.03233 %Q 2 GrapevinelColleyville $ 130,977,404 4.96816% 248 Hurst/Euless/Bedford $ 106,767,936 4.04986 % 202 Keller $ 163,681,304 6.20867 % 310 Kennedale $ 14,424,899 0.54716% 27 Lake Worth $ 11,329,8106 0.42976% 21 Lewisville $ 1,378,397 0.05228 % 3 Mansfield $ 127,090,626 4.82073% 241 Northwest $ 59,781,903 2.26761% 113 White Settlement $ 22,307,941 0.84617% 42 Total Schools $ 1,603,091,1(A 60.80758 %fl 3040 Cities: Arington $ 110,303,666 4.18398% 209 Azle $ 3,314,248 0.12571% 6 Bedford $ 13,906,842 0.52751% 26 Benbrook $ 9,588,529 0.36371 %0 18 .Blue Mound $ 480,555 0.171823 %a 1 Burleson $ 3,465,985 0.13147 %© 7 Colleyville $ 13,176,617 0.49981% 25 Crowley $ 4,649,689 0.17637% 9 Dalworthington Gardens $ 788,921 0.02992 %® 1 Edgechff Village $ 491,454 0.01866 %® 1 Euless S 11,858,094 044979% 22 Everman $ 1,261,408 0.04785% 2 Flower Mound $ 439,234 0.01666 %0 1 Forest Hill $ 3,605,708 0.13677% 7 Fort Worth $ 340,297,183 12.90797% 645 Grand Prairie $ 30,585,705 1.16016% 58 Grapevine $ 20,590,437 0.78103% 39 Haltom city $ 9,619,971 0.36490% Is Haslet $ 1,539,151 0.05834% 3 Hurst $ 12,402,805 0.47046% 24 Keller $ 17,305,714 0.65643% 33 Kennedale $ 3,720,971 0.14114% 7 Lakeside $ 380,332 0.01443% 1 Lake Worth $ 1,793,815 0.06804% 3 Mansfield $ 28,657,951 1.08704% 54 N. Richland Hills $ 20,510,856 0.77801 %® 39 Pantego $ 898,268 0-03407 2 Pelican Bay $ 278,412 0.01056% 1 Reno $ 26,702 0.00101% 0 Richland Hills $ 2,874,895 0.10905% 5 River Oaks $ 1,831,930 0.06948% 3 Roanoke $ 301,307 0.()1 143% 1 Saginaw $ 5,383,854 0.20422% 10 Sansom Park $ 629,230 0.02397% 1 Southlake $ 24,858,853 0-94293% 47 Trophy Club $ 386,136 0.01465% 1 Watauga $ 5,643,765 0.21408% 11 Westlake $ 1,275,931 0-04840% 2 Westover Hills $ 1,578,554 0.05999% 3 wesLworth Village $ 743,500 0.02820% 1 White Settlement $ 3,435,053 0.13030% 7 Total Cities $ 714,881,631 27.11650 1356 Other. Tarrant County $ 318,361,546 12.07592% 604 Total Other $ 318,361,546 12.07592% 604 Total All J 2,636,334,341 100%1 1 5,000 1 john Fevan Dow, ON 1303 Bellefonte LN Colleyville, TX 76034 Phoue 817 - 966 -662.6 johnfegan@aol.com October 8, 2009 Subject; Resume Per your request a resume and qualifications of Dennis (John) Fegan ll. PERSONAL BIO I was born November 21, 1954 and presently live (15 years) in Colleyville, TX, I have been married for 26 years to Nancy and. have 5 sons. Two of my sons have graduated from Grapevine High School I am a graduate of Eastern Hills High School (Fort Worth) 1973 and Texas Christian University (TCU) 1978 and have lived in Tarrant County area for 54 years. I am the President and Owner of Compass Realty, LP mid have been in the real estate business since 1987. In the past three years I have been involved in residential land development in Southlake, Colleyville, North Richland Hills and Weatherford. Also, I have built several office buildings in Colleyville and North Richland II111s. I hold the CPM designation and I have been elected as the President of the Fort Worth Chapter of ]REM for the year 2005 and 2006 I also hold the CCIM designation and I am a member of the Dallas Chapter of CCIM. I am an Advisory Board member of Northstar Bank (Colleyville and Grapevine) I am on the Advisory board for Apartment Life Ministries I served on the Board of Trustees at Faith Christian School 7 years I Have served on the Board of Colleyville Basketball Association. I have served on several Boards of Trustees for Condominium Associations, Fort Worth. and Galveston. I am a board member of Student Standing Strong - a non- profit student leadership group I our the Secretary (board member) of the Caldwell Creek Subdivision, Colleyville MEMESERSHLPS TAIL Texas Associations of Realtor NAR National Association of Realtors NTCAR North Texas Commercial Association of Realtors IREM Institute of Real Estate Management Secretary of the Fort Worth Chapter 2004 CCIM Certified Commercial Investment Member CIB Commercial Investment Brokers If you need any more information please call 817-966-6626 or email johnfegan@aol.com. Sincerely, John Fegan, CCIM, CPM OCT ,26-2007 1r10N BRANTS REALTORS RESU OF JOHN M OLYNEAUX PJERSOV,AZ, DATA' ROMM ADDR M Bvsmss ADDREss: EDucA, L[)CAT.:= OT W, PROFESSIONAL' CIVMC ACd'IVITIBS. 4008 TAmwcroinv FORT WORTH, TExAs 7611.6 817 737 - 5443 BRANTS P.E,A.L 4541 BELLAIRE DRIVE FORT "LTV OICm TE IwAs 76109 817 -731 -8466 Q. 271 P. 2 MARY LO P*ULLIPs E. S., MONMG JR. H.S., ADD ARLINGTON HEIGHTS HIGTi SCHOOL N EW M EXICO MILITARY INSTcTE 9,, Rosvvm,, N.M. AUSTIN COLLEGE WITH A B. A. TE CEMSTTAN UNrY R SITY RRA L ES TATE SATE AND BRo ER I..Ic:E .MEMBER OF TIrE ROTARY CT.Vi g OF Wi.RTPRx FnR T' Wr?YM MNCE 1982. PAST PUSIiDENT ASSN, , AIST. GOv'E wop. ROTAmAK OF THE Y EAR(TwICF) .MENMR OF THE BOARD OIL DIRECTOR FOR THE BOY'S AND GK'S C'LUD OF T ARRA.NT GOY]NTY SINCE 1957. SERVED ONTRE EXECUTE SOAK - MEMBER OF TIM TCV FROG CLUB BOARD o r DIRECTORS SINCE 1999 AND SERVED ON THEIR EXCYL70E COMVii xTTEE. .Tk INTEE FOR THE Mo LV'ilEAux CIL4LTAjDLF POTJNDATI{3N: AMP UNDERWRITE A TEA,CMNG CMUR FOR 173E BTW ISM .ME11 MM OF THE VORT WORTH CITAMM OR COM IERC& SISTER CI CIES, FORMMR MEMBER •SERvm ON THE CnT OF FORT WoicTH Bua.DwG STANDAims co?oUSSION FOR &YEMM LAST 2vEAm SER:vED As CHAIw4N. .BOARD MEMBER AND kowdak Ci AE[ mAN OF HIT THEBmcz SK RACE FOR CH.ARITT. .5`Ek w ON A.RLE*GToN RuG A.S. `S SITE BASE MANAGEMENT TEAM AS A COMMUNITY WN MRR- OCT-26-2007 Hopm BRANTS REALTORS NO. 271 P. 3 J11A,NT BEEN ON THE SrM BASE FOR OVKR TEN YEAR RAVE SE VED ON TARRANT APPRAis-AL DIsrmcT &OARD OF J)IREcToRs si 2002. EUMESSACTnTrms: . cuRRzNT mmup, Or THE GREA - mix rop-T wom ASSOCIAMN OF REALTOM PAST PRv-siDFTqT oF GFWAIL "00 REALTOR Or THE YEAR FOR 2002 MmmuR OF BOTH NAR AND T-AR. AM ACTIVE AT BO' H TRt STATE AND N Au o h &L M A CTM ON VAIUOUS CO M YRTrM i'3,T C. F NVAR AN 1) ATTMSTATRLEVEL, Joe A- Pot th off 6769 Gascony Place Fort Worth, TX 76132 817.456.3347 Since graduating with high honors in 1973 and earning a Bachelors of Science in Architecture, Joe Potthoff has - worked extensively in physical, social and economic planning. He was a charter member of the American Institute of Certified Planners, worked in the early stages of developing strategic planning methods, and pioneered the integration of strategic planning with future studies. Mr. Potthoff has studied planning issues internationally, traveling to Asia and Europe through Rotary International's Group Study Exchange. Mr. Potthoff is currently President of Hill Gilstrap, Potthoff & McGinnis (HGPM), a consulting firm organized to identify investment opportunities, obtain economic development incentives, secure entitlements, and provide a wide range of services and expertise to business clients. He has extensive experience as a planner, facilitator, and creative strategist. Additionally, he owns and manages his own real estate and investments. His experience includes the private, public, and non - profit sectors with an emphasis in real estate, zoning, land use, government regulation, risk management, expert witnessing„ market analysis, site design, economic development, future studies, and governmental relations. After working as a designer in architecture, Mr. Potthoff spent the nmt twelve years of his career in city planning. During this time in the public sector, he administered the subdivision of more than 10,000 lots and 1,000 rezone requests. His responsibilities also included comprehensive and environmental planning, code enforcement and development review. Before opening his first consulting firm, I& Potthoff spent seven years as Ditwtor of Planning for the cities of Arlington, Texas and F3rllevn n, Wa;Nngtnn. As President o €Betzel- Potthoff, Inc., he spent the next thirteen years providing and managing a wide variety of consulting services centered around business and strategic planning and problem solving. Examples of consulting work successfully completed during this period include: analyzing governmental regulatory actions; managing project teams; and producing business plans, investment strategies and feasibility/marketing studies. Within the volunteer sector, Mr. Potthoff has served on numerous boards of community organiaations- Since 1992, he has been an active member of the Tarrant Appraisal District's board of directors, serving as Chairman of the Tarrant Appraisal District for the Last eight years. Mr. Potthoff has also served on the boards of a Chamber of Commerce, the River Legacy Foundation and a One Stop Career Center. Additionally, he co- chaired a Mayor's Task Foree on Drugs and Crime and served on the Tarrant 2000 Task Force. Mr. Potthoff is a past member and Paul Harris Fellow of Rotary lnt.- mationai, serving two years as the chairman of Rotary District 579's Group Study Exchange. He is also a member of Alpha Chi (honorary academic fraternity); and a past member of the World Future Society, ME;NSA, the Institute of Urban Design, and the International Downtown Executives Association. He has guest lectured at the University of Texas at Arlington's graduate school in the departments of Architecture and the Institute of Urban Studies, Additionally, Mr. Potthoff has served as an instructor in crisis management and media relations for member cities of the North Central Texas Council of Governments. Minister of Education Rev. Michael D. Glaspie Sr. Rev. Michael D. Glaspie serves as Minister of Education He is married to Sis. Janice Glaspie and they have three children, Tamara, Michael Jr. and Marcus. The Glaspie's live in Arlington, Texas. Rev. Glaspie was born in Marshall, Texas. He joined the Mount Olive Baptist Church in June, 1982. In March, 1985, he accepted his calling as a minister of the Gospel. Since 1986, Rev. Glaspie has been involved in the ministries of the Sunday School Teachers, Evangelism and became Minster of Education in the early 1999s. Rev. Glaspie graduated from the University of Texas at Austin receiving a BA and MBA from that university. He has also studied at Southern Bible Institute and the Dallas Baptist University. In addition to his basic responsibilities associated with the education area, such as MOBI, Sunday School, and educational. seminars, Rev. Glaspie's focal areas are with Arlington New Be community involvement and the New Members Welcoming committee. He has received recognition and awards for his involvement with the Arlington Independent School District and other community organizations and business entities_ Michael Glasple Minister of Christian Education and Missions at Mount Olive $aptist Church and also serves at the Executive Director of Metro Charter Academy. He has served as a member of the Arlington ISD Board of Trustees since 1991. He has a BA in Mathematics and an MBA from the University of Texas at Austin. He has done work on a Masters of Biblical Studies at Dallas Baptist University. Mr. Glaspie retired from IBM after a twenty -one year career in marketing and marketing management of information technology systems and solutions. He and his wife, Janice, have three children, a daughter and two sons, who are benefiting from the excellent education they received from the AISD. Mary McCoy From: Arturo Camacho lacamaoho @haitomcitybccoml Sent. Wednesday, October 19, 2019 11:24 AM To: Mary McCoy Subject: David Averitt bio information Ms. Mcoy, 7 have additional bio information regarding David Averitt, a nomination on the TAD Directors Election, from our 10/10/11 Resolution submitted to you last week. Elected to Council Place 5: May 2010 Served on Haltom City Council 1993 -95 and 2000 -04. Past member of Haltom City Finance Audit Committee., Haltom City Beautification Bd., Park* & Rec Bd., Library Bd., Economic Development Corporation, Graduate of the Citizens Fire Academy, Current Member of the Birdville Education Foundation* Past Council Liaison to Haltom City Platuring• & Zoning Commission Past Member Haltom City Bond Study Committee+ Past Council Liaison to the Haltom City Housing Authority• Thanks, Art Art Camacho, TRMC P.O.. Box 14246 5024 Broadway Avenue Haltom City, TX 76117 817- 222 -7749 (Office) 817 -834 -7237 [fax.) acamachoQhaltomcitvtx-com 1 David Averitt Residence • 1970— Present Haltom City, Tarrant County, Texas_ Occupation • 1559 — Present: Broker 1 Owner: Averitt Realty & Property Management. Public Service • Elected to Haltom City Council Place 3: May 2010. • Current Member of the Haltom City Finance Audit Committee. • Current Council liaison to the Haltom City Planning & Zoning Commission. • Current Member of the Birdville Education Foundation. • Elected to Haltom City Council 1993 -95 and 2000 -04. • Past member of Haltom City Finance Audit Committee, • Past Council Liaison to Haltom City Beautification Board. • Past Member of the Haltom City Park & Recreation Board. • Past member of the Haltom City Library Board. • Past member of the Haltom City Economic Development Corporation. • Past Council Liaison to Haltom City Planning & Zoning Commission. • Past Member Haltom City Bond Study Committee. • Past Council Liaison to the Haltom City Housing Authority. • Past Council liaison to the Haltom City Park & Recreation Board. • Past Member Haltom City Recycling Task Force. • Graduate of the Haltom City Citizens Fire Academy. From: "]DAveritt(&aol.com" cJDAverittOa_ol._eom> To: nrhoscar0sbcalobal.net Sent: Tue, November 1, 20116:28:49 PM Subject: Tarrant Appraisal District Board of Directors Mayor Trevino, My name is David Averitt, and I am soliciting your support for my appointment to the Tarrant Appraisal District Board of Directors. Please review my attached resume for qualifications. I appreciate your consideration and support. Thanks, David Averitt M RH 10**QWil0[6]►I►£61'K +IIEIKI BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF NORTH RICHLAND HILLS, TEXAS: SECTION 1. THAT the City's 30 votes be cast for the following nominee(s) to serve as a member of the Tarrant Appraisal District 'Board of Directors during the two year term beginning January 1, 2010: votes for votes for votes for votes for votes for PASSED AND APPROVED this the 14th day of November, 2011. la 1_1 a 11 3 6 Patricia Hutson, City Secretary All 6VK61 M► [*] A d:1 N [ @]:I >!'_l `I eI:I I I Oscar Trevino, Mayor APPROVED AS TO FORM AND LEGALITY: George A. Staples, City Attorney ZIGIVA=I I1 :1'1 11*i0I61 `r 10 =1 ►16 Mark C. Mills, Budget Director M RH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. F.2 GN 2011 -098 Intent to Reimburse Expenditures with Proceeds of Future Debt - Resolution No. 2011 -035 Presenter: Larry Koonce, Finance Director Summarv: In the 2011/2012 Capital Projects Budget, City Council approved items that may be funded with certificates of obligation or general obligations bonds. The bond sale is currently scheduled for the spring of 2012. In the meantime, there is a need to get the bidding and awarding of some contracts underway. Some of the approved projects may require funding prior to the bond sale in the spring of 2012. General Description: In order to reimburse expenditures with the proceeds of future debt, Council is legally required to approve a resolution to this affect. Council approved a similar resolution in October 2010. The resolution presented for Council approval includes projects that may be reimbursed with proceeds from the 2012 Ibond sale (see attached project list). The budgeted projects include: • 2003 bond election Drainage Projects $1,085,000 • 2003 bond election Animal Adoption & Rescue Center $1,300,000 • C.C. Drainage Projects $295,400 • C.C. Utility Projects $5,365,000 The total to be reimbursed with 2012 bond proceeds will not exceed $8,045,000. Staff anticipates the actual amount expended before the bond sale will be much less than this. Any interim funding required will be appropriated from existing reserves and will be repaid upon receipt of the bond proceeds. Approval of the resolution will allow the City of North Richland Hlills to reimburse any of these expenditures with proceeds from the planned 2412 bond sale. Recommendation: To approve Resolution No. 2011 -035. NRH ;1 *19] Il L I Is] I! I► 161 WIZ11 `Q11(y BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF NORTH RICHLAND HILLS, TEXAS: SECTION 1. THAT the City of North Richland Hills, Texas (the "Issuer ") intends to issue debt for street and drainage and utility improvements, and an Animal Adoption and Rescue Center Facility, (collectively, the "Projects ") and further intends to make certain capital expenditures with the proceeds of such debt; WHEREAS, under Treas. Reg. § 1.150 -2 (the "Regulation "), to fund such reimbursements with the proceeds of tax - exempt obligations the Issuer must declare its expectation to make such reimbursement; and WHEREAS, the Issuer desires to preserve its ability to reimburse the capital expenditures with the proceeds of tax- exempt obligations. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF NORTH RICHLAND HILLS, TEXAS, THAT the Issuer reasonably expects to reimburse capital expenditures with respect to the Projects with proceeds of debt hereafter to be issued by the Issuer, and that this resolution shall constitute a declaration of official intent under the Regulation. The maximum principal amount of obligations expected to be issued for the Projects is $8,045,000. PASSED AND APPROVED this the 14th day of November, 2011. {CITY OF NORTH RICHLAND HILLS In ATTEST: Oscar Trevino, Mayor Patricia Hutson, City Secretary f 1, �:Z9l ►1=111:_'1 r 11911191 N i ►i IF:1► I III I X0_1 I I WiF George A. Staples, City Attorney APPROVED AS TO CONTENT: Larry Koonce, Finance Director 2012 Budgeted Bond Sale Projects Approved Budget FY 2011 -12 Budgeted General Obligation Projects 2003 Bond Election Meadowview Estates Channel Drainage Improvements 1,085,000 NRH Animal Adoption & Rescue Center 1,300,000 Budgeted G.O. 2003 Bond Election Projects 2,385,000 Budgeted Certificates of Obligation Projects Drainage Projects Iron Horse Erosion Control Phase I and II 295,000 Utility Projects Sanitary Sewer (Loop 820 Corridor Interceptor Replacement) 1,480,000 Sanitary Sewer System Rehablilitation of Main Lines 1,500,000 Telemetric Water Meter Annual Replacement Program 350,000 Water Main & Valve (Across Loop 820 East of Iron Horse 265,000 Blvd.) Water Main (Loop 820 Crossings) 1,770,000 Total Utility Projects 5,365,000 Budgeted 2012 C.O.s $ 5,660,000 Budgeted 2012 G.O.s AND C.O.s $ 8,045,000 M RH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. F.3 GN 2011 -099 Consider all matters incident and related to the issuance and sale of "City of North Richland Hills, Texas, General Obligation Refunding 'Bonds, Series 2012 ", including the adoption of Ordinance No. 3171 authorizing the issuance of such bonds, establishing parameters for the sale and issuance of such bonds and delegating certain matters to an authorized official of the City. Presenter: Larry Koonce, Finance Director Summarv: Discussion and request for authorization to issue general obligation refunding bonds. General Descrir)tion: City staff is exploring the possibility of a potential refunding. Recent market conditions, which include lower interest rates on bonds, have created the potential to refund or refinance existing bonds at significantly lower rates than the original issue. The circumstances surrounding this refunding are slightly different than in past years, but potentially at least as beneficial as prior refundings. In April 2011, the City issued bonds that were identified as "bank qualifying ". This designation allowed the City to realize a lower interest rate, thus significant interest expense savings, than "non -bank qualifying" bonds would have. In order to keep the "bank qualifying" designation the City is not allowed to issue more than $10,000,000 in a calendar year, including refunding bonds. Because the refunding issue we are contemplating would put our calendar year total over $10,000,000 in calendar year 2011, we will not be able to close on the refunding before January 1, 2012. We can, however, negotiate and establish the bond interest rates prior to January 1. Staff believes we have a window of opportunity in the market. We would like to take advantage of this opportunity if conditions meet our criterion for refunding. In order to give ourselves some flexibility in negotiating a deal without setting a "fixed date" we would like to request that Council consider a "Parameters Ordinance ". This ordinance gives the City Manager as the "pricing officer" the ability to approve final pricing only if it falls within the Council's approved parameters. The parameters ordinance puts the bond issue in `Day -to -Day' mode. This means that bonds can be priced at any time and in an interest rate environment that is advantageous to the City, rather than being locked into pricing on the date of a Council meeting. Proposed Parameters Included in Parameter Ordinance for Council Consideration /Action Delegated Pricing Officer: City Manager y Maximum True Interest Cost: 3.50% (the average rate on the existing bonds is 4.38 %) Minimum Savings Threshold: 3.00% PV Savings y Maximum Principal Amount: $6,000,000 v Final Maturity Date: February 15, 2023 Expiration of Parameter Authority: 180 Days (maximum allowed by law) These benchmarks are in line with refundings the City has completed in the past. These rates and savings parameters would ensure significant reduced interest expense over the remaining maturity of the bonds (about 11 years). When pricing is accepted by the City Manager, we will communicate this information to Council in a work session or in another acceptable format. Once the Parameters Ordinance is approved, no further formal action is required by Council. Recommendation: To adopt Ordinance No. 3171 authorizing the issuance of the "City of North Richland Hills, Texas, General Obligation Refunding Bonds, Series 2012" and delegating certain matters relating to the sale and issuance of the bonds to an authorized City official and establishing parameters for the issuance and sale of such bonds. ORDINANCE NO. 3171 AN ORDINANCE authorizing the issuance of "CITY OF NORTH RICHLAND HILLS, TEXAS, GENERAL OBLIGATION REFUNDING BONDS, SERIES 2012 "; levying a continuing direct annual ad valorem tax for the payment of said Bonds; resolving other matters incident and related to the issuance, sale, payment and delivery of said Bonds; establishing procedures for the sale and delivery of said Bonds; and delegating matters relating to the sale and issuance of said Bonds to an authorized City official. WHEREAS, the City of North Richland Hills, Texas (the "City ") currently has outstanding obligations of the City of the following issues or series (hereinafter collectively called the "Refunded Obligations "), to wit: (1) City of North Richland Hills, Texas, Tax and Waterworks and Sewer System Surplus Revenue Certificates of Obligation, Series 2002, dated April 15, 2002 (the "Series 2002 Refunded Certificates "); (2) City of North Richland Hills, Texas, General Obligation Refunding and Improvement Bonds, Series 2002, dated April 15, 2002 (the "Series 2002 Refunded Bonds "); (3) City of North Richland Hills, Texas, Tax and Waterworks and Sewer System Surplus Revenue Certificates of Obligation, Series 2003, dated April 15, 2003 (the "Series 2003 Refunded Certificates "); and (4) City of North Richland Hills, Texas, General Obligation Bonds, Series 2003, dated April 15, 2003 (the "Series 2003 Refunded Bonds "); and WHEREAS, pursuant to the provisions of Chapter 1207 of the Texas Government Code, as amended ( "Chapter 1207 "), the City Council of the City (the "Council ") is authorized to issue refiinding bonds and deposit the proceeds of sale directly with any place of payment for the Refunded Obligations, or other authorized depository, and such deposit, when made in accordance with Chapter 1207 and the ordinances authorizing the issuance of the Refunded Obligations, shall constitute the making of firm banking and financial arrangements for the discharge and final payment of the Refunded Obligations; and WHEREAS, the City shall by this Ordinance, in accordance with the provisions of Section 1207.007, Texas Government Code, as amended, delegate to a Pricing Officer (hereinafter designated) the authority to determine the principal amount and certain other specified terms of the Bonds to be issued, negotiate the terms of sale thereof and select the specific maturities, in whole or in part, of the Refunded Obligations to be refunded; and WHEREAS, the Council hereby finds and determines that it is a public purpose and in the best interests of the City to refund the Refunded Obligations in order to achieve a present value debt service savings, with such savings, among other information and terms, to be included in a pricing certificate (the "Pricing Certificate') to be executed by the Pricing Officer, all in accordance with the provisions of Section 1207.007, Texas Government Code, as amended; now, therefore 95290236.1111110480 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF NORTH RICHLAND HILLS, TEXAS:. SECTION 1. Authorization - Series Designation - Principal Amount - Purpose - Bond Date General obligation refunding bonds of the City shall be and are hereby authorized to be issued in the maximum aggregate principal amount hereinafter set forth to be designated and bear the title "CITY OF NORTH RICHLAND HILLS, TEXAS, GENERAL OBLIGATION REFUNDING BONDS, SERIES 2012 ", or such other designation as specified in the Pricing Certificate (herein referred to as the "Bonds "), for the purpose of providing funds for the discharge and final payment of certain obligations of the City (described in the preamble hereof and finally identified in the Pricing Certificate and referred to herein as the "Refunded Obligations ") and to pay the costs and expenses of issuance, in accordance with the authority conferred by and in conformity with the Constitution and laws of the State of Texas, including Chapter 1207. The Bonds shall be dated (the "Bond Date ") as provided in the Pricing Certificate. SECTION 2. Fully Registered Obligations - Terms. The Bonds shall be issued as fully registered obligations, without coupons, and as either or both "Current Interest Bonds" (obligations paying accrued interest to the holders or owners on and at stated intervals prior to maturity) and "Capital Appreciation Bonds" (obligations paying no accrued interest to the holders or owners prior to maturity). (a) Current Interest Bonds. Current Interest Bonds (other than the Initial Bonds referenced in Section 8 hereof) shall be in denominations of $5,000 or any integral multiple (within a Stated Maturity) thereof, shall be lettered "R" and numbered consecutively from one (1) upward and principal shall become due and payable on a date certain in each of the years and in amounts (the "Stated Maturities ") and bear interest at the rate(s) per annum in accordance with the details of the Current Interest Bonds as set forth in the Pricing Certificate. The Current Interest Bonds shall bear interest on the unpaid principal an►ounts from the date specified in the Pricing Certificate at the rate(s) per annum shown in the Pricing Certificate (calculated on the basis of a 360 -day year consisting of twelve 30 -day months). Interest on the Current Interest Bonds shall be payable in each year, on the dates, and commencing on the date, set forth in the Pricing Certificate. (b) Capital Appreciation Bonds. Capital Appreciation Bonds (other than the Initial Bonds referenced in Section 8 hereof) shall each be issued in Maturity Amounts (the "Accreted Value" [as hereinafter defined] at maturity) of $5,000, or any integral multiple thereof within. a Stated Maturity, shall be lettered "CAB" and numbered consecutively from One (1) upward, and the original principal amounts of the Capital Appreciation Bonds, shall accrue interest at the interest rate(s) stated in the Pricing Certificate, and shall become due and payable on a date certain in each of the years (also referred to herein as the "Stated Maturities ") in the Maturity Amounts set forth in the Pricing Certificate. Interest on the Capital Appreciation Bonds shall accrue from the date specified in the Pricing Certificate and be compounded semiannually in each year on the dates (the "Compounding Dates "), and commencing on the date, set forth in the Pricing Certificate, until the Stated Maturity or earlier redemption thereof The accreted interest on the Capital 93290236.1/11110480 2 Appreciation Bonds shall be payable at maturity or earlier redemption as a portion of the Maturity Amount or Accreted Value thereof. The term "Accreted Value ", as used herein with respect to the Capital Appreciation Bonds, shall mean the original principal amount of a. Capital Appreciation Bond, plus the initial premium, if any, paid therefor, with interest thereon compounded semiannually to the Compounding Date next preceding the date of such calculation (or the date of calculation, if such calculation is made on a Compounding Date), at the respective interest rates stated in the Pricing Certificate therefor and, with respect to each $5,000 Accreted Value at maturity, as set forth in the Accreted Value table attached to the Pricing Certificate and in the Official Statement referred to in the Pricing Certificate. For any day other than a Compounding Date, the Accreted Value of a Capital Appreciation Bond shall be determined by a straight line interpolation between the values for the applicable semiannual Compounding Dates (based on 30 -day months). SECTION 3. DeleLyation of Authority to Prlcin2 Officer. (a) As authorized by Section 1207.007, Texas Government Code, as amended, the City Manager of the City (the "Pricing Officer ") is hereby authorized to act on behalf of the City in selling and delivering the Bonds and carrying out the other procedures specified in this Ordinance, including selection of the specific maturities or series, in whole or in part, of the Refunded Obligations to be refunded, determining the aggregate principal amount of the Bonds, the date of the Bonds, any additional or different designation or title by which the Bonds shall be known, the price at which the Bonds will be sold, the manner of sale (negotiated, privately placed or competitively bid), the years in which the Bonds will mature, the principal amount or Maturity Amount to mature in each of such years, the rate of interest to be borne by each such maturity, the date from which interest on the Bonds will accrue, the interest payment dates, the record date, the compounding dates, the price and terms upon and at which the Bonds shall be subject to redemption prior to maturity at the option of the City, as well as any mandatory sinking fiend redemption provisions, determination of the use of a book -entry -only securities clearance, settlement and transfer system, the designation of a paying agent/registrar, the designation of an escrow agent satisfying the requirements of Chapter 1207, the terms of any bond insurance applicable to the Bonds, including any modification of the continuing disclosure undertaking contained in Section 31 hereof as may be required by the purchasers of the Bonds in connection with any amendments to Rule 15c2 -12, and all other matters relating to the issuance, sale and delivery of the Bonds, all of which shall be specified in the Pricing Certificate, provided that: (i) the aggregate original principal amount of the Bonds shall not exceed $6,000,000; (ii) the refunding must produce present value debt service savings of at least 3.00 %, net of any City contribution; (iii) the maximum true interest cost for the Bonds shall not exceed 3.50 %; (iv) the maximum maturity date of the Bonds shall not exceed February 15, 2023. The execution of the Pricing Certificate shall evidence the sale date of the Bonds by the City to the Purchasers (hereinafter defined). 952902361/11110480 If the Pricing Officer determines that bond insurance results in a net reduction of the City's interest costs associated with the Bonds, then the Pricing Officer is authorized, in connection with effecting the sale of the Bonds, to make the selection of the municipal bond insurance company for the Bonds (the "Insurer ") and to obtain from the Insurer a municipal bond insurance policy in support of the Bonds. The Pricing Officer shall have the authority to determine the provisions of the commitment for any such policy and to execute any documents to effect the issuance of said policy by the Insurer. (b) In establishing the aggregate principal amount of the Bonds, the Pricing Officer shall establish an amount not exceeding the amount authorized in subsection (a)(i) above, which shall be sufficient in amount to provide for the purposes for which the Bonds are authorized and to pay costs of issuing the Bonds. The delegation made hereby shall expire if not exercised by the Pricing Officer within 180 days of the date hereof. The Bonds shall be sold to the purchaser(s)/underwriter(s) named in the Pricing Certificate (the "Purchasers "), at such price and with and subject to such terms as set forth in the Pricing Certificate and the Purchase Contract (hereinafter defined), and may be sold by negotiated or competitive sale or by private placement. The Pricing Officer is hereby delegated the authority to designate the Purchasers, which delegation shall be evidenced by the execution of the Pricing Certificate. SECTION 4. Terms of Pavment - Pavina AaenVRemstrar. The principal of, premium, if any, and the interest on the Bonds, due and payable by reason of maturity, redemption or otherwise, shall be payable only to the registered owners or holders of the Bonds (hereinafter called the "Holders ") appearing on the registration and transfer books maintained by the Paying Agent/Registrar, and the payment thereof shall be in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts, and shall be without exchange or collection charges to the Holders.. The selection and appointment of the Paying Agent/Registrar for the Bonds shall be as provided in the Pricing Certificate. Books and records relating to the registration, payment, exchange and transfer of the Bonds (the "Security Register ") shall at all times be kept and maintained on behalf of the City by the Paying Agent/Registrar, all as provided herein, in accordance with the terms and provisions of a "Paying Agent/Registrar Agreement," substantially in the form attached to the Pricing Certificate and such reasonable rules and regulations as the Paying Agent/Registrar and the City may prescribe. The Pricing Officer is hereby authorized to execute and deliver such Paying Agent/Registrar Agreement in connection with the delivery of the Bonds. The City covenants to maintain and provide a Paying Agent /Registrar at all times until the Bonds are paid and discharged, and any successor Paying Agent/Registrar shall be a commercial bank, trust company, financial institution, or other entity qualified and authorized to serve in such capacity and perform the duties and services of Paying Agent/Registrar. Upon any change in the Paying Agent/Registrar for the Bonds, the City agrees to promptly cause a written notice thereof to be sent to each Holder by United States Mail, first class postage prepaid, which notice shall also give the address of the new Paying Agent/Registrar. The Bonds shall be payable at their Stated Maturities or upon their earlier redemption, only upon the presentation and surrender of the Bonds to the Paying Agent/Registrar at its designated offices provided in the Pricing Certificate (the "Designated Payment/Transfer Office'); provided, however, while a Bond is registered to Cede & Co., the payment thereof upon a partial redemption of the principal amount (with respect to Current Interest Bonds) or 952902361/11110480 4 Maturity Amount (with respect to Capital Appreciation Bonds) thereof may be accomplished without presentation and surrender of such Bond. Interest accreted on a. Capital Appreciation Bond shall be payable at its Stated Maturity or upon prior redemption as a portion of the Accreted Value or Maturity Amount. Interest on a Current Interest Bond shall be paid by the Paying Agent/Registrar to the Holders whose names appears in the Security Register at the close of business on the Record Date (which shall be set forth in the Pricing Certificate) and such interest payments shall be made (i) by check sent United States Mail, first class postage prepaid, to the address of the Holder recorded in the Security Register or (ii) by such other method, acceptable to the Paying Agent/Registrar, requested by, and at the risk and expense of, the Holder. If the date for the payment of the principal of or interest on the Bonds shall be a Saturday, Sunday, a legal holiday, or a day on which banking institutions in the city where the Designated Payment/Transfer Office of the Paying Agent/Registrar is located are authorized by law or executive order to be closed, then the date for such payment shall be the next succeeding day which is not such a Saturday, Sunday, legal holiday, or day on which banking institutions are authorized to be closed; and payment on such date shall have the same force and effect as if made on the original date payment was due. In the event of a non- payment of interest on one or more maturities of the Current Interest Bonds on a scheduled payment date, and for thirty (34) days thereafter, a new record date for such interest payment (a "Special Record Date ") will be established by the Paying Agent/Registrar, if and when funds for the payment of such past due interest have been received from the City. Notice of the Special Record Date and of the scheduled payment date of the past due interest (which shall be fifteen (15) days after the Special Record Date) shall be sent at least five (5) business days prior to the Special Record Date by United States Mail, first class postage prepaid, to the address of each Holder of the Current Interest Bonds appearing on the Security Register at the close of business on the last business day next preceding the date of mailing of such notice. SECTION 5. Registration - Transfer - Exchange of Bonds - Predecessor Bonds. A Security Register relating to the registration, payment and transfer or exchange of the Bonds shall at all times be kept and maintained by the City at the Designated Payment/Transfer Office of the Paying Agent/Registrar, as provided herein and in accordance with the provisions of the Paying Agent/Registrar Agreement and such rules and regulations as the Paying Agent/Registrar and the City may prescribe. The Paying Agent/Registrar shall obtain, record, and maintain in the Security Register the name and address of each and every Holder of the Bonds issued under and pursuant to the provisions of this Ordinance, or if appropriate, the nominee thereof. Any Bond may be transferred or exchanged for Bonds of like kind, maturity, and amount and in authorized denominations upon the Security Register by the Holder, in person or by his duly authorized agent, upon surrender of such Bond to the Paying Agent /Registrar at its Designated Payment/Transfer Office for cancellation, accompanied by a written instrument of transfer or request for exchange duly executed by the Holder or by his duly authorized agent, in form satisfactory to the Paying Agent/Registrar. Upon surrender for assignment or transfer of any Bond (other than the Initial Bonds authorized in Section 8 hereof) for transfer at the Designated Payment/Transfer Office of the Paying Agent/Registrar, one or more new Bonds, executed on behalf of and furnished by the City, shall be registered and issued to the assignee or transferee of the previous Holder; such Bonds to be of authorized denominations, of like Stated Maturity, and of a like aggregate 95290236.1111110480 5 principal amount (with respect to Current Interest Bonds) or Maturity Amount (with respect to Capital Appreciation Bonds) as the Bond or Bonds surrendered for transfer. At the option of the Holder, Bonds (other than the Initial Bonds authorized in Section 8 hereof) may be exchanged for other Bonds of authorized denominations and having the same Stated Maturity, bearing the same rate of interest and of like aggregate principal amount (with respect to Current Interest Bonds) or Maturity Amount (with respect to Capital Appreciation Bonds) as the Bonds surrendered for exchange, upon surrender of the Bonds to be exchanged at the Designated Payment/Transfer Office of the Paying Agent/Registrar. Whenever any Bonds are surrendered for exchange, the Paying Agent/Registrar shall register and deliver new Bonds, executed on behalf of and furnished by the City, to the Holder requesting the exchange. All Bonds issued upon any such transfer or exchange of Bonds shall be delivered to the Holders at the Designated Payment/Transfer Office of the Paying Agent/Registrar or sent by United States Mail, first class postage prepaid, to the Holders, and, upon the registration and delivery thereof, the same shall be the valid obligations of the City, evidencing the same obligation to pay and entitled to the same benefits under this Ordinance, as the Bonds surrendered in such transfer or exchange. All transfers or exchanges of Bonds pursuant to this Section shall be made without expense or service charge to the Holder, except as otherwise herein provided, and except that the Paying Agent/Registrar shall require payment by the Holder requesting such transfer or exchange of any tax or other governmental charges required to be paid with respect to such transfer or exchange. Bonds canceled by reason of an exchange or transfer pursuant to the provisions hereof are hereby defined to be "Predecessor Bonds," evidencing all or a portion, as the case may be, of the same obligation to pay evidenced by the new Bond or Bonds registered and delivered in the exchange or transfer therefor. Additionally, the term "Predecessor Bonds" shall include any mutilated, lost, destroyed, or stolen Bond for which a replacement Bond has been issued, registered, and delivered in lieu thereof pursuant to the provisions of Section 11 hereof, and such new replacement Bond shall be deemed to evidence the same obligation as the mutilated, lost, destroyed, or stolen Bond.. Neither the City nor the Paying Agent/Registrar shall be required to transfer or exchange any Bond called for redemption, in whole or in part, within forty -five (45) days of the date fixed for the redemption of such Bond; provided, however, such limitation on transferability shall not be applicable to an exchange by the Holder of the unredeemed balance of a Bond called for redemption in part. SECTION 6. Book - Enter -Only Transfers and Transactions. Notwithstanding the provisions contained in Sections 4 and 5 hereof relating to the payment and transfer /exchange of the Bonds, the City hereby approves and authorizes the use of "Book- Entry -Only" securities clearance, settlement, and transfer system provided by The Depository Trust Company, a limited purpose trust company organized under the laws of the State of New York ( "DTC "), in accordance with the requirements and procedures identified in the current DTC Operational Arrangements memorandum, as amended, the Blanket Issuer Letter of Representations, by and between the City and DTC, and the Letter of Representations from the Paying Agent/Registrar to DTC (collectively, the "Depository Agreement') relating to the Bonds. 952902361/11110480 6 In the event the Pricing Officer elects to utilize DTC's "Book- Entry -Only" System, which election shall be made by the Pricing Officer in the Pricing Certificate, pursuant to the Depository Agreement and the rules of DTC, the Bonds shall be deposited with DTC and who shall hold said Bonds for its participants (the "DTC Participants "). While the Bonds are held by DTC under the Depository Agreement, the Holder of the Bonds on the Security Register for all purposes, including payment and notices, shall be Cede & Co., as nominee of DTC, notwithstanding the ownership of each actual purchaser or owner of each Bond (the "Beneficial Owners ") being recorded in the records of DTC and DTC Participants.. In the event DTC determines to discontinue serving as securities depository for the Bonds or otherwise ceases to provide book -entry clearance and settlement of securities transactions in general or the City determines that DTC is incapable of properly discharging its duties as securities depository for the Bonds, the City covenants and agrees with the Holders of the Bonds to cause Bonds to be printed in definitive form and provide for the Bond certificates to be issued and delivered to DTC Participants and Beneficial Owners, as the case may be. Thereafter, the Bonds in definitive form shall be assigned, transferred and exchanged on the Security Register maintained by the Paying Agent/Registrar and payment of such Bonds shall be made in accordance with the provisions of Sections 4 and 5 hereof. SECTION 7. Execution - Registration. The Bonds shall be executed on behalf of the City by the Mayor under the City's seal reproduced or impressed thereon and attested by the City Secretary. The signature of said officials on the Bonds may be manual or facsimile. Bonds bearing the manual or facsimile signatures of individuals who are or were the proper officials of the City on the date of the adoption of this Ordinance shall be deemed to be duly executed on behalf of the City, notwithstanding that such individuals or either of them shall cease to hold such offices at the time of delivery of the Bonds to the initial purchaser(s) and with respect to Bonds delivered in subsequent exchanges and transfers, all as authorized and provided in Chapter 1201 of the Texas Government Code, as amended. No Bond shall be entitled to any right or benefit under this Ordinance, or be valid or obligatory for any purpose, unless there appears on such Bond either a certificate of registration substantially in the form provided in Section 9(c), manually executed by the Comptroller of Public Accounts of the State of Texas, or his or her duly authorized agent, or a certificate of registration substantially in the form provided in Section 9(d), manually executed by an authorized officer, employee or representative of the Paying Agent/Registrar, and either such certificate duly signed upon any Bond shall be conclusive evidence, and the only evidence, that such Bond has been duly certified, registered, and delivered. SECTION 8. Initial Bonds. The Bonds herein authorized shall be initially issued as fully registered Bonds of the appropriate kind (Current Interest Bonds and Capital Appreciation Bonds) as specified in the Pricing Certificate, being (i) a single, fully registered Current Interest Bond in the aggregate principal amount noted and principal installments to become due and payable as provided in the Pricing Certificate and numbered T -1, and (ii) a single, fully registered Capital Appreciation Bond in the aggregate Maturity Amount noted, and with installments of such Maturity Amount to become due and payable as provided, in the Pricing Certificate and numbered TCAB -1 (hereinafter called the "Initial Bonds ") and the Initial Bonds shall be registered in the name of the initial purchaser(s) or the designee thereof. The Initial Bonds shall be the Bonds submitted to the Office of the Attorney General of the State of Texas for approval, certified and registered by the Office of the Comptroller of Public Accounts of the 95290236.1/11110480 7 State of Texas and delivered to the initial purchaser(s). Any time after the delivery of the Initial Bands, the Paying Agent/Registrar, pursuant to written instructions from the initial purchaser(s), or the designee thereof, shall cancel the Initial Bonds delivered hereunder and exchange therefor definitive Bonds of like kind and of authorized denominations, Stated Maturities, principal amounts (with respect to Current Interest Bonds) or Maturity Amounts (with respect to the Capital Appreciation Bonds) and bearing applicable interest rates for transfer and delivery to the Holders named at the addresses identified therefor; all pursuant to and in accordance with such written instructions from the initial purchaser(s), or the designee thereof, and such other information and documentation as the Paying Agent/Registrar may reasonably rewire. SECUON 9. Forms (a) Forms Generallv. The Bonds, the Registration Certificate of the Comptroller of Public Accounts of the State of Texas, the Registration Certificate of Paying Agent/Registrar, and the form of Assignment to be printed on each of the Bonds, shall be substantially in the forms set forth in this Section with such appropriate insertions, omissions, substitutions, and other variations as are permitted or required by this Ordinance and, with the Bonds to be completed and modified with the mfoi7nation set forth in the Pricing Certificate, may have such letters, numbers, or other marks of identification (including identifying numbers and letters of the Committee on Uniform Securities Identification Procedures of the American Bankers Association) and such legends and endorsements (including insurance legends on insured Bonds and any reproduction of an opinion of counsel) thereon as may, consistently herewith, be established by the City or determined by the Pricing Officer. The Pricing Certificate shall set forth the final and controlling forms and terns of the Bonds. Any portion of the text of any Bonds may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Bond. The definitive Bonds and the Initial Bonds shall be printed, lithographed, engraved, typewritten, photocopied or otherwise reproduced in any other similar manner, all as determined by the officers executing such Bonds as evidenced by their execution thereof. 93290236.1/11110480 8 (b) Form of Definitive Bonds. [CURRENT INTEREST BONDS] REGISTERED PRINCIPAL AMOUNT NO. R- $ UNITED STATES OF AMERICA STATE OF TEXAS CITY OF NORTH RICHLAND HILLS GENERAL OBLIGATION REFUNDING BOND SERIES 2412 Bond Date: Interest Rate: Stated Maturity: CUSIP No.. ,20 % ,24 Registered Owner: Principal Amount: DOLLARS The City of North Richland Hills (hereinafter referred to as the "City'), a body corporate and political subdivision in the County of Tarrant, State of Texas, for value received, acknowledges itself indebted to and hereby promises to pay to the Registered Owner named above, or the registered assigns thereof, on the Stated Maturity date specified above the Principal Amount hereinabove stated (or so much thereof as shall not have been paid upon prior redemption), and to pay interest on the unpaid principal amount hereof from the interest payment date next preceding the "Registration Date" of this Bond appearing below (unless this Bond bears a "Registration Date" as of an interest payment date, in which case it shall bear interest from such date, or unless the "Registration Date" of this Bond is prior to the initial interest payment date in which case it shall bear interest from the ) at the per annum rate of interest specified above computed on the basis of a 360 day year of twelve 30 day months; such interest being payable on and in each year, commencing , 20, until maturity or prior redemption. Principal of this Bond is payable at its Stated Maturity or upon its prior redemption to the registered owner hereof, upon presentation . and surrender, at the designated offices of the Paying Agent/Registrar executing the registration certificate appearing hereon, initially in , or, with respect to a successor Paying Agent/Registrar, at the designated offices of such successor (the "Designated Payment /Transfer Office "); provided, however, while this Bond is registered to Cede & Co., the payment of principal upon a partial redemption of the principal amount hereof may be accomplished without presentation and surrender of this Bond. Interest is payable to the registered owner of this Bond (or one or more Predecessor Bonds, as defined in the Ordinance hereinafter referenced) whose name appears on the "Security Register" maintained by the Paying Agent/Registrar at the close of business on the "Record Date ", which is the day of the month next preceding each interest payment date, and interest shall be paid by the Payinng Agent/Registrar by check sent United States Mail, first class postage prepaid, to the address of the registered owner recorded in the Security Register or by such other method, acceptable to the Paying Agent/Registrar, requested by, and at the risk and expense of, the registered owner. If the date for the payment of the principal of or interest on the Bonds shall be a Saturday, Sunday, a legal holiday, or a day on which banking institutions in the city where the Designated 95296236.1111110480 9 Payment /Transfer Office of the Paying Agent /Registrar is located are authorized by law or executive order to close, then the date for such payment shall be the next succeeding day which is not such a Saturday, Sunday, legal holiday, or day on which banking institutions are authorized to close; and payment on such date shall have the same force and effect as if made on the original date payment was due. All payments of principal of, premiurrr, if any, and interest on this Bond shall be without exchange or collection charges to the owner hereof and in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts. This Bond is one of the series specified in its title issued in the aggregate principal amount of $ (herein referred to as the "Bonds') for the purpose of providing funds for the discharge and final payment of certain outstanding obligations of the City and to pay the costs and expenses of issuance, under and in strict conformity with the Constitution and laws of the State of Texas, including Chapter 1207 of the Texas Government Code, as amended, and pursuant to an Ordinance adopted by the City Council of the City (herein referred to as the "Ordinance "). The Bonds are issued in part as "Current Interest Bonds ", which total in principal amount $ and pay accrued interest at stated intervals to registered owners and in part as "Capital Appreciation Bonds ", which total in original principal amount $ and pay no accrued interest prior to their Stated Maturities. [The Bonds maturing on the dates hereinafter identified (the "Term Bonds ") are subject to mandatory redemption prior to maturity with funds on deposit in the Interest and Sinking Fund established and maintained for the payment thereof in the Ordinance, and shall be redeemed in part prior to maturity at the price of par and accrued interest thereon to the date of redemption, and without premium, on the dates and in the principal amounts as follows: Term Bonds due Redemption Date 20 20 , 20 Princit)al Amount Term Bonds due Rddemvtion Date ,20 ,20 , 20 PrincMal Amount Stated maturity. The particular Term Bonds of a Stated Maturity to be redeemed on each redemption date shall be chosen by lot by the Paying Agent/Registrar; provided, however, that the principal amount of Term Bonds for a Stated Maturity required to be redeemed on a mandatory redemption date may be reduced, at the option of the City, by the principal amount of Term Bonds of like Stated Maturity which, at least fifty (50) days prior to a mandatory redemption date, (1) shall have been acquired by the City at a price not exceeding the principal amount of such Term Bonds plus accrued interest to the date of purchase thereof, and delivered to the Paying Agent/Registrar for cancellation or (2) shall have been redeemed pursuant to the optional redemption provisions appearing below and not theretofore credited against a mandatory redemption requirement.] The Current Interest Bonds maturing on and after 20 , may be redeemed prior to their Stated Maturities, at the option of the City, in whole or in part in principal amounts of $5,000 or any integral multiple thereof (and if within a Stated Maturity by lot by the Paying Agent/Registrar), on , 20, or on any date thereafter, at the redemption price of par, together with accrued interest to the date of redemption. 952902361/11110480 10 At least thirty (30) days prior to the date fixed for any redemption of Bonds, the City shall cause a written notice of such redemption to be sent by United States Mail, first class postage prepaid, to the registered owners of each Bond to be redeemed, in whole or in part, at the address shown on the Security Register and subject to the terms and provisions relating thereto contained in the Ordinance.. If a Bond (or any portion of its principal sum) shall have been duly called for redemption and notice of such redemption duly given, then upon such redemption date such Bond (or the portion of its principal sum to be redeemed) shall become due and payable, and interest thereon shall cease to accrue from and after the redemption date therefor; provided moneys for the payment of the redemption price and the interest on the principal amount to be redeemed to the date of redemption are held for the purpose of such payment by the Paying Agent/Registrar. In the event a portion of the principal amount of a Bond is to be redeemed and the registered owner is someone other than Cede & Co., payment of the redemption price of such principal amount shall be made to the registered owner only upon presentation and surrender of such Bond to the Designated Payment/Transfer Office of the Paying Agent/Registrar, and a new Bond or Bonds of like maturity and interest rate in any authorized denominations provided by the Ordinance for the then unredeemed balance of the principal sum thereof will be issued to the registered owner, without charge. If a Bond is selected for redemption, in whole or in part, the City and the Paying Agent/Registrar shall not be required to transfer such Bond to an assignee of the registered owner within forty -five (45) days of the redemption date therefor; provided, however, such limitation on transferability shall not be applicable to an exchange by the registered owner of the unredeemed balance of a Bond redeemed in part. With respect to any optional redemption of the Bonds, unless moneys sufficient to pay the principal of and premium, if any, and interest on the Bonds to be redeemed shall have been received by the Paying Agent/Registrar prior to the giving of such notice of redemption, such notice may state that said redemption is conditional upon the receipt of such moneys by the Paying Agent/Registrar on or prior to the date fixed for such redemption, or upon the satisfaction of any prerequisites set forth in such notice of redemption; and, if sufficient moneys are not received, such notice shall be of no force and effect, the City shall not redeem such Bonds and the Paying Agent/Registrar shall give notice, in the manner ui which the notice of redemption was given, to the effect that the Bonds have not been redeemed. The Bonds are payable from the proceeds of an ad valorem tax levied, within the limitations prescribed by law, upon all taxable property in the City. Reference is hereby made to the Ordinance, a copy of which is on file in the Designated Payment/Transfer Office of the Paying Agent/Registrar, and to all of the provisions of which the owner or holder of this Bond by the acceptance hereof hereby assents, for definitions of terms; the description of and the nature and extent of the tax levied for the payment of the Bonds; the terns and conditions relating to the transfer or exchange of this Bond; the conditions upon which the Ordinance may be amended or supplemented with or without the consent of the Holders; the rights, duties, and obligations of the City and the Paying Agent/Registrar; the terms and provisions upon which this Bond may be discharged at or prior to its maturity or redemption, and deemed to be no longer Outstanding thereunder; and for other terms and provisions contained therein. Capitalized terms used herein and not otherwise defined have the meanings assigned in the Ordinance. This Bond, subject to certain limitations contained in the Ordinance, may be transferred on the Security Register only upon its presentation and surrender at the Designated Payment /Transfer Office of the Paying Agent/Registrar, with the Assignment hereon duly 952902361/11110480 11 endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Paying Agent/Registrar duly executed by, the registered owner hereof, or his duly authorized agent. When a transfer on the Security Register occurs, one or more new fully registered Bonds of the same Stated Maturity, of authorized denominations, bearing the same rate of interest, and of the same aggregate principal amount will be issued by the Paying Agent/Registrar to the designated transferee or transferees. The City and the Paying Agent/Registrar, and any agent of either, shall treat the registered owner whose name appears on the Security Register (i) on the Record Date as the owner entitled to payment of interest hereon, (ii) on the date of surrender of this Bond as the owner entitled to payment of principal at the Stated Maturity, or its redemption, in whole or in part, and (iii) on any other date as the owner for all other purposes, and neither the City nor the Paying Agent/Registrar, or any agent of either, shall be affected by notice to the contrary. In the event of nonpayment of interest on a Bond on a. scheduled payment date and for thirty (30) days thereafter, a new record date for such interest payment (a "Special Record Date ") will be established by the Paying Agent/Registrar, if and when funds for the payment of such interest have been received from the City. Notice of the Special Record Date and of the scheduled payment date of the past due interest (which shall be fifteen (15) days after the Special Record Date) shall be sent at least five (5) business days prior to the Special Record Date by United States Mail, first class postage prepaid, to the address of each registered owner of a Bond appearing on the Security Register at the close of business on the last business day next preceding the date of mailing of such notice. It is hereby certified, recited, represented, and declared that the City is a body corporate and political subdivision duly organized and legally existing under and by virtue of the Constitution and laws of the State of Texas; that the issuance of the Bonds is duly authorized by law; that all acts, conditions, and things required to exist and be done precedent to and in the issuance of the Bonds to render the same lawful and valid obligations of the City have been properly done, have happened, and have been performed in regular and due time, form, and manner as required by the Constitution and laws of the State of Texas, and the Ordinance; that the Bonds do not exceed any Constitutional or statutory limitation; and that due provision has been made for the payment of the principal of and interest on the Bonds by the levy of a tax as aforestated. In case any provision in this Bond shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The terms and provisions of this Bond and the Ordinance shall be construed in accordance with and shall be governed by the laws of the State of Texas. IN WITNESS WHEREOF, the City Council of the City has caused this Bond to be duly executed under the official seal of the City. CITY OF NORTH RICHLAND HILLS, . TEXAS ATTEST: City Secretary (City Sea]) Mayor 952902361/11110480 12 [CAPITAL APPRECIATION BONDS] REGISTERED 1vIATURITY _MOUNT NO. CAB- $ UNITED STATES OF AMERICA STATE OF TEXAS CITY OF NORTH RICHLAND HILLS GENERAL OBLIGATION REFUNDING BOND SERIES 2012 Bond Date: Stated Yield: Stated Maturity: CUSIP No.: , 20 % , 20 Registered Owner: Maturity Amount: DOLLARS The City of North Richland Hills (hereinafter referred to as the "City'), a body corporate and political subdivision in the County of Tarrant, State of Texas, for value received, acknowledges itself indebted to and hereby promises to pay to the Registered Owner named above, or the registered assigns thereof, on the Stated Maturity date specified above, the Maturity Amount stated above (or so much thereof as shall not have been paid upon prior redemption). The Maturity Amount of this Bond represents the accretion of the original principal amount of this Bond (including the initial premium, if any, paid herefor) from the date of delivery to the initial purchasers to the Stated Maturity and such accretion in value occurring at the above Stated Yield and compounding on , 20, and semiannually thereafter on and A table of the "Accreted Values" per $5,000 "Accreted Value" at maturity is printed on this Bond or attached hereto. The term "Accreted Value ", as used herein, means the original principal amount of this Bond plus the initial premium, if any, paid herefor with interest thereon compounded semiannually to and , as the case may be, next preceding the date of such calculation (or the date of calculation, if such calculation is made on or ) at the Stated Yield for the Stated Maturity shown above and in the above referenced Table of Accreted Values. For any date other than or , the Accreted Value of this Bond shall be determined by a straight line interpolation between the values for the applicable semiannual compounding dates (based on 30 -day months). If the date for the payment of the principal of or interest on the Bonds shall be a Saturday, Sunday, a legal holiday, or a day on which banking institutions in the city where the Designated Payment/Transfer Office of the Paying Agent/Registrar is located are authorized by law or executive order to close, then the date for such payment shall be the next succeeding day which is not such a Saturday, Sunday, legal holiday, or day on which banking institutions are authorized to close; and payment on such date shall have the same force and effect as if made on the original date payment was due. The Accreted Value of this Bond is payable at its Stated Maturity or on a redemption date to the registered owner hereof, upon presentation and surrender, at the designated offices of the Paying Agent/Registrar executing the registration certificate appearing hereon, initially in or, with respect to a successor Paying Agent/Registrar, at the designated offices of such successor (the "Designated Payment/Transfer Office "); provided, however, while this Bond is registered to Cede & Co., the payment of the Accreted Value hereof 952902361/11110480 13 upon a partial redemption of the Maturity Amount hereof may be accomplished without presentation and surrender of this Bond. Payment of the Maturity Amotnit or Accreted Value as of a redemption date of this Bond shall be without exchange or collection charges to the owner hereof and in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts. This Bond is one of the series specified in its title issued in the aggregate principal amount of $ (herein referred to as the "Bonds') for the purpose of providing funds for the discharge and final payment of certain outstanding obligations of the City and to pay the costs and expenses of issuance, under and in strict conformity with the Constitution and laws of the State of Texas, including Chapter 1207 of the Texas Government Code, as amended, and pursuant to an Ordinance adopted by the City Council of the City (herein referred to as the "Ordinance "). The Bonds are issued in part as "Current Interest Bonds ", which total in principal amount $ and pay accrued interest at stated intervals to registered owners and in part as "Capital Appreciation Bonds ", which total in original principal amount $ and pay no accrued interest prior to their Stated Maturities. The Capital Appreciation Bonds maturing on and after 20 may be redeemed prior to their Stated Maturities, at the option of the City, in whole or in pant in Maturity Amounts of $5,000 or any integral multiple thereof (and if within a Stated Maturity selected by lot by the Paying Agent/Registrar), on 20 , or on any date thereafter, at the redemption price of the Accreted Value (as determined and defined herein) as of the date of redemption. At least thirty (30) days prior to a redemption date, the City shall cause a written notice to be sent by United States Mail, first class postage prepaid, to the registered owners of the Bonds to be redeemed, and subject to the terms and provisions relating thereto contained in the Ordinance. If a Bond (or any portion of its Maturity Amount) shall have been duly called for redemption and notice of such redemption duly given, then upon such redemption date such Bond (or the portion of its Maturity Amount to be redeemed) shall become due and payable, and shall cease to accrete in value from and after the redemption date, provided moneys for the payment of the redemption price to the date of redemption are held for the purpose of such payment by the Paying Agent/Registrar. In the event a portion of the Maturity Amount of a Bond is to be redeemed and the registered owner hereof is someone other than Cede & Co., payment of the redemption price shall be made to the registered owner only upon presentation and surrender of such Bond to the Designated PaymentJTransfer Office of the Paying Agent/Registrar, and a new Bond or Bonds of like maturity and interest rate in any authorized denominations provided by the Ordinance for the then unredeemed balance of the Maturity Amount thereof will be issued to the registered owner, without charge. If a Bond is selected for redemption, in whole or in part, the City and the Paying Agent /Registrar shall not be required to transfer such Bond to an assignee of the registered owner within 45 days of the redemption date therefor; provided, however, such limitation on transferability shall not be applicable to an exchange by the registered owner of the unredeemed balance of a Bond redeemed in part. With respect to any optional redemption of the Bonds, unless certain prerequisites to such redemption required by the Ordinance have been met and moneys sufficient to pay the redemption price of the Bonds to be redeemed shall have been received by the Paying 95296236.1/11110486 14 Agent/Registrar prior to the giving of such notice of redemption, such notice may state that said redemption is conditional upon the satisfaction of such prerequisites and receipt of such moneys by the Paying Agent /Registrar on or prior to the date fixed for such redemption, or upon any prerequisite set forth in such notice of redemption. If a conditional notice of redemption is given and such prerequisites to the redemption and sufficient moneys are not received, such notice shall be of no force and effect, the City shall not redeem such Bonds and the Paying Agent /Registrar shall give notice, in the manner in which the notice of redemption was given, to the effect that the Bonds have not been redeemed.. The Bonds are payable from the proceeds of an ad valorem tax levied, within the limitations prescribed by law, upon all taxable property in the City. Reference is hereby made to the Ordinance, a copy of which is on file in the Designated Payment/Transfer Office of the Paying Agent/Registrar, and to all of the provisions of which the owner or holder of this Bond by the acceptance hereof hereby assents, for definitions of terms; the description of and the nature and extent of the tax levied for the payment of the Bonds; the terms and conditions relating to the transfer or exchange of this Bond; the conditions upon which the Ordinance may be amended or supplemented with or without the consent of the Holders; the rights, duties, and obligations of the City and the Paying Agent/Registrar; the terms and provisions upon which this Bond may be discharged at or prior to its maturity or redemption, and deemed to be no longer Outstanding thereunder; and for other terms and provisions contained therein. Capitalized terms used herein and not otherwise deemed have the meanings assigned in the Ordinance. This Bond, subject to certain limitations contained in the Ordinance, may be transferred on the Security Register only upon its presentation and surrender at the Designated Payment/Transfer Office of the Paying Agent/Registrar, with the Assignment hereon duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Paying Agent/Registrar duly executed by, the registered owner hereof, or his duly authorized agent. When a transfer on the Security Register occurs, one or more new fully registered Bonds of the same Stated Maturity, of authorized denominations, accniing interest at the same rate, and of the same aggregate Maturity Amount will be issued by the Paying Agent/Registrar to the designated transferee or transferees. The City and the Paying Agent/Registrar, and any agent of either, shall treat the registered owner whose name appears on the Security Register (i) on the date of surrender of this Bond as the owner entitled to payment of the Maturity Amount at its Stated Maturity, or Accreted Value at its redemption, in whole or in part, and {ii} on any other date as the owner for all other purposes, and neither the City nor the Paying Agent/Registrar, or any agent of either, shall be affected by notice to the contrary. It is hereby certified, recited, represented and declared that the City is a body corporate and political subdivision duly organized and legally existing under and by virtue of the Constitution and laws of the State of Texas; that the issuance of the Bonds is duly authorized by law; that all acts, conditions and things required to exist and be done precedent to and in the issuance of the Bonds to render the same lawful and valid obligations of the City have been properly done, have happened and have been performed in regular and due time, form and manner as required by the Constitution and laws of the State of Texas, and the Ordinance; that the Bonds do not exceed any Constitutional or statutory limitation; and that due provision has been made for the payment of the principal of and interest oil the Bonds by the levy of a tax as aforestated. In case any provision in this Bond shall be invalid, illegal, or unenforceable, the 95296236.1/11110480 15 validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The terms and provisions of this Bond and the Ordinance shall be construed in accordance with and shall be governed by the laws of the State of Texas. IN WITNESS WHEREOF, the City Council of the City has caused this Bond to be duly executed under the official seal of the City. CITY OF NORTH RICHL AND HILLS, TEXAS ATTEST: Mayor City Secretary (City Seal) NOTE TO PRINTER: Print the "Table of Accreted Values" on the Bonds as called for in paragraph one. (c) Form of Registration Certificate of Comptroller of Public Accounts to appear on Initial Bonds onlv. REGISTRATION CERTIFICATE OF COMPTROLLER OF PUBLIC ACCOUNTS OFFICE OF THE COMPTROLLER OF PUBLIC ACCOUNTS ( REGISTER NO. THE STATE OF TEXAS I HEREBY CERTIFY that this Bond has been examined, certified as to validity and approved by the Attorney General of the State of Texas, and duly registered by the Comptroller of Public Accounts of the State of Texas. WITNESS my signature and seal of office this Comptroller of Public Accounts of the State of Texas (Seal) 93290236.1/11110480 16 (d) Form of Certificate of Paving A2ent/Re2istrar to ammear on Definitive Bonds 2& - REGISTRATION CERTIFICATE OF PAYING AGENT }REGISTRAR This Bond has been duly issued and registered in the name of the Registered Owner shown above under the provisions of the within- mentioned Ordinance; the bond or bonds of the above entitled and designated series originally delivered having been approved by the Attorney General of the State of Texas and registered by the Comptroller of Public Accounts, as shown by the records of the Paying Agent/Registrar.. The designated office of the Paying Agent/Registrar in Payment/Transfer Office for this Bond. Registration Date:. (e) Form of Assignment.. is the Designated as Paying Agent/Registrar s Mk I ►N1 Authorized Signature FOR VALUE RECEIVED the undersigned hereby sells, assigns, and transfers unto (Print or typewrite name, address, and zip code of transferee): (Social Security or other identifying number: } the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints attorney to transfer the within Bond on the books kept for registration thereof, with full power of substitution in the premises. IX WN W13 Signature guaranteed: NOTICE: The signature on this assignment must correspond with the name of the registered owner as it appears on the face of the within Bond in every particular. 93290236.1/11110480 17 (f) The Initial Bonds for the Current Interest Bonds and the Capital Appreciation Bonds shall be in the respective forms set forth therefor in subsection (b) of this Section, except as follows: [CURRENT INTEREST INITIAL BONN)] Heading and paragraph one shall be amended to read as follows: NO. T -1 UNITED STATES OF AMERICA STATE OF TEXAS CITY OF NORTH RICHLAND HILLS GENERAL OBLIGATION REFUNDING BOND SERIES 2012 Bond Date: , 20 Registered Owner. Principal Amount: DOLLARS The City of North Richland Hills (hereinafter referred to as the "City'), a body corporate and political subdivision in the County of Tarrant, State of Texas, for value received, acknowledges itself indebted to and hereby promises to pay to the registered owner named above, or the registered assigns thereof, the Principal Amount hereinabove stated on in the years and in principal installments in accordance with the following schedule: STATED PRINCIPAL INTEREST MATURITY AMOUNT RATE(S) (Information to be inserted from Pricing Certificate) (or so much principal thereof as shall not have been redeemed prior to maturity) and to pay interest on the unpaid principal installments hereof from the at the per annum rates of interest specified above computed on the basis of a 360 -day year of twelve 30 -day months; such interest being payable on , 20_, and each and thereafter, until maturity or prior redemption. Principal installments of this Bond are payable in the year of maturity or on a redemption date to the registered owner hereof by (the "Paying Agent/Registrar "), upon presentation and surrender at its designated offices, initially in , or, with respect to a successor paying agent/registrar, at the designated office of such successor (the "Designated Payment/Transfer Office'). Interest is payable to the registered owner of this Bond whose name appears on the "Security Register" maintained by the Paying Agent /Registrar at the close of business on the "Record Date," which is the day of the month next preceding each interest payment date, and interest shall be paid by the Paying Agent /Registrar by check sent United States Mail, first class postage prepaid, to the address of the registered owner recorded in the Security Register or by such other method, acceptable to the Paying Agent/Registrar, requested by, and at the risk and expense of, the registered owner. All 95290236.1111110480 18 payments of principal of, premium, if any, and interest on this Bond shall be without exchange or collection charges to the registered owner hereof and in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts. If the date for the payment of the principal of or interest on the Bonds shall be a Saturday, Sunday, a legal holiday, or a day on which banking institutions in the city where the Designated Payment /Transfer Office of the Paying Agent/Registrar is located are authorized by law or executive order to be closed, then the date for such payment shall be the next succeeding day which is not such a Saturday, Sunday, legal holiday, or day on which banking institutions are authorized to be closed; and payment on such date shall have the same force and effect as if made on the original date payment was due. [CAPITAL APPRECIATION INITIAL BOND] Heading and first two paragraphs shall be amended to read as follows: REGISTERED MATURITY AMOUNT NO. TCAB -1 $ UNITED STATES OF AMERICA STATE OF TEXAS CITY OF NORTH RICHLAND HILLS GENERAL OBLIGATION REFUNDING BOND SERIES 2412 Bond Date: 1 20 Registered Owner: Maturity Amount: I!f WW!'' The City of North Richland Hills (hereinafter referred to as the "City'), a body corporate and political subdivision in the County of Tarrant, State of Texas, for value received, acknowledges itself indebted to and hereby promises to pay to the Registered Owner named above, or the registered assigns thereof, the aggregate Maturity Amount stated above on in each of the years and in installments in accordance with the following schedule: INSTALLMENT YEAR OF MATURITY STATED MATURITY AMOUNT YIELD(S) (Information to be inserted from Pricing Certificate) The respective installments of the Maturity Amount hereof represents the accretion of the original principal amounts of each year of maturity from the date of delivery to the initial purchasers ( } to the respective years of maturity (including the initial premium, if any, paid by the initial purchasers) and such accretion in values occurring at the respective Stated Yields and compounding on , 20, and semiannually thereafter on each and . A table of the "Accreted Values" per $5,404 "Accreted Value" at maturity is attached to this Bond. The term "Accreted Value ", as used herein, means the original principal amount of this Bond plus premium, if any, paid herefor with 952902361/11110480 19 interest thereon compounded semiannually to and , as the case may be, next preceding the date of such calculation (or the date of calculation, if such calculation is made on or ) at the respective Stated Yields shown above and in the Table of Accreted Values attached hereto. For any date other than or the Accreted Value of this Bond shall be determined by a straight line interpolation between the values for the applicable semiannual compounding dates (based on 30 -day months). If the date for the payment of the principal of or interest on the Bonds shall be a Saturday, Sunday, a legal holiday, or a day on which banking institutions in the city where the Designated Payment/Transfer Office of the Paying Agent/Registrar is located are authorized by law or executive order to be closed, then the date for such payment shall be the next succeeding day which is not such a Saturday, Sunday, legal holiday, or day on which banking institutions are authorized to be closed close; and payment on such date shall have the same force and effect as if made on the original date payment was due. The installments of the Maturity Amount or Accreted Value of this Bond are payable in the years of maturity or on a redemption date to the registered owner hereof, without exchange or collection charges, by (the "Paying Agent/Registrar "), upon presentation and surrender at its designated offices, initially in or, with respect to a successor paying agent/registrar, at the designated office of such successor (the "Designated Payment/Transfer Office "), and shall be payable in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts. SECTION 10. Levv of Taxes. To provide for the payment of the "Debt Service Requirements" of the Bonds, being (i) the interest on the Bonds and (ii) a sinking fund for their redemption at maturity or a sinking fund of 2% (whichever amount is the greater) there is hereby levied, and there shall be annually assessed and collected in due time, form, and manner, a tax on all taxable property in the City, within the limitations by law prescribed, sufficient to pay the principal of and interest on the Bonds as the same becomes due and payable; and such tax hereby levied on each one hundred dollars' valuation of taxable property in the City for the payment of the Debt Service Requirements of the Bonds shall be at a rate from year to year as will be ample and sufficient to provide funds each year to pay the principal of and interest on said Bonds while Outstanding; full allowance being made for delinquencies and costs of collection; the taxes levied, assessed, and collected for and on account of the Bonds shall be accounted for separate and apart from all other funds of the City and shall be deposited in the "SPECIAL SERIES 2012 GENERAL OBLIGATION REFUNDING BOND FUND ", or such other fund designation as specified in the Pricing Certificate (the "Interest and Sinking Fund ") to be maintained at an official depository of the City's fiords; and such tax hereby levied, and to be assessed and collected annually, is hereby pledged to the payment of the Bonds. PROVIDED, however, with regard to any payment to become due on the Bonds prior to the tax delinquency date next following the annual assessment of taxes levied which next follows the Bond Date, if any, sufficient current funds will be available and are hereby appropriated to make such payments; and the Mayor, Mayor Pro Tem, City Manager, Assistant City Manager, Director of Finance and City Secretary of the City, individually or jointly, are hereby authorized and directed to transfer and deposit in the Interest and Sinking Fund such current funds which, together with the accrued interest received from the initial purchasers, will be sufficient to pay 93290236.1/11110480 20 the payments due on the Bonds prior to the tax delinquency date next following the annual assessment of taxes levied which next follows the Bond Date. The Mayor, Mayor Pro Tem, City Manager, Assistant City Manager, Director of Finance and City Secretary of the City, individually or jointly, are hereby authorized and directed to cause to be transferred to the Paying Agent/Registrar for the Bonds, from funds on deposit in the Interest and Sinking Fund, amounts sufficient to fully pay and discharge promptly each installment of interest and principal of the Bonds as the same accrues or matures or comes due by reason of redemption prior to maturity; such transfers of fiends to be made in such manner as will cause collected funds to be deposited with the Paying Agent/Registrar on or before each principal and interest payment date for the Bonds. SECTION 11. Mutilated - Destroyed - Lost and Stolen Bonds. In case any Bond shall be mutilated, or destroyed, lost, or stolen, the Paying Agent/Registrar may execute and deliver a replacement Bond of like form and tenor, and in the same denomination and bearing a number not contemporaneously outstanding, in exchange and substitution for such mutilated Bond; and with respect to a lost, destroyed, or stolen Bond, a replacement Bond may be issued only upon the approval of the City and after (i) the filing by the Holder with the Paying Agent/Registrar of evidence satisfactory to the Paying Agent/Registrar of the destruction, loss, or theft of such Bond, and of the authenticity of the ownership thereof and (ii) the furnishing to the Paying Agent/Registrar of indemnification in an amount satisfactory to hold the City and the Paying Agent /Registrar harmless. All expenses and charges associated with such indemnity and with the preparation, execution and delivery of a replacement Bond shall be borne by the Holder of the Bond mutilated, or destroyed, lost, or stolen. Every replacement Bond issued pursuant to this Section shall be a valid and binding obligation of the City, and shall be entitled to all the benefits of this Ordinance equally and ratably with all other Outstanding Bonds; notwithstanding the enforceability of payment by anyone of the destroyed, lost, or stolen Bonds. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement and payment of mutilated, destroyed, lost, or stolen Bonds. SECTION 12. Satisfaction of Obligation of Citv. If the City shall pay or cause to be paid, or there shall otherwise be paid to the Holders, the principal of premium, if any, and interest on the Bonds, at the times and in the manner stipulated in this Ordinance and the Pricing Certificate, then the pledge of taxes levied under this Ordinance and all covenants, agreements, and other obligations of the City to the Holders shall thereupon cease, terminate, and be discharged and satisfied. Bonds or any principal amount(s) (with respect to Current Interest Bonds) and Maturity Amount (with respect to Capital Appreciation Bonds) thereof shall be deemed to have been paid within the meaning and with the effect expressed above in this Section when (i) money sufficient to pay in full such Bonds or the principal amount(s) thereof at maturity or to the redemption date therefor, together with all interest due thereon, shall have been irrevocably deposited with and held in trust by the Paying Agent /Registrar, or an authorized escrow agent, or (ii) Government Securities shall have been irrevocably deposited in trust with the Paying Agent/Registrar, or an authorized escrow agent, which Government Secuuities have been certified by an independent 95240236.1/11110480 21 accounting firm to mature as to principal and interest in such amounts and at such times as will insure the availability, without reinvestment, of sufficient money, together with any moneys deposited therewith, if any, to pay when due the principal of and interest on such Bonds, or the principal amount(s) thereof, on and prior to the Stated Maturity thereof or (if notice of redemption has been duly given or waived or if irrevocable arrangements therefor acceptable to the Paying Agent/Registrar have been made) the redemption date thereof. The City covenants that no deposit of moneys or Government Securities will be made under this Section and no use made of any such deposit which would cause the Bonds to be treated as "arbitrage bonds" within the meaning of Section 148 of the Internal Revenue Code of 1986, as amended, or regulations adopted pursuant thereto. Any moneys so deposited with the Paying Agent/Registrar, or an authorized escrow agent, and all income from Government Securities held in trust by the Paying Agent/Registrar, or an authorized escrow agent, pursuant to this Section which is not required for the payment of the Bonds, or any principal amount(s) thereof, or interest thereon with respect to which such moneys have been so deposited shall be remitted to the City or deposited as directed by the City.. Furthermore, any money held by the Paying Agent /Registrar for the payment of the principal of and interest on the Bonds and remaining unclaimed for a period of three (3) years after the Stated Maturity, or applicable redemption date, of the Bonds such moneys were deposited and are held in trust to pay shall upon the request of the City be remitted to the City against a written receipt therefor. Notwithstanding the above and foregoing, any remittance of funds from the Paying Agent /Registrar to the City shall be subject to any applicable unclaimed property laws of the State of Texas. The term "Government Securities" shall mean (i) direct noncallable obligations of the United States of America, including obligations the principal of and interest on which are unconditionally guaranteed by the United States of America, (ii) noncallable obligations of an agency or instrumentality of the United States of America, including obligations unconditionally guaranteed or insured by the agency or instrumentality and, on the date of their acquisition or purchase by the City, are rated as to investment quality by a nationally recognized investment rating firm not less than AAA or its equivalent, (iii) noncallable obligations of a state or an agency or a county, municipality, or other political subdivision of a state that have been refunded and that, on the date of their acquisition or purchase by the City, are rated as to investment quality by a nationally recognized investment rating firm not less than AAA or its equivalent and (iv) any other then authorized securities or obligations that may be used to defease obligations such as the Bonds under the then applicable laws of the State of Texas The City reserves the right, subject to satisfying the requirements of (1) and (ii) above, to substitute other Government Securities for the Government Securities originally deposited, to reinvest the uninvested moneys on deposit for such defeasance and to withdraw for the benefit of the City moneys in excess of the amount required for such defeasance. Upon such deposit as described above, such Bonds shall no longer be regarded to be outstanding or unpaid. Provided, however, the City has reserved the option, to be exercised at the time of the defeasance of the Bonds, to call for redemption, at an earlier date, those Bonds which have been defeased to their maturity date, if the City: (i) in the proceedings providing for the firm banking and financial arrangements, expressly reserves the right to call the Bonds for redemption; (ii) gives notice of the reservation of that right to the Holders of the Bonds 95290236.1111110480 22 immediately following the making of the firm banking and financial arrangements; and (iii) directs that notice of the reservation be included in any redemption notices that it authorizes. SECTION 13. Ordinance a Contract - Amendments - Outstanding Bonds. This Ordinance, together with the Pricing Certificate, shall constitute a contract with the Holders from time to time, be binding on the City, and shall not be amended or repealed by the City so long as any Bond remains Outstanding except as permitted in this Section and in Section 31 hereof. The City may, without the consent of or notice to any Holders, from time to time and at any time, amend this Ordinance or any provision in the Pricing Certificate in any manner not detrimental to the interests of the Holders, including the curing of any ambiguity, inconsistency, or formal defect or omission herein.. In addition, the City may, with the consent of Holders who own a majority of the aggregate of the principal amount (with respect to Current Interest Bonds) and Maturity Amount (with respect to Capital Appreciation Bonds) of the Bonds then Outstanding, amend, add to, or rescind any of the provisions of this Ordinance or any provision in the Pricing Certificate; provided that, without the consent of all Holders of Outstanding Bonds, no such amendment, addition, or rescission shall (1) extend the time or times of payment of the principal of and interest on the Bonds, reduce the principal amount or Maturity Amount, as the case may be, thereof, the redemption price, or the rate of interest thereon, or in any other way modify the terms of payment of the principal of or interest on the Bonds, (2) give any preference to any Bond over any other Bond, or (3) reduce the aggregate principal amount or Maturity Amount, as the case may be, of Bonds required to be held by Holders for consent to any such amendment, addition, or rescission. The term "Outstanding" when used in this Ordinance with respect to Bonds means, as of the date of determination, all Bonds theretofore issued and delivered under this Ordinance, except: (1) those Bonds cancelled by the Paying Agent /Registrar or delivered to the Paying Agent/Registrar for cancellation; (2) those Bonds deemed to be duly paid by the City in accordance with the provisions of Section 12 hereof; and (3) those mutilated, destroyed, lost, or stolen Bonds which have been replaced with Bonds registered and delivered in lieu thereof as provided in Section 11 hereof.. SECTION 14. Covenants to Maintain Tax - Exempt Status. (a) Definitions. When used in this Section, the following terms have the following meanings: "Closing Date" means the date on which the Bonds are first authenticated and delivered to the initial purchasers against payment therefor. "Code" means the Internal Revenue Code of 1986, . as amended by all legislation, if any, effective on or before the Closing Date. "Computation Date" has the meaning set forth in Section 1.148 -1(b) of the Regulations. 952902361/11110480 23 "Gross Proceeds" means any proceeds as defined in Section 1.148 -1(b) of the Regulations, and any replacement proceeds as defined in Section 1.148 -1(c) of the Regulations, of the Bonds. "Investment" has the meaning set forth in Section 1.148 -1(b) of the Regulations. "Nonpurpose Investment" means any investment property, as defined in Section 148(b) of the Code, in which Gross Proceeds of the Bonds are invested and which is not acquired to carry out the governmental purposes of the Bonds. "Rebate Amount" has the meaning set forth in Section 1.148 -1(b) of the Regulations. "Regulations" means any proposed, temporary, or final Income Tax Regulations issued pursuant to Sections 103 and 141 through 150 of the Code, and 103 of the Internal Revenue Code of 1954, which are applicable to the Bonds. Any reference to any specific Regulation shall also mean, as appropriate, any proposed, temporary or final Income Tax Regulation designed to supplement, amend or replace the specific Regulation referenced. "Yield' of (1) any Investment has the meaning set forth in Section 1.148 -5 of the Regulations and (2) the Bonds has the meaning set forth in Section 1.148 -4 of the Regulations. (b) Not to Cause Interest to Become Taxable. The City shall not use, permit the use of, or omit to use Gross Proceeds or any other amounts (or any property the acquisition, construction, or improvement of which is to be financed (or refinanced) directly or indirectly with Gross Proceeds) in a manner which if made or omitted, respectively, would cause the interest on any Bond to become includable in the gross income, as defined in Section 61 of the Code, of the owner thereof for federal income tax purposes. Without limiting the generality of the foregoing, unless and until the City receives a written opinion of counsel nationally recognized in the field of municipal bond law to the effect that failure to comply with such covenant will not adversely affect the exemption from federal income tax of the interest on any Bond, the City shall comply with each of the specific covenants in this Section. (c) No Private Use or Private Pavments. Except as permitted by Section 141 of the Code and the Regulations and rulings thereunder, the City shall at all times prior to the last Stated Maturity of Bonds: (1) exclusively own, operate, and possess all property the acquisition, construction, or improvement of which is to be financed or refinanced directly or indirectly with Gross Proceeds of the Bonds (including property financed with Gross Proceeds of the Refunded Obligations), and not use or permit the use of such Gross Proceeds (including all contractual arrangements with terms different than those applicable to the general public) or any property acquired, constructed, or improved with such Gross Proceeds in any activity carried on by any person or entity (including the United States or any agency, department, and instrumentality 93290236.1/11110480 24 thereof) other than a state or local government, unless such use is solely as a member of the general public; and (ii) not directly or indirectly impose or accept any charge or other payment by any person or entity who is treated as using Gross Proceeds of the Bonds or any property the acquisition, construction, or improvement of which is to be financed or refinanced directly or indirectly with such Gross Proceeds (including property financed with Gross Proceeds of the Refunded Obligations), other than taxes of general application within the City or interest earned on investments acquired with such Gross Proceeds pending application for their intended purposes. (d) No Private Loan. Except to the extent permitted by Section 141 of the Code and the Regulations and rulings thereunder, the City shall not use Gross Proceeds of the Bonds to make or finance loans to any person or entity other than a state or local government. For purposes of the foregoing covenant, such Gross Proceeds are considered to be "loaned" to a person or entity if. (1) property acquired, constructed, or improved with such Gross Proceeds is sold or leased to such person or entity in a transaction which creates a debt for federal income tax purposes; (2) capacity in or service from such property is committed to such person or entity under a take -or -pay, output, or similar contract or arrangement; or (3) indirect benefits, or burdens and benefits of ownership, of such Gross Proceeds or any property acquired, constructed, or improved with such Gross Proceeds are otherwise transferred in a transaction which is the economic equivalent of a loan. (e) Not to Invest at Huber Yield. Except to the extent permitted by Section 148 of the Code and the Regulations and rulings thereunder, the City shall not at any time prior to the final Stated Maturity of the Bonds directly or indirectly invest Gross Proceeds in any Investment (or use Gross Proceeds to replace money so invested), if as a result of such investment the Yield from the Closing Date of all Investments acquired with Gross Proceeds (or with money replaced thereby), whether then held or previously disposed of, exceeds the Yield of the Bonds. (f) Not Federallv Guaranteed. Except to the extent permitted by Section 149(b) of the Code and the Regulations and rulings thereunder, the City shall not take or omit to take any action which would cause the Bonds to be federally guaranteed within the meaning of Section 149(b) of the Code and the Regulations and rulings thereunder. (g) Information Retvort. The City shall timely file the information required by Section 149(e) of the Code with the Secretary of the Treasury on Form 8038 -G or such other form and in such place as the Secretary may prescribe. (h) Rebate of Arbitrame Profits. Except to the extent otherwise provided in Section 148(f) of the Code and the Regulations and rulings thereunder: (1) The City shall account for all Gross Proceeds (including all receipts, expenditures and investments thereof) on its books of account separately and apart from all other fiends (and receipts, expenditures and investments thereof) and shall retain all records of accounting for at least six (6) years after the day on which the last Outstanding Bond is discharged. However, to the extent permitted by law, the City may commingle Gross Proceeds of the Bonds with 95290236.1/11110480 25 other money of the City, provided that the City separately accounts for each receipt and expenditure of Gross Proceeds and the obligations acquired therewith. (ii) Not less frequently than each Computation Date, the City shall calculate the Rebate Amount in accordance with rules set forth in Section 1.48(f) of the Code and the Regulations and rulings thereunder. The City shall maintain such calculations with its official transcript of proceedings relating to the issuance of the Bonds until six years after the final Computation Date. (iii) As additional consideration for the purchase of the Bonds by the Purchasers and the loan of the money represented thereby and in order to induce such purchase by measures designed to insure the excludability of the interest thereon from the gross income of the Holders thereof for federal income tax purposes, the City shall pay to the United States out of the general fiord, other appropriate fund, or, if permitted by applicable Texas statute, regulation, or opinion of the Attorney General of the State of Texas, the Interest and Sinking Fund, the amount that when added to the future value of previous rebate payments made for the Bonds equals (i) in the case of a Final Computation Date as defined in Section 1.148- 3(e)(2) of the Regulations, one hundred percent (100 %) of the Rebate Amount on such date; and (ii) in the case of any other Computation Date, ninety percent (90 %) of the Rebate Amount on such date. In all cases, the rebate payments shall be made at the times, in the instalhments, to the place, and in the manner as is or may be required by Section 148(f) of the Code and the Regulations and rulings thereunder, and shall be accompanied by Form 8038 -T or such other forms and information as is or may be required by Section 148(f) of the Code and the Regulations and pilings thereunder. (iv) The City shall exercise reasonable diligence to assure that no errors are made in the calculations and payments required by paragraphs (2) and (3), and if an error is made, to discover and promptly correct such error within a. reasonable amount of time thereafter (and in all events within one hundred eighty (180) days after discovery of the error), including payment to the United States of any additional Rebate Amount owed to it, interest thereon, and any penalty imposed under Section 1.148 -3(h) of the Regulations. (1) Not to Divert Arbitta2e Profits. Except to the extent permitted by Section 1.48 of the Code and the Regulations and rulings thereunder, the City shall not, at any time prior to the earlier of the Stated Maturity or final payment of the Bonds, enter into any transaction that reduces the amount required to be paid to the United States pursuant to subsection (h) of this Section because such transaction results in a smaller profit or a larger loss than would have resulted if the transaction had been at arm's length and had the Yield of the Bonds not been relevant to either party. 0) Elections. The City hereby directs and authorizes the Mayor, Mayor Pro Tem, City Manager, Assistant City Manager, Director of Finance and City Secretary of the City, individually or jointly, to make elections permitted or required pursuant to the provisions of the Code or the Regulations, as one or more of such persons deems necessary or appropriate in connection with the Bonds, in the Certificate as to Tax Exemption, or similar or other appropriate certificate, form, or document. 95296236.1111110480 26 (k) Bonds Not HedLye Bonds. At the time the original obligations refunded by the Bonds were issued, the City reasonably expected to spend at least 85% of the spendable proceeds of such obligations within three years after such obligations were issued and (2) not more than 50% of the proceeds of the original obligations refunded by the Bonds were invested in Nonptupose Investments having a substantially guaranteed Yield for a period of 4 years or more. (1) Current Refundine of the Series 2002 Refunded Certificates and the Series 2002 Refunded Bonds. A portion of the Bonds are a current refunding of the Series 2002 Refunded Certificates and the Series 2002 Refiunded Bonds (collectively, the "Currently Refunded Obligations "), and such payment of the Currently Refunded Obligations will occur within ninety (90) days after the issuance of the Bonds. (m) Qualified Advance Refunding of the Series 2003 Refunded Certificates and the Series 2003 Refunded Bonds. A portion of the Bonds are being issued to pay and discharge in frill the Series 2003 Refunded Certificates and the Series 2003 Refunded Bonds (collectively, the "Advance Refunded Obligations "). The Bonds will be issued more than 90 days before the redemption of each of the Advance Refunded Obligations. The City represents as follows (1) The Bonds are the first advance refunding of each series of the Advance Refunded Obligations within the meaning of Section 149(d)(3) of the Code. (ii) The Advance Refunded Obligations are being called for redemption, and will be redeemed, not later than the earliest date on which such issues may be redeemed and on which the City will realize present value debt service savings (determined without regard to administrative expenses) on the issue. (iii) The initial temporary period under Section 148(c) of the Code will end: (i) with respect to the proceeds of the Bonds not later than thirty (30) days after the date of issue of such Bonds; and (ii) with respect to proceeds of the Advance Refunded Obligations on the Closing Date if not ended prior thereto. (iv) On and after the date of issue of the Bonds, no proceeds of either series of the Advance Refunded Obligations will be invested in Nonpiupose Investments having a Yield in excess of the Yield on such Advance Refunded Obligations. (v) The Bonds are being issued for the purposes stated in the preamble of this Ordinance. There is a present value savings associated with the refunding. In the issuance of the Bonds, the City has neither: (i) overburdened the tax exempt bond market by issuing more bonds, issuing bonds earlier or allowing bonds to remain outstanding longer than reasonably necessary to accomplish the governmental purposes for which the Bonds were issued; (ii) employed on "abusive arbitrage device" within the meaning of Section 1.148 -10(a) of the Regulations; nor (iii) employed a "device" to obtain a material financial advantage based on arbitrage, within the meaning of Section 149(4)(4) of the Code apart from savings attributable to lower interest rates and reduced debt service payments in early years. 95290236.1/11110480 27 (n) Oualified Tax- Exemvt Obligations. The Pricing Officer is hereby authorized to designate in the Pricing Certificate the designation of the Bonds as "qualified tax - exempt obligations" in accordance with the provisions of the paragraph (3) of subsection (b) of Section 265 of the Code in the event the Bonds qualify for such designation and confirm that the Bonds are not "private activity bonds" as defined in the Code and confirm the amount of "tax- exempt obligations" to be issued by the City (including all subordinate entities of the City) for the calendar year in which the Bonds are issued will not exceed the applicable limitation. SECTION 15. Sale of Bonds - Official Statement. The Bonds authorized by this Ordinance are to be sold by the City to the Purchasers in accordance with a bond purchase agreement in the event of a negotiated sale, agreement to purchase in the event of a private placement, or the successful bid form in the event of a competitive sale, as applicable (the "Purchase Contract "), the terms and provisions of which Purchase Contract are to be determined by the Pricing Officer, in accordance with Section 3 hereof. The Pricing Officer is hereby authorized and directed to execute the Purchase Contract for and on behalf of the City, as the act and deed of this Council, and to make a determination as to whether the terms are in the City's best interests, which determination shall be final. With regard to such terms and provisions of the Purchase Contract, the Pricing Officer is hereby authorized to come to an agreement with the Purchasers on the following, among other matters: 1. The details of the purchase and sale of the Bonds; 2. The details of any public offering of the Bonds by the Purchasers, if any; 3. The details of any Official Statement or similar disclosure document (and, if appropriate, any Preliminary Official Statement) relating to the Bonds and the City's Rule 15c2 -12 compliance, if applicable; 4. A security deposit for the Bonds, if any; 5. The representations and warranties of the City to the Purchasers; 6. The details of the delivery of, and payment for, the Bonds; 7. The Purchasers' obligations under the Purchase Contract; 8. The certain conditions to the obligations of the City under the Purchase Contract; 9. Termination of the Purchase Contract; 10. Particular covenants of the City; 11. The survival of representations made in the Purchase Contract; 12. The payment of any expenses relating to the Purchase Contract; 13. Notices; and 14. Any and all such other details that are found by the Pricing Officer to be necessary and advisable for the purchase and sale of the Bonds. The Mayor and City Secretary of the City are further authorized and directed to deliver for and on behalf of the City copies of a Preliminary Official Statement and Official Statement prepared in connection with the offering of the Bonds by the Purchasers, in final form as may be 95290236.1111110480 28 required by the Purchasers, and such final Official Statement as delivered by said officials shall constitute the Official Statement authorized for distribution and use by the Purchasers. SECTION 16. Escrow Agreement. An "Escrow Agreement" or "Special Escrow Agreement" (either, the "Escrow Agreement ") by and between the City and an authorized escrow agent (the "Escrow Agent "), if any such agreement is required in connection with the issuance of the Bonds, shall be attached to and approved in the Pricing Certificate. Such Escrow Agreement is hereby authorized to be finalized and executed by the Pricing Officer for and on behalf of the City and as the act and deed of this Council; and such Escrow Agreement as executed by said Pricing Officer shall be deemed approved by this Council and constitute the Escrow Agreement herein approved. With regard to the finalization of certain terms and provisions of any Escrow Agreement, a Pricing Officer is hereby authorized to come to an agreement with the Escrow Agent on the following details, among other matters: 1. The identification of the Refunded Obligations; 2. The creation and funding of the Escrow Fund or Funds; and 3. The Escrow Agent's compensation, administration of the Escrow Fund or Fluids, and the settlement of any paying agents' charges relating to the Refunded Obligations. Furthermore, appropriate officials of the City in cooperation with the Escrow Agent are hereby authorized and directed to make the necessary arrangements for the purchase of the escrowed securities referenced in the Escrow Agreement, if any, and the delivery thereof to the Escrow Agent on the day of delivery of the Bonds to the Purchasers for deposit to the credit of the "CITY OF NORTH RICHLAND HILLS, TEAS, GENERAL OBLIGATION REFUNDING BONDS, SERIES 2012 ESCROW FUND" (referred to herein as the "Escrow Fund "), or such other designation as specified in the Pricing Certificate; all as contemplated and provided in Chapter 1207, the Ordinance, the Pricing Certificate and the Escrow Agreement. On or immediately prior to the date of the delivery of the Bonds to the Purchasers, the Pricing Officer, or other authorized City official listed in Section 33 hereof, shall also cause to be deposited (and is hereby authorized to cause to be deposited) with the Escrow Agent from moneys on deposit in the debt service fund(s) maintained for the payment of the Refunded Obligations an amount which, together with the proceeds of sale of the Bonds, and the investment earnings thereon, will be sufficient to pay in full the Refunded Obligations (or the amount of accrued interest due thereon) scheduled to mature and authorized to be redeemed on the earliest date established in the Pricing Certificate for the redemption of any of the Refunded Obligations (or the earliest date of payment, to be made from moneys in the Escrow Fund(s), as established in the Pricing Certificate, of the amount of accrued interest due thereon). SECTION 17. Refunded Obligations. (a) In order to provide for the refunding, discharge, and retirement of the Refiinded Obligations as selected by the Pricing Officer, the Refunded Obligations, identified, described, and in the amounts set forth in the Pricing Certificate, are called for redemption on the first date(s) such Refunded Obligations are subject to redemption or such other date specified by the Pricing Officer in the Pricing Certificate at the price of par plus accrued interest to the redemption dates, and notice of such redemption shall be given in accordance with the applicable provisions of the ordinances) adopted by this Council, which authorized the issuance of the Refunded Obligations. The Pricing Officer is hereby authorized and directed to issue or cause to be issued a Notice of Redemption for each series of 95290236.1/11110480 29 the Refunded Obligations in substantially the form(s) set forth as (an) Exhibit(s) to the Pricing Certificate, to each and every paying agent/registrar for Refirnded Obligations, in accordance with the redemption provisions applicable to each series of the Refunded Obligations. (b) Each paying agent/registrar for Refunded Obligations is hereby directed to provide the appropriate notice(s) of redemption as required by the respective ordinances authorizing the issuance of the Refunded Obligations and is hereby directed to make appropriate arrangements so that the Refunded Obligations may be redeemed on the respective redemption date(s) specified in the Pricing Certificate. (c) The source of funds for payment of the principal of and interest on the Refunded Obligations on their respective maturity or redemption dates shall be from the funds deposited with the Escrow Agent, pursuant to the Escrow Agreement, if any, or with the paying agent/registrar for the Refunded Obligations pursuant the provisions of Chapter 1207, this Ordinance and the Pricing Certificate finalized by the Pricing Officer. SECTION 18. Control and Custodv of Bonds. The Mayor of the City shall be and is hereby authorized to take and have charge of all necessary ordinances, resolutions, orders and records, including the definitive Bonds and the Initial Bonds, pending the investigation and approval of the Initial Bonds by the Attorney General of the State of Texas, and the registration of the Initial Bonds to the Comptroller of Public Accounts and the delivery thereof to the Purchasers. SECTION 19. Proceeds of Sale. Immediately following the delivery of the Bonds, the proceeds of sale (less those proceeds of sale designated to pay costs of issuance and any accrued interest received from the Purchasers of the Bonds or additional proceeds being deposited to the Interest and Sinking Fund) shall be deposited with the Escrow Agent for application and disbursement in accordance with the provisions of the Escrow Agreement or deposited with the paying agent/registrar for the Refunded Obligations for the payment and redemption of the Refunded Obligations. The proceeds of sale of the Bonds not so deposited with the Escrow Agent (or the paying agent/registrar for the Refunded Obligations) for the refunding of the Refunded Obligations shall be disbursed for payment of costs of issuance, or deposited in the Interest and Sinking Fund for the Bonds, all in accordance with written instructions from the City or its financial advisor. Such proceeds of sale may be invested in authorized investments and any investment earnings realized may be (with respect to the accrued interest received from the Purchasers) deposited in the Interest and Sinking Fund as shall be determined by this Council. Additionally, the Pricing Officer shall determine the amount of any City contribution to the refunding from moneys on deposit in the interest and sinking fa nd(s) maintained for the payment of the Refunded Obligations. SECTION 20. Notices to Holders - Waiver. Wherever this Ordinance or the Pricing Certificate provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and sent by United States Mail, first class postage prepaid, to the address of each Holder appearing in the Security Register at the close of business on the business day next preceding the mailing of such notice. In any case in which notice to Holders is given by mail, neither the failure to mail such notice to any particular Holders, nor any defect in any notice so mailed, shall affect the 952902361/11110480 30 sufficiency of such notice with respect to all other Bonds. Where this Ordinance or the Pricing Certificate provides for notice in any manner, such notice may be waived in writing by the Holder entitled to receive such notice, either before or after the event with respect to which such notice is given, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Paying Agent/Registrar, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. SECTION 21. Cancellation. All Bonds surrendered for payment, redemption, transfer, exchange, or replacement, if surrendered to the Paying Agent/Registrar, shall be promptly cancelled by it and, if surrendered to the City, shall be delivered to the Paying Agent/Registrar and, if not already cancelled, shall be promptly cancelled by the Paying Agent/Registrar. The City may at any time deliver to the Paying Agent/Registrar for cancellation any Bonds previously certified or registered and delivered which the City may have acquired in any manner whatsoever, and all Bonds so delivered shall be promptly cancelled by the Paying Agent/Registrar. All cancelled Bonds held by the Paying Agent/Registrar shall be returned to the City. SECTION 22. Bond Counsel ODin on. The obligation of the Purchasers to accept delivery of the Bonds is subject to being furnished a final opinion of Fulbright & Jaworski L.L.P., Attorneys, Dallas, Texas, approving the Bonds as to their validity, said opinion to be dated and delivered as of the date of delivery and payment for the Bonds. A true and correct reproduction of said opinion is hereby authorized to be printed on the Bonds, or an executed counterpart thereof is hereby authorized to be either printed on definitive printed obligations or deposited with DTC along with the global certificates for the implementation and use of the Book - Entry -Only System used in the settlement and transfer of the Bonds. SECTION 23. CUSIP Numbers. CUSIP numbers may be printed or typed on the definitive Bonds. It is expressly provided, however, that the presence or absence of CUSIP numbers on the definitive Bonds shall be of no significance or effect as regards the legality thereof, and neither the City nor attorneys approving the Bonds as to legality are to be held responsible for CUSIP numbers incorrectly printed or typed on the definitive Bonds. SECTION 24. Benefits of Ordinance. Nothing in this Ordinance or the Pricing Certificate, expressed or implied, is intended or shall be construed to confer upon any person other than the City, the Paying Agent/Registrar and the Holders, any right, remedy, or claim, legal or equitable, under or by reason of this Ordinance or any provision hereof or the Pricing Certificate, this Ordinance and all of its provisions and the Pricing Certificate being intended to be and being for the sole and exclusive benefit of the City, the Paying Agent/Registrar, and the Holders. SECTION 25. Inconsistent Provisions. All ordinances or resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Ordinance are hereby repealed to the extent of such conflict, and the provisions of this Ordinance shall be and remain controlling as to the matters contained herein. SECTION 26. Governinia Law. This Ordinance shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. 93290236.1/11110480 31 SECTION 27. Effect of Headings. The Section headings herein are for convenience of reference only and shall not affect the construction hereof. SECTION 28. Construction of Terms. If appropriate in the context of this Ordinance, words of the singular number shall be considered to include the plural, words of the plural number shall be considered to include the singular, and words of the masculine, feminine, or neuter gender shall be considered to include the other genders. SECTION 29. Severabilitv. If any provision of this Ordinance or the Pricing Certificate or the application thereof to any circumstance shall be held to be invalid, the remainder of this Ordinance and the Pricing Certificate and the application thereof to other circumstances shall nevertheless be valid, and this Council hereby declares that this Ordinance would have been enacted without such invalid provision. SECTION 30. Incorporation of Findmas and Determinations. The findings and determinations of this Council contained in the preamble hereof are hereby incorporated by reference and made a part of this Ordinance for all purposes as if the same were restated in full in this Section. SECTION 31. Continuing Disclosure Undertaking. This Section shall apply unless the Pricing Officer determines in the Pricing Certificate that an undertaking is not required pursuant to the Rule (defined below). (a) Definitions. As used in this Section, the following terms have the meanings ascribed to such terms below: "MSRB" means the Municipal Securities Rulemaking Board. "Rule" means SEC Rule 15c2 -12, as amended from time to time or officially interpreted by the SEC. "SEC" means the United States Securities and Exchange Commission. (b) Annual Resorts. The City shall provide annually to the MSRB (1) within six months after the end of each fiscal year, beginning with the year stated in the Pricing Certificate, financial information and operating data with respect to the City of the general type included in the final Official Statement approved by the Pricing Officer and described in the Pricing Certificate and (2) if not provided as part of such financial information and operating data, audited financial statements of the City, when and if available. Any financial statements so provided shall be prepared in accordance with the accounting principles described in the Pricing Certificate, or such other accounting principles as the City may be required to employ from time to time pursuant to state law or regulation, and audited, if the City commissions an audit of such statements and the audit is completed within the period during which they must be provided. If the City changes its fiscal year, it will notify the MSRB of the change (and of the date of the new fiscal year end) prior to the next date by which the City otherwise would be required to provide financial information and operating data pursuant to this Section. 93290236.1/11110480 32 The financial information and operating data to be provided pursuant to this Section may be set forth in full in one or more documents or may be included by specific reference to any document available to the public on the MSRB's Internet Web site or filed with the SEC. (c) Notices of Certain Events. The City shall provide notice of any of the following events with respect to the Bonds to the MSRB in a timely manner and not more than 10 business days after occurrence of the event: 1. Principal and interest payment delinquencies; 2. Non- payment related defaults, if material; 3. Unscheduled draws on debt service reserves reflecting financial difficulties; 4. Unscheduled draws on credit enhancements reflecting financial difficulties; 5. Substitution of credit or liquidity providers, or their failure to perform; 6. Adverse tax opinions, the issuance by the Internal Revenue Service of proposed or final determinations of taxability, Notices of Proposed Issue (IRS Form 5701 -TEB), or other material notices or determinations with respect to the tax status of the Bonds, or other material events affecting the tax status of the Bonds; 7. Modifications to rights of holders of the Bonds, if material; S. Bond calls, if material, and tender offers; 9. Defeasances; 10. Release, substitution, or sale of property securing repayment of the Bonds, if material; 11. Rating changes; 12. Bankruptcy, insolvency, receivership, or similar event of the City, which shall occur as described below; 13. The consummation of a merger, consolidation, or acquisition involving the City or the sale of all or substantially all of its assets, other than in the ordinary course of business, the entry into of a definitive agreement to undertake such an action or the termination of a definitive agreement relating to any such actions, other than pursuant to its terms, if material; and 14. Appointment of a successor or additional trustee or the change of name of a trustee, if material. For these purposes, any event described in the immediately preceding subsection (c) 12 is considered to occur when any of the following occur: the appointment of a receiver, fiscal agent, or similar officer for the City in a proceeding under the United States Bankruptcy Code or in any other proceeding under state or federal law in which a court or governmental authority has assumed jurisdiction over substantially all of the assets or business of the City, or if such jurisdiction has been assumed by leaving the existing governing body and officials or officers in possession but subject to the supervision and orders of a court or governmental authority, or the entry of an order confirming a plan of reorganization, arrangement, or liquidation by a court or governmental authority having supervision or jurisdiction over substantially all of the assets or business of the City. 93290236.1/11110480 33 The City shall notify the MSRB, in a timely manner, of any failure by the City to provide financial information or operating data in accordance with subsection (b) of this Section by the time required by such Section. (d) Filines with the MSRB. All financial information, operating data, financial statements, notices and other documents provided to the MSRB in accordance with this Section shall be provided in an electronic format prescribed by the MSRB and shall be accompanied by identifying information as prescribed by the MSRB. (e) Limitations. Disclaimers. and Amendments. The City shall be obligated to observe and perform the covenants specified in this Section while, but only while, the City remains an "obligated person" with respect to the Bonds within the meaning of the Rule, except that the City in any event will give the notice required by subsection (c) hereof of any Bond calls and defeasance that cause the City to be no longer such an "obligated person", The provisions of this Section are for the sole benefit of the Holders and beneficial owners of the Bonds, and nothing in this Section, express or implied, shall give any benefit or any legal or equitable right, remedy, or claim hereunder to any other person. The City undertakes to provide only the financial information, operating data, financial statements, and notices which it has expressly agreed to provide pursuant to this Section and does not hereby undertake to provide any other information that may be relevant or material to a complete presentation of the City's financial results, condition, or prospects or hereby undertake to update any information provided in accordance with this Section or otherwise, except as expressly provided herein. The City does not make any representation or warranty concerning such information or its usefulness to a decision to invest in or sell Bonds at any future date. UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE HOLDER OR BENEFICIAL OWNER OF ANY BOND OR ANY OTHER PERSON, IN CONTRACT OR TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY BREACH BY THE CITY, WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF ANY COVENANT SPECIFIED IN THIS SECTION, BUT EVERY RIGHT AND REMEDY OF ANY SUCH PERSON, IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF ANY SUCH BREACH SHALL BE LIMITED TO AN ACTION FOR MANDAMUS OR SPECIFIC PERFORMANCE. No default by the City in observing or performing its obligations under this Section shall constitute a breach of or default under this Ordinance for purposes of any other provision of this Ordinance. Nothing in this Section is intended or shall act to disclaim, waive, or otherwise limit the duties of the City under federal and state securities laws. Notwithstanding anything to the contrary in this Ordinance, the provisions of this Section may be amended by the City from time to time to adapt to changed circumstances resulting from a change in legal requirements, a change in law, or a change in the identity, nature, status, or type of operations of the City, but only if (1) the provisions of this Section, as so amended, would have permitted an underwriter to purchase or sell Bonds in the primary offering of the Bonds in compliance with the Rule, taking into account any amendments or interpretations of the Rule to the date of such amendment, as well as such changed circumstances, and (2) either (a) the 952902361/11110480 34 Holders of a majority in aggregate principal amount (or any greater amount required by any other provision of this Ordinance that authorizes such an amendment) of the Outstanding Bonds consent to such amendment or (b) a person that is unaffiliated with the City (such as nationally recognized bond counsel) determines that such amendment will not materially impair the interests of the Holders and beneficial owners of the Bonds. The provisions of this Section may also be amended from time to time or repealed by the City if the SEC amends or repeals the applicable provisions of the Rule or a court of final jurisdiction determines that such provisions are invalid, but only if and to the extent that reservation of the City's right to do so would not prevent an underwriter of the initial public offering of the Bonds from lawfully purchasing or selling Bonds in such offering. If the City so amends the provisions of this Section, it shall include with any amended financial information or operating data next provided pursuant to subsection (b) of this Section an explanation, in narrative form, of the reasons for the amendment and of the impact of any change in the type of financial information or operating data so provided. SECTION 32. Municipal Bond Insurance. The Bonds may be sold with the principal of and interest thereon or Maturity Amount thereof, as applicable, being insured by a municipal bond insurance provider authorized to transact business in the State of Texas. The Pricing Officer is hereby authorized to make the selection of municipal bond insurance (if any) for the Bonds and make the det of the provisions of any commitment therefor. SECTION 33. Further Procedures. Any one or more of the Mayor, Mayor Pro Tern, City Manager, Assistant City Manager, Director of Finance, City Secretary and Assistant City Secretary are hereby expressly authorized, empowered and directed from time to time and at any time to do and perform all such acts and things and to execute, acknowledge and deliver in the name and on behalf of the City all agreements, instruments, certificates or other documents, whether mentioned herein or not, as may be necessary or desirable in order to carry out the terms and provisions of this Ordinance and the issuance of the Bonds. In addition, prior to the initial delivery of the Bonds, the Mayor, Mayor Pro Tem, City Manager, Assistant City Manager, Director of Finance or Bond Counsel to the City are each hereby authorized and directed to approve any changes or corrections to this Ordinance or to any of the documents authorized and approved by this Ordinance, including the Pricing Certificate: (i) in order to cure any technical ambiguity, formal defect or omission in this Ordinance or such other document; or (ii) as requested by the Attorney General of the State of Texas or his representative to obtain the approval of the Bonds by the Attorney General and if such officer or counsel determines that such ministerial changes are consistent with the intent and purpose of this Ordinance, which determination shall be final. In the event that any officer of the City whose signature shall appear on any document shall cease to be such officer before the delivery of such document, such signature nevertheless shall be valid and sufficient for all purposes the same as if such officer had remained in office until such delivery. SECTION 34. Public Meeting. It is officially found, determined, and declared that the meeting at which this Ordinance is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Ordinance, was given, all as required by Chapter 551 of the Texas Government Code, as amended, as amended. 93290236.1/11110480 35 SECTION 35. Effective Date. In accordance with the provisions of Texas Government Code, Section 1201.028, as amended, this Ordinance shall be in force and effect from and after its passage on the date shown below and it is so ordained. [Remainder of page left blank intentiorallt] 93290236.1/11110480 3 6 PASSED AND ADOPTED, this November 14, 2011. CITY OF NORTH RICHLAND HILLS, TEXAS Mayor ATTEST: City Secretary (City Seal) APPROVED AS TO LEGALITY: City Attorney APPROVED AS TO CONTENT: Director of Finance 93290236.1/11110480 S -1 M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. FA PU 2011- 041 Shared Services Agreement between the Cities of North Richland Hills, Haltom City, Watauga and Richland Hills Presenter: Jimmy Perdue, Public Safety Director Summarv: The cities of North Richland Hills, Haltom City, Watauga and Richland Hills are desirous of combining public safety communications and detention services in order to provide their residences and businesses with a more effective and efficient delivery of these key public safety services. General Description: During the work session on September 26, 2011, the City Council was (briefed on the specifics of how the service combination would functionally work. The proposed shared services agreement will be for an initial term of ten years commencing on October 1, 2011 and ending September 30, 2021 and may be extended thereafter by mutual consent of the parties for two successive five -yeas terms. The timeline for the implementation of this undertaking has been developed so as to minimize impact on the public safety operations of each city. Shared detention services for all four cities will commence in December 2011 following minor remodeling in the current jail facility and assimilation of additional personnel from the partner cities. Current plans call for joint public safety communications to commence from the North Richland Hills dispatch center in April 2012 following acquisition of personnel from partner cities. The shared services agreement identifies the specific services and their associated expense types to be shared. These expense types include reoccurring personnel, supplies, operating expense, one -time and start-up program expenses. This consolidation effort takes a tremendous step in achieving regional communication interoperability — a concept in the public safety world that was brought to public consciousness following the tragedy that occurred September 11, 2001. The City Councils of Watauga, Richland Hills and Haltom City have all approved the contract. Recommendation: Approve Shared Services Agreement between the Cities of North Richland Hills, Haltom City, Watauga and Richland Hills INTERLOCAL AGREEMENT FOR COMBINED PUBLIC SAFETY DISPATCHING AND JAIL SERVICES FOR THE CITIES OF NORTH RICHLAND HILLS, HALTO-M CITY, RICHLAND HILLS, & WATAUGA TEXAS THE STATE OF TEXAS)( COITN TYOF TARRANT)( The parties to this Agreement ( "AGREEMENT "), are the Cities of North Richland Hills ("NORTH RICHLAND HILLS "), Haltom City ( "HALTOM CITY "), Richland Hills ( "RICHLAND HILLS "), and Watauga ( "WATAUGA "), all Home Rule municipalities of Tarrant County, Texas, each acting by and through its duly authorized city manager or mayor: WITNESETH: WHEREAS, NORTH RICHLAND HILLS, HALTOM CITY, RICHLAND HILLS and WATAUGA are desirous of combining public safety dispatching ( "Dispatching ") and jail services C' Jail Services ") to provide their residents and businesses with a more effective and efficient delivery of these key public safety services; and WHEREAS, NORTH RICHLAND HILLS has the facilities available to perform the Dispatching and Jail Services for these cities; and WHEREAS, NORTH RICHLAND HILLS, HALTOM CITY, RICHLAND HILLS, and WATAUGA desire to enter into this Agreement to combine Dispatching and Jail Services to deliver these key public safety services at the highest level possible for each city in accordance with the terms and conditions set forth herein; and WHEREAS, all payments for Dispatching and Jail Services to be made hereunder shall be made fiom current revenues available to the paying party; and WHEREAS, NORTH RICHLAND HILLS, HALTOM CITY, RICHLAND HILLS, and WATAUGA have concluded that this Agreement fairly compensates the performing party for the Dispatching and Jail Services being provided hereunder; and WHEREAS, the City Councils of NORTH RICHLAND HILLS, HALTOM CITY, RICHLAND HILLS, and WATAUGA believe that this Agreement is in the best interests of these respective cities; and WHEREAS, this Agreement has been approved by the governing bodies of the respective cities, and WHEREAS, this Agreement is authorized by and in conformance with Chapter 791 of the Texas Government Code, the Interlocal Cooperation Act (the "Act "). NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND CONSIDERATION PROVIDED FOR HEREIN, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY CONFIRMED, NORTH RICHLAND HILLS, HALTOM CITY, RIC HLAND HILLS AND WATAUGA HEREBY AGREE AS FOLLOWS: Section 1. Recitals. All matters stated above in the preamble are found to be tree and correct and are incorporated herein by reference as if copied in their entirety. Section 2. Term. This Agreement shall be for an initial term of ten (10) years commencing on October 1, 2011, and ending September 30, 2021, (the "Initial Term") and may be extended thereafter by mutual consent of the parties hereto and for two successive five (5) year terms. (The renewal terms shall be referred to as the "First Renewal Term" and "Second Renewal Term ", respectively) Section 3. Scope of Services to be provided by NORTH RICHLAND HILLS. NORTH RICHLAND HILLS hereby agrees to provide HALTOM CITY, RICHLAND HILLS and WATAUGA the following equipment, services, personnel, and facilities: a. NORTH RICHLAND HILLS will employ a dedicated Public Safety System Administrator who will provide technical oversight to computer and connectivity systems associated with this program. The cost of this employee will commence upon the start of employment and be shared with the partner cities based on percentage(s) outlined for communication expense sharing outlined in the attached exhibit. b. Commencing on or about December 3, 2011, NORTH RICHLAND HILLS will provide Jail Services to HALTOM CITY, RICHLAND HILLS, and WATAUGA at the NORTH RICHLAND HILLS Police Department. The NORTH RICHLAND HILLS Municipal Judge will work with the HALTOM CITY, RICHLAND HILLS, and WATAUGA Municipal Judge(s) in establishing a mutually agreeable daily arraignment protocol of their respective prisoners. NORTH RICHLAND HILLS will provide the necessary detention officers and other employees to properly supervise and operate NORTH RICHLAND HILLS' jail facility ( "Jail. Facility "). HALTOM CITY, RICHLAND HILLS, and WATAUGA prisoners shall be released in accordance with specific written procedures agreed upon by the cities. Jail Services shall include at a minim the following: 1. accepting full responsibility for the custodial care of all persons taken into custody by HALTOM CITY, RICHLAND HILLS and WATAUGA and delivered to the NORTH RICHLAND HILLS Police Department Jail Facility; 2. providing all necessary booking services when accepting prisoners to the facility; 3. providing FLkLTOM CITY, RICHLAND HILLS, and WATAUGA with full access to inmates for the purpose of conducting interviews or interrogations, in accordance with reasonable regulations established by NORTH RICHLAND HILLS; 4. making available all prisoners whose presence is requested or ordered by a court of competent jurisdiction; 5. releasing prisoners for investigative purposes outside the Jail Facility when such requests are authorized by a HALTOM CITY, RICHLAND HILLS, or WATAUGA duly authorized official; 6. maintaining a log and other applicable records of these and all other significant events related to HALTOM CITY, RICHLAND HILLS, or WATAUGA prisoners. c. On April 7, 2012, NORTH RICHLAND HILLS, HALTOM CITY, RICHLAND HELLS and WATAUGA will merge Public Safety Dispatching Services for appropriate police, fire and emergency medical services for the respective cities, at the NORTH RICHLAND HILLS Police Department, and NORTH RICHLAND HILLS shall provide all such Dispatching Services for HALTOM CITY, RICHLAND HILLS, and WATAUGA. The Dispatching personnel will be NORTH RICHLAND HILLS employees and will be under the supervision and control of the NORTH RICHLAND HILLS Chief of Police or his authorized designee. For identification purposes of this document, the NORTH RICHLAND HILLS Police Department Dispatch Center will be identified as the North Richland Hills/Haltom City/Richland Hills/Watauga Emergency Communication Center (NHRWECC). Dispatching services shall be part of the NHRWECC. NORTH RICHLAND HILLS shall at all times maintain sufficient staff to perform the Dispatching Services it provides under this Agreement. Dispatching Services shall mean all public communication fitnctions necessary for the provision by HALTOM CITY, RICHLAND HILLS and WATAUGA of police, fire, and emergency medical services to the respective cities' citizens, and shall include at a minim the following: 1. answering all emergency 9 -1 -1 calls; 2. dispatching emergency calls for service in one minute or less 80% of the time and within two minutes 100% of the time; 3. answering any citizen requests for service placed to phone numbers designated by the respective cities; 4. dispatching police patrol units, fire apparatus, or EMS as appropriate in response to 9 -1 -1 or other calls, or at the respective city's direction; 5. maintaining radio or other remote communications with the field units of the respective cities' police, fire, or EMS units as necessary to facilitate provision of services; 6. maintaining documentary records according to industry standard of all dispatching activity. d. NORTH RICHLAND HELLS shall provide HALTOM CITY, RICHLAND HILLS, and WATAUGA monthly service reports detailing prisoner counts and dispatch center performance measures including the number of calls for service, response times, number of 9 -1 -1 emergency calls dispatched, and any other statistical reports requested by the respective cities that are within the reporting capabilities of NORTH RICHLAND HILLS. e. All Human Resource services necessary for the recruitment, screening, employment, and training of all personnel required to provide Jail and Dispatching Services to the respective cities, including providing all employee policies and procedures and the administration thereof shall be provided by NORTH RICHLAND HILLS. f. NORTH RICHLAND HILLS shall provide access to the respective cities' warrant information retained at the dispatch center to the respective cities' police departments, municipal courts and all other law enforcement agencies. g. By December 1, 2011, NORTH RICHLAND HILLS will form a standing advisory committee consisting of three (3) public safety employees of each of the respective cities and three (3) NORTH RICHLAND HILLS employees selected jointly by the NORTH RICHLAND HILLS Chief of Police and Fire Chief to address operational and policy decisions that will arise from operating the NHRWECC and Jail Facility. h. NORTH RICHLAND HILLS agrees to perform all services under this Agreement in a good and workmanlike manner, and in accordance with all applicable laws and regulations. Section 4. HAT TOM CITY, RICHLAND HILLS and WATAUGA Obligations. The cities of HALTOM CITY, RICHLAND HILLS and WATAUGA agree to perform the following: Pay the sum listed in the corresponding exhibit to NORTH RICHLAND HILLS for the Public Safety System Administrator beginning upon the start of employment. The amount of charges shall be based on expense percentage share for each city's portion of communication budget as established in Exhibit A. Additional payments will be invoiced as described in Section 5 of this document. b. Pay the stun listed in the corresponding exhibit to NORTH RICHLAND HILLS for Jail Services for the Fiscal Year 2011112 beginning on December 3, 2011 and ending on September 30, 2012. The amount of charges shall be established based on the adopted Fiscal Year 2011112 NORTH RICHLAND HILLS Police Department operating budget for consolidated jail operations as expressed in Exhibit A to operate the Jail Facility as a joint detention facility. This payment represents a percentage cost share of all Jail Services based on the previous calendar year average daily prisoner count supplied by the respective cities. (See payment schedule, Exhibit A.) c. Beginning on or about December 1, 2011, pay the stun listed in the corresponding exhibit to NORTH RICHLAND HILLS for General and Administrative Charges based on NORTH RICHLAND HILLS Police Administration, Human Resources Administration, and Information Services Administration operating budget for Fiscal Year 2011112. (Payment percentages described in Exhibit A shall remain the same for this item for the duration of this Agreement except as provided by Section 7 for reduction of the withdrawal or addition of municipal parties.) d. Pay a one -time equipment and configuration cost listed in the corresponding exhibit to NORTH RICHLAND HILLS to prepare the NHRWECC and Jail Facility to accommodate the merger of services. NORTH RICHLAND HILLS will provide the necessary documentation to each city for reimbursement. Payment will be due and payable sixty (60) days following the receipt of documentation. NORTH RICHLAND HILLS will retain the title to all the equipment in the NHRWECC and Jail Facility and is responsible to properly maintain and insure the equipment. Beginning on April 7, 2012, commence the payments (per Section 5) for the amount listed in the corresponding exhibit(s) for the re mainin g six (6) months of Fiscal Year 2011112 share of expenses to operate the NHRWECC by using NORTH RICHLAND HILLS' Fiscal Year 2011/12 budgeted expenses for consolidated dispatch operations (Exhibit A). f. Pay annual maintenance costs for portables and mobile radios owned and/or operated by the respective city. Maintenance and/or repair for all radio equipment not specifically employed in the NHRWECC as a part of this Agreement will be the responsibility of the respective agency. The fees for the maintenance agreement for the radio equipment within the NHRWECC will be the responsibility of NORTH RICHLAND HILLS and will be part of the annual budget operating costs of the NHRWECC subject to the cost sharing agreement for dispatching services as stated in corresponding exhibit. g. Agree to utilize the C.R.I.M.E.S. Records Management System to be compatible with the C.R.I.M.E.S. Computer Aided Dispatch System that will be used by the NHRWECC. The individual cities will be responsible for the purchase and maintenance of all computer workstations at their respective facilities and their own police and fire vehicles or other public safety emergency equipment. Each city will maintain their own public safety records unit at their individual facility and be responsible for all law enforcement and fire reporting requirements to state and federal agencies. Each respective city will also be responsible for their unique record dissemination responsibilities to the public, except direct inquiries from the public regarding a jail or public safety dispatching incident. h. Arrange for the timely delivery of all the required paperwork to properly hold and arraign prisoners for each city. Each respective city policy agency will be responsible for the transportation of their arrested prisoners to the Jail Facility. Should the need arise for an in- custody transportation for emergency medical treatment of a prisoner housed at the NORTH RICHLAND HILLS jail, a NORTH RICHLAND HILLS police officer shall provide security for up to two houirs until a police officer of the arresting city can respond to the medical facility to assume custody. i. Each city agrees to provide and maintain at its expense, computer network connectivity between its facility and the NHRWECC. All equipment and network protocols shall be compatible with the equipment and operating software installed and/or operated within the NHRWECC. Each city will employ compatible fire service reporting software capable of directly receiving data file transfers from the C.R.I.M.E.S. dispatch (C.A.D.) software. j. Pay within thirty (30) days an invoice submitted by NORTH RICHLAND HILLS on or about December 3, 2012 to fund the Regional Bonus for each former detention officer from their respective department(s) that remains employed in the Jail Facility. k. Pay within thirty (30) days an invoice submitted by NORTH RICHLAND HILLS on or about April 20, 2013 to fined the Regional Bonus for each former communications employee from their respective department(s) that remains employed in the NHRWECC. Section 5. Payments for Services Performed. All payments for System Administrator, Jail Services and Dispatching except for the one -tune configuration and equipment payment period outlined in Section 4.d., and the Regional Bonus payments described in Sections 4.j. and 41. shall be paid by HALTOM CITY, RICHLAND HILLS and WATAUGA to NORTH RICHLAND HILLS in four (4) equal installments due on the 1" day of each calendar quarter (or portion thereof) beginning December 3, 2011 in advance of the services performed by NORTH RICHLAND HILLS for HALTOM CITY, RICHLAND HILLS and WATAUGA and each subsequent calendar quarter of NORTH RICHLAND HILLS' fiscal year and continuing thereafter throughout the term of the Agreement. Each annual payment amount for Jail Services shall be in accordance with NORTH RICHLAND HILLS' fiscal year Police Department operating budgeted amount for the Jail Facility adjusted annually to include budgeted increases in operating costs, and capital costs to expand, operate, modify or upgrade the existing jail and intake facilities used by all the cities pursuant to this Agreement as anticipated to be approved by the NORTH RICHLAND HILLS City Council during the annual budgeting process for the upcoming fiscal year beginning October 1, multiplied by the cost share amount to be determined by the average daily prisoner count for each city from the previous calendar year. Each annual payment for the operation of the NHRWECC shall be in accordance with NORTH RICHLAND HILLS' fiscal year Police Department operating budgeted amount for the communications center adjusted annually to include budgeted increases in operating costs, and capital costs to expand, operate, modify or upgrade the existing dispatch and communication facilities used by all the cities pursuant to this Agreement as anticipated to be approved by the NORTH RICHLAND HILLS City Council during the annual budgeting process for the upcoming Fiscal Year beginning October 1, multiplied by the cost share percentage determined by the call volume received in the NHRWECC for the previous fiscal year for each city. Each annual payment for the General and Administrative Charge shall be based on the fixed percentages described in Exhibit "A," adjusted annually, based on NORTH RICHLAND HILLS' respective departmental costs anticipated to be approved by the NORTH RICHLAND HILLS City Council during the annual budgeting process for the upcoming Fiscal Year beginning October 1. Any adjustment to the operating budget from year to year will be reasonable and based on specific, identifiable increases in costs associated with operating the Jail Facility, the NHRWECC and the General and Administrative Cost. Increases will be limited to two times the DFW Metroplex CPI unless agreed upon by the City Manager from each city. Any such agreement must be done prior to the 90 day cancellation clause in section 6 b. NORTH RICHLAND HILLS shall notify HALTOM CITY, RICHLAND HILLS and WATAUGA of the anticipated costs of the Jail Services and Dispatching and General and Administrative Charges by May 3e of each fiscal year for budgeting and planning purposes. The budget submittal will include an itemized detail of the anticipated cost and the associated difference(s) from the previous fiscal year budget. The final costs will be determined and communicated in writing when the NORTH RICHLAND HILLS City Council adopts the NORTH RICHLAND HILLS annual budget, but shall not exceed the estimate by more than 5 %. The annual cost increase for HALTOM CITY, RICHLAND HILLS or WATAUGA for the Jail Services and Dispatching and General and Administrative costs shall not exceed the percentage increase of the NORTH RICHLAND HILLS Police Department's annual operating budget. Section 6. Cancellation. a. HALTOM CITY, RICHLAND HILLS or WATAUGA shall have the right to terminate, based on the provisions of this Agreement, if NORTH RICHLAND HILLS breaches any of its terms or fails to perform any of its obligations under this Agreement and then fails to cure the breach or failure within thirty (30) days following written notice from HALTOM CITY, RICHLAND HILLS or WATAUGA. If the Agreement is terminated under this paragraph, NORTH RICHLAND HILLS shall be entitled to retain money already received prorated to the period from the last payment until the date of termination, and shall refund the remainder to the respective city. b. After the initial twelve (12) months of this Agreement, any party shall have the right to terminate this Agreement by giving written notice to the other parties at least six (6) months prior to October 1 of the subsequent Fiscal Year for Jail Services; and six (6) months prior to October I of the subsequent Fiscal Year for Dispatch Services except that a 90 day notice prior to October I will be allowed if the cancellation is based upon the preliminary budget submittal, due to each agency by May 1, that is deemed unacceptable by any party All payments by HALTOM CITY, RICHLAND HILLS or WATAUGA to NORTH RICHLAND HILLS shall continue until the cancellation date or as mutually agreed to by both parties. Section 7. Change of Participant Cities. In the event any city that is party to the creation of this shared service agreement chooses to remove themselves from the program, or in the event additional cities are allowed to participate in the fiiture, the distribution of shared expenses will be re- calculated by NORTH RICHLAND HILLS Police Department and the new distribution percentages will be presented for signature to all parties. The calculation will be based on the reduction and/or addition of work product placed on the communication and/or detention facilities expressed as a percentage of the total workload. A document delineating new expense percentages will become an addendum to this document and will be effective fiom the date of the signatures).. The City of NORTH RICHLAND HILLS retains the exclusive right to add additional participants to the program provided such inclusion does not increase the funding requirement of any current participant. Section 8. Notices. All notices required or provided for in this Agreement shall be sent to the following parties by certified mail — return receipt requested: City Manager North Richland Hills 7301 N.E. Loop 820 North Richland Hills, TX 76180 City Manager Haltom City 5024 Broadway Ave. Haltom City, TX 76117 City Manager Richland Hills 3200 Diana Dr. Richland Hills, TX 76118 City Manager Watauga 7105 Whitley Rd. Watauga, TX 76148 Section 9. Dispute Resolution. In order to ensure an effective relationship between the parties and to provide the best possible public services, it is mutually agreed that all questions arising under this Agreement shall first be handled and attempted to be resolved between the City Managers of NORTH RICHLAND HILLS, HALTOM CITY, RICHLAND HILLS and WATAUGA. All issues regarding the performance of Dispatching or Jail Services and the operation of the NHRWECC and Jail Facility shall be brought directly the attention of the NORTH RICHLAND HILLS Chief of Police or his designee. Immediate performance complaints or concerns should be addressed by communicating the problem to the on -duty dispatch center supervisor or detention center supervisor as appropriate. Any issues not resolved hereunder may be referred to the respective governing bodies for resolution and if necessary, the parties hereby agree to the appointment of a court -certified (certified in Tarrant County) Mediator to assist in resolving said dispute as a prerequisite to the filing of any lawsuit over such issues. Section 10. Venue. Venue for any legal dispute arising pursuant to this Agreement shall lie in Tarrant County, Texas. No litigation shall be commenced prior to both parties completion of mediation in accordance with Section 9. Section 11. All parties mutually agree that NORTH RICHLAND HILLS is an independent contractor, and shall have exclusive control of performance hereunder, and that employees of NORTH RICHLAND HELLS in no way are to be considered employees of HALTOM CITY, RICHLAND HILLS or WATAUGA. The employment rights of NORTH RICHLAND HILLS personnel assigned under this Agreement will not be abridged. Section 12. NORTH RICHLAND HILLS and HALTOM CI'T'Y, RICHLAND HILLS and WATAUGA each agree to accept Rill responsibility for the actions of their own officers, agents and employees in the performance or use of the NHRWECC and Jail Facility, or in the performance or use of dispatching or detention services under this Agreement, and to the extent allowed by law, agree to indemnity and otherwise hold harmless the other parties, their officers, agents and employees against all liability claims, suits, demands, losses, damages and attorney fees including all expense of litigation or settlement, or causes of action of any kind which may arise by reason of injury to or death of any person or for a loss of damage to, or loss of the use of any property of other persons arising out of or in any way connected to the intentional or negligent acts or omissions of that party, its officers, agents or employees, in the performance or use of the joint dispatch center, or in the performance or use of the NHRWECC or Jail Facility under this Agreement. It is expressly understood and agreed that, in the execution of this Agreement, NORTH RICHLAND HILLS, HALTOM CITY, RICHLAND HILLS and WATAUGA do not waive, nor shall be deemed hereby to waive any immunity or defense that would otherwise be available to or against claims arising in the exercise of governmental functions relating hereto or otherwise. By entering into this Agreement, NORTH RICHLAND HILLS, HALTOM CITY, RICHLAND HILLS and WATAUGA do not create any obligations express or implied, other than those set forth herein, and this Agreement shall not create any rights in any parties not signatory hereto. Section 13. NORTH RICHLAND HILLS will maintain at NORTH RICHLAND HILLS's expense an contingency plan agreeable to the other participant cities which shall allow the continuation of the services under this agreement at another facility within Northeast Tarrant County in the event that the Jail Facility or NHRWEEC is damaged due to a natural or a man made disaster and becomes uninhabitable or is unusable, and will immediately implement such contingency plan in the event of such damage and cooperate with the other participant cities in doing so as expeditiously as possible so as to minimize the disruption to the services to be provided under this agreement. Section 14. Annually, at the time the cost for Jail Services and Dispatching Services are recalculated, this Agreement will be reviewed by both parties for needed clarification and/or revisions. This Agreement may only be modified, changed or altered at any time, upon mutual agreement of the parties, provided that such modification, change and/or alteration are reduced to writing, and approved by the governing bodies of NORTH RICHLAND HILLS and HALTOM CITY, RICHLAND HILLS and WATAUGA. Section 15. This Agreement has been approved by the governing bodies of NORTH RICHLAND HILLS and HALTOM CITY, RICHLAND HILLS and WATAUGA, respectively. The execution of this Agreement has been authorized by an act of the governing bodies of NORTH RICHLAND HILLS and HALTOM CITY, RICHLAND HILLS and WATAUGA at a duly called and posted meeting. IN WITNESS WHEREOF, we have hereunto set our hands this the day of 2011, in duplicate originals. CITY OF NORTH RICHLAND HILLS, TEXAS CITY OF HALTOM CITY, TEXAS ATTEST: ATTEST: By: Mark Hindman City Manager CITY OF RICHLAND HILLS, TEXAS ATTEST: By: David Ragan Mayor APPROVED AS TO FORM: By: George Staples City Attorney for North Richland Hills By: Tim Sralla City Attorney for Richland Hills By: Thomas J. Muir City Manager CITY OF `'VTAUGA, TEXAS ATTEST: By: Harry J. Jeffries Mayor By: Wayne Olson City Attorney for Haltom City By: Mark Daniel City Attorney for Watauga M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. F.5 PU 2011 -042 Award a contract to J.P. Morgan Chase Bank, N.A., in the amount of $402,695.90 to Finance the lease- purchase of Cardio Fitness Equipment for the NRH Centre (RFP 12 -001 Cardio Equipment Lease) Presenter: Vickie Loftice, Managing Director of Community Services Summarv: This item is to award the contract of the lease proposal to J P Morgan Chase for the cardio equipment that will be installed in the new NRH Centre, financing the cost of purchasing the cardio equipment listed below. General Description: Construction of the NRH Centre is progressing. While the lease and installation of the cardio equipment is a separate component from the building construction, the installation of the cardio equipment is coordinated to coincide with the completion of the construction. For the cardio equipment such as treadmills and elliptical pieces, staff purchase agreement that provides the City the ability to finance the acquisition of new industry leading commercial cardio recommends leasing rather than a purchase due to maintenance and operations issues associated with constant wear of the moving parts, motors and electronics. The approved FY2012 NRH Centre Budget provides operational line item funding for monthly payments towards all Cardio Equipment leased for the NRH Centre. The acceptance of the lease proposal is for a fixed -rate, fully amortized tax - exempt lease - equipment for the NRH Centre. Staff met with several vendors who supply commercial grade, high quality cardio fitness equipment including full service delivery and installation available through direct purchase on the Texas multiple award schedules (TXMAS) and/or the Texas BuyBoard. Those that offered the best commercial grade high - quality fitness pieces and price were considered for selection and asked to respond to the City's Request of Offer (RFO) 12- 003. A final equipment list was presented to the City's Purchasing Department to obtain formal Request for Offers for pricing of individually identified cardio equipment including: treadmills, ellipticals, cross trainer ellipticals, recumbent bikes, stair climbers, step mills, recumbent cross trainers, rowers, arc trainers, and spin bikes. After all of the Request for Offers were received, staff developed the final cardio equipment list to be included in the lease proposal request. A final cardio equipment list including total equipment value was developed and included in the Request for Proposal (RFP 12 -001) for financing of the Cardio Equipment issued by the City on October 18, 2011. Total Equipment cost of $394,250.64 to be financed- VENDOR/ BRAND EQUIPMENT TYPE SERIESIMODEL QTY LifeFitness Treadmill 95TE (wIDTV) 13 LifeFitness Treadmill 95TI 13 VENDOR/BRAND EQUIPMENT TYPE SERIESIMODEL QTY LifeFitness Recumbent Bike 95RI 12 LifeFitness Upright Bike 95CI 6 LifeFitness Concept 2 Rower Conc -E -LF 1 LifeFitness Upper Body Ergometer PRO 10010 SciFit 1 LifeFitness Full Service Installation & Delivery 1 FITCOIPrecor Elliptical EFX 885 8 FITCOIPrecor Elliptical EFX 835 8 FITCOIPrecor Cross Elliptical AMT835 -P30 2 FITCOIStairMaster Step Mill SM916 2 FITCOIStairMaster StairClimber SC916 2 FITCO Full Service Installation & Delivery 1 CommFit — Cybex ARC Trainer Total Body — Arc 2 CommFit Full Service Installation & Delivery 1 NuStep Recumbent Cross Trainer NuStep T5 2 NuStep Full Service Installation & Delivery 1 FitSupply StarTrac Spin Bikes STFCNXT7090 15 FitSupply eSpinner Spin Bikes 2 FitSupply Full Service Installation & Delivery 1 Three proposals were received and two were reviewed in accordance with the City's formal evaluation policy. Based on the City's formal evaluation policy, a five member committee was selected to review the remaining two complete and qualifying proposals. Selection criteria included the monthly payment based on 36 month term, previous experience with municipal leases, and experience with coordinating with multiple vendors. After evaluating the proposals, the evaluation committee made a unanimous recommendation to accept the financing lease proposal from J.P. Morgan Chase Bank, N.A. to finance the acquisition of the new cardio equipment for the NRH Centre. Their proposal included a tax exempt interest rate of 1.45% and total interest of $8,445.26 for 36 payments of $11,186.0 0.The other proposal from All State Capital offered 36 payments of $11,835. Recommendation: To Award the contract (RFP 12 -001) Cardio Equipment Lease to Finance the purchase of the Cardio Fitness Equipment for the NRH Centre to J.P. Morgan Chase Bank, N.A., in the amount of $402,695.90. M RH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. F.6 PU 2011 -043 Authorize the Purchase of Fitness Equipment for the NRH Centre from LifeFitness in the amount of $138,515.24, FITCO in the amount of $1,390.00 and Bodywork Fitness in the amount of $'1,799.25 Presenter: Vickie Loftice, Managing Director of Community Services Summarv: This item is to purchase and install new fitness equipment including: a variety of weight stack machine systems, a variety of plate loaded free weight pieces, core strengthening and stretch pieces and traditional free weight equipment in the NRH Centre. General Description: Construction of the NRH Centre is progressing with an expected ribbon cutting and grand opening in April 2012. While the purchase and installation of the fitness equipment throughout the building is a separate component from the building construction, the installation of the fitness equipment is coordinated to coincide with the completion of the construction. A budget of $225,000 was allocated for the purchase and installation of new fitness equipment including several weight stack machines, a variety of plate loaded free weight pieces, core strengthening and stretch pieces and traditional free weight equipment. For the cardio equipment such as treadmills and elliptical pieces, staff recommends leasing rather than a purchase due to maintenance and operations issues associated with constant wear of the moving parts, motors and electronics. Staff met with several vendors who supply commercial grade, high quality fitness equipment including full service delivery and installation available through direct purchase on the Texas Multiple Award Schedule (TXMAS) and/or the Texas BuyBoard. The fitness equipment vendors that offered commercial grade and high - quality products were considered for selection and asked to respond to the City's Request of Offer (RFO) 12 -003. After comparing fitness design, functionality and price of each proposal, staff developed the following recommendations: 1) Accept LifeFitness' proposal for LifeFitness Commercial Fitness Equipment representing LifeFitness, Hammer Strength and Iron Grip; including full service delivery & installation for $138,515.24; 2) Accept FITCO proposal for FITCO Fitness Equipment representing PRECGR; including full service delivery and installation for $1,390.00; 3) Accept Bodywork Fitness proposal for Bodyworks Fitness Commercial Fitness Equipment representing TRUE; including full service delivery and installation for $1,799.25 The fitness equipment will be purchased through the State of Texas TXMAS contract TXMAS -5 -78040 for LifeFitness equipment and the Local Government Purchasing Cooperative (BuyBoard) contract 336 -10 with Fitco and Bodyworks. The Local Government Code states that purchases made through a cooperative purchasing agreement satisfy any State law that would require the City to solicit competitive bids. This combination of vendors and equipment selection offers the best value at the lowest cost to the City. Recommendation: Authorize the Purchase of Fitness Equipment for the NRH Centre from LifeFitness in the amount of $138,515.24, FITCO in the amount of $1,390.00 and Bodywork Fitness in the amount of $1,799.25. M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. F.7 PU 2011 -044 Authorize the Purchase of Furniture and Equipment for the NRH Centre from Miller Office Interiors in the amount of for $131,983.61, Wilson Office Interiors in the amount of $119,463.11 and Pro Solutions, in the amount of $10,391.04 Presenter: Bill Thornton, Assistant Parks Director Summary: This item is to purchase and install new furniture and equipment including tables, chairs, desks and shelves for all of the public and office spaces throughout the new NRH Centre. General Descrir)tion: Construction of the NRH Centre is progressing with an expected April 2012 opening. While the purchase and installation of the furniture and equipment throughout the building is a separate component from the building construction, the installation of the furniture and equipment is coordinated to coincide with the completion of the construction. A budget of $431,400 was allocated for the purchase and installation of new furniture and equipment including tables, chairs, desks and shelves for all of the public and office spaces. Interior design work associated with selection and procurement of furniture, fixtures and equipment throughout the building is included in our professional services contract with Brinkley Sargent Architects ('BSA). Staff has been working with BSA to develop the specifications to procure all of the new furniture and equipment. The Texas Procurement and Support Services (TPASS) has established, as an alternative purchasing method, the use of Texas Multiple Award Schedule (TxMAS) contracts that have been developed from contracts awarded by the federal government or any other governmental entity of any state. TxMAS has contracts in place for the purchase and installation of furniture and equipment. The Local Government Code states that purchases made through a cooperative purchasing agreement satisfy any State law that would require the City to solicit competitive bids. After comparing furniture design, functionality and price, staff developed the following recommendations: 4) Accept Miller Office Interiors' proposal for office furniture and shelves, including full service delivery and installation for $131,983.61; 5) Accept Wilson Office Interiors' proposal for tables, chairs and seating including full service delivery and installation for $119,463.11; 6) Accept Pro Solutions proposal for tables, including full service delivery and installation for $10,391.04. The total TxMAS purchase amount for all three companies is $261,837.76. The remaining budgeted funds reserved for furniture and equipment will be available for other items not available through TxMAS, such as specialty furnishings including children's learning stations, therapy tables, weight sets and gymnastic equipment. Recommendation: To authorize the purchase of furniture and equipment for the NRH Centre from Miller Office Interiors in the amount of $131,983.61, Wilson Office Interiors in the amount of $119,463.11 and Pro Solutions, in the amount of $10,391.04. M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. F.8 PU 2011 -045 Approve Contract for Professional Architectural Consulting Services with Brinkley Sargent Architects and Appropriate Fund Balance Presenter: Jimmy Perdue, Public Safety Director Summarv: As a part of the planning process to determine the future direction for municipal facilities, the City needs to conduct a space needs assessment and site plan analysis. Fallowing a review of qualifications by a selection committee, Brinkley Sargent Architects has been selected to perform these services. The contract is scheduled to be completed in no more than 17 weeks at a cost of $92,000. General Descrir)tion: With the expansion of Loop 820, the current City facilities along Loop 820 will be significantly affected. The City has been conducting its due diligence for several years in preparing for this impact through the analysis of our facilities and the loss of their functionality. The City believes that the impact caused by the expansion requires that we evaluate the current configuration of our City departments and determine the best way to maintain efficient City services into the future. The City has conducted a Loop 820 corridor study and a preliminary assessment of City facilities. The next step in this process is to conduct a specific space needs assessment to determine the exact space needs and associated costs for this project. The City issued a Request for Qualifications (RFQ) on August 16, 2011 for interested firms to submit their qualifications to conduct a space needs and site assessment for city facilities. The City received a total of 16 responses from firms across the country. The quality of responses was of the highest caliber representing firms with significant experience in this type of project. The City was especially pleased to have received responses from many North Texas firms. Per City policy, the City Manager selected a review committee to evaluate the submittals and make a recommendation. The committee narrowed the list down to six firms and conducted interviews on October 20 -21. Following those interviews, the committee unanimously recommended the firm of Brinkley Sargent Architects (BSA) to conduct the space needs assessment. The City Manager entered into negotiations with BSA resulting in the attached contract submitted for approval. Brinkley Sargent Architects was founded in 1975 and has its principal office in Dallas, Texas. The firm focuses their efforts on municipal type facilities and has completed projects around the country with many being in the North Texas area. They have extensive experience with space needs studies particularly as they relate to the unique requirements for a public safety facility. The City has direct experience with BSA on a number of City projects including most recently the NRH Centre. City staff involved in this project have been very pleased with the work of the firm and facility they have created. Funding Source 311-0000-327.01-00 Appropriate Fund Balance Recommendation: Approve a professional services contract with Brinkley Sargent Architects in the amount of $92,000 for a space needs assessment, site analysis and master plan study for city facilities and appropriate $92,000 from the fund balance of account 311 -0000- 327.01.00. CITY OF NORTH RICHLAND HELLS, TEXAS CONTRACT FOR PROFESSIONAL ARCHITECTURAL CONSULTING SERVICES NEEDS ASSESSMENT STUDIES SITE ANALYSIS & MASTERPLANNING NEW POLICE, MUNICIPAL COURT& FIRE ADMINISTRATION BUILDING NEW CITY HALL BUILDING THIS CONTRACT made and entered into on the date last stated below between the City of North Richland Hills, Texas, hereinafter called "CITY", acting by and through the City Manager, Mark Hindman, duly authorized to act on behalf of the CITY and Brinkley Sargent Architects, hereinafter called "ARCHITECT ", acting by and through Harold E. Sargent, duly authorized to so act on behalf of the ARCHITECT. WHEREAS, the CITY desires PROFESSIONAL ARCHITECTURAL CONSULTING services in connection with NEEDS ASSESSMENT STUDIES, SITE ANALYSIS & MASTERLANNING FOR POLICE, MUNICIPAL COURT, FIRE ADMINISTRATION DEPARTMENTS & CITY HALL for the City of North Richland Hills, Texas, hereinafter called "the PROJECT "; and WHEREAS, the CITY has determined that the ARCHITECT has experience in the area involved in the Project and is qualified to perform the work and the ARCHITECT is willing to enter into a contract with the CITY to perform the services desired by the CITY in connection with the PROJECT. THE CITY AND ARCHITECT AGREE AS FOLLOWS: The CITY hereby retains the ARCHITECT to perform services in connection with the PROJECT described above. 1. SCOPE OF SERVICES The scope of services to be performed by the ARCHITECT shall be as follows: 1.1 Approach to Project The general approach to the project will be to involve all stakeholders & designated public groups in the process. This includes dialogue during the needs assessment process, as well as recommendations coming out of the process. The process will be one of reviewing existing conditions, programming for future needs, and giving direction on how best the City of North Richland Hills, Texas can develop the PROJECT to meet future needs. 1.2 Detailed Scope of Services Phase One A. Needs assessment establishing current and final city build -out space requirements for the following departments: 1. Police 2. Detention 3. Fire Administration 4. Municipal Court 5. City Hall B. Develop site requirements for City build -out. Phase Two Analyze three potential sites: Option One: 82 Acre Calloway Site Task: Develop Masterplan showing extent of site needs for buildings and parking. This analysis will not include possible development options for adjacent functions on site. Option Two: Existing City Hall /Police Site Task A: Develop Masterplan for incorporation of Phase One components on existing site with adjacent City established site acquisitions. Task B: Develop Masterplan of site meeting City Hall and Municipal Court functions of Phase One services. Analyze balance of site for use as retail lots to be sold by City for development. Option Three: Existing City Services Site Task: Develop Masterplan to relocate all Phase One components except City Hall and Court functions. Study options to include existing acreage and addition of lot at corner of Iron Horse Boulevard and Mid Cities Boulevard Phase Three A. Provide estimated budgeting of Phase Two options. Budgets to include civil analysis of infrastructure needs for all Phase Two sites. B. Development of a draft report including full needs assessment & potential site analysis. Phase Four A. Presentation of draft report & potential site analysis to designated CITY staff. B. Revise report based upon CITY staff comments. C. Present revised sites /budgets at community meetings. Phase Five A. Present final report to City Council.. 2. STUDYASSUMPTION A. Documentation of existing conditions is not required to establish a case for new facility. B. Existing municipal site information to be provided by CITY. C. All CITY lot options /legal descriptions as part of Phase Two studies to be provided by CITY. D. All CITY lot purchase price information to be utilized as part of Phase Three to be provided by CITY. 3. CITY'S RESPONSIBILITIES So as not to delay the services of ARCHITECT, the CITY shall do the following in a timely manner: 3.1 Provide Existing Data 1. Organizational chart of all study departments. 2. Count of CITY vehicles. Existing data delivered to the ARCHITECT by the CITY remains the property of the CITY and must be returned to the CITY after completion of the PROJECT. 3.2 Provide Access Arrange for reasonable access to and make all reasonable provisions for, ARCHITECT or ARCHITECT'S Sub - consultants to perform services under this AGREEMENT. Phase 9 Needs 8 weeks Phase 2 Sites 3 weeks Phase 3 Budgeting 3 weeks Phase 4 & 5 Presentation 3 weeks Total 17 weeks Schedule assumes CITY staff reviews will occur during presentation meetings as part of Phase 4 4.1 Completion of Services ARCHITECT'S services under each item of the Scope of Work shall be considered complete on the date when the submissions for that item have been accepted by CITY. 4.2 Changes If the CITY requests significant modifications or changes in the Scope of Services, extent or character of the PROJECT, the time of performance of ARCHITECT'S services, the various rates of compensation and schedule shall be adjusted equitably. 4.3 Written Authorization for Additional Work Any provision in this CONTRACT notwithstanding, it is specifically understood and agreed that the ARCHITECT shall not authorize or undertake any work pursuant to this CONTRACT which would require the payment of any fee, expense or reimbursement in addition to the stipulated fees stipulated without first having obtained the specific written authority to do so from the CITY. 4.4 Expanded Architectural Scope of Services The Owner will have the right to expand the scope of work of the architectural consultant from this study to complete architectural services. These services would be contracted as a separate contract and would include design and construction administration services for approved final project. 5. Payment for Services 5.1. Terms Terms used in describing the applicable method of payment for services provided by the ARCHITECT shall have the meaning indicated below: 5.2 Basis and Amount of Compensation for Basic Services/Reimbursable Expenses A. Fees & reimbursable expensed are based upon the following number of project meetings: Phase 9 Phase 2 Phase 3 Phase 4 Phase 5 Total Meetings 6 Meetings 2 Meetings 0 Meetings 2 Meetings 9 Meetings 19 Meetings B. Professional Fees Phase Fees 1. Architectural $34,000 2. Architectural $13,000 3. a. Architectural $14,000 b. Civil $12,000 4. Architectural $ 9,000 5. Architectural $ 6,000 Reimbursable Expenses $ 4.000 Total Fees & Reimbursable Expenses $ 92.000 Reimbursable expenses are based upon an agreed regular schedule for meetings. Ten copies of draft report & ten copies of final report are included in reimbursable costs. 5.2.2 Reimbursable Expenses These include airfare, parking, tolls, rental car, meals, printing, photographs, facsimile transmissions and copies. These costs will be billed as expended to a maximum of $4,000. 3D renderings of sites are not included in fees or reimbursable costs. 5.2.3 Additional Services Additional services not covered under the Scope of Services, will be provided to the CITY as a lump sum fee based upon a defined scope of work 5.4 Basis and Amount of Compensation for Additional Services Additional scope to be defined and a fixed fee developed for that scope. 5.5 Partial Payments for Services Partial fee payments may be applied for at monthly intervals, based upon statements, which reflect the percentage of work completed for the various items listed under Scope of Services and Reimbursable Expenses. These statements shall be prepared by the ARCHITECT and approved by the CITY. 6. TERMINATION, SUSPENSIONS OR ABANDONMENT 6.1 Termination The CITY or the ARCHITECT may terminate this CONTRACT for reasons identified elsewhere in this CONTRACT. In the event such termination becomes necessary, the party effecting termination shall so notify the other party, and termination will become effective thirty (30) calendar days after receipt of the termination notice. Irrespective of which party shall effect termination or the cause therefor, the CITY shall within thirty (30) calendar days of termination remunerate ARCHITECT for services rendered and costs incurred, in accordance with the ARCHITECT'S prevailing fee schedule and expense reimbursement policy. Services shall include those rendered up to the time of termination. All plans, field survey, and other data related to the PROJECT shall become the property of CITY upon termination of the CONTRACT and shall be promptly delivered to the CITY in a reasonably organized form. Should CITY subsequently contract with a new ARCHITECT for continuation of services on the PROJECT, ARCHITECT shall cooperate in providing information. No amount shall be due for lost or anticipated profits. In addition, notwithstanding any other provision to the contrary, City may terminate this contract without cause. 6.2 Suspension If the Project is suspended by the CITY for more than 60 consecutive days, the ARCHITECT shall be compensated for services performed prior to notice of such suspension. When the Project is resumed, the ARCHITECT'S compensation shall be equitably adjusted to provide for expenses incurred in the interruption and resumption of the ARCHITECT'S services. 6.3 Abandonment This CONTRACT may be terminated by the CITY upon not less than seven (7) days written notice to the ARCHITECT in the event that the Project is permanently abandoned. If the Project is abandoned by the CITY for more than ninety (90) consecutive days, the ARCHITECT or the CITY may terminate this CONTRACT by giving written notice. 6.4 Failure to Fay Failure of the CITY to make payments to the ARCHITECT in accordance with this CONTRACT shall be considered substantial nonperformance and cause for termination. If the CITY fails to make payment to ARCHITECT within thirty (30) days of a statement for services properly performed, the ARCHITECT may, upon fourteen (14) days written notice to the CITY, suspend performance of services under this CONTRACT. Unless ARCHITECT receives payment in full within fourteen (14) days of the date of the notice, the suspension shall take effect without further notice. In the event of a suspension of services under this section, the ARCHITECT shall have no liability to the CITY for delay or damage caused the CITY because of such suspension of services. 7. GENERAL CONSIDERATIONS 77 Professional Standards Services performed by the ARCHITECT under this CONTRACT will be conducted in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing in the same locality under similar conditions. The CITY'S approval, acceptance, use of or payment for all or any part of the ARCHITECT'S services herein under or of the project itself shall in no way alter the ARCHITECT'S obligations or the CITY'S rights thereunder. 7.2 Progress and Performance The provisions of this CONTRACT and the compensation to ARCHITECT have been agreed to in anticipation of continuous and orderly progress through the completion of the ARCHITECT'S services. Time for performance shall be extended to the extent necessary for delays due to circumstances over which the ARCHITECT has no control. If the ARCHITECT'S services are suspended or delayed the times of performance shall be extended to the extent of such delay or suspension. A delay or suspension shall not terminate this CONTRACT unless ARCHITECT elects to terminate in accordance with the provisions of Section 6 of this CONTRACT. If a delay or suspension extends for a period of greater than one year for reasons beyond the control of the ARCHITECT, the fees and rates of compensation set forth in Section 5 shall be subject to renegotiation. 7.3 CITY Control It is understood and agreed that the CITY shall have complete control of the services to be rendered, and that no work shall be done under this CONTRACT until the ARCHITECT is instructed to proceed with the work. 7.4 Independent Agent ARCHITECT and CITY agreed that ARCHITECT and any officer, employee or agent of ARCHITECT, in the performance of this CONTRACT shall act in an independent capacity and not as an officer, agent or employee of the CITY. 7.5 Compliance with Laws ARCHITECT shall comply with all Federal, State, and local laws and ordinances in the execution of all work in connection with this PROJECT. 7.6 No Additional Work Without Authorization Any provision in the CONTRACT notwithstanding, it is specifically understood and agreed that the ARCHITECT shall not authorize or undertake any work pursuant to this CONTRACT, which would require the payment of any fee, expense or reimbursement in addition to the fee stipulated in Article 5 of this CONTRACT, without having first obtained specific written authority therefore from the CITY. 77 Assignment & Subcontracting This CONTRACT shall not be assigned or subcontracted in whole or part without the written consent of the CITY. 7.8 Insurance All policies, except Worker's Compensation and Professional Liability, shall name the CITY as additional insured. All policies shall contain a waiver of subrogation in favor of the CITY and shall require the giving of written notice to CITY at least thirty (30) days prior to cancellation, non - renewal or material modification of any policies, evidenced by return receipt of United States Certified Mail. ARCHITECT shall furnish CITY with copies of said policies or certificates evidencing such coverage. 7.9 Property All documents, including drawings, field notes, surveys, tracings, calculations, computer input and output, digital or computer files, etc., prepared by the ARCHITECT pursuant to this contract shall become the property of the CITY. The ARCHITECT may retain copies of all documents. 7.70 Governing Law This CONTRACT has been made under and shall be governed by the laws of the State of Texas. The parties agree that the performance and all matters related thereto shall be in Tarrant County, Texas. 8. DOCUMENT EXECUTION IN WITNESS WHEREOF, the parties have executed this CONTRACT the day of 2011. CITY OF NORTH RICHLAND HILLS, TEXAS BRINKLEY SARGENT ARCHITECTS By: By: Harold E. Sargent, AIA Title: Title: President Date: Date: M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject Agenda Item No. G.0 EXECUTIVE SESSION ITEMS M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject Agenda Item No. G.1 Action on Any Item discussed in Executive Session Listed on Work Session Agenda M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject Agenda Item No. H.0 INFORMATION AND REPORTS M RH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject: Agenda Item No. H.1 Announcements - Councilman Sapp Presenter: Councilman Ken Sapp Announcements The North Richland Hills Public Library is hosting a workshop on how to successfully re- enter the workforce. The workshop will be presented on Thursday, November 17th at 6 p.m. in the Library's Community Room. For more details, please call 817- 427 -6814. City Hall and other non - emergency offices will be closed on Thursday and Friday, November 24th and 25th for the Thanksgiving Holiday. Duncan Disposal will not provide garbage and recycling collections on Thanksgiving Day. Thursday's collections will be made on Friday and Friday's collections will shift to Saturday. The City of North Richland Hills is making it easy for residents to recycle used cooking oil from their holiday feasts. Instead of throwing cooking oils and grease down the drain, which can lead to clogged sewer pipes, residents are encouraged to collect it in a plastic container for recycling. The Public Works Department will collect used cooking oils for recycling November 28th through December 2nd. To schedule a pickup or get more information, please call 817 - 427 -6457. Kudos Korner Every Council Meeting, we spotlight our employees for the great things they do. Tonight we are spotlighting: The Police & Fire Departments The president of a North Richland Hills homeowners association e- mailed comments to the Mayor about the recent National Night Out event. "Our homeowners were overwhelmed with the turnout of our Police and Fire Departments and their efforts to strengthen neighborhood spirit and community partnerships," he said. The resident is thankful for our public safety employees and for the city's commitment to making our community a safe place to live. M KH COUNCIL MEMORANDUM From: The Office of the City Manager Date: 11 -14 -2011 Subject Agenda Item No. H.Z Adjournment