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Agenda Packet TC 06/20/2005Town of Trophy Club Town Council Regular Meeting Agenda 100 Municipal Drive Trophy Club, Texas 76262 Monday, June 20, 2005 6:00 P.M. A.1 Call to order and announce a quorum. A.2 Invocation. A.3 Pledge of allegiance to the American Flag. Pledge of allegiance to the Texas Flag. "Honor the Texas flag, I pledge allegiance to thee, Texas one and indivisible." A.4 Joint Budget Workshop: Town Council, Economic Development Corporation A and Economic Development Corporation B to discuss EDC 2005/06 budgets. A.5 Town Council, EDC A and EDC B to close budget workshop and open a joint regular session. A.6 Town Council to consider a Resolution to allow participants in economic incentives for the development of Trophy Wood Center. A.7 Town Council to discuss and take appropriate action in regard to a Resolution that would allow the town to abate property taxes. A.8 Budget Workshop: 2005/06 budget. A.9 EDC A and EDC B to adjourn. B.1 Citizen presentations: this is an opportunity for citizens to address the Council on any matter whether or not it is posted on the agenda. The Council is not permitted to take action on or discuss any presentations made to the Council at this time concerning an item not listed on the agenda. The Council will hear presentations on specific agenda items prior to the Council addressing those items. B.2 Town Manager Report and Discussion Regarding Project Updates as Listed Below: There will be no action taken regarding any individual project posted under this item and discussion will be limited. If extensive discussion is required, the item may be placed on a future agenda. Departmental Updates: Administration: Administrative Advisory Committee meeting topics Nextel NEFDA Community Development: Indian Creek Road Construction Highway 114 Detour Building Permits Police and Fire Services: Roadway Education and Marking Scan USA Neighborhood Crime Watch Programs Scooter and Bicycle Safety Town B.3 Discuss and take appropriate action relative to: a. Preliminary Plat for an 11.002 acre tract of land in the M. Medlin Survey, Abstract No. 832 to be known as Eagles Ridge Phase II, located generally to the north of Clear Vista Drive and Panorama Circle. (PP-05-006) b. Final Plat for an 11.002 acre tract of land in the M. Medlin Survey, Abstract No. 832 to be known as Eagles Ridge Phase II, located generally to the north of Clear Vista Drive and Panorama Circle. (FP-05-004) B.4 Items for Future Agenda. B.5 Discuss and take appropriate action regarding a resolution appointing citizens to four (4) seats on the Planning & Zoning Commission. D.1 Discuss and take appropriate action regarding an Ordinance, repealing Ordinance No. 95- 12 in its entirety, and adopting a new Ordinance establishing regulations governing the construction of swimming pools. D.2 Discuss and take appropriate action regarding termination of the 2005 Annual Miscellaneous Concrete Repair contract with Driveway Maintenance. D.3 Consent agenda: Discuss and take appropriate action to approve financials dated May 2005. D.4 Consent agenda: Discuss and take appropriate action to approve Minutes dated June 6, 2005. D.5 Additional Information for Council E.1 Pursuant to Texas Government Code, Annotated, Subchapter 551, Section 551.071 (a) & (b) "Consultation with Attorney", the Council will enter into executive session to discuss the following: (A) Consultation with Town Attorney on a matter in which the duty of the Attorney to the Governmental Body under the Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflict with the Open Meetings Act (551.071 (b)). (1) Legal Advice Relative to Purchasing Laws and Policies Applicable to Consultant and Professional Services Agreements, including the Municipal Building Addition E.2 Staff to provide an update, as directed by Council at their 6/6/05 meeting, to determine the feasibility of the construction project within budget constraints for the Svore Municipal Building addition and for Council to discuss and take appropriate action regarding the update and the award\rejection of proposals for a Construction Manager at Risk for the building addition. E.3 Discuss and provide direction to Staff regarding architectural services for municipal projects, including the Municipal Additions and Alterations project. F.1 Adjourn. COUNCIL MEMORANDUM From: The Office of the Town Manager Date: 6-20-2005 Subject: Agenda Item No.A.1 Call to order and announce a quorum. (lr) COUNCIL MEMORANDUM From: The Office of the Town Manager Date: 6-20-2005 Subject: Agenda Item No.A.2 Invocation. (lr) COUNCIL MEMORANDUM From: The Office of the Town Manager Date: 6-20-2005 Subject: Agenda Item No.A.3 Pledge of allegiance to the American Flag. Pledge of allegiance to the Texas Flag. "Honor the Texas flag, I pledge allegiance to thee, Texas one and indivisible." (lr) COUNCIL MEMORANDUM From: The Office of the Town Manager Date: 6-20-2005 Subject: Agenda Item No.A.4 Joint Budget Workshop: Town Council, Economic Development Corporation A and Economic Development Corporation B to discuss EDC 2005/06 budgets. EXPLANATION: RECOMMENDATION: ACTION BY COUNCIL: Attachments: None COUNCIL MEMORANDUM From: The Office of the Town Manager Date: 6-20-2005 Subject: Agenda Item No.A.5 Town Council, EDC A and EDC B to close budget workshop and open a joint regular session. EXPLANATION: RECOMMENDATION: ACTION BY COUNCIL: Attachments: 1. None COUNCIL MEMORANDUM From: The Office of the Town Manager Date: 6-20-2005 Subject: Agenda Item No.A.6 Town Council to consider a Resolution to allow participants in economic incentives for the development of Trophy Wood Center. EXPLANATION: RECOMMENDATION: ACTION BY COUNCIL: (lr) Attachments: 1. Resolution TOWN OF TROPHY CLUB, TEXAS RESOLUTION NO. A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TROPHY CLUB, TEXAS, AND THE TROPHY CLUB ECONOMIC DEVELOPMENT CORPORATION 4B, REPEALING RESOLUTION NO. 2003-04 AUTHORIZING AN ECONOMIC DEVELOPMENT AGREEMENT WITH MIDWEST REALTY AND ADOPTING A NEW RESOLTUION AUTHORIZING A NEW ECONOMIC DEVELOPMENT AGREEMENT WITH MIDWEST COMMERCIAL REALTY; DESIGNATING TERMS OF THE AGREEMENT AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Town Council of the Town of Trophy Club, Texas, recognizes the need to attract and retain economic development projects; and WHEREAS, in 2003, EDC 4B agreed to provide certain economic development incentives to Midwest Commercial Realty for the development of Planned Development Number 25 through the passage of Resolution Number 2003-04; and WHEREAS, Midwest Commercial Realty has indicated a desire to use EDC funds as a direct incentive for a third party desiring to build commercial establishments within P.D. Number 25 which is a change from the initial agreement adopted as part of Resolution Number 2003-04; and WHEREAS, the construction of commercial property such as restaurants and hotels as proposed by Midwest Commercial Realty (hereinafter “Project”) will increase the sales tax revenue to the Town and the EDC4B; and WHEREAS, Midwest Commercial Realty is currently in negotiations with a national hotel chain on a proposed project on the site; and WHEREAS, the EDC4B currently has funds available for the proposed Project and has agreed to funding as specified in Exhibit “A”, a copy of which is attached hereto and incorporated herein; and WHEREAS, the EDC4B and the Town of Trophy Club believe it to be in the best interests of the Town of Trophy Club and its’ residents to pursue the Project with funding specified in Exhibit “A”; NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF TROPHY CLUB, TEXAS: Section 1: That the Town Council of the Town of Trophy Club hereby repeals Resolution Number 2003-04 in its entirety and authorizes and approves the expenditure of EDC4B funds in the manner outlined on the attached Exhibit “A” and such approval is evidenced by the Mayor’s signature on the document. Section 2: That the agreement memorializing the terms specified in Exhibit “A” is between Midwest Commercial Realty and the EDC4B, and does not run with the land, is not assignable or transferable, and terminates at such time that Midwest Commercial Realty ceases to be the principal developer of the property which is the subject of the agreement approved by this Resolution. Section 3: That a substantial copy of the funding provisions of the agreement between Midwest Commercial Realty and EDC4B is attached hereto as Exhibit “A” and that such amount shall not exceed $100,000. Section 4: That the development of the property shall be commenced within one year of the effective date shown on the attached signature page or this agreement shall automatically terminate. It shall be prima facie proof that development has commenced if a ground breaking on a construction project has occurred. Section 5: That this Resolution shall become effective from and after its date of passage in accordance with law, and it is so resolved. PASSED AND APPROVED by the Town Council of the Town of Trophy Club, Texas, this ___ day of __________, _____. ____________________________________ Mayor Town of Trophy Club, Texas ________________________________ James Hicks President, Economic Development 4B ATTEST: ___________________________ Town Secretary Town of Trophy Club, Texas [SEAL] APPROVED AS TO FORM: ___________________________ Town Attorney Town of Trophy Club, Texas EFFECTIVE: _________________ EXHIBIT A Ground Breaking: Fifty Thousand dollars to be paid at the time of ground breaking on any project expected to produce an annual income of more than $20,000 of combined Town of Trophy Club sales tax, (EDCA, EDCB, and Town) within three years of completion. At Completion: Twenty Five Thousand dollars to be paid at the point of issuance of the certificate of occupancy by the Town of Trophy Club. After One Year: Twenty Five Thousand dollars to be paid one year after issuance of the certificate of occupancy. COUNCIL MEMORANDUM From: The Office of the Town Manager Date: 6-20-2005 Subject: Agenda Item No.A.7 Town Council to discuss and take appropriate action in regard to a Resolution that would allow the town to abate property taxes. EXPLANATION: The attached resolution expresses only the Town’s intent to consider adopting a policy that would authorize Council to consider tax abatements and does not obligate the Town in any way to approve a tax abatement policy or to grant any specific tax abatement. The resolution is the first step that must be taken if the Council desires to adopt a tax abatement policy. If Council were to approve this resolution, a draft of guidelines and criteria for granting tax abatements would be presented for Council consideration at a subsequent Council meeting. Guidelines and criteria must be adopted before any tax abatement agreement may be considered. Additionally, compliance with state law notice and hearing requirements must be followed before any abatement agreement is approved. RECOMMENDATION: ACTION BY COUNCIL: (paa) Attachments: 1. Resolution TOWN OF TROPHY CLUB, TEXAS RESOLUTION NO. 2005- ___ A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TROPHY CLUB, TEXAS, EXPRESSING THE INTENT OF THE TOWN COUNCIL TO CONSIDER PROVIDING TAX ABATEMENTS FOR ELIGIBLE DEVELOPMENTS WITHIN THE TOWN; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Town of Trophy Club is a home rule municipality incorporated under the Texas Constitution; and WHEREAS, in order to promote economic development, the Town of Trophy Club, Texas, desires to consider providing tax abatements to eligible developments within the Town; and WHEREAS, the adoption of this Resolution does not obligate the Town to adopt a tax abatement policy or to grant any specific tax abatement, but rather is an expression of the Town’s intent to consider whether it is feasible and prudent to adopt a tax abatement policy; and NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF TROPHY CLUB, TEXAS, THAT: Section 1. The above premises are found to be true and correct and are hereby affirmed and adopted by the Town Council of the Town of Trophy Club. Section 2. The Town Council of the Town of Trophy Club hereby expresses its intent to consider providing tax abatements through a properly adopted tax abatement policy in order to promote economic development for eligible developments within the Town. Section 3. Town Staff is hereby authorized to develop a draft of tax abatement guidelines and criteria for the consideration of Council at a subsequent meeting. Neither passage of this Resolution nor consideration of such guidelines and criteria are binding upon the Town Council nor should this action be construed as a creating any obligation on the part of the Town to adopt a tax abatement policy or to grant any specific tax abatement request. Section 4. This Resolution shall become effective immediately upon its passage. DULY PASSED AND APPROVED on this the _____ day of _______________, 2005. ____________________________________ Nick Sanders, Mayor Town of Trophy Club, Texas ATTEST: ___________________________ Town Secretary Town of Trophy Club, Texas [SEAL] APPROVED AS TO FORM: ___________________________ Town Attorney Town of Trophy Club, Texas COUNCIL MEMORANDUM From: The Office of the Town Manager Date: 6-20-2005 Subject: Agenda Item No.A.8 Budget Workshop: 2005/06 budget. EXPLANATION: RECOMMENDATION: ACTION BY COUNCIL: (lr) Attachments: 1. None COUNCIL MEMORANDUM From: The Office of the Town Manager Date: 6-20-2005 Subject: Agenda Item No.A.9 EDC A and EDC B to adjourn. EXPLANATION: RECOMMENDATION: ACTION BY COUNCIL: (lr) Attachments: 1. None COUNCIL MEMORANDUM From: The Office of the Town Manager Date: 6-20-2005 Subject: Agenda Item No.B.1 Citizen presentations: this is an opportunity for citizens to address the Council on any matter whether or not it is posted on the agenda. The Council is not permitted to take action on or discuss any presentations made to the Council at this time concerning an item not listed on the agenda. The Council will hear presentations on specific agenda items prior to the Council addressing those items. (lr) Departmental Updates: Administration: Administrative Advisory Committee meeting topics Nextel NEFDA Community Development: Indian Creek Road Construction Highway 114 Detour Building Permits Police and Fire Services: Roadway Education and Marking Scan USA Neighborhood Crime Watch Programs Scooter and Bicycle Safety Town COUNCIL MEMORANDUM From: The Office of the Town Manager Date: 6-20-2005 Subject: Agenda Item No.B.2 Town Manager Report and Discussion Regarding Project Updates as Listed Below: There will be no action taken regarding any individual project posted under this item and discussion will be limited. If extensive discussion is required, the item may be placed on a future agenda. Departmental Updates: Administration: Administrative Advisory Committee meeting topics Nextel NEFDA Community Development: Indian Creek Road Construction Highway 114 Detour Building Permits Police and Fire Services: Roadway Education and Marking Scan USA Neighborhood Crime Watch Programs Scooter and Bicycle Safety Town COUNCIL MEMORANDUM From: The Office of the Town Manager Date: 6-20-2005 Subject: Agenda Item No.B.3 Discuss and take appropriate action relative to: a. Preliminary Plat for an 11.002 acre tract of land in the M. Medlin Survey, Abstract No. 832 to be known as Eagles Ridge Phase II, located generally to the north of Clear Vista Drive and Panorama Circle. (PP-05-006) b. Final Plat for an 11.002 acre tract of land in the M. Medlin Survey, Abstract No. 832 to be known as Eagles Ridge Phase II, located generally to the north of Clear Vista Drive and Panorama Circle. (FP-05-004) LOCATION: Located generally to the north of Clear Vista Drive and Panorama Circle OWNER: Beck Properties APPLICANT: Beck Properties NO. NOTICES SENT: Notices are not required to be sent for Preliminary or Final Plats. RESPONSES: N/A STAFF COMMENTS: Purpose: To consider approval of a Preliminary Plat and a Final Plat for approximately 11.05 acres, 25 residential lots and one open space lot. Existing Condition of the Property: The land is currently zoned R-12. Staff Findings: The plat has been reviewed by the Town Engineer, Water Department, Fire Department and Planning staff and appears to be in compliance with the Town’s Subdivision Regulations. Planning & Zoning Action: The Planning & Zoning Commission unanimously approved both the Preliminary & Final Plats for Eagle’s Ridge, Phase II. (kcf) COUNCIL MEMORANDUM From: The Office of the Town Manager Date: 6-20-2005 Subject: Agenda Item No.B.4 Items for Future Agenda. EXPLANATION: RECOMMENDATION: ACTION BY COUNCIL: (lr) Attachments: 1. None COUNCIL MEMORANDUM From: The Office of the Town Manager Date: 6-20-2005 Subject: Agenda Item No.B.5 Discuss and take appropriate action regarding a resolution appointing citizens to four (4) seats on the Planning & Zoning Commission. EXPLANATION: This year, four (4) terms are expiring for members currently serving on the Planning & Zoning Commission. Those Commissioners are: 1.) Gene Hill; 2.) Jim Moss; 3.) Clayton Reed; and 4.) John Rodgers. Of these four members, only John Rogers does not wish to renew their appointment. The following new applications have been received: 1.) Steve Stamos; 2.) F. Alan Bailey; 3.) Robert Monroe; 4.) Andrew Hayes; and 5.) Scott Smith. Chairman Hill was able to speak with a few of the new applicants. Following the P&Z Commission applications in your backup material, I have included a few summaries Chairman Hill prepared for the Council’s consideration. Chairman Hill was not able to prepare a summary for Mr. Monroe and Mr. Smith in time to be included in the packet. (kcf) Attachments: 1. Information Memorandum 2. Resolution 3. Applications 4. Summary of Prospective Applicant Discussions TOWN OF TROPHY CLUB, TEXAS RESOLUTION NO. 2005 - __ A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TROPHY CLUB, TEXAS, APPOINTING CITIZENS TO FOUR (4) SEATS TO SERVE ON THE PLANNING & ZONING COMMISSION; DESIGNATING TERMS OF SERVICE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Town of Trophy Club, Texas, benefits by having its citizens involved in local government through service on Commissions; and WHEREAS, the Trophy Club Town Council is charged with the responsibility of making appointments to Commissions serving the Town. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF TROPHY CLUB, TEXAS: Section 1. That the Town Council hereby appoints the following individuals to serve on the Planning & Zoning Commissions as indicated, with a term of service that expires in the year specifically provided below: Planning & Zoning Commission 1. ________________ (2007) 2. ________________ (2007) 3. ________________ (2007) 4. ________________ (2007) Section 2. That this Resolution shall become effective from and after its date of passage in accordance with law. PASSED AND APPROVED by the Town Council of the Town of Trophy Club, Texas, this 20th day of June, 2005. Mayor Town of Trophy Club, Texas Effective Date: [SEAL] ATTEST: Town Secretary Town of Trophy Club, Texas APPROVED TO AS FORM: Town Attorney Town of Trophy Club, Texas COUNCIL MEMORANDUM From: The Office of the Town Manager Date: 6-20-2005 Subject: Agenda Item No.D.1 Discuss and take appropriate action regarding an Ordinance, repealing Ordinance No. 95-12 in its entirety, and adopting a new Ordinance establishing regulations governing the construction of swimming pools. EXPLANATION: This is an update to the current ordinance. The primary change in this ordinance requires newly built swimming pools to drain into the sanitary sewer instead of the streets and storm drain system. Staff has worked with the MUDs on the wording and specifications. Connection to the sanitary sewer will require a $75 MUD inspection fee for which both MUDs have amended their rate orders to include. Clarification has also been provided throughout the ordinance to make it easier to understand and enforce. RECOMMENDATION: Staff recommends the adoption of the updated ordinance. ACTION BY COUNCIL: bg Attachments: 1. Information Memorandum 2. Ordinance (Redlined) 3. Ordinance (Final Version) TOWN OF TROPHY CLUB, TEXAS ORDINANCE NO. 95 -–122005-__ AN ORDINANCE OF THE TOWN OF TROPHY CLUB, TEXAS REPEALING ORDINANCE NO. 1995-12, AN ORDINANCE ESTABLISHING REGULATIONS GOVERNING THE CONSTRUCTION OF SWIMMING POOLS; AND ADOPTING A NEW ORDIANCNE 1998- 28, AND 1992-06; ESTABLISHING REGULATIONS GOVERNING THE CONSTRUCTION OF SWIMMING POOLS;; PROVIDING FOR THE INCORPORATION OF PREMISES; SETTING FORTH DEFINITIONS; PROVIDING FOR APPLICABILITY AND PROHIBITIVE CONDUCT; PROVIDING FOR EXCEPTIONS; ADOPTING NEW PROVISIONS FOR THE CONSTRUCTION OF SWIMMING POOLS; PROVIDING FOR APPEAL; PROVIDING DEFINITIONS; AS TO SWIMMING POOLS: (1) PROVIDING LIGHTING REQUIREMENTS, (2) REQUIRING A PERMIT FOR THE USE OF A PUBLIC ADDRESS SYSTEM, (3) ADOPTING THE UNIFORM POOL CODE, AND (4) REQUIRING THAT WATER FROM SWIMMING POOLS BE DRAINED IN STORM SEWERS OR NATURAL DRAINAGE AND NOT INTO ADJOINING PROPERTY; PROVIDING A SAVINGS CLAUSE; REPEALING ORDINANCE NO. 92-06 RELATING TO SWIMMING POOLS; PROVIDING A CUMULATIVE REPEALER CLAUSE; PROVIDING A SAVINGS CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A PENALTY NOT TO EXCEED THE SUM OF TWO THOUSAND DOLLARS ($2,000.00) FOR EACH OFFENSE AND A SEPARATE OFFENSE SHALL BE DEEMED COMMITTED EACH DAY DURING OR ON WHICH A VIOLATION OCCURS OR CONTINUES; PROVIDING FOR PUBLICATION; PROVIDING FOR ENGROSSMENT AND ENROLLMENT; AND PROVIDING AN EFFECTIVE DATE.PROVIDING A SEVERABILITY CLAUSE; PROVIDING A PENALTY OF NOT LESS THAN ONE DOLLAR ($1.00) NOR MORE THAN FIVE HUNDRED DOLLARS ($500.00) FOR EACH OFFENSE AND A SEPARATED OFFENSE SHALL BE DEEMED COMMITTED EACH DAY DURING OR ON WHICH A VIOLATION OCCURS OR CONTINUES; PROVIDING AN EFFECTIVE DATE. WHEREAS, the Town of Trophy Club (hereinafter referred to as “Town”) is a hHome rRule municipality acting under its charter adopted by the electorate pursuant to Article XI, Section 5 of the Texas Constitution and Chapter 9 of Local Government Code; and WHEREAS, on July 18, 1995, the Town Council adopted Ordinance No. 95-12, establishing “Swimming Pool Regulations” for the Town of Trophy Club, Texas; and WHEREAS, Town staff has recommended an update to Ordinance No. 95-12 in order to be consistent with current law and standards regulating swimming pools and in order to protect the health, safety, and welfare of the citizens of the Town; and WHEREAS, the Town Council of the Town of Trophy Club, Texas (the "Town") recognizes the need for proper construction and maintenance of swimming pools and the need to protect citizens and other members of the public from the dangers inherent in the use of swimming pools within the Town; and WHEREAS, the Town Council hereby finds that the regulations established herein are in the best interest of the health, safety and general welfare of the citizens of the Town. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF TROPHY CLUB, TEXAS. SECTION 1. INCORPORATION OF PREMISES All of the above premises are found to be true and correct and are incorporated into the body of this Ordinance as if copied in their entirety. SECTION 2. DEFINITIONS A. Unless otherwise provided for herein, the following terms shall have the respective meanings ascribed to them. When used in this ordinance, the following terms shall have the respective meanings ascribed to them: Aboveground Swimming Pool: shall mean shall mean aA structure in which the entire construction is above ground, or if partly above and partly below ground, the top of the receptacle basin is at least twenty-four inches (24”) above ground. intended for swimming or recreational bathing that contains water over 24 inches deep and has a capacity of over 700 gallons that is not dug into the ground. .shall mean any structure, basin, chamber or tank containing an artificial body of water needing external buttresses for use or intended to be used for public, semi-public or private swimming or bathing by adults or children, or both adults and children, operated and maintained by any person, whether he/she be an owner, lessee, operator, licensed or concessionaire, and shall include swimming pools used or intended to be used solely by the owner or guests invited to use it without payment of any fee. In-Ground Swimming Pool: shall mean shall mean aA structure intended for swimming or recreational bathing that contains water over 24twenty-four inches (24”) deep and has a capacity of over 700 gallons that is any structure, basin, chamber or tank containing an artificial body of water dug into the ground. for use or intended to be used for public, semi-public or private swimming or bathing by adults or children, or both adults and children, operated and maintained by any person, whether he/she be an owner, lessee, operator, licensed or concessionaire, and shall include swimming pools used or intended to be used solely by the owner or guests invited to use it without payment of any fee. Kiddie Pool or Wading Pool: shall mean aAny deflatable, portable or temporary special purpose pool or receptacle set aside primarily for use by children with a depth no greater than 24twenty-four inches (24”). Permitting Department: shall mean tThe Permitting Division of the Community Development Department of the Town of Trophy Club, Texas. Spa: shall meanA hydro-massage pool or tub, including but not limited to hot tubs, whirlpool baths and tubs and Jacuzzi-type tubs or baths, for recreational or therapeutic use, not located in a health-care facility, designed for immersion of users and usually having a filter, heater, and motor-driven blower. The spa is intended for recreational bathing and contains water over twenty-four inches (24”) deep. Swimming Pool: shall mean aAny structure intended for swimming or recreational bathing that contains water over twenty-four 24 inches (24”) deep and has a capacity of over seven-hundred (700) gallons. This includes in-ground, aboveground and on-ground swimming pools. As used in this Ordinance the term is limited to pools which are fitted with a filter for clarifying pool water, or which are designed to be fitted with a filter, whether installed or not. The term shall not include facilities located inside a residence, storable pools designed for seasonal setup and use which are stored at the end of the swimming season, or spas installed on decks or porches if a fitted hard cover designed to prevent entry is maintained in place at all times when the spa is not in use. body of water in an artificial or semi-artificial receptacle or other container located outdoors, used or intended to be used for public, semi-public or private swimming or bathing by adults or children, or both adults and children, operated and maintained by any person, whether he/she be an owner, lessee, operator, licensed or concessionaire, and shall include swimming pools used or intended to be used solely by the owner or guests invited to use it without payment of any fee. Hot tubs, whirlpool baths and tubs, and Jacuzzi type tubs or baths shall be considered swimming pools if they are located outdoors or designed to be located outdoors and are provided with permanent outdoor water plumbing Any indoor swimming or wading pool with movable walls, windows or doors exposing such indoor pool at ground level to outside yards shall be included in the definition of swimming pool. The definition of swimming pool shall include both Aboveground and In-Ground Swimming Pools as defined herein. SECTION 3. APPLICABILITY AND PROHIBITIVE CONDUCT It shall be unlawful for any person to violate any provision of this Ordinance. A. This ordinance shall be applicable to all new swimming pools and spas hereafter constructed, erected, or maintained, other than indoor pools, and shall apply to all existing pools and spas which have a depth of greater than twenty four (24) inches (24”) or more of water at any point. It shall be unlawful for any person to violate any provision of this Ordinance. B. No person shall construct, erect, or maintain an aboveground pool. A. Deflatable pools and temporary portable pools generally described as "kKiddie pPools” or “Wading Pools”," are exempt from the provisions of this ordinance. C. No person in possession of land within the Town, whether as owner, purchaser, lessee, or licenseeor licensee, upon which is situated a swimming pool having a depth ofgreater than twenty-four inches (24”) or more of water at any point, shall fail to provide and maintain such fence or wall as herein provided. C. Any and all fenced swimming pools existing at the time this ordinance is passed shall be deemed to be in compliance with this ordinance. D. Any and all unfenced swimming pools existing at the time this ordinance is passed shall have ninety (90) days to comply with the terms and requirements herein stated, from the effective date of this ordinance. E. Except as specifically provided herein, it shall be unlawful of any person, corporation, partnership or other legal entity to construct, have, have constructed, or maintain any type of swimming pool without having first procured a permit for the construction of same from the Permitting Department. SECTION 45 EXCEPTIONS A. "Kiddie Pools” or “Wading Pools”, are exempt from the provisions of this Oordinance except as specifically provided herein. Aboveground swimming pools are prohibited. B. Hot tubs, whirlpool baths and tubs, and Jacuzzi-type tubs or baths with a capacity of not more than fifteen hundred (1,500) gallons shall be allowed above ground. C. In lieu of the fence requirement in Section 6, subsection B(1)(a) , rigid lock-down covers may be allowed for hot tubs, whirlpool baths and tubs, Jacuzzi-type baths and tubs, and spas , provided that prior approval is given through the fence permit application process and further provided that the cover is kept locked at all times that the hot tub, whirlpool bath and tub, Jacuzzi-type bath and tub, and/or spa is not in use. SECTION 5 SWIMMING POOLS A. Swimming Pool Permit Application. Permit - It shall be unlawful of any person, corporation, partnership or other legal entity to construct or have constructed any type of swimming pool without having first procured a permit for the construction of same from the Planning and Zoning AdministratorPermitting Department. The following information shall be required infor the each swimming pool permit application: 1. Applicant’s name and address. 2. If person represents a corporation, partnership or other legal entity, the address of the president or registered agent of the entity. same. 3. Name of the foreman or contractor in charge of construction. 4. Name of the owner of the property. 5. Address of the location where swimming pool is to be constructed. 6. Size of swimming pool. 7. Approximate value. 8. Two (2) A plotsite plans showing the location of swimming pool oin relation to the property lines with the distance indicated from the pool to any structures and to the property boundaries. All measurements shall be from the pool structure itself and not from the water’s edge and ; also showing property setback lines, drainage plan, location of any and all drainage and/or public utility easements, and the location of required and/or existing fence. a. Fence permit, if applicable. B. Permit fees, in accordance with the current fee schedule, shall be paid prior to the issuance of a permit and the commencement of construction of a swimming pool. will be required before constructing a swimming pool. BC. Fence Requirements:Swimming Pool Regulations: 1. Permanent Fence. Before a pool is filled with water, a permanent fence shall be erected surrounding the pool, which shall conform to the International Building Code, as adopted and amended by the Town. Every outdoor swimming pool must be enclosed by a wall or fence not less than four feet (4’) in height. Said wall or fence shall be constructed in such a manner that there are no gaps or openings, other than gates or doors, larger than four inches (4”) measured in any direction. Such wall or fence shall be permanent, shall be set and anchored firmly in the earth, and all gates or doors in said wall or fence shall be equipped with self-closing and self-latching devices capable of keeping the gate or door securely closed when not in use. Such latching devices shall be attached to the upper quarter of the gate and wall or fence on the inside thereof. a. The Pool Contractor or other person constructing a pool is responsible for the construction of a permanent fence that complies with this ordinance and all other applicable regulations. The property owner is responsible for the maintenance of a permanent fence that complies with this ordinance and all other applicable regulations. b.. In lieu of the fence required by subsection B(1)(a) above, Rrigid lock-down covers may be allowed for in connection with hot tubs, whirlpool baths and tubs, Jacuzzi-type baths and tubs, and spas in lieu of a fence, provided that prior approval is given through the fence permit application process for a fence permit and further provided that the cover is kept locked at all times that the hot tubs, whirlpool baths and tubs, Jacuzzi type baths and tubs, and/or spas is not in use. cb. It shall be unlawful to maintain any swimming pool in the corporate limits of Trophy Club, which is not fenced in accordance with the requirements of this section and all other applicable ordinances.n. 2. Temporary Fence: a. Prior to commencement of and Dduring the construction of a swimming pool, a temporary fence shall be providederected and maintained around the swimming pool construction site during the construction phase, which shall limit access to the construction site at all times except when construction is actually in progress. A permanent wall or fence shall be in place before final inspection. The top of the temporary fence shall be at least four feet (4’) in height. The wall of a dwelling may serve as part of the fence. a. All inspections will be canceled if a temporary fence is not installed on the job site and a reinspection fee will be assessed in an amount set by the Town’s Schedule of Fees. Continued failure to enclose the site with a temporary fence willmay result in a citation being issued to pool contractor. D. Form Survey Required. At the time of first inspection, a form survey shall be submitted and approved by the Building Inspector prior to calling for the first inspection. E. Certificate of Completion.: Prior to the issuance of To receive a certificate of completion, the swimming pool shall pass each of the following inspections: must be done: 1. Belly steel and ground steel, 2. Deck steel and ground, and 3. Gas line inspection (if applicable) and P-Trap/Backwash inspection. a. Before the backwash, p-trap & gas line are covered in any way, those items shall be inspected and approved. All pools shall have a p-trap and backwash line connected to the sanitary sewer. 4. Drainage sSurvey. The pool final inspection will not be approved if the Inspector determines that the grading and drainage of the lot is not in compliance with the approved drainage plans for the subdivision. If the inspector cannot determine the lot water flow, an engineered survey shall be required. 3.5. Final inspection, including the fencing. a. At the final inspection, all local requirements, state requirements and Uniform Pool CodesTown-approved building mustcodes must be met. EF. Lighting.. All lighting of a swimming pool shall be shielded or directed to face away from adjoining residences. If lights are not individually shielded they shall be so placed, or the enclosing wall or fence shall be so designed, that direct rays from the lights shall not be visible from adjacent or contiguous properties. F. Public Address System. No public address system shall be used for any purpose without a permit from the Town. The Town's Planning and Zoning Administrator shall establish a form for such application and require therein information relevant to the issuance of such a permit. G. Licensed Contractor:. All electrical and plumbing work shall be performed by licensed contractors in accordance with the requirements of the Town-approved Building Code, as amended and all other applicable ordinances or regulations. H. Location.: Adoption of Uniform Pool Code. All swimming pools, to include but not limited to kiddie and wading pools, shall be located within the rear yard and shall not encroach upon any identified easement. shall not be constructed within a public easement, utility easement or other easement except to the extent that the easement allows such construction. There is hereby adopted the Uniform Pool Code, the regulations of which shall be applicable to all swimming pools within the Town. I. I. Draining of Swimming Pools. All new swimming pool installations must be properly connected to the storm sewer system or to a return filter system. No unauthorized discharge including swimming pool backwash water shall be permitted into the sanitary sewer, river or creek. The water drainage from swimming pools shall not adversely affect the natural environment, such as trees, shrubs, and other vegetation.Any On any new swimming pool permitted on or after June 24, 2005, Aall backwash or drainage from a swimming pool shall discharge into the sanitary sewer system. An indirect connection shall be made by means of an air break discharging into a tail piece (does this “tall piece” have a technical meaning?) installed a minimum of 6” or 152 mm above adjacent grade. The tailpiece shall be connected to a minimum 3” or 76 mm p-trap not less than 12” (304 mm) below grade which discharges into the yard cleanout riser. 1. Owners of existing pools (pools built or permitted prior to July 1, 2005) are not required by this Ordinance to retrofit the pool equipment and tie into the sanitary sewer. J. Screening. All swimming pool equipment shall be screened from the public view, of the public and from including the view of adjacent private properties. K. Clarity of Water. a. The water in all swimming pools within the Town, public or private shall be of sufficient clarity such that the bottom of the swimming pool is visible to the naked eye. In order to help achieve this objective, each swimming pool shall have a minimum fee residual chlorine of one (1) part per million. b. In addition, no swimming pool water shall have an acid reaction to a standard pH test. c. All pools shall be treated, altered or maintained so as to prevent the development of unsanitary conditions. d. Pools under construction or which are no longer being operated shall be maintained in a manner so as to prevent the development of unsanitary conditions potential injury or possible drowning. e. Wastewater from a swimming pool shall be discharged into a sanitary sewer. There shall be no direct physical connection between the sewer system and any drain from the swimming pool or circulations system. f. Alternative equivalent methods of wastewater disposal may be approved by the Director of Community Development. No method of wastewater disposal is permissible which could create a public health hazard or public nuisance. LK. Above ground Pools. Aboveground swimming pools are prohibited. Hot tubs, whirlpool baths and tubs, and Jacuzzi-type tubs or baths with a capacity of not more than 1,500 gallons shall be allowed above ground. L. Equipment. No pool equipment mayshall be placed within required or established front yard or within any identified easement. Equipment necessary for or related to the operation of in relation to the pool shall not be affixed to any required perimeter fence or common fences between property owners. SECTION 65. APPEAL Any person aggrieved by the terms of this Ordinance or the interpretation, application, or enforcement of this Ordinance by the Building Official shall have the right to appeal any action of the Building Official taken pursuant to this Ordinance. Any such appeal shall be brought, by written application, filed by an interested party, to the Director of Community Development within ten (10) days following the action of the Building Official, which is the subject of the appeal. Enforcement of this Ordinance shall be stayed pending such appeal, except that such appeal does not stay the owner or applicant’s requirement to comply with temporary fencing regulations specified herein or as specified by other applicable laws, during the appeal period. In hearing such appeals, the Building Appeals Board shall review the determination of the Building Official and, in so doing, may consider whether or not the regulations and standards of this Ordinance will, by reason of exceptional circumstance or surroundings, constitute a practical difficulty or unnecessary hardship. The decision of the Building Appeals Board shall be final. Any person aggrieved by the terms of this ordinance shall have the right to petition the Town Council and seek an exception from the same. An exception may be authorized as will not be contrary to the public interest, where owing to special conditions, the literal enforcement of the provisions of this ordinance will result in unnecessary hardship, so that the spirit of this ordinance shall be observed and substantial justice done. SECTION 67. CUMULATIVE REPEALER This Ordinance shall be cumulative of all other Ordinances and shall not repeal any of the provisions of such Ordinances except for those instances where there are direct conflicts with the provisions of this Ordinance; provided, however, that Ordinance No. 1995-12, 2004-02 P&Z is is hereby repealed in their entirety respectively. Ordinances or parts thereof in force at the time this Ordinance shall take effect and that are inconsistent with this Ordinance are hereby repealed to the extent that they are inconsistent with this Ordinance. Provided however, that any complaint, action, claim or lawsuit which has been initiated or has arisen under or pursuant to Ordinance No. 1995-1202 P&Z on the date of adoption of this Ordinance shall continue to be governed by the provisions of such Ordinance and for that purpose the Ordinance shall remain in full force and effect. 92-06 relating to swimming pools and fences is hereby repealed in its entirety, but provided however that any complaint, action, cause or action or claim which has been initiated or has arisen under or pursuant the said repealed ordinance shall continue to be governed by the provisions of that ordinance, and for that purpose the repealed ordinance shall be deemed to remain in full force and effect. SECTION 87. SAVINGS All rights and remedies of the Town of Trophy Club, Texas, are expressly saved as to any and all violations of the provisions of any other Ordinance affecting sign swimming pool regulations which have secured at the time of the effective date of this Ordinance; and, as to such accrued violations and all pending litigation, both civil and criminal, whether pending in court or not, under such Ordinances same shall not be affected by this Ordinance but may be prosecuted until final disposition by the courts. SECTION 9. SEVERABILITY If any section, article, paragraph, sentence, clause, phrase or word in this Ordinance or application thereof to any person or circumstance is held invalid or unconstitutional by a Court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Ordinance, and the Town Council hereby declares it would have passed such remaining portions of this Ordinance despite such invalidity, which remaining portions shall remain in full force and effect. If any section, article, paragraph, sentence, clause, phrase or word of this ordinance, or application thereto, any person or circumstance is held invalid or unconstitutional by a Court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; and the Town Council hereby declares it would have passed such remaining portions of the ordinance despite such invalidity, which remaining portions shall remain in full force and effect. Section 8. SECTION 10 PENALTY It shall be unlawful for any person to violate any provision of this Ordinance, and any person violating or failing to comply with any provision hereof shall be fined, upon conviction, in an amount not more than Two Thousand Dollars ($2,000.00), and a separate offense shall be deemed committed each day during or on which a violation occurs or continues. It shall be unlawful for any person to violate any provision of this Ordinance, and any person violating or failing to comply with any provision of this Ordinance shall be fined upon conviction, not less than One Dollar ($1.00) nor more than Five Hundred $500.00), and a separate offense shall be deemed committed upon each day during or on which a violation occurs or continues. SECTION 911. PUBLICATION The Town Secretary of the Town of Trophy Club is hereby directed to publish, the Caption, Penalty and Effective Date of this Ordinance as required by Section 52.011 of the Texas Local Government Code. SECTION 12. ENGROSSMENT AND ENROLLMENT The Town Secretary of the Town of Trophy Club is hereby directed to engross and enroll this Ordinance by copying the exact Caption, Penalty and Effective Date in the minutes of the Town Council and by filing this Ordinance in the ordinance records of the Town. SECTION 13. EFFECTIVE DATE This Ordinance shall become effective from and after its date of adoption and publication as provided by law, and it is so ordained. This Ordinance shall take effect from and after its date of passage and publication as provided by law. PASSED AND APPROVED by the Town of Trophy Club, Texas this the 20th day of June, 2005. _______________________________________ Mayor Town of Trophy Club, Texas ATTEST: _____________________________________ Town Secretary Town of Trophy Club, Texas [SEAL] APPROVED AS TO FORM: _____________________________________ Town Attorney Town of Trophy Club, Texas TOWN OF TROPHY CLUB, TEXAS ORDINANCE NO. 2005-__ AN ORDINANCE OF THE TOWN OF TROPHY CLUB, TEXAS REPEALING ORDINANCE NO. 95-12, AN ORDINANCE ESTABLISHING REGULATIONS GOVERNING THE CONSTRUCTION OF SWIMMING POOLS; AND ADOPTING A NEW ORDIANCNE ESTABLISHING REGULATIONS GOVERNING THE CONSTRUCTION OF SWIMMING POOLS; PROVIDING FOR THE INCORPORATION OF PREMISES; SETTING FORTH DEFINITIONS; PROVIDING FOR APPLICABILITY AND PROHIBITIVE CONDUCT; PROVIDING FOR EXCEPTIONS; ADOPTING NEW PROVISIONS FOR THE CONSTRUCTION OF SWIMMING POOLS; PROVIDING FOR APPEAL; PROVIDING A CUMULATIVE REPEALER CLAUSE; PROVIDING A SAVINGS CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A PENALTY NOT TO EXCEED THE SUM OF TWO THOUSAND DOLLARS ($2,000.00) FOR EACH OFFENSE AND A SEPARATE OFFENSE SHALL BE DEEMED COMMITTED EACH DAY DURING OR ON WHICH A VIOLATION OCCURS OR CONTINUES; PROVIDING FOR PUBLICATION; PROVIDING FOR ENGROSSMENT AND ENROLLMENT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Town of Trophy Club (hereinafter referred to as “Town”) is a Home Rule municipality acting under its charter adopted by the electorate pursuant to Article XI, Section 5 of the Texas Constitution; and WHEREAS, on July 18, 1995, the Town Council adopted Ordinance No. 95-12, establishing “Swimming Pool Regulations” for the Town of Trophy Club, Texas; and WHEREAS, Town staff has recommended an update to Ordinance No. 95-12 in order to be consistent with current law and standards regulating swimming pools and in order to protect the health, safety, and welfare of the citizens of the Town; and WHEREAS, the Town Council of the Town of Trophy Club, Texas recognizes the need for proper construction and maintenance of swimming pools and the need to protect citizens and other members of the public from the dangers inherent in the use of swimming pools within the Town; and WHEREAS, the Town Council hereby finds that the regulations established herein are in the best interest of the health, safety and general welfare of the citizens of the Town. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF TROPHY CLUB, TEXAS. SECTION 1. INCORPORATION OF PREMISES All of the above premises are found to be true and correct and are incorporated into the body of this Ordinance as if copied in their entirety. SECTION 2. DEFINITIONS A. Unless otherwise provided for herein, the following terms shall have the respective meanings ascribed to them. Aboveground Swimming Pool: A structure in which the entire construction is above ground, or if partly above and partly below ground, the top of the receptacle basin is at least twenty-four inches (24”) above ground. In-Ground Swimming Pool: A structure intended for swimming or recreational bathing that contains water over twenty-four inches (24”) deep and has a capacity of over seven hundred (700) gallons that is dug into the ground. Kiddie Pool or Wading Pool: Any deflatable, portable or temporary special purpose pool or receptacle set aside primarily for use by children with a depth no greater than twenty-four inches (24”). Permitting Department: The Permitting Division of the Community Development Department of the Town of Trophy Club, Texas. Spa: A hydro-massage pool or tub, including but not limited to hot tubs, whirlpool baths and tubs and Jacuzzi-type tubs or baths, for recreational or therapeutic use, not located in a health- care facility, designed for immersion of users and usually having a filter, heater, and motor- driven blower. The spa is intended for recreational bathing and contains water over twenty-four inches (24”) deep. Swimming Pool: Any structure intended for swimming or recreational bathing that contains water over twenty-four inches (24”) deep and has a capacity of over seven-hundred (700) gallons. This includes in-ground, aboveground and on-ground swimming pools. As used in this Ordinance the term is limited to pools which are fitted with a filter for clarifying pool water, or which are designed to be fitted with a filter, whether installed or not. The term shall not include facilities located inside a residence, storable pools designed for seasonal setup and use which are stored at the end of the swimming season, or spas installed on decks or porches if a fitted hard cover designed to prevent entry is maintained in place at all times when the spa is not in use. SECTION 3. APPLICABILITY AND PROHIBITIVE CONDUCT A. This ordinance shall be applicable to all new swimming pools and spas hereafter constructed, erected, or maintained, and shall apply to all existing pools and spas which have a depth greater than twenty four inches (24”) of water at any point. It shall be unlawful for any person to violate any provision of this Ordinance. B. No person shall construct, erect, or maintain an aboveground pool. C. No person in possession of land within the Town, whether as owner, purchaser, lessee, or licensee, upon which is situated a swimming pool having a depth greater than twenty-four inches (24”) or more of water at any point, shall fail to provide and maintain such fence or wall as herein provided. D. Any and all unfenced swimming pools existing at the time this ordinance is passed shall have ninety (90) days to comply with the terms and requirements herein stated, from the effective date of this ordinance. E. Except as specifically provided herein, it shall be unlawful of any person, corporation, partnership or other legal entity to construct, have constructed, or maintain any type of swimming pool without having first procured a permit for the construction of same from the Permitting Department. SECTION 5. EXCEPTIONS D. Kiddie Pools or Wading Pools, are exempt from the provisions of this Ordinance except as specifically provided herein. E. Hot tubs, whirlpool baths and tubs, and Jacuzzi-type tubs or baths with a capacity of not more than fifteen hundred (1,500) gallons shall be allowed above ground. F. In lieu of the fence requirement in Section 6, subsection B(1)(a) , rigid lock-down covers may be allowed for hot tubs, whirlpool baths and tubs, Jacuzzi-type baths and tubs, and spas , provided that prior approval is given through the fence permit application process and further provided that the cover is kept locked at all times that the hot tub, whirlpool bath and tub, Jacuzzi-type bath and tub, and/or spa is not in use. SECTION 5 SWIMMING POOLS A. Swimming Pool Permit Application: The following information shall be required for each swimming pool permit application: 9. Applicant’s name and address. 10. If person represents a corporation, partnership or other legal entity, the address of the president or registered agent of the entity. 11. Name of the foreman or contractor in charge of construction. 12. Name of the owner of the property. 13. Address of the location where swimming pool is to be constructed. 14. Size of swimming pool. 15. Approximate value. 16. Two (2) site plans showing the location of swimming pool in relation to the property lines with the distance indicated from the pool to any structures and to the property boundaries. All measurements shall be from the pool structure itself and not from the water’s edge and also show property setback lines, drainage plan, location of any and all drainage and/or public utility easements, and the location of required and/or existing fence. a. Fence permit, if applicable. B. Permit fees, in accordance with the current fee schedule, shall be paid prior to the issuance of a permit and the commencement of construction of a swimming pool. C. Fence Requirements: 1. Permanent Fence. Before a pool is filled with water, a permanent fence shall be erected surrounding the pool, which shall conform to the International Building Code, as adopted and amended by the Town. a. The Pool Contractor or other person constructing a pool is responsible for the construction of a permanent fence that complies with this ordinance and all other applicable regulations. The property owner is responsible for the maintenance of a permanent fence that complies with this ordinance and all other applicable regulations. b. It shall be unlawful to maintain any swimming pool in the corporate limits of Trophy Club, which is not fenced in accordance with the requirements of this section and all other applicable ordinances. 2. Temporary Fence: Prior to commencement of and during the construction of a swimming pool, a temporary fence shall be erected and maintained around the swimming pool construction site, which shall limit access to the construction site at all times except when construction is actually in progress. The top of the temporary fence shall be at least four feet (4’) in height. The wall of a dwelling may serve as part of the fence. b. All inspections will be canceled if a temporary fence is not installed on the job site and a reinspection fee will be assessed in an amount set by the Town’s Schedule of Fees. Continued failure to enclose the site with a temporary fence may result in a citation being issued to pool contractor. D. Form Survey Required: A form survey shall be submitted and approved by the Building Inspector prior to calling for the first inspection. E. Certificate of Completion: Prior to the issuance of a certificate of completion, the swimming pool shall pass each of the following inspections: 6. Belly steel and ground steel, 7. Deck steel and ground, 8. Gas line inspection (if applicable) and P-Trap/Backwash inspection. a. Before the backwash, p-trap & gas line are covered in any way, those items shall be inspected and approved. All pools shall have a p-trap and backwash line connected to the sanitary sewer. 9. Drainage Survey: The pool final inspection will not be approved if the Inspector determines that the grading and drainage of the lot is not in compliance with the approved drainage plans for the subdivision. If the inspector cannot determine the lot water flow, an engineered survey shall be required. 10. Final inspection, including the fencing. a. At the final inspection, all local requirements, state requirements and Town-approved building codes must be met. F. Lighting: All lighting of a swimming pool shall be shielded or directed to face away from adjoining residences. If lights are not individually shielded they shall be so placed, or the enclosing wall or fence shall be so designed, that direct rays from the lights shall not be visible from adjacent or contiguous properties. G. Licensed Contractor: All electrical and plumbing work shall be performed by licensed contractors in accordance with the requirements of the Town-approved Building Code, as amended and all other applicable ordinances or regulations. H. Location: All swimming pools, to include but not limited to kiddie and wading pools, shall be located within the rear yard and shall not encroach upon any identified easement. II. Draining of Swimming Pools: On any new swimming pool permitted on or after June 24, 2005, all backwash or drainage from a swimming pool shall discharge into the sanitary sewer system. An indirect connection shall be made by means of an air break discharging into a tail piece installed a minimum of 6” or 152 mm above adjacent grade. The tailpiece shall be connected to a minimum 3” or 76 mm p-trap not less than 12” (304 mm) below grade which discharges into the yard cleanout riser. 1. Owners of existing pools (pools built or permitted prior to July 1, 2005) are not required by this Ordinance to retrofit the pool equipment and tie into the sanitary sewer. J. Screening: All swimming pool equipment shall be screened from the view of the public and from the view of adjacent private properties. K. Clarity of Water: a. The water in all swimming pools within the Town, public or private shall be of sufficient clarity such that the bottom of the swimming pool is visible to the naked eye. In order to help achieve this objective, each swimming pool shall have a minimum fee residual chlorine of one (1) part per million. b. In addition, no swimming pool water shall have an acid reaction to a standard pH test. c. All pools shall be treated, altered or maintained so as to prevent the development of unsanitary conditions. d. Pools under construction or which are no longer being operated shall be maintained in a manner so as to prevent the development of unsanitary conditions potential injury or possible drowning. f. Wastewater from a swimming pool shall be discharged into a sanitary sewer. There shall be no direct physical connection between the sewer system and any drain from the swimming pool or circulations system. f. Alternative equivalent methods of wastewater disposal may be approved by the Director of Community Development. No method of wastewater disposal is permissible which could create a public health hazard or public nuisance. L. Equipment. No pool equipment shall be placed within required or established front yard or within any identified easement. Equipment necessary for or related to the operation of the pool shall not be affixed to any required perimeter fence or common fences between property owners. SECTION 6. APPEAL Any person aggrieved by the terms of this Ordinance or the interpretation, application, or enforcement of this Ordinance by the Building Official shall have the right to appeal any action of the Building Official taken pursuant to this Ordinance. Any such appeal shall be brought, by written application, filed by an interested party, to the Director of Community Development within ten (10) days following the action of the Building Official, which is the subject of the appeal. Enforcement of this Ordinance shall be stayed pending such appeal, except that such appeal does not stay the owner or applicant’s requirement to comply with temporary fencing regulations specified herein or as specified by other applicable laws, during the appeal period. In hearing such appeals, the Building Appeals Board shall review the determination of the Building Official and, in so doing, may consider whether or not the regulations and standards of this Ordinance will, by reason of exceptional circumstance or surroundings, constitute a practical difficulty or unnecessary hardship. The decision of the Building Appeals Board shall be final. SECTION 7. CUMULATIVE REPEALER This Ordinance shall be cumulative of all other Ordinances and shall not repeal any of the provisions of such Ordinances except for those instances where there are direct conflicts with the provisions of this Ordinance; provided, however, that Ordinance No. 1995-12 is hereby repealed in their entirety respectively. Ordinances or parts thereof in force at the time this Ordinance shall take effect and that are inconsistent with this Ordinance are hereby repealed to the extent that they are inconsistent with this Ordinance. Provided however, that any complaint, action, claim or lawsuit which has been initiated or has arisen under or pursuant to Ordinance No. 1995-12, on the date of adoption of this Ordinance shall continue to be governed by the provisions of such Ordinance and for that purpose the Ordinance shall remain in full force and effect. SECTION 8. SAVINGS All rights and remedies of the Town of Trophy Club, Texas, are expressly saved as to any and all violations of the provisions of any other Ordinance affecting swimming pool regulations which have secured at the time of the effective date of this Ordinance; and, as to such accrued violations and all pending litigation, both civil and criminal, whether pending in court or not, under such Ordinances same shall not be affected by this Ordinance but may be prosecuted until final disposition by the courts. SECTION 9. SEVERABILITY If any section, article, paragraph, sentence, clause, phrase or word in this Ordinance or application thereof to any person or circumstance is held invalid or unconstitutional by a Court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Ordinance, and the Town Council hereby declares it would have passed such remaining portions of this Ordinance despite such invalidity, which remaining portions shall remain in full force and effect. SECTION 10. PENALTY It shall be unlawful for any person to violate any provision of this Ordinance, and any person violating or failing to comply with any provision hereof shall be fined, upon conviction, in an amount not more than Two Thousand Dollars ($2,000.00), and a separate offense shall be deemed committed each day during or on which a violation occurs or continues. SECTION 11. PUBLICATION The Town Secretary of the Town of Trophy Club is hereby directed to publish, the Caption, Penalty and Effective Date of this Ordinance as required by Section 52.011 of the Texas Local Government Code. SECTION 12. ENGROSSMENT AND ENROLLMENT The Town Secretary of the Town of Trophy Club is hereby directed to engross and enroll this Ordinance by copying the exact Caption, Penalty and Effective Date in the minutes of the Town Council and by filing this Ordinance in the ordinance records of the Town. SECTION 13. EFFECTIVE DATE This Ordinance shall become effective from and after its date of adoption and publication as provided by law, and it is so ordained. PASSED AND APPROVED by the Town of Trophy Club, Texas this the 20th day of June 2005. _______________________________________ Mayor Town of Trophy Club, Texas ATTEST: _____________________________________ Town Secretary Town of Trophy Club, Texas [SEAL] APPROVED AS TO FORM: _____________________________________ Town Attorney Town of Trophy Club, Texas COUNCIL MEMORANDUM From: The Office of the Town Manager Date: 6-20-2005 Subject: Agenda Item No.D.2 Discuss and take appropriate action regarding termination of the 2005 Annual Miscellaneous Concrete Repair contract with Driveway Maintenance. EXPLANATION: As per previous discussions, this requires Council action. RECOMMENDATION: Staff recommends terminating the 2005 Annual Miscellaneous Concrete Repair contract with Driveway Maintenance. ACTION BY COUNCIL: (bag) Attachments: 1. Driveway Maintenance Termination Letter June ____, 2005 Mr. David Pardy Driveway Maintenance, Inc. 3020 Sargent Road Dallas, Texas 75203 Dear Mr. Pardy: This letter serves as notice of termination of the contract between Driveway Maintenance, Incorporated (hereinafter “DMI”) and the Town of Trophy Club (hereinafter “Town”) for Annual Miscellaneous Concrete Repairs 2005 (hereinafter “Contract”). The “Termination For Default” clause of the Contract provides as follows: The Town of Trophy Club reserves the right to enforce the performance of this Contract in any manner prescribed by law or deemed to be in the best interest of the Town in the event of breach or default of this contract. The Town reserves the right to terminate the contract immediately in the event the successful bidder fails to 1) meet delivery schedules or 2) otherwise perform in accordance with these specifications. Breach of contract or default authorizes the Town to award to another bidder, purchase elsewhere and charge the full increase in cost and handling to the defaulting successful bidder. As discussed at the May 24, 2005 meeting, DMI has failed to perform in accordance with the Contract specifications as more specifically outlined hereinbelow: 1. SC.11 Construction Schedule. DMI failed to submit and adhere to a construction schedule in violation of SC.11. On May 20, 2005, you were specifically instructed by Jimmy Vandever to submit a schedule prior to starting any further work on the project. In spite of this instruction, you continued to operate under a sporadic schedule under which you provided the Town with no notice of move in or move out of the Town. Mr. Vandever continued to try to make contact with you via telephone by leaving numerous voice mail messages; however, his phone calls were not returned. 2. SC.20. Cleanup. SC.20 requires that upon completion of particular phases of the concrete pavement improvements and prior to use by the traveling public, all joints shall be sawed and then within ten (10) days of sawing the joints, the joints shall be sealed and the pavement shall then be swept clean. Only with the written permission of the Town Engineer is the Contractor allowed to leave the joints unsealed. DMI opened the new pavement section on Trophy Club Drive to traffic flow without notifying the Town and prior to sealing and cleaning the pavement. Subsequently, Mr. Vandever has to provide you with specifications on the sealant and direct you to complete the sealing and cleaning work on Trophy Club Drive. 3. SC.24.2. General Construction. Prior to beginning work, you were instructed by Mr. Vandever to submit a traffic control plan for Town approval; however, no plan was submitted. Due to the urgency of the repair at Trophy Club Drive over the box culvert, you were permitted to continue to work; however, the traffic control plan was never submitted. You failed to complete the work at that location and abandoned the job site for over three weeks leaving the area in such a condition that it continued to pose a hazard to traffic. The Town’s Police Department placed barricades and warning devices at that location because of the hazard and DMI did not take any action to submit a traffic control plan or otherwise safeguard the public from the hazard that it created. Despite several phone calls and conversations with Mr. Vandever directing you to complete the work, the work was not completed until after the May 24, 2005 meeting with myself and Mr. Vandever. 4. SC.34 Cooperation of Contractors. SC 34 requires DMI to have a competent Superintendent capable of reading and thoroughly understanding the plans and specifications on the project at all times. During the concrete placements on May 17, 52005, neither you nor Joel were present to supervise DMI’s work force. Further, Town representatives were unable to communicate with DMI’s work force regarding quality issues that existed with the work due to a language barrier. DMI’s work force did not have the equipment or materials that they needed to properly complete the work (i.e., vibrator or curing compound). If a superintendent had been present as required by the Contract, this crucial information could have been effectively communicated. As a result, both the vibrator and the curing compound arrived too late; therefore, Avenue 20 was not consolidated properly or cured properly as required by the Contract. 5. SC.43 Project Video. SC.43 requires the Contractor to videotape the construction area and property adjacent to the construction prior to the start of construction. DMI has failed to submit the required videotape to the Town. Additionally, you have failed to comply with the requirements outlined in the North Central Texas Council of Governments Standard Specifications for Public Works Construction which were incorporated into the Contract Documents for this Project. Specifically, you have failed to comply with the following NCTCOG Specifications: Section 5.8.2 (e)(2) Contraction Joints; 5.8.2 (h)(2) Hand Finishing; 5.8.2(i) Curing; 5.8.2(j) Opening Pavement to Traffic; and 5.8.3 (f) Mechanical Vibratory Equipment and 5.8.3(i) Miscellaneous Finishing Equipment. As a result of your failure to perform in accordance with the terms of the Contract, the Town has incurred losses. Because of the premature opening of Trophy Club Drive, the integrity of the concrete in that section of roadway has been jeopardized. Further, please be advised that the Town wishes to preserve its claim under Performance Bond Number MB6193 with Contractors Bonding and Insurance Company as surety; therefore, this letter shall serve as Town’s notice of claim thereunder. Additionally, the Town hereby reserves its rights to remedies available to it under Maintenance Bond Number MB6193 issued by Contractors Bonding and Insurance Company. This letter shall serve as notice of the Town’s reservation of all remedies, including both bond and warranty remedies as provided in the Contract documents and as otherwise available under the law. As previously verbally instructed on May 27, 2005, you are not to perform any additional work for the Town of Trophy Club. Please provide the Town with a final request for payment no later than June 27, 2005. Prior to the release of final payment and/or retainage under the Contract, you are required to provide the Town with all appropriate documentation as specified in the NCTCOG Specifications and as reasonably requested by the Town in order to ensure that there are no unsatisfied claims outstanding. Sincerely, Beth Ann Gregory Community Development Director c: Mr. David O. Turner, Maxson, Mahoney, and Turner 8610 King George Drive Dallas, Texas 75235 Mr. R.H. Benson Contractors Bonding and Insurance Company 1213 Valley Street P.O. Box 9271 Seattle, Washington 98109-0271 COUNCIL MEMORANDUM From: The Office of the Town Manager Date: 6-20-2005 Subject: Agenda Item No.D.3 Consent agenda: Discuss and take appropriate action to approve financials dated May 2005. EXPLANATION: RECOMMENDATION: ACTION BY COUNCIL: (lr) Attachments: 1.None COUNCIL MEMORANDUM From: The Office of the Town Manager Date: 6-20-2005 Subject: Agenda Item No.D.4 Consent agenda: Discuss and take appropriate action to approve Minutes dated June 6, 2005. EXPLANATION: RECOMMENDATION: ACTION BY COUNCIL: (lr) Attachments: 1. Minutes MINUTES OF REGULAR TOWN COUNCIL MEETING FOR THE TOWN OF TROPHY CLUB LOCATION: 100 MUNICIPAL DRIVE, TROPHY CLUB, TEXAS Monday, June 6, 2005 7:00 P.M. STATE OF TEXAS § COUNTY OF DENTON § The Town Council of the Town of Trophy Club, Texas, met in Regular Session on Monday, June 6, 2005. The meeting was held within the boundaries of the Town and was open to the public. TOWN COUNCIL MEMBERS PRESENT: Nick Sanders Mayor Pam Cates Mayor Pro Tem Susan Edstrom Council Member Roger Williams Council Member Beverly Foley Council Member Scott Spence Council Member STAFF AND GUEST(S) PRESENT: Donna Welsh Town Manager Lisa Ramsey Interim Town Secretary Roger Unger Finance Director Beth Ann Gregory Community Development Manager Patricia Adams Town Attorney Mike Pastor IS Manager Adam Adams Parks and Recreation Director Randy Briggs Police and Fire Services Director Kerin Fleck Planning and Zoning Coordinator Tim Welsh Welsh Engineer representative for Beck Properties A.1 Call to order and announce a quorum. Mayor Nick Sanders called the Regular Session to order at 7:00 p.m. noting a quorum was present. A.2 Invocation. Mayor sanders offered the invocation. A.3 Pledge of allegiance to the American Flag. Pledge of allegiance to the Texas Flag. "Honor the Texas flag, I pledge allegiance to thee, Texas one and indivisible." Mayor Pro Tem Cates led the pledges. A.4 Oath of Office to be administered by Municipal Court Judge, Mark Chambers and Presentation of Certificate of Election to Council Member, Scott Spence. Town Council incumbent, Scott Spence was sworn into office and presented with a Certificate of Election by Municipal Court, Judge Mark Chambers. B.1 Citizen presentations: this is an opportunity for citizens to address the Council on any matter whether or not it is posted on the agenda. The Council is not permitted to take action on or discuss any presentations made to the Council at this time concerning an item not listed on the agenda. The Council will hear presentations on specific agenda items prior to the Council addressing those items. No citizen presentations. B.2 Town Manager Report and Discussion Regarding Project Updates as Listed Below: There will be no action taken regarding any individual project posted under this item and discussion will be limited. If extensive discussion is required, the item may be placed on a future agenda. Mayor Sanders called the Council’s attention to item B.2 and introduced the Town Manager’s report. This report will replace staff reports and will allow for more discussion between Council, staff and citizens. Departmental Updates: Administration: Administrative Advisory Committee meeting topics Purchasing Guidelines Meeting with D.R. Horton The Administrative Advisory Committee will meet on Wednesday, June 15th to discuss; personnel policies, contract vs. part-time employees as classified by the DOL and the IRS, and the possibility of combining Town/MUD staff in order to create more efficiencies. Mayor Pro Tem Cates and staff member Renae Gonzales working to develop an accounting procedures manual and review the purchasing polices. Mayor Sanders, Town Manager, Donna Welsh, Finance Director, Roger Unger and Town Attorney, Patricia Adams met with DR Horton for general discussion. They plan to meet again in the week following. Community Development: Update on street construction The road construction on Indian Creek from Pebble Beach to Heritage and Shields is under way. The utility construction is being completed on the south side, which is the eastbound lane. Starting the second week in June, construction will start on the southbound lane. Building Addition: opened RFP’s on June 6th for Construction Manager at Risk, which will be discussed under D.5. Finance: Next Budget Workshop Budget Workshop scheduled for June 20th between Town Council, staff and Ways and Means. RFP is being developed for auditing service for the Town. Information Services: Implementation of Courts Software - Status Scan of Contracts/Documents for Internal Records Management Implementing court software to integrate with financial accounting package for better oversight. Design and template complete Internal Records Management, pending Legal review. Legal: Status of Comptroller's Office Audit of Court Final Judgment in Brown Lawsuit in favor of Town Comptroller’s Audit of Court estimated to be complete in 4 to 6 weeks. The Brown vs. the Town of Trophy Club lawsuit was dismissed. Parks and Recreation: Payment in lieu of parkland dedication for Eagle's Ridge subdivision P & R Director, Adam Adams and a representative form Starwood working on an agreement to present to Council in the next 30 days to give cash in lieu of parkland. Planning and Zoning: Status of Ordinance Codification Status of Preliminary and Final Plat Application from Starwood Homes for Eagles Ridge Ordinance for codification is complete and will be forward the Town Attorney for review. Preliminary and Final Plat Application from Starwood Homes for Eagles Ridge will go before Council on June 20th. Police and Fire Services: School Crossing Program Development of Crime District The Town is receiving seventy-eight cents per capita from the County, from vehicle registration that can be used for child safety programs or crossing guard programs. Chief Briggs is working on a plan to present to Council in the next couple of meetings, in respect to the School Crossing Program. Chief Briggs is also working on the Development of a Crime District, which is generated from sales tax. Currently, Trophy Club is maxed out on the sales tax at eight and one quarter percent. If in the future, the EDC Tax structure changes, implementing a Crime District program or a street maintenance tax, may be a possibility. EDC Task Force: Mission Statement and Current Issues and Meeting Topics Mayor Pro Tem Cates is working with the EDC Task Force to develop a comprehensive package on ways to develop and promote commercial retail in the Town. The initial concept is expected to come before Council in the next couple of meetings. B.3 Discussion on Items for Future Agenda. There was no discussion for future agenda items. Council convened into Public Hearing at 7:15 p.m. TOWN COUNCIL TO CONVENE INTO PUBLIC HEARING PUBLIC HEARING C.1 Public Hearing: An ordinance repealing Ordinance No. 2005-09 P&Z in its entirety and adopting a new Ordinance amending Zoning Ordinance No. 2000-06 P&Z by adopting a new Article 5, Section 35 entitled "Accessory Structures". No citizens addressed Council. Council reconvened into Regular Session at 7:16 p.m. TOWN COUNCIL TO RECONVENE INTO REGULAR SESSION *REGULAR SESSION D.1 Discuss and take appropriate action regarding an ordinance repealing Ordinance No. 2005-09 P&Z in its entirety and adopting a new Ordinance amending Zoning Ordinance No. 2000-06 P&Z by adopting a new Article 5, Section 35 entitled "Accessory Structures". Council member Edstrom made the motion to approve, Mayor Pro Tem Cates seconded. P & Z Coordinator, Kerin Fleck advised that the only changes made were to section A1, subsection A, from: Accessory structures less than 120 square feet and not exceeding 6 feet in height shall not require a building permit, to: Accessory structures less than one hundred twenty (120) square feet of floor area shall not require a building permit. And to subsection C.1, from: a minimum of forty-five feet (45’) from the front property line, to 1. Behind the front building setback. Motion to approve an ordinance repealing Ordinance No. 2005-09 P&Z in its entirety and adopting a new Ordinance amending Zoning Ordinance No. 2000-06 P&Z by adopting a new Article 5, Section 35 entitled "Accessory Structures," carried unanimously. D.2 Discuss and take appropriate action relative to Preliminary Plat for lots 1-40, block 4 of The Villas @ Waters Edge, located generally to the east of Katie Lane and Stephen's Court, to the west of Meadowbrook Lane and to the south of Harmony Park. Council member Folly made the motion to approve; Council member Edstrom seconded. The Council recognized Tim Welsh from Welsh Engineering as he presented the next phase of The Villas @ and Waters Edge. The development is approximately ten acres, thirty-seven lots, with two open spaces, one green belt, a zero lot line product and a lot size varying from 7,200 to 14,919 in size. Mayor Sanders requested that the following be indicated in the minutes: 1. Approaching HOA with potentially allowing access through the gate at the bottom of Caty Lane into Meadowbrook. 2. The previous drainage issue that affected the golf course and resident’s yards was discussed. Planning and Zoning Coordinator, Kerin Fleck confirmed with Mr. Welsh that the civil, containing the drainage information will accompany the final plans when submitted to the Engineer. 3. Suggestion that in the future, the developer look at a slightly different design that does not break up green belt and zero lot line construction. Andy Hayes 25 W. Hillside, requested that some trees be planted along the north boundary of the development to maintain the integrity of the community. Motion to approve the preliminary plat, passed 4-1, with Town Council Member Spence opposing. D.3 Discussion / Disclosure of Substantial Interest Pursuant to Conflict of Interest Provisions Contained in Chapter 171 of the Texas Local Government Code Regarding WinOcular, Records Management Software, donated by Mayor Sanders in 2003. Mayor Sanders disclosed that his company, Combined Computer Inc. sold computer software to the Town. His company Combined Computer Inc. receives approximately $1,900.00 in maintenance yearly. Mayor Sanders agreed to sign a Conflict of Interest form that will remove him from discussion or votes on any future agenda or budget item in reference to Combined Computer Inc. No action was taken. D.4 Item tabled at the 4/18/05 Council Meeting: Town Council to discuss and take appropriate action to award or reject the bids for the Svore Municipal Building addition. (Need motion to remove from table.) Council member Williams made the motion to remove from table; Council Edstrom seconded. Motion carried unanimously. Staff requested that Council reject all bids for the Svore Municipal Building as all came in too high and in access over $100,000 over budget Council member Williams made the motion to reject all bids for the Svore Municipal Building addition; Council Edstrom seconded. Motion carried unanimously. D.5 Discuss and take appropriate action regarding the award or rejection of the bids for the Svore Municipal Building addition and to provide further direction to staff regarding construction of a municipal building addition. Beth Ann Gregory, CD Director advised Council that after the cost for the new building came in higher than expected, staff began to look for a lower cost alternative to Council’s objective that would increase the space, creating efficiencies with the centralization of facilities and reducing the overhead of maintaining the core of the building. An alternative floor plan was presented to Council. Due to the viable option of the new design, staff went out for RFQ’s and RFP’s for Construction Manager at Risk. The proposals came in at five to nine percent. The Council directed staff to confirm with the number one respondent of the RFQ for Construction Manager at Risk, that the Svore building additions can done with the remaining amount budgeted. Mayor Pro Tem Cates made the motion to direct Staff to confirm with the number one respondent of the RFQ for Construction Manager at Risk, that the Svore building additions can be done with the remaining amount budgeted; Council member Spence seconded Motion carried unanimously. D.6 Discuss and take appropriate action regarding the system of appointing citizens to advisory groups, boards and commissions; ethics and conduct of advisory group, board and commission members; and revisions to Committee Handbook. Andy Hayes, 25 W. Hillside and Neil Twomey, 203 Oakmont addressed the Council. No action taken for this item. Council gave the following direction to the staff: The Board, Commission and Citizen Advisory Group Handbook will first by reviewed by Administrative Advisory Group. Once their revisions are complete the Handbook will go before Council for approval. Boards and Commission At the end of a term, members who have successfully served their Board and desire to continue to serve will be given first priority of reappointment to the Council. The Board will be responsible to interviewing for any other openings and will make their recommendation to Council for appointment. Advisory Groups The staff liaison for each Advisory Group will be responsible for the selection of members. Separation of Ways and Means and EDC 4A Ways and Means staff liaison, Roger Unger was advised that as vacancies occur more opportunity for resident to serve should be allowed. A seat of EDC 4 A does not guarantee automatic appointment to the Ways and Means Advisory Group. D.7 Consent agenda: Discuss and take appropriate action to approve a Resolution between Cedar Valley College and the Town of Trophy Club. D.8 Consent agenda: Discuss and take appropriate action to approve Minutes dated May 16th and May 23rd, 2005. Council member Edstrom made the motion to pass consent items D.7 and D.8; Council member Foley seconded. Motion carried unanimously. All matters listed as Consent Agenda are considered to be routine by the Town Council and will be enacted by one motion. There will not be a separate discussion of these items. If discussion is desired, that item will be removed from the consent agenda and will be considered separately. E.2 Adjourn. Council member Foley made the motion to adjourn; Council member Williams seconded. Motion carried unanimously. * The Town Council may convene into executive session to discuss posted items as allowed by the Texas Open Meeting Act, LGC.551.071 COUNCIL MEMORANDUM From: The Office of the Town Manager Date: 6-20-2005 Subject: Agenda Item No.D.5 Additional Information for Council EXPLANATION: RECOMMENDATION: ACTION BY COUNCIL: (Initials) Attachments: 1. Information Memorandum 2. Fire Services Monthly Report 3. Police Services Monthly Report 4. Court Monthly Report 5. NEFDA Annual Report TROPHY CLUB DEPARTMENT OF PUBLIC SAFETY MONTHLY REPORT FOR INFORMATION ONLY MAY 2005 TROPHY CLUB DEPARTMENT OF PUBLIC SAFETY MONTHLY REPORT FOR INFORMATION ONLY MAY 2005 Tr a f f i c S t o p s Tr a f f i c C i t a t i o n s (Mo v i n g) Tr a f f i c C i t a t i o n s (No n - m o v i n g) Pa r k i n g C i t a t i o n s Ve h i c l e S e a r c h e s DW I I n v e s t i g a t i o n s Ac c i d e n t s Fe l o n y A r r e s t s Mi s d e m e a n o r Ar r e s t Di s p a t c h e d C a l l s Nu m b e r o f W r i t t e n R e p o r t s Ou t o f C i t y A s s i s t a n c e C a l l s Mi l e s D r i v e n Da y s W o r k e d TOTAL 165 68 50 205 7 1 3 2 8 300 34 18 #REF! 177 Trophy Club DPS Patrol May 2005 Dispatched Calls 34.84% Number of Written Reports 3.95% Out of City Assistance Calls 2.09% Misdemeanor Arrest 0.93% Felony Arrests 0.23% DWI Investigations 0.12% V ehicle Searches 0.81% Accidents 0.35% Parking Citations 23.81% Traffic Citations (Non-moving) 5.81% Traffic Stops 19.16% Traffic Citations (Moving) 7.90% Traffic Stops Traffic Citations (Moving) Traffic Citations (Non-moving) Parking Citations Vehicle Searches DWI Investigations Accidents Felony Arrests Misdemeanor Arrest Dispatched Calls Number of Written Reports Out of City Assistance Calls Monthly Crime/Patrol Statistics - May 2005 CID Monthly Cases-May 2005 Agency Assist NLPD 5% Agg Sex Assault of Child 5% Assault - FV 5% Burglary 5% Criminal Mischief 10% Criminal Trespass 6% Disorderly Conduct 6% Disruption of Class 10% Disturbance/Domestic 6% Information Report 6% MCU Response 6% Mip - Alcohol 6% MIP-Alcohol 6% Theft 1500-20K 6% UUMV 6% VCSA PG 1 6% CID Case May 2005 Agency Assist NLPD 1 Agg Sex Assault of Child 1 Assault - FV 1 Burglary 1 Criminal Mischief 2 Criminal Trespass 1 Disorderly Conduct 1 Disruption of Class 2 Disturbance/Domestic 1 Information Report 1 MCU Response 1 Mip - Alcohol 1 MIP-Alcohol 1 Theft 1500-20K 1 UUMV 1 VCSA PG 1 1 COUNCIL MEMORANDUM From: The Office of the Town Manager Date: 6-20-2005 Subject: Agenda Item No.E.1 Pursuant to Texas Government Code, Annotated, Subchapter 551, Section 551.071 (a) & (b) "Consultation with Attorney", the Council will enter into executive session to discuss the following: (A) Consultation with Town Attorney on a matter in which the duty of the Attorney to the Governmental Body under the Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflict with the Open Meetings Act (551.071 (b)). (1) Legal Advice Relative to Purchasing Laws and Policies Applicable to Consultant and Professional Services Agreements, including the Municipal Building Addition (paa) COUNCIL MEMORANDUM From: The Office of the Town Manager Date: 6-20-2005 Subject: Agenda Item No.E.2 Staff to provide an update, as directed by Council at their 6/6/05 meeting, to determine the feasibility of the construction project within budget constraints for the Svore Municipal Building addition and for Council to discuss and take appropriate action regarding the update and the award\rejection of proposals for a Construction Manager at Risk for the building addition. EXPLANATION: RECOMMENDATION: ACTION BY COUNCIL: Attachments: 1. RFQ Scoring Sheets a. Goldsmith Construction b. Larrison Construction c. Steele Freeman 2. RFP Scoring Sheets a. Goldsmith Construction b. Larrison Construction c. Steele Freeman 3. RFQ & RFP Summary Sheet COUNCIL MEMORANDUM From: The Office of the Town Manager Date: 6-20-2005 Subject: Agenda Item No.E.3 Discuss and provide direction to Staff regarding architectural services for municipal projects, including the Municipal Additions and Alterations project. EXPLANATION: RECOMMENDATION: ACTION BY COUNCIL: (lr) Attachments: 1. Government Code 2254 2. Local Government Code 271 3. Town of Trophy Club Procurement Policies and Procedures GOVERNMENT CODE CHAPTER 2254. PROFESSIONAL AND CONSULTING SERVICES SUBCHAPTER A. PROFESSIONAL SERVICES Sec.A2254.001.AASHORT TITLE.AAThis subchapter may be cited as the Professional Services Procurement Act. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Sec.A2254.002.AADEFINITIONS.AAIn this subchapter: (1)AA"Governmental entity" means: (A)AAa state agency or department; (B)AAa district, authority, county, municipality, or other political subdivision of the state; (C)AAa local government corporation or another entity created by or acting on behalf of a political subdivision in the planning and design of a construction project; or (D)AAa publicly owned utility. (2)AA"Professional services" means services: (A)AAwithin the scope of the practice, as defined by state law, of: (i)AAaccounting; (ii)AAarchitecture; (iii)AAlandscape architecture; (iv)AAland surveying; (v)AAmedicine; (vi)AAoptometry; (vii)AAprofessional engineering; (viii)AAreal estate appraising; or (ix)AAprofessional nursing; or (B)AAprovided in connection with the professional employment or practice of a person who is licensed or registered as: (i)AAa certified public accountant; (ii)AAan architect; (iii)AAa landscape architect; (iv)AAa land surveyor; (v)AAa physician, including a surgeon; (vi)AAan optometrist; (vii)AAa professional engineer; (viii)AAa state certified or state licensed 1 real estate appraiser; or (ix)AAa registered nurse. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 244, Sec. 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1542, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1409, Sec. 8, eff. Sept. 1, 2001. Sec.A2254.003.AASELECTION OF PROVIDER; FEES.AA(a)AAA governmental entity may not select a provider of professional services or a group or association of providers or award a contract for the services on the basis of competitive bids submitted for the contract or for the services, but shall make the selection and award: (1)AAon the basis of demonstrated competence and qualifications to perform the services; and (2)AAfor a fair and reasonable price. (b)AAThe professional fees under the contract: (1)AAmust be consistent with and not higher than the recommended practices and fees published by the applicable professional associations; and (2)AAmay not exceed any maximum provided by law. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Sec.A2254.0031.AAINDEMNIFICATION.AAA state governmental entity may require a contractor selected under this subchapter to indemnify or hold harmless the state from claims and liabilities resulting from the negligent acts or omissions of the contractor or persons employed by the contractor. A state governmental entity may not require a contractor to indemnify or hold harmless the state for claims or liabilities resulting from the negligent acts or omissions of the state governmental entity or its employees. Added by Acts 1999, 76th Leg., ch. 1499, Sec. 1.37, eff. Sept. 1, 1999. Sec.A2254.004.AACONTRACT FOR PROFESSIONAL SERVICES OF ARCHITECT, ENGINEER, OR SURVEYOR.AA(a)AAIn procuring architectural, engineering, or land surveying services, a governmental entity shall: (1)AAfirst select the most highly qualified provider of those services on the basis of demonstrated competence and 2 qualifications; and (2)AAthen attempt to negotiate with that provider a contract at a fair and reasonable price. (b)AAIf a satisfactory contract cannot be negotiated with the most highly qualified provider of architectural, engineering, or land surveying services, the entity shall: (1)AAformally end negotiations with that provider; (2)AAselect the next most highly qualified provider; and (3)AAattempt to negotiate a contract with that provider at a fair and reasonable price. (c)AAThe entity shall continue the process described in Subsection (b) to select and negotiate with providers until a contract is entered into. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 119, Sec. 1, eff. Sept. 1, 1997. Sec.A2254.005.AAVOID CONTRACT.AAA contract entered into or an arrangement made in violation of this subchapter is void as against public policy. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Sec.A2254.006.AACONTRACT NOTIFICATION.AAA state agency, including an institution of higher education as defined by Section 61.003, Education Code, shall provide written notice to the Legislative Budget Board of a contract for professional services, other than a contract for physician or optometric services, if the amount of the contract, including an amendment, modification, renewal, or extension of the contract, exceeds $14,000. The notice must be on a form prescribed by the Legislative Budget Board and filed not later than the 10th day after the date the agency enters into the contract. Added by Acts 1999, 76th Leg., ch. 281, Sec. 13, eff. Sept. 1, 1999. SUBCHAPTER B. CONSULTING SERVICES Sec.A2254.021.AADEFINITIONS.AAIn this subchapter: (1)AA"Consulting service" means the service of studying or advising a state agency under a contract that does not involve the traditional relationship of employer and employee. 3 (2)AA"Major consulting services contract" means a consulting services contract for which it is reasonably foreseeable that the value of the contract will exceed $15,000, or $25,000 for an institution of higher education other than a public junior college. (3)AA"Consultant" means a person that provides or proposes to provide a consulting service. The term includes a political subdivision but does not include the federal government, a state agency, or a state governmental entity. (4)AA"Political subdivision" means: (A)AAa county; (B)AAan incorporated or unincorporated municipality; (C)AAa public junior college; (D)AAa public school district or other educational or rehabilitative district; (E)AAa metropolitan or regional transit authority; (F)AAan airport authority; (G)AAa river authority or compact; (H)AAa regional planning commission, a council of governments, or a similar regional planning agency created under Chapter 391, Local Government Code; (I)AAthe Edwards Aquifer Authority or a district governed by Title 4, Water Code; (J)AAa soil and water conservation district; (K)AAa county or municipal improvement district; (L)AAa county road or road utility district; (M)AAa county housing authority; (N)AAan emergency services or communications district; (O)AAa fire prevention district; (P)AAa public health or hospital authority or district; (Q)AAa mosquito control district; (R)AAa special waste district; (S)AAa rural rail transportation district; or 4 (T)AAany other local government or special district of this state. (5)AA"State agency" has the meaning assigned by Section 2151.002. (6)AA"State governmental entity" means a state department, commission, board, office, institution, facility, or other agency the jurisdiction of which is not limited to a geographical portion of the state. The term includes a university system and an institution of higher education, other than a public junior college, as defined by Section 61.003, Education Code. The term does not include a political subdivision. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.44(a), eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 165, Sec. 17.19(11), eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1035, Sec. 3, eff. June 19, 1997; Acts 2003, 78th Leg., ch. 1266, Sec. 1.02, eff. June 20, 2003. Sec.A2254.022.AAINTERPRETATION OF SUBCHAPTER.AA(a)AAThis subchapter shall be interpreted to ensure: (1)AAthe greatest and fairest competition in the selection by state agencies of consultants; and (2)AAthe giving of notice to all potential consultants of the need for and opportunity to provide consulting services. (b)AAThis subchapter does not: (1)AAdiscourage state agencies from using consultants if the agencies reasonably foresee that the use of consultants will produce a more efficient and less costly operation or project; (2)AAprohibit the making of a sole-source contract for consulting services if a proposal is not received from a competent, knowledgeable, and qualified consultant at a reasonable fee, after compliance with this subchapter; or (3)AArequire or prohibit the use of competitive bidding procedures to purchase consulting services. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 1035, Sec. 4, eff. June 19, 1997. Sec.A2254.023.AAAPPLICABILITY OF SUBCHAPTER.AAThis subchapter applies to consulting services that a state agency 5 acquires with money: (1)AAappropriated by the legislature; (2)AAderived from the exercise of the statutory duties of a state agency; or (3)AAreceived from the federal government, unless a federal law or regulation conflicts with the application of this subchapter. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Sec.A2254.024.AAEXEMPTIONS.AA(a)AAThis subchapter does not apply to or discourage the use of consulting services provided by: (1)AApractitioners of professional services described in Subchapter A; (2)AAprivate legal counsel; (3)AAinvestment counselors; (4)AAactuaries; (5)AAmedical or dental services providers; or (6)AAother consultants whose services are determined by the governing board of a retirement system trust fund to be necessary for the governing board to perform its constitutional fiduciary duties, except that the governing board shall comply with Section 2254.030. (b)AAIf the governor, comptroller, and General Services Commission consider it more advantageous to the state to procure a particular consulting service under the procedures of Chapters 2155-2158, instead of under this subchapter, they may make a memorandum of understanding to that effect and each adopt the memorandum by rule. Procurement of a consulting service described in a memorandum of understanding under this subsection is subject only to Chapters 2155-2158. (c)AAThe comptroller by rule may define circumstances in which a state agency may procure, without complying with this subchapter, certain consulting services that will cost less than a minimum amount established by the comptroller. The comptroller must determine that noncompliance in those circumstances is more cost-effective for the state. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 17.19(1), eff. Sept. 6 1, 1997. Sec.A2254.025.AAEMERGENCY WAIVER.AA(a)AAThe governor, after receipt of a request complying with this section, may grant a limited waiver of the provisions of this subchapter for a state agency that requires consulting services before compliance with this subchapter can be completed because of an unforeseen emergency. (b)AAA state agency ’s request for a waiver must include information required by the governor, including: (1)AAinformation about the nature of the emergency; (2)AAthe reason that the state agency did not foresee the emergency; (3)AAthe name of the consultant with whom the agency intends to contract; and (4)AAthe amount of the intended contract. (c)AAAs soon as possible after the governor grants a limited waiver, a state agency shall comply with this subchapter to the extent that the requirements of this subchapter are not superfluous or ineffective because of the waiver. The agency shall include with information filed with the secretary of state for publication in the Texas Register a detailed description of the emergency on which the request for waiver was predicated. (d)AAThe governor shall adopt rules to administer this section. (e)AAIn this section, "unforeseen emergency" means a situation that suddenly and unexpectedly causes a state agency to need the services of a consultant. The term includes the issuance of a court order, an actual or imminent natural disaster, and new state or federal legislation. An emergency is not unforeseen if a state agency was negligent in foreseeing the occurrence of the emergency. (f)AAThis section applies to all consulting services contracts and renewals, amendments, and extensions of consulting services contracts. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 1035, Sec. 5, eff. June 19, 1997. 7 Sec.A2254.026.AACONTRACT WITH CONSULTANT.AAA state agency may contract with a consultant only if: (1)AAthere is a substantial need for the consulting services; and (2)AAthe agency cannot adequately perform the services with its own personnel or obtain the consulting services through a contract with a state governmental entity. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 1035, Sec. 6, eff. June 19, 1997. Sec.A2254.027.AASELECTION OF CONSULTANT.AAIn selecting a consultant, a state agency shall: (1)AAbase its choice on demonstrated competence, knowledge, and qualifications and on the reasonableness of the proposed fee for the services; and (2)AAif other considerations are equal, give preference to a consultant whose principal place of business is in the state or who will manage the consulting contract wholly from an office in the state. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 1035, Sec. 7, eff. June 19, 1997. Sec.A2254.028.AANOTICE OF INTENT: MAJOR CONSULTING SERVICES CONTRACT.AA(a)AABefore entering into a major consulting services contract, a state agency shall: (1)AAnotify the Legislative Budget Board and the governor ’s Budget and Planning Office that the agency intends to contract with a consultant; (2)AAgive information to the Legislative Budget Board and the governor ’s Budget and Planning Office to demonstrate that the agency has complied or will comply with Sections 2254.026 and 2254.027; and (3)AAobtain a finding of fact from the governor ’s Budget and Planning Office that the consulting services are necessary. (b)AAA major consulting services contract that a state agency enters into without first obtaining the finding required by Subsection (a)(3) is void. 8 (c)AASubsection (a)(3) does not apply to a major consulting services contract to be entered into by an institution of higher education other than a public junior college if the institution includes in the invitation published under Section 2254.029 a finding by the chief executive officer of the institution that the consulting services are necessary and an explanation of that finding. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 1035, Sec. 8, eff. June 19, 1997; Acts 2003, 78th Leg., ch. 1266, Sec. 1.03, eff. June 20, 2003. Sec.A2254.029.AAPUBLICATION IN TEXAS REGISTER BEFORE ENTERING INTO MAJOR CONSULTING SERVICES CONTRACT.AA(a)AANot later than the 30th day before the date it enters into a major consulting services contract, a state agency shall file with the secretary of state for publication in the Texas Register: (1)AAan invitation for consultants to provide offers of consulting services; (2)AAthe name of the individual who should be contacted by a consultant that intends to make an offer; (3)AAthe closing date for the receipt of offers; and (4)AAthe procedure by which the state agency will award the contract. (b)AAIf the consulting services sought by a state agency relate to services previously provided by a consultant, the agency shall disclose that fact in the invitation required by Subsection (a). If the state agency intends to award the contract for the consulting services to a consultant that previously provided the services, unless a better offer is received, the agency shall disclose its intention in the invitation required by Subsection (a). Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 1035, Sec. 9, eff. June 19, 1997. Sec.A2254.030.AAPUBLICATION IN TEXAS REGISTER AFTER ENTERING INTO MAJOR CONSULTING SERVICES CONTRACT.AANot later than the 20th day after the date of entering into a major consulting services 9 contract, the contracting state agency shall file with the secretary of state for publication in the Texas Register: (1)AAa description of the activities that the consultant will conduct; (2)AAthe name and business address of the consultant; (3)AAthe total value and the beginning and ending dates of the contract; and (4)AAthe dates on which documents, films, recordings, or reports that the consultant is required to present to the agency are due. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 1035, Sec. 10, eff. June 19, 1997; Acts 1999, 76th Leg., ch. 1467, Sec. 1.30, eff. Sept. 1, 1999. Sec.A2254.0301.AACONTRACT NOTIFICATION.AAA state agency shall provide written notice to the Legislative Budget Board of a contract for consulting services if the amount of the contract, including an amendment, modification, renewal, or extension of the contract, exceeds $14,000. The notice must be on a form prescribed by the Legislative Budget Board and filed not later than the 10th day after the date the entity enters into the contract. Added by Acts 1999, 76th Leg., ch. 281, Sec. 14, eff. Sept. 1, 1999. Sec.A2254.031.AARENEWAL; AMENDMENT; EXTENSION.AA(a)AAA state agency that intends to renew a major consulting services contract shall: (1)AAfile with the secretary of state for publication in the Texas Register the information required by Section 2254.030 not later than the 20th day after the date the contract is renewed if the renewal contract is not a major consulting services contract; or (2)AAcomply with Sections 2254.028 and 2254.029 if the renewal contract is a major consulting services contract. (b)AAA state agency that intends to renew a contract that is not a major consulting services contract shall comply with Sections 2254.028 and 2254.029 if the original contract and the renewal contract have a reasonably foreseeable value totaling more than $15,000, or $25,000 for an institution of higher education other 10 than a public junior college. (c)AAA state agency that intends to amend or extend a major consulting services contract shall: (1)AAnot later than the 20th day after the date the contract is amended or extended, file the information required by Section 2254.030 with the secretary of state for publication in the Texas Register if the contract after the amendment or extension is not a major consulting services contract; or (2)AAcomply with Sections 2254.028 and 2254.029 if the contract after the amendment or extension is a major consulting services contract. (d)AAA state agency that intends to amend or extend a contract that is not a major consulting services contract shall comply with Sections 2254.028 and 2254.029 if the original contract and the amendment or extension have a reasonably foreseeable value totaling more than $15,000, or $25,000 for an institution of higher education other than a public junior college. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 1035, Sec. 11, eff. June 19, 1997; Acts 1999, 76th Leg., ch. 1467, Sec. 1.31, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1266, Sec. 1.04, eff. June 20, 2003. Sec.A2254.032.AACONFLICTS OF INTEREST.AA(a)AAAn officer or employee of a state agency shall report to the chief executive of the agency, not later than the 10th day after the date on which a private consultant submits an offer to provide consulting services to the agency, any financial interest that: (1)AAthe officer or employee has in the private consultant who submitted the offer; or (2)AAan individual who is related to the officer or employee within the second degree by consanguinity or affinity, as determined under Chapter 573, has in the private consultant who submitted the offer. (b)AAThis section applies to all consulting services contracts and renewals, amendments, and extensions of consulting services contracts. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. 11 Sec.A2254.033.AARESTRICTION ON FORMER EMPLOYEES OF A STATE AGENCY.AA(a)AAAn individual who offers to provide consulting services to a state agency and who has been employed by that agency or by another agency at any time during the two years preceding the making of the offer shall disclose in the offer: (1)AAthe nature of the previous employment with the agency or the other agency; (2)AAthe date the employment was terminated; and (3)AAthe annual rate of compensation for the employment at the time of its termination. (b)AAA state agency that accepts an offer from an individual described in Subsection (a) shall include in the information filed under Section 2254.030 a statement about the individual ’s previous employment and the nature of the employment. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Sec.A2254.034.AACONTRACT VOID.AA(a)AAA contract entered into in violation of Sections 2254.029 through 2254.031 is void. (b)AAA contract entered into with a private consultant who did not comply with Section 2254.033 is void. (c)AAIf a contract is void under this section: (1)AAthe comptroller may not draw a warrant or transmit money to satisfy an obligation under the contract; and (2)AAa state agency may not make any payment under the contract with state or federal money or money held in or outside the state treasury. (d)AAThis section applies to all consulting services contracts, including renewals, amendments, and extensions of consulting services contracts. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. 1467, Sec. 1.32, eff. June 19, 1999. Sec.A2254.035.AADIVIDING CONTRACTS.AA(a)AAA state agency may not divide a consulting services contract into more than one contract to avoid the requirements of this subchapter. (b)AAThis section applies to all consulting services contracts, including renewals, amendments, and extensions of consulting services contracts. 12 Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Sec.A2254.036.AAARCHIVES.AA(a)AAOn request, a state agency shall, after the agency ’s contract with a consultant has ended, supply the Legislative Budget Board and the governor ’s Budget and Planning Office with copies of all documents, films, recordings, or reports compiled by the consultant under the contract. (b)AACopies of all documents, films, recordings, or reports compiled by the consultant shall be filed with the Texas State Library and shall be retained by the library for at least five years. (c)AAThe Texas State Library shall list each document, film, recording, and report given to it under Subsection (b) and shall file the list at the end of each calendar quarter with the secretary of state for publication in the Texas Register. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 1035, Sec. 12, eff. June 19, 1997. Sec.A2254.037.AAREPORTS.AAAs part of the biennial budgetary hearing process conducted by the Legislative Budget Board and the governor ’s Budget and Planning Office, a state agency shall report to the Legislative Budget Board and the governor ’s Budget and Planning Office on any actions taken in response to the recommendations of any consultant with whom the state agency contracts during the previous biennium. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 1035, Sec. 13, eff. June 19, 1997. Sec.A2254.038.AAMIXED CONTRACTS.AAThis subchapter applies to a contract that involves both consulting and other services if the primary objective of the contract is the acquisition of consulting services. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Sec.A2254.039.AACOMPTROLLER ’S RULES.AA(a)AAThe comptroller shall adopt rules to implement and administer this subchapter. The comptroller ’s rules may not conflict with or cover a matter on which this subchapter authorizes the governor to adopt rules. (b)AAThe comptroller shall give proposed rules to the 13 governor and the General Services Commission for review and comment before adopting the rules. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Sec.A2254.040.AAPROCUREMENT BY GENERAL SERVICES COMMISSION.AA(a)AAThe General Services Commission may, on request of a state agency, procure for the agency consulting services that are covered by this subchapter. (b)AAThe commission may require reimbursement for the costs it incurs in procuring the services. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. 426, Sec. 16, eff. June 18, 1999. SUBCHAPTER C. CONTINGENT FEE CONTRACT FOR LEGAL SERVICES Sec.A2254.101.AADEFINITIONS.AAIn this subchapter: (1)AA"Contingent fee" means that part of a fee for legal services, under a contingent fee contract, the amount or payment of which is contingent on the outcome of the matter for which the services were obtained. (2)AA"Contingent fee contract" means a contract for legal services under which the amount or the payment of the fee for the services is contingent in whole or in part on the outcome of the matter for which the services were obtained. (3)AA"State governmental entity": (A)AAmeans the state or a board, commission, department, office, or other agency in the executive branch of state government created under the constitution or a statute of the state, including an institution of higher education as defined by Section 61.003, Education Code; (B)AAincludes the state when a state officer is bringing a parens patriae proceeding in the name of the state; and (C)AAdoes not include a state agency or state officer acting as a receiver, special deputy receiver, liquidator, or liquidating agent in connection with the administration of the assets of an insolvent entity under Article 21.28, Insurance Code, or Chapter 36, 66, 96, or 126, Finance Code. Added by Acts 1999, 76th Leg., ch. 1499, Sec. 3.03, eff. Sept. 1, 1999. 14 Sec.A2254.102.AAAPPLICABILITY.AA(a)AAThis subchapter applies only to a contingent fee contract for legal services entered into by a state governmental entity. (b)AAThe legislature by this subchapter is providing, in accordance with Section 44, Article III, Texas Constitution, for the manner in which and the situations under which a state governmental entity may compensate a public contractor under a contingent fee contract for legal services. (c)AAThis subchapter does not apply to a contract for legal services entered into by an institution of higher education under Section 153.006, Education Code. Added by Acts 1999, 76th Leg., ch. 1499, Sec. 3.03, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 1266, Sec. 1.13, eff. June 20, 2003. Sec.A2254.103.AACONTRACT APPROVAL; SIGNATURE.AA(a)AAA state governmental entity that has authority to enter into a contract for legal services in its own name may enter into a contingent fee contract for legal services only if: (1)AAthe governing body of the state governmental entity approves the contract and the approved contract is signed by the presiding officer of the governing body; or (2)AAfor an entity that is not governed by a multimember governing body, the elected or appointed officer who governs the entity approves and signs the contract. (b)AAThe attorney general may enter into a contingent fee contract for legal services in the name of the state in relation to a matter that has been referred to the attorney general under law by another state governmental entity only if the other state governmental entity approves and signs the contract in accordance with Subsection (a). (c)AAA state governmental entity, including the state, may enter into a contingent fee contract for legal services that is not described by Subsection (a) or (b) only if the governor approves and signs the contract. (d)AABefore approving the contract, the governing body, elected or appointed officer, or governor, as appropriate, must find that: 15 (1)AAthere is a substantial need for the legal services; (2)AAthe legal services cannot be adequately performed by the attorneys and supporting personnel of the state governmental entity or by the attorneys and supporting personnel of another state governmental entity; and (3)AAthe legal services cannot reasonably be obtained from attorneys in private practice under a contract providing only for the payment of hourly fees, without regard to the outcome of the matter, because of the nature of the matter for which the services will be obtained or because the state governmental entity does not have appropriated funds available to pay the estimated amounts required under a contract providing only for the payment of hourly fees. (e)AABefore entering into a contingent fee contract for legal services in which the estimated amount that may be recovered exceeds $100,000, a state governmental entity that proposes to enter into the contract in its own name or in the name of the state must also notify the Legislative Budget Board that the entity proposes to enter into the contract, send the board copies of the proposed contract, and send the board information demonstrating that the conditions required by Subsection (d)(3) exist. If the state governmental entity finds under Subsection (d)(3) that the state governmental entity does not have appropriated funds available to pay the estimated amounts required under a contract for the legal services providing only for the payment of hourly fees, the state governmental entity may not enter into the proposed contract in its own name or in the name of the state unless the Legislative Budget Board finds that the state governmental entity ’s finding with regard to available appropriated funds is correct. (f)AAA contingent fee contract for legal services that is subject to Subsection (e) and requires a finding by the Legislative Budget Board is void unless the board has made the finding required by Subsection (e). Added by Acts 1999, 76th Leg., ch. 1499, Sec. 3.03, eff. Sept. 1, 1999. Sec.A2254.104.AATIME AND EXPENSE RECORDS REQUIRED; FINAL 16 STATEMENT.AA(a)AAThe contract must require that the contracting attorney or law firm keep current and complete written time and expense records that describe in detail the time and money spent each day in performing the contract. (b)AAThe contracting attorney or law firm shall permit the governing body or governing officer of the state governmental entity, the attorney general, and the state auditor each to inspect or obtain copies of the time and expense records at any time on request. (c)AAOn conclusion of the matter for which legal services were obtained, the contracting attorney or law firm shall provide the contracting state governmental entity with a complete written statement that describes the outcome of the matter, states the amount of any recovery, shows the contracting attorney ’s or law firm ’s computation of the amount of the contingent fee, and contains the final complete time and expense records required by Subsection (a). The complete written statement required by this subsection is public information under Chapter 552 and may not be withheld from a requestor under that chapter under Section 552.103 or any other exception from required disclosure. (d)AAThis subsection does not apply to the complete written statement required by Subsection (c). All time and expense records required under this section are public information subject to required public disclosure under Chapter 552. Information in the records may be withheld from a member of the public under Section 552.103 only if, in addition to meeting the requirements of Section 552.103, the chief legal officer or employee of the state governmental entity determines that withholding the information is necessary to protect the entity ’s strategy or position in pending or reasonably anticipated litigation. Information withheld from public disclosure under this subsection shall be segregated from information that is subject to required public disclosure. Added by Acts 1999, 76th Leg., ch. 1499, Sec. 3.03, eff. Sept. 1, 1999. Sec.A2254.105.AACERTAIN GENERAL CONTRACT REQUIREMENTS.AAThe contract must: (1)AAprovide for the method by which the contingent fee 17 is computed; (2)AAstate the differences, if any, in the method by which the contingent fee is computed if the matter is settled, tried, or tried and appealed; (3)AAstate how litigation and other expenses will be paid and, if reimbursement of any expense is contingent on the outcome of the matter or reimbursable from the amount recovered in the matter, state whether the amount recovered for purposes of the contingent fee computation is considered to be the amount obtained before or after expenses are deducted; (4)AAstate that any subcontracted legal or support services performed by a person who is not a contracting attorney or a partner, shareholder, or employee of a contracting attorney or law firm is an expense subject to reimbursement only in accordance with this subchapter; and (5)AAstate that the amount of the contingent fee and reimbursement of expenses under the contract will be paid and limited in accordance with this subchapter. Added by Acts 1999, 76th Leg., ch. 1499, Sec. 3.03, eff. Sept. 1, 1999. Sec.A2254.106.AACONTRACT REQUIREMENTS: COMPUTATION OF CONTINGENT FEE; REIMBURSEMENT OF EXPENSES.AA(a)AAThe contract must establish the reasonable hourly rate for work performed by an attorney, law clerk, or paralegal who will perform legal or support services under the contract based on the reasonable and customary rate in the relevant locality for the type of work performed and on the relevant experience, demonstrated ability, and standard hourly billing rate, if any, of the person performing the work. The contract may establish the reasonable hourly rate for one or more persons by name and may establish a rate schedule for work performed by unnamed persons. The highest hourly rate for a named person or under a rate schedule may not exceed $1,000 an hour. This subsection applies to subcontracted work performed by an attorney, law clerk, or paralegal who is not a contracting attorney or a partner, shareholder, or employee of a contracting attorney or law firm as well as to work performed by a contracting attorney or by a partner, shareholder, or employee of a contracting attorney or law 18 firm. (b)AAThe contract must establish a base fee to be computed as follows. For each attorney, law clerk, or paralegal who is a contracting attorney or a partner, shareholder, or employee of a contracting attorney or law firm, multiply the number of hours the attorney, law clerk, or paralegal works in providing legal or support services under the contract times the reasonable hourly rate for the work performed by that attorney, law clerk, or paralegal. Add the resulting amounts to obtain the base fee. The computation of the base fee may not include hours or costs attributable to work performed by a person who is not a contracting attorney or a partner, shareholder, or employee of a contracting attorney or law firm. (c)AASubject to Subsection (d), the contingent fee is computed by multiplying the base fee by a multiplier. The contract must establish a reasonable multiplier based on any expected difficulties in performing the contract, the amount of expenses expected to be risked by the contractor, the expected risk of no recovery, and any expected long delay in recovery. The multiplier may not exceed four without prior approval by the legislature. (d)AAIn addition to establishing the method of computing the fee under Subsections (a), (b), and (c), the contract must limit the amount of the contingent fee to a stated percentage of the amount recovered. The contract may state different percentage limitations for different ranges of possible recoveries and different percentage limitations in the event the matter is settled, tried, or tried and appealed. The percentage limitation may not exceed 35 percent without prior approval by the legislature. The contract must state that the amount of the contingent fee will not exceed the lesser of the stated percentage of the amount recovered or the amount computed under Subsections (a), (b), and (c). (e)AAThe contract also may: (1)AAlimit the amount of expenses that may be reimbursed; and (2)AAprovide that the amount or payment of only part of the fee is contingent on the outcome of the matter for which the services were obtained, with the amount and payment of the 19 remainder of the fee payable on a regular hourly rate basis without regard to the outcome of the matter. (f)AAExcept as provided by Section 2254.107, this section does not apply to a contingent fee contract for legal services: (1)AAin which the expected amount to be recovered and the actual amount recovered do not exceed $100,000; or (2)AAunder which a series of recoveries is contemplated and the amount of each individual recovery is not expected to and does not exceed $100,000. (g)AAThis section applies to a contract described by Subsection (f) for each individual recovery under the contract that actually exceeds $100,000, and the contract must provide for computing the fee in accordance with this section for each individual recovery that actually exceeds $100,000. Added by Acts 1999, 76th Leg., ch. 1499, Sec. 3.03, eff. Sept. 1, 1999. Sec.A2254.107.AAMIXED HOURLY AND CONTINGENT FEE CONTRACTS; REIMBURSEMENT FOR SUBCONTRACTED WORK.AA(a)AAThis section applies only to a contingent fee contract: (1)AAunder which the amount or payment of only part of the fee is contingent on the outcome of the matter for which the services were obtained, with the amount and payment of the remainder of the fee payable on a regular hourly rate basis without regard to the outcome of the matter; or (2)AAunder which reimbursable expenses are incurred for subcontracted legal or support services performed by a person who is not a contracting attorney or a partner, shareholder, or employee of a contracting attorney or law firm. (b)AASections 2254.106(a) and (e) apply to the contract without regard to the expected or actual amount of recovery under the contract. (c)AAThe limitations prescribed by Section 2254.106 on the amount of the contingent fee apply to the entire amount of the fee under the contingent fee contract, including the part of the fee the amount and payment of which is not contingent on the outcome of the matter. (d)AAThe limitations prescribed by Section 2254.108 on 20 payment of the fee apply only to payment of the contingent portion of the fee. Added by Acts 1999, 76th Leg., ch. 1499, Sec. 3.03, eff. Sept. 1, 1999. Sec.A2254.108.AAFEE PAYMENT AND EXPENSE REIMBURSEMENT.AA(a)AAExcept as provided by Subsection (b), a contingent fee and a reimbursement of an expense under a contract with a state governmental entity is payable only from funds the legislature specifically appropriates to pay the fee or reimburse the expense. An appropriation to pay the fee or reimburse the expense must specifically describe the individual contract, or the class of contracts classified by subject matter, on account of which the fee is payable or expense is reimbursable. A general reference to contingent fee contracts for legal services or to contracts subject to this subchapter or a similar general description is not a sufficient description for purposes of this subsection. (b)AAIf the legislature has not specifically appropriated funds for paying the fee or reimbursing the expense, a state governmental entity may pay the fee or reimburse the expense from other available funds only if: (1)AAthe legislature is not in session; and (2)AAthe Legislative Budget Board gives its prior approval for that payment or reimbursement under Section 69, Article XVI, Texas Constitution, after examining the statement required under Section 2254.104(c) and determining that the requested payment and the contract under which payment is requested meet all the requirements of this subchapter. (c)AAA payment or reimbursement under the contract may not be made until: (1)AAfinal and unappealable arrangements have been made for depositing all recovered funds to the credit of the appropriate fund or account in the state treasury; and (2)AAthe state governmental entity and the state auditor have received from the contracting attorney or law firm the statement required under Section 2254.104(c). (d)AALitigation and other expenses payable under the 21 contract, including expenses attributable to attorney, paralegal, accountant, expert, or other professional work performed by a person who is not a contracting attorney or a partner, shareholder, or employee of a contracting attorney or law firm, may be reimbursed only if the state governmental entity and the state auditor determine that the expenses were reasonable, proper, necessary, actually incurred on behalf of the state governmental entity, and paid for by the contracting attorney or law firm. The contingent fee may not be paid until the state auditor has reviewed the relevant time and expense records and verified that the hours of work on which the fee computation is based were actually worked in performing reasonable and necessary services for the state governmental entity under the contract. Added by Acts 1999, 76th Leg., ch. 1499, Sec. 3.03, eff. Sept. 1, 1999. Sec.A2254.109.AAEFFECT ON OTHER LAW.AA(a)AAThis subchapter does not limit the right of a state governmental entity to recover fees and expenses from opposing parties under other law. (b)AACompliance with this subchapter does not relieve a contracting attorney or law firm of an obligation or responsibility under other law, including under the Texas Disciplinary Rules of Professional Conduct. (c)AAA state officer, employee, or governing body, including the attorney general, may not waive the requirements of this subchapter or prejudice the interests of the state under this subchapter. This subchapter does not waive the state ’s sovereign immunity from suit or its immunity from suit in federal court under the Eleventh Amendment to the federal constitution. Added by Acts 1999, 76th Leg., ch. 1499, Sec. 3.03, eff. Sept. 1, 1999. SUBCHAPTER D. OUTSIDE LEGAL SERVICES Sec.A2254.151.AADEFINITION.AAIn this subchapter, "state agency" means a department, commission, board, authority, office, or other agency in the executive branch of state government created by the state constitution or a state statute. Added by Acts 2003, 78th Leg., ch. 309, Sec. 7.18, eff. June 18, 2003. 22 Sec.A2254.152.AAAPPLICABILITY.AAThis subchapter does not apply to a contingent fee contract for legal services. Added by Acts 2003, 78th Leg., ch. 309, Sec. 7.18, eff. June 18, 2003. Sec.A2254.153.AACONTRACTS FOR LEGAL SERVICES AUTHORIZED.AASubject to Section 402.0212, a state agency may contract for outside legal services. Added by Acts 2003, 78th Leg., ch. 309, Sec. 7.18, eff. June 18, 2003. Sec.A2254.154.AAATTORNEY GENERAL; COMPETITIVE PROCUREMENT.AAThe attorney general may require state agencies to obtain outside legal services through a competitive procurement process, under conditions prescribed by the attorney general. Added by Acts 2003, 78th Leg., ch. 309, Sec. 7.18, eff. June 18, 2003. 23 LOCAL GOVERNMENT CODE SUBTITLE C. ACQUISITION, SALE, OR LEASE PROVISIONS APPLYING TO MORE THAN ONE TYPE OF LOCAL GOVERNMENT CHAPTER 271. PURCHASING AND CONTRACTING AUTHORITY OF MUNICIPALITIES, COUNTIES, AND CERTAIN OTHER LOCAL GOVERNMENTS SUBCHAPTER A. PUBLIC PROPERTY FINANCE ACT Sec. 271.001. SHORT TITLE. This subchapter may be cited as the Public Property Finance Act. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 271.002. PURPOSE. (a) The legislature finds that the purchase or other acquisition or the use of property by governmental agencies and the financing of those activities are necessary to the efficient and economic operation of government. (b) This subchapter promotes a public purpose by furnishing governmental agencies with a feasible means to purchase or otherwise acquire, use, and finance public property. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1993, 73rd Leg., ch. 752, Sec. 1, eff. Aug. 30, 1993. Sec. 271.003. DEFINITIONS. In this subchapter: (1) "Conservation and reclamation district" means a district or authority organized or operating under Article III, Section 52, or Article XVI, Section 59, of the Texas Constitution. (2) "Contract" means an agreement entered into under this subchapter but does not mean a contract solely for the construction of improvements to real property. (3) "Governing body" means the board, council, commission, agency, court, or other body or group that is authorized by law to acquire personal property for each respective governmental agency. (4) "Governmental agency" means a municipality, county, school district, conservation and reclamation district, hospital organization, or other political subdivision of this state. (5) "Hospital organization" means a district, authority, board, or joint board organized under the laws of this state for hospital purposes. (6) "Net effective interest rate" means, with reference to a contract, the interest amount considered by the governing body of a governmental agency to accrue on a contract. (7) "Net interest cost" means the total of all interest to accrue and come due on a contract through the last date a payment is due on the contract, plus any discount or minus any premium included in the contract price or principal sum. (8) "Personal property" includes appliances, equipment, facilities, and furnishings, or an interest in personal property, whether movable or fixed, considered by the governing body of the governmental agency to be necessary, useful, or appropriate to one or more purposes of the governmental agency. The term includes all materials and labor incident to the installation of that personal property. The term does not include real property. (9) "School district" means an independent school district, common school district, community college district, junior college district, or regional college district organized under the laws of this state. (10) "Improvement" means a permanent building, structure, fixture, or fence that is erected on or affixed to land but does not include a transportable building or structure whether or not it is affixed to land. (11) "Real property" means land, improvement, or an estate or interest in real property, other than a mortgage or deed of trust creating a lien on property or an interest securing payment or performance of an obligation in real property. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1993, 73rd Leg., ch. 752, Sec. 2, eff. Aug. 30, 1993; Acts 1999, 76th Leg., ch. 396, Sec. 1.37, eff. Sept. 1, 1999. Sec. 271.004. REAL PROPERTY AND IMPROVEMENTS FOR SCHOOL DISTRICTS. (a) The board of trustees of a school district may execute, perform, and make payments under a contract under this Act for the use or purchase or other acquisition of real property or an improvement to real property. If the board proposes to enter into such a contract, the board shall publish notice of intent to enter into the contract not less than 60 days before the date set to approve execution of the contract in a newspaper with general circulation in the district. The notice must summarize the major provisions of the proposed contract. The notice shall estimate the construction and other costs, but the board shall not publish the first advertisement for bids for construction of improvements until 60 days has expired from the publication of the notice of intent to enter into the contract. (b) If, within 60 days of the date of publication of the notice of intent required by Subsection (a), a written petition signed by at least five percent of the registered voters of the district is filed with the board of trustees requesting that the board order a referendum on the question of whether the contract should be approved, the board may not approve the contract or publish the first advertisement for bids for construction of improvements unless the question is approved by a majority of the votes received in a referendum ordered and held on the question. (c) Except as otherwise provided by this section, the referendum shall be held in accordance with the applicable provisions of the Election Code. The requirement that an election must be held on a uniform election date as prescribed by the Election Code does not apply to an election held under this section. (d) The contract is a special obligation of the school district if ad valorem taxes are not pledged to the payment of the contract. (e) If the contract provides that payments by the school district are to be made from maintenance taxes previously approved by the voters of the school district and are subject to annual appropriation or are paid from a source other than ad valorem taxes, the payments under the contract shall not be considered payment of indebtedness under Section 26.04(c), Tax Code. (f) All or part of the obligation of the school district may be evidenced by one or more negotiable promissory notes. (g) A lease-purchase contract entered into by the district under this section and the records relating to its execution must be submitted to the attorney general for examination as to their validity. (h) If the attorney general finds that the contract has been authorized in accordance with the law, the attorney general shall approve them, and the comptroller of public accounts shall register the contract. (i) Following approval and registration, the contract is incontestable and is a binding obligation according to its terms. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1993, 73rd Leg., ch. 752, Sec. 3, eff. Aug. 30, 1993. Sec. 271.005. AUTHORITY TO CONTRACT FOR PERSONAL PROPERTY. (a) The governing body of a governmental agency may execute, perform, and make payments under a contract with any person for the use or the purchase or other acquisition of any personal property, or the financing thereof. The contract is an obligation of the governmental agency. The contract may: (1) be on the terms considered appropriate by the governing body; (2) be in the form of a lease, a lease with an option or options to purchase, an installment purchase, or any other form considered appropriate by the governing body including that of an instrument which would be required to be approved by the attorney general under Chapter 1202, Government Code, provided that contracts in such form must be approved by the attorney general in accordance with the terms of that chapter; (3) be for a term approved by the governing body and contain an option or options to renew or extend the term; and (4) be made payable from a pledge of all or any part of any revenues, funds, or taxes available to the governmental agency for its public purposes. (b) The governing body of a governmental agency may contract under this section for materials and labor incident to the installation of personal property. (c) A contract may provide for the payment of interest on the unpaid amounts of the contract at a rate or rates and may contain prepayment provisions, termination penalties, and other provisions determined within the discretion of the governing body. The net effective interest rate on the contract may not exceed the net effective interest rate at which public securities may be issued in accordance with Chapter 1204, Government Code. Interest on the unpaid amounts of a contract shall be computed as simple interest. (d) Subject only to applicable constitutional restrictions, the governing body may obligate taxes or revenues for the full term of a contract for the payment of the contract. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 82, Sec. 1, eff. May 12, 1991; Acts 1993, 73rd Leg., ch. 104, Sec. 3, eff. May 7, 1993; Acts 1999, 76th Leg., ch. 396, Sec. 1.38, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1420, Sec. 8.293, eff. Sept. 1, 2001. Sec. 271.006. COMPLIANCE WITH OTHER REQUIREMENTS. (a) In entering into the contract, a municipality must comply with the requirements of Chapter 252 and a county must comply with the requirements of Subchapter C, Chapter 262. However, the municipality or county is not required to submit to a referendum the question of entering into the contract. (b) The purchasing requirements of Section 361.426, Health and Safety Code, apply to a purchase by a governmental agency under this chapter. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 303, Sec. 19, eff. Sept. 1, 1991. Sec. 271.0065. ADDITIONAL COMPETITIVE PROCEDURES. (a) In any procedure for competitive bidding under this subchapter, the governing body shall provide all bidders with the opportunity to bid on the same items on equal terms and have bids judged according to the same standards as set forth in the specifications. (b) A governmental agency shall receive bids or proposals under this subchapter in a fair and confidential manner. (c) A governmental agency may receive bids or proposals under this subchapter in hard-copy format or through electronic transmission. A governmental agency shall accept any bids or proposals submitted in hard-copy format. Added by Acts 2001, 77th Leg., ch. 1063, Sec. 4, eff. Sept. 1, 2001. Sec. 271.007. APPROVED AND REGISTERED CONTRACT. (a) If the governing body approves the contract and the contract provides for the payment of an aggregate amount of $100,000 or more, the governing body may submit the contract and the record relating to the contract to the attorney general for examination as to the validity of the contract. The attorney general shall approve the contract if it has been made in accordance with the constitution and other laws of this state, and the contract then shall be registered by the comptroller of public accounts. (b) After the contract has been approved and registered as provided by this section, the contract is valid and is incontestable for any cause. The legal obligation of the lessor, vendor, or supplier of personal property or of the person installing personal property to the governmental agency is not diminished in any respect by the approval and registration of the contract. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1999, 76th Leg., ch. 396, Sec. 1.39, eff. Sept. 1, 1999. Sec. 271.008. AUTHORIZED INVESTMENTS. The contract is a legal and authorized investment for: (1) banks, savings banks, trust companies, and savings and loan associations; (2) insurance companies; (3) fiduciaries and trustees; and (4) the sinking funds of a county, municipality, school district, or other political subdivision or corporation of this state. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 271.009. TERM OF CONTRACT. The contract may be for any term not to exceed 25 years. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. SUBCHAPTER B. COMPETITIVE BIDDING ON CERTAIN PUBLIC WORKS CONTRACTS Sec. 271.021. DEFINITIONS. In this subchapter: (1) "Component purchases" means purchases of the component parts of an item that in normal purchasing practices would be purchased in one purchase. (2) "Governmental entity" means: (A) a county; (B) a common or independent school district; (C) a hospital district or authority; (D) a housing authority; or (E) an agency or instrumentality of the governmental entities described by Paragraphs (A) through (D). (3) "Separate purchases" means purchases, made separately, of items that in normal purchasing practices would be purchased in one purchase. (4) "Sequential purchases" means purchases, made over a period, of items that in normal purchasing practices would be purchased in one purchase. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 328, Sec. 15, eff. Sept. 1, 1989; Acts 1989, 71st Leg., ch. 1250, Sec. 14, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 16, Sec. 13.04, eff. Aug. 26, 1991; Acts 1997, 75th Leg., ch. 1370, Sec. 1, eff. Sept. 1, 1997. Sec. 271.022. EXEMPT CONTRACT. This subchapter does not affect a contract required to be awarded under Subchapter A, Chapter 2254, Government Code. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(9), eff. Sept. 1, 1995. Sec. 271.023. CONFLICT OF LAWS. To the extent of any conflict, the provisions of Subchapter B, Chapter 44, Education Code, relating to the purchase of goods and services under contract by a school district prevail over this subchapter. Added by Acts 1999, 76th Leg., ch. 1383, Sec. 2, eff. June 19, 1999. Sec. 271.024. COMPETITIVE BIDDING PROCEDURE APPLICABLE TO CONTRACT. If a governmental entity is required by statute to award a contract for the construction, repair, or renovation of a structure, road, highway, or other improvement or addition to real property on the basis of competitive bids, and if the contract requires the expenditure of more than $25,000 from the funds of the entity, the bidding on the contract must be accomplished in the manner provided by this subchapter. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1993, 73rd Leg., ch. 749, Sec. 2, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 757, Sec. 14, eff. Sept. 1, 1993; Acts 2001, 77th Leg., ch. 115, Sec. 5, eff. Sept. 1, 2001. Sec. 271.0245. ADDITIONAL COMPETITIVE PROCEDURES. (a) In the procedure for competitive bidding under this subchapter, the governing body of the governmental entity shall provide all bidders with the opportunity to bid on the same items on equal terms and have bids judged according to the same standards as set forth in the specifications. (b) A governmental entity shall receive bids under this subchapter in a fair and confidential manner. (c) A governmental entity may receive bids under this subchapter in hard-copy format or through electronic transmission. A governmental entity shall accept any bids submitted in hard-copy format. Added by Acts 2001, 77th Leg., ch. 1063, Sec. 5, eff. Sept. 1, 2001. Sec. 271.025. ADVERTISEMENT FOR BIDS. (a) The governmental entity must advertise for bids. The advertisement for bids must include a notice that: (1) describes the work; (2) states the location at which the bidding documents, plans, specifications, or other data may be examined by all bidders; and (3) states the time and place for submitting bids and the time and place that bids will be opened. (b) The advertisement must be published as required by law. If no legal requirement for publication exists, the advertisement must be published at least twice in one or more newspapers of general circulation in the county or counties in which the work is to be performed. The second publication must be on or before the 10th day before the first date bids may be submitted. (c) The governmental entity must mail a notice containing the information required under Subsection (a) to any organization that: (1) requests in advance that notices for bids be sent to it; (2) agrees in writing to pay the actual cost of mailing the notice; and (3) certifies that it circulates notices for bids to the construction trade in general. (d) The governmental entity shall mail a notice required under Subsection (c) on or before the date the first newspaper advertisement under this section is published. (e) In a county with a population of 3.3 million or more, the county and any district or authority created under Article XVI, Section 59, of the Texas Constitution of which the governing body is the commissioners court may require that a minimum of 25 percent of the work be performed by the bidder and, notwithstanding any other law to the contrary, may establish financial criteria for the surety companies that provide payment and performance bonds. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 1019, Sec. 2, eff. Aug. 28, 1989; Acts 2001, 77th Leg., ch. 669, Sec. 82, eff. Sept. 1, 2001. Sec. 271.026. OPENING OF BIDS. (a) Bids may be opened only by the governing body of the governmental entity at a public meeting or by an officer or employee of the governmental entity at or in an office of the governmental entity. A bid that has been opened may not be changed for the purpose of correcting an error in the bid price. (b) This subchapter does not change the common law right of a bidder to withdraw a bid due to a material mistake in the bid. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 271.027. AWARD OF CONTRACT. (a) The governmental entity is entitled to reject any and all bids. (b) The contract must be awarded to the lowest responsible bidder, but the contract may not be awarded to a bidder who is not the lowest bidder unless before the award each lower bidder is given notice of the proposed award and is given an opportunity to appear before the governing body of the governmental entity or the designated representative of the governing body and present evidence concerning the bidder's responsibility. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 271.0275. SAFETY RECORD OF BIDDER CONSIDERED. In determining who is a responsible bidder, the governmental entity may take into account the safety record of the bidder, of the firm, corporation, partnership, or institution represented by the bidder, or of anyone acting for such a firm, corporation, partnership, or institution if: (1) the governing body of the governmental entity has adopted a written definition and criteria for accurately determining the safety record of a bidder; (2) the governing body has given notice to prospective bidders in the bid specifications that the safety record of a bidder may be considered in determining the responsibility of the bidder; and (3) the determinations are not arbitrary and capricious. Added by Acts 1989, 71st Leg., ch. 1, Sec. 58(d), eff. Aug. 28, 1989. Sec. 271.028. EFFECT OF NONCOMPLIANCE. A contract awarded in violation of this subchapter is void. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 271.029. CRIMINAL PENALTIES. (a) An officer or employee of a governmental entity commits an offense if the officer or employee intentionally or knowingly makes or authorizes separate, sequential, or component purchases to avoid the competitive bidding requirements of the statute that requires a contract described by Section 271.024 to be awarded on the basis of competitive bids. An offense under this subsection is a Class B misdemeanor. (b) An officer or employee of a governmental entity commits an offense if the officer or employee intentionally or knowingly violates the competitive bidding requirements of the statute that requires a contract described by Section 271.024 to be awarded on the basis of competitive bids, other than by conduct described by Subsection (a). An offense under this subsection is a Class B misdemeanor. (c) An officer or employee of a governmental entity commits an offense if the officer or employee intentionally or knowingly violates this subchapter, other than by conduct described by Subsection (a) or (b). An offense under this subsection is a Class C misdemeanor. Added by Acts 1989, 71st Leg., ch. 1250, Sec. 15, eff. Sept. 1, 1989. Sec. 271.030. REMOVAL; INELIGIBILITY. (a) The final conviction of an officer or employee of a governmental entity for an offense under Section 271.029(a) or (b) results in the immediate removal from office or employment of that person. (b) For four years after the date of the final conviction, the removed officer or employee is ineligible: (1) to be a candidate for or to be appointed or elected to a public office in this state; (2) to be employed by the governmental entity with which the person served when the offense occurred; and (3) to receive any compensation through a contract with that governmental entity. (c) This section does not prohibit the payment of retirement or workers' compensation benefits to the removed officer or employee. Added by Acts 1989, 71st Leg., ch. 1250, Sec. 16, eff. Sept. 1, 1989. SUBCHAPTER C. CERTIFICATE OF OBLIGATION ACT Sec. 271.041. SHORT TITLE. This subchapter may be cited as the Certificate of Obligation Act of 1971. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 271.042. PURPOSE; CONFLICT. (a) It is the purpose of this subchapter to provide: (1) a procedure for certain financing that is an alternative to the more cumbersome procedure under Chapter 252; and (2) a new class of securities to be issued and delivered within the financial capabilities of an issuer on compliance with the procedures prescribed by this subchapter. (b) If there is a conflict between a provision of this subchapter and a provision of Chapter 252, an issuer may use either provision, and it is not necessary for the governing body to designate the law under which action is being taken. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1999, 76th Leg., ch. 1064, Sec. 39, eff. Sept. 1, 1999. Sec. 271.043. DEFINITIONS. In this subchapter: (1) "Bond funds" means money received from the sale of bonds by the issuer. (2) "Certificate" means a certificate of obligation authorized to be issued under this subchapter. (3) "Component purchases" means purchases of the component parts of an item that in normal purchasing practices would be purchased in one purchase. (4) "Contractual obligation" means a contract entered into by an issuer through its governing body and executed under Section 271.054 or 271.056. (5) "Current funds" means money in the treasury of the issuer, taxes in the process of collection during the current budget year of the issuer, and all other revenues anticipated with reasonable certainty during the current budget year of the issuer. (6) "Governing body" means the board, council, commission, court, or other body or group authorized to issue bonds for or on behalf of an issuer. (7) "Issuer" means a municipality, county, or hospital district established under Chapter 281, Health and Safety Code. (8) "Separate purchases" means purchases, made separately, of items that in normal purchasing practices would be purchased in one purchase. (9) "Sequential purchases" means purchases, made over a period, of items that in normal purchasing practices would be purchased in one purchase. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 1250, Sec. 17, eff. Sept. 1, 1989; Acts 2003, 78th Leg., ch. 47, Sec. 5, eff. Sept. 1, 2003. Sec. 271.044. SUBCHAPTER AVAILABLE TO CERTAIN MUNICIPALITIES. (a) A municipality may use this subchapter only if the municipality: (1) is incorporated under the home-rule amendment to the constitution (Article XI, Section 5, of the Texas Constitution); or (2) is incorporated under a general or special law and the municipality has the authority to levy an ad valorem tax of not less than $1.50 on each $100 valuation of taxable property in the municipality. (b) A home-rule municipality may use this subchapter regardless of any provision in the municipality's charter to the contrary. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 271.045. PURPOSES FOR WHICH CERTIFICATES MAY BE AUTHORIZED. (a) The governing body of an issuer may authorize certificates to pay a contractual obligation to be incurred for the: (1) construction of any public work; (2) purchase of materials, supplies, equipment, machinery, buildings, land, and rights-of-way for authorized needs and purposes; or (3) payment of contractual obligations for professional services, including services provided by tax appraisers, engineers, architects, attorneys, map makers, auditors, financial advisors, and fiscal agents. (b) If necessary because of change orders, certificates may be authorized in an amount not to exceed 25 percent of a contractual obligation incurred for the construction of public works, but certificates may be delivered only in the amount necessary to discharge contractual obligations. (c) The governing body of a municipality may issue certificates of obligation to pay all or part of a municipality's obligations incurred by contract for interests in and rights to water or sewer treatment capacity in connection with a water supply and transmission project or sewer treatment or collection project to be constructed in whole or in part on behalf of the municipality by another governmental entity or political subdivision pursuant to a written agreement expressly authorized under Section 402.014 of this code or Section 791.026, Government Code. (d) In exercising its authority to issue certificates of obligation for the purposes specified in Subsection (c), the municipality must limit the principal amount of certificates to be issued for the purpose of funding its contractual obligations to an amount equal to (i) the aggregate of the contractual payments or the total costs allocated or attributed, under generally accepted accounting principles, to the capital costs of the project, as opposed to any maintenance or operating costs to be paid under the written agreement or (ii) the total cost of the project multiplied by the percentage of the nameplate capacity of the project acquired or conveyed by the written agreement to the municipality, whichever limitation is applicable to the contractual interests or rights being conveyed or identified in the written agreement. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1997, 75th Leg., ch. 124, Sec. 1, eff. May 19, 1997; Acts 2001, 77th Leg., ch. 402, Sec. 14, eff. Sept. 1, 2001. Sec. 271.046. ADDITIONAL PURPOSES FOR CERTIFICATES. (a) Certificates may be issued for the payment of contractual obligations to be incurred in: (1) constructing or equipping a jail; (2) constructing, renovating, or otherwise improving a county-owned building; or (3) constructing a bridge that is part of or connected to a county road or an approach to such a bridge. (b) Certificates issued under this section may be sold for cash, subject to the restrictions and other conditions of Section 271.050. (c) The provisions of this subchapter relating to advertisement for competitive bids apply to contractual obligations to be incurred for a purpose for which certificates are to be issued under this section. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 648, Sec. 1, eff. June 14, 1989. Sec. 271.0461. ADDITIONAL PURPOSE FOR CERTIFICATES: DEMOLITION OF DANGEROUS STRUCTURES OR RESTORATION OF HISTORIC STRUCTURES. Certificates may be issued by any municipality for the payment of contractual obligations to be incurred in demolishing dangerous structures or restoring historic structures and may be sold for cash, subject to the restrictions and other conditions of Section 271.050. Added by Acts 1989, 71st Leg., ch. 459, Sec. 1, eff. Aug. 28, 1989. Amended by Acts 1997, 75th Leg., ch. 1056, Sec. 1, eff. June 19, 1997. Sec. 271.047. AUTHORIZATION OF CERTIFICATES BY ORDINANCE OR ORDER; OTHER PROVISIONS IN CERTIFICATES. (a) Certificates may be authorized by an ordinance adopted by the governing body of a municipality, or by an order adopted by the governing body of a county after compliance with the quorum requirements prescribed by Section 81.006. (b) The governing body may: (1) make the certificates payable at times and places determined by the governing body; (2) issue the certificates in forms and one or more denominations, either in coupon form or registered as to principal and interest, or both; (3) make the certificates contain options for redemption before scheduled maturity; and (4) make the certificates contain any other provisions the governing body desires. (c) A certificate may not mature over a period greater than 40 years from the date of the certificate and may not bear interest at a rate greater than that allowed by Chapter 1204, Government Code. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 8.294, eff. Sept. 1, 2001. Sec. 271.048. CLAIMS AND ACCOUNTS; FUNDING AND EXCHANGE. (a) A governing body may provide that claims and accounts may, after certificates are authorized, be incurred for authorized purposes and that the claims and accounts represent an undivided interest in the certificates simultaneously authorized. The governing body may also provide for the funding or exchange of the claims and accounts for a like total principal amount of the certificates, with any amount in excess of the principal amount of the certificates delivered at one time to be paid in cash or carried forward to a subsequent exchange of claims and accounts for certificates. (b) The authorization of certificates and the indebtedness they evidence may occur before the execution of a contract under this subchapter. (c) This section does not create any exception to the competitive bidding requirements of this subchapter. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 271.049. NOTICE OF INTENTION TO ISSUE CERTIFICATES; PETITION AND ELECTION. (a) Regardless of the sources of payment of certificates, certificates may not be issued unless the issuer publishes notice of its intention to issue the certificates. The notice must be published once a week for two consecutive weeks in a newspaper, as defined by Subchapter C, Chapter 2051, Government Code, that is of general circulation in the area of the issuer, with the date of the first publication to be before the 14th day before the date tentatively set for the passage of the order or ordinance authorizing the issuance of the certificates. (b) The notice must state: (1) the time and place tentatively set for the passage of the order or ordinance authorizing the issuance of the certificates; (2) the maximum amount and purpose of the certificates to be authorized; and (3) the manner in which the certificates will be paid for, whether by taxes, revenues, or a combination of the two. (c) If before the date tentatively set for the authorization of the issuance of the certificates or if before the authorization, the municipal secretary or clerk if the issuer is a municipality, or the county clerk if the issuer is a county, receives a petition signed by at least five percent of the qualified voters of the issuer protesting the issuance of the certificates, the issuer may not authorize the issuance of the certificates unless the issuance is approved at an election ordered, held, and conducted in the manner provided for bond elections under Chapter 1251, Government Code. (d) This section does not apply to certificates issued for the purposes described by Sections 271.056(1)-(4). Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(3), eff. Sept. 1, 1995; Acts 2001, 77th Leg., ch. 1420, Sec. 8.295, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 402, Sec. 15, eff. Sept. 1, 2001. Sec. 271.050. SALE OF CERTIFICATES. (a) The governing body may sell for cash any certificates authorized to be issued for one or more purposes described by Section 271.056. (b) The proceeds may be used only for the purposes for which the certificates were authorized. The proceeds may not be used to pay for work done by employees of the issuer and paid for as work progresses. Any accrued interest received must be deposited in the interest and sinking fund established for the payment of the certificates. (c) A certified copy of the proceedings relating to the authorization of the certificates must be submitted to the attorney general and must be approved by the attorney general as having been authorized in accordance with this subchapter. The attorney general shall examine the proceedings relating to the authorization of the certificates. Subtitles A and C, Title 9, Government Code, and Chapter 618, Government Code, govern the execution, approval, registration, and validity of the certificates. After registration of the certificates by the comptroller, the certificates are incontestable for any cause. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 8.296, eff. Sept. 1, 2001. Sec. 271.051. CERTIFICATES AS INVESTMENTS OR AS SECURITY FOR DEPOSITS. (a) Certificates approved by the attorney general are legal and authorized investments for: (1) banks, savings banks, trust companies, and savings and loan associations; (2) insurance companies; (3) fiduciaries, trustees, and guardians; and (4) sinking funds of municipalities, counties, school districts, or other political corporations or subdivisions of the state. (b) Certificates approved by the attorney general are eligible to secure deposits of public funds of the state or a municipality, county, school district, or other political corporation or subdivision of the state. The certificates are sufficient security for the deposits to the extent of the face value of the certificates, if accompanied by any appurtenant unmatured interest coupons. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 271.052. CERTIFICATES PAYABLE FROM AND SECURED BY OTHER REVENUES. (a) The governing body, instead of or in addition to other methods of payment provided by this subchapter, may provide that certificates will be paid from and secured by other revenues if the issuer is authorized by the state constitution or other statutes to secure or pay any kind of general or special obligation by or from those revenues. (b) The issuer may deliver certificates secured under this section in exchange for services or property in the same manner and with the same effect as otherwise provided by this subchapter or may sell the certificates for cash. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 271.0525. REFINANCING CERTIFICATES ISSUED BY COUNTY. (a) A county may not issue certificates to refinance or refund the debt evidenced by certificates issued by the county unless the county complies with the notice requirements of Sections 271.049(a) and (b) for the issuance of certificates. (b) If, before the date tentatively set for the authorization of refinancing certificates, the county clerk receives a petition that meets the requirements of Subsection (c) protesting the issuance of the refinancing certificates, the county may not authorize the issuance of the refinancing certificates unless the issuance is approved at an election ordered, held, and conducted in the manner provided for bond elections under Chapter 1251, Government Code. (c) A petition to protest the issuance of refinancing certificates under this section must be signed by a number of qualified voters, residing in the county, equal to at least five percent of the number of votes cast in that county for governor in the most recent general election at which that office was filled. Added by Acts 1989, 71st Leg., ch. 961, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 8.297, eff. Sept. 1, 2001. Sec. 271.053. CERTIFICATES AS DEBT AND SECURITY. Certificates are debts of the issuer within the meaning of Article XI, Sections 5 and 7, of the Texas Constitution. When delivered, certificates are "security" within the meaning of Chapter 8, Business & Commerce Code, and are general obligations of the issuer within the meaning of Subchapters A and D, Chapter 1207, Government Code. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 8.298, eff. Sept. 1, 2001. Sec. 271.054. COMPETITIVE BIDDING REQUIREMENT. Before the governing body of an issuer may enter into a contract requiring an expenditure by or imposing an obligation or liability on the issuer, or on a subdivision of the issuer if the issuer is a county, of more than $25,000, the governing body must submit the proposed contract to competitive bidding. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1993, 73rd Leg., ch. 757, Sec. 15, eff. Sept. 1, 1993; Acts 2001, 77th Leg., ch. 675, Sec. 1, eff. June 13, 2001. Sec. 271.055. NOTICE TO BIDDERS. (a) An issuer must give notice of the time, date, and place at which the issuer will publicly open the bids on a contract for which competitive bidding is required by this subchapter and read the bids aloud. The notice must be given in accordance with Subsection (b) or in accordance with: (1) Chapter 252, if the issuer is a municipality; (2) the municipal charter of the issuer, if the issuer is a home-rule municipality; or (3) the County Purchasing Act (Subchapter C, Chapter 262), if the issuer is a county. (b) If an issuer gives notice under this subsection, the notice must: (1) be published once a week for two consecutive weeks in a newspaper, as defined by Subchapter C, Chapter 2051, Government Code, that is of general circulation in the area of the issuer, with the date of the first publication to be before the 14th day before the date set for the public opening of the bids and the reading of the bids aloud; and (2) state that plans and specifications for the work to be done or specifications for the machinery, supplies, equipment, or materials to be purchased are on file with a designated official of the issuer and may be examined without charge. (c) If the contract is to be let on a unit price basis, in addition to the other information required to be in the notice, the notice must specify, based on the best available information, the approximate quantities of the items needed by the issuer that are to be bid on. (d) An issuer may not authorize certificates unless the notice also states that: (1) the successful bidder must accept the certificates in payment for all or part of the contract price; or (2) the governing body has made provisions for the contractor to sell and assign the certificates and that each bidder is required, at the time of the receipt of the bids, to elect whether the bidder will: (A) accept the certificates in payment of all or part of the contract price; or (B) assign the certificates in accordance with the arrangements made by the governing body. (e) In a county with a population of 3.3 million or more, the county and any district or authority created under Article XVI, Section 59, of the Texas Constitution of which the governing body is the commissioners court may require that a minimum of 25 percent of the work be performed by the bidder and, notwithstanding any other law to the contrary, may establish financial criteria for the surety companies that provide payment and performance bonds. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 1019, Sec. 3, eff. Aug. 28, 1989; Acts 1993, 73rd Leg., ch. 749, Sec. 6, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 757, Sec. 8, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(3), eff. Sept. 1, 1995; Acts 2001, 77th Leg., ch. 669, Sec. 83, eff. Sept. 1, 2001. Sec. 271.056. EXEMPTIONS FROM ADVERTISEMENT REQUIREMENT. The provisions of this subchapter relating to the advertisement for competitive bids do not apply to: (1) a case of public calamity if it is necessary to act promptly to relieve the necessity of the residents or to preserve the property of the issuer; (2) a case in which it is necessary to preserve or protect the public health of the residents of the issuer; (3) a case of unforeseen damage to public machinery, equipment, or other property; (4) a contract for personal or professional services; (5) work done by employees of the issuer and paid for as the work progresses; (6) the purchase of any land, building, existing utility system, or right-of-way for authorized needs and purposes; (7) expenditures for or relating to improvements in municipal water systems, sewer systems, streets, or drainage, if at least one-third of the cost of the improvements is to be paid by special assessments levied against properties to be benefitted by the improvements; (8) a case in which the entire contractual obligation is to be paid from bond funds or current funds or in which an advertisement for bids has previously been published in accordance with this subchapter but the current funds or bond funds are not adequate to permit the awarding of the contract and certificates are to be awarded to provide for the deficiency; (9) the sale of a public security, as that term is defined by Section 1204.001, Government Code; (10) a municipal procurement of a kind that, under Chapter 252, is not required to be made in accordance with competitive bidding procedures like those prescribed by this subchapter; or (11) a county contract that, under the County Purchasing Act (Subchapter C, Chapter 262), is not required to be made in accordance with competitive bidding procedures like those prescribed by this subchapter. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 2001, 77th Leg., ch. 402, Sec. 16, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1420, Sec. 8.298, eff. Sept. 1, 2001. Sec. 271.0565. PRE-BID CONFERENCE FOR CERTAIN COUNTIES OR A DISTRICT GOVERNED BY THOSE COUNTIES. Text of section as amended by Acts 2003, 78th Leg., ch. 660, Sec. 2 (a) This section applies only to a county with a population of 2.8 million or more. (b) The commissioners court of the county or the governing body of a district or authority created under Section 59, Article XVI, Texas Constitution, if the governing body is the commissioners court of the county in which the district is located, may require a principal, officer, or employee of each prospective bidder to attend a mandatory pre-bid conference conducted for the purpose of discussing contract requirements and answering questions of prospective bidders. (c) After a conference is conducted under Subsection (b), any additional required notice for the proposed contract may be sent by certified mail, return receipt requested, only to prospective bidders who attended the conference. Notice under this subsection is not subject to the requirements of Section 271.055. Added by Acts 2001, 77th Leg., ch. 255, Sec. 3, eff. May 22, 2001. Amended by Acts 2003, 78th Leg., ch. 660, Sec. 2, eff. Sept. 1, 2003. For text of section as amended by Acts 2003, 78th Leg., ch. 725, Sec. 2, see Sec. 271.0565, post. Sec. 271.0565. PRE-BID CONFERENCE. Text of section as amended by Acts 2003, 78th Leg., ch. 725, Sec. 2 The commissioners court of a county or the governing body of a district or authority created under Section 59, Article XVI, Texas Constitution, if the governing body is the commissioners court of the county in which the district is located, may require a principal, officer, or employee of each prospective bidder to attend a mandatory pre-bid conference conducted for the purpose of discussing contract requirements and answering questions of prospective bidders. Added by Acts 2001, 77th Leg., ch. 255, Sec. 3, eff. May 22, 2001. Amended by Acts 2003, 78th Leg., ch. 725, Sec. 2, eff. Sept. 1, 2003. For text of section as amended by Acts 2003, 78th Leg., ch. 660, Sec. 2, see Sec. 271.0565, ante. Sec. 271.057. AWARD OF CONTRACT. (a) Except as provided by Subsection (b), a contract let under this subchapter for the construction of public works or the purchase of materials, equipment, supplies, or machinery and for which competitive bidding is required by this subchapter must be let to the lowest responsible bidder and, as the governing body determines, may be let on a lump-sum basis or unit price basis. (b) The commissioners court may condition acceptance of a bid on compliance with a requirement for attendance at a mandatory pre-bid conference under Section 271.0565. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 2001, 77th Leg., ch. 255, Sec. 4, eff. May 22, 2001. Sec. 271.058. AUTHORITY TO REJECT BIDS. The governing body may reject any and all bids submitted for a contract for which competitive bidding is required by this subchapter. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 271.059. CONTRACTOR'S BONDS. If a contract is for the construction of public works and is required by this subchapter to be submitted to competitive bidding, the successful bidder must execute a good and sufficient payment bond and performance bond. The bonds must each be: (1) in the full amount of the contract price; and (2) executed, in accordance with Chapter 2253, Government Code, with a surety company authorized to do business in this state. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(17), eff. Sept. 1, 1995. Sec. 271.060. CHANGE ORDERS. (a) After performance of a construction contract begins, a governing body may approve change orders if necessary to: (1) make changes in plans or specifications; or (2) decrease or increase the quantity of work to be performed or materials, equipment, or supplies to be furnished. (b) The total price of a contract may not be increased by a change order unless provision has been made for the payment of the added cost by the appropriation of current funds or bond funds for that purpose, by the authorization of the issuance of certificates, or by a combination of those procedures. The original contract price may not be increased by more than 25 percent. The original price may not be decreased by more than 25 percent without the consent of the contractor. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 271.061. COMPENSATION ON UNIT PRICE CONTRACTS. If a contract is let on a unit price basis, the compensation paid to the contractor must be based on the actual quantities of items constructed or supplied. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 271.062. CERTAIN CONTRACTS NOT REQUIRED TO BE IN WRITING. A contract executed under Section 271.054 or 271.056 is not required to be in writing if the work to be performed under the contract: (1) is legal services; (2) is to be done by the regular salaried employees of the issuer; or (3) is to be paid for as the work progresses. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 271.063. UNCONSTITUTIONAL PROCEDURE CORRECTED BY RESOLUTION OF ISSUER. If a procedure used under this subchapter is held to be in violation of the state or federal constitution, an issuer by resolution may provide an alternative procedure that conforms to the constitution. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 271.064. CRIMINAL PENALTIES. (a) An officer or employee of an issuer commits an offense if the officer or employee intentionally or knowingly makes or authorizes separate, sequential, or component purchases to avoid the competitive bidding requirements of Section 271.054. An offense under this subsection is a Class B misdemeanor. (b) An officer or employee of an issuer commits an offense if the officer or employee intentionally or knowingly violates Section 271.054, other than by conduct described by Subsection (a). An offense under this subsection is a Class B misdemeanor. (c) An officer or employee of an issuer commits an offense if the officer or employee intentionally or knowingly violates this subchapter, other than by conduct described by Subsection (a) or (b). An offense under this subsection is a Class C misdemeanor. Added by Acts 1989, 71st Leg., ch. 1250, Sec. 18, eff. Sept. 1, 1989. Sec. 271.065. REMOVAL; INELIGIBILITY. (a) The final conviction of an officer or employee of an issuer for an offense under Section 271.064(a) or (b) results in the immediate removal from office or employment of that person. (b) For four years after the date of the final conviction, the removed officer or employee is ineligible: (1) to be a candidate for or to be appointed or elected to a public office in this state; (2) to be employed by the issuer with which the person served when the offense occurred; and (3) to receive any compensation through a contract with that issuer. (c) This section does not prohibit the payment of retirement or workers' compensation benefits to the removed officer or employee. Added by Acts 1989, 71st Leg., ch. 1250, Sec. 19, eff. Sept. 1, 1989. SUBCHAPTER D. STATE COOPERATION IN LOCAL PURCHASING PROGRAMS Sec. 271.081. DEFINITION. In this subchapter, "local government" means a county, municipality, special district, school district, junior college district, a local workforce development board created under Section 2308.253, Government Code, or other legally constituted political subdivision of the state. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 2001, 77th Leg., ch. 1004, Sec. 4, eff. Sept. 1, 2001. Sec. 271.082. PURCHASING PROGRAM. (a) The State Purchasing and General Services Commission shall establish a program by which the commission performs purchasing services for local governments. The services must include: (1) the extension of state contract prices to participating local governments when the commission considers it feasible; (2) solicitation of bids on items desired by local governments if the solicitation is considered feasible by the commission and is desired by the local government; and (3) provision of information and technical assistance to local governments about the purchasing program. (b) The commission may charge a participating local government an amount not to exceed the actual costs incurred by the commission in providing purchasing services to the local government under the program. (c) The commission may adopt rules and procedures necessary to administer the purchasing program. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 271.083. LOCAL GOVERNMENT PARTICIPATION. (a) A local government may participate in the purchasing program of the commission, including participation in purchases that use the reverse auction procedure, as defined by Section 2155.062(d), Government Code, by filing with the commission a resolution adopted by the governing body of the local government requesting that the local government be allowed to participate on a voluntary basis, and to the extent the commission deems feasible, and stating that the local government will: (1) designate an official to act for the local government in all matters relating to the program, including the purchase of items from the vendor under any contract, and that the governing body will direct the decisions of the representative; (2) be responsible for: (A) submitting requisitions to the commission under any contract; or (B) electronically sending purchase orders directly to vendors, or complying with commission procedures governing a reverse auction purchase, and electronically sending to the commission reports on actual purchases made under this paragraph that provide the information and are sent at the times required by the commission; (3) be responsible for making payment directly to the vendor; and (4) be responsible for the vendor's compliance with all conditions of delivery and quality of the purchased item. (b) A local government that purchases an item under a state contract or under a reverse auction procedure, as defined by Section 2155.062(d), Government Code, sponsored by the commission satisfies any state law requiring the local government to seek competitive bids for the purchase of the item. (c) The provisions of Chapter 2177, Government Code, shall apply to a local government that exercises the ability to electronically send purchase orders and information under the provisions of this section. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 428, Sec. 1, eff. Aug. 26, 1991; Acts 1995, 74th Leg., ch. 746, Sec. 6, eff. Aug. 28, 1995; Acts 1997, 75th Leg., ch. 494, Sec. 5, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 436, Sec. 5, eff. May 28, 2001. SUBCHAPTER E. STATE INTERCEPT TO INCREASE CREDIT RATING Sec. 271.091. DEFINITIONS. In this subchapter: (1) "Local government" means a municipality, county, or hospital district of the State of Texas. (2) "Payment" means the local sales and use tax authorized by the Municipal Sales and Use Tax Act (Chapter 321, Tax Code), the County Sales and Use Tax Act (Chapter 323, Tax Code), and Subchapter E, Chapter 285, Health and Safety Code. (3) "Paying agent" means the financial institution that is designated by a local government as its agent for the payment of the principal of and interest on the obligation. (4) "Obligation" means bonds, notes, certificates of obligation, and other obligations authorized to be issued by the local government. (5) "Agreement" means the document referred to in Section 271.092 and Section 271.093. (6) "Board" means the Bond Review Board. (7) "Comptroller" means the comptroller of public accounts. Added by Acts 1993, 73rd Leg., ch. 827, Sec. 1, eff. Aug. 30, 1993. Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 8.299, eff. Sept. 1, 2001. Sec. 271.092. AGREEMENT WITH TEXAS BOND REVIEW BOARD AND COMPTROLLER. Prior to the issuance of any obligation, the governing body of any local government may notify the board of the proposed issuance of an obligation and enter into an agreement with the board to authorize and direct the comptroller to withhold from such local government sufficient money from any payment to which such local government may be entitled and apply so much as shall be necessary to pay the principal of and interest on such obligation then due and to continue withholding additional payments until an amount sufficient to satisfy the amount then due has been met. Added by Acts 1993, 73rd Leg., ch. 827, Sec. 1, eff. Aug. 30, 1993. Sec. 271.093. FORM OF AGREEMENT; CONDITIONS. (a) The agreement shall set forth the following: (1) the proposed date of issuance of the obligation and the name and series of the proposed obligation; (2) each payment date with respect to the obligation and the principal of and interest on the obligation coming due on each such date; and (3) the name and address of the financial institution serving as paying agent for the obligation to whom any payment by the comptroller should be made. (b) This subchapter does not require or permit the state to make an appropriation to any local government and shall not be construed as creating an indebtedness of the state. Any agreement made pursuant to this subchapter shall contain a statement to that effect. (c) The agreement terminates at the time the final payment of the principal of and interest on the obligation is made or the obligation is refunded. Added by Acts 1993, 73rd Leg., ch. 827, Sec. 1, eff. Aug. 30, 1993. Sec. 271.094. NOTICE, DEPOSIT OF DEBT SERVICE, AUTHORIZATION, AND TRANSMITTAL. (a) If a local government enters into an agreement with the board under Section 271.092, the board on notification from the local government, the custodian bank, or the paying agent for the local government that the local government is unable or has failed to pay amounts as required by the agreement or to pay principal of or interest on the obligation when due, shall notify the comptroller, who shall withhold sufficient money from any payment to which such local government may be entitled and apply so much thereof as shall be necessary to pay the amounts then due as provided in this section. (b) The local government may in the agreement agree to make monthly deposits of one-sixth of the semiannual debt service requirement, or such other amount at such other times as specified in the agreement, into an interest and sinking fund in a custodian bank. If a bank agrees to serve as custodian for the interest and sinking fund, it shall be the duty of the bank to notify the board if the agreed upon amount of funds is not deposited each month or other specified time on a timely basis as specified in the agreement. (c) On receiving notification and direction from the board, the comptroller is authorized to withhold from any payment an amount equal to the amount to have been deposited by the local government pursuant to the agreement. The comptroller shall continue to withhold payments until the required amounts have been deposited in the interest and sinking fund with the custodian bank or with the paying agent. If the required amounts have not been deposited at the time interest on or principal of the obligation of the local government is required to be deposited pursuant to the agreement, the comptroller shall transmit, from payments withheld, the appropriate amount to the custodian bank or to the paying agent, as directed by the board. (d) The board shall cause a copy of any notice given pursuant to this section to be promptly given to the local government. Added by Acts 1993, 73rd Leg., ch. 827, Sec. 1, eff. Aug. 30, 1993. Sec. 271.095. RIGHT TO PLEDGE PAYMENTS. (a) The local government may pledge payments to secure any obligation only if the amount of payments received by the local government in the fiscal year of the state preceding the proposed issuance equals or exceeds the amount required in each year to pay the sum of an amount equal to two times (i) the maximum annual principal and interest requirements for the obligation, and (ii) the maximum annual principal and interest requirements on any additional obligation for which payments have been pledged. The local government shall provide evidence that these requirements are met. (b) A pledge of payments pursuant to this subchapter is a first priority for application of payments and the comptroller shall apply such payments as provided by this subchapter prior to applying such payments pursuant to any other authorization to withhold or intercept such payments. (c) While obligations which are the subject of an agreement remain outstanding, the local government may not repeal the sales tax or reduce the rate of the sales tax below the rate that would provide the amount required by Subsection (a), except as provided by this subsection. If at an election duly held in accordance with law a majority of the qualified voters approve the repeal of the sales tax, the local government shall, at the earliest practicable time, refund or defease the obligations, and after such defeasance or refunding the repeal shall become effective in accordance with law. If the qualified voters vote to reduce the rate of the sales tax, if such is provided for by law, below that which is required to provide the amount required by Subsection (a), the local government shall, at the earliest practicable time, refund or defease the obligations, and after such defeasance or refunding the reduction in rate shall become effective in accordance with law. Added by Acts 1993, 73rd Leg., ch. 827, Sec. 1, eff. Aug. 30, 1993. Sec. 271.096. ADMINISTRATION, RULES, FEES. The board shall administer the implementation of this subchapter and may adopt rules and set fees necessary for its administration. Added by Acts 1993, 73rd Leg., ch. 827, Sec. 1, eff. Aug. 30, 1993. SUBCHAPTER F. COOPERATIVE PURCHASING PROGRAM Sec. 271.101. DEFINITIONS. In this subchapter: (1) "Local cooperative organization" means an organization of governments established to provide local governments access to contracts with vendors for the purchase of materials, supplies, services, or equipment. (2) "Local government" means a county, municipality, special district, school district, junior college district, regional planning commission, or other political subdivision of the state. Added by Acts 1995, 74th Leg., ch. 746, Sec. 7, eff. Aug. 28, 1995. Sec. 271.102. COOPERATIVE PURCHASING PROGRAM PARTICIPATION. (a) A local government may participate in a cooperative purchasing program with another local government or a local cooperative organization. (b) A local government that is participating in a cooperative purchasing program may sign an agreement with another participating local government or a local cooperative organization stating that the signing local government will: (1) designate a person to act under the direction of, and on behalf of, that local government in all matters relating to the program; (2) make payments to another participating local government or a local cooperative organization or directly to a vendor under a contract made under this subchapter, as provided in the agreement between the participating local governments or between a local government and a local cooperative organization; and (3) be responsible for a vendor's compliance with provisions relating to the quality of items and terms of delivery, to the extent provided in the agreement between the participating local governments or between a local government and a local cooperative organization. (c) A local government that purchases goods or services under this subchapter satisfies any state law requiring the local government to seek competitive bids for the purchase of the goods or services. Added by Acts 1995, 74th Leg., ch. 746, Sec. 7, eff. Aug. 28, 1995. SUBCHAPTER G. PURCHASES FROM FEDERAL SCHEDULE SOURCES OF SUPPLY Sec. 271.103. FEDERAL SUPPLY SCHEDULE SOURCES. (a) A local government may purchase goods or services available under Federal supply schedules of the United States General Services Administration to the extent permitted by federal law. (b) A local government that purchases goods or services under this subchapter satisfies any state law requiring the local government to seek competitive bids for the purchase of the goods or services. Added by Acts 1997, 75th Leg., ch. 826, Sec. 2, eff. June 18, 1997. SUBCHAPTER H. ALTERNATIVE PROJECT DELIVERY METHODS FOR CERTAIN PROJECTS Sec. 271.111. DEFINITIONS. In this subchapter: (1) "Architect" means an individual registered as an architect under Chapter 1051, Occupations Code. (2) "Contractor" in the context of a contract for the construction, rehabilitation, alteration, or repair of a facility means a sole proprietorship, partnership, corporation, or other legal entity that assumes the risk for constructing, rehabilitating, altering, or repairing all or part of the facility at the contracted price. (3) "Design-build contract" means a single contract with a design-build firm for the design and construction of a facility. (4) "Design-build firm" means a partnership, corporation, or other legal entity or team that includes an engineer or architect and builder qualified to engage in building construction in Texas. (5) "Design criteria package" means a set of documents that provides sufficient information to permit a design-build firm to prepare a response to a governmental entity's request for qualifications and any additional information requested, including criteria for selection. The design criteria package must specify criteria the governmental entity considers necessary to describe the project and may include, as appropriate, the legal description of the site, survey information concerning the site, interior space requirements, special material requirements, material quality standards, conceptual criteria for the project, special equipment requirements, cost or budget estimates, time schedules, quality assurance and quality control requirements, site development requirements, applicable codes and ordinances, provisions for utilities, parking requirements, or any other requirement, as applicable. (6) "Engineer" means an individual licensed as an engineer under Chapter 1001, Occupations Code. (7) "Facility" means buildings the design and construction of which are governed by accepted building codes. The term does not include: (A) highways, roads, streets, bridges, utilities, water supply projects, water plants, wastewater plants, water and wastewater distribution or conveyance facilities, wharves, docks, airport runways and taxiways, drainage projects, or related types of projects associated with civil engineering construction; or (B) buildings or structures that are incidental to projects that are primarily civil engineering construction projects. (8) "Fee" in the context of a contract for the construction, rehabilitation, alteration, or repair of a facility means the payment a construction manager receives for its overhead and profit in performing its services. (9) "General conditions" in the context of a contract for the construction, rehabilitation, alteration, or repair of a facility means on-site management, administrative personnel, insurance, bonds, equipment, utilities, and incidental work, including minor field labor and materials. (10) "Governmental entity" means a municipality, county, river authority, or defense base development authority established under Chapter 378 as added by Chapter 1221, Acts of the 76th Legislature, Regular Session, 1999. Added by Acts 2001, 77th Leg., ch. 1409, Sec. 5, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 877, Sec. 1, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.791, eff. Sept. 1, 2003. Sec. 271.112. APPLICABILITY; OTHER LAW. (a) Any provision in the charter of a home-rule municipality or regulation, if any, of a county, river authority, or defense base development authority that requires the use of competitive bidding or competitive sealed proposals or that prescribes procurement procedures and that is in conflict with this subchapter controls over this subchapter unless the governing body of the governmental entity elects to have this subchapter supersede the charter or regulation. (b) The purchasing requirements of Section 361.426, Health and Safety Code, apply to purchases by a governmental entity made under this subchapter. (c) Except as provided by this section, to the extent of any conflict, this subchapter prevails over any other law relating to the purchasing of goods and services except a law relating to contracting with historically underutilized businesses. (d) For a contract entered into by a municipality, river authority, or defense base development authority under any of the methods provided by this subchapter, the municipality, river authority, or defense base development authority shall publish notice of the time and place the bids or proposals, or the responses to a request for qualifications, will be received and opened. The notice must be published in a newspaper of general circulation in the county in which the defense base development authority's or municipality's central administrative office is located or the county in which the greatest amount of the river authority's territory is located once each week for at least two weeks before the deadline for receiving bids, proposals, or responses. If there is not a newspaper of general circulation in that county, the notice shall be published in a newspaper of general circulation in the county nearest the county seat of the county in which the defense base development authority's or municipality's central administrative office is located or the county in which the greatest amount of the river authority's territory is located. In a two-step procurement process, the time and place the second step bids, proposals, or responses will be received are not required to be published separately. (e) For a contract entered into by a county under any of the methods provided by this subchapter, the county shall publish notice of the time and place the bids or proposals, or the responses to a request for qualifications, will be received and opened. The notice must be published in a newspaper of general circulation in the county once each week for at least two weeks before the deadline for receiving bids, proposals, or responses. If there is not a newspaper of general circulation in the county, the notice shall be: (1) posted at the courthouse door of the county; and (2) published in a newspaper of general circulation in the nearest county. (f) A contract entered into or an arrangement made in violation of this subchapter is contrary to public policy and is void. A court may enjoin performance of a contract made in violation of this subchapter. A county attorney, a district attorney, a criminal district attorney, a resident of a county that enters into a contract under this subchapter or of a county in which a municipality or a river authority that enters into a contract under this subchapter is located, or any interested party may bring an action for an injunction. A party who prevails in an action brought under this subsection is entitled to reasonable attorney's fees as approved by the court. Added by Acts 2001, 77th Leg., ch. 1409, Sec. 5, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 877, Sec. 2, eff. Sept. 1, 2003. Sec. 271.113. PROCUREMENT PROCEDURES. (a) In entering into a contract for the construction of a facility, a governmental entity may use any of the following methods that provides the best value for the governmental entity: (1) competitive bidding; (2) competitive sealed proposals for construction services; (3) a design-build contract; (4) a contract to construct, rehabilitate, alter, or repair facilities that involves using a construction manager; or (5) a job order contract for the minor repair, rehabilitation, or alteration of a facility. (b) Except as provided by this subchapter, in determining to whom to award a contract, the governmental entity may consider: (1) the purchase price; (2) the reputation of the vendor and of the vendor's goods or services; (3) the quality of the vendor's goods or services; (4) the extent to which the goods or services meet the governmental entity's needs; (5) the vendor's past relationship with the governmental entity; (6) the impact on the ability of the governmental entity to comply with rules relating to historically underutilized businesses; (7) the total long-term cost to the governmental entity to acquire the vendor's goods or services; and (8) any other relevant factor specifically listed in the request for bids or proposals. Added by Acts 2001, 77th Leg., ch. 1409, Sec. 5, eff. Sept. 1, 2001. Sec. 271.114. EVALUATION OF BIDS AND PROPOSALS FOR CONSTRUCTION SERVICES. (a) The governing body of a governmental entity that is considering a construction contract using a method specified by Section 271.113(a) other than competitive bidding must, before advertising, determine which method provides the best value for the governmental entity. The governing body may, as appropriate, delegate its authority under this section to a designated representative. (b) The governmental entity shall base its selection among offerors on criteria authorized to be used under Section 271.113(b). The governmental entity shall publish in the request for bids, proposals, or qualifications all the criteria that will be used to evaluate the offerors and the relative weights given to the criteria. (c) The governmental entity shall document the basis of its selection and shall make the evaluations public not later than the seventh day after the date the contract is awarded. Added by Acts 2001, 77th Leg., ch. 1409, Sec. 5, eff. Sept. 1, 2001. Sec. 271.115. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES THROUGH COMPETITIVE BIDDING. (a) Except to the extent prohibited by other law and to the extent consistent with this subchapter, a governmental entity may use competitive bidding to select a contractor to perform construction, rehabilitation, alteration, or repair services for a facility. (b) Except as otherwise specifically provided by this subsection, Subchapter B does not apply to a competitive bidding process under this section. Sections 271.026, 271.027(a), and 271.0275 apply to a competitive bidding process under this section. (c) A governmental entity shall award a competitively bid contract at the bid amount to the bidder offering the best value to the governmental entity according to the selection criteria that were established by the governmental entity. The selection criteria may include the factors listed in Section 271.113(b). Added by Acts 2001, 77th Leg., ch. 1409, Sec. 5, eff. Sept. 1, 2001. Sec. 271.116. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES THROUGH COMPETITIVE SEALED PROPOSALS. (a) In selecting a contractor for construction, rehabilitation, alteration, or repair services for a facility through competitive sealed proposals, a governmental entity shall follow the procedures prescribed by this section. (b) The governmental entity shall select or designate an engineer or architect to prepare construction documents for the project. The selected or designated engineer or architect has full responsibility for complying with Chapter 1001 or 1051, Occupations Code, as applicable. If the engineer or architect is not a full-time employee of the governmental entity, the governmental entity shall select the engineer or architect on the basis of demonstrated competence and qualifications as provided by Section 2254.004, Government Code. (c) The governmental entity shall provide or contract for, independently of the contractor, the inspection services, the testing of construction materials engineering, and the verification testing services necessary for acceptance of the facility by the governmental entity. The governmental entity shall select those services for which it contracts in accordance with Section 2254.004, Government Code, and shall identify them in the request for proposals. (d) The governmental entity shall prepare a request for competitive sealed proposals that includes construction documents, selection criteria, estimated budget, project scope, schedule, and other information that contractors may require to respond to the request. The governmental entity shall state in the request for proposals the selection criteria that will be used in selecting the successful offeror. (e) The governmental entity shall receive, publicly open, and read aloud the names of the offerors and, if any are required to be stated, all prices stated in each proposal. Not later than the 45th day after the date of opening the proposals, the governmental entity shall evaluate and rank each proposal submitted in relation to the published selection criteria. (f) The governmental entity shall select the offeror that offers the best value for the governmental entity based on the published selection criteria and on its ranking evaluation. The governmental entity shall first attempt to negotiate a contract with the selected offeror. The governmental entity and its engineer or architect may discuss with the selected offeror options for a scope or time modification and any price change associated with the modification. If the governmental entity is unable to negotiate a contract with the selected offeror, the governmental entity shall, formally and in writing, end negotiations with that offeror and proceed to the next offeror in the order of the selection ranking until a contract is reached or all proposals are rejected. (g) In determining best value for the governmental entity, the governmental entity is not restricted to considering price alone, but may consider any other factor stated in the selection criteria. Added by Acts 2001, 77th Leg., ch. 1409, Sec. 5, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 1276, Sec. 14A.792, eff. Sept. 1, 2003. Sec. 271.117. CONTRACTS FOR FACILITIES: CONSTRUCTION MANAGER- AGENT. (a) A governmental entity may use the construction manager-agent method for the construction, rehabilitation, alteration, or repair of a facility. In using that method and in entering into a contract for the services of a construction manager-agent, a governmental entity shall follow the procedures prescribed by this section. (b) A construction manager-agent is a sole proprietorship, partnership, corporation, or other legal entity that provides consultation to the governmental entity regarding construction, rehabilitation, alteration, or repair of the facility. A governmental entity using the construction manager-agent method may, under the contract between the governmental entity and the construction manager-agent, require the construction manager-agent to provide administrative personnel, equipment necessary to perform duties under this section, and on-site management and other services specified in the contract. A construction manager-agent represents the governmental entity in a fiduciary capacity. (c) Before or concurrently with selecting a construction manager-agent, the governmental entity shall select or designate an engineer or architect who shall prepare the construction documents for the project and who has full responsibility for complying with Chapter 1001 or 1051, Occupations Code, as applicable. If the engineer or architect is not a full- time employee of the governmental entity, the governmental entity shall select the engineer or architect on the basis of demonstrated competence and qualifications as provided by Section 2254.004, Government Code. The governmental entity's engineer or architect may not serve, alone or in combination with another person, as the construction manager-agent unless the engineer or architect is hired to serve as the construction manager-agent under a separate or concurrent procurement conducted in accordance with this subchapter. This subsection does not prohibit the governmental entity's engineer or architect from providing customary construction phase services under the engineer's or architect's original professional service agreement in accordance with applicable licensing laws. (d) A governmental entity shall select a construction manager-agent on the basis of demonstrated competence and qualifications in the same manner as provided for the selection of engineers or architects under Section 2254.004, Government Code, except that notice must be published as provided by Section 271.112(d). (e) A governmental entity using the construction manager-agent method shall procure, in accordance with applicable law, a general contractor, trade contractors, or subcontractors who will serve as the prime contractor for their specific portion of the work. (f) The governmental entity or the construction manager-agent shall procure in accordance with Section 2254.004, Government Code, all of the testing of construction materials engineering, the inspection services, and the verification testing services necessary for acceptance of the facility by the governmental entity. Added by Acts 2001, 77th Leg., ch. 1409, Sec. 5, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 1276, Sec. 14A.793, eff. Sept. 1, 2003. Sec. 271.118. CONTRACTS FOR FACILITIES: CONSTRUCTION MANAGER- AT-RISK. (a) A governmental entity may use the construction manager-at-risk method for the construction, rehabilitation, alteration, or repair of a facility. In using that method and in entering into a contract for the services of a construction manager-at-risk, a governmental entity shall follow the procedures prescribed by this section. (b) A construction manager-at-risk is a sole proprietorship, partnership, corporation, or other legal entity that assumes the risk for construction, rehabilitation, alteration, or repair of a facility at the contracted price as a general contractor and provides consultation to the governmental entity regarding construction during and after the design of the facility. (c) Before or concurrently with selecting a construction manager-at-risk, the governmental entity shall select or designate an engineer or architect who shall prepare the construction documents for the project and who has full responsibility for complying with Chapter 1001 or 1051, Occupations Code, as applicable. If the engineer or architect is not a full- time employee of the governmental entity, the governmental entity shall select the engineer or architect on the basis of demonstrated competence and qualifications as provided by Section 2254.004, Government Code. The governmental entity's engineer, architect, or construction manager-agent for a project may not serve, alone or in combination with another, as the construction manager-at-risk unless the engineer or architect is hired to serve as the construction manager-at-risk under a separate or concurrent procurement conducted in accordance with this subchapter. (d) The governmental entity shall provide or contract for, independently of the construction manager-at-risk, the inspection services, the testing of construction materials engineering, and the verification testing services necessary for acceptance of the facility by the governmental entity. The governmental entity shall select those services for which it contracts in accordance with Section 2254.004, Government Code. (e) The governmental entity shall select the construction manager-at-risk in either a one-step or two-step process. The governmental entity shall prepare a request for proposals, in the case of a one-step process, or a request for qualifications, in the case of a two-step process, that includes general information on the project site, project scope, schedule, selection criteria, estimated budget, and the time and place for receipt of proposals or qualifications, as applicable, and other information that may assist the governmental entity in its selection of a construction manager-at-risk. The governmental entity shall state the selection criteria in the request for proposals or qualifications, as applicable. The selection criteria may include the offeror's experience, past performance, safety record, proposed personnel and methodology, and other appropriate factors that demonstrate the capability of the construction manager-at-risk. If a one- step process is used, the governmental entity may request, as part of the offeror's proposal, proposed fees and prices for fulfilling the general conditions. If a two-step process is used, the governmental entity may not request fees or prices in step one. In step two, the governmental entity may request that five or fewer offerors, selected solely on the basis of qualifications, provide additional information, including the construction manager-at-risk's proposed fee and its price for fulfilling the general conditions. (f) At each step, the governmental entity shall receive, publicly open, and read aloud the names of the offerors. At the appropriate step, the governmental entity shall also read aloud the fees and prices, if any, stated in each proposal as the proposal is opened. Not later than the 45th day after the date of opening the proposals, the governmental entity shall evaluate and rank each proposal submitted in relation to the criteria set forth in the request for proposals. (g) The governmental entity shall select the offeror that submits the proposal that offers the best value for the governmental entity based on the published selection criteria and on its ranking evaluation. The governmental entity shall first attempt to negotiate a contract with the selected offeror. If the governmental entity is unable to negotiate a satisfactory contract with the selected offeror, the governmental entity shall, formally and in writing, end negotiations with that offeror and proceed to negotiate with the next offeror in the order of the selection ranking until a contract is reached or negotiations with all ranked offerors end. (h) A construction manager-at-risk shall publicly advertise, as prescribed for a governmental entity under Section 271.025, and receive bids or proposals from trade contractors or subcontractors for the performance of all major elements of the work other than the minor work that may be included in the general conditions. A construction manager-at-risk may seek to perform portions of the work itself if the construction manager-at-risk submits its bid or proposal for those portions of the work in the same manner as all other trade contractors or subcontractors and if the governmental entity determines that the construction manager-at-risk's bid or proposal provides the best value for the governmental entity. (i) The construction manager-at-risk and the governmental entity or its representative shall review all trade contractor or subcontractor bids or proposals in a manner that does not disclose the contents of the bid or proposal during the selection process to a person not employed by the construction manager-at-risk, engineer, architect, or governmental entity. All bids or proposals shall be made public after the award of the contract or not later than the seventh day after the date of final selection of bids or proposals, whichever is later. (j) If the construction manager-at-risk reviews, evaluates, and recommends to the governmental entity a bid or proposal from a trade contractor or subcontractor but the governmental entity requires another bid or proposal to be accepted, the governmental entity shall compensate the construction manager-at-risk by a change in price, time, or guaranteed maximum cost for any additional cost and risk that the construction manager-at-risk may incur because of the governmental entity's requirement that another bid or proposal be accepted. (k) If a selected trade contractor or subcontractor defaults in the performance of its work or fails to execute a subcontract after being selected in accordance with this section, the construction manager-at-risk may, without advertising, fulfill the contract requirements itself or select a replacement trade contractor or subcontractor to fulfill the contract requirements. (l) If a fixed contract amount or guaranteed maximum price has not been determined at the time the contract is awarded, the penal sums of the performance and payment bonds delivered to the governmental entity must each be in an amount equal to the project budget, as specified in the request for qualifications. The construction manager shall deliver the bonds not later than the 10th day after the date the construction manager executes the contract unless the construction manager furnishes a bid bond or other financial security acceptable to the governmental entity to ensure that the construction manager will furnish the required performance and payment bonds when a guaranteed maximum price is established. Added by Acts 2001, 77th Leg., ch. 1409, Sec. 5, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 1276, Sec. 14A.794, eff. Sept. 1, 2003. Sec. 271.119. DESIGN-BUILD CONTRACTS FOR FACILITIES. (a) A governmental entity may use the design-build method for the construction, rehabilitation, alteration, or repair of a facility. In using that method and in entering into a contract for the services of a design-build firm, the contracting governmental entity and the design-build firm shall follow the procedures provided by this section. (b) The governmental entity shall select or designate an engineer or architect independent of the design-build firm to act as its representative for the duration of the work on the facility. If the governmental entity's engineer or architect is not a full-time employee of the governmental entity, the governmental entity shall select the engineer or architect on the basis of demonstrated competence and qualifications as provided by Section 2254.004, Government Code. (c) The governmental entity shall prepare a request for qualifications that includes general information on the project site, project scope, budget, special systems, selection criteria, and other information that may assist potential design-build firms in submitting proposals for the project. The governmental entity shall also prepare a design criteria package that includes more detailed information on the project. If the preparation of the design criteria package requires engineering or architectural services that constitute the practice of engineering within the meaning of Chapter 1001, Occupations Code, or the practice of architecture within the meaning of Chapter 1051, Occupations Code, those services shall be provided in accordance with the applicable law. (d) The governmental entity shall evaluate statements of qualifications and select a design-build firm in two phases: (1) In phase one, the governmental entity shall prepare a request for qualifications and evaluate each offeror's experience, technical competence, and capability to perform, the past performance of the offeror's team and members of the team, and other appropriate factors submitted by the team or firm in response to the request for qualifications, except that cost-related or price-related evaluation factors are not permitted. Each offeror must certify to the governmental entity that each engineer or architect that is a member of its team was selected based on demonstrated competence and qualifications in the manner provided by Section 2254.004, Government Code. The governmental entity shall qualify a maximum of five offerors to submit additional information and, if the governmental entity chooses, to interview for final selection. (2) In phase two, the governmental entity shall evaluate the information submitted by the offerors on the basis of the selection criteria stated in the request for qualifications and the results of an interview. The governmental entity may request additional information regarding demonstrated competence and qualifications, considerations of the safety and long-term durability of the project, the feasibility of implementing the project as proposed, the ability of the offeror to meet schedules, costing methodology, or other factors as appropriate. The governmental entity may not require offerors to submit detailed engineering or architectural designs as part of the proposal. The governmental entity shall rank each proposal submitted on the basis of the criteria set forth in the request for qualifications. The governmental entity shall select the design-build firm that submits the proposal offering the best value for the governmental entity on the basis of the published selection criteria and on its ranking evaluations. The governmental entity shall first attempt to negotiate a contract with the selected offeror. If the governmental entity is unable to negotiate a satisfactory contract with the selected offeror, the governmental entity shall, formally and in writing, end negotiations with that offeror and proceed to negotiate with the next offeror in the order of the selection ranking until a contract is reached or negotiations with all ranked offerors end. (e) Following selection of a design-build firm under Subsection (d), that firm's engineers or architects shall complete the design, submitting all design elements for review and determination of scope compliance to the governmental entity or the governmental entity's engineer or architect before or concurrently with construction. (f) An engineer shall have responsibility for compliance with the engineering design requirements and all other applicable requirements of Chapter 1001, Occupations Code. An architect shall have responsibility for compliance with the requirements of Chapter 1051, Occupations Code. (g) The governmental entity shall provide or contract for, independently of the design- build firm, the inspection services, the testing of construction materials engineering, and the verification testing services necessary for acceptance of the facility by the governmental entity. The governmental entity shall select those services for which it contracts in accordance with Section 2254.004, Government Code. (h) The design-build firm shall supply a signed and sealed set of construction documents for the project to the governmental entity at the conclusion of construction. (i) A payment or performance bond is not required for, and may not provide coverage for, the portion of a design-build contract under this section that includes design services only. If a fixed contract amount or guaranteed maximum price has not been determined at the time a design-build contract is awarded, the penal sums of the performance and payment bonds delivered to the governmental entity must each be in an amount equal to the project budget, as specified in the design criteria package. The design-build firm shall deliver the bonds not later than the 10th day after the date the design-build firm executes the contract unless the design- build firm furnishes a bid bond or other financial security acceptable to the governmental entity to ensure that the design-build firm will furnish the required performance and payment bonds when a guaranteed maximum price is established. Added by Acts 2001, 77th Leg., ch. 1409, Sec. 5, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 1276, Sec. 14A.795, eff. Sept. 1, 2003. Sec. 271.120. JOB ORDER CONTRACTS FOR FACILITIES CONSTRUCTION OR REPAIR. (a) A governmental entity may award job order contracts for the minor construction, repair, rehabilitation, or alteration of a facility if the work is of a recurring nature but the delivery times are indefinite and indefinite quantities and orders are awarded substantially on the basis of predescribed and prepriced tasks. (b) The governmental entity may establish contractual unit prices for a job order contract by: (1) specifying one or more published construction unit price books and the applicable divisions or line items; or (2) providing a list of work items and requiring the offerors to bid or propose one or more coefficients or multipliers to be applied to the price book or work items as the price proposal. (c) The governmental entity shall advertise for, receive, and publicly open sealed proposals for job order contracts. (d) The governmental entity may require offerors to submit additional information besides rates, including experience, past performance, and proposed personnel and methodology. (e) The governmental entity may award job order contracts to one or more job order contractors in connection with each solicitation of bids or proposals. (f) An order for a job or project under the job order contract must be signed by the governmental entity's representative and the contractor. The order may be a fixed price, lump- sum contract based substantially on contractual unit pricing applied to estimated quantities or may be a unit price order based on the quantities and line times delivered. (g) The contractor shall provide payment and performance bonds, if required by law, based on the amount or estimated amount of any order. (h) The base term of a job order contract is for the period and with any renewal options that the governmental entity sets forth in the request for proposals. If the governmental entity fails to advertise that term, the base term may not exceed two years and is not renewable without further advertisement and solicitation of proposals. (i) If a job order contract or an order issued under the contract requires engineering or architectural services that constitute the practice of engineering within the meaning of Chapter 1001, Occupations Code, or the practice of architecture within the meaning of Chapter 1051, Occupations Code, those services shall be provided in accordance with applicable law. Added by Acts 2001, 77th Leg., ch. 1409, Sec. 5, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 1276, Sec. 14A.796, eff. Sept. 1, 2003. Sec. 271.121. RIGHT TO WORK. (a) This section applies to a governmental entity while the governmental entity is engaged in: (1) procuring goods or services; (2) awarding a contract; or (3) overseeing procurement or construction for a public work or public improvement. (b) Notwithstanding any other provision of this chapter, a governmental entity: (1) may not consider whether a vendor is a member of or has another relationship with any organization; and (2) shall ensure that its bid specifications and any subsequent contract or other agreement do not deny or diminish the right of a person to work because of the person's membership or other relationship status with respect to any organization. Added by Acts 2001, 77th Leg., ch. 1409, Sec. 5, eff. Sept. 1, 2001. SUBCHAPTER Z. MISCELLANEOUS PROVISIONS Sec. 271.901. PROCEDURE FOR AWARDING CONTRACT IF MUNICIPALITY OR DISTRICT RECEIVES IDENTICAL BIDS. (a) If a municipality or district is required to accept bids on a contract and receives two or more bids from responsible bidders that are identical, in nature and amount, as the lowest and best bids, the governing body of the municipality or district shall enter into a contract with only one of those bidders and must reject all other bids. (b) If only one of the bidders submitting identical bids is a resident of the municipality or district, the municipality or district must select that bidder. If two or more of the bidders submitting identical bids are residents of the municipality or district, the municipality or district must select one of those bidders by the casting of lots. In all other cases, the municipality or district must select from the identical bids by the casting of lots. (c) The casting of lots must be in a manner prescribed by the mayor of the municipality or the governing body of the district and must be conducted in the presence of the governing body of the municipality or district. All qualified bidders or their legal representatives may be present at the casting of lots. (d) This section does not prohibit a municipality or district from rejecting all bids. (e) This section applies to all municipalities and districts required by general or special law or by municipal ordinance or charter to accept bids and award contracts on the basis of the lowest and best bid, but does not apply to bidding for contracts to act as a depository for public funds or as a depository for school funds under Subchapter G, Chapter 45 , Education Code. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 1, Sec. 62(a), eff. Aug. 28, 1989; Acts 1997, 75th Leg., ch. 165, Sec. 6.71, eff. Sept. 1, 1997. Sec. 271.902. PROHIBITION OF CONFLICT OF INTEREST IN PURCHASE BY MUNICIPALITY OR COUNTY FROM COOPERATIVE ASSOCIATIONS. If a member of the governing body or an appointed board or commission of a municipality or county belongs to a cooperative association, the municipality or county may purchase equipment or supplies from the association only if no member of the governing body, board, or commission will receive a pecuniary benefit from the purchase, other than as reflected in an increase in dividends distributed generally to members of the association. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 271.903. COMMITMENT OF CURRENT REVENUE. (a) If a contract for the acquisition, including lease, of real or personal property retains to the governing body of a local government the continuing right to terminate at the expiration of each budget period of the local government during the term of the contract, is conditioned on a best efforts attempt by the governing body to obtain and appropriate funds for payment of the contract, or contains both the continuing right to terminate and the best efforts conditions, the contract is a commitment of the local government's current revenues only. (b) In this section, "local government" means a municipality, county, school district, special purpose district or authority, or other political subdivision of this state. Added by Acts 1993, 73rd Leg., ch. 104, Sec. 2, eff. May 7, 1993. Sec. 271.904. INDEMNIFICATION. (a) A covenant or promise in, in connection with, or collateral to a contract for engineering or architectural services to which a governmental agency is a party is void and unenforceable if the covenant or promise provides that a licensed engineer or registered architect whose work product is the subject of the contract must indemnify or hold harmless the governmental agency against liability for damage that is caused by or results from the negligence of the governmental agency or its agent or employee. (b) In this section, "governmental agency" has the meaning assigned by Section 271.003. Added by Acts 1995, 74th Leg., ch. 746, Sec. 8, eff. Aug. 28, 1995. Amended by Acts 2001, 77th Leg., ch. 351, Sec. 5, eff. Sept. 1, 2001. Sec. 271.905. CONSIDERATION OF LOCATION OF BIDDER'S PRINCIPAL PLACE OF BUSINESS. (a) In this section, "local government" means a municipality with a population of 200,000 or less, a county with a population of 400,000 or less, or another political subdivision authorized under this title to purchase real property or personal property that is not affixed to real property. The term does not include a school district. (b) In purchasing under this title any real property or personal property that is not affixed to real property, if a local government receives one or more bids from a bidder whose principal place of business is in the local government and whose bid is within three percent of the lowest bid price received by the local government from a bidder who is not a resident of the local government, the local government may enter into a contract with: (1) the lowest bidder; or (2) the bidder whose principal place of business is in the local government if the governing body of the local government determines, in writing, that the local bidder offers the local government the best combination of contract price and additional economic development opportunities for the local government created by the contract award, including the employment of residents of the local government and increased tax revenues to the local government. (c) This section does not prohibit a local government from rejecting all bids. Added by Acts 1999, 76th Leg., ch. 996, Sec. 1, eff. Aug. 30, 1999. Amended by Acts 2001, 77th Leg., ch. 480, Sec. 1, eff. Sept. 1, 2001. Sec. 271.906. REVERSE AUCTION METHOD OF PURCHASING. (a) A local government, as defined by Section 271.081, may use the reverse auction procedure, as defined by Section 2155.062(d), Government Code, in purchasing goods and services in place of any other method of purchasing that would otherwise apply to the purchase. (b) A local government that uses the reverse auction procedure must include in the procedure a notice provision and other provisions necessary to produce a method of purchasing that is advantageous to the local government and fair to vendors. Added by Acts 2001, 77th Leg., ch. 436, Sec. 6, eff. May 28, 2001. Sec. 271.907. VENDORS THAT MEET OR EXCEED AIR QUALITY STANDARDS. (a) In this section, "governmental agency" has the meaning assigned by Section 271.003. (b) This section applies only to a contract to be performed, wholly or partly, in a non attainment area or in an affected county, as those terms are defined by Section 386.001, Health and Safety Code. (c) A governmental agency procuring goods or services may: (1) give preference to goods or services of a vendor that demonstrates that the vendor meets or exceeds any state or federal environmental standards, including voluntary standards, relating to air quality; or (2) require that a vendor demonstrate that the vendor meets or exceeds any state or federal environmental standards, including voluntary standards, relating to air quality. (d) The preference may be given only if the cost to the governmental agency for the goods or services would not exceed 105 percent of the cost of the goods or services provided by a vendor who does not meet the standards. Added by Acts 2003, 78th Leg., ch. 1331, Sec. 20, eff. June 20, 2003. Amended by Acts 2003, 78th Leg., 3rd C.S., ch. 3, Sec. 14.02, eff. Jan. 11, 2004; Acts 2003, 78th Leg., 3rd C.S., ch. 11, Sec. 2, eff. Oct 20, 2003. TOWN OF TROPHY CLUB PROCUREMENT POLICIES AND PROCEDURES TABLE OF CONTENTS POLICIES 1 PURPOSE 1 POLICY 1 FREE AND OPEN COMPETITION 2 COMPLIANCE 2 CODE OF ETHICS 2 CONFLICT OF INTEREST 3 CONTRACTS 3 DECLARATION OF CONFLICT OF INTEREST 3 VIOLATIONS AND REMEDIES 4 SUBSTANTIAL INTEREST 4 LEGAL CONSIDERATIONS 4 PROCUREMENTS EXEMPT FROM STATE LAW COMPETITIVE BID REQUIREMENTS .............................................. 4 CONFLICT OF INTEREST 6 PUBLIC ACCESS TO PROCUREMENT INFORMATION 6 CONFIDENTIALITY OF BIDDERS QUOTATIONS 6 METHODS OF PROCUREMENT 6 GENERAL 6 PETTY CASH PURCHASES – COST UP TO $100 7 CREDIT CARD PURCHASES – PERSONAL TRAVEL EXPENSES.............................................................................. 7 PROCUREMENT CARD PURCHASES 8 PURCHASES OVER $3,000 BUT LESS THAN $25,000 9 COMPETITIVE SEALED BIDS – COST OVER $25,000 9 PROFESSIONAL CONSULTING SERVICES CONTRACTS – RFQ/RFP ....................................................................... 10 ANNUAL CONTRACTS 11 SOLE SOURCE PURCHASES 11 STATE CONTRACTING PURCHASING 11 ALTERNATIVE PROJECT DELIVERY METHODS FOR CERTAIN PROJECTS ............................................................. 11 THE REQUISITION PROCESS 12 PROCEDURE FOR NON-EMERGENCY PURCHASES 12 PROCEDURE FOR EMERGENCY PURCHASES 13 PURCHASING PROCESSES 13 POLICY 13 REQUESTS FOR BIDS (RFB) OR REQUESTS FOR PROPOSALS (RFP).................................................................... 14 BID PACKET 14 COMPETITIVE PROPOSALS 16 CANCELLATION OF A RFB/RFB 16 MODIFICATION OF A RFB/RFP 16 RECEIVING THE BID OR PROPOSAL – PROCEDURAL REQUIREMENTS ................................................................. 16 DISQUALIFIED BIDS 17 CORRECTION OR WITHDRAWAL OF A BID 18 EVALUATING COMPETITIVE BIDS 18 GENERAL 18 TABULATING THE RESULTS 18 BASIS FOR PURCHASE DECISION 18 AWARDING THE BID 19 POLICY 19 DISQUALIFICATION OF A BIDDER 19 PROTESTING A BID 19 PROCUREMENT SPECIFICATIONS 20 MODIFICATION AND TERMINATION OF CONTRACTS................................................................... 20 POLICY 20 REQUIREMENT TO RE-BID 21 DELIVERY OF GOODS 21 DISPOSAL OF SURPLUS PROPERTY 21 SECTION 1.0: POLICIES 1.01 Purpose The purpose of the Town’s Procurement Policy is to provide the parameters for the expenditure of funds in the procurement of goods and services for the Town of Trophy Club. The policies and procedures outlined herein are intended to comply with the Town of Trophy Club’s Mission and legally mandated federal and state statutes. 1.02 Policy Regardless of the value of the expenditure it is the policy of the Town of Trophy Club to promote competition that produces the highest quality goods and services at the lowest possible price whether or not the item is subject to bid. The Town Manager in coordination with the Town Council is charged with establishing the policies for the procurement of all goods and services. The Finance Department: • Develops purchasing objectives, programs, and procedures for the acquisition of materials, equipment, supplies, and services; • Helps department managers provide open and fair competition to vendors; and • Helps departments prepare and obtain approval of purchase orders, price agreements, and contracts; The City Secretary’s Office/Department Managers or designee: • Receives, and monitors formal bids for purchases. The Department Managers: • Develops and maintains technical and non-technical commodity specifications; • Ensures funding is available for procurement in department budgets. • Provides open and fair competition to vendors; • Prepares requisitions; • Obtains approval of purchase orders, price agreements, and contracts; • Prepares requests for proposals (RFPs) , requests for qualifications (RFQs) and requests for bids (RFBs); and • Monitors and evaluates the performance of vendors including but not limited to, compliance with contract specifications. 1.03 Free and Open Competition All procurement transactions, regardless of dollar value, whether advertised or negotiated, shall be conducted in a manner so as to provide maximum free and open competition. The Town Manager or Town Council should be alert to organizational conflicts of interest or noncompetitive practices among contractors that may restrict or eliminate competition or otherwise restrain trade. In order to ensure objective contractor performance and eliminate unfair competitive advantage, contractors who develop or draft specifications and other requirements for solicitation instruments (Requests for Bids or Proposals) should be excluded from competing for such procurement. 1.04 Compliance In order to have an efficient purchasing function, all departments must work in close cooperation with the Finance Department. Departments can ensure compliance with the Town’s policies and procedures by: • Informing departmental personnel of the purchasing requirements and ensuring adherence; • Planning purchases in advance in order to allow sufficient time to advertise, when necessary, obtain proposals, quotations, or bids, determine best source, and issue purchase orders with reasonable lead-time for delivery and thus prevent emergencies; • Providing accurate and concise specifications for items requested and timely preparing requisitions; • Inspecting or supervising the inspection of commodities, services and equipment delivered; and determining acceptability of their quality, quantity, and conformity with specifications; and • Providing complete written documentation of a vendor's performance to be used in future bid award evaluations. SECTION 2.0: CODE OF ETHICS Officers and employees of The Town of Trophy Club are public servants, who will carry out their activities in a fair and legal manner avoiding actual or perceived conflicts of interest. All officers and staff members are expected to conduct the activities of the Town in full compliance with the law and in an honest, fair, and courteous manner. Officers and staff members must neither ask nor expect contractors, vendors or others with whom the Town does business to favor the Town, the officer or the individual staff member with special treatment. Officers and staff members should not permit personal preferences and dislikes to affect decisions related to their duties. To do so acts against the Town’s policy which is to treat all individuals, members, potential members, contractors, and others fairly and equitably. This does not preclude officers and staff from basing current purchasing decisions on past experience with specific vendors. SECTION 3.0: CONFLICT OF INTEREST 3.01 Contracts Specifically, with reference to contracts, no employee or officer of the Town who exercises any functions or responsibilities in the review or approval of an undertaking or the carrying out of one of Town’s contracts shall participate in any decision relating to that contract if the decision affects his or her personal financial interest, such officer or employee has a substantial interest as defined by state law, or participation by such officer or employee is otherwise prohibited by state law or Town policy. If a former staff member or Town officer has worked less than one year for a business seeking to contract with the Town, the business entity must make this known and must describe the relationship between the former employee/officer and the firm. In no instance may this former employee/officer have hours billed on any project or program. To do so is reason for not awarding a contract. 3.02 Declaration of Conflict of Interest In the event of a conflict of interest as defined by state law, the affected officer or employee must file a signed affidavit declaring his or her conflict of interest. The affidavit must be filed with the Town Secretary. Such official, officer or employee must abstain from discussion of or voting on a bid, proposal or contract submitted by a business entity in which he/she has a substantial interest. More specifically, in addition to the requirement to complete an affidavit, when an item is placed before a Board, Commission, Committee, or Town Council for review, any and all members of those bodies who has a conflict of interest shall announce that he/she has such conflict and shall leave the room until the body has discussed and taken action on the item for which the member has a conflict. Moreover, it is the policy of the Town that an employee who has a substantial interest in a business entity as defined by state law, shall follow the procedure outlined in this section by completing an affidavit and leaving the room where a discussion and/or vote is taking place regarding the business entity in which the employee has an interest. Further it is the obligation of officials, officers and employees to avoid apparent conflicts of interest by abstaining and following the procedures specified in this section. Officials, officers and employees shall abstain from participating in the procurement process, which includes but is not limited to discussions, lobbying, rating, scoring, recommending, providing current copies of contracts outside of Public Information Act process, explaining or assisting in the design or approval of the procurement process on contract with the organization he or she represents or from which he or she receives a direct financial benefit; or on contracts with organizations in which a family member will realize a direct benefit. 3.03 Violations and Remedies Violations of the provisions of this Article constitute misconduct, subjecting the violator to any and all penalties prescribed by law. Penalties, sanctions or other disciplinary actions, to the extent permitted by state or local law, rules or regulations, shall be imposed for violations of the code of conduct/conflict of interest standards, by the Town’s officers, employees or agents or by persons, contractors or their agents, when the procurement involves state or federal programs and/or funds. Appropriate sanctions, penalties or disciplinary actions shall be applied for violation(s) of these policies and/or state law. Violations of state or federal law shall be referred to the proper authority having jurisdiction over it. 3.04.1 Substantial Interest. A person has a substantial interest in a business entity if: (1) the person owns 10 percent or more of the voting stock or shares of the business entity or owns either 10 percent or more or $15,000 or more of the fair market value of the business entity; or (2) funds received by the person from the business entity exceed 10 percent of the person’s gross income for the previous year. Additionally, a local public official is considered to have a substantial interest if a person related to the official in the first degree by blood or marriage, as defined by Chapter 573 of the Texas Government Code, has a substantial interest as defined herein. SECTION 4.0: LEGAL CONSIDERATIONS 4.01 Procurements Exempt from State Law Competitive Bid Requirements Purchases made by the Town shall be in accordance with State law. Written, competitive bids must be taken for all procurements over $25,000 except exempted procurements as mandated by State law. Exempt procurements include: • Those made in case of public calamity, where it is necessary to act immediately to appropriate money to relieve the necessity of the Town’s residents or to protect or to preserve Town property; • Those made necessary by unforeseen damage to Town property, machinery or equipment; • A procurement necessary to preserve to protect the public health or safety of the Town’s residents; • Those for personal, professional, or planning service; • Those for work performed and paid for by the day as work progresses; • A purchase of land or right-of-way; • Items that area available from only one source; • A purchase of rare books, appears, and other library materials for a public library; • Paving, drainage, street widening, and other public improvements, or related matters, if at lease one-third of the cost is to be paid by or through special assessments levied on property that will benefit from the improvements; • A public improvement project, already in progress, authorized by the voters of the municipality, for which there is a deficiency of funds for completing the project in accordance with the plans and purposes authorized by the voters; • A payment under a contract by which a developer participates in the construction of a public improvement as provided by Chapter 212 of the Texas Local Government Code; • Personal property sold: o At an auction by a state licensed auctioneer; o At a going out of business sale held in compliance with Chapter 17, Texas Business and Commerce Code; o By a political subdivision of the state of Texas, a state agency of the State of Texas, or an entity of the federal government; or o Under an inter-local contract for cooperative purchasing administered by a regional planning commission established under Chapter 391 of the Texas Local Government Code; • Services performed by blind or severely disabled persons; • Goods purchased by a municipality for subsequent retail by the municipality; or • Electricity • Purchases made pursuant to an approved cooperative purchasing program or those from an approved state program. Contracts are awarded in a manner consistent with the provisions of Town policy statements and state law. 4.02 Conflict of Interest An employee of the Town may not solicit bid quotations from relatives of the employee or relatives of another Town employee on products to be purchased by The Town. 4.03 Public Access to Procurement Information Procurement information shall be a public record to the extent provided by the Texas Open Records Act and the Freedom of Information Act and shall be available to the public as provided therein. If a proposal contains information that the bidder considers proprietary and does not want disclosed to the public or used for any purpose other than the evaluation of the offer, all such information must be clearly marked as proprietary and confidential by making such notation on each page or portion thereof containing propriety and confidential information. The Town reserves the right to duplicate, use or disclose the information as needed to prepare contract documents and working documents for the project and is not liable for accidental disclosure of such information. 4.04 Confidentiality of Bidders Quotations A vendor’s bid/proposal is confidential until opened. Therefore, no bid or proposal shall be opened before the date and time of the published opening of such bid/proposal. Opening bids/proposals prior to the publication date and time is a violation of state law and Town policy. SECTION 5.0: METHODS OF PROCUREMENT 5.01 General The Town has four methods for procuring goods and services each of which is determined by the total estimated cost of the purchase. However, regardless of the cost of the purchase, the objective is to secure the highest quality goods and services at the lowest possible price. No purchase may be split to circumvent the dollar amount requirements. With the exception of Petty Cash and procurement card purchases, the procurement process begins with the preparation and approval of a Purchase Order (see Section 6.0). All purchases except those made through Petty Cash, Procurement Card, or those listed under the exemptions in Section 6.1 must be made through an approved Purchase Order or Contract. Purchase Orders will not be issued “after-the-fact”. 5.02 Petty Cash Purchases - Cost up to $100 All Town departments and employees have access to the use of petty cash funds for individual item purchases with dollar values not in excess of $100. The petty cash fund is to be used for small purchases that the employee can pick up at a local facility if a purchasing card is not accepted or if the employee has not been given a purchase card. Town employees are not to misuse petty cash funds by splitting a purchase into more than one transaction in order not to exceed the $100 limit. A petty cash slip must be completed and signed by the requesting employee and authorized by the employee’s manager. Receipts for each transaction must accompany the petty cash slip. Neither a purchase requisition nor competitive bids are required when using petty cash. 5.03 Credit Card Purchases – Personal Travel Expenses • If the training or seminar was not approved through the budget process, written permission must be obtained from the Department Manager or Town Manager prior to travel. There must be money in the budget to cover the travel unless the Town Manager or designee makes the exception. • Transportation – Attach a copy of the airline ticket showing flight times to the appropriate purchasing card transaction sheet received from the Procurement Card Administrator. If the mileage to drive your personal car is more than the cost of the airline ticket plus ground transportation (i.e. taxi or shuttle service) plus airport parking costs, the employee reimburses the difference. Attach a copy of taxi or shuttle service receipts if applicable to the purchasing card transaction sheet if they take a purchasing card. If you drive your personal car and claim mileage, you cannot charge your gasoline on your purchasing card. If you drive a Town of Trophy Club vehicle or if you receive a car allowance, you can charge your gasoline for out-of-town trips. • Lodging – A copy of the invoice showing all expenses should be attached to the purchasing card transaction sheet received from the Procurement Card Administrator. In-room movies or pay television, phone calls, golf, sporting events, dry cleaning or laundry, and valet parking are not reimbursable expenses. For Texas destinations, you need to present a copy of the Texas Sales and Use Tax Exemption Certification. State taxes should not be paid but city taxes may or may not be exempt depending on local resolutions. • Meals – receipts should be attached to the purchasing card transaction sheet received from the Procurement Card Administrator. You actually need two receipts. One would include the breakdown of items bought. The other would be the receipt that shows the actual amount charged that includes a reasonable tip of not more than 15%. No alcoholic beverages may be charged. The total for the day depends on the time you leave and the time you come back. Generally, you must be traveling by 7:00 a.m. to receive breakfast and stay after 7:00 p.m. to receive the evening meal. The most per day is $30 if you are traveling or at a conference the full day. If there is a partial day of travel, you will need to keep the daily total to $10 per meal. If your conference includes a meal, you should consider the meal to be $10 of your daily amount. • Registration – if you do an on-line registration, be sure to screen print details that show how much the conference costs, dates of the conference, and name of the conference. If you fax the registration information, keep a copy of the same details. Attach the copy to the purchasing card transaction sheet. • Any unauthorized expenses are the responsibility of the cardholder and must be reimbursed to the Town of Trophy Club. • The Town Manager or her designee must approve any exceptions to the above. • The Town Manager may modify the above procedures and polices as determined necessary. 5.04 Procurement Card Purchases The intent of the procurement card is to provide a controlled, but less labor-intensive alternative to the existing procedures for purchasing and paying for items up to the pre- determined credit limits. The Department Managers shall determine employees within each Department who are to be issued a procurement card and the transaction value limit to be assigned to each individual’s card. Cards are issued in the name of the designated Town employee and the Town of Trophy Club. The card remains the property of the Town of Trophy Club. Each potential cardholder will attend a training session and sign a procurement card policy that documents the cardholder’s responsibilities prior to being issued a card. The Procurement Card is to be used to make purchases for operations included in the Town’s approved budget. Violations of these requirements may result in revocation of use privileges and/or disciplinary action, up to and including termination of employment. Employees who have inappropriately used the Procurement Card will be required to reimburse the Town for all costs associated with the improper use. Each employee who has been issued a card will ensure that a receipt that indicates the place, date and nature of the purchase is obtained each time the card is used. The receipts will be attached to the purchasing card transaction sheet, which will be signed, dated, and turned in to each applicable Department Manager who will review each purchase for appropriateness. The Department Manager will sign the purchasing card transaction sheet and forward to the Procurement Card Administrator within the specified time limit of no more than three days. The Procurement Card Administrator will reconcile the individual Department packets with the monthly statement received from the issuing Bank. Should any charges not be supported by receipts, the Procurement Card Administrator will notify the applicable Department Manager who shall obtain a receipt or other proper documentation evidencing the nature and amount of the purchase. If a purchase order is issued, attach the original purchase order with the appropriate signatures to the purchasing card transaction sheet so that Finance can close the purchase order for financial reporting. The Procurement Card Administrator is responsible for compliance with the issuing bank’s Procurement Card guidelines and notifying the Finance Director of any problems. 5.05 Purchases over $3,000 but less than $25,000. If the cost of the item(s) exceed $3,000 but is less than $25,000, departments are required to secure at least three (3) documented quotes on the item(s). In keeping with State Law, at least two (2) of the quotes must be from Historically Underutilized Business (HUBs) located in Denton County. If a purchase falls within the foregoing cost parameters and if a firm classified as a HUB handles that type of product, such HUB must be contacted on a rotating basis, but a department must attempt to contact at least two HUB's on each order. Once all bids have been received and evaluated, the Department Manager or his or her designee will place the purchase to the lowest responsible bidder. In the event that a Department Manager or his or her designee desires to award a bid to a bidder other than the low bidder, such employee provide a detailed explanation in writing specifying why the lowest bidder was not accepted. Such written explanation shall be attached to the bid sheet. 5.06 Competitive Sealed Bids - Cost over $25,000 The Town Council must approve all non-budgeted or unanticipated purchases with values in excess of $25,000 prior to the purchase. Once a resolution has been passed or approval has been granted, the purchase must be made through the use of competitive sealed bids (see Section 7.0) or some other purchasing method as authorized by this policy. Invitations for sealed bids shall include specific instructions to the vendors concerning bid submission requirements including the time, date and place for receipt of bids by the Town. Competitive sealed bids are to be advertised in local newspapers of general circulation under the legal notices section. The bid must be advertised at least 14 days prior to the date of the bid opening. The advertisement is to give adequate instruction as to the nature of the bid, date and time of bid opening, and bidders conference, if applicable. Exceptions to Competitive Sealed Bidding Competitive sealed bidding is not necessary if one of the exceptions in Section 4.0 of these policies is applicable. 5.07 Professional Consulting Services Contracts –RFQ/RFP Process. a. RFQ/RFP Process. Professional consulting services means those within the scope of the practices of accounting, architecture, land surveying, professional engineering, and other areas as defined by the laws of the State of Texas. Such services to the Town are to be provided pursuant to a third party independent contractor agreement for a specified time period. Competitive bidding shall not be used to select the professionals/consultants contracted by the Town. Compensation will be negotiated before the contract is signed and after the consultant has been selected on the basis of his or her demonstrated competence and qualifications to perform the services for a fair and reasonable price. When professional consulting services are needed, the Department requesting the services will prepare a Request for Qualifications setting forth a description of the scope of services needed, the minimum desired qualifications, credentials and experience, and the relative importance of each, and will forward that information to the Town Manager. The RFQ shall be advertised and may also be sent out to qualified vendors whom Town staff recommends. The Town Manager will assemble a team (Selection Team) of appropriate staff that will evaluate the responses submitted by those firms whose qualifications meet the requirements set forth in the Request for Qualifications. Requests for Proposals shall be solicited and processed in accordance with the requirements set forth in Section 5.07(b) hereof. b. RFP Process. A Request for Proposal (RFP) will be sent to each consultant identified by the Selection Team in accordance with the RFQ process set forth in Section 5.07(a) above. However, if the two-step RFQ/RFP Process is not utilized and the single step RFP process is utilized, then the RFP must be advertised and must require that proposals contain information identifying qualifications, credentials, and experience of those vendors submitting a response. The RFP shall also list the services desired and a deadline for return of the RFP. The request shall require the responding professionals/consultants to provide a schedule for completion of the scope of services, where applicable. Copies of the proposal(s) shall be submitted to the Town Secretary who shall process the responses in accordance with Section 7.0 and who will forward to the members of the Selection Team. Interviews shall be scheduled with the highest ranked firms. The Selection Team will ask each finalist to make a presentation of experience and then may question the firms as to capability and methods of approach for furnishing the required services. Professional compensation is not considered in these discussions. The qualified firm(s) shall be ranked from most qualified to least qualified. The Selection Team shall begin negotiations with the most qualified to develop a contract. The Town contract shall include all relevant terms and conditions, including but not limited to, compensation, time required and full scope of work to be performed. If an agreement satisfactory to both the Town and a firm cannot be reached, negotiations will be terminated with that firm and the process started over with the second choice candidate and so on. As soon as an agreement is reached, the Selection Team shall make its recommendation to the Town Council. c. Frequency. The RFQ/RFP process for professional services may be utilized bi- annually. 5.08 Annual Contracts For goods or services that are used repetitively throughout the Town such as office supplies, paper goods, mailing services, or stationery, the Town may enter into an annual contract with a supplier. The purpose of entering into an annual contract is to eliminate the need to obtain competitive pricing each time repetitively used items are requested. The Town will obtain competitive sealed bids requiring that bid prices remain in effect for a specified period. The Town will enter into agreement, upon approval of the Town Council (if the contract price exceeds $25,000), with the approved bidder by signing a contract stating the terms and conditions. Once the contract period nears the end of the term, the Finance Department will re-advertise the bid request for the following year giving fair opportunity for vendors to respond. 5.09 Sole Source Purchases When a department identifies a potential sole source purchase, a detailed justification explaining why a sole source purchase is necessary must be provided to the Finance Director in advance for review and concurrence. 5.10 State Contract Purchasing The Town has the option of purchasing items on contract through the Houston-Galveston Area Council Cooperative Purchasing program and the State of Texas central purchasing agency. Participation in these programs is strictly voluntary and the Town is not obligated to purchase through either. According to Section 271.081 - 271.083 of the Texas Local Government Code, The Town is not required to obtain competitive bids for items that are on state or local government contract. Because the State of Texas central purchasing agency purchases in large quantities through a state cooperative purchasing program, prices are generally lower than retail. One must keep in mind when purchasing items under state contract that there are no alterations or modifications to the specifications that are listed with the cooperative purchasing programs. 5.11 Alternative Project Delivery Methods for Certain Projects. Alternative project delivery methods, include but are not limited to, construction manager at risk, construction manager agent and design build contracts. Any of the alternative project delivery methods specified in Subchapter H of Chapter 271 of the Texas Local Government Code, as amended, may be utilized provided that the purchase and the procedures utilized in making that purchase comply with all requirements specified therein. SECTION 6.0: THE REQUISITION PROCESS 6.01 Procedure for Non-Emergency Purchases When the need for goods/services with an estimated value in excess of $10,000 arises, the user Department shall originate an on-line purchase order. The purchase order must be prepared far enough in advance of the date that the goods or services are needed to allow all procurement procedures to properly function, including: • Securing appropriate approval of the purchase • Advertising for bids, if necessary • Obtaining bids or price quotations • Evaluating bids • Preparing the contract • Allowing delivery of goods or services in a timely manner Each Department is responsible for ensuring that duplicate purchases are not made. Once a purchase order is received, the Department Manager must: • Check the purchase order for completeness, including quantity and concise specifications; • If specified as a sole source, ensure the reason for the sole source is documented and appropriate; • Verify the budget authority. Check budget line item authority and budget balance for sufficient unencumbered amount to cover the purchase. Once the vendor selection process has been completed, the Department Manager will bring the requisition to Finance who will prepare the purchase order. The Department Manager will then secure the appropriate approval of the purchase order or contract. The Town is not liable for making payment to vendors for purchases that have not had prior approval of the Department Manager and have not been issued a purchase order number. The Department needs to attach the approved Purchase Order to the invoice received and forward to Finance for payment. 6.02 Procedure for Emergency Purchases The designation of emergency purchase indicates a situation of such urgency that normal purchasing procedures must be modified in the interest of time, and therefore no competitive bids are required. The Town is allowed to make emergency or exempted purchases without competitive bidding as defined in Texas statutes. All emergency purchases are processed as follows: • The applicable Department Manager will be notified immediately with as much information as possible about the emergency purchase required. • The Department Manager contacts as many vendors as necessary to arrange the emergency purchase. The purchase is completed by telephone by issuing a verbal purchase order number to the vendor and requesting expedited delivery. The purchase order is either mailed or faxed to the vendor at a later date. • Staff making the request may be required to pick-up the emergency purchase from the vendor, if applicable, if expedited delivery from the vendor is not available. • Council approval or ratification must be obtained for all such emergency purchases exceeding $25,000.00. SECTION 7.0: PURCHASING PROCESSES 7.01 Policy Competitive written or telephone bids are to be sought for all purchases over $3,000 (see Section 5.05). All practical means to obtain the best price available should also be used when making emergency purchases. Competitive sealed bids are required for those bids exceeding $25,000 (see Section 5.06). The bid consists of the items offered by the vendor in response to the specifications, along with details governing the offer. The Town bidding procedures contain the following general requirements: • A short summary of the Request For Bid (RFB) or Request for Proposal (RFP) shall be published in local newspapers of general. The advertisement is to be published under the Legal Notices section of the newspaper. This should be coordinated through the City Secretary’s Office. • Bids are received until the date and hour set out in the specifications. The Town Secretary or her designee will mark bids with the date and time at which they are received. Once a bid is submitted, the bidder cannot alter or correct a bid. A vendor who wishes to withdraw a previously submitted bid and/or submit an alternate bid may only do so prior to the bid opening. Under no circumstances will bids be accepted after the specified date and time. • The bids are to be opened at the date and hour specified in the bid and notice documents, and submitted to the requesting department for review. Generally, the lowest and best responsible bid is accepted. Occasionally, a bid may be split between vendors to obtain optimum pricing. If no bid is found to be acceptable, the entire bidding process must be repeated. Sealed bids are opened publicly in the presence of at least three (3) Town employees. The Town Secretary or her designee will coordinate the opening of the bids. • Bids are to be kept confidential from competitors until after the bid has been opened. Once the bid is opened, the bid becomes open record in accordance with the Texas Open Records Act. • Sealed bids must be submitted to the Town of Trophy Club by mail or hand delivered to Town offices. Envelopes must be clearly marked that a sealed bid is enclosed. Faxed or late bids will not be considered for award. They should be addressed to the Town Secretary. • The Town of Trophy Club reserves the right to reject any and all bids submitted and to waive any and all irregularities. It is the consistent policy of the Town to use competitive principles in awarding all public contracts of any amount with only limited exceptions as allowed by law. This includes the purchase and lease of goods, the purchase of services, and construction projects. These competitive principles apply to all departments of the Town of Trophy Club. 7.02 Requests for Bids (RFB) or Requests for Proposals (RFP) RFBs and RFPs are used to notify vendors that the Town has specific requirements for goods and/or services and that vendors are being offered an opportunity to fulfill those requirements. The bid system is to be kept simple and practical, and the bids must be advertised as widely as possible in order for competition to work. Complicated bid invitations or requests for proposals discourage competition and drive up prices. 7.03 Bid Packet A bid packet contains documents needed by the vendor to respond to the requirements of the RFB/RFP. It may include several elements: Request for Bid (RFB) or Request for Proposal (RFP): This is the cover form for the bid/proposal package. It provides specific information that the bidder will need to respond. As applicable, it should include: • Quantity and brief description of goods or services to be provided • Request for unit cost, extended cost, and total cost of items bid • Estimated delivery time if vendor is awarded the bid • Closing date and time for receiving bids or proposals. • Place where bids or proposals are to be sent, including the address and office • Person to contact for additional information • Instructions to bidders (see example in Appendix F) • For RFPs only: Factors to be used in the evaluation process, the weights attached to each factor. Evaluation factors may include price, experience of vendor’s staff, ability to respond in a timely way, past recommendations, safety record in accordance with a duly adopted Town vendor safety record policy, and financial soundness, as well as any others considered necessary. Other evaluation factors will depend on the individual requirements attached with the procurement. Standard Terms and Conditions: All conditions of doing business with the Town will remain constant for all contracts and purchases, unless specifically deleted. They are usually presented as an attachment to the RFP. Special Provisions: Terms and conditions required for a particular contract or purchase. Specification: The description of the purchase requirements. In place of enclosing the actual specification, information about where the specification may be obtained may be substituted. Pricing: The offer and acceptance page. The vendor quotes prices in accordance with the specification requirements. Prices are usually provided by unit and include the total cost for the estimated amount required. A list of attendees and minutes of the bidders conference by the City Secretary or her staff must be kept as part of the procurement file. 7.04Competitive Proposals Competitive proposals can only be used for procurements of high-technology products or services as allowed by law. The specification shall be written using performance standards rather than the description of the good or service. The specification must also specify the relative importance of price and other evaluation factors by identifying the weight to be given to each factor. • Vendors submit a proposal for a system to satisfy the requirements set forth in the proposal. Proposals may incorporate various types of hardware or services to accomplish the performance objectives set forth in the specifications. • After proposals are received, the Town may enter into discussions with offerors who submit proposals and who are determined to be reasonably qualified for the award of the contract based upon proposal specifications. Offerors shall be treated fairly and equally with respect to any opportunity for discussion and revision of proposals. Revisions may be permitted during the discussion process after submissions and before the award of the contract in order to obtain the best final offers. • The contract must be awarded to the responsible offeror whose proposal is determined to be the most advantageous to the Town considering the relative importance of price and the other evaluation factors included in the request for proposal. 7.05 Cancellation of a RFB/RFP RFBs and RFPs may be canceled by the Town at any time before the date set for opening bids. A cancellation notice should be mailed or faxed to all vendors receiving bid or proposal invitations. 7.06 Modification of a RFB/RFP RFBs and RFPs submitted to vendors may also be modified by the Town after being issued but before the final date for submission. When modifications are required, addenda shall be mailed and/or faxed to all vendors receiving bid or proposal packets. The modification notification should state whether the bid opening date is or is not extended. The bid opening date may be extended if notification of the amendment will not give vendors ample time to respond to the modified request. 7.07 Receiving the Bid or Proposal – Procedural Requirements Receiving competitive bids and proposals must be done properly in order to ensure that no possibility of favoritism or even the appearance of favoritism exists. Notice of the time and place at which the bids/proposals will be publicly opened must be published at least once a week for two consecutive weeks. The date of the first publication must be at least fifteen (15) days before the date of public opening. • Each bid or proposal must be returned to the Town Secretary’s Office as designated in the invitation. Each proposal is to be in a separate envelope, sealed and with the bid or proposal identification number marked on the outside of the envelope. If more than one bid is to be submitted, vendors are required to use separate envelopes for each bid. • The bid or proposal envelope must be clearly marked by the offeror with the date upon which it is submitted to the Town and the Town Secretary or her designee shall mark the date and time of receipt of by the Town. • The bid or proposal envelope should then be filed unopened together with the other bids or proposals for the same bid invitation until the time of the bid opening. • Bids or proposals must be received by and opened on the date, hour and location as specified in the invitation/request. Vendors are invited and encouraged to attend the bid opening. Bid openings are considered open meetings and anyone can attend. Three (3) Town representatives (i.e. employee, town official, or professional staff) must be present at all bid openings. • All bids and proposals must be sealed with the identification number clearly marked on the outside of the envelope. One bid or proposal may be submitted per envelope. Opened bids shall be kept on file and available for inspection. 7.08 Disqualified Bids The following are grounds for disqualifying a submitted bid: • Incomplete bids/proposals may be considered non-responsive. Such bids/proposals may be considered for award if the non-responsiveness is due to a non-material omission. (i.e. the omission does not affect price, quality, quantity, delivery or other material contractual conditions). • Unsigned bids/proposals, or bids/proposals with unauthorized signatures. • Bids or proposals received after the date and time for opening. Late bids/proposals are not considered for award of the purchase, will not be opened, and will be returned to the submitting bidder/proposer. • Bids/proposals where prices are conditional on award of another bid, or when prices are subject to unlimited escalation. If allowed by the specification, prices may be subject to escalation based on an independent wholesale index. 7.09 Correction or Withdrawal of a Bid Bids may not be altered or amended after the submission deadline. A non-material omission or error may be waived if: • The omission or error relates to a matter of form, not substance; and • Does not otherwise prejudice the other bidders/offerors. Any alteration or change made to a bid or offer prior to opening must be initialed by the authorized signatory of the bidder guaranteeing authenticity. Mathematical errors may not be corrected. In the event of a conflict between a unit price for an item(s) and the total price for such item(s), the Town reserves the right to resolve the conflict by accepting the lowest price. SECTION 8.0: EVALUATING COMPETITIVE BIDS 8.01 General The Finance Director or his designee will provide tabulations, calculation checks, price extension and information about compliance with specifications to the RFB/RFP. 8.02 Tabulating the Results When bids or proposals are opened, the results are tabulated by the Finance Director or his designee for easy reference. The following information is included in the bid analysis: • All calculations and sums are double checked for accuracy. • Unit prices are extended to a total price for the requested quantity. • The bid or proposal is verified to determine if all requirements listed meet specifications. All areas where the bid/proposals fail to meet conditions included in the specifications and whether any failures disqualify the bid/proposal are listed. Any modifications to the specifications submitted by the vendor are so noted. • All required samples to be included, if applicable, are verified by the Department. • Samples of the desired product, if required, are tested and results of the test noted by the Department. 8.03 Basis for Purchase Decision The evaluation and recommendation includes whether or not the vendor has submitted a responsive bid or proposal (one that meets all criteria of the RFB/RFP). Additionally, information on the vendor’s record of being a responsible bidder (one who has proven capable of performing a contract and/or appears financially and technically capable of adequately performing this contract) is included. If the bidder’s safety record is to be considered, the evaluation states if the bidder has an acceptable record, and if not, the identifiable factors that were not satisfactory as required by the written definition and criteria for accurately determining the safety record of a bidder and the Town has complied with all other requirements of §252.0435 of the Texas Local Government Code, as amended. SECTION 9.0: AWARDING THE BID 9.01 Policy The Town awards bids to the vendor who meets the requirements set forth in the bid documents who offers the lowest cost or the vendor who provides goods or services at the best value for the Town pursuant to the criteria set forth in Section 252.043 of the Texas Local Government Code, as amended. If staff recommends award of a bid to a vendor who is not the lowest responsible bidder, justification for the vendor selection must be documented. In the event that no bid is deemed satisfactory, the Town may declare that all bids are unacceptable. 9.02 Disqualification of a Bidder If a bidder has provided unsatisfactory service or products to the Town in the past, those experiences are to be thoroughly documented in order to support any later disqualifications. A vendor who fails to provide satisfactory products, goods or services or who has breached, terminated or been terminated from a contract with the Town in the past will be removed from the Approved Vendors List for future bidding opportunities and may be disqualified from bidding on future projects. SECTION 10.0: PROTESTING A BID Upon selection of an offeror or bidder, all competitors must be notified in writing of the procurement results and advised of their right to appeal the decision by the Department. A protest must be submitted to Town’s Finance Director within seven (7) calendar days of the date upon which the Town’s written notice of procurement results is made. All such protests will be reviewed by the Town Manager who will issue a written decision regarding the protest. An appeal from the decision of the Town Manager may be made to Town Council and shall be placed on the Council agenda on the first available date for which notice and publication requirements may be met after a written notice of appeal is received by the Town Secretary. SECTION 11.0: PROCUREMENT SPECIFICATIONS A specification is a concise description of goods or services the Town seeks to buy, and the requirements the vendor must meet in order to be considered for the award. A specification may include requirements for testing, inspection or preparing an item for delivery, or preparing or installing it for use. The specification is the total description of the purchase. A good specification has four characteristics: • It sets the minimum acceptability of the good or service. The term minimum acceptability is key, since the vendor must know the minimum standard to determine what to provide. Setting too high a standard means tax dollars will be wasted, while setting too low a standard means the good or service will not meet the expectations of the user. • It should promote competitive bidding. The maximum number of responsible vendors should be able to bid to the specifications. Restrictive specifications decrease competition. • It should contain provisions for reasonable tests and inspections for acceptability of the good or service. The methods and timing of testing and inspecting must be indicated in the specification. Tests should refer to nationally recognized practices and standards, whenever possible. • It should provide for an equitable award to the lowest responsible bidder. The buyer obtains goods or services that will perform to expectations, and the vendor is able to provide the goods or services at an equitable price. SECTION 12.0: MODIFICATION AND TERMINATION OF CONTRACTS 12.01 Policy All modifications or changes to a contract must be in writing. The Finance Director or his or her designee may approve a change order that may increase or decrease a contract by $15,000 or less. The Town Manager or her designee must approve modifications exceeding $15,000. The original contract price is not to be increased by more than 25%. Additionally, funding must be available to cover the cost of the price increase. The original contract price may not be decreased by more than 25% without the consent of the contractor. 12.02 Requirement to Re-bid • In the event that a change order exceeds 25% of the contract price, a new bid must be solicited using the same bidding procedures as noted in Section 6.0. A new bid solicitation is to be issued if the procurement of supplies, equipment or services is materially different from that specified in the previous bid process regardless of the percentage in increase in the contract price. SECTION 12.0: DELIVERY OF GOODS Once goods are delivered to the Town’s offices, receipt of delivery is noted by signature of the receiving department or the receptionist in the Administration Building. If the receptionist receives goods, he/she will notify the department to which the goods belong. The person receiving the goods should make every effort to inspect the goods prior to signing the delivery ticket. If visible damage to a container being delivered is detected, it should be noted on the delivery ticket. Although damage to the contents of the package may not be seen, making this notation on the delivery ticket could make filing a claim easier if in fact the contents are damaged. Sometimes, damage to goods is concealed in packaging and the receiving party has no way of knowing of the damage. SECTION 13.0: DISPOSAL OF SURPLUS PROPERTY Annually, all departments shall review their assets and determine which items are no longer needed. A list of surplus, obsolete or unused supplies, materials or equipment, including description, make, model, and serial numbers should be forwarded to the Town Manager. Upon review and approval by Town Manager or her designee the items on the department’s lists may be transferred to other departments or sold through public auction. A copy of the items sold including amounts, names, and addresses will be provided to the Finance Department so that it can be removed from asset lists and insurance. COUNCIL MEMORANDUM From: The Office of the Town Manager Date: 6-20-2005 Subject: Agenda Item No.F.1 Adjourn. (lr)