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HomeMy WebLinkAboutAgenda Packet CC - 11/03/2014 - Agenda Packet Joe Lockwood, Mayor CITY COUNCIL Karen Thurman Matt Kunz Bill Lusk Burt Hewitt Joe Longoria Rick Mohrig CITY COUNCIL CHAMBERS City Hall, Suite 107D Monday, November 3, 2014 Regular Council Meeting Agenda 6:00 PM INVOCATION - Reverend Calvin Odhner, Morning Star Chapel, Milton, Georgia. CALL TO ORDER 1) ROLL CALL 2) PLEDGE OF ALLEGIANCE (Led by the Sons of the American Revolution) 3) APPROVAL OF MEETING AGENDA (Add or remove items from the agenda) (Agenda Item No. 14-290) 4) PUBLIC COMMENT 5) CONSENT AGENDA MILTON CITY COUNCIL REGULAR COUNCIL MEETING NOVEMBER 3 , 2014 Page 2 of 4 Persons needing special accommodations in order to participate in any City meeting should call 678-242-2500. 1. Approval of the September 22, 2014 Regularly Scheduled Council Meeting Minutes. (Agenda Item No. 14-291) (Sudie Gordon, City Clerk) 2. Approval of the September 29, 2014 Special Called Council Meeting Minutes. (Agenda Item No. 14-292) (Sudie Gordon, City Clerk) 3. Approval of the October 6, 2014 Regularly Scheduled Council Meeting Minutes. (Agenda Item No. 14-293) (Sudie Gordon, City Clerk) 4. Approval of a Construction Services Agreement between the City of Milton and TriScapes, Inc. for the “Thompson Road/Cedar Creek Stormwater Improvement Project.” (Agenda Item No. 14-294) (Carter Lucas, Assistant City Manager) 5. Approval of a Construction Services Agreement between the City of Milton and Gulf Coast Sports, LLC, for the Construction of Two Covered Dugouts at Hopewell Middle School. (Agenda Item No. 14-295) (Jim Cregge, Parks & Recreation Director) 6. Approval of a Contract Renewal between the City of Milton and AT&T for Broadband Services. (Agenda Item No. 14-296) (David Frizzell, IT Manager) 6) REPORTS AND PRESENTATIONS 1. Proclamation Recognizing Pancreatic Cancer Awareness Month. (Mayor Joe Lockwood) 2. Proclamation Recognizing Veterans Day 2014. (Presented by Councilmember Bill Lusk) 7) FIRST PRESENTATION 1. RZ14-14 - Consideration of an Ordinance to Amend Section 64-1596 Event; Special Indoor/Outdoor, of the City of Milton, Georgia Code of Ordinances to Include Provisions of Chapter 34, Article III, Division 2, to Streamline the Existing Regulation of Special Events; and to Limit Sales from Vehicles at Special Events; to Provide for the Repeal of Conflicting Ordinances; to Provide an Effective Date; and for Other Lawful Purposes. (Agenda Item No. 14-297) (Jason Wright, Director of Innovation and Engagement) MILTON CITY COUNCIL REGULAR COUNCIL MEETING NOVEMBER 3 , 2014 Page 3 of 4 Persons needing special accommodations in order to participate in any City meeting should call 678-242-2500. 2. Consideration of an Ordinance to Amend Chapter 46, Solid Waste, Article II, Littering, Section 46-24, to Require Construction Site Operators to Properly Dispose of Building Materials and Waste at a Construction Site that may Cause Adverse Impacts to Water Quality. (Agenda Item No. 14-298) (Carter Lucas, Assistant City Manager) 8) PUBLIC HEARING (None) 9) ZONING AGENDA (None) 9) UNFINISHED BUSINESS 1. Consideration of a Resolution Authorizing the Offering for Sale of Transferable Development Rights in Certain City-Owned Property; Authorizing the Imposition of a Conservation Easement and/or Public Access Easement on Said City Property; and for Other Purposes. (Agenda Item No. 14-281) (Deferred at October 6, 2014 Council Meeting to October 20, 2014 Regular City Council Meeting) (Deferred at October 20, 2014 Council Meeting to November 3, 2014 Regular City Council Meeting) (Kathleen Field, Community Development Director) 11) NEW BUSINESS 1. Consideration of a Resolution Amending Milton Grows Green Bylaws. (Agenda Item No. 14-299) (Chris Lagerbloom, City Manager) 2. Consideration of a Professional Services Agreement between the City of Milton and VC3, Inc. for Cloud-based IT Services. (Agenda Item No. 14-300) (David Frizzell, IT Manager) 3. Consideration of a Sole Source Professional Services Agreement between the City of Milton, GA and Laurel A. Florio for Land Conservation Consulting Services. (Agenda Item No. 14-301) (Chris Lagerbloom, City Manager) 12) MAYOR AND COUNCIL REPORTS 13) STAFF REPORTS MILTON CITY COUNCIL REGULAR COUNCIL MEETING NOVEMBER 3 , 2014 Page 4 of 4 Persons needing special accommodations in order to participate in any City meeting should call 678-242-2500. 14) EXECUTIVE SESSION (if needed) 15) ADJOURNMENT (Agenda Item No. 14-302) The minutes were provided electronically HOME OF'THF 8E . kATT r FSTAI{I IS] IFD MOO CITY COUNCIL AGENDA ITEM TO: City Council DATE: October 23, 2014 FROM: City Manager AGENDA ITEM: Approval of a Construction Services Agreement between the City of Milton and TriScapes, Inc. for the "Thompson RoadlCedar Creek Stormwater Improvement Project." MEETING DATE: Monday, November 3, 2014 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: x APPROVED O NOT APPROVED CITY ATTORNEY APPROVAL REQUIRED. } YES O NO CITY ATTORNEY REVIEW REQUIRED: 9 YES () NO APPROVAL BY CITY ATTORNEY KAPPROVED () NOT APPROVED PLACED ON AGENDA FOR.- REMARKS OR:REMARKS 110YOUEM 0� *** PHONE: 678.242.2500 FAX: 678.242.2499 Green ` .v : q""ifw. * 1nfo@c1tyofmiHonga.us i www.cityofmiifonga.us ��!� Communllty 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004 To: Honorable Mayor and City Council Members From: James Seeba, Stormwater Engineer, Public Works Department Date: Submitted on October 17, 2014 for the November 3, 2014 Regular Council Meeting Agenda Item: Approval of a Construction Services Agreement between the City of Milton and TriScapes, Inc. for the “Thompson Road/Cedar Creek Stormwater Improvement Project”. ____________________________________________________________________________ Department Recommendation: Approval. Executive Summary: This project generally consists of the installation of a new storm drain pipe, headwall, junction box, shoulder and slope repairs and associated erosion and sediment control. The existing storm cross-drain pipe has become deteriorated and clogged causing flooding and erosion of the road shoulder and slope at this location. Failure to perform these repairs at this time would result in flooding, slope and road failure and hazardous driving conditions. In accordance with the city procurement procedures, three written bids were solicited to secure a qualified contractor to complete this project. TriScapes, Inc. was determined to be the lowest reliable bidder. Staff is recommending approval of a Construction Services Agreement with TriScapes, Inc. in the amount of $18,925.00. Table 1. Bid Summary Firm Bid Tri Scapes, Inc. $18,925.00 Blount Construction, Inc. $30,565.00 Industrial Facilities Solutions, Inc. $31,914.00 Page 2 of 2 Funding and Fiscal Impact: Funding for this project is available in the Public Works Stormwater Maintenance budget in the Public Works Department. Alternatives: There are no alternatives to this project. Legal Review: Jarrard & Davis, LLP – Paul Higbee, 10/7/2014 Concurrent Review: Chris Lagerbloom, City Manager Attachment(s): Construction Services Agreement ^OMF OF' MILTO�' ESTABLISI IED 237 CONSTRUCTION SERVICES AGREEMENT FOR THOMPSON ROAD/CEDAR PARK STORMWATER IMPROVEMENT PROJECT This Agreemynt (the "Agreement") to provide sidewalk improvements is made and entered into this. day of L/1,, 2014, by and between the CITY OF MILTON, a municipal corporation of the State of Georgia, acting by and through its governing authority, the Milton City Council (hereinafter referred to as the "City"), Tri Scapes, INC. (hereinafter referred to as the "Contractor") having its principal place of business at 380 Mullinax Road, Alpharetta, Georgia 30004. WITNESSETH: WHEREAS, the City issued an Invitation to Bid for the Thompson Road/Cedar Park Stormwater Improvement Project; and WHEREAS, based upon Contractor's bid to complete these drainage improvement, as required by the bid documents, the City has selected Contractor as the winning bidder, and WHEREAS, Contractor has agreed to perform such work as set forth in this Agreement, according to the terms and conditions provided in this Agreement; and WHEREAS, Contractor has familiarized itself with the nature and extent of the Contract Documents, the Project, and the Work, with all local conditions and federal, state and local laws, ordinances, rules and regulations in any manner that may affect cost, progress or performance of work, and Contractor is aware that he must be licensed to do business in the State of Georgia. NOW THEREFORE, the City and Contractor, in consideration of the mutual promises contained herein and other good and valuable consideration, the sufficiency of which is hereby acknowledged, agree as follows: Section 1 Contract Documents The following documents are incorporated herein by reference and constitute the Contract Documents: A. This Agreement (18 Pages); B. Invitation to Bid ITB (4 Pages), attached hereto as Exhibit "A"; C. Bid from Contractor dated October 2, 2014 (1 Page), attached hereto as Exhibit "B"; D. Performance and Other Bonds, attached hereto collectively as Exhibit "C"; E. Non -collusion Affidavit of Prime Proposer, attached hereto as Exhibit "D", F. Contractor Affidavit and Agreement, attached hereto as Exhibit "E"; G. Subcontractor Affidavit, attached hereto as Exhibit "F"; H. Plans and specifications, attached hereto collectively as Exhibit "G", I. Final Affidavit, attached hereto as Exhibit "H", The following which may be delivered or issued after the Effective Date of the Agreement and are not attached hereto: All Written Amendments and other documents amending, modifying, or supplementing the Contract Documents if properly adopted in writing and executed by the Parties; and K. City of Milton Code of Ethics. In the event of any discrepancy among the Contract Documents, that provision that inures most to the benefit of the City, as determined by the City in its sole discretion, shall govern. Section 2 Project Description The scope of this project generally consists of the installation of a new storm drain pipe, drainage structures, filling and abandonment of an existing storm line and other associated work in accordance with the plans prepared by Engineering303, Inc. dated September 16, 2014. Section 3 The Work The Work is specified and indicated in the Contract Documents (the "Work"). In the event of any discrepancy among the Contract Documents, the provision operating most to the benefit of the City, as determined by the City in its sole discretion, shall govern. The Work previously described includes all material, labor, insurance, tools, equipment, and any other miscellaneous items necessary to complete the Work as described. Contractor shall complete the Work in strict accordance with the Contract Documents. Section 4 Contract Time This Contract shall take effect on . Contractor agrees to complete the Project within 30 calendar days from the date of Notice to Proceed. Every effort will be made by Contractor to shorten this period. K Section 5 Contractor's Compensation; Time and Method of Pay►nent A. The total amount paid under this Agreement shall not, in any case. exceed 18.925.00 except as outlined in Section 6 below. City agrees to pay the Contractor for the work upon certification by the City that the Work was actually performed and costs actually incurred in accordance with the Agreement. This amount shall include all use. lease, or other taxes, and all expenses for personnel and equipment (including fuel) that Contractor will incur to provide the Work. Unless otherwise agreed in writing signed by both Parties, the compensation payable by the City to Contractor is limited to the price amotmt set forth in the Proposal Submittal Form, and City will not pay any other- sum attributable to taxes. costs or expenses that Contractor may incur in providing the Work. B. Compensation for Work performed shall be paid to the Contractor upon receipt and approval by the City of invoices setting forth in detail the Work performed. 111VO1ceS shall be submitted on a monthly basis, and such invoices shall reflect charges incurred versus charges budgeted. Each invoice shall be accompanied by an Interim Waiver and Release upon Payment (or a Waiver and Release upon Final Payment in the case of the invoice for final payment) procured by the Contractor from all subcontractors in accordance with O.C.G.A. § 44-14-366. C. As long as the gross value of the completed work is less than 50% of the total Contract amount and/or when satisfactory progress has not been achieved by the Contractor during any period for which payment is to be made, the City may retain a percentage of said payment, not to exceed ten percent (10%) of the maximum Contract Price to ensure performance of the Agreement. Said cause and progress shall be determined by the City. in its sole discretion. based on its assessment ofany past performance of the Contractor and likelihood that such performance will continue. Upon completion of all contract requirements. retained amounts shall be paid promptly less anyoffsets or deductions authorized hereunder or by law. U. Any material deviations in tests or inspections performed. times or locations required to complete such tests or inspections and like deviations from the Work described in this Agreement shall be clearly communicated to the Citv before charges are incurred and shall be handled through change orders or construction change directives as described in Section 6 below. All invoices should be submitted to Rick Pearce (Budget and Procurement Coordinator). for approval. The City shall pay the Contractor within thirty (30) days after approval of the invoice by the City. No payments will be made for unauthorized work. Payment will be sent to the designated address by U.S. Mail only, payment will not be hand -delivered. E. The City may withhold payment or final payment for reasons including, but not limited to. the following: unsatisfactory job performance or progress, defective work, disputed work, tailure to comply with material provisions of the Agreement. third party claims filed or reasonable evidence that a claim will be filed or other reasonable cause. Section G Work Changes A. The City reserves the riglit to order changes in the Work to be performed under this Agreement by altering, adding to, or deducting from the Work. All such changes shall be incorporated in written change orders executed by the Contractor and the City. Such chance orders shall specify the changes ordered and any necessary adjustment of compensation and cornpletion time. If the Parties cannot reach an a-reement on the terms for performing the changed work within a reasonable time to avoid delay or other unfavorable impacts as determined by the City in its sole discretion. the City shall have the right to determine reasonable terms and the Contractor shall proceed with the changed work. B. Any work added to the scope of this Agreement by a change order shall be executed under all the applicable conditions of this Agreement. No claim for additional compensation or extension of time shall be recognized. unless contained in a written change order duly executed on behalf ofthe City and the Contractor. C. The City Manager has authority to execute without further action of the Milton City Council, any number ofchane orders so long as their total effect does not materially alter the terms of this Agreement or materially increase the total amount to be paid under this Agreement. Any such change orders materially altering the terms of this Agreement or increasing the total amount to be paid tinder this Agreement in excess of $0,000, must be approved by resolution of the Milton City Council. Section 7 Covenants of Contractor. A. Ethics Code Contractor agrees that it shall not engage in any activity or conduct that would be in violation of the City of Milton Code of Ethics. i3. Time is of the Essence Contractor specifically acknowledges that TIME IS OF Tl IE ESSENCE. for completion of the Pr•oiect. C. Expertise of Contractor Contractor accepts the relationship of trust and confidence established between it and the City, reco-nizing that the City's intention and purpose in entering into this 4 :Agreement is to engage an entity with the requisite capacity. experience, and professional skill and judgment to provide the services in pursuit of the timely and competent completion of the Work undertaken by Contractor under this Agreement. D. Budgetary Limitations Contractor agrees and acknowledges that budgetary limitations are not a justification for breach of sound principals of Contractor's profession and industry. Contractor shall take no calculated risk in the performance of the Work. Specifically, Contractor agrees that, in the event it cannot perform the Work within the budgetary limitations established without disregarding sound principals of Contractor's profession and industry. Contractor will give written notice immediately to the City. f. City's Reliance on the Work The Contractor acknowledges and agrees that the City does not undertake to approve or pass upon matters of expertise of the Contractor and that: therefore, the City bears no responsibility for Contractor's services performed under this Agreement. The Contractor acknowledges and agrees that the acceptance of Work by the City is limited to the function of determining whether there has been compliance with what is required to be produced under this Agreement. The City will not, and need not, inquire into adequacy. fitness.. suitability or correctness of Contractor's performance. Contractor further agrees that no approval of'designs. plans, specifications. or work by any person, body or agency shall relieve Contractor of the responsibility for adequacy. fitness, suitability, and correctness of Contractor's professional and industry standards or for performing services under this Agreement in accordance with sound and accepted professional and industry principals. Contractor's Reliance of Submissions by the City Contractor must have timely information and input lrom the City in order to perform the services required under this Agreement. Contractor is entitled to rely upon information provided by the City. but Contractor shall be required to provide immediate written notice to the City if Contractor knows or reasonably should know that any information provided by the City is erroneous. inconsistent. or otherwise problematic. C;. Contractor's Representative Ryan Hogan shall be authorized to act on Contractor's behalf with respect to the Work as Contractor's designated representative. H. Assignment ofAgreement The Contractor covenants and agrees not to assign or transfer any interest in, nor delegate any duties of this Agre of the City. ement, without the prior express written consent Responsibility of Contractor and Indemnification of C'itti The Contractor covenants and agrees to take and assume all responsibility for the services rendered in connection with this Agreement. The Contractor shall bear all losses and damages directly or indirectly resulting to it on account of the performance or character of the services rendered pursuant to this Agreement. Contractor shall defend. indemnify and hold harmless the City, its officers. boards. commissions. elected and appointed officials, employees and agents from and against any and all claims, suits. actions. liability, judgments. damages. losses. and expenses, including but not limited to. attorney's fees. which may be the result of willful. negligent or tortuous conduct arising out of the Work. performance ofcontracted services. or operations by the Contractor, any subcontractor, anyone directly or indirectly employed by the Contractor or subcontractor or anyone for whose acts the Contractor or subcontractor may be liable. regardless of whether or not the negligent act is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge. or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this provision. In any and all claims against the City or any of its agents or employees. by any employee of the Contractor. any subcontractor, anyone directly or indirectly employed by the Contractor or subcontractor• or anyone for whose acts the Contractor or subcontractor may be liable. the indemnification obligation set forth in this provision shall not be limited in any, way by any limitation on the amount or type of damages. compensation or benefits payable by or for the Contractor or any subcontractor under workers' or ryorkmen's compensation acts. disability benefit acts or other employee benefit acts. -['his obligation to indemnify and defend the City, its members, officers, agents, employees and volunteers shall survive termination ofthis Agreement. Contractor shall not be required to indemnify the City or its officers. boards. commissions. elected or appointed officials. employees or agents against liability or claims for damages, losses, or expenses. including attorney fees. arising out of bodily injury to persons, death, or damage to property caused by or resulting fi•orrt the sole negligence of the City or its officers. boards. commissions, elected or appointed officials, employees or agents. 6 Independent Contractor Contractor hereby covenants and declares that it is engaged in an independent business and agrees to perform the services as an independent contractor and not as the agent or employee of the City. The Contractor agrees to be solely responsible for its own matters relating to the time and place the services are performed:. the instrumentalities. tools. supplies and/or materials necessary to complete the ser -vices: hiring of Contractors. agents or employees to complete the services: and the payment of employees. including compliance with Social Security. withholding and all other regulations governing such matters. The Contractor agrees to be solely responsible for its own acts and those of its Subordinates. employees. and subcontractors during the life ofthis Agreement. Any provisions of this Agreement that may appear to give the City the right to direct Contractor as to the details of the services to be performed by Contractor or to exercise a measure of control over such services will be deemed to mean that Contractor shall follow the directions ofthe City with regard to the results of such services only. The Contractor shall obtain and maintain. at the Contractor's expense, all permits. licenses, or approvals that may be necessar� for the performance of the services. The Contractor shall furnish copies of all such permits. licenses. or approvals to the City of :Vinton Representative within ten (10) days after issuance. Inasmuch as the City of Milton and the Contractor are contractors independent of one another neither has the authority to bind the other to any third person or otherwise to act in any way as the representative of the other. unless otherwise expressly agreed to in writing signed by both parties hereto. The Contractor agrees not to represent itself as the City•s agent for any purpose to any party or to allow any employee ofthe Contractor to do so, unless specifically authorized• in advance and in writing, to do so, and then only for the limited purpose stated in such authorization. The Contractor shall assume full liability for any contracts or agreements the Contract enters into on behalf ofthe City of Tilton without the express knowledge and prior written consent ofthe City. K. Insurance (I) Requirements: The Contractor shall halve and maintain in full force and effect fir the duration of this Agreement, insurance insuring against claims for injuries to persons or damages to property which may arise frons or in connection with the performance of tale Work by the Contractor. its agents. representatives, employees or subcontractors. All policies shall be subject to approval by the City Attorney to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. (=') Minimum Limits of Insurance: Contractor shall maintain limits no less than: (a) Comprehensive General Liability of$1.000.000 combined single limit per occurrence for bodily and personal iniury. sickness, disease or death, ill ILII-)' to or destruction of property, including loss Of use resulting there from. (b) Comprehensive Automobile Liability (owned. non -owned. hired) of $1.000.000 combined single limit per occurrence for bodily and personal injury, sickness. disease or death. injury to or destruction of property. including loss of use resulting there from. (c) Professional Liability of $1.000.000 limit for claims arising out of professional services caused by the Contractor's errors. omissions. or negligent acts. (d) Workers' Compensation limits as required by the State of Georgia and employers Liability limits of$1.000,000 per accident. (3) Deductibles and Self -Insured Retentions: Any deductibles or self-insured retentions mast be declared to and approved by the City. (4) Other Insurance Provisions: The policy is to contain, or be endorsed to contain. the following provisions: (a) General Liability and Automobile Liability Coverage. (i) The City. its officials. employees. agents and volunteers are to be covered as insured as respects: liability arising out of activities performed by or on behalf of the Contractor: products and completed operations of the Contractor: premises owned, leased, or used by the Contractor: automobiles owned. leased. hired. or borrowed by the Contractor. The coverage shall contain no special limitations Oil the scope of protection afforded to the City. its officials. employecs. agents or volunteers. (ii) The Contractor's insurance coverage shall be primary noncontributing insurance as respects to any other insurance or self-insurance availahle to the City. its officials. employees. agcnts or volunteers. Any insurance or Self-insurance maintained by the City. its officials, employees or volunteers shall be excess of the Contractor's instrance and shall not contribute with it. ON) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officials, employees, agents or volunteers. (iv) Coverage shall state that the Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. (v) Coverage shall be provided on a '`pay on behalf' basis, with defense costs payable in addition to policy limits. There shall be no cross liability C\clUsiOn. (vi) The insurer agrees to waive all rights of subrogation against the City, its officials. employees, agents and volunteers for losses arising from work performed by the Contractor for the City. (vii) All endorsements to policies shall be executed bN an authorized representative ofthe insurer. y (b) Workers' Compensation Coverage: The ins>_u•er will agree to waive all rights ofsubrogation against the City. its officials. ernployees. agents and yohutteers for losses arising from work performed by the Contractor for the City. (c) All Coverages: (i) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended. voided. canceled. reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail. return receipt requested. has been given to the City. (ii) Policies shall have concurrent starting and ending dates. (iii) Policies shall include an endorsement incorporating the Indernnitication obligations assumed by the Contractor tinder the terms of this Agreement. including but not limited to Section 7(1) of this Agreement. (5) Acceptability of Insurers: Insurance is to be placed with insurers with an A.M. Bests' rating of no less than A: VII. (6) Verification of Coverage: Contractor shall furnish the City with certificates of insurance and endorsements to the policies evidencin-0 coverage required by this clause prior to the start of work. The certificates Of insurance and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificate ol'insurance and endorsements shall be on a form utilized by Contractor's insurer in its normal course of business and shall be received and approved by the City prior to execution of this Agreement by the City. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. The Contractor shall provide proofthat any expiring coverage has been renewed or replaced at least two (2) weeks prior to the expiration of the coverage. (7) Subcontractors: Contractor shall include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all ofthe requirements stated in this Agreement, including but not limited to naming the parties as additional insured. (S) Claims -Made Policies: Contractor shall extend any claims -made insurance policy for at least six (6) years after termination or final payment under the Agreement, whichever is later. (9) Cite as Additional Insured and Loss Payee: The City shall be named as an additional insured and loss payee on all policies required by this Agreement. Employment of Unauthorized Aliens Prohibited E-Verifti Affidavits It is the policy of the City of Milton that unauthorized aliens shall not be employed to perform work on City contracts involving the physical performance of services. Therefore, the City shall not enter into a contract fir the physical performance of services within the State of Georgia unless: t l) the Contractor shall pro„ide evidence on City -provided forms. attached hereto as Exhibits 17 and "F” (affidavits regarding compliance with the E -Verily program to be sworn under oath under criminal penalty of false swearing pursuant to 0.0-6.A. § 16-10-71). that it and Contractor's subcontractors have conducted a verification. under the federal Employment Eligibility Verification ("EEV" or "C -Verify") program, of the social security numbers, or other identifying information noA or hereafter accepted by the F, -Verify program, of all employees who will perform work on the City contract to ensure that no unauthorized aliens will be employed. or 10 (2) the Contractor provides evidence that it is not required to provide an affidavit because it is licensed pursuant to Title 26 or Title 43 or by the State Bar of Georgia and is in good standing as of the date when the contract for services is to be rendered. The Contractor hereby verifies that it has. prior to executing this Agreement. executed a notarized affidavit. the form of which is provided in Exhibit •'E". and submitted such affidavit to City or provided the City with evidence that it is not required to provide such an affidavit because it is licensed and in good standing as noted in subsection (2) above. Further. Contractor hereby agrees to comply with the requirements of the federal Immigration Reform and Control Act of 1986 (IRCA). P.L. 99-603. O.C.G.A. § 13-10-91 and Rule 300-10-1-.02. In the event the Contractor employs or contracts with any subcontractor(s) in connection vvith the covered contract. the Contractoragrees to secure from such subcontractor(s) attestation of the subcontractor's compliance with O.C.G.A. § 13-10-91 and Rule 300-10-1-.02 by the subcontractor's execution of the subcontractor affidavit. the form of which is attached hereto as Exhibit "F'". which subcontractor affidavit shall become part of the contractor/subcontractor agreement. or evidence that the subcontractor is not required to provide such an affidavit because it is licensed and in good standing as noted in subsection (2) above. If a subcontractor affidavit is obtained. Contractor agrees to provide a completed copy to the City within five business days of receipt fi•om any subcontractor. Where Contractor is required to provide an affidavit pursuant to O.C.G.A. § 13- 10-91, the City Manager or his/her designee shall be authorized to conduct an inspection of the Contractor's and Contractor's subcontractors' verification process at any time to determine that the verification was correct and complete. The Contractor and Contractor's subcontractors shall retain all documents and records of their respective verification process for a period of three (3) years fbllou ing completion of the contract. Further. where Contractor is required to provide an affidavit pursuant to O.C.G.A. § 13-10-91. the City Manager or his,/her designee shall further be authorized to conduct periodic inspections to ensure that no City Contractor or Contractor's subcontractors employ unauthorized aliens on City contracts. By entering into a contract with the City. the Contractor and Contractor's subcontractors agree to cooperate with any such investigation by making their records and personnel available upon reasonable notice for inspection and questioning. Where a Contractor or Contractor's subcontractors are found to have employed an unauthorized alien. the City Manager or his/her designee may report same to the Department of Homeland Security. The Contractor's failure to cooperate with the investigation may be sanctioned by termination of the contract. and the Contractor shall be liable for all damages and delays occasioned by the City thereby. Contractor agrees that the employee -number category designated below is applicable to the Contractor. f Information only required if' a contractor affidavit is required pursuant to O.C.G.A. �, 13-10-91.1 500 or more employees. 100 or more employees. X Fewer than 100 employees. Contractor hereby agrees that. in the event Contractor employs or contracts with any subcontractor(s) in connection with this Agreement and where the subcontractor is required to provide an affidavit pursuant to O.C.G.A. § 13-10-91, the Contractor will secure from the subcontractor(s) such subcontractor(s') indication of the above employee -number category that is applicable to the subcontractor. The alcove requirements shall be in addition to the requirements of State and federal law. and shall be construed to be in conformity with those laws. ,M. Records. Reports and Audits ( I ) Records: (a) Records shall be established and maintained by the Contractor in accordance with requirements prescribed by the City, with respect to all matters covered by this Agreement. Except as otherwise authorized, such records shall be maintained for a period of threc years fi-om the date that final payment is made under this Agreement. Furthermore. records that are the subject of audit findings shall be retained for three years or until such audit findings have been resolved, whichever is later. ("b) All costs shall be supported by properly executed payrolls. time records, invoices. contracts. or vouchers. or other official documentation evidencing in proper detail the nature and propriety of the charges_ All cltecks. payrolls, invoices. contracts, vouchers. orders or other accounting documents pertaining in whole or in part to this Agreement shall be clearly identified and readily accessible. (2) Reports and Information: Upon request, the Contractor shall furnish to the City any and all statements, records, reports. data and information related to matters covered by this Agreement in the form requested by the City. 12 (3) Audits and Inspections: At any time during normal business hours and as often as the City may deem necessary, there shall be made available to the City for examination all records with respect to all matters covered by this Agreement. The Contractor will permit the City to audit, examine, and make excerpts or transcripts from such records, and to audit all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and or data relating to all matters covered by this Agreement. N. Conflicts of Interest Contractor agrees that it shall not engage in any activity or conduct that would result in a violation of the City of Milton Code of Ethics. O. Confidentiality Contractor acknowledges that it may receive confidential information of the City and that it will protect the confidentiality of any such confidential information and will require any of its subcontractors, consultants, and/or staff to likewise protect such confidential information. The Contractor agrees that confidential information it receives or such reports, information, opinions or conclusions that Contractor creates under this Agreement shall not be made available to, or discussed with, any individual or organization, including the news media, without prior written approval of the City. The Contractor shall exercise reasonable precautions to prevent the unauthorized disclosure and use of City information whether specifically deemed confidential or not. P. Licenses, Certifications and Permits The Contractor covenants and declares that it has obtained all diplomas, certificates, licenses, permits or the like required of the Contractor by any and all national, state, regional, county, local boards, agencies, commissions, committees or other regulatory bodies in order to perform the services contracted for under this Agreement. All work performed by Contractor under this Agreement shall be in accordance with applicable legal requirements and shall meet the standard of quality ordinarily expected of competent professionals. Q. Key Personnel All of the individuals identified in Exhibit "J" [NEED TO ADD IF USED] are necessary for the successful prosecution of the Work due to their unique expertise and depth and breadth of experience. There shall be no change in Contractor's Project Manager or members of the project team, as listed in Exhibit "J", without written approval of the City. Contractor recognizes that the composition of this_ team was instrumental in the City's decision to award the Work to Contractor and that compelling reasons for substituting these individuals must be demonstrated for the City's consent to be granted. Any substitutes shall be persons of 13 comparable or superior expertise and experience. Failure to comply with the provisions of this section shall constitute a material breach of Contractor's obligations under this Agreement and shall be grounds for termination. Contractor shall not subcontract with any third party for the performance of any portion of the Work without the prior written consent of the City. Contractor shall be solely responsible for any such subcontractors in terms of performance and compensation. R. Authority to Contract The Contractor covenants and declares that it has obtained all necessary approvals of its board of directors. stockholders, general partners, limited partners or similar authorities to simultaneously execute and bind Contractor to the terms of this Agreement, if applicable. S. Ownership of Work All reports, designs. draxvings. plans, specifications, schedules, work product and other materials prepared or in the process of being prepared for the services to be performed by the Contractor ("materials") shall be the property of the City and the City shall be entitled to full access and copies of all such materials. ,Any such materials remaining in the hands of the Contractor or subcontractor upon completion or termination of the work shall be delivered immediately to the City. The Contractor- assumes all risk of loss, damage or destruction of or• to such materials. If any materials are lost. damaged or destroyed before final delivery to the City. the Contractor shall replace them at its own expense. Any and all copyrightable subject matter in all materials is hereby assigned to the City and the Contractor agrees to execute any additional documents that may be necessary to evidence such assignment. T. Mectin2s The Contractor is required to meet with the City's personnel, or designated representatives, to resolve technical or contractual problems that may occur during the term of the contract. at no additional cost to the City. Meetings will occur as problems arise and will be coordinated by the City, '}'he Contractor will be given a minimum of three full k\nrkino days notice of mcetin;t date. time. and location. Face-to-face meetings are desired. flowever. at the Contractor's option and expense. a conference call meeting may be substituted. Consistent failure to participate in problem resolution meetings. two consecutive missed or rescheduled meetings. or to make a good faith effort to resolve problems. may result in termination of the contract. 14 Section 8 Covenants of the City A. Right of Entry The City shall provide for right of entry for Contractor and all necessary equipment along the right-of-way, in order for Contractor to complete the Work. B. City'sRepresentative Jim Seeba shall be authorized to act on the City's behalf with respect to the Work as the City's designated representative Section 9 Warranty Except as may be otherwise specified or agreed, the Contractor shall repair all defects in materials, equipment, or workmanship appearing within one year from the date of Final Completion of the Project at no additional cost to the City. An inspection shall be conducted by the City or its representative(s) near the completion of the one-year general warranty period to identify any issues that must be resolved by the Contractor. Section 10 Termination A. The City may terminate this Agreement for convenience at any time upon written notice to Contractor. In the event of a termination for convenience, Contractor shall take immediate steps to terminate work as quickly and effectively as possible and shall terminate all commitments to third -parties unless otherwise instructed by the City. Provided that no damages are due to the City for Contractor's failure to perform in accordance with this Agreement, the City shall pay Contractor for work performed to date in accordance with Section 5 herein. The City shall have no further liability to Contractor for such termination. B. The City may terminate this Agreement for cause if Contractor breaches any material provision of this Agreement. The City shall give Contractor seven (7) days written notice of its intent to terminate the Agreement and the reasons therefore, and, if Contractor, or its Surety, fails to cure the default within that period, the termination shall take place without further notice. The City shall then make alternative arrangements for completion of the Project and deduct the cost of completion from the unpaid Contract Price. The City will make no payment to the Contractor or its Surety until all costs of completing the Project are paid. If the unpaid balance of the amount due the Contractor, according to this agreement, exceeds the cost of finishing the Project, the Contractor or its Surety will receive the applicable funds due. If the costs of completing the Project exceed the unpaid balance, the Contractor or its Surety will pay the difference to the City. 15 C. If the City terminates this Agreement for cause. and it is later determined that the City did not have grounds to do so, the termination will be treated as a termination liar convenience under the terms of this Section (A) above. U. Upon termination, the Contractor shall: ( I ) promptly discontinue all services affected. unless the notice directs otherwise: and (2) promptly deliver to the City all data. drawings. reports. summaries. and such other information and materials as may have been generated or used by the Contractor in performing this Agreement. whether completed or in process. in the form specified by the City. E. The rights and remedies of the City and the Contractor provided in this Section are in addition to any other rights and remedies provided under this Agreement or at law or in equity. Section 11 Miscellaneous A. Complete Agreement. This Agreement contains all of the understandings and agreements of whatsoever kind and nature existing between the parties hereto with respect to the subject matter contained herein. 13. Governin- Law. This Agreement shall be governed by and construed under the laws of the State of Georgia. C. COUnterUarts. This Agreement may be executed in any number of counterparts. each of which shall be deemed to be an ori,,inal. but all of which together shall constitute one and the same instrument. U. invalidity of Provisions. Should any part of this Agreement for anti reason be declared by any court ofcompetent jurisdiction to be invalid. such decision shall not affect the validity of any remaining portion. which remaining portion shall continue in full force and effect as if this Agreement had been executed with the invalid portion hereofeliminated. it being the intention ofthe parties that they would have executed the remaining portion of this Agreement without including any such part. parts or portions which may for any reason be hereafter declared invalid. E. Notice. All notices requests, demands and other communications hereunder shall be in writing and shall be deemed received, and shall be effective when personally delivered or on the third clay atter the postmark date when mailed by certified mail, postage prepaid. return receipt requested o' upon actual delivery when sent via national overnight commercial carrier to the parties at the addresses given below. unless a substitute address shall first be furnished to the other parties by written notice in accordance herewith: 16 NOTICE TO CITY shall be sent to: City of Milton Attn: City Manager 13000 Deerfield Parkway. Suite 1071= Milton. Georgia 30004 NOTICE TO CONTRACTOR shall be sent to: Mr. Quinn Martin. Tri Scapes, Inc., 1595 Peachtree Park«ay. Suite 204-396, Cumming. Georgia, 30041. Sovereign Immunity. Nothing contained in this Agreement shall be construed to be a waiver of the City's sovereign immunity or any individual's qualified good faith or official immunities. G. Force Majeure. Neither the City nor Contractor shall be liable for their respective non -negligent or non -willful failure to perform or shall be deemed in default with respect to the failure to perform (or cure a failure to perform) any of their respective duties or obligations under this Agreement or for any delay in such perfonnance due to: 0) any cause beyond their respective reasonable control: (ii) any act of God: (iii) any change in applicable governmental rules or regulations rendering the performance of any portion of this Agreement legally impossible: (iv) earthquake, fire, explosion or flood: (v) strike or labor dispute, excluding strikes or labor disputes by employees and/or agents of Contractor: (vi) delay or failure to act by any governmental or military authority, or (vii) any war. hostility, embargo, sabotage, civil disturbance, riot. insurrection or invasion. In such event, the time for performance shall be extended by an amount of time equal to the period of delay caused by such acts and all other obligations shall remain intact. H. Headings. All headings herein are inserted only for convenience and ease of reference. and are not to be considered in the construction or interpretation of any, provision ol'this Agreement. Nondiscrimination. In accordance with "title V1 of the Civil Rights Act. as amended, 42 U.S.C, $ 2000d, section 303 of the Age Discrimination Act of 1975. as amended. 42 U.S.C. § 6102. section 202 ofthe Americans with Disabilities Act of 1990' 42 U.S.C. ti 12132. and all other provisions of Federal law. the Consultant agrees that, during performance of this Agreement, Consultant, for itself, its assignees and successors in interest, will not discriminate against any employee or applicant for employment, any subcontractor, or any supplier because of race. color, creed, national origin, gender, age or disability. In addition, Consultant agrees to comply with all applicable implementing regulations and shall include the provisions of this Section I in every subcontract for services contemplated under this Agreement. 17 IN WITNESS WHERE'0F. the parties have; caUsed this Agreenl<.111 to be executed under seal as of -the date first above written. (SIGNATURES ON FOI.I.OWING PAGE) TriScap�s. lnc. SIGNED, SEA41), AND DEIAVERED In the presenele of: Witness (C (Irate Secretary should ,tttCs1) Quinn Martin _ _ ..-------- ---- Prnx Name Notary' Pt1>1l?� CHAMe'�i,� NOZ+� �o O M-ni s: : (ry — SIGNED, SEALED, AND DELIVERED In the presence of: Witness Notar\ Public (NOTARY SEAL.) �,1��Nlttitt� ti1v Com issio L: a A•dORp�'ii� 2 �. 401 \sstay ••. OOT�Y _Ota • �: ata C Signal e Rebecca Martin Print Name — — — President CFO Fide-- JAFFIX CORPORATC SIAL) ;MILTON CITY COUNCIL: Rw I.ock\wod. Mavor 18 (CITY SF:AI.) t T11 h i Milo i Ll �s r� LL L v U C z u u Q (Y1 a d �r! o LL d m z,��.Q N Lc r" ^ 3 R' �- Z E—, i �s L OW u u on d � .t��x�Kdu,�..a�oe�p �r,:� aceA�.cq� Y ji �_ .. v . . ,i.; l Y Y � . ♦r .. . w_.._ ..... _� ij11 �. ,• , ,. I ' , j it i 1. �. ! i +,' �� Y s 3 � r. ,fir ,�a 1 j IS' { i ��i. d3 � � j � .:i i '� '- � Yi' Y1 f - �! i �. __...- --- - - _ a S � •� i o e qLAWACAw a*ue4 Feng IWAL:yiWIN • ' i'� i i• ;i• °a !go W + ! ;his: ,.. ''++': •:" �?i i� � '� I • ' i'� i i• ;i• °a ;his: ,.. ''++': •:" �?i i� � '� I rp,uaKaula7tu�,Dpevyuttewc� t �, Y. 9 —�T JI. u :Y11'� Rol .1 � III- i; ilk � JA d Z ;0 0 DID �i tt 0 0 u' �� A 4! nj toil in t1l �i tt 6i' � 1s7 �� A 4! nj r in EXHIBIT s. C',1 FROM CONTRACTOR Dramag, Impfo�tmcnt, lint a Irr yin �.Im, ro�rm<nr. . _ i Blit 7O[,%I ry ,rrr Mm l PAYMENT BOND #5001128 CITY01F Nil ILTON, GEORGIA KNONV ALL NIEN BY THESE PRESENTS THAT TriScapes. Inc. (as CONTRACTOR, hereinafter referred to as the "Principal"), and FCC, insurynce C01Ij- V _ (as SURETY C0%'IPANY, hereinafter referred to as the `CONTRACTOR'S SURETY"'), are held and firstly bound unto the City of Milton, Geor..ia (as OWNER. hereinafter referred to I'S the "City-), for the use arid benefit of any "Claimant," as hereinafter defined, in the Sum rrfci=htecn thousand nine Illln(lr,:ll t\\c11t\ II11e tS I S.')25.00) lawful monev of the United States of America, for the payment of which die Principal and the Contractor's Surety bind themselves, their heirs, executors, administrators, successors and assIL- jointly and se\crally, firmly by these presents. WHEREAS, the Principal haS entered, or IS ahout to enter, into a certain written agreement with the City. dated which is incorporated herein by reference in its entirety (hereinafter referred to as the "CONTRACT"). for the construction of a project known as Thompson Road/Cedar Park Stornnvater hnpr-ovemcnt Project (hereinafter referred to as "the PROJECT") NOW THEREFORE, the condition of this obli.ration IS Sucl1 that if the Principal Shall prompt(} make payment to any Claimant, as hereinafter delincd, for all labor, services and materials used or reasonably required for use Irl the performance of the. Contract, then this obligation shall be void: otherwise to remain in fitll force and effect. A "Claimant" shall be dctined herein as any Subcontractor. person. Party, partnership. corporation or other entity furnishing labor, services or materials used or reasonably required for use in the pertc11mance ol" the Contract. Without regard to WIlCther such labor, services or materials were sold. leased or rented, and without regard to Whether' such Claimant is 01, is not in privity ol" the Contract with the Principal or auy' Subcontractor periotnnim-, Work on the Project. In the even( of any claim made by the Claimant against the City- or the filini, of a Lien a11ainst the property of' tile City affected by the Contract, the Conu-actor'S Surety shall either settle or resolve the Claim and shall remove any Such Lien by bond or otherwise as provided in the Contract. The Parties further expressly, agree that any action on this Bond may be brought within the time allowed by Georgia law for Suit on contracts under seal. IN tVIT\CSS WHEREQF, the Principal and Conti -actor's Surely have hereunto affixed then- cori)orate seals and caused this obligation Io be signed by their duly authorized officers on this day of "W 1). friScapes, INC. -'- Title: (SEAL) (Signatures Continued on Next Pa4,e) Attcs Date: iNttcst: Date: (Nanic of Contractor's Surety) By:, 'I itle: Attorne% In Fact --(,SEAL) (ATTACH SURE'rY­s POWER OF ATTORNEY) PERFORMANCE BOND #5001128 CITY OF MILTON, GEORGIA KNO11' ALL HIEN BY THESE PRESENTS THAT TriScapes. inc. (as CONTR.-ACTOR. hereinafter referred to as the "Principal"). and FOCI Insuraricc Cern anv (as SURETY CONVANY, hereinafter referred to as the -CONTRA CTO R'S SURETY-). are held and firmly bound unto the City of tililton. Georgia (as OWNER, hereinafter referred to as the "City"). tur the use and benefit ofany "Claimant." as Ilereina'ter defined, in the sura of eighteen thousand nine hundred twenty five dollars and no cents (S 18.925.00), lawful monev of, the United States of America. for the payment of which the Principal and the Contractor's Surety bind themselves. their heirs. executors. administrators. successors and assiQns,-)ointly and severally, firmly by these presents. WHEREAS, the Principal has entered, or is about to cater, into a certain written agreement with Tile City, dated the of _ _ �O1 ; which is incorporated herein by reference in its entire[}� (hereinafter referred to as the "CONJJRACI ..). fir the C0 11STFuetnoll of a project known as Thompson Road'Cedar Park Storniwater Improvement Project (..the PIWJECT..). NOW THEREFORE, tile conditions of this obligation are as follows: That if the Principal shall Tully and completely perl-orm each and all of the terms, provisions aril requirements ofthe Contract, inCluding and during the period of any warranties or guaranteesregtnired thereunder, and all modifications. amendments, chan1g,es, deletions, additions, and alterations thereto that may hereafter be made, and if the Principal and the Contractor's Surety shall indemnify and hold harmless the City from any and all losses, liability and damaZ7 claims, lud�,ments, liens, costs and fees ofevery description, includinc, but not limited to, any damages for delay. which the City may incur, sustain or sutfer by reason of the failure or default on the part of the Principal in the performance of any and all of the terms, provisions and requirements of tthc Contract, including all modifications, amendments, changes, deletions, additions, and alterations thereto and any warranties or -uarantecs required thereunder, then this obligation shall be void; other-\%ise to remain in full force and effect. 2. In the event of a failure ofperlornlance ofthe Contract by the Principal, which Shall include, but not be limited to, any breach ofdefault ofthe Contract: a. The Contractor's Surety shall commence pertontialice of its obli�)ations and undertakinL's under this Bond no later than thirty (30) days after written notice from the City to the Contractor's Surety; and b. The means, method or procedure by �rhich the C'ontractor's Suretv undertakes to perform its obligations under this Bond sliall be subiect to the advance written approval of the Citv. The C'ontractor's Surety hereby waives notice ofany and all modifications, omissiuns, additions. Changes and advance; payments or detcrred payments in or about the Contract. and agrees that the obli, ions undertaken by this Bond shall not be impaired in any manner by reason ofany such modifications, omissions, addition~. chan��cs, and advance payments or deferred payments. 1`he Parties further e•,pressly that any action on this Rond may be brought within the time allowed by Geot;�,ia Ia W for suit on contracts tinder scat. IN NN'ITNESS NWHEREOF, the Principal and Contractor's Surety have hereunto aff Ned their corporate seals and caused this obli',ation to be signed by their duly attthorized officers or attorneys -in -fact, this _ day of 201; Attest: Title: Date: Attest: Date TriScapes, Inc. Bv: Title: (Name of Contractor's Surety) i t, Bv: (SEAL) Title:_Attorney-In Fact __(S;.At ) (ATTACH SURETY'S POWER OF ATTORNEY) F C(O �_� IGROLT More than .1 polic,v. A pronike. GENERAL POWER OF ATTORNEY 10-017203 Know all men by these presents: That the FCC] Insurance Company, a Corporation organized and existing under the laws of the State of Florida (the "Corporation") does make, constitute and appoint: Angie Ferguson; Christy Lackey; Fred Mitchell: Keith H Dillon, Emmett H Hall; Carrie J Key Each, its true and lawful Attorney -In -Fact, to make, execute, seal and deliver, for and on its behalf as surety, and as its act and deed in all bonds and undertakings provided that no bond or undertaking or contract of suretyship executed under this authority shall exceed the sum of (not to exceed $5,000,000): $5,000.000.00 This Power of Attorney is made and executed by authority of a Resolution adopted by the Board of Directors. That resolution also authorized any further action by the officers of the Company necessary to effect such transaction. The signatures below and the seal of the Corporation may be affixed by facsimile, and any such facsimile signatures or facsimile seal shall be binding upon the Corporation when so affixed and in the future with regard to any bond, undertaking or contract of surety to which it is attached. In witness whereof, the FCCI Insurance Company has caused these presen(s to be signed by its duly authorized officers and its corporate Seal to be hereunto affixed, this 22ND day of September 2011 Attest: Craikg J,ohn n, President _ Thom s, Koval Esq., SVP, Ge ounsel. FCC1Ynsur$fice Company �["L Gov ment Affairs and Corporate Secretary FCCI Insurance Company State of Florida County of Sarasota Before me this day personally appeared Craig Johnson, who is personally known to me and who executed the foregoing document for the purposes expressed therein. ARLENE CUEMAN My commission expires: 9/25!2016v�•s�ea My C-- f ,. ENV" SePt. 25.2056 Nm EE 213092 Notary Public State of Florida County of Sarasota Before me this day personally appeared Thomas A. Koval, Esq., who is personally known to me and who executed the foregoing document for the purposes expressed therein. ARLENE CUEMAN My commission expires: 9/25/2016 NO1v` Pubk, stawo+Flonu My Comm. E Soot 25.2016 `� -• No. EE 213092 Notary Public CERTIFICATE I, the undersigned Secretary of FCCI Insurance Company, a Florida Corporation, DO HEREBY CERTIFY that the foregoing Power of Attorney remains in full force and has not been revoked; and furthermore that the February 24, 2011 Resolution of the Board of Directors, referenced in said Power of Attorney, is now in force. Dated this tt day of Thom. Koval, Esq., SVP, ral Counsel Gov r ent Affairs and Corporate e retary MAINTENANCE BOND #5001128 CITY OF MILTON, GEORGIA KNOW ALL MEN BY THESE PRESENTS THAT TriScapes, Inc. (as CONTRACTOR, hereinafter referred to as the "Principal" located at 380 Nlullinax Road, Alpharetta, Georgia 30004., and r=CCI Insurance Company Ws SURETY COMPANY, hereinafter referred to as the "Contractor's Surety"), are field and firmly bound unto the City of Milton. Georgia (as t NV'Nv,GR. hereinafter referred to as the "City'.), for the use and benefit of the City for maintenance of Improvements as described below in the sum of ei-'hteen thousand nine hundred twenty five dollars and no cents (S I w,9?�.00), lawful money of' the United States of America, for the payment of which the Principal and the Contractor's Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally. firmly by these presents. WHEREAS, the Principal has entered, or is about to enter, into a certain w"l-Itten .�1Precmcn1 with the City, dated which is incorporated herein by reference in its entirety (hereinafter referred to as the "Agreement"). for the consn-uction of certain lmpro�Tement; as contemplated by that Project for Th�unp�on Read �'edar Part. Stornrwater In1111-m enrcnt Pr0Jcct (hereinafter referred to as the "Project"'): and NNAIEREAS, said Project is to be approved by the City of Millon, under the terms that a maintenance bond IS rCtuircd of said Principal and good and sufficient surety payable to life City, and conditioned that [lie Principal shall, iin- a period of two (2) years be(rifill in0 on maintain all improvements ("Improvements") involved in said Project in accordance with all applicable federal and state laws, With the Agreement, and with all applicable City rc'-'Lli Lit 'Oils. includin-a hilt not limited to the Code of' Ordinances for the City of N i lton, Geor<gia, in force as cif the date of said approval - NOW THEREFORE, the conditions ofthis obligation are as follows: That if the Principal shall maintain the hnprovements as described above; and if the Principal and the Contractor's Surety shall indemnify and hold harmless the City from any and all losses, liability and damages, claims, judgments, liens, costs and fees of every description. including but not limited to, any damages for costs of maintenance of Improvements. which the City may incur, sustain or sulTer by reason of the failure or del<iult on the part of the Principal in the performance of-anv and all ofthe terns, Provisions and requirements described herein, then this obligation shall be void: othmvise to remain in full force and effect: In the event of failure ol'periormance by the Principal; a. The Contractor', Surety shall continence performance of its obligations and undertakin4s under this Bond no later than thirty f -t)} days atter written notice fi-oni the City to the. Contractor's Surety: b. The means, method or procedure by which the Contractor's Surety undertakes to perf-M-m its obligations under this Bond shall be subject to the advance written approval 01' tile City. Hic Parties further expressly agree that any action on this Bond may be brought Within the time allowed by Geor(rta 13W for suit on contracts under seal. IN NN'1TNESS XVIIEFREOF, the Principal and Contractor's Surety have 1101-euntU affixed their corporate seals and causcci this obligation to be swiled by their duly authDriZed officers oil this day of , ?t} [SIGNATURE'S ON fllE FOLLOWING PAGLI Triscll[)Cs. 111C. Q�� (82/\L) By Name, Title: ' E_C�Q/| ' (3E/\L) Attest: (ATTACH SURLTY'S POWER OF iVI-TORNL. y) FCU`1'1;R0UP Ntorc than i policN. A promise. GENERAL POWER OF ATTORNEY 10-017204 Know all men by these presents: That the FCCI Insurance Company, a Corporation organized and existing under the laws of the State of Florida (the "Corporation") does make, constitute and appoint: Angie Ferguson: Christy Lackey. Fred Mitchell; Keith H Dillon; Emmett H Hall; Carrie J Key Each, its true and lawful Attorney -In -Fact, to make, execute. seal and deliver, for and on its behalf as surety, and as its act and deed in all bonds and undertakings provided that no bond or undertaking or contract of suretyship executed under this authority shall exceed the sum of (not to exceed $5,000,000): $5,000,000.00 This Power of Attorney is made and executed by authority of a Resolution adopted by the Board of Directors. That resolution also authorized any further action by the officers of the Company necessary to effect such transaction. The signatures below and the seal of the Corporation may be affixed by facsimile, and any such facsimile signatures or facsimile seat shall be binding upon the Corporation when so affixed and in the future with regard to any bond, undertaking or contract of surety to which it is attached. In witness whereof, the FCCI Insurance Company has caused these presents to be signed by its duly authorized officers and its corporate Seal to be hereunto affixed, this 22ND day of \September 2011 . >. �1Attest: Crag Johnson, President Thom s . Koval ES SVP, Ge faLQounsel, FCCI nsurarice Company SEAL f q" Gov ment Affairs and Corporate Secretary FCC! Insurance Company State of Florida County of Sarasota Before me this day personally appeared Craig Johnson, who is personally known to me and who executed the foregoing document for the purposes expressed therein. ARLEnw My commission expires: 9/25/2016 �afYPc.StatectFlord My Cantu. E�n►s SOPILl25. SeW- 2S, 2016 — No. EE 213092 ^--, Notary Public State of Florida County of Sarasota Before me this day personally appeared Thomas A. Koval, Esq executed the foregoing document for the , who is personally known to me and who purposes expressed therein. ARL.ENECUEDAN fFlo My commission expires: 9/25/2016 MY Staff F5, 2016 � No. EE 213092 Notary Public CERTIFICATE I, the undersigned Secretary of FCCI Insurance Company, a Florida Corporation. DO HEREBY CERTIFY that the foregoing Power of Attorney remains in full force and has not been revoked: and furthermore that the February 24, 2011 Resolution of the Board of Directors, referenced in said Power of Attorney, is now in force. *-1'31NA-3�92-%A-J3. 1_ , Dated this l _ day of ThomKoval, Esq., SVP, ral Counsel, Goverr Hent Affairs and Corporate eCretary EXHIBIT 44DII NONCOLLUSION AFFIDAVIT OF PRIME PROPOSER STATE, OF GEORGIA CITY OF MILTON Rebecca Martin being first duly sworn, deposes and says that: (I %He is _P_residexit IC'9_(Owner, Partner, Officer, Representative, or Agent) of "l riscapes. Inc. (the "Proposer") that has submitted the attached Proposal: (2) He is fully informed respecting their preparation and contents of the attached Proposal and of all pertinent circumstances respecting such Proposal; (3) Such Proposal is genuine and is not a collusive of'sharn Proposal: (-f) Neither the said Proposer nor any of its officers. partners. owners. agents. representatives, employees. or parties in interest. including this affidavit. has in any way colluded, conspired, connived, or agreed. directly or indirectl}, with an% other Proposer. firm or person to submit a collusive or sharp Proposal in connection with the Contract for which the attached Proposal has been submitted to or refrain from proposing in connection with such Contract, or has in any collusion or communication or conference with any other Proposer, firm or person to fix the price or prices in the attached Proposal or of any other Proposer. or to secure through any collusion, conspiracy. connivance or unlawful agreement any advantage against the City or any person interested in the proposed Contract: and. (5) The price or prices quoted in the attached Proposal are fair an proper and are not tainted by any collusion. conspiracy. connivance. or unlawful agreement on the pail of the Proposer or any of its agents. representatives, owners, employees, or parties in interest, including this affidavit. (6),Proposer has not' or indirectly violated O.C.G.A. § 36 -91 -?1(d). f Sign—at tr e of Authorized Officer or Agent Rebecca Martin, President -- — _ _ Printed Name and Title of Authorized Officer or Agent SUBSCRIBED AND SWORN TQ BEI ORF ME TI IIS _ — DAY OF – 2 0• ° HA 8 �� Notary Public = 49P: 0 '• Pus\.N My Commission Expires LYvr94 C�a Date f�E........ oCOU�� f1111rtt10\ 0 EXHIBIT "E" CONTRACTOR AFFIDAVIT AND AGREEMENT STATE OF GEORGIA CITY OF MILTON B) executing this affidavit. the undersigned contractor verifies its compliance with O.C'.O.A. § 13-10-91. stating affirmative)} that the indN iduai. firm. or corporation which is engga_gcd in the physical performance of services on behalf of the City of Milton has registered "ith.. is authorized to use and uses the federal work authorization program contrnoniv known as E-Verih. or any subsequent replacement program, in accordance with the applicable Provisions and deadlines established in O.C.G.A. ; 13-10-91. furthermore. the undersigned contractor will continue to use the federal work authorization program throughout the contract period and the undersigned contractor will contract ror the physical performance of services in satisfaction of such contract only with subcontractors who present an affidavit to the contractor with the inturmation required by O.C.G.A. § 13-10-,-i(h). Contractor hereb% attests that its federal Ntiork authorization user identification number and date of authorization are as follows: 123689 c enfj \umber 6/2_/08 Date of Authortration Tri Scapes, Inc. Name of Contractor Thompson Road/Cedar Park Stormwater Improvement Project Name of Project (-itN of\Millon tame of Public Employer I hereby declare under penalty of perjury that the foregoing is true and correct. E xccuted on ... '01 in I city). _.(state), tiign8turu of kuthorized Officer or Agent Rebecca Martin President�C:f'O Printed Namc and Title �,i Authorized Officer or a vent SUBSCRIBED AND SWORN BEFORE ME ON THIS 1 -HE DAY Ui: NO I'AKg 4f30 V 7 IARi, ; C -. C41 Z- �9y C'ommissioti'�t;'�Ritasi�•�''���:`` EXHIBIT " F" SUBCONTRACTOR AFFIDAVIT STATE OF GEORGIA CITY OF MILTON By executing this affidavit, the undersigned subcontractor verifies its compliance with O.C.G.A. § 13-10-91, stating affirmatively that the individual, firm or corporation which is engaged in the physical performance of services under a contract with Tri Scapes, Inc. on behalf of the City of Milton has registered with, is authorized to use and uses the federal work authorization program commonly known as E -Verify, or any subsequent replacement program, in accordance with the applicable provisions and deadlines established in O.C.G.A. § 13-10-91. Furthermore, the undersigned subcontractor will continue to use the federal work authorization program throughout the contract period, and the undersigned subcontractor will contract for the physical performance of services in satisfaction of such contract only with sub -subcontractors who present an affidavit to the subcontractor with the information required by O.C.G.A. § 13-10-91(b). Additionally, the undersigned subcontractor will forward notice of the receipt of an affidavit from a sub -subcontractor to the contractor within five (5) business days of receipt. If the undersigned subcontractor receives notice that a sub -subcontractor has received an affidavit from any other contracted sub - subcontractor, the undersigned subcontractor must forward, within five (5) business days of receipt, a copy of the notice to the contractor. Subcontractor hereby attests that its federal work authorization user identification number and date of authorization are as follows: eVerify Number Date of Authorization Click here to enter text. Name of Subcontractor Click here to enter text. Name of Project City of Milton Name of Public Employer I hereby declare under penalty of perjury that the foregoing is true and correct. Executed on 201_ in (city), (state). Signature of Authorized Officer or Agent Printed Name and Title of Authorized Officer or Agent SUBSCRIBED AND SWORN BEFORE ME ON THIS THE DAY OF NOTARY PUBLIC [NOTARY SEAL] My Commission Expires: EXHIBIT "G" PLANS AND SPECIFICATIONS See Exhibit "A" " EXHIBIT "H" FINAL AFFIDAVIT TO CITY OF MILTON, GEORGIA I, , hereby certify that all suppliers of materials, equipment and service, subcontractors, mechanics, and laborers employed by Click here to enter text. or any of its subcontractors in connection with the construction of the Click here to enter text. for the City have been paid and satisfied in full as of , 20 , and that there are no outstanding obligations or claims of any kind for the payment of which the City on the above named project might be liable, or subject to, in any lawful proceeding at law or in equity. Signature Title Personally appeared before me this day of , 20 , who under oath deposes and says that he is of the firm of Click here to enter text. that he has read the above statement and that to the best of his knowledge and belief same is an exact true statement. Notary Public [NOTARY SEAL] My Commission Expires CK '`°< I IR CERTIFICATE OF LIABILITY INSURANCE OATE(MM/DDII'VYV) _ _ 10/7/I014 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATF DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICAT: OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRLSENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT -` NAME: Angle Ferguson PointeNorth Insurance Group, LLC PHONE (770) BSB -7540 FAX --- - (AIC N.I.(770)i356-7565 PO Box 724728 EMAIL -ADDRESS:aferguson@pointenor thins. ccm MA — PREMISES Ea occurrence $ 100,000 Atlanta GA 31139 INSURERS) AFFORDING COVE -RAGE NAIC C _ -- -- - INSURERA:ZCOL - Association Casualty _ INSURED INSURERB:TechnolOgy Insurance Company_ 2376 Tri Scapes , Inc. QR Martin 1595 Peachtree Pkwy #204-396 INSURER C : GENERAL AGGREGATE $ 2,000,000 INSURERo: _INSURER E : --- Cumming GA 30041 INSURER F -- - - -- --- - • _ • --...__...--- - -- -_ _ rte vtalVr4 IVUMt3tK: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED NOTWITHSTANDING ANY REQUIREMENT TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS EXCLUSIONS AND CONDITIONS OF SUCH POLICIES LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS IN R1 AODt. —1-- - - _ LTR TYPE OF INSURANCE POLICY NUMBER MMf D VYYY POLICY EXP LIMITS GENERAL LIABILITY A X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE j{ OCCUR }[ y r MPGA0000103106 2/1/2013 2/1/2014 EAf.H OCCURRENCE $ 1,000,000 MA — PREMISES Ea occurrence $ 100,000 MED EXP tAny one person, $ 5,000 _ _ PERSONAL & ADV INJURY $ 1,000,000 ---- GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER POLICY X PRO- LOC 12/1/2013 2/1/2014 PRODUCTS - COMPIOP AGG $ 2,000,000 $ COMBINED SINGLE LIMIT Eaacadenti $ 11000,000 A AUTOMOBILE LIABILITY X ANY AUTO AUTOS SCHEDULED AUTOS AUTOS NON -OWNED HIRED AUTOS I AUTOS I X 1, I APGK000002020r,5 , i BODILY INJURY f Per Derson; $ —' BODILY INJURY (Per accident) $ _ PROPERTY DAMAGE -- -- - (Per acadentl S Uninsured motorist combined S 75.000 'EACH OCCURRENCE $ 51000,000 ! 12/1/2014DED A X UMBRELLA t.IAB EXCESS LIAR P- X OCCUR CLAIMS -MADE DPGA0000103106 AGGREGATE $ 51000,000 000,000 X RETENTI10.000 _ _ B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY YIN ANY PROPRIETOR/PARTNEPIEXECUTIVE OFFICER/MEMBER EXOa;DED� ❑ (Mandatory in NH) U yes describe under I DESCRIPTION OF OPERATIONS De!ak NIA ! I Zr 11342346ti -21A000010310+c /1/2014 /1/2015 WC STATU- 0TH X E L EACH ACCID'cNT $ _ 1 000 000 E L DISEASE • EA EMPLOYE S 1 000,000 _ E L DISEASE - POLICY LIMIT S 1, 000, 000 Leased& Rented Equipment $250,000 A !Inland Marine I 12/1/2013 12/1/2014 DESCRIPTION OF OPERATIONS i LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, it more space is required) Project: Thompson Road/Cedar Park Stormwater, City of Milton ncD-rlctrATc un. nrn City of Milton Attn: City Manager 13000 Deerfield Parkway, Suite 107F Milton, GA 30004 ACORD 26 (2010)05) INS095 �+nn= ,• SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. A HORIZED REPRESENTATIVE - William Skeeles/AF2 L-i]� 1988-2010 ACORD CCIRPORFTION Thr, ornpn non __4 L. , — r_i.+_A _Ie. of 81V1Rrl All rights risen sa. WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 00 03 13 (Ed. 4-84) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Schedule Any person or organization as required by written contract 1,336.00 This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. i U Endorsement Effective 7/1/2014 Policy No. TWC3423466 Endorsement No. WC000313 m Insured Tri Scapes, Inc Premium $ 49051 Insurance Company Technology Insurance Company tJ O_ A 00 Countersigned by 01 IU IV 09 ® 1983 National Council on Compensation Insurance. CG -501 (2-13) THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY, GENERAL LIABILITY PREMIER SUPPLEMENT (CONTRACTORS) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART The following supplemental coverages apply only to contractor classifications covered by this policy: SECTION If — WHO IS AN INSURED The following paragraph is added: 8. Any person or organization whom you have agreed in writing in a contract or agreement, prior to a loss, that such person or organization be added as an additional insured, but only with respect to liability for "bodily injury" or "property damage" caused, in whole or in part, by "your work" for the additional insured and included in the 'products -completed operations hazard". With respect to the insurance afforded to these additional insureds, the insurance provided is primary insurance and we will not seek contribution from any other insurance available to the additional insured as long as you and the additional insured have agreed in writing in a contract or agreement executed prior to a loss that such person or organization be added as an additional irsured on a primary non-contributory basis. CG -50- ;2-"31 Page of THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. GENERAL LIABILITY PREMIER ENDORSEMENT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SECTION (- COVERAGES -COVERAGE ABODILY INJURY AND PROPERTY DAMAGE LIABILITY Paragraph (2) is replaced under 2. Exclusions, g. Aircraft, Auto Or Watercraft by the following: (2) A watercraft you do not own that is: (a) 5Ufeet orless: and (b) Not being used kzcarry persons nrproperty for achorge; Paragraph (4) is replaced under 2. Exclusions, j. Damage To Property by the following: (4) Personal property inthe care, custody orcontrol of the insured. However, .. H���.���"' for personal property in �e care, custody or mm�� of the 'noun� will be covered up to $1DO0pe.r occurrence" subject to a $1.000 per o|einn deductible. The aggregate limit for this coverage is $20,000. Tfefollowing paragraph isadded &z2.Exclusions, iDamage ToProperty: This exclusion does not apply to "property damage" arising out of water damage to premises that are both rented to and occupied by you. The most we will pay for water damage to the premises, however, is $25.000. This amount shall not be in addition to Damage To Premises Rented ToYou ahowever,dosohbedinSeodon|U-LimMsOf|npunsnce. ~ The following is added to 2. Exclusions, n. Recall Of Products, Work Or Impaired Property: This exclusion does not apply to "product naca|| expenses" that you incur for the "covered r*oa|/^' of 11 your product". However, the following additional exclusions apply ko"product recall expense": (1) Failure ofany products ioaccomplish their iniexdndpuqpoae� (2} Breach ofwarranties offitness, quality. durability orperformance; (3) Loss of customer approval, or any cost incurred to regain customer approval, (4) RedistribUtonmreplacenmo|nf^ymrpmduct"whkbhas bpmrecalled bylike products or xuuouuUao; (5) Caprice o,whim v[tile insured: (6) Acondition likely to cause loss ofwhich any insured know or had reason toknow atthe inoeph~ n ofthis �sunanne; - (7) Aoboutno' including |oms, damage or clean-up resulting from asbestos or asbestos containing materials; (8) Recall Of "Your products" that novo no known or suspected defect moieiy because known or suspected defect inanother of"your products- has been found: (9) "Bodily injury" or"property dannmQe^; (10) Any actual or alleged violation of any copyright, patent, trade dress, trademark,tnsdenarna.trode secrets, oranyother intellectual property right laws; nr (11) ''Product neca|| expenoeo" you incur for "your producto" which are excluded from any other insurance written bythis company, The most we will pay for "product recall expense' arising $25.00Uper occurrence. out of the same defect or deficiency is CG-500�7-'3} Page ` of CG -500 (7-13) The last paragraph under 2. Exclusions is replaced by the following: With respect to the premises while rented to you or temporarily occupied by you with permission of the owner, Exclusions c., d., e., g., In., j., k., I., m., and n. do not apply to "property damage'. A separate limit of insurance applies to this coverage as described in Section III - Limits Of Insurance. SECTION I - SUPPLEMENTARY PAYMENTS - COVERAGES A AND B The following is revised: 1.1b. Up to $2,500 for cost of bail bonds required because of accidents or traffic law violations arising out of the use of any vehicle to which the Bodily Injury liability Coverage applies. We do not have to furnish these bonds. 1.d. All reasonable expenses incurred by the insured at our request to assist us in the investigation or defense of the claim or "suit", including actual loss of earnings up to S500 a day because of time off from work. SECTION 11- WHO IS AN INSURED Paragraph 3. is replaced by the following: 3. Any organization you newly acquire or form, ether than a partnership, joint venture or limited liability company, and over which you maintain ownership or majority interest, will qualify as a Named Insured if there is no other similar insurance available to that organization. However: a. Coverage under this provision is afforded only until the 180 t day after you acquire or form the organization or the end of the policy period, whichever is earlier; b. Coverage A does not apply to "bodily injury" or "property damage' that occurred before you acquired or formed the organizatior: and c. Coverage B does not apply to 'personal and advertising injury" arising out of an offense committed before you acquired or formed the organization; d. "Product recall expense' does not apply to "product recall expenses" arising out of any withdrawal or recall that occurred before you acquired or formed any organization; and e. If you are engaged in the business of construction of dwellings three stories or less in height, or other buildings three stories or less in height and less than 25,000 square feet in area, you will also be an insured with respect to "your work" only, for the period of time described above, for your liability arising out of the conduct of any partnership or joint venture of which you are or were a member, even if that partnership or joint venture is not shown as a Named Insured. But, this provision only applies if you maintain or maintained an interest of at least 50 percent in that partnership or joint venture for the period of that relationship. This provision does not apply to any partnership or joint venture that has been dissolved or otherwise ceased to function for more than 36 months. This coverage extension will be excess over any other coverage, on any basis, available to the insured, and will be subject to the Other Insurance provisions of this policy for Excess Insurance. The following paragraphs are added: 4. Any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy. Such person or organization is an additional insured only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused. in whole or in part, by: a. Your acts or omissions; or b. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the aaditional insured. CG -500 :7.' 31 Page 2 of 2 CG -500 (7-13) However, the insurance afforded to such additional insured: a. Only applies to the extent permitted by law; and b. Will not be broader than that which you are required by the contract or agreement to provide for such additional insured. A person's or organization's status as an additional insured under this endorsement ends when your operations for that additional insured are completed. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to: a. "Bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of; or the failure to render, any professional architectural, engineering or surveying services, including: (1) The preparing, approving, or failing to prepare or approve. maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications: or (2) Supervisory, inspection, architectural or engineering activities. This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the `occurrence" which caused the "bodily injury" or "property damage", or the offense which caused the "personal and advertising injury", involved the rendering of or the failure to render any professional architectural, engineering or surveying services. b. "Bodily injury" or "property damage" occurring after: (1) All work, including materials, parts or equipment fumished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insureds) at the location of the covered operations has been completed; or (2) That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. With respect to the insurance afforded to these additional insureds the following is added to Section III — Limits of Insurance: The most we will pay on behalf of the additional insured is the amount of insurance; a. Required by the contract or agreement you have entered into with the additional insured: or b. Availab'e under the applicable Limits of Insurance shown in the Declarations: whichever is less. This endorsement shall not increase the applicable Limits of Insurance show in the Declarations. 5. Any person(s) or organization(s) (referred to below as vendor) but only with respect to "bodily injury" or "property damage" arising out of "your products" which are distributed or sold in the regular course of the vendor's business. However: a. The insurance afforded to such vendor only applies to the extent permitted by law; and lb. If coverage provided to the vendor is required by a contract by a contract or agreement, the insurance afforded to such vendor will not be broader than that which you are required by the contract or agreement to provide for such vendor. CG -500 ;7--3-) Page 3 of 8 CG -500 (7-13) With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: The insurance afforded the vendor does not apply to: (1) "Bodily injury" or "property damage" for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement: (2) Any express warranty unauthorized by you; (3) Any physical or chemical change in the product made intentionally by the vendor; (4) Repackaging except when unpacked solely for the purpose of inspection, demonstration. Testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; (5) Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products; (6) Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product; (7) Products which, after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor; or (8) "Bodily injury" or "property damage" arising out of the sole negligence of the vendor for its own acts or omissions or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to: (a) The exceotions contained in Sub -paragraphs (4) or (6); or (b) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products. b. This insurance does not apply to any insured person or organization, from whom you have acquired such products, or any ingredient, part or container, entering into, accompanying or containing such products. With respect to the insurance afforded to these additional nsureds the following is added to Section Ill — Limits of Insurance: The most we will pay on behalf of the additional insured is the amount of insurance; a. Required by the contract or agreement you have entered into with the additional insured; or b. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance show in the Declarations. 6. Any person(s) or organization(s) from whore you lease equipment when you and such person(s) or organization(s) have agreed in writing in a cuntrack or agreement that such person(s) or organization(s) be added as an additional insured on your policy. Such person(s) or organization(s) is an insured only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your maintenance, operation or use of equipment leased to you by such person(s) or organization(s). However, the insurance afforded to such additional insured: a. Only applies to the extent permitted by law; and b. Will not be broader than that which you are required by the contract or agreement to provide for such additional insured. CG -500:7.-31 Page 4 of 8 CG -500 (7-13) A person's or organization's status as an additional insured under this endorsement ends when their contract or agreement with you for such leased equipment ends. With respect to the insurance afforded to these additional insureds, this insurance does not apply to any "occurrence" which takes puce after the equipment lease expires. With respect to the insurance afforded to these additional insureds the following is added to Section IiI - Limits of Insurance: The most we will pay on behalf of the additional insured is the amount of insurance; a. Required by the contract or agreement you have entered into with the additional insured; or b. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance show in the Declarations. 7. Any person(s) or organization(s) but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you and subject to the following additional exclusions: This insurance does not apply to: a. Any "occurrence" which takes place after you cease to be a tenant in that premises. b. Structural alterations. new construction or demolition operations performed by or on behalf of any person or organization. However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law: and 2. If coverage provided to the additional insured is required by a contract or agreement, the nsurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. With respect to the insurance afforded to these additional insureds the following is added to Section III - Limits of Insurance: The most we will pay on behalf of the additional insured is the amount of insurance; a. Required by the contract or agreement you have entered into with the additional insured; or b. Available under the applicable Limits of Insurance shown in the Declarations: whichever is less. This endorsement shall not increase the applicable Limits of Insurance show in the Declarations. SECTION Ili - LIMITS OF INSURANCE -he following paragraphs are replaced by the following: 3. The products -Completed Operations Aggregate Limit is the most we will pay under Coverage A for damages because of "bodily injury" and "property damage" included in the "products -completed operations hazard" and "product recall expense". 6. Subject to 5. above, the Damage To Premises Rented To You Limit of $300,000 is the most we will pay under Coverage A for damages because of "property damage" to any one premises while rented to you or temporarily occupied by you with permission of the owner. 7. Subject to 5. above, the most we will pay under Coverage C for all medical expenses because of "bodily injury" sustained by any one person is $10,000. CG -500 !7-'31i Page 5 of 8 CO -500 (7-13) Coverage is amended to include the following: Designated Location General Aggregate Limit For all sums which the insured becomes legally obligated to pay as damages caused by 'occurrences" under Coverage A (SECTION 1), and for all medical expenses caused by accidents under Coverage C (SECTION 1), which can be attributed only to operations at a single designated 'location": a. A separate Designated Location General Aggregate Limit applies to each designated "location", and that limit is equal to the amount of the General Aggregate Limit shown in the Declarations. This Designated Location General Aggregate Limit will apply, however, only when a written contract exists requiring the General Aggregate Limit to apply per "location". b. The Designated Location General Aggregate Limit is the most we will pay for the sum of all damages under Coverage A, except damages because of "bodily injury" or "property damage" included in the "products -completed operations hazard". and for medical expenses under Coverage C regardless of the number of: (1) 'nsureds,- (2) Claims made or "suits" brought: or (3) Persons or organizations making claims or bringing "suits". c. Any payments made under Ccverage A for damages or under Coverage C for medical expenses shall reduce the Designated Location General Aggregate Limit for that designated 'location". Such payments shall not reduce the General Aggregate Limit shown in the Declarations nor shall they reduce any other Designated Location General Aggregate Limit for any other desigrated 'location". d. The limits shown in the Declarations for Each Occurrence. Fire Damage and Medical Expense continue to apply. However, instead of being subject to the General Aggregate Limit shown in the Declarations. such limits will be subject to the applicable Designated location Genera; Aggregate Limit. For all sums which the insured becomes legally obligated to pay as damages caused by "occurrences" under Coverage A (SECTION 1), and for all med;cal expenses caused by accidents under Coverage C (SECTION 1), which cannot be attributed only to operations at a singly: designated "location": a. Any payments made i order Coverage A for damages or under Coverage C for medical expenses shall reduce the amount available under the General Aggregate Limit or the Products -Completed Operations Aggregate I imit. whichever is applicable: and b. Such payments shall r�ol reduce any Designated Location Generai Aggregate Limit. When coverage for liability arising out of the "prod uctscompiPtec operations hazard" is providec, ary payments for damages because of "bodily injury" or "property damage" included in the "products -completed operations hazard" will reduce the Products -Completed Operations Aggregate 1- mit, and riot the Generai Aggregate 1 -unit nor the Designated Location General Aggregate I_irrit. For the purposes of Designated Location Genera! Aggregate I imit, the Definitions Section is amended by the addition of the following definition: "Location" means premises involving the same or connecting lots, or premises whose connection is interrupted only be a street. roadway, waterway or right-of-way of a railroad. The provisions of Limits Of Insurance not otherwise modified shall continue to apply as stipulated. Designated Construction Project General Aggregate Limit For all sums which the insured becomes legally obligated to Pay as damages caused by 'occurrences" under Coverage A (SECTION 1), and for all medical expenses caused by accidents under Coverage C ( SECTION 1), which can be attributed only to ongoing operations at a single designated construction project: a. A separate Designated Construction Project Genera: Aggregate Limit applies to each designated ual to the amount of the General Aggregate Limit shown in construction project, and that limit is eq the Declarations. This Designated Construction Project General Aggregate Limit will apply, however, only when a written contract exists requiring the General Aggregate Limit to apply per designated construction project. CG -500 7-' 3) Face 6 of 8 CG -50D (7-13) b. he Des;gnated Construction Project General Aggregate Limit is the most we will pay for the sum of all damages under Coverage A, except damages because of "bodily injury" or "property damage" included in the "products-curnpleted ooerations hazard". and for medical expenses under Coverage C regardless of the number of: (1) nsureds: (2) Claims made or "suits" brought; or (3) Persons or organizations making claims or bringing "suits". c. Any payrnerts made under Coverage A for damages or under Coverage C for medical expenses shall reduce the Designated Construction Project General Aggregate Limit for that designated construction project. Sucn payments shall riot reduce the General Aggregate Limit shown in the Declarations nor snail they reduce any other Designated Construction Project Genera:' Aggregate Limit for any other designated construction project. d. The limits shown in the Declarations for Each Occurrence. Fire Damage and Medical Fxpense continue to apply. However. instead of being subject to the General Aggregate Limit shown in the Declarations. such lirrrits will be subject to tale applicable Designated Construction Project General Aggregate Limit. For all sums which the insured becomes legally obligated to pay as damages caused by "occurrences" under Coverage A (SECTION 1), and for all medical expenses cause4j by accidents under Coverage C (SECTION 1), which cannot be attributed only to ongoing uperatiors at a single designated construction project: a. Any payments made under Coverage A for darnages or under Coverage C for medical expenses shall reduce the amount available under the General Aggregate Lirnit or the Products -Completed Operations Aggregate Limit, whichever is applicable: ano b. Such payments shall not reduce any Designated Construction Project General Aggregate Limit. When coverage for liability arising out of the "products -completed operations hazard" is provided, any Payments for damages be--ause of "bodily irjury" or "property damage" included in the "products -completed operations hazard" will reduce the Products -Completed Operations Aggregate Limit, and not the Genera: Aggregate Limit nor the Designated Construction Project General Aggregate Limit. If the applicable designated construction project has been abandoned, delayed. or abandoned and then restarted, or if the authorized contracting parties deviate from plans, blueprints. designs. specifications or timetables. the project will still be deerned to be the same construction project. The provisions of Limits Of Insurance not otherwise modified shall continue to apply as stipulated. SECTION IV — COINIMERCIAL GENERAL LIABILITY CONDITIONS The following is added to 2. Duties In The Event Of Occurrence, Offense, Claim Or Suit: You must see to it that the following are dono in the event of an actual or anticipated "covered recall" that may result in "product recall expenses': (1) Give us prompt notion of any discovery or notification tha; 'your product" must he withdrawn or recalled. Include a description of "your product" and the reasor for the, withdrawal or recall; (2) Cease any further release. shipment, consignment or any other method of distribution of like or similar proaucts until it has been determined that all such products are free from defects that could be a cause of loss under this insurance; (3) As often as may be reasonably required. permit us to inspect -your product" and examine your books and recoras to prove the loss. Also permit us to take damaged and undamaged samples of "your product" for inspection, testing, and analysis, and let us make copies of your books and records. (4) Send us a signed, sworn, proof of loss containing the information we requested to settle the claim. You must do this within 60 days after our request. We will supply you with the necessary forms; and (5) Permit us to examine under oath, away from the presence of other insureds, at such times as may reasonably be required. about any matter, relating to this insurance or your claim, including any insured's books and records in the event of air examination. Ar insured's answers must be signed. CG -50C.'7-'31 Nage 7 of a CA -500 (7-09) THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY. BUSINESS AUTO PREMIER ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM A. COVERED AUTOS SECTION 1 — COVERED AUTOS, Paragraph C. Certain Trailers, Mobile Equipment And Temporary Substitute Autos is amended by adding the following: If Physical Damage Coverage is provided under this Coverage form for an "auto" you own. the Physical Damage coverages provided for that owned 'auto" are extended to any "auto" you do not own while used with the permission of its owner as a temporary substitute for the covered "auto" you own that is out of service because of its breakdown, repair, servicing, "loss", or destruction. B. LIABILITY COVERAGES SECTION 11 — LIABILITY COVERAGE in Paragraph A. Coverage, 1- Who Is An Insured is amended to include the following: d. Any legally incorporated subsidiary in which you own more than 50% of the voting stock on the effective date of the Coverage Form. However, the Named Insured does not include any subsidiary that is an `insured" under any other automobile policy or would be an "insured" under such a policy but for its termination or the exhaustion of its Limit of Insurance. e. Any organization that is acquired or formed by you, during the term of this policy and over which you maintain majority ownership. However, the Named Insured does not include any newly formed or acquired organization: (1) That is a joint venture or partnership, (2) That is an "insured" under any other policy, (3) That has exhausted its Limit of Insurance under any other policy, or (4) 180 days or more after its acquisition or formation by you, unless you have given us notice of the acquisition or formation. Coverage does not apply to "bodily injury" or "property damage" that results from an accident that occurred before you formed or acquired the organization. f. Any employee of yours while acting in the course of your business or your personal affairs while using a covered "auto" you do not own, hire or borrow. CA -500 (7-09) Page of CA -500 (7-09) g' Any person or organization whom you are required to add as an additional insured on this policy under a written contract or agreement-, but the written contract or agreement must be: (1) Currently ineffect orbecoming effective during the term ofthis policy: and (2) Executed prior to the "bodily injury" or "Property damage-. The additional insured status will aoo- �un|yvv�h respect to your |iaL�Uh/for "bodily injury" or ~propedydmnnyge^ which apply only imputed to that person(s) or organization(s) mnaoUy arising out of the ovvnership, maintenance or use of the covered "autos" at the iuoatinns(e)designated, ifany. Coverage provided by this endorsement will not exceed the limits of liability required by thevvh�e n contract or written agreement even if the limits of liability stated /n the policy ' exceed those limits. This endorsement shall not increase the limits stated in SactimmC. Limit of Insurance." For any covered " al­Itf You own, this Coverage Form provides primary coverage, SECTION U—LIABILITY COVERAGE inParagraph ACwvmnmQe 2Coverage Extensions, Supplementary Payments is amended to replace the following: (2) We will pay Lip to $2.500 for the cost of bail bonds (including bonds for related traffic law violations) required because ufan^amcident'vvecover. VVedonot have tofurnish these bonds. (4) We will pay all reasonable expenses incurred by the "insured" at our request including oobuai krsa of earnings up to S500 a doy, because of time off from work.' SECTION H — LIABILITY COVERAGE in Paragraph B. Exclusions, @ Care, Custody {]rControl is amended by adding the following: This Care. Custody Or Control exclusion does not appy to property not owned by any "insured", subject to the following: m'The most wewill pay under this exception for any one "accident- is $1.000;and b. A deductible of $500 por "accident" applies to this exception, C. PHYSICAL DAMAGE COVERAGES SECTKONN—PHYSICALDAMAGECOVERAGE Coverage is amended as follows: Paragraph 2. Towing under A. Coverage is replaced with: 2. Towing and Labor We will pay towing and labor costs hnourned, up to the limits ahuvvn bakyvv each nrnmscovered ^aubo'das�Oedand rated amaphvmtepassenger type, "light truck" ok^ or "mediurn truck' is disabled. bd For Private passenger type vehicles or "light trucks", we will pay LIP to $75 per CA -500 (7-09) disablement "Light trucks" have a gross vehicle weight (GVW) of 100OO pag:2d7 ' CA -500 (7-09) pounds or less. (b) For "medium trucks", we will pay up to $150 per disablement. `Medium trucks" have a gross vehicle weight (GVW) of 10,001 lbs. to 20,000 pounds. However, the labor must be performed at the place of disablement. Paragraph 4. Coverage Extensions, a. Transportation Expenses under A. Coverage is amended to provide the following limits: We will pay up to $50 per day to a maximum of $1,500. All other terms and provisions of this section remain applicable. The following is added to 4. Coverage Extensions: C. Theft Recovery Expense If you have purchased Comprehensive Coverage on an -'auto" that is stolen, we will pay the expense of returning that stolen auto to you. The limit for this coverage extension is $5,000. d. Rental Reimbursement We will provide Rental Reimbursement and Additional Expense coverage only for those Physical Damage coverages for which a premium is shown in the Declarations or schedule pages. Coverage applies only to a covered "auto" of the private passenger or light truck (10,000 lbs. or less gross vehicle weight) type for which Physical Damage coverages apply. (1) We will pay for auto rental expense and the expense incurred by you because Of "loss" to remove and transfer your materials and equipment from a covered "auto" to a covered "auto". Payment applies in addition to the otherwise applicable coverage you have on a covered "auto". No deductible applies to this coverage. (2) We will pay only for expenses incurred during the policy period and beginning 24 hours after the "loss" and ending, regardless of the policy's expiration, with the lesser of the following number of days: (a) The number of days reasonably required to repair or replace the covered "auto". If "loss" is caused by theft, this number of days is added to the number of days it takes to locate the covered "auto" and return it to you. or (b) 30 days. (3) Our payment is limited to the lesser of the following amounts: (a) Necessary and actual expenses incurred: or (b) $35 per day, (c) This coverage does not apply while there are spare or reserve "autos" available to you for your operations. CA. -500 (7-09) Page 2 of 7 Im t (d) |f"loss^results from the total theft ofacovered ^auto^of the private passenger or light truck h/pe, we will pay under this coverage only that amount of your rental reimbursement expense which is not already provided for under the SECTION III ~- PHYSICAL DAMAGE COVER~~—E�� Coverage, 4./�overo8eExtensions, a.Transportation Expenses. ' ' Personal Effects If YOU have purchased Comprehensive Coverage on this policy for an"auUu^ you Vvvn and that "auto/ is atu|an, we will pmy, without application ofadeduutibka up to $500 for Personal Effects stolen with the ^eu0o` The insurance provided u` ''"er this provision is excess over any other collectible insurance.vFor this ~oove ex(enaion.Personal Effects means tangible property that isvv`rnnro"'' carried by "insured". Personal Effects does not include tools � / »u// inotr«nnen1u.nnoneyoraeourihea ` ]ev«*ry' guns, musical Audio, Visual and Data Electronic Equipment Coverage VVewill pay for^/oms^boany electronic equipment that receives ortransmits audio visual urdatasignals andthatiamztdeaiAnedoo�|yfurtheneproduot�mofaound' ./n/aouvenagaopphomon}y if the mqu/pmnmn, is permanently installed in m covered 1 auto" at the time of the "loss" or the equipment is removable from a housing unit which is permanently installed in e covered ^euto" at the time of the "loss", and such .equipnnont is designed to be solely operated by use of the power from the -outoo^electrical aystern. in or upon the covered "auto". U\ We will pay with respect to a covered "auto" for "loss" to any accessories used with the electronic equipment described above, Hovvever, this does not include tapes, records or discs. (2) In addition to the exclusions that apply Physical Damage Coverage,~withexception of the exclusion relating t' audio, v/aua| and data electronic equipment, the following exclusion applies: We will not pay for any electronic equipment nraccessories used with such electronic equipment that are: (a) Necessary for the normal operation of the covered "auto" for the monitoring of tile covered "auto's' operating system,- or An integral part of the same unit housing any sound reproducing equ|pnoen, designed *o|o/y for the reproducing of sound if the sound reproducing equipment is permanently installed in the covered "auto"; and Permanently installed in the opening ofthe dash or console normally used by the manufacturer for the installation of a radio. (3) With respect to this coverage, the most we will pay for all 1usa^ of nudio »iaue| or data electronic equipment and any accessories used with this ` equipment amaresult ofany one ^acciden['imthe lesser of: (a) The actual cash value N"the damaged orstolen property aoo[the time of Page 4d7 CA -500n-08 (b) The coot of repairing or replacing the damaged or stolen property with other property oflike kind and quality: or$1.00O; minus odeductible uf$lOO. Anadjustment for depreciation and physical condition will bemade in determining anima| cash value at the time of loss. If a repair or replacement results in better than like kind or quality, we will not pay for the amount of the betterment. |fthere haother coverage provided for audio, Visual and data electronic equipmant the coverage prov�mdherein ksexcess over any other ooUendb|einsurance. ' Paragraph 3.under 8.Exclusions iaamended byadding the following language: If you have purchased Comprehensive or Collision Coverage under this polioy, exclusion does not apply to n�eohanima/braokdovvnro|eUngbzthe aockb*n1a|disuhm'we �� -mf an air bag. This coverage applies only to a covered auto you on and is excess " of any other collectible insurance orwarranty. Nodeductible applies bnthis coverage. Paragraph C, Limit of Insurance is amended by adding the following language: 4. In the event of total "loss" to o covered "auto" shown in the Schedule pegoe subject at the time of the "loss" to a loan or kaaoe, we will pay any unpmW onluunt due on the lease or loan for a covered "aLllo" less: — a.Theamount paid under the Physical Damage ~-Sectkmofthe policy:and b. Any: (1)Overdue lease / loan payments utthe time ofthe ^kona^; (2) Financial Penalties imposed undora lease for nxomma/va use, abnormal wear and tear orhigh mileage; /3\Security deposits not returned bythe lessor; (4) Coots for extended warranties, Credit Life Insurance, Health,Accident or Disability Insurance purchased with the loan orlease: and (5) Carry-over balances from previous loans o|leases. ---' Any deductible shown in the Declarations as applicable to the covered "auto" will not apply to glass breakage if the damaged glass is repaired, rather than replaced. D_ CONDITIONS SECTION IV —BUSINESSAUTO CONDITIONS, Subsection �Loss Conditions Coverage isamended as follows-. The following kaadded toparagraph 2.Duties /mThe Event ufAccident, Su|torLoss- CA -500 (7-09) d. Knowledge of any "accident". "claim", "suit" or "loss" will be deemed knowledge by you when notice of such "accident'. "claim", "suit" or "loss" has been received by: (1) You, if you are an individual; (2) Any partner or insurance manager if you are a partnership (3) An executive officer or insurance manager, if you are a corporation; (4) Your members, managers or insurance manager, if you are a limited liability company; or (5) Your officials, trustees, board members or insurance manager, if you are a not -for- profit organization. The following language is added to 5. Transfer of Rights of Recovery Against Others to Us: However, we waive any rights of recovery we may have against the person or organization with whom you have agreed in writing in a contract, agreementor permit, to provide insurance such as is afforded under the policy to which this endorsement is attached. This provision does not apply unless the written contract or written agreement has been executed, or permit has been issued, prior to the "bodily injury" or "property damage''. SECTION 1V - BUSINESS AUTO CONDITIONS, Subsection B. General Conditions Coverage is amended as follows: The following is added to 2. Concealment Misrepresentation or Fraud: Your unintentional error is disclosing or failing to disclose any material fact existing at the effective date of this Coverage Form, or during the policy period in connection with any additional hazards, will not prejudice your rights under this Coverage Form. Paragraph 5.b, of 5. Other Insurance is replaced by the following: b. (1) For 'Comprehensive" and "Collision" Auto Physical Damage provided by this endorsement, the following are deemed to be covered "autos' you own: (a) Any covered "auto" you lease, hire, rent or borrow; and (b) Any covered "auto" hired or rented by your "employee" under a contract in that individual "employee's" name, with your permission, while Performing duties related to the conduct of your business. However, any "auto" that is leased, hired, rented or borrowed with a driver is not a covered "auto". (2) Limit of Insurance For This Section The most we will pay for any one "loss" is the lesser of the following: (a) $50,000 per accident, or (b) actual cash value at the time of loss, or CA -500 (7-091 Page 6 cf CA -500 (7-09) M cost of repair. minus a $500 deductible. An adjustment for depreciation and physical condition will be made in determining actual cash value in the event of a total loss. No deductible applies to "toss" caused by fire or lightning. (3) This Hired Auto Physical Damage coverage is excess over any other collectible insurance. (4) Definitions For This Section (a) Comprehensive Coverage: from any cause except the covered "auto's" collision with another object or the covered "auto's" overturn. We will pay glass breakage, "loss,' caused by hitting a bird or animal and "loss" caused by falling objects or missiles. (b) Collision Coverage: caused by the covered "auto's" collision with another object or by the covered "auto's" overturn. E. DEFINITIONS SECTION V — DEFINITIONS, Paragraph C. is replaced by the following: "Bodily injury" means bodily injury. sickness or disease sustained by a person including death resulting from any of these. The definition of "bodily injury" is amended to include mental anguish resulting from any bodily injury, sickness or disease sustained by a person. CA -500 (7-09) Pa ge 7 of 7 HOME OF' ESTABLISHED 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: October 23, 2014 FROM: City Manager AGENDA ITEM: Approval of a Construction Services Agreement between the City of Milton and Gulf Coast Sports, LLC, for the Construction of Two Covered Dugouts at Hopewell Middle School. MEETING DATE: Monday, November 3, 2014 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: APPROVED CITY A TTORNEY APPROVAL REQUIRED: �j YES CITY ATTORNEY REVIEW REQUIRED: YES APPROVAL BY CITY ATTORNEY PLACED ON AGENDA FOR: REMARKS VAPPROVED ((031+ () NOT APPROVED {) NO () NO () NOT APPROVED © 1' YOUGM - G'Ve e n a * Certiliec3 * IaP 4UU PHONE: 678.2422500 1 FAX: 678.242.2499 �•,,,.,,, intoftityolmiltonga.us I www.cityotmlltonga.us WILIal I Community i,h, 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004 '� To: Honorable Mayor and City Council Members From: Jim Cregge, Parks and Recreation Director Date: Submitted on October 21, 2014 for the November 3, 2014 Regular Council Meeting Agenda Item: Approval of a Construction Services Agreement between the City of Milton and Gulf Coast Sports LLC, for the Construction of Two Covered Dugouts at Hopewell Middle School. ____________________________________________________________________________ Department Recommendation: Staff is recommending the approval of a Construction Services Agreement between the City of Milton and Gulf Coast Sports LLC, for the Construction of Two Covered Dugouts at Hopewell Middle School. Executive Summary: This is the final step in a process to improve the baseball/softball field at Hopewell Middle School. This contract will result in the demolition and reconstruction of the existing dugouts. Currently the dugouts only go up to six feet and they lack both a roof and a gate. This presents a safety hazard for the participants in our baseball program. The reconstructed dugouts will greatly improve the participant safety. This field is being used by the Hopewell Youth Association for one year while Bell Memorial Park is undergoing re-construction. Once Bell Memorial Park is back in service, this field will be available for Co-Ed Softball or other programming. Funding and Fiscal Impact: This contract is for $6,824.00 for the re-construction of two (2) dugouts. Funding is coming from the Parks and Trail Expansion budget. Alternatives: The only alternative is to attempt to modify the existing dugouts. That was actually the first course of action pursued. However modifying the existing poles would cause a weakening of the pole that would affect the wind resistance rating required by the Fulton County Board of Page 2 of 2 Education. Also, the additional two feet of chain link fabric would be very difficult to weave into the existing chain link due to the poor condition of the existing fabric. Legal Review: Paul Higbee – Jarrard & Davis 10/20/2014 Concurrent Review: Chris Lagerbloom, City Manager Attachment(s): 1) Construction Services Agreement Gulf Coast Sports LLC. HOMEOF' -:- _, M I LTONI�- ESTABLISHED2006 CONSTRUCTION SERVICES AGREEMENT — SHORT FORM AGREEMENTS $10,000.00 OR LESS TWO COVERED DUGOUTS AT HOPEWELL MIDDLE SCHOOL This Services Agreement (the "Agreement") is made and entered into this day of , 201_, by and between the CITY OF MILTON, GEORGIA (hereinafter referred to as the "City"), and Gulf Coast Sports, LLC (hereinafter referred to as the "Contractor") having its principal place of business at 1426 N Gulf Avenue, Crystal River, FL 34429 WITNESSETH THAT: WHEREAS, the City desires to employ a contractor to perform the services described herein (the "Work"); and WHEREAS, Contractor has familiarized itself with the Contract Documents, as defined below, the Work, and with all local conditions and applicable federal, state and local laws, ordinances, rules and regulations. NOW THEREFORE, the City and Contractor, in consideration of the mutual promises contained herein and other good and valuable consideration, the sufficiency of which is hereby acknowledged, agree as follows: Section 1. Contract Documents: This Agreement and the following named Exhibits, attached hereto and incorporated herein by reference, constitute the "Contract Documents": A. This Agreement (5 Pages) B. Scope of Work, attached hereto as Exhibit "A" C. Insurance Certificate, attached hereto as Exhibit "B" D. Contractor Affidavit and Agreement, attached hereto as Exhibit "C" E. Subcontractor Affidavit, attached hereto as Exhibit "D" To the extent that there may be any conflict among the Contract Documents, the provision operating most to the benefit of the City shall govern. Section 2. The Work: Contractor shall provide all Work described in the Contract Documents. In the event of any discrepancy among the Contract Documents, the provision operating most to the benefit of the City, as determined by the City in its sole discretion, shall govern. Unless otherwise stated in the Contract Documents, the Work shall include Contractor's provision of materials, labor, expenses, and any other cost or item necessary to complete the Work, which is generally described as the construction of two (2) dugout covers and other improvements to the existing dugouts at Hopewell Middle School. Section 3. Contract Time: Contractor understands that time is of the essence of this Agreement and warrants that it will perform the Work in a prompt manner, which shall not impose delays on the progress of the Work. It shall commence Work pursuant to this Agreement on or before a date to be specified on a written "Notice to Proceed" from the City, and shall fully complete the Work within twenty (20) business days of the "Notice to Proceed". Section 4. Work Changes: Any changes to the Work requiring an increase in the Contract Price, as defined below, shall require a written change order executed by the City in accordance with its purchasing regulations. Section 5. Compensation and Method of Payment: City agrees to pay Contractor for the services performed and costs incurred by Contractor upon the City's certification that the services were actually performed and costs actually incurred in accordance with this Agreement. Compensation for services performed and, if applicable, reimbursement for costs incurred shall be paid to Contractor upon the City's receipt and approval of an invoice, submitted upon completion of the Work, setting forth in detail the services performed and costs incurred. Invoices shall reflect charges incurred versus charges budgeted. The total amount paid under this Agreement for the Work shall not, in any case, exceed $6,824.00 (the "Contract Price"), except as outlined in Section 4 above. Contractor shall take no calculated risk in the performance of the Work. Specifically, Contractor agrees that in the event it cannot perform the Work within the budgetary limitations established without disregarding sound principles of Contractor's industry, Contractor will give written notice thereof immediately to the City. Section 6. Covenants of Contractor A. Assignment of Agreement: Contractor covenants and agrees not to assign or transfer any interest in, nor delegate any duties of this Agreement, without the prior express written consent of the City. B. Responsibility of Contractor and Indemnification offity: Contractor covenants and agrees to take and assume all responsibility for the services rendered in connection with the Work. Contractor shall bear all losses and damages directly or indirectly resulting to it on account of the performance or character of the services rendered pursuant to this Agreement. Contractor shall defend, indemnify and hold harmless the City, its officers, boards, commissions, elected and appointed officials, employees and agents from and against any and all claims, suits, actions, liability, judgments, damages, losses, and expenses, including but not limited to, attorney's fees, which may be the result of willful, negligent or tortious conduct arising out of the Work, performance of contracted services, or operations by Contractor, any subcontractor, anyone directly or indirectly employed by Contractor or subcontractor or anyone for whose acts Contractor or subcontractor may be liable, regardless of whether or not the negligent act is caused in part by a party indemnified hereunder. Contractor shall not be required to indemnify the City or its officers, boards, commissions, elected or appointed officials, employees or agents against liability or claims for damages, losses, or expenses, including attorney fees, arising out of bodily injury to persons, death, or damage to property caused by or resulting from the sole negligence of the City or its officers, boards, commissions, elected or appointed officials, employees or agents. C. Independent Contractor: Contractor hereby covenants and declares that it is engaged in an independent business and agrees to perform the Work as an independent contractor, not as agent or employee of City. Inasmuch as City and Contractor are contractors independent of one another, neither has the authority to bind the other to any third person or otherwise to act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. Contractor agrees not to represent itself as City's agent for any purpose to any party or to allow any employee to do so, unless specifically authorized, in advance and in writing, and then only for the limited purpose stated in such authorization. Contractor shall assume full liability for any contracts or agreements Contractor enters into on behalf of City without the express knowledge and prior written consent of City. D. Insurance: Contractor shall have and maintain in full force and effect for the duration of this Agreement, insurance approved by the City as shown on Exhibit "B". E. Licenses, Certifications and Permits: Contractor covenants and declares that it has obtained and will maintain all diplomas, certificates, licenses, permits or the like required by any national, state, regional, City, and local boards, agencies, commissions, committees or other regulatory bodies to perform the Work. Contractor shall comply with applicable legal requirements and meet the standard of quality ordinarily expected of its industry. F. Ownership of Work: All reports, drawings, specifications, and other items prepared or in the process of being prepared for the Work by Contractor ("materials") shall be the property of the City and the City shall be entitled to full access and copies of all materials. All copyrightable subject matter in all materials is hereby assigned to the City and Contractor agrees to execute any additional documents necessary to evidence such assignment. G. Contractor's Representative: Ms. Ashley Ackerman shall be authorized to act on Contractor's behalf with respect to the Work as Contractor's designated representative. H. Confidentiality: Contractor acknowledges that it may receive confidential information of the City and that it will protect the confidentiality of any such confidential information and will require any of its subcontractors, consultants, and/or staff to likewise protect such confidential information. 2 I. Meetings: Contractor shall meet with City's personnel or designated representatives to resolve technical or contractual problems that may occur during the term of the contract, at no additional cost to City. Section 7. Warranty: Contractor shall repair all defects in materials, equipment, or workmanship appearing within one year from the date of completion of the Work at no additional cost to the City. Section 8. Termination: The City may terminate this Agreement for convenience at any time upon written notice to Contractor. Provided that no damages are due to the City for Contractor's breach of this Agreement, the City shall pay Contractor for Work performed to date in accordance with Section 5 herein. Section 9. Miscellaneous A. Governing Law. This Agreement shall be governed by the laws of the State of Georgia. B. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. C. Sovereign Immunity. Nothing contained in this Agreement shall be construed to be a waiver of the City's sovereign immunity or any individual's qualified good faith or official immunities. D. Employment of Unauthorized Aliens Prohibited: (1) E -Verify Affidavit It is the policy of the City of Milton that unauthorized aliens shall not be employed to perform work on City contracts involving the physical performance of services. Therefore, the City shall not enter into a contract for the physical performance of services within the State of Georgia unless: (1) the Contractor shall provide evidence on City -provided forms, attached hereto as Exhibits "C" and "D" (affidavits regarding compliance with the E -Verify program to be sworn under oath under criminal penalty of false swearing pursuant to O.C.G.A. § 16-10-71), that it and Contractor's subcontractors have conducted a verification, under the federal Employment Eligibility Verification ("EEV" or "E -Verify") program, of the social security numbers, or other identifying information now or hereafter accepted by the E -Verify program, of all employees who will perform work on the City contract to ensure that no unauthorized aliens will be employed, or (2) the Contractor provides evidence that it is not required to provide an affidavit because it is licensed pursuant to Title 26 or Title 43 or by the State Bar of Georgia and is in good standing as of the date when the contract for services is to be rendered. The Contractor hereby verifies that it has, prior to executing this Agreement, executed a notarized affidavit, the form of which is provided in Exhibit "C", and submitted such affidavit to City or provided the City with evidence that it is not required to provide such an affidavit because it is licensed and in good standing as noted in subsection (2) above. Further, Contractor hereby agrees to comply with the requirements of the federal Immigration Reform and Control Act of 1986 (IRCA), P.L. 99-603, O.C.G.A. § 13-10-91 and Rule 300-10-1-.02. In the event the Contractor employs or contracts with any subcontractor(s) in connection with the covered contract, the Contractor agrees to secure from such subcontractor(s) attestation of the subcontractor's compliance with O.C.G.A. § 13-10-91 and Rule 300-10-1-.02 by the subcontractor's execution of the subcontractor affidavit, the form of which is attached hereto as 3 Exhibit "D", which subcontractor affidavit shall become part of the contractor/subcontractor agreement, or evidence that the subcontractor is not required to provide such an affidavit because it is licensed and in good standing as noted in subsection (2) above. If a subcontractor affidavit is obtained, Contractor agrees to provide a completed copy to the City within five (5) business days of receipt from any subcontractor. Where Contractor is required to provide an affidavit pursuant to O.C.G.A. § 13-10-91, the City Manager or his/her designee shall be authorized to conduct an inspection of the Contractor's and Contractor's subcontractors' verification process at any time to determine that the verification was correct and complete. The Contractor and Contractor's subcontractors shall retain all documents and records of their respective verification process for a period of three (3) years following completion of the contract. Further, where Contractor is required to provide an affidavit pursuant to O.C.G.A. § 13-10-91, the City Manager or his/her designee shall further be authorized to conduct periodic inspections to ensure that no City Contractor or Contractor's subcontractors employ unauthorized aliens on City contracts. By entering into a contract with the City, the Contractor and Contractor's subcontractors agree to cooperate with any such investigation by making their records and personnel available upon reasonable notice for inspection and questioning. Where a Contractor or Contractor's subcontractors are found to have employed an unauthorized alien, the City Manager or his/her designee may report same to the Department of Homeland Security. The Contractor's failure to cooperate with the investigation may be sanctioned by termination of the contract, and the Contractor shall be liable for all damages and delays occasioned by the City thereby. Contractor agrees that the employee -number category designated below is applicable to the Contractor. [Information only required if a contractor affidavit is required pursuant to O.C.G.A. § 13-10-91.] 500 or more employees. 100 or more employees. Fewer than 100 employees. Contractor hereby agrees that, in the event Contractor employs or contracts with any subcontractor(s) in connection with this Agreement and where the subcontractor is required to provide an affidavit pursuant to O.C.G.A. § 13-10-91, the Contractor will secure from the subcontractor(s) such subcontractor(s') indication of the above employee -number category that is applicable to the subcontractor. The above requirements shall be in addition to the requirements of State and federal law, and shall be construed to be in conformity with those laws. E. Nondiscrimination. In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and all other provisions of Federal law, the Consultant agrees that, during performance of this Agreement, Consultant, for itself, its assignees and successors in interest, will not discriminate against any employee or applicant for employment, any subcontractor, or any supplier because of race, color, creed, national origin, gender, age or disability. In addition, Consultant agrees to comply with all applicable implementing regulations and shall include the provisions of this Section E in every subcontract for services contemplated under this Agreement. N IN WITNESS WHEREOF, the parties have caused this Agreement to be executed under seal as of the date first above written. GULF COAST SPORTS, LLC Signature: Title: [AFFIX CORPORATE SEAL] CITY OF MILTON, GEORGIA Joe Lockwood, Mayor Printed Name: EXHIBIT "A" Scope of Work Contractor shall perform all tasks required to provide and install two (2) new dugouts at Hopewell Middle School.. Each dugout will be 10' D x 30' 1 x 8' H. Each dugout will have one gate the hinges on the home plate side and permits access to the dugout from the field of play. Each dugout will be constructed with commercial grade black vinyl chain link fencing — 9 gauge. Each dugout will have a roof to be made of Steel Classic Rib Paneling. Each dugout roof panel will be connected to eight (8) — 10' cold formed steel structural members. Each dugout roof panel will be silver in color and with the edges to be smoothed to avoid sharpness. Each dugout roof panel will be attached and secured per the Manufacturer's instructions to meet the local codes. All materials, except the roof panel, that are not vinyl clad will be painted glossy black. EXHIBIT "B" Insurance Certificate CERTIFICATE OF LIABILITY INSURANCE OAT8/7/2014 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(les) must be endorsed. if SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER FRANCIS L. DEAN & ASSOCIATES, LLC 1776 S. NAPERVILLE ROAD, BLDG -B CONTACT NAME: aX, N Ext): 800-745-2409 FAX No ; 630-665-7294 E-MAIL ADDRESS: info@fdean.Com P.O. BOX 4200 WHEATON, IL 60189 www.fdean.com (800)745-2409 INSURER(S) AFFORDING COVERAGE NAIC # INSURERA: United States Fire Insurance Company 21113 INSURED SPORTS AND RECREATION PROVIDERS ASSOCIATION (PURCHASING GROUP) AND ITS PARTICIPATING MEMBERS: INSURER B : INSURER C : Gulf Coast Sports AE&S LLC Dba ijump INSURERD: 6040 West Pine Circle Crystal River, FL 34429 IN3URERE: INSURERF: envFuar_Fc CFRTIFICATF NIIMRFR- IISP16R9?9 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL INSR SUER WVD POLICY NUMBER POLICY EFF MVJDD POLICY EXP MM/D LIMITS GENERAL LIABILITY GENERAL AGGREGATE $2,000,000.00 PRODUCTS - COMP/OP AGG $2,000,000.0_0 X COMMERCIAL GENERAL LIABILITY A CLAIMS -MADE a OCCUR X SRPGP-101-0413 08/01/2014 12:01 AM 08101/2015 12:01 AM PERSONAL &ADV INJURY $1,000,000.00 EACH OCCURRENCE $1,000,000.00 FIRE DAMAGE (Any one fire) $300,000.00 (;E—ITL AGGREGATE LIMIT APPLIES PER: MED EXP (Any one person) $0.00 $ PRO - X POLICY JECT LOC AUTOMOBILE LIABILITY EOMaBN�mSINGLELIMIT $ BODILY INJURY (Per person) $ ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS BODILY INJURY (Per accident) $ PROPERTY DAMAGE Per accident $ HIRED AUTO NON -OWNED AUTOS UMBRELLA LIAB OCCUR EACH OCCURRENCE $ AGGREGATE $ EXCESS LIAB CLAIMS -MADE DED RETENTION $ $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY YIN WCSATU- OTH- .T' S ER $ E.L. EACH ACCIDENT g ANY PROPRIETORtPARTNERIEXECUTIVE OFFICERIMEMBER EXCLUDED? ❑ N / A E.L. DISEASE - EA EMPLOYEE $ (Mandatory In NH) If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE -POLICY LIMIT $ DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) Inflatables, Bounce Houses, Slides Combos The certificate holder is added as additional insured but only with respect to liability arising out of operations of the named insured during the policy period. CERTIFICATE HOLDER CANCELLATION City of Milton Fulton County, Georgia SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE 13000 Deerfield Parkway, Suite 107-A THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Milton, GA 30004 ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE I -Francis L. (Dean Q 1988.2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD EXHIBIT "C" CONTRACTOR AFFIDAVIT AND AGREEMENT STATE OF GEORGIA CITY OF MILTON By executing this affidavit, the undersigned contractor verifies its compliance with O.C.G.A. § 13-10-91, stating affirmatively that the individual, firm, or corporation which is engaged in the physical performance of services on behalf of the City of Milton has registered with, is authorized to use and uses the federal work authorization program commonly known as E -Verify, or any subsequent replacement program, in accordance with the applicable provisions and deadlines established in O.C.G.A. § 13-10-91. Furthermore, the undersigned contractor will continue to use the federal work authorization program throughout the contract period and the undersigned contractor will contract for the physical performance of services in satisfaction of such contract only with subcontractors who present an affidavit to the contractor with the information required by O.C.G.A. § 13-10-91(b). Contractor hereby attests that its federal work authorization user identification number and date of authorization are as follows: eVerify Number Date of Authorization GULF COAST SPORTS, LLC Name of Contractor DUGOUT COVERS AND IMPROVEMENTS AT HOPEWELL MIDDLE SCHOOL Name of Project City of Milton Name of Public Employer I hereby declare under penalty of perjury that the foregoing is true and correct. Executed on 201_ in (city), (state). Signature of Authorized Officer or Agent Printed Name and Title of Authorized Officer or Agent SUBSCRIBED AND SWORN BEFORE ME ON THIS THE DAY OF ,201 . NOTARY PUBLIC [NOTARY SEAL] My Commission Expires: EXHIBIT "D" SUBCONTRACTOR AFFIDAVIT STATE OF GEORGIA CITY OF MILTON By executing this affidavit, the undersigned subcontractor verifies its compliance with O.C.G.A. § 13-10-91, stating affirmatively that the individual, firm or corporation which is engaged in the physical performance of services under a contract with Gulf Coast Sports, LLC on behalf of the City of Milton has registered with, is authorized to use and uses the federal work authorization program commonly known as E -Verify, or any subsequent replacement program, in accordance with the applicable provisions and deadlines established in O.C.G.A. § 13-10-91. Furthermore, the undersigned subcontractor will continue to use the federal work authorization program throughout the contract period, and the undersigned subcontractor will contract for the physical performance of services in satisfaction of such contract only with sub -subcontractors who present an affidavit to the subcontractor with the information required by O.C.G.A. § 13-10-91(b). Additionally, the undersigned subcontractor will forward notice of the receipt of an affidavit from a sub -subcontractor to the contractor within five (5) business days of receipt. If the undersigned subcontractor receives notice that a sub -subcontractor has received an affidavit from any other contracted sub -subcontractor, the undersigned subcontractor must forward, within five (5) business days of receipt, a copy of the notice to the contractor. Subcontractor hereby attests that its federal work authorization user identification number and date of authorization are as follows: eVerify Number Date of Authorization Name of Subcontractor DUGOUT COVERS AND IMPROVEMENTS AT HOPEWELL MIDDLE SCHOOL Name of Project City of Milton Name of Public Employer I hereby declare under penalty of perjury that the foregoing is true and correct. Executed on 201_ in (city), (state). Signature of Authorized Officer or Agent Printed Name and Title of Authorized Officer or Agent SUBSCRIBED AND SWORN BEFORE ME ON THIS THE DAY OF ,201 NOTARY PUBLIC [NOTARY SEAL] My Commission Expires: 010 HOME OF ' FSTABLISFIED 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: October 27, 2014 FROM: City Manager AGENDA ITEM: Approval of a Contract Renewal between the City of Milton and AT&T for Broadband Services, MEETING DATE: Monday, November 3, 2014 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: KAPPROVED CITY ATTORNEY APPROVAL REQUIRED.- L YES CITY ATTORNEY REVIEW REQUIRED: K YES APPROVAL BY CITY ATTORNEY PLACED ON AGENDA FOR: REMARKS VAPPROVED () NOT APPROVED () NO {) NO {) NOT APPROVED © Your PHONE: 678.242.25001 FAX: 678.242.2499 Green' *cert�s�* '°�•°0 (; of r info@cityofmiltonga.us I www.cityofmilfonga.us WICommunity k.'yi�h;c 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004 - a To: Honorable Mayor and City Council Members From: David Frizzell, IT Manager Date: Submitted on October 23, 2014 for the November 3, 2014 Regular Council Meeting Agenda Item: Approval of a Contract Renewal between the City of Milton and AT&T for Broadband Services. ____________________________________________________________________________ Department Recommendation: The IT Manager recommends approval of this contract. Executive Summary: This contract provides for internet service at City Hall and Fire Station 43. This is a renewal for the circuit that continues the existing service and upgrades the bandwidth for the city network. Additionally, the AT&T managed firewall service will be removed from the contract. This agreement will lock in the rates for the internet service. Funding and Fiscal Impact: The cost for this service has been budgeted. The cost of the bandwidth improvement will be offset by the removal of the managed firewall provided by AT&T. There will be no change in the IT budget for the new contract. (pricing with our current 10MB circuit & firewall is $2,964/month, while the new circuit will be $1,584/month – this price reduction was anticipated during the FY15 budget discussions. The savings comes from bringing the firewall in-house) Alternatives: With Station 43 now on the city network, our current circuit is experiencing high broadband usage. Moving our infrastructure to the cloud would tax the existing circuit more, creating latency on the network. Legal Review: Paul Higbee – Jarrard & Davis (8/05/2014) Concurrent Review: Chris Lagerbloom, City Manager Attachment(s): City of Milton MA and ASE Combined PDF.pdf �i u AT&T MANAGED INTERNET SERVICE PRICING SCHEDULE Contract Id: 4305083 AT&T MA Reference No. 200912040012UA AT&T Contract ID MIS1114054 Customer AT&T City of Milton AT&T Corp. Street Address: 13000 Deerfield Pkwy, Ste 107 Name: City: Milton State/Province : GA I Title: Zip Code: 30004 Country: United States Date: Customer Contact (for notices) AT&T Sales Contact Information and for Contract Notices © Primary AT&T Contact Name: David Frizzell Name: KYLE GARDNER Title: Street Address: 754 Peachtree St Street Address: 13000 Deerfield Pkwy, Ste 107 City: Atlanta State/Province: GA City: Milton Zip Code: 30308 Country: United States State/Province: GA Telephone: 4049869443 Fax: Zip Code: 30004 Email: kg30lh@us.att.com Country: United States Sales/Branch Manager: HUTCHISON FRANK Telephone: 6782422517 SCVP Name: HUTCHISON FRANK Fax: Sales Strata: Retail Sales Region: SE Email: David.Frizzell@cityofmiltonga.us With a copy to: Customer Account Number or Master Account Number: 1-QRSN- AT&T Corp. 1065 One AT&T Way Bedminster, NJ 07921-0752 ATTN: Master Agreement Support Team Email: mast@aft.com AT&T Solution Provider or Representative Information (if applicable} El Name1: Company Name: Agent Street Address: City: State: Zip Code: Country: Telephone: Fax: Email: Agent Code This Pricing Schedule is part of the Agreement between AT&T and Customer referenced above. The promotional pricing in this Pricing Schedule applies only to the MIS Service(s) ordered at the following Site and shall not apply to any subsequent orders for additional MIS Service(s) to any other Customer locations. Additional orders for Service(s) to additional Customer locations will require AT&T and Customer to sign a new Pricing Schedule for MIS Service, Site Address 13000 Deerfield Parkway, Alpharetta, GA Customer (by its authorized representative) AT&T b its authorized representative) B: B: Name: Name: Title: I Title: Date: I Date: AT&T and Customer Confidential Information Page 1 ASAP! eCRM ID 1-22DCSTO 0514 sa6177 EaMIS IGLOO Pricing Promo 051414 SA PS MIS 2006 SITE SPECIFIC 9/12/2012 AT&T MANAGED INTERNET SERVICE PRICING SCHEDULE 1. SERVICES Contract Id: 4305083 AT&T MA Reference No. 200912040012UA AT&T Contract ID MIS1114054 Service Service Publication Location AT&T Managed Internet Service (MIS) http://serviceguidenew.att.com/sg_flashPlayerPage/MIS AT&T Bandwidth Services http://serviceguidenew.aft.cgm/so flashPlayerPage/BWS 2. PRICING SCHEDULE TERM AND EFFECTIVE DATES Pricing Schedule Term 36 Pricing Schedule Term. Start Date Effective Date of this Pricing Schedule Effective Date of Rates and Discounts Effective Date of this Pricing Schedule 3. MINIMUM PAYMENT PERIOD Service Components Percent of Monthly Service Fees Due Upon Termination Minimum Payment Period Prior to Completion of Minimum P em Period per Service Component All Service Components 50% Longer of 12 months or until the end of the Pricino Schedule Term 4. GRANDFATHERING AND WITHDRAWAL Availability of Service Components is subject to grandfathering and withdrawal per the Service Guide. AT&T and Customer Confidential Information Page 2 ASAP! eCRM ID 1-22DCSTQ 0514 sa6177 EaMIS IGLOO Pricing Promo 051414 SA PS MIS 2006 SITE SPECIFIC 9/12/2012 AT&T MANAGED INTERNET SERVICE PRICING SCHEDULE 5. RATES (US Mainland, and HI only) Section I: AT&T Managed Internet Service Access Bandwidth - Table 1: DNS Services Contract Id: 4305083 AT&T MA Reference No. 200912040012UA AT&T Contract ID MIS1114054 Option I Monthly Service Fee Additional Prima DNS available in increments of up to 15 zones with a maximum of 150 Kilobytes of zone file data $100 per DNS increment Additional Secondary DNS available in increments of up to 15 zones with a maximum of 150 Kilobytes of one file data $100 per DNS increment Table 2: MIS Tele — Installation Discount: 100.0 MISSpeed Undiscounted MIS Undiscounted MIS wl Managed Router 56 Kbps $1,000 $1,000 128 Kbps -1.5 Mb s $1,000 $1,000 NxT-1 $2,500 $2,500 Tiered/Full T-3 $5,000 N/A Tiered OC -3, OC -12, OC -48 $10,000 N/A Ethernet $1,500# $1,500*`# 10 Gig Ethernet* $10,000# N/A * Service not available with MPLS PNT **Pricing available for MIS speeds of 100 Mbps and below and with electrical interfaces only. # Pricing also applies to Service locations in Alaska Table 3: On -Site Installation Discount- 5n_0 % MISSpeed Undiscounted MIS wl Managed Router Only 56 Kbps $999 128 Kbps -1.5 Mb s $999 NxT-1 $999 Tiered/Full T-3 $1,000 Tiered OC -3, OC -12, OC48 $10,000 Ethernet $1,500' x Pricing also applies to Service locations in Alaska Table 4: Flexible Bandwidth Billing Option — Ethernet' Discount applied to MIS & MIS w/Managed Router: 82.0 % Incremental Usage Fee Discount: 82.0 % This discount applies to all Tiered Bandwidth Minimum Commitments in this table This discount applies to all Tiered Bandwidth unless an override discount is indicated. Minimum Commitments in this table unless an override discount is indicated. Tiered Bandwidth MIS Undiscounted MIS with Managed Router Undiscounted Incremental Usage Fee Per Minimum Commitment Monthly Fee Undiscounted Monthly Fee Mb s Discount applied to MIS & MIS w/Managed Router for the following: Incremental Usage Fee Discount for the following: 0.5 Mb s $390 $460 $940 1.0 Mb s $425 $495 $510 1.5 Mb s $470 $540 $380 AT&T and Customer Confidential Information Page 3 ASAP! eCRM ID 1-22DCSTQ 0514 sa6177 EaMIS IGLOO Pricing Promo 051414 SA PS MIS 2006 SITE SPECIFIC 9/12/2012 Contract Id: 4305083 AT&T MA Reference No. 200912040012UA AT&T Contract ID MIS1114054 AT&T MANAGED INTERNET SERVICE PRICING SCHEDULE 2 Mb s $590 $885 $355 3 Mb s $850 $1,145 $340 4 Mb s $1,075 $1,370 $325 5 Mb s $1,125 $1,420 $270 6 Mb s $1,250 $1,545 $250 7 Mb s $1,415 $2,295 $245 8 Mb s $1,565 $2,445 $235 9 Mb s $1,715 $2,595 $230 Discount applied to MIS & MIS wlManaged Router for the following: Incremental Usage Fee Discount for the following: 10 Mb s $1,840 $2,720 $225 15 Mb s $2,465 $3,345 $200 20 Mb s $3,090 $3,970 $190 25 Mb s $3,725 $4,605 $180 Discount applied to MIS & MIS wlManaged Router for the following: Incremental Usage Fee Discount for the following- ollowin :30 30Mb s $4,350 $5,230 $175 35 Mb s $4,990 $5,870 $175 40 Mb s $5,615 $6,495 $170 45 Mb s $6,250 $7,130 $170 Discount applied to MIS & MIS wlManaged Router for the following: Incremental Usage Fee Discount for the following: 50 Mb s $6,770 $7,815 $165 60 Mb s $7,825 $9,005 $160 70 Mb s $8,875 $10,055 $155 75 Mb s $9,410 $10,595 $155 80 Mb s $9,925 $11,105 $150 90 Mb s $10,975 $12,155 $150 Discount applied to MIS & MIS wlManaged Router for the following: Incremental Usage Fee Discount for the following: 100 Mb s $12,025 $13,205 $145 120 Mb s $14,125 $15,305 $145 144 Mb s $16,225 $17,405 $140 150 Mb s $17,065 $18,250 $140 155 Mb s 1 $17,800 1 $18,980 $140 Discount applied to MIS & MIS wlManaged Router for the following: Incremental Usage Fee Discount for the following: 200 Mb s $20,975 $22,780 $130 250 Mb s $24,515 $26,320 $120 300 Mb s $28,050 $29,855 $115 350 Mb s $31,600 $33,405 $110 Discount applied to MIS & MIS wlManaged Router for the following: Incremental Usage Fee Discount for the following: 400 Mb s $35,140 $36,945 $110 450 Mb s $38,675 $40,480 $105 500 Mb s $42,215 $44,020 $105 550 Mb s $45,750 $47,555 $100 600 Mb s 1 $49,290 1 $51,095 $100 622 Mb s 1 $50,700 1 $52,505 $100 Discount applied to MIS & MIS wlMana ed Router for the following: Incremental Usage Fee Discount for the AT&T and Customer Confidential Information Page 4 ASAP! eCRM ID 1-22DCSTQ 0514 sa6177 EaMIS IGLOO Pricing Promo 051414 SA PS MIS 2006 SITE SPECIFIC 9/12/2012 Contract Id: 4305083 AT&T MA Reference No. 200912040012UA AT&T Contract ID MIS1114054 AT&T MANAGED INTERNET SERVICE PRICING SCHEDULE - Pricing also applies to Service locations in Alaska (Override discounts are not applicable to Service locations in Alaska) Section II: Additional Service Fees Moving Fee (during hours) 1 $1,000 per location` Additional Moving Fee (outside standard operating hours — 8:00 a.m. to 5:00 p.m. Monday through Friday) I Additional $500 per location' Subject to availability, pricing also applies to Service locations in Alaska Section III: Local Access Pricing NPA/ Location following: 700 Mb s $56,365 $58,170 $100 800 Mb s $63,440 $65,245 $100 900 Mb s $70,875 $73,930 $100 1000 Mb s $78,250 $81,305 N/A - Pricing also applies to Service locations in Alaska (Override discounts are not applicable to Service locations in Alaska) Section II: Additional Service Fees Moving Fee (during hours) 1 $1,000 per location` Additional Moving Fee (outside standard operating hours — 8:00 a.m. to 5:00 p.m. Monday through Friday) I Additional $500 per location' Subject to availability, pricing also applies to Service locations in Alaska Section III: Local Access Pricing NPA/ Location Access Local Access Non- Local Access Net NXX Bandwidth Recurring Charge Monthly Recurring Charge 678/762 Alpharetta, GA Ethernet 50MBPS $0.00 $870.00 This is the last page of the Pricing Document AT&T and Customer Confidential Information Page 5 ASAP! eCRM ID 1-22DCSTQ 0514 sa6177 EaMIS IGLOO Pricing Promo 051414 SA PS MIS 2006 SITE SPECIFIC 9/12/2012 4049669425 15AD 10:13:12 a.m. 07-01-2014 6/14 2012 J lll��7 I cusla"i— jby !e authorized ) vW or mom mp• Mart»Name orerltar�ls irllunadonal Aftiilate Name 13= Deerii®ld Parkvmy T[tla AOWette, GA 30004 Data: Dec. 20 USA Cd$tumrC,OntM(fbr r Tltte: COLUAlo A, $C 13000 Deal mW Perk*W 29201 Muton, QR 30004 AT&T Corp. Ung Statue One AT&T Wsy Telephone: 87824223t7 8edmire6w, NW 079214M AM. Maser Agmement Support Team Emait ketfoy.chtlstyl�algfcftilar>ga.us ErneN: m This MasterApreaw ant (' nW Agmemann, boN men tine customer naiad above CCL1011=911 and the AT&T arift named abays MTU"), is effac"m when *nod by both CuMmw wW A7&T, and =tinuee in Nteet as bng as Services are provided wider MeawAgmem9 This MOW Agrewnent will appy m d services and equipment CuWoewr buy$ from AT&T, rww and in Sts idum, filet are provided under Pliofnp Sohedutes + c d to or mbmrw*q this Meter Aptrerrwnt raervicesy. O#r Services may be prod by 616*8 addIN&W Pdcft Sclodules at any tints. AT&T oWndwd a rAW Wafte am described in Twt Guldebookk Servim GLWw and othwdocurnenk kkr>hTled In fids MuterAgnowenL rrsh"Of (by Ifs aufte=d jby !e authorized ) Mart»Name on a+�efr'or ew Tft T[tla no* f `o Data: Dec. 20 AT&T and Gusioenar Con&kmdal Information Page t of 9 LA WR I 07h" OCR M to 4049869425 15AD 10: 13:26 a.m. 07-01-2014 7114 1. RCMDUCTION ION 1.1 Overview of oocaaanto, The iarms and oort fins goveming the Services that AT&T provides to Customerare sat !crit► In this Maslar Agrownent the Nlomrtnp addidonal documonts, and any other docuawnts executed by ttts pataON and Werenoing this meterAgmenaft {which documents togelterwHh this WiestarAgreaxttent are cebed'd* Agreernear): (a) Prk:; g Schedules. A Prk*V Schedule Onduding related allaciurtsrtts) boWhs ttw Seviove AT&T may provk4 lo Ctwtortter; the Prim Qmlud rhp discounts, t applicable) for esch service. and the tasat dw*V nrlttrAt wmh prigs we In aFect (" Prtcity schedule Taunt-. (b) TwNft and Oukiebooks.'TaiffW we documents containing the su ndaad descriptions, pdcbV, and other iarma and tort ilib s for a Service tot reg]] cry commissiorss .'Otidebooke ars documents containing the standard descriptions, pricing, and adw tons and condfdons for a Service that work but no longer we, Sed wfdt regrlatory oommissims. Tante and GAdeboda may be found stak blicallom or other boettom AT&T may designate. (o) Acceptable use Policy. AT&T's Acceptable Use Poky GAUP) applies to services pro++Adect over or a�tng the Internet 'rhe AUP may be fl nd atdttxpm1arm, or oMeriocalions AT&T may designate. (d) Service Gulden. The description, prlchlg. and Ow terms and condltiwa for the Gerviov not covered by a Tariff or Otsebook may be contained in a Swvk:e C3ulds, v*fth may be $XWW at of ocher boafty AT&T may agnate. 1.2 Prfratty of Documents, The order of priority of the docxxnertts that form this Agrearrmnt is: Pricing ; this Master Apremwit the AUP; and Tortfts. Guidebooks and sarvtoe Guides; provided that, Totlfrs VA be fust in Oority in any Xdsdtctton where existing law or regulation does not permit contract terms to take precedence over inconsistent tariff terms. 1,3 Revisions to DDcaan MS, Subject to 810cdcn SAO (Materially Adverse Charge). AT&T may revive Toff Guidebooks~ Service Guides or the AUP (COUQ*O*'8arvim Publlcadone) at any time. 1A Execution by Af nates. An AT&T Millais or Customer Af111tatae may sW a PdckV Schedule ref miming tis Agraaement In Its awn nate and such Athlete contract NWI ba a sepWOte, but aeeeotab4 contract incorporating the berms of this Master Agreement v4h respect to that Pricing SchaduhL Customer and AT&T will arrange to have #I* roapeottre Afilfetes oomply with this Agreement regardless of whether an Affillate has signed a Pr1chV SchedtH& 1.8 Capitalized Terms. Cepitatiaed terms not othovAss defined in this Agreement ere defined in Soodon 11(De* filonsj. 2. AT&T DELIVERABLES 2.1 5ervicars. AT&T agrees to stdmr proaids or arrange to hawe an AT&T AtA to provide Suvkas to Cwtcrner in accordance with thisAgnwwnank subject to avakbiky and operational fimRsdons of systems, leeilees orad equipm t Wme required, an AT&T Attf late auf dzed by the appraprlett reguetm y sufitocty WO be the service provider. 2.2 AT&T f ilpmett. Servloes may include use of ante n eMAxnenf owned by AT&T that Is boated at the Sibs rAT&T EquWment`), but title to uta AT&T Equipment volt remain with AT&T. Customer must pm" elecirb power for an ATaT EwTpmettt mul keep hila AT&T Equipment physhWly rectus and thine Rant liens No MuxRnbrartoear. Custmrharw& bear lite risk of toss or damage to AT&T Eg4xnent (ether ban ordinary weer and *4 exoapt to the Want caused by AT&T or Its tagertts. 23 Software. Any software used with the Services will be q&mnsd by tithe rwptsrt hums end conditions apiAmble to such sottwarrs. Thle to softme rermIrts with AT&T or its srppplier. Customer mutat ownply wide sal such trams and candlt m and lttsy talas praeadanc* over this Aeraemsnt as to such somata. 3. CLI87OMER'S 00OPERATION 3.1 Access lRIg , Customer will in a Wroely manner eifow AT&T to erases property and egtgmmt that Custorm controls as reasonably required to provide the Services, and Customer will obtain, at CustotWs aMertse, bn* access for AT&T to property that Cusk mer does riot control (ocher than pubic property) as reasmoly raqufreci to pr+ovias the Services. Am= Nib trance the right to construct, lnst,al� repair, main im replace and mmovs access lutes acrd netwodr hcgdM as U3LV8CLpdr AT&T cent Custeroer ConFAsOW inforntation Page 2 On Ulf VM l 07P4 OM O 4049869425 15AD 10:13:51 a.m. 07-01-2014 8114 wed as to use WWI" equipment apace wthln a bubding, as necessary for Cu lomiges conrwdbn to AT&T1s nGMV k. Cu*mor mutt Pmvtde AT&T tirrwiy intonation and access to Cualameft bolfts and eq*Mw as AT&T reasonably req hoe to provide the SOPAXs. Subject to % reasonable ado sly poiCies. Customer will furr>tsh any cxumduit, holm VAMWaya, wking, PWand d9sh �.y ry . PawarA a, and olhar lUms nameanabyr mqui ed b pe tm kmtallet m of tt,e hawthe � toady IbrAT&Tn rtolrm f rxa b a rnubuelly mule. p� � r . Ct omen wtN U Safi► Working Err *C"ManL Cuttomar wIM ensure that the loudicn at vrtdah AT&T hdak, rndr6ft or pmvttlet Servkn Is a Hattie and tete wWft environmm t, trod of Hasardaus AkdarMs, 14mrdous MMariala' care" arty Substance or mabritd of posing an unreasonable risk b health, salary or pra" or whose use. ftensport, o4mege, MSI til, SAPoasl. or release Is rregulatsd by ww law ralaw to poaft% p auction of air, water, or sad, or health and safety. AT&T does not handle, remove or dispose of Rzmrdma AAaMriait, and AT&T ttas no cbltjWM to pwbm work at a logon that le not a sine and safe working aunt, AT&T will not be tlahle far any Hg=FdCKM Mi fttiaW, &9 Usara. 'UsW maartri anymte wtaa trees or aroosttas any sswvtoa provided lo Cuss mw. Customer hurt acute Users bo comply wiht this Areement; and Cudomer agrees that CWW=r is mq msible for tlsara' cue of any servtoas, untaes sxprassiy Provided to the contrary inapplicable SWoe Pubilix9ons. 34 ttttarttet SOW ms. If a &Wvlce it PVAcNW OW or aacesaea the Iniarnet; Cu par, CuslomeMe Afdltates, and users rnuat saggar with M e AUP. 3.6 RwWO of Sart►i 9c Gustorm may not rood the Servan to third parlies wkhout AT&1*2 written consent. Rase permitied under appllc" law, Customer may Solari ttta $W*GS to Cdatam+tr's AMIstes vvWdM AT&r# cansent. 4, PidCING AND BILt_M 41 Pacing and Ptking Schadsde Term; Terms Appidable Atter band of Prkbw Schedule Term. Unless a Prioktp Schedule sates oit erwiee. the prints lisped in a Pricing ScWule am Mobilized until ttre and of lute PMN Schadula Tam No prvmotton, credit or welverset kM In a SePAOB PUt icason wig apply unless the Pricy Schedule states otitenagmie, At the end of a Pricing Schedule Terra, Customer wtA have the option b ~.. (a) cease ue tQ the Sanrice (whish wil requ&b Customer to take all steps required by AT&T to twmlrtate the Service)+ or (b) continue using he Service wrier a ma*t-io- mWW% secAca w mngwwnt. Unless a Pricing So dulee stales oftwKw m, durkV any morM4ogrxw h service amaryyenr ro, the P60W terms and corrcitlons In affsat on the Mast dap of its PWq Sdteduie Term will oanfirxat rind dna VM by AT&T an 30 days' prior notice to Customer. 4.2 Ad ditiormd Chargers and Tauri. Pdoes set tt M In a Priobtg Schedule are daaeAnke dg and Custom" wAi pray, ati cuurerd and future taxes (exriud nq theta on AT&ry not komek surdwrgW reavvery tees, oust= dearanOW dufts, levies, shipping c limps, and other similar charges (and arw atsoddad b> v%W and pe ofte mwA ft ftm ors4ormtr't falrme to *MV pay suoh farces or similar charges) relatfiV to the sale, transfer of ownership, kwtaltaitorn, license, use on provican of the Services, except to the extant Customer prcn ba uMftdM proof of a valid tax emoatnption prtar to the delivery of Ser Aoss. Ta the eadtent Customer is required bylaw b whhold or deduct any apse temea from payments ales la AT&T, CtBloamer will use reasonable oommercal efforts to rrtGtb*e any such taxes to the exlm'!nt eyed by law or treaig and CusfornsrwAt liunleh AT&TvWth such evidermca as may be nNuIred by raWnnttexing viewfte, b establish (hot such toot has beast paid so MM AT&T may defm any applicable cxbr� 4.3 Brhrg. Unfaaar a Pdcft SchWais gmffms ohtrwIW Ouvwmees obligation to pay tot ad SWVjM wM b@& upon kreWa M and avaitab* Of the Services th Customer. AT&T wig Involce Customer for Me SWAM an a monthly !rests, ar Otherwise es specs ied In the PrlalnQ SdUA te. CustomA Customer v pair AT&T wltitaut deduction (&VOW far � taxes amt: provided in Sealing 4.2 — AddfNanal ClnarQea and Taxes), setoff (earmaept Sar � In Saotlion 4.5 — INMeWd l ! lhptuiCd CChwa dela reason. At Customer's �srsut Oto ATM consent (+aAk h Soy be weivold tttsv+s wld be Operational Impeftww or tax oonseque j, may be ktvotced separably and AT&T WIN Swept payment from such Aihlbbs. Cusiamer will be responsible for paynuw t If Cust merle Afflk s do riot pay drama In accordance with fm Agreement AT&T may require Customer or 9s AWASS in tender a depot if AT&T dabm*VW In leis rsumoble (cutgmaK that Customer or C ustomerls AMWes aro not credtrodhy. 4.4 Payntentr:. PMamtent is due Within 30 days after qts date Of the ifuck a (u><miaas arMOW dale Is Specifind in an appltaMM Tariff or Guidebook) and must Ww to the itwobe matter. Morges must be paid H the ournmey aped In the Irwoioa Restrictive andoreements or other laments On dWft are void. Cuslerner wNi reimburse AT&T for all Soots attociated with collecting delinquent or diahoored Payments, irfc8ng MWOtMble atorrw/s lass. AT&T may at payment *= (a) ileo Sertrt s oothtatned In a Tarr or Guidebook,Guidebook,rite rata apadafAd t wit% or (b) !for al other 8�fait s, at the lower of I X% per month (18% per annum) or lite nuo*wm rate alowed by law for overdue payments. AT&T and Customer Confldential l*rmatkut Page 3 of 9 4049869425 15AD 10: 14:25 a.m. 07-01-2014 9114 4A Delayed Bi&W, Dhwumd Charpm. Cunt ner vM not be mcitdred to pay dwVw for SwYir,'e0I vdcad inn a tim a montt after cbm of ate bKno motltPt in wtkh the dwgar were bwmW, OXOW for awutormatsd or On opwaW atrsisisd cads of anter MA If Cush OP a cher. Custotrwr will provide notiov to AT&T spectica lly klentilyb>p the dtecpes and the real It Is dspWed wi to is maritha atts<r #ta date of to vNsciad TrKmim or Cuatio w walas the dight W die" the charge (axospt to the esdant appl lcab low orothenvive requbft maybe withheld, but if tet paid when due, CueEMW vd I Incur late payment ` s000rdanas wilt S a , 4.4 (Paymanbr): howavar, to the wft t AT&T dstem*w the oNarges Cuetamer cftputad and wtftM urate trnrodeed Ih arror, late payrr►ent bees fw such oharges will be rovemed. 4.5 MARC. Minim= Annual Revenue Comm Invent (IMARRLn .ima on wmuv xwenus oonumarrrent of MARC-EMIa Cha%w set lath in at Pricing Schedule that Customer agrees to satisfy dump each 12 oonsewt!re month period of tltc PftV SdWUI s Term. At the and of each such 12 MOMS period. If Customer fres failed lo so" to MARC for rte preceding 12 month ptuiod. Customer will be busload a shortleJt dtmge In an amowtt equal to the dfflQnartca bobvm Uw MARC and this total of the applicable MARC -Eligible Chargee Incurred dump Ilse 12 month Period. aril psyata4 will be des in eoomcl nce with Secdon 4A Pvymertts). 4.7 AcQuotments to MAIC (a) In go avant of a business downturn beyond Customer's control. or s corporate divsadifure, merjW, eoquisit n et $0119=4 roshntatw1V or neo V0nitadon of CustuaWs badness, or netwwk optfmizallon using oew savicM or reduction of AW"s prices, or fcmce dura ever;K any of which fly impairs cu onw% ober 10 meet Cuatcxnwls MARC, AT&T will offer to suet dile of cbd MARC bo M% d CWtomw% reduced neaps of Seevloes (Ywdht a owe5pondbv adjua� to the Om or dbco mt vale* at On reduced MARC IrM). if the peruse leash muklal aprvernent on a rased MARC, AT&T and Cud ernar will amand the affected Pdit Sduduk proapectively. This SectIon 4.7 will not apply to a sierras ream from CusbnePs n to use service pmvkkm olhar than AT&T. Customer will proms AT&T wrMen notice and evidence of the conditions Customer bebms will require the appdkslion of this pr owhOon. This provision dopa not constitute a waiver of ary charges„ inoiuding sTxtnttty recurring dtarM and shortfall charges Cust ner incurs prior to am wdmeat of Ute affectact Pricing Sc?tedule. (b) If Customer, through merger. consolift5m. aequbbm or otherwfte, acquires a new buses or operation, Ousomer snd AT&T msy rnutualiy agree to mokxk the naw buarl wn or operation under this Agmnent such agreemnt will th .If any, of such addition an Ct,atomWs MAR C or other volume or growth dlscxtcxtts, and Oust nmer's 5. CONT -Me iTtAL INFORMATiON &.t Confidential Inforntation. Confidentiol InfornutU m means: 0) htfomwdon the pwtka share vitt each other In owwwdon wft this Agrtamerd or In anticipation of pro Wkv Services under this Agreement but only to the extent kWnfdiad as Cordbentlal Inbmutdon in writing and (b) except ae may be MWrad by atpp&mble low or reguMon. the term of tilts Agreemerd and any prichtg or other proposals. 5,2 Obligations. Each Party's Cmd WftW Information will. for a period of 3 yreams fottovring Its diadoaun >o the odtatr P" (axoW In tits cats of soft nve, which Is klel`lnlbj (a) be held In carraderlcW (p) be utad and lamarrrkisd betwrsan cowtrles only tar purposes of using tits Servtcae or perhbrmhng ti* ABreerrtertt (Incl v*V in the case of AT&T, tfit oblitty to SarvioeejC )not be ftolcmd, WOW to t1Z+ Mcee%ft V& eorder to clatect rrs, and NW. OW 60�ra� !>"V raalrfthnits cl4o repair �v (but only It such agents and oomtraotom we not dred oomPetltora of to than party and agree In waiting to we and dsalos n restriotions as real othre as this 8ecGon 8), or to the extent authorized to be revlealed by low, govemmental atow* or legal process (but only U such dlec kmr a is Ilm.W to drat which 4 ea auMoMW end ptgenpt notice r pmvMW to the dKftft Party to aha Orient P180WOM and notprohtbbd by law. gavenurrenfal aulfwtlyar legal pros ane 5.3 F.xceplrw. The mBhWone In ttds Section wif not apply b any Mamation that: (a) la irx"er>dently developed by the reoefvtnp party, p) is lawhi lty recaetved by to receiving party free of arty abNatilom W keep t ewfiiderfial; or (c) becomes generally available to Ute pubito oaten than by breach of this Agreement U P6vaey f eters. Esch pdrly Is mapensidfe for mr#ft wet the privacy law& applicable to ate binhu s. if Cmtonrer does not want AT&T personnel to conprehsnd Customer data to which they may hmm souses in parWmktg SerybM Customer should encrypt such data so hart it wit be ca** tgtbft, Until directed ohtervrise by Ccrstoatsr In w> nj tf AT&T dssigrrafas a de*" account raprtaeMeUvt as Cusiomer't< prNraxy oontact wet AT&T, Cudww audtoima that reprewrttattvt to dacuss and dscWw CuBlUmerta aratcxw propriMmy nobvortc kew nation (OPN4 to any employes or agent of Customer wrlthocd v need for fs im authenticavoin or whorl atlon. AT&T and Cuatmner Cwgkk ntlal fftmatfon Pepe 4 of 9 UAUER 10711408 4049869425 15AD 10:14:58 a.m. 07-01-2014 10114 a. WCLAr WR5 AND UMITATIONS OF LtAHII.ITY Q.1 Dtectalrner of Wanantfes, AT&T MAKES NO REPRESENTATIONS OR W JtRAN'Tft_S, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. TME, NONANFRINGEMENT, OR ANY VVMMWTY ARISING BY USAGE 0: TRADE OR COURSE OF DEAI.INQ FURTHER, AT&T MAKES NO REPRESENTATION OR VWIARRANTY THAT TELWMONE CALLS OR OTHER TRANSMISMONS WE.L BE ROUTED OR COMPLETED VNTHOUT ERROR OR INTERRUPTION (INCLUDING CALL$ TO 911 OR ANY SIMILAR EMERGENCY RESPONSE NUMUft OR GUARANTEE RE©ARDINa NETWORK SECURITY, THE I~NGRYPTION EMPLOYED BY ANY SERVICE, THE IN'T'i;G7fM OF ANY DATA THAT IS SENT, BACKED UP, STORED OR SUBJECT TO LOAD BALANCING, OR THAT AT&T$ SECURITY PROCEDURES WILL PREVENT THE LOSS OR ALTMRATION OF, OR IMPROPER AOCES3 TO, CUSTOMER'S DATA AND CONFIDENTIAL INFORMATION. 62 um[t uw of Liabay (a) ATBT'S ENTIRE LIABILITY, AND CUSTOMER'S EXCLUSIVE RIEMEDY, FOR DAMAGES AFUNG OUT OF WSTAKFA OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS OR DEFECTS IN THE SERVICES, AND MOT CAUSED BY CUSTOMER'S NEGLIGENCE, SWILL IN NO EVIDa EXCEED THE APPUCABLE CREDITS SPECIFIED IN A SERVICE PUBLICATION OR PRICING SCHEDUL>;, OR IF NO CREDITS ARE SPECIFIED, AN AMOUNT EQUIVALENT TO THE PROPORTIONATE CHARGE TO CUSTOMER FOR THE PERIOD OF SERVICE DURING VV14CH SUCH MISTAKE, OMISSION. INTERRUPTION, DELAY, ERROR Oft DEFECT IN THE SERVICES OCCURS AND CONTINUES. W NO EVENT "LL ANY OTKER UADIUTY ATTACH TO AT&T. [b) SECTION 8 2(a) VWL.L NOT APPLY YO: (i} BODILY INJURY, DEATH. OR DAMAGE TO REAL OR TANGIBLE PROPERTY DIRECTLY CAUSED BY AT&TS NEGLIGENCE; (IQ BREACH OF SECTION S (Confiderriiad Information. SECTION 10.1 (PublbM, OR SECTION 1D.2 (TWomarks Y, RiN) SETTLEMENT, DEFENSE OR PAYMENT OBLIGATIONS UNDER SECTION 7 (mind party Clak *X OR (M DAMAGES ARISING FROM A'MT'S GROSS NEGLIGENCE OR WILLUTA MWSGONDUCT. {o) NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCMNTAL, CONSEQUENTIAL, PUhKTIVE, RELIANCE, OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGM FOR LOST PROFITS, ADVANTAGE. SAVINGS OR REVENUES, OR INCREASED COST OF OPERATIONS. 8.3 Disdafbter of Liabift AT&T WILL NOT BE LIABLE FOR ANY DAMAGES, EXCEPT TO THE EXTENT CAUSED BY AT8TS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, ARISING OUT OF OR RELATING TO: INTEROPERABILITY, ACCESS OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES, CONTENT, OR NEtWORKlS PROVIDED BY CUSTOMER OR THIRD PARTIES, SERVICE DEFECTS, SERVICE LEVELS, DELAYS, OR INTERRUPTIONS (19XCEPT FOR LIABILITY FOR SUCH EXPLICITLY SET FORTH IN THIS AGREWOM; ANY INTERRUPTION OR ERROR IN ROUTING OR COMPLETING CALLS OR OTHER TRANSMISSIONS ONC:L M40 914 CALLS OR ANY SIMILAR EMERGENCY RESPONSE NUMBER), LOST OR ALTERED MWAGES OR TRANSMISSIONS; OR UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS, OR DESTRUCTION OF CUSTOMER'S, ITS AFFILIATE'S, USERS, OR THIRD PARTIES' APPLICATIONS. CONTENT, DATA PROW". CONVIDEHTIAL INFORMATION, NETWORK, OR SYSTEMS. ISA AppikatIon and Sundvat The dfsda irrw of warra ties and lTmltaaorm of Nabigty set NYM In this ftewwd wB[ rZawndof the Axm of O* n, whadwr In contruct equity, tw � BWft or and e wheOw �n ware vA apply so as to What Ow is party l AffllMss, &W Maar nespectm amptay�eesdmdora, sus, amd auppoers. The Nmitations of ww cIsdaimers set out In No Saodos B will suM" Than of any W dua ve rmmcdiss pmvWed in this Agreement 7. THIRD PARTY CLAIMS 7.1 AT&Ts Obllgaflone. AT&T agrees at 118 expense to deWW or softie sny tWNJ-$ arty dWn gig -"a1 corner, Is AflNlebw And Ile sand thaslr' mspedf% empioyeea and aredor% and to pat all oonlpensMouy DameW 0* a mart way brew mrd qab* such pales to to mad the claim alepes ow a Sense pt&Aded b CuetwW Waet thin Agroemed infdrlaes any Pat K trademark, art , or bm$e secnat; but not in dratRrr•tArx�s whore flu dalm ed k*Ingemerl<atlue out of or resufts from: #t) Co*mees. Ifs Affit3 b s or a User's oontert 0) modff Mk= lo the fimice by Customer, ks AWates or aaJvff- df AT&T and Customer Gonfidetdiet bftnuation Page a of 9 LAVER 107n40W 4049869425 15AD 10:15: 26 a.m. 07-01-2014 11114 lhW partes or combitaffix a of the Ssrvla wM any services or producis not pf Mded by AY&t; 0 Aw's ad ww= to Custonwft or Its Afllixta's written rsyuineraei * or (d) use of tlta Service in vioiatIart of this AgrrswA tt. 72 Gustaf $ 0113tigs5ons. Customer agrees at itq oocperhse to defend or setae aay th Claim AT&T, AT&T's W�tates, and its and Blair reaper �rs, employees, dlrsubconttlors. arta! su and to pay, all ca, ponsaiorY Dameps that a owd may litany w w d aegainat such ptrfin to the aecbri# d" dtirr (a) Kh" od of Custorner"s. its Alfthe % or a Usrtrs access 1k or us* of, the SOMM and On Licht is W the responsibility of AT&T unfit Sedfon 7.1; (b) WWW that a SwAoe lnffinges any psient, Hadenhs k ooW%bt or trade no k end folia withinthe eoaoepijim In Section 7.1; or (c) a es a breach by Customer, its Million, our I1sas of a soflwwe license aWeenw4 gwiwrdM software provided in connection with the Services. 1.3 Wrhgtrrg Services. W mnew AT&T is liable under Section T. 11, AT&T may at An option aithw prod the rW Por Customer la continue using, or may replace or modify, the alkgsd ihMnging Service so that the Service bseornee non- InrNling. 7.d Notice and Cngnmtfon. The party seeking defame or setdrmvnt of a #ft party Clamn under ft SOdAon 7witl no* the Other Party prey upon koffft of any stain forw kh dello nse or astiMmsnt may ba smVK but figure to do sa wig ttrtve no aflecl except to tits sxient the anter parlyy is poWudiaed lien y The party soaking de0�e 4r ointment Willagow the outer party loca* the dw W w and uNw wnt of the chin and i rewmnabiyr cooperate wilts the delletuK but the defending party Mali use counsel reggonahip oocpvrWMd in the a kited matter st Issas, andwlli not soft a Claim without ttte COnBertt of tit p" belt debrided, which corwnt will not be unreasonably w ttitald or dsiayad, except that no consent WN be r9quiraai wham neffef on rhe dWm is rnnilOd to monetary damages that are pitta by the delertdl Q parilr and rthis Swan 7. 8. 81.118MMOM AND TlRli MTION &I Temination of Agrew nt, This Agreement may be ami tided RnrttsdM*ly upon notice by glow party if the OVW party becorrW hw Net, cassis apsretiom is On eub*d of a tar yr petition, snWe rucaiveaNp or any state ictsoNency proceeding, or maim an assignment for then ben eft of its creditors. ai.2 Termination or 8uspemlon of Services. The following addlti wit terminalioo provfstons a" (a) Fraud or Atte AT&T may teOMInOM Or suMx4W an affected ted Service, and if the activity implicates tits a** Agreernartt, terminate the entire Agreement lmm� by providng CcMtomer V&h as much &:Kw ie nota as fa resecna bly practicable under the dreumstances if Customer: (f) cot, w a thud upon AT&T; (1) ushm the SerriN to t> MMft a fraud upon artogter ppaa , (iB) crnfawk* uses the Service;" abuses or misuses ATATA rahw rk or Service; or (v) interferes wfth artodt cusianees use of ATM network or services. (b) iilarwriat tar It If eltlttr party fails to petfarm or observe any material um or oondition of Fifa AWwneK h Adtng noNxWmwd of charges (subject to Section 4.5 — Delayed 9ilbs Disixod Charges): and suoh failure continues unci for 30 days alter Mcelpt of notice, the nonbreadft party may terminalis the attf mind Service, and if ttte bMGM Irrtplcaies the w4res Agrssmwd, tomf its the entire Awvement tf Cuabser is In breach, AT&T may sled to suspend (and taller bwa*ihs afkOW Savica, and 12* breach brhpti:; is the eniine Agreement, euepend (and Paler terminate) the entire Ag ownentt (o) > utwielly Advome Chang*. It AT&T reviats a Service Publeabort and the reAdm has a rnsterlr V adr4rsa impact on Customer, and AT&T doers not efiied re0 ions tlhd remedy such rnateriely atdverse hnpsd rwlt* 30 days aflltr raw ftm Cuatanar. then Cvsiomer may, as Customers sole remedy, deet to krm8taM the 40a*d ewvke Components an 30 days' nodes lo AT&T, given not tater than 90 days atter Customer Scat learns of the whilm 10 the Service Publication. Howew, a rsvielon to a Service Publication MAI rat be considered nwler5dly aduersa w Cusimmetr if it ctaenpee prig stud are not tlxad (stabiised) In a Pricing Sdtadule, d the price dwrqe was reeoxisied by a govematentel &Mo ft or IF the dwnp atfsc is a &werpo Imposed under !Taction 4.2 (Ad nal ChMes aid TSMI (d) Internet Servkts. It Customer fails to redly► a viobrbon of Iter AUP within S days► attiar recefristp notice !tors AT&T, AT&T may suspend the applicable portion of ft Service. AT&T has to rW* however, to suspend or Wnlrak the sppllable pini of to Service imrnedititefy *mm tit) AT&T's suspension or turnk atfan is in response to mulipls or repeated AUP vioiadiene or wmplalrft (Fl) AT&T is acting in response to a court order lir gawww a sal notlim that corlain conduct must be stopped; or (lli) AT&T reasonably de"b%w' (a) tltM & may beto sanclioM iWbitiy. prosec>ubon, or other adverse conseghtencaa under sppHostiTh! low if AM wwr to�ths viola rt to cord ro. ; (b) Vwt such vtob tion may cause harm to or IMesrfere with the kdagrilyr or normal operations or samulty of AT614e network or neWoft wNh whlCh AT&T is krfencwamoted or irpwW* with arwdwr atstorner's use of AT&T services or the iniernaG or (c) that such violation otih vAse pmeenis invi inmtt risk of harm to AUT or ATM wMernfns cr ttseir respecOw smployeeL ua vsr—w AT&T and Cudomer Conk! information Page 0 of 8 LIA VER 1 07114106 eCMA ID 4049869425 15AD 10:15:59 a.m. 07-01-2014 12/14 (e) infrk*bap SaMm. If neither of the ggbr s described in Seem 7.S (I»idnDIn9 $wvkn)aro reasonably available, AT&T may fpr p to effeded Service w*wut Kabft other then a6 staffed in Swt m 7.1 (Mrs 0MOnd * (� ffrzardoua allrrtArfttio. If AT&T ene"ters NOW Hazardousof t3eLs at t ik SPA vihweATU to to �, rnsintmna provkfe SerAmc AT&T may Wm*ub the ei wed P&MM Or =APWW PWbffftW= UnM C?ult=w fwwv+es ertd rwmedataa Harardow Materials at Cu slomer's expwse in acoordanee with appocabta law. tf.3 VfdMmwd Of Sawtw& NdW andrtq duet it Prk*V Schedule may oor mit AT&T to provtds a Sellas to Cumbormer for a Pdoing Schedule Term, and uniew appOWA law ar j Swul4w mandates otherwise, AT&T may discontinue dpr wmdowlel�rwed arvbw p m �18ervtoe or 8ertalae or a Compoment upon 120 days' notice, but"wtwe AT&T genoratfy ponartt m simllarty-actuated eustoomma. U Met of Twr*b Goa. (a) Termination by eltitar party of a Servtca does riot weave any other rids or remedies a party may haw under be AWwmw t. Tw minstion or suspenaion of a SwAos will not Wbd the thie and ot9gations of ft pw#u Mggrdlng any oomrservice, (b) if a Servlos or law4l;e Component is termin~, Cuetorrtsr wBt Qey ail (mourned prior to fate efl� Ww dace of terrakadw. If Cuxbww terminates a Service or sen►!ca Corrporerd, Prior is thrs date Ceretfamer's Obligation to pay for 8endws begin" as provided in Seobon 4.3 (81111rq* Customer VA reimburse AT&T for tirme and res mit incurred prior b the efiectlue date of ianmination, Plus any third party dwrgva nerd ng from the tarrdmatktn. 8.8 71eminadon Charges, (a) It Cusp ww tmmkuAw bila Agrosmemt or an abated ;Service Or 8wVl= Component pts» w t to Sections 8.1 (Termination of Agreernertt), 8.2(b) (Material Breaohy, or 8.2(0) (Materially Advarae Champ); AT&T ummhdw a Servilce pursuant to Section 8.2(e) (ki nghV Swages), or AT&T wltttdrom a Service pursuant to Section 8.3 (Mbdrewal of Services). CustomarWill not be Barbie for cyte tett uffioth dwass eat forth in section U(b). (b) If Cuatnmerl8Mkr►atw a 5atMM or SW*8 Compormt otherthan as set forth in Seabee 8,5(0), W AT&Tgrmirtetss an aflecied Serowe or Sw Ace Component pursuant 10 Sections 8.1 (Tem*wiion of Agrssrrerlj, cr &2(a) (Fraua or Abuse). $,*) (Materiel Breaft 8.2(d) {lm met Serldrask or 8.2(i) (lazardow M0lsrWsj Customer wfi pay Will irey f ( a dit%rertt (Q S termination ocan behtre tits and of " MhM utn Paymant Period, cublomw inn ll p y 50% (unless ss a ci all ntage Is ape MW In ft Frifdng Sdudth) of the mm"dwqps reaxrlrtg mMWW by the months Mmakrirtg kt Ste 1+lbdrttutri Payment Period, Pius any waived or unpaid mon-r0wn" ctta M idar"ad In the, pdcbM S&Adute (=Wfflma but not iimhmd to, any and aN charges for faitue to *dW a Mkttrmum Rafsnft Period (mM), pttw any charges k1 rted b9 AT&T from a oft party (a:Q„ not an AT&T AMWW) duo to the larmlaaticrt, a9 of vvbM w1i, K apprloaae, be applied to Cm t woWs (MARC-MigINa Chargex and (0) rt Cr Bww Isrn*mt a a prift &cdse&ie DW has a MARC, CuWArrw will pay an amount equal to so% of the wastiated MARC, attar apps ttrg amou received pursuant to (li. for the balance of the Pricing Schedule Term, (c) The aw "s est fortis in Section 8.5(b)#) wig not apply if a terminated Sere M Comwmft is mead with an upgraded Safvice Comporwi at Om saane Sha, flat only if 0 !ha Minimum Payment Psslod and aaeoofaied dtwgs for the IaatNrhated Ss� elle equal tat or greater than Elie Nb tmura Pe"rit PWW and aresodeted Ream. �pmtent and M the upgrade Is not restrided kr the epp&Mble Service s. 111FORTM91 PORT CONTROL. Tice parties admowledge that eqiprwnt services, softare, and teahnicst ktfiorma don (including trio mica( assistance end t`rafnW prWAW under ft Agreement may be subject to import and export laws. corrwnffona or regulefions, arm any tape or transfer of Sita eWipmertt P mdarcfs, software. arta todnfoal 1nl mUffan must be M compkrtoe with off such Wp,%, corarendarta and regale((ons. The Parties will not uses, dam, tranrbrr or trsrw* the W*menf, mvioes, wf we, or iechemt. d k*M*On (aver S in)crporatbd Into ottw prodoucfs) ampt N o mptinve vft suxh kws, eonvarraons and rWMIi ra, Cuebmw, not AT&T, is resportalble for comph*V with such lavas, ceeventiane and regulations for a1l inbmafto equornent MW software Customer tranarma between ooumtrien using the SUW M. 90. rAMMLL NMM PROVISIONS lia l Pub$city. Neuer early may Issue any pu tft atthteawnte or annotmaerfi&ft retatiag to ft terms of Slurs Agreement or the provision of Services wifttout lite prior written conssmt of" darer party. AT&Tand Custlmw ConfkkNKW ftlicromMon baps 7 of 9 IA MR 1 07114" 4049869425 15AD 10:16:27 a.m. 07-01-2014 13/14 10.2 Trademarks. Each party agrees not to dloplay or uoe. In adveriisihp or atharwise, arty of the other party's trade names, fagot, trademarks, service marks, or coast indicia of origin W&ad the cow perty'a pft wr[Urirt recreant, wfnimh consent may be revoked at arty W* by rm&*. 1 Q3 Force mute. Bwept for payment of amou to due, neither panty will be Noble kw any daily. f &m In perfixmance, luso or damage due to tire, w0osion. cable arts, power blackout sartlxAmi a, flood, strike, embargo, labor diap ft acts of c M or milbary **. war. tiarrorbm, acts of God, ads of a public enemy, auto or omissions of aarrkn or , sota of m9dy or gni agenabs, or Other oauses beyond such party's nearsormble# control. ICA Ar Mxhntanb and Walvars. Any supplerrrant to or maMMatim or waiver of any prtriri*a of fhb Agus MWd must be In WftV 1Md Signed by AuftflZed repreeantod aea of bods PwOn. A wa wr by either party of any bate of ft ftripaMot WE not opaata se a waterer of any odter broach of this Apreernerrt: 10.5 AtstgnxMtand Subcontracting, (a} IW5 AgMWWt may nOt be aosiprted by althar party wft mA to prior written oonserd of the other party (which owmmt wlti not be unreasoneby withheld or delvjad). Cudomer may, without ArtffuTle awwwrt but upon notice to AT&T, sasIgn in while cr relevant part, Its rlgft and oblpallons mier this Agrserrrent to an AfMale, but Customer wit remain frwafy ntapon" for ft pwftmw= of such obligaUoas. AT&T may, wtdrout Curhhbrnsfa Gorman, assign in whole or relevant part, Its rights and oUlgelfwa uvKW Us Agent to an Affi bte. or stAxmnbract io an Ablate or a 9hird party work to be pertoemed under No AgreemanG lint AT&T W11 in each such ego ren li umclspy reoponolbfe for the perrwma me ofsuoh obf9stions. (b) In accrdrles where AT&T dose not have an AfQBete to provide SwviM AT&T may =*nh ha rights and ab ons related to a Servke to a kcal service provider, but AT&T wN r nlnain Maporlabie in Cuttonerbbr mM obligatborm, in certain cormWax, Custww may be mquined to contract directly wlth itre local ser4ce provldec (o) AN awlgma t other than in permitted by this 9eGborn 10.5 la void. 10.6 9evwabft. IF any portion of this Aera►ment is bund to be imiM or unenforceable or if, nft*hdwdrg t3ocftr1 10.10 (GMrrtag law), appleabie mandates a dirt Irderpr uem or mpA the rernalnirta provisions will remain In aft end the parties wit nepoUate in good fAM to subatlbrte for such hwniid, illegal, or unentbrcrtabte pr&Aft n a mutually ROORPtW* prO1000n COnsbtwd Wilt the orbpinal Intention of the parties. 10.7 hitmothre 12eref_ Notting In tMa Agrawwd is Intended, or should be ccortetrued, th IImft a rfptnt to seek pr%LWA teary or pemtanent W U x*ve ne W from a court of carrpstsrtt f urisdlcdcrn fOr a breach of wry pr+ovtstsn ofWs r4greawant. 10.8 Legal Adan. Any a ctim ariefrrg in cormeation with fhb A moat be filed WKWn 2 yon attar On caws of a0tlon accrues or it will be dearrod dyne► barred and weloed. Tthe pertlea waivo any aldtrbe of ank%oUorrs to the =*Rry. 10.5 Notices. AN notices required under this Agreement will be delivered In wYtft to the ncipisrtf a oontsd 6WWOtad on the owm peas of this Mosier Agreement, or to such other comet as deeinatsd in wrf ft tarn tine to time: Notices shag be by k tennetiorAly mcogni teed avemigM courier. cwMed or regetered mall. email. or faaairrWe and wil be et[edive upon moW or when dewy Is neftraed, whlchsvaroccurs soofW. 10.10 GovernI g tom.. This Agreement wrl 09 Qaverr*d by the law of the State of Now York, Wont mWd to iia *WU Of later princip n. urtbss a regulatory agency wN h WadWion over the epp hie Service appkn a Misma law. The linked Nefrats Corrventl m on Contracts for I mationai Sale of Goorb will oat apply. 10.11 Compliance with Lava. EeM part► will oonrply wttn ao applka" kwa, regulatboc % and adets %sled by c aunts or atm gav mmerrtal bodies of empsientpriadleton. 10.12 No Third Fahy BeneffolaAw This Agreement Is for the benaft cf Customer and AT&T, and does not provide any O*d party (MdudnQ Users) the right b enim m or bring an action br srry remedy, date, bbif3ty, rejmb tnsusnent! OMM of ocftL or other right or prlvfbepe. 10.13 Sunvival. The reepecdlve obligations of Custanrter std AT&T that by their nawfe would c wKkr , beyond the ierminaft or spireilan of ibis Agreement, Including without limltOOMI, the obiiigsOms set forth In Sedbn 5 (CordderdW Wf read SWUM 6 (flisclah ors and Llama of , and Section 7 MW Forty CW m), w6 wrvive tormbnew or awrow n. 10.14 Agreement Lwe agrt. The auUtenho a of Unix Aereernertt is Ergkh. If them k a OaAct betrwm thio Agreement and any transiaMan. the English version wo ice wooedbnce. UILvar-W AT&T and Curstom& Contidantid Wongation Page a of 9 Ljk1- :j; eCRM to 4049669425 15AD 10:16:54 a.m. 07-01-2014 14114 10AIS Entire Agreeinent This Agreement conalliules the are agreement bebwsre the parties Wth map" b tae Services provided under rids Agreemefrt. Excel as provided in Section 7.3 (Softvmrvj this Apinntertt supersedes ail Ww agredments, proposak, representadarle, ststamsnta Cr understmfta, whether wrl9wi or ora, conow tap ttfai SrmAoss or to rfthie and ablpelleeS Allift b the df� etvtoes, and the parties disdain ww svW= town. This Agmernar t wA) teat be madded or supptemw>tad by any wr tan or oral eiaterseon* Proposata, tefrprvasrrbtdorre, ScPartlamsnlfs, service descr illorm or purdow order forms riot exprsnly oat forth In tHa Agres ant. ii. DBViiTldiKS The iolow ft Mattes have the nwanirvs am forth baibw. WNW of a perky moons array WRY th at conVOK Is c iontmiled by. or is ~ ootmnon oonbd wird, suich parr. 'damages' areatus calWCUvay all ir4ury, damage, llalsitity, loss. ponaNy, interest and eegienss kaxTed. "Efts iva Wo" riaearla, for any Pricing Sdeedatle, the date On whets thea fest party 09M the Pricing $dleduie fess a later data Is required by regflaion or later. WARN C1WY ea' Insane, union Die apptiosble Pricing Schedule 1rricifts othsrwiea„ the rec urft arad awo cMarpes, attar deducting appleWe discounts and Credos (carer flier ouMpe or 6!A avdIK Viet AT&T d=W Cue Her the Services identifged in the appiicayie Prtct Schedute as MARGcontdbutlnp. The U=ft are not lfIARGE101a Charges: (a) WoMes for or In connection with Cualomeft puidfatae of wMpnent: (b) tam OW (c) dwrpas tnpasad In =wWCd0n with govemmenUdly WaDved casts or fees *rob ss USF, PICC. psyphons s r*8 provider cors n. E91 f and deaf relay charges} Wnbaum Parnent Period" means. in respect ID any Service, the n1ri nurn period for which Cust rAw Is "Arad to pry recurx *M charges for the Service, as spaciW iDthe Pdit SclWduise or SerAm PLwco an far that Service. "Minimum Rataeftn Padod' means. in rasped tD any SerAce, the period oflhne forwhich CuA mar In required b ma Irttain Gervice to &VOW d* Schedulepaymerrl of certain ovdfs, waived c wpw, or unpaid arnortized Chown, 9111 as specified In the PrI ft or Servim hubi(a far ttrat Servim "Sutures ComponeriC means an hJNWuW oamponent of a SsrvicapraviLliWd under rift AWeernent. VW arsons Ccielorner's physical We obon, kwkrdiafg Custorner's colocolion Space on Mrs, its AMats's, or subao�' property, where AT&T installs orprovides a Servios. UILWi4 f AT&T and Customer ConSdantial information Paso * of 4 IU►NFA 107MOB aCt�r! I[J,_,,,,_ ON HOME OF' F S TA M I S I I F D 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: October 23, 2014 FROM, City Manager AGENDA ITEM: Proclamation Recognizing Pancreatic Cancer Awareness Month. MEETING DATE: Monday, November 3, 2014 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: -APPROVED CITY ATTORNEY APPROVAL REQUIRED: () YES CITY ATTORNEY REVIEW REQUIRED: () YES APPROVAL BY CITY ATTORNEY () APPROVED PLACED ON AGENDA FOR: REMARKS U0314 O NOT APPROVED PNO y NO O NOT APPROVED © 10 YODEM PHONE: 678.242.25001 fAX: 678.242.2499 Green I C'up o! info4cityofmiltonga.us i www.cityofmilfonga.us Wit D1.1H Community 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004 �'a Pancreatic Cancer Awareness Month WHEREAS, in 2014, an estimated 46,420 people will be diagnosed with pancreatic cancer in the United States and 39,590 will die from the disease; and WHEREAS, pancreatic cancer is one of the deadliest cancers, is the fourth leading cause of cancer death in the United States, and is the only major cancer with a five-year relative survival rate in the single digits at just six percent; and WHEREAS, when symptoms of pancreatic cancer present themselves, it is late stage, and 73 percent of pancreatic cancer patients die within the first year of their diagnosis while 94 percent of pancreatic cancer patients die within the first five years; and WHEREAS, approximately 1,040 deaths will occur in Georgia in 2014; and WHEREAS, the Recalcitrant Cancer Research Act was signed into law in 2012, which calls on the National Cancer Institute to develop scientific frameworks, or strategic plans, for pancreatic cancer and other deadly cancers, which will help provide the strategic direction and guidance needed to make true progress against these diseases; and WHEREAS, the Pancreatic Cancer Action Network is the national organization serving the pancreatic cancer community in the City of Milton and nationwide through a comprehensive approach that includes public policy, research funding, patient services, and public awareness and education related to developing effective treatments and a cure for pancreatic cancer; and WHEREAS, the Pancreatic Cancer Action Network and its affiliates in the City of Milton support those patients currently battling pancreatic cancer, as well as to those who have lost their lives to the disease, and are committed to nothing less than a cure; and WHEREAS, the good health and well-being of the residents of the City of Milton are enhanced as a direct result of increased awareness about pancreatic cancer and research into early detection, causes, and effective treatments. NOW, THEREFORE, we, the Mayor and City Council of the City of Milton, Georgia hereby dedicate and proclaim November as “Pancreatic Cancer Awareness Month” in the City of Milton and call this observance to the attention of all of our citizens. Given under my hand and seal of the City of Milton, Georgia on this 3rd day of November, 2014. ______________________ Joe Lockwood, Mayor I Is HOME QF' '—'ON tf t, i ESTABLISHED 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: October 23, 2014 FROM: City Manager AGENDA ITEM: Proclamation Recognizing Veterans Day 2014. MEETING DATE: Monday, November 3, 2014 Regular City Council Meeting BACKGROUND INFORMATION. (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: APPROVED CITY ATTORNEY APPROVAL REQUIRED: () YES CITY ATTORNEY REVIEW REQUIRED: O YES APPROVAL BY CITY ATTORNEY () APPROVED PLACED ON AGENDA FOR,- REMARKS OR,REMARKS (} NOT APPROVED NO XNO O NOT APPROVED ©'*YOU *** PHONE: 678.242.25001 FAX: 678.242.2499 Green~ *c e«a* =op 10D infoftifyofmiltonga.us J www.cityofmilfonga.us WiLPLFr Community 13000 Deerfield Parkway, Suite 107 1 Muton GA 30004 Veterans Day 2014 WHEREAS, it has long been our custom to commemorate November 11, the anniversary of the ending of World War I, by paying tribute to the heroes of that tragic struggle and by rededicating ourselves to the cause of peace; and WHEREAS, in the intervening years the United States has been involved in several other great military conflicts, which have added millions of veterans living and dead to the honor rolls of this Nation; and WHEREAS, the Congress passed a concurrent resolution on June 4, 1926 (44 Stat. 1982), calling for the observance of November 11 with appropriate ceremonies, and later provided in an Act approved May 13, 1938 (52 Stat. 351), that the eleventh of November should be a legal holiday and should be known as Armistice Day; and WHEREAS, in order to expand the significance of that commemoration and in order that a grateful Nation might pay appropriate homage to the veterans of all its wars who have contributed so much to the preservation of this Nation, the Congress, by an Act approved June 1, 1954 (68 Stat. 168), changed the name of the holiday to Veterans Day: NOW, THEREFORE, we, the Mayor and City Council of the City of Milton, hereby call upon all of our citizens to observe Tuesday, November 11, 2014, as Veterans Day. On that day let us solemnly remember the sacrifices of all those who fought so valiantly, on the seas, in the air, and on foreign shores, to preserve our heritage of freedom, and let us consecrate ourselves to the task of promoting an enduring peace so that their efforts shall not have been in vain. Given under my hand and seal of the City of Milton, Georgia on this 3rd day of November 2014. _____________________________ Joe Lockwood, Mayor MO. HOME OF' ESTABLISHED 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: October 23, 2014 FROM: City Manager AGENDA ITEM: RZ14-14 - Consideration of an Ordinance to Amend Section 64-1596 Event; Special Indoor/Outdoor, of the City of Milton, Georgia Code of Ordinances to Include Provisions of Chapter 34, Article III, Division 2, to Streamline the Existing Regulation of Special Events; and to Limit Sales from Vehicles at Special Events; to Provide for the Repeal of Conflicting Ordinances; to Provide an Effective Date; and for Other Lawful Purposes. MEETING DATE: Monday, November 3, 2014 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: APPROVED CITY ATTORNEY APPROVAL REQUIRED: ) YES CITY ATTORNEY REVIEW REQUIRED: YES APPROVAL BY CITY ATTORNEY APPROVED PLACED ON AGENDA FOR: /\ 1 ( O 31 4 REMARKS () NOT APPROVED (} NO () NO () NOT APPROVED 10 YOUID PHONE: 678.242.2500 FAX: 678.242.2499 Greene : c�«<€ed Ethics info@cifyofmilfonga.us I www.ciL1'ELDLIFE Communityfyofmilfonga.us 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004 To: Honorable Mayor and City Council Members From: Jason Wright, Communications Manager Date: Submitted on September 19, 2014 for the November 3, 2014 and November 17, 2014 Regular Council Meeting Agenda Item: RZ14-14 - Consideration of an Ordinance to Amend Section 64-1596 Event; Special Indoor/Outdoor, of the City of Milton, Georgia Code of Ordinances to Include Provisions of Chapter 34, Article III, Division 2, to Streamline the Existing Regulation of Special Events; and to Limit Sales from Vehicles at Special Events; to Provide for the Repeal of Conflicting Ordinances; to Provide an Effective Date; and for Other Lawful Purposes. ______________________________________________________________________________ Department Recommendation: Approval. Executive Summary: In September City manager Chris Lagerbloom asked the Communications Department to take over permitting of Special Events. In addition to modifying the permit process, we pulled all special event language from Parks and Recreation code. This ordinance moves all special events code to one section in Chapter 64. Funding and Fiscal Impact: No funding impact. Alternatives: Denial; continuation of current code Legal Review: Paul Higbee – Jarrard & Davis (9/19/2014) Concurrent Review: Chris Lagerbloom, City Manager Attachment(s): Ordinance STATE OF GEORGIA COUTY OF FULTON ORDINANCE NO. RZ14-14 AN ORDINANCE TO AMEND SECTION 64-1596 EVENT; SPECIAL INDOOR/OUTDOOR, OF THE CITY OF MILTON, GEORGIA CODE OF ORDINANCES, TO INCLUDE PROVISIONS OF CHAPTER 34, ARTICLE III, DIVISION 2, TO STREAMLINE THE EXISTING REGULATION OF SPECIAL EVENTS; AND TO LIMIT SALES FROM VEHICLES AT SPECIAL EVENTS; TO PROVIDE FOR THE REPEAL OF CONFLICTING ORDINANCES; TO PROVIDE AN EFFECTIVE DATE; AND FOR OTHER LAWFUL PURPOSES BE IT ORDAINED that the City Council of the City of Milton, GA while in a regularly called council meeting on November 17, 2014 at 6:00 p.m. does hereby ratify and approve the following Ordinance: SECTION 1. That Chapter 64, Article IX, Division 3, Subdivision II, Section 64-1596 of the Milton Code is hereby amended by deleting the Section in its entirety and replacing it with the language attached hereto as Exhibit “A”. SECTION 2. That Chapter 34, Article III, Division 2, Sections 34-63, 34,-64, 34-65 and 34- 66 are deleted. SECTION 3. All ordinances, parts of ordinances, or regulations in conflict herewith are repealed. SECTION 4. That this Ordinance shall become effective upon its adoption. ORDAINED this the 17th day of November, 2014. ____________________________________ Joe Lockwood, Mayor Attest: ______________________________ Sudie AM Gordon, City Clerk (Seal) RZ14-14 – Text Amendment prepared for the City of Milton Mayor and City Council Meeting on November 3, 2014 (First Presentation). Page 1 of 7 Sec. 64-1596. Event; special indoor/outdoor. 1. Definitions. The following words, terms and phrases, when used in this articleSection, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Special event means any activity which occurs upon private or public property that will significantly affect the ordinary use of the property parks, sidewalks or access roads in such a way as to constitute a public nuisance. a. The term "special event" includes, but is not limited to: i. Fairs; ii. Tours; iii. Grand opening celebrations; iv. Arts festivals; v. Concerts; and vi. Holiday celebrations. b. The term "special event" does not include private social gatherings on private property which will make no use of city streets other than for lawful access and parking. c. The term "special event" also does not include: i. Garage sales; ii. Lawn sales; iii. Rummage sales; or iv. Any similar casual sale of tangible personal property. 2. Required. a. No person or organization shall conduct a special event without first having obtained a special event permit from the city. City staff may shall issue a special event permits for special eventsupon compliance with the requirements of this Section, which events would otherwise constitute a public nuisance without such permit. RZ14-14 – Text Amendment prepared for the City of Milton Mayor and City Council Meeting on November 3, 2014 (First Presentation). Page 2 of 7 b. As applicableNotwithstanding the issuance of a special event permit, such issuance shall not alleviate the obligation to comply with , special events are subject to the requirements of other city departments, such as emergency medical services plans, emergency planning and preparedness plans, tent permits, pyrotechnics permits, food service permits, etc., as well as with other sections of this Code, including, but not limited to those regulating : i. Alcoholic beverages; ii. Business licenses; iii. Fire safety; iv. Zoning; and v. Signs. c. Required districts. O-I, MIX, C-1, C-2, M-1A, M-1, M-2, AG-1 and residential districts in conjunction with an institutional use, such as a place of worship or a school, or for the benefit of charity such as tours of homes, show houses, and the like. All districts. 3. Standards. a. No more than two administrative special event permits shall be granted per year and no permit shall be effective for more than 14 consecutive days for a single event on the same property. An application for said permit shall be made no less than 14 days prior to the event. Said permit must be in possession of the applicant and available for inpsection during the hours for which the permit is issued. b. City staff will determine if the hours of the special event constitute a public nuisance. c. Two copies of a drawing, no larger in size than 11 inches by 17 inches, with dimensions (distances in feet) of the activity's location from the site's property lines and other minimum distance requirements as specified by this section shall be submitted to the community development department for approval. Said drawing shall also depict north arrow, curb cuts and traffic patterns. d. The applicant shall provide a notarized written permission statement of the property owner or leaseholder of the subject site to the community development department. A 24-hour contact number of the property owner or leaseholder shall be provided along with permit application. e. The entire property shall comply with the zoning district's setback requirements. f. No temporary sanitary facility or trash receptacle may be located within 100 feet of a property line of any residential use. RZ14-14 – Text Amendment prepared for the City of Milton Mayor and City Council Meeting on November 3, 2014 (First Presentation). Page 3 of 7 g. No tent, table or other temporary structure shall be located within the applicable minimum building setbacks on the subject site250 feet of a residential structure. i. Tents less than 5,000 square feet do not require a building permit; tents equal to or greater than 5,000 square feet require structural plan review and a building permit. ii. All tents are subject to the fire department's approval. h. Sales from vehicles are prohibited unless approved for the special event by the Special Event coordinator for the City of Milton. i. The entire property shall comply with city's parking requirements. j. No equipment, vehicle, display or sales activity shall block access to a public facility such as a telephone booth, mail box, parking meter, fire hydrant, fire alarm box, traffic control box, driveway or other access point. k. A sSound levels shall be in accordance with article VII of Chapter 20 of the City Code. of 65 dBA shall not be exceeded at adjacent property lines of any residential use. l. Signage shall be in accordance with article XVI of this zoning ordinance. m. Any special event with an expected sustained attendance of more than 500 at any given time is required to provide a medical team (paramedic/EMT) and two off-duty police officers. Only City of Milton police officers may direct traffic on city streets. Medical teams must be City of Milton Fire Department employees. Police oOfficers are shall be compensated at $50 an hour an approved rate per hour with a two hour minimum. Firefighters Fire Department employees shall be are compensated based on the size and infrastructure needs of the event (ambulance, fire truck, etc.). 4. Application. a. Required; fee. An application for a special event permit shall be submitted to the recreation and parks director with a nonrefundable fee in the amount established from time to time by the city council no later than 60 days prior to the proposed event. b. Waiver of fee for charitable event. Upon a written request and submittal of the appropriate documentation, the city manager may waive or reduce the permit application fee for fundraising for charitable events if he or she determines that such fee is overly burdensome to the requestor or does not promote the city's general welfare. c. Contents. The following information shall be provided on with everyany permit application: i. Purpose of the special event; Comment [PF1]: Must this be a city police officer (see the next sentence) if they are not directing traffic? RZ14-14 – Text Amendment prepared for the City of Milton Mayor and City Council Meeting on November 3, 2014 (First Presentation). Page 4 of 7 ii. Name, address, and telephone number of sponsoring organization and the individual who is responsible for supervising and directing their proposed event; iii. Proposed date, location, and hours of operation; iv. Schedule of proposed events; v. Projected attendance at the event; vi. Plan for parking, restroom facilities and sanitation concerns; and vii. Any other such information as the special events coordinator deems reasonably necessary to determine that the permit meets the requirements of this articleSection. d. Complying with other Code sections. The permit shall not waive the requirements of complying with other sections of this Code including, but not limited to, regulations on: i. Alcoholic beverages; ii. Business licenses; iii. Fire safety; iv. Zoning; and v. Signs. de. Waiver of time limit. i. The 60 day time requirement of subsection (a) of this section may be waived by the city manager upon a written request and submittal of the appropriate documentation that shows clear and compelling need of immediate action. Among other reasons, Iignorance of the permit requirement shall not establish clear and convincing need. ii. Unless expressly provided elsewhere in this articleNotwithstanding the proceeding paragraph, no special event permit shall be issued for applications submitted less than three days before an a special event. 5. Denial and revocation. a. Reasons for the denial of a special event permit include, but are not limited to, the following: RZ14-14 – Text Amendment prepared for the City of Milton Mayor and City Council Meeting on November 3, 2014 (First Presentation). Page 5 of 7 i. The event will require the diversion of so many public employees that allowing the event would unreasonably deny service to the remainder of the city; ii. The application contains incomplete or false information; iii. The applicant fails to comply with all terms of this articleSection, including the failure to remit all fees and deposits or the failure to provide proof of insurance, bonds, and a save-harmless agreement to the city; and iv. The event will last longer than three days. b. Reasons for the revocation of a special events permit include: i. The application contained incomplete or false information; ii. The applicant does not comply with all terms and conditions of permit; iii. The applicant fails to arrange for or adequately remit all fees, deposits, insurance, or bonds to the city; iv. A disaster, public calamity, change in applicable law, riot, or other emergency exists. v. All permits issued pursuant to this article Section shall be temporary and do not vest any permanent rights. 6. Performance bond. a. Required. A performance deposit bond in the amount of 150 percent of the total estimated costs of the special event to the city shall be remitted to the city before the special event permit is issued. The terms of the bond shall be such that the bond shall not be released until the actual cost of the special event has been paid to the city. For purposes of calculating total estimated costs and the actual cost of the special event, no consideration shall be given to the cost of providing security or traffic control. Furthermore, no consideration may be given to the message of the special event, nor to the content of speech, nor the identiy or associational relationships of the applicant, nor to any assumptions or predictions as to the amount of hositility which may be aroused in the public by the content of speech or message conveyed as part of the special event. b. Waiver. The requirement in subsection (a) may be waived by the city manager where the city manager finds that, based on specific factual findings, that the performance deposit bond would be unduly overly burdensome, would unduly burden speech, would impair the general welfare of the city, or would be unnecessary given the size of the event or the past history. 7. Insurance. Comment [PF2]: Is this an attempt to get the determination in writing? Don’t need “specific factual” unless it is intended to mean something else, in which case it should be made clear. So only need to say “where the city manager finds that RZ14-14 – Text Amendment prepared for the City of Milton Mayor and City Council Meeting on November 3, 2014 (First Presentation). Page 6 of 7 a. Required. At the city's request, the applicant may be required to obtain and present evidence of a surety indemnity bond or comprehensive liability insurance naming the city as an additional insured. b. Minimum requirements. The insurance requirement is a minimum of $300,000.00, personal injury per occurrence, and $100,000.00, property damage per occurrence against all claims arising from permits issued pursuant to this article. c. Additional coverage may be required. If the event poses higher risks than covered by such insurance, the applicant shall be responsible for assessing the risks of the event and obtaining additional insurance coverage naming the city as an additional insured. 8. Save-harmless agreement required. The applicant is required to provide a save-harmless agreement in which the applicant agrees to defend, pay, and save harmless the city, its officers, and employees, from any and all claims or lawsuits for personal injury or property damage arising from or in any way connected to the special event; excepting any claims arising solely out of the negligent acts of the city, its officers, and employees. 9. Cleanup requirements. a. A special event permit may be issued only after adequate waste disposal facilities, including, where necessary, portable toilets, have been identified and evidence of a contract to provide the required facilities is provided obtained by the applicant. b. The applicant will clean public property of rubbish and debris, returning it to its pre- event condition, within 24 hours of the conclusion of the special event. c. If the applicant fails to clean up such refuse, such clean up shall be arranged by the city and the costs charged to the applicant. 10. City manager may waiver bond requirement. Upon written request and submittal of appropriate documentation, the city manager may waive the bond requirement if he or she determines that such fee is: a. Overly burdensome; b. Unlawfully burdens speech; or c. Does not promote the general welfare of the city. 12. City invokes sovereign immunity right. RZ14-14 – Text Amendment prepared for the City of Milton Mayor and City Council Meeting on November 3, 2014 (First Presentation). Page 7 of 7 a. This section shall not be construed as a waiver of any immunity to which the city is entitled. b. This article section shall not be construed as imposing upon the city or its officials or employees or agents any liability or responsibility for any injury or damage to any person in any way connected to the use for which permit has been issued. c. The city and its officials and employees and agents shall not be deemed to have assumed any liability or responsibility by reasons of: i. Inspections performed; ii. The issuance of any permit; or iii. The approval of any public property use. H HOME OF ' ESTAIILISHED 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: October 28, 2014 FROM: City Manager AGENDA ITEM: Consideration of an Ordinance to Amend Chapter 46, Solid Waste, Article II, Littering, Section 46-24, to Require Construction Site Operators to Properly Dispose of Building Materials and Waste at a Construction Site that may Cause Adverse Impacts to Water Quality. MEETING DATE: Monday, November 3, 2014 Regular City Council Meeting BACKGROUND INFORMATION. (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: (APPROVED () NOT APPROVED CITY ATTORNEY APPROVAL REQUIRED: 0 YES () NO CITY ATTORNEY REVIEW REQUIRED: (YES () NO APPROVAL BY CITY ATTORNEY OAPPROVED () NOT APPROVED PLACED ON AGENDA FOR: REMARKS Tio31LA q1?1T You ( —*** PHONE: 678.242.25001 FAX: 678.242.2499 'Green .9 *cenisf info@cityofmilfonga.us I www.cityofmiltonga.us uu Of ci11Vi` 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004 a To: Honorable Mayor and City Council Members From: James Seeba, Stormwater Engineer Carter Lucas, Public Works Director Date: Submitted on October 28, 2014 for the November 3, 2014 Regular Council Meeting Agenda Item: Consideration of an Ordinance to Amend Chapter 46, Solid Waste, Article II, Littering, Section 46-24, to Require Construction Site Operators to Properly Dispose of Building Materials and Waste at a Construction Site that may Cause Adverse Impacts to Water Quality. ____________________________________________________________________________ Department Recommendation: Approval. Executive Summary: As part of the City’s NPDES stormwater permit requirements, the Georgia Department of Natural Resources is requiring that our Solid Waste and Litter Control Ordinance be revised to include the control of litter and debris from construction sites in the City. Funding and Fiscal Impact: Funding is not required. Alternatives: There are no alternatives. This revision is required by the Georgia DNR. Legal Review: Jarrard & Davis, LLP – Paul Higbee, 10/28/2014 Concurrent Review: Chris Lagerbloom, City Manager Attachment(s): Chapter 46, Solid Waste, Article II, Section 46-24 STATE OF GEORGIA ORDINANCE NO. COUNTY OF FULTON Page 1 of 2 AN ORDINANCE TO AMEND CHAPTER 46, SOLID WASTE, ARTICLE II, LITTERING, SECTION 46-24, (PROHIBITED) OF THE CITY OF MILTON CODE OF ORDINANCES) BE IT ORDAINED by the City Council of the City of Milton, GA while in a regularly called council meeting on November 17, 2014 6:00 p.m. as follows: SECTION 1. That the amendment, attached hereto as Exhibit A and incorporated herein by reference as if fully set forth herein, of Article II, Section 46-24 of the City of Milton Code of Ordinances is hereby adopted and approved; and SECTION 2. All ordinances, parts of ordinances, or regulations in conflict herewith are repealed. SECTION 3. That this Ordinance shall become effective upon its adoption. ORDAINED this the 17th day of November, 2014. _____________________________ Joe Lockwood, Mayor Attest: ___________________________ Sudie AM Gordon, City Clerk (Seal) Page 2 of 2 Sec. 46-24. - Prohibited. (a) Unlawful acts defined. (1) Public littering. It shall be unlawful for any person, in person or by his or her agent, employee, or servant, to cast, throw, sweep, sift, or deposit in any manner in or upon any public way or other public place in the city or the river, creek, branch, public water, drain , sewer, or receiving basin within the city's jurisdiction, any kind of leaves, dirt, rubbish, waste article, thing, or substance whatsoever, whether liquid or solid. Nor shall any person cast, throw, sweep, sift, or deposit any of the aforementioned items anywhere within the city's jurisdiction in such a manner that it may be carried or deposited in whole or in part, by the action of the sun, wind, rain, or snow, into any of the aforementioned places; provided that this section shall not apply to: a. The deposit of material under a permit authorized by any city ordinance; b. Goods, wares, or merchandise deposited upon any public way or other public place temporarily, in the necessary course of trade, and removed therefrom within two hours after being so deposited; or c. Articles or things deposited in or conducted into the city sewer system through lawful drains in accordance with the city ordinances relating thereto. (2) Private littering. The acts described in subsection (a)(1) of this section shall also apply to acts committed to or against private property without the consent of the owner. (b) All business firms dispensing their product in cups, plates, wrappers, sacks, and other simila r forms of containers shall provide adequate metal or plastic containers upon the premises for collection of refuse. It shall be the express responsibility of all such business firms to collect all cups, plates, wrappers, sacks, and other similar forms of containers dispensed by said business that may discarded upon the premises or neighboring street and sidewalks. It further shall be the responsibility of said business to collect the aforementioned items from the premises of the neighboring property when the owners of the property specifically request and authorize the business personnel to enter upon their property for that purpose. (c) Construction site operators must properly dispose (or discard) building materials, concrete truck washout, chemicals, litter, and sanitary waste at the construction site that may cause adverse impacts to water quality. All construction site operators shall provide adequate containers upon the premises for collection of said materials and any waste generated or collected at the site. (d) Any person who shall violate any of the provisions of, or who fails to perform any duty imposed by this section or who violates any order or determination of the department promulgated pursuant to this article shall be punished as directed by law, and in addition thereto, may be enjoined from continuing the violation. Each day a violation occurs shall constitute a separate offense. Any willful and wanton violation of this subsection resulting in the unlawful littering of the streets, side walks, and neighboring property shall be deemed a nuisance and on conviction thereof by the city court, the mayor and city council may after a notice and a hearing revoke the business license of the violator. HOME OF ' FSTARl]SHED 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: October 23, 2014 FROM: City Manager AGENDA ITEM: Consideration of a Resolution Authorizing the Offering for Sale of Transferable Development Rights in Certain City -Owned Property; Authorizing the Imposition of a Conservation Easement and/or Public Access Easement on Said City Property; and for Other Purposes. MEETING DATE: Monday, November 3, 2014 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: � APPROVED O NOT APPROVED CITY ATTORNEY APPROVAL REQUIRED. f1' YES O NO CITY ATTORNEY REVIEW REQUIRED: YES {) NO APPROVAL BY CITY ATTORNEY �)APPROVED {) NOTAPPROVED PLACED ON AGENDA FOR.- REMARKS OR:REMARKS ©You ** Green ' ; Cemfkd PHONE: 678.242.2500 � PAX: 678.242.2499 info@cityofmiltonga.us I www.cityofmilfonga.us WILDLIFE Comlllnunity 1i s►,;� 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004 To: Honorable Mayor and City Council Members From: Kathleen Field, Community Development Director Date: Submitted on September 22, 2014 for the October 6, 2014, October 20, 2014 and November 3, 2014 Regular Council Meeting Agenda Item: Consideration of a Resolution Authorizing the Offering for Sale of Transferable Development Rights in Certain City-Owned Property; Authorizing the Imposition of a Conservation Easement and/or Public Access Easement on Said City Property; and for Other Purposes. Department Recommendation: Approve. Executive Summary: This is a request to authorize the sale of four Transfer of Development Rights credits to assist an assisted-living developer with his density requirements. The City gained some TDR credits when it acquired acreage for the Bell Park Project. As part of this transaction, the City will impose a conservation easement on the acreage for which the development rights are sold. This sale will establish the process for future TDR transactions by the private sector. Funding and Fiscal Impact: Increase of revenue based on sale price. Alternatives: None. Legal Review: Larry Ramsey, Jarrard & Davis on September 5, 2014 Concurrent Review: Chris Lagerbloom, City Manager Attachment: Resolution STATE OF GEORGIA RESOLUTION NO. COUNTY OF FULTON A RESOLUTION AUTHORIZING THE OFFERING FOR SALE OF TRANSFERABLE DEVELOPMENT RIGHTS IN CERTAIN CITY-OWNED PROPERTY; AUTHORIZING THE IMPOSITION OF A CONSERVATION EASEMENT AND/OR PUBLIC ACCESS EASEMENT ON SAID CITY PROPERTY; AND FOR OTHER PURPOSES. WHEREAS, the City of Milton has established, by ordinance, a Transfer of Development Rights (“TDR”) Program in the areas contained within the Crabapple Regulating Plan and Deerfield/Highway 9 Regulating Plan (City Code of Ordinances Ch. 64, Art. XIX and XX); and WHEREAS, City Code of Ordinances Ch. 64, Art. XX, Sec. 1.7.5 authorizes the City to sever and sell development rights from certain City-owned property; and WHEREAS, the City of Milton is the owner of certain real property located at 15260 Bell Park Drive (3.039 ac), 0 Bell Park Drive (1.0 ac), 15315 Thompson Road (3.06 ac), 15165 Hopewell Road (3.0 ac), and 15155 Hopewell Road (3.819 ac) (collectively the “Bell Memorial Park Property”); and WHEREAS, the City Council finds that the Bell Memorial Park Property meets the standards of City Code of Ordinances Ch. 64, Art. XX, Sec. 1.7.5 for the severance, sale and transfer of development rights; and WHEREAS, the City Council further finds that the sale of development rights in the Bell Memorial Park Property will promote the public health, safety, and welfare and will otherwise be in the public interest by, among other things: 1. Providing permanent protection against commercial development on, and ensuring permanent public access to, the Bell Memorial Park Property; and 2. Providing a catalyst to full implementation of the City’s TDR Program by initiating the first market transaction for sale, purchase, and use of transferable development rights within the City; NOW, THEREFORE, IT IS HEREBY RESOLVED BY THE CITY COUNCIL OF THE CITY OF MILTON, GEORGIA, AS FOLLOWS: SECTION 1: The execution and recordation of a conservation easement and/or public access easement upon the Bell Memorial Park Property, in accordance with Ch. 64, Art. XX, Sec. 1.7.4 of the City Code of Ordinances, is hereby authorized. 2 SECTION 2: The City Manager and/or his designee is hereby authorized to commence the administrative procedures for sale of the Bell Memorial Park Property’s transferable development rights in accordance with City Code of Ordinances § 2-390 and O.C.G.A. § 36-37- 6. SECTION 3: Upon completion of the procedures outlined in Section 2 of this Resolution, final documentation transferring the Bell Memorial Park Property’s transferable development rights shall be submitted to the Council for approval and ratification. SECTION 4: All resolutions and parts of resolutions in conflict herewith are hereby repealed. SECTION 5: This Resolution shall become effective upon its adoption by the City Council and execution by the Mayor in accordance with the City Charter. BE IT SO RESOLVED, this 4th day of November, 2014, by the Council of the City of Milton, Georgia. Approved: __________________________________ Joe Lockwood, Mayor Attest: _________________________________ Sudie AM Gordon, City Clerk HOME OF' FSTA 13I ISIIFD 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: October 23, 2014 FROM: City Manager AGENDA ITEM: Consideration of a Resolution Amending Milton Grows Green Bylaws. MEETING DATE: Monday, November 3, 2014 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: 0 APPROVED CITY A TTORNEY APPRO VAL REQUIRED: OYES CITY ATTORNEY REVIEW REQUIRED: ( YES APPROVAL BY CITY ATTORNEY YAPPROVED PLACED ON AGENDA FOR: j )0314 REMARKS {) NOTAPPROVED O NO O NO O NOT APPROVED �w ©10 YOU(M * * * PHONE: 678.242.25001 FAX: 678.242.2499 Green * c�� f '° EM'J Certified " o„r info@cityofmiltonga.us i www.cityofmilfonga.us w'iLnuFe C011111111n1#yEchics 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004 To: Honorable Mayor and City Council Members From: Cindy Eade, Sustainability Coordinator Date: Submitted on October 21, 2014 for the November 3, 2014 Regular City Council Meeting Agenda Item: Consideration of a Resolution Amending Milton Grows Green Bylaws. ____________________________________________________________________________ Department’s Recommendation: Approval. Executive Summary: This resolution establishes bylaws for Milton Grows Green which more accurately represent the way in which the committee has been operating and will conduct its business in the future. These bylaws have been approved by the Milton Grows Green Committee and deletes the Milton Grows Green governing board established in Oct. 2008. The new structure reduces the MGG officers from 13 to 7. The officers will be presented to city council at a future council meeting for approval. Funding and Fiscal Impact: There is no financial impact from the decision. Alternatives: If not approved, the Milton Grows Green Committee would continue to operate but not be as efficient and organized as it could be. These bylaws provide a clear understanding of roles, responsibilities and terms but the verbiage gives flexibility for the volunteers. Legal Review: Ken Jarrard, City Attorney (October 27, 2014) Concurrent Review: Chris Lagerbloom, City Manager Kathleen Field, Community Development Director Attachment: Resolution. Page 1 of 2 STATE OF GEORGIA RESOLUTION NO. COUNTY OF FULTON A RESOLUTION OF THE MILTON CITY COUNCIL TO RATIFY BYLAWS OF THE MILTON GROWS GREEN COMMITTEE ("MGGC") AND TO OTHERWISE MODIFY AND AMEND THE RESOLUTION CREATING THE MGGC TO BE CONSISTENT WITH THE BYLAWS AND FOR OTHER MISCELLANEOUS PURPOSES BE IT RESOLVED by the City Council of the City of Milton, GA as follows: WHEREAS, on October 6, 2008, the City Council did create by duly adopted Resolution the Milton Grows Green Committee ("MGGC"); WHEREAS, that October 6, 2008 Resolution set forth the powers, duties, membership, and other attributes of the MGGC; WHEREAS, the MGGC has now created bylaws which establish the MGGC name, purpose, logo, membership, organizational structure, duties of members, subcommittees, meetings, liaison with city staff and amendment procedures; WHEREAS, it is the case that certain of these proposed bylaws provisions may conflict with the October 6, 2008 Resolution creating the MGGC; WHEREAS, both the City Council and MGGC acknowledge that the bylaws for a City-created entity, like MGGC, must be consistent with the original enactment that created such entity; WHEREAS, it is the intention of the City Council to ratify the proposed bylaws and to simultaneously modify and amend the October 6, 2008 Resolution such that said Resolution becomes consistent with said bylaws. NOW THEREFORE BE IT RESOLVED as follows: 1. The City Council does hereby ratify the MGGC bylaws that are attached hereto as Exhibit A; Page 2 of 2 2. That simultaneous to the ratification of Exhibit A, the City Council hereby amends the October 6, 2008 Resolution creating the MGGC, such that the terms and provisions of the bylaws in Exhibit A are incorporated into the Resolution creating the MGGC. It is the express intention of the City Council that in the event there exists an actual or implicit conflict between the October 6, 2008 Resolution and the bylaws in Exhibit A, that the terms and provisions of the bylaws shall control, as those bylaws are now a part of and do hereby amend said Resolution. SO RESOLVED, this 17th day of November, 2014. Approved: _____________________________ Joe Lockwood, Mayor Attest: _______________________________ Sudie Gordon, City Clerk (Seal) EXHIBIT “A” 1 MILTON GROWS GREEN BYLAWS Milton Grows Green (MGG) is a citizens' volunteer committee advocating the responsible management of growth, conservation and protection of natural resources, and the preservation of Milton's heritage and natural landscape for future generations. The goals of this committee are consistent with the stated mission and values of the City and MGG’s activities are organized in a collaborative effort with the City. MGG was originally recognized and ratified by Milton City Council (Resolution 08-10- 46) on September 8, 2008. ARTICLE I: NAME, PURPOSE AND LOGO Section A: Name – The name of this Committee shall be Milton Grows Green. Section B: Purpose – The purposes of this committee shall be: 1. To raise awareness of and influence environmental choices in ways that improve the health and quality of life for Milton residents; 2. To identify policies and practices that promote sustainable development, protect natural resources and preserve Milton’s rural character; 3. To foster initiatives and incentives that encourage sustainability within the City government and among its residents and businesses; 4. To execute environmental initiatives such as, but not limited to: the Earth Day Festival, EverGREEN Schools programs, Adopt-A-Road litter collection, Adopt- A-Stream water quality monitoring, Bulky Trash and Recycling Events, Household Paint and Chemical Collections, the National Wildlife Federation Community Habitat Certification Project, Rivers Alive waterway cleanup program, and the Atlanta Regional Commission’s (ARC) Green Communities Certification; 5. To encourage sustainable development that preserves green space and natural vistas in collaboration with other local environmental entities; 6. To identify other possible certifications and/or designations for the city to pursue in order to advance its commitment toward sound environmental practices; 7. To develop creative strategies to bring diverse expertise and interest groups together to provide solutions to Milton’s environmental challenges. Section C: Logo – Any change in the MGG logo shall be approved by a majority vote of the MGG Officers after consultation with the Committee, and final approval rests with the vote of the Milton City Council. 2 ARTICLE II: MEMBERSHIP Section A: Eligibility – Membership shall be open to all interested Milton residents. The committee also welcomes non-residents and members from the business community. Section B: Code of Conduct – All MGG members are expected to conduct themselves with courtesy and collegial respect and to foster an open democratic process. The Board may seek the assistance of the Milton City Council or city manager if there is a belief the code of conduct is being violated. ARTICLE III: MILTON GROWS GREEN ORGANIZATIONAL STRUCTURE Section A: Officers – The Officers of Milton Grows Green shall consist of seven officers that will be presented to the City Council for their consideration on an annual basis. This presentation will usually take place in the fourth quarter of the calendar year for terms intended to commence on January 1 of each future calendar year. The Officers shall consist of the Chairperson, the Vice-Chairperson (Chairperson Elect), a Chairperson Emeritus and four Officers (called Directors) representing each of the four Subcommittees: Director of Natural Resources, Director of Land Conservation and Building Standards, Director of Education and Outreach, and Director of Communications. The MGG Officers will meet separately from the regularly scheduled monthly MGG Committee meetings, for the purpose of creating policy and directing the Committee’s business. Any Committee issues generating differing opinions will be decided by a majority vote of the MGG Officers. Section B: Eligibility – The Officers shall be nominated from the MGG Committee membership. They shall be willing to serve their term of office to the best of their abilities and be present for most meetings. In the event of an occasional absence, the officer should notify the Chairperson. Section C: Election and Term – The Officers shall be elected by a majority vote of the Milton Grows Green Committee members in good standing. Good standing constitutes active participation in the MGG Committee within the past year. Elections will be held annually in the fourth quarter of the calendar year for any open positions. The new Slate of Officers will then be presented to the City Council for ratification. The annual term for Officers will begin January 1st. The terms of office will be one year each for the Chairperson Emeritus, Chairperson and Vice-Chairperson. The four Directors of Subcommittees may serve two-year terms. Any of these terms will be renewable at the will of the MGG Officer holding the position and with a majority vote of the MGG Committee. Section D: Resignation – Any Officer may resign at any time by delivering a written resignation to the MGG Chairperson. Section E: Vacancy – If a vacancy occurs in the office of Chairperson, the Vice- Chairperson shall assume the office for the remainder of the term. Vacancies in any other office may be filled by a vote of a quorum in a special election of the MGG Officers. This newly elected person will serve the remaining term of the vacancy. Section F: Compensation – No MGG Officer or MGG Committee member shall receive, directly or indirectly, any compensation. Any purchase made by a MGG Committee 3 member on behalf of the Committee will be made in compliance with the City of Milton’s purchasing polices. Section G: Voting – No vote of the MGG Officers shall be taken without first discussing the issue with the MGG Committee as a whole in a regular meeting and with the issue posted on the agenda for that meeting. Section H: Conflict of Interest – Should a MGG Officer or Committee member have a personal conflict of interest with any issue under consideration, it is the responsibility of that person to disclose the conflict during the discussion period and to abstain from voting on the issue. ARTICLE IV: DUTIES OF BOARD OFFICERS Section A: Chairperson – Duties of the Chairperson may include: • Presiding at all MGG Committee and MGG Officer meetings; • Soliciting updates on subcommittee projects/initiatives from the Directors of Subcommittees; • Preparing and distributing all meeting agendas; • Representing MGG in a positive and professional manner at community events; • Helping to determine MGG’s policies, priorities and projects; • Communicating to the Officers and Committee in a timely manner; and • Upholding these Bylaws. Section B: Vice-Chairperson (Chairperson Elect) – Duties of the Vice-Chairperson may include: • Presiding at meetings in the absence of the Chairperson; • Representing MGG in a positive and professional manner at community events; • Performing duties and responsibilities delegated by the Chairperson; • Helping to determine MGG’s policies, priorities and projects; and • Upholding these Bylaws. Section C: Chairperson Emeritus – Duties of the Chairperson Emeritus may include: • Advising and guiding the Chairperson in the performance of his/her duties; • Representing MGG in a positive and professional manner at community events; • Helping to determine MGG’s policies, priorities and projects; and • Upholding these Bylaws. Section D: Directors of the Four Subcommittees – Duties of the Directors may include: • Managing, organizing and/or coordinating the Subcommittee activities; • Providing reports to the Chairperson at least one day prior to a regular Committee meeting on the Subcommittee’s activities; • Representing MGG in a positive and professional manner at community events; • Helping to determine MGG’s policies, priorities and projects; and • Upholding these Bylaws. 4 ARTICLE V: SUBCOMMITTEES Section A: Natural Resources Subcommittee – This Subcommittee’s area of interest is to identify issues, initiate projects and recommend ways to improve the quality and conservation of our natural resources – air, water and energy. Section B: Land Conservation and Building Standards Subcommittee – This Subcommittee is focused on existing and potential eco-friendly building construction standards and the City’s land use policies. It is involved in researching innovative approaches to sustainability implemented in other communities and bringing these ideas to our City for consideration. Section C: Education and Outreach Subcommittee – This Subcommittee promotes education and outreach to the community and local schools on ecological initiatives that further our understanding of the symbiotic relationship between us and our environment. Section D: Communications Subcommittee – This Subcommittee is charged with maintaining current information about MGG and communicating it to the community. The Director would be the main resource for information on MGG projects and programs. Section E: Special Committees – The Chairperson shall have the authority to appoint any special committees, with the approval of the majority of MGG Officers, from time to time as needed. ARTICLE VI: MEETINGS Section A: Board Meetings – The MGG Officers may generally meet once per calendar quarter. A full and complete record of the proceedings shall be taken and posted on the Milton City web site once the Officers have voted to accept such minutes, as prescribed by GA open meetings law. Section B: Special Meetings – Special meetings may be called by a majority of the MGG Officers, with at least 24 hours’ notice and with the required advertising. Section C: Quorum for MGG Officers – When required, a quorum shall consist of a majority (4 of 7) of the MGG Officers in person present at a meeting. Section D: MGG Committee Meetings – Regular MGG Committee meetings will generally be held monthly. A full and complete record of the proceedings shall be taken and posted on the Milton City web site once the Committee has voted to accept such minutes, as prescribed by GA open meetings law. Section E: Parliamentary Procedure – Robert’s Rules of Order shall govern the conduct of meetings in all cases to which they are applicable. ARTICLE VII: CITY STAFF LIAISON Section A: Selection – Subject to the approval of the Milton City Council, there shall be a City Staff Liaison who shall be selected by the Director of Community Development. Section B: Duties – It shall be the duty of the City Staff Liaison to: 5 • Maintain an awareness of the activities and programs sponsored by MGG. • Meet on a regular basis with the Chairperson of MGG to discuss upcoming meetings, long-range plans, goals, and any problems of the committee; • Assure that all meeting minutes of all regular MGG Committee and MGG Officer meetings are filed with the City Clerk’s office; • Attend regular MGG Committee and Officer meetings as often as schedule allows; • Assist in the orientation of new officers; • Explain and clarify City procedures and policies that may apply to MGG; • Provide direction in the area of parliamentary procedure, meeting facilitation, group-building, goal setting, and program planning; • Be responsible for monitoring expenditures, fundraising activities, and corporate sponsorship; • Report to the Director of Community Development regarding activities of MGG. ARTICLE VIII: AMENDMENTS Section A: Selection – These Bylaws may be amended by a two-thirds (2/3) majority vote of the MGG Officers (five out of seven). Any changes to the MGG bylaws require approval by the Milton City Council. Section B: Notice – All MGG Officers shall receive advance notice of any proposed amendment at least one week before the Officers’ meeting at which it will be presented. HOME OF' ESTAM.ISHED 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE. October 29, 2014 FROM: City Manager AGENDA ITEM: Consideration of a Professional Services Agreement between the City of Milton and VC3, Inc. for Cloud -based IT Services. MEETING DATE: Monday, November 3, 2014 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: APPROVED O NOT APPROVED CITY ATTORNEY APPROVAL REQUIRED: 0 YES ONO CITY ATTORNEY REVIEW REQUIRED: YES () NO APPROVAL BY CITY ATTORNEY O APPROVED () NOT APPROVED PLACED ON AGENDA FOR., 11 0 3 REMARKS 91 Vyoucm*** *rt,F,* rar,ou PHONE: 678.242.25001FAX: 678.242.2499 Green �� ���,uF� infoC�cityofmiltonga.us I www.cityofmiltonga.us Community 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004 To: Honorable Mayor and City Council Members From: David Frizzell, IT Manager Date: Submitted on Oct. 28, 2014 for the November 3, 2014 Regular Council Meeting Agenda Item: Consideration of a Professional Services Agreement between the City of Milton and VC3, Inc. for Cloud-based IT Services. ____________________________________________________________________________ Department Recommendation: The IT Manager recommends approval of this contract. Executive Summary: This contract provides for cloud-based IT services. It will allow the bulk of the city’s IT infrastructure to be hosted offsite, where it will be monitored and supported 24x7. Additional services such as server/data backup, support for third party applications, access to a virtual desktop environment for city employees, Microsoft licensing, and onsite visits are also supported with this contract. This contract piggybacks the contract signed by the city of Waynesville, NC. Funding and Fiscal Impact: The cost for this service has been budgeted for FY2015. The costs associated with cloud services offsets numerous current/anticipated costs for our existing IT department: hardware replacement, licensing, additional support staffing, power usage, and costs to move to a new building. Alternatives: The city’s IT infrastructure would be maintained locally, but with increasing hardware costs as current hardware reaches end-of-life. Additional staffing would also be needed to support the city’s growing IT infrastructure. Legal Review: Paul Higbee – Jarrard & Davis (10/28/2014) Concurrent Review: Chris Lagerbloom, City Manager Attachment(s): VC3 Master Services Agreement - All Government - City of Milton.pdf SEW_CoM_VOA.pdf 1 Confidential MASTER SERVICES AGREEMENT This Master Services Agreement ("Agreement") is entered into as of this ____ day of ______________, 2014 (the "Effective Date"), between VC3, Inc., a South Carolina corporation having its principal place of business at 1301 Gervais Street, Suite 1800, Columbia, SC 29201 ("Company"), and The City of Milton, GA, a Municipality having its principal place of business at 13000 Deerfield Parkway, Suite 107, Milton, GA 30004 ("Client"). WHEREAS, Client desires to receive certain professional services from Company; Client and Company hereby agree as follows: 1. Services To Be Performed. 1.1 Services. Company will provide computer system and network maintenance, software, consulting and professional services (the “Services”) as mutually agreed to in a written executed attachment to this Agreement by Company and Client (a “Work Order”); provided however that the parties recognize that Company may from time to time provide Services to Client at Client's request without a Work Order, and in such cases, these Services shall be subject to and governed by the terms and conditions of this Agreement and performed by Company on a time and materials basis and invoiced at the hourly billing rates specified in Exhibit A. 1.2 Form of Work Order. Each Work Order will conform to substantially the following format: (a) The Work Order shall be entitled "Work Order No. [__] under the Master Services Agreement, dated [_________]." (b) The contents of the Work Order may be included in the body of the Work Order, or in separately signed Attachments, as the parties consider most practical. The Work Order shall include a provision for the dated signatures of authorized representatives of both parties. 1.3 Change Orders. Client may request a change in the scope or nature of the Services in a Work Order at any time. However, changes to the scope of the Services in a Work Order can be made only in writing executed by both parties. 2. Charges for Services. 2.1 Charges. Company shall be entitled to compensation for the performance of the Services as stated in each Work Order. Unless otherwise expressly stated in a Work Order, Company’s compensation will be based on direct labor hours charged at fixed labor rates. The Work Order may call for a budget of expected charges as a way for both parties to monitor performance. Except as otherwise expressly set forth in a Work Order, all Services that are identified to be rendered on a time and materials basis will be invoiced at the hourly billing rates specified in Exhibit A. 2.2 Invoices. Unless otherwise stated in a Work Order, payment for the Services is due monthly when and as performance is rendered. Company shall issue invoices to Client for charges when and as they come due. Client shall make payment to Company of all such invoices within thirty (30) days from the date of such invoice. 2.3 Expenses. Client shall pay Company for all reasonable expenses incurred by Company in the performance of the Services, including travel, living, and out-of-pocket expenses incurred pursuant to this Agreement. 2.4 Effect of Late Payment. All late payments by Client shall bear interest at a rate of one and one - half percent (1.5%) per month or partial month during which any sums were owed and unpaid, or the highest rate allowed by law, whichever is lower. 2.5 Collection Costs. Client shall reimburse Company for any expenses and costs it incurs to collect any amounts due to Company under this Agreement, including reasonable attorneys fees. 2.6 Taxes. Client shall pay directly, or reimburse Company for, and, to the extent if any allowed by law, indemnify and hold Company harmless from, all taxes and tariffs assessed or levied by any governmental entity that are now or may become applicable to the Services or measured by payments made by Client to Company hereunder, or are required to be collected by Company or paid by Company to tax authorities including interest assessment thereon if such assessments are due to Confidential 2 Client’s actions or inactions. This includes, but is not limited to, sales, use, excise, gross receipt and personal property taxes, or any other form of tax based on services performed, equipment used by Company to perform services solely for Client, and the communication or storage of data, but does not include taxes based upon Company’s net income. 3. Term; Termination. The term of this Agreement shall continue from the Effective Date until the earlier of (a) expiration of the term of all Work Orders referencing this Agreement or (b) termination of this Agreement as provided in this Agreement. Either party may terminate a Work Order or this Agreement, as applicable, for material breach by the other party of the Work Order or this Agreement, as applicable, which is not cured within 30 days from the receipt by the party in breach of a written notice from the other party specifying the breach in detail. Client shall be liable for payment to Company for all Services rendered prior to the effective date of any such termination. Expiration or termination of any Work Order or this Agreement for any reason will not release either party from any liabilities or obligations set forth in any Work Order or this Agreement which (a) the parties have expressly agreed will survive any such expiration or termination or (b) remain to be performed or by their nature would be intended to be applicable following any such expiration or termination. The term of this Agreement, notwithstanding any other provision contained herein, shall terminate absolutely and without further obligation on the part of the Client on December 31 of each year, provided that this Agreement, absent written notice of non-renewal provided by the Client to Company at least thirty (30) days prior to December 31, shall automatically renew on January 1 of the following year until the term of the Agreement has been satisfied. Title to any supplies, materials, equipment, or other personal property shall remain in the Company until fully paid by the Client. 4. Proprietary Protections. 4.1 Ownership Rights (a) General. Each party will retain all rights to any software, ideas, concepts, know-how, development tools, techniques or any other proprietary material or information that it owned or developed prior to the Effective Date, or acquired or developed after the Effective Date without reference to or use of the intellectual property of the other party. All software that is licensed by a party from a third party vendor will be and remain the property of such vendor. No licenses will be deemed to have been granted by either party to any of its patents, trade secrets, trademarks or copyrights, except as otherwise expressly provided in this Agreement. Nothing in this Agreement will require Company or Client to violate the proprietary rights of any third party in any software or otherwise. Notwithstanding anything to the contrary in this Agreement, Company (i) will retain all right, title and interest in and to all software development tools, know-how, methodologies, processes, technologies or algorithms used in performing the Services which are based on trade secrets or proprietary information of Company or are otherwise owned or licensed by Company (collectively, "tools"), (ii) will be free to use the ideas, concepts, methodologies, processes and know- how which are developed or created in the course of performing the Services and may be retained by Company's employees in intangible form, all of which constitute substantial rights on the part of Company in the technology developed as a result of the Services performed under this Agreement. (b) Materials Developed for or Delivered to Client. Client agrees that all software and other materials (including, but not limited to customizations, modifications, specifications, documentation and training materials) developed for or delivered to Client pursuant to this Agreement or any Work Order, including all related copyrights, patent rights, trade secrets, ideas, designs, concepts, techniques, inventions, discoveries or other intellectual property rights (collectively, the “Materials”), shall be the exclusive property of Company and the Company shall own all right, title and interest therein. In this connection, Client acknowledges that all Materials which are or may be developed pursuant to this Agreement or any Work Order are and shall be the intellectual property and confidential proprietary information and products of Company, and Client hereby transfers and assigns any and all rights in and to the Materials to Company, its successors and assigns, including all intellectual property rights relating thereto. From time to time upon Company’s request, Client shall confirm such assignment by execution and delivery of such assignments, confirmations of assignment, or other written instruments as Company may request. Company agrees that Client shall have a limited nonexclusive license to use the Materials internally to the extent necessary to carry out and fulfill the terms and conditions of the Work Order for which the Materials were developed and shall have the right to grant a limited nonexclusive license to the third Confidential 3 parties specifically identified in a Work Order to use the Materials solely for the purposes contemplated by such Work Order, provided that such third parties shall first agree in a signed writing to be bound by the terms of this Agreement or such terms as may be acceptable to Company. (c) Specific Deliverables Owned by Client. Notwithstanding the foregoing provisions of Section 4.1(b) but subject to any third party rights or restrictions and the provisions of Section 4.1(a) and the other provisions of this Section 4.1(c), Client will own the copyright in and to Materials that (i) are developed for and delivered by Company to Client, (ii) are paid for by Client, and (iii) are clearly and specifically identified in a Work Order as governed by the provisions of this Section 4.1(c) (the "Specific Client Owned Deliverables"). Notwithstanding the foregoing, Company will retain ownership of any Company-owned software or development tools that are used in producing the Specific Client Owned Deliverables and become embedded in the Specific Client Owned Deliverables. Company hereby grants to Client a perpetual (subject to compliance with this sentence), royalty-free, nontransferable, nonexclusive license to use such embedded software and tools (if any) solely in connection with Client's internal use and exploitation of the Specific Client Owned Deliverables and only so long as such software and tools (if any) remain embedded in the Specific Client Owned Deliverables and are not separated therefrom. Company will own all intellectual property rights in or related to the Specific Client Owned Deliverables other than the copyright ownership rights granted to Client pursuant to this Section 4.1(c). 4.2 Client Information. Company recognizes and agrees that, except as specified in Section 4.1, it has no claim of ownership to any data, materials or information submitted by Client to Company or the Services (“Client Information”), which Client Information is being provided to Company solely for the purposes of enabling Company to render the Services, and that title and all ownership rights in and to such Client Information shall at all times remain with Client. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use all Client Information. 4.3 Confidentiality. (a) Confidential Information. This Section 4.3 shall apply to all confidential and proprietary information disclosed by either party (“Disclosing Party”) to the other party (“Receiving Party”), including all Client Information, Materials of Company, and information related to the Disclosing Party’s technology, software, know-how, products, potential products, services, potential services, financial information, employees, customers, markets and/or business information (collectively, “Confidential Information”). The terms and conditions of this Agreement and all Work Orders shall be treated by Client as the Confidential Information of Company. Confidential Information shall not include any information which (i) was known to the Receiving Party prior to being disclosed by the Disclosing Party, (ii) becomes publicly known through no wrongful act of the Receiving Party, (iii) is approved for release by written authorization of the Disclosing Party, (iv) is received from a third party not in breach of any separate confidentiality obligation known to the Receiving Party, or (v) is independently developed without reference to the Disclosing Party’s Confidential Information. (b) Scope of Obligation. The Receiving Party agrees to use the Confidential Information of the Disclosing Party only as provided for in this Agreement. Each party agrees to hold the other party’s Confidential Information in strict confidence and not to disclose such Confidential Information to any third parties. Notwithstanding the foregoing, each party may disclose the other party’s Confidential Information only to those employees, agents, representatives and/or consultants who require such information only in connection with this Agreement. Each party agrees to instruct all such employees, agents, representatives and consultants regarding the foregoing obligations and ensure that such employees, agents, representatives and consultants are bound by obligations of confidentiality to the Receiving Party that are at least as restrictive as those contained herein. Each party agrees that it will take all reasonable measures to protect the confidentiality of, and avoid the unauthorized disclosure or use of, the other party’s Confidential Information in order to prevent it from being made public or in the possession of persons other than those persons authorized hereunder to have any such Confidential Information, which measures shall include at least the same degree of care that the Receiving Party utilizes to protect its own confidential information of a similar nature but in any event shall include commercially reasonable precautions designed to protect the Disclosing Party’s Confidential Information from unauthorized disclosure and/or use. Confidential 4 (c) Limited Disclosure Right. Confidential Information may be disclosed to the extent required by court order or as otherwise required by law, provided that the Receiving Party, to the extent legally permissible, notifies the Disclosing Party promptly upon learning of the possibility of any such requirement and, to the extent legally permissible, has given the Disclosing Party a reasonable opportunity to contest or limit the scope of such required disclosure. (d) Return of Confidential Information. Promptly upon termination of this Agreement, or at any other time upon the request by a party, the other party shall (i) return to the Disclosing Party or, at the Disclosing Party’s request, destroy all Confidential Information of such Disclosing Party, whether in paper or electronic form, provided, however that the foregoing shall not apply to Confidential Information that is stored in the Receiving Party’s electronic archives, which Confidential Information will be destroyed in the ordinary course of the Receiving Party’s business in accordance with its document destruction policies; and (ii) certify to the Disclosing Party in writing that it has complied with the provisions of this Section 4.3. Client’s compliance with record retention regulations of the State of Georgia or Client shall not constitute a violation of this Agreement. 5. Limited Warranty and Disclaimers. 5.1 Limited Warranty. Company warrants to Client that the Services, as and when delivered or rendered hereunder, will substantially conform to the description of services or specifications set forth in the applicable Work Order. Company’s sole liability under the foregoing warranty shall be to provide the services described in Section 5.3 hereof. 5.2 DISCLAIMER OF WARRANTIES. THE WARRANTY SET FORTH IN SECTION 5.1 STATES COMPANY’S SOLE AND EXCLUSIVE WARRANTY TO CLIENT CONCERNING THE SERVICES HEREUNDER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5.1, THE SERVICES ARE PROVIDED STRICTLY “AS IS” AND COMPANY MAKES NO ADDITIONAL WARRANTIES, EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE SERVICES OR ANY MATTER WHATSOEVER. IN PARTICULAR, ANY AND ALL WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT ARE EXPRESSLY EXCLUDED. COMPANY DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS THAT THE SERVICES BEING PROVIDED WILL RESULT IN COST SAVINGS, PROFIT IMPROVEMENT, OR THAT THE SERVICES WILL BE ERROR-FREE. THIS IS A LIMITED WARRANTY AND IS THE ONLY WARRANTY MADE BY COMPANY. 5.3 Notice Obligation; Remedy. Client shall notify Company in writing within thirty (30) days after completion of the Services in question when any of the Services fail to substantially conform to the description of services or specifications set forth in the applicable Work Order. Such notification shall include the detailed information necessary for Company to verify such nonconformity. Upon actual receipt of such notification and verification of the nonconformity, Company shall correct the nonconformity so that the Services shall substantially conform with the agreed description of services or specifications in the applicable Work Order. Client agrees to pay Company for all personnel time and expenses incurred in investigating reported nonconformities when the alleged nonconformities are not discovered. The passage of the thirty (30) day period after completion of the Services in question without the notification described herein shall constitute final acceptance of the Services. 6. Limitation of Liability. 6.1 COMPANY’S LIABILITY ON ANY CLAIM, LOSS OR LIABILITY ARISING OUT OF, OR CONNECTED WITH THIS AGREEMENT, THE SERVICES OR USE OF THE PRODUCT OF ANY SERVICES FURNISHED HEREUNDER, SHALL IN ALL CASES BE LIMITED SOLELY TO CORRECTION OF NONCONFORMITIES WHICH DO NOT SUBSTANTIALLY CONFORM WITH THE AGREED DESCRIPTION OF SERVICES IN A WORK ORDER, OR SPECIFICATIONS IDENTIFIED IN A WORK ORDER. 6.2 IF FOR ANY REASON COMPANY IS UNABLE OR FAILS TO CORRECT NONCONFORMITIES AS PROVIDED, COMPANY’S LIABILITY FOR DAMAGES ARISING OUT OF ANY WORK ORDER FOR SUCH FAILURE, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), LAW, Confidential 5 EQUITY OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID BY CLIENT FOR THAT PORTION OF THE SERVICES WHICH FAIL TO CONFORM. IN NO EVENT SHALL COMPANY BE LIABLE UNDER THIS AGREEMENT OR ANY WORK ORDER FOR ANY AMOUNTS IN EXCESS OF THE AMOUNTS PAID BY CLIENT TO COMPANY IN THE NINETY DAY (90) PERIOD PRECEDING ANY FAILURE OR BREACH BY COMPANY OR CLAIM BY CLIENT. 6.3 UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO CLIENT FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOSS OR CORRUPTION OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), LAW, EQUITY OR OTHEWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM OR DAMAGES ASSERTED BY ANY THIRD PARTY. 6.4 CLIENT ACKNOWLEDGES THAT COMPANY HAS SET ITS FEES, AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH IN THIS AGREEMENT, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE FOREGOING LIMITATION OF LIABILITY IS INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY SET FORTH IN THIS AGREEMENT. 6.5 THE PROVISIONS OF SECTIONS 5, 6 AND 7 ARE CLIENT’S EXCLUSIVE REMEDIES RELATED TO THE SERVICES, ANY FAILURE BY COMPANY TO CORRECT NONCONFORMITIES IN THE SERVICES, OR FOR BREACH BY COMPANY OF THIS AGREEMENT OR A WORK ORDER AND SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF SUCH REMEDIES. 6.6 Client is responsible for adopting reasonable measures to limit Client’s exposure with respect to such potential losses and damages, including (without limitation) examination and confirmation of results of the Services prior to use thereof, provision for identification and correction of errors and omissions, and preparation and storage of backup or duplicate data. Client is also responsible for complying with all local, state, and federal laws pertaining to the use and disclosure of any Client Information. 7. Indemnity. 7.1 Infringement Claims. (a) General. Subject to Section 6 of this Agreement, the limitations set forth below in this Section 7.1 and the procedures set forth below in Section 7.3, Company and Client (each an “indemnifying party”) each agrees, to the extent if any allowed by law, to defend the other party (each an “indemnified party”) against any action to the extent that such action is based upon a claim that the Confidential Information (other than third party software) provided by the indemnitor, or any part thereof, (i) infringes a copyright perfected under United States statute, or (ii) constitutes an unlawful disclosure, use or misappropriation of another party's trade secret. The indemnitor will bear the expense of such defense and pay any liabilities, costs and expenses, including reasonable attorneys’ fees and expenses (collectively “Losses”) that are attributable to such claim finally awarded by a court of competent jurisdiction. (b) Exclusions. Neither Company nor Client will be liable to the other for claims of indirect or contributory infringement. The indemnitor will have no liability to the indemnitee hereunder if (i) the claim of infringement is based upon the use of Confidential Information provided by the indemnitor hereunder in connection or in combination with equipment, devices or software not supplied by the indemnitor or used in a manner for which the Confidential Information was not designed, (ii) the indemnitee modifies any Confidential Information provided by the indemnitor hereunder and such infringement would not have occurred but for such modification, or (iii) the claim of infringement arises out of the indemnitor's compliance with specifications or requirements provided by the indemnitee and such infringement would not have occurred but for such compliance. (c) Additional Remedy. If Confidential 6 Confidential Information becomes the subject of an infringement claim under this Section 7.1, or in the indemnitor’s opinion is likely to become the subject of such a claim, then, in addition to defending the claim and paying any damages and attorneys’ fees as required above in this Section 7.1, the indemnitor may, at its option and in its sole discretion, (A) replace or modify the Confidential Information to make it noninfringing or cure any claimed misuse of another’s trade secret or (B) procure for the indemnitee the right to continue using the Confidential Information pursuant to this Agreement. Any costs associated with implementing either of the above alternatives will be borne by the indemnitor but will be subject to Section 6 of this Agreement. If neither alternative is pursued by, or (if pursued) available to, the indemnitor, (x) the indemnitee will return such Confidential Information to the indemnitor and (y) if requested by the indemnitee in good faith, the parties will negotiate, but subject to Section 6 of this Agreement, to reach a written agreement on what, if any, monetary damages (in addition to the indemnitor’s obligation to defend the claim and pay any damages and attorneys’ fees as required above in this Section 7.1) are reasonably owed by the indemnitor to the indemnitee as a result of the indemnitee no longer having use of such Confidential Information. The payment of any such monetary damages will be the indemnitee’s sole and exclusive remedy for the inability of the indemnitor to implement either of the above alternatives. 7.2 Third Party Indemnification of Company. Without limiting Company’s liability to Client under this Agreement, each of the parties acknowledge that Company would not enter into this Agreement, and by Company entering into and performing its obligations under this Agreement, Company will not assume and should not be exposed to the business and operational risks associated with Client’s business, and Client therefore agrees, subject to Section 7.3 below and only to the extent if any allowed by law, to indemnify and defend Company and hold Company harmless from any and all third party Losses arising out of the conduct of Client’s business, including the use by Client of the Services. 7.3 Procedures. The indemnification obligations set forth in this Section 7 will not apply unless the party claiming indemnification: (a) notifies the other promptly in writing of any matters in respect of which the indemnity may apply and of which the notifying party has knowledge, in order to allow the indemnitor the opportunity to investigate and defend the matter; provided, however, that the failure to so notify will only relieve the indemnitor of its obligations under this Section 7 if and to the extent that the indemnitor is prejudiced thereby; and (b) gives the other party full opportunity to control the response thereto and the defense thereof, including any agreement relating to the settlement thereof; provided, however, that the indemnitee will have the right to participate in any legal proceeding to contest and defend a claim for indemnification involving a third party and to be represented by legal counsel of its choosing, all at the indemnitee’s cost and expense. However, if the indemnitor fails to promptly assume the defense of the claim, the party entitled to indemnification may assume the defense at the indemnitor’s cost and expense. The indemnitor will not be responsible for any settlement or compromise made without its consent, unless the indemnitee has tendered notice and the indemnitor has then refused to assume and defend the claim and it is later determined that the indemnitor was liable to assume and defend the claim. The indemnitee agrees to cooperate in good faith with the indemnitor at the request and expense of the indemnitor. 8. General Provisions. 8.1 Non-Hire Provision. Each party to this Agreement agrees that it will not hire, employe or contract with, or solicit to hire, employ or contract with, any person who is, or within the immediately preceding one year was, an employee or subcontractor of the other party to this Agreement for any purposes during the term of this Agreement, or for a period of one year after this Agree ment terminates. 8.2 Conflict. Any purchase order or other document issued by Client is for administrative convenience only. In the event of any conflict between this Agreement and any purchase order, this Agreement shall prevail. 8.3 Survival. In the event of any expiration or termination of this Agreement, Sections 2, 3, 4, 5, 6, 7, and 8 of this Agreement shall survive and shall continue to bind the parties. 8.4 Governing Law. This Agreement shall be governed in all respects by the laws of the U nited States of America and the State of North Carolina without regard to conflicts of law principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. 8.5 Forum. All disputes arising under this Confidential 7 Agreement shall be brought in the state or federal courts located in North Carolina, as permitted by law. The state and federal courts located in North Carolina shall each have non-exclusive jurisdiction over disputes under this Agreement. Client consents to the personal jurisdiction of the above courts. 8.6 Injunctive Relief. It is understood and agreed that, notwithstanding any other provisions of this Agreement, breach of the provisions of this Agreement by Client will cause Company irreparable damage for which recovery of money damages would be inadequate, and that Company shall therefore be entitled to obtain timely injunctive relief to protect Company’s rights under this Agreement in addition to any and all remedies available at law. 8.7 Notices. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery or five (5) days after deposit in the mail. Notices shall be sent to the parties at the addresses described on the first page of this Agreement or such other address as either party may designate for itself in writing. All notices to Company must be to its President to be effective. 8.8 No Agency. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. 8.9 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such party. 8.10 Waiver. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. 8.11 Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. 8.12 Nondisclosure. Client promises not to disclose the terms and conditions of this Agreement to any third party without the prior written consent of Company. 8.13 Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this Agreement. 8.14 This Section Intentionally Left Blank 8.15 Right to Engage in Other Activities. Client acknowledges and agrees that Company may provide information technology services for third parties at any Company facility that Company may utilize from time to time for performing the Services. Nothing in this Agreement will impair Company’ right to acquire, license, market, distribute, develop for itself or others or have others develop for Company similar technology performing the same or similar functions as the technology and Services contemplated by this Agreement. 8.16 Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument. 8.17 Entire Agreement. This Agreement together with any Work Orders attached hereto completely and exclusively states the agreement of the parties regarding its subject matter. It supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. This Agreement shall not be modified except by a subsequently dated written amendment signed on behalf of Company and Client by their duly authorized representatives. 8.18 Nondiscrimination. In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and all other Confidential 8 provisions of Federal law, the Company agrees that, during performance of this Agreement, Company, for itself, its assignees and successors in interest, will not discriminate against any employee or applicant for employment, any subcontractor, or any supplier because of race, color, creed, national origin, gender, age or disability. In addition, Company agrees to comply with all applicable implementing regulations and shall include the provisions of this Section in every subcontract for services contemplated under this Agreement. 8.19 E-Verify. It is the policy of the City of Milton that unauthorized aliens shall not be employed to perform work on Client contracts involving the physical performance of services. Therefore, the Client shall not enter into a contract for the physical performance of services within the State of Georgia unless: (1) the Company shall provide evidence on Client-provided forms, attached hereto as Exhibits “B” and “C” (affidavits regarding compliance with the E-Verify program to be sworn under oath under criminal penalty of false swearing pursuant to O.C.G.A. § 16-10-71), that it and Company’s subcontractors have conducted a verification, under the federal Employment Eligibility Verification (“EEV” or “E -Verify”) program, of the social security numbers, or other identifying information now or hereafter accepted by the E-Verify program, of all employees who will perform work on the Client contract to ensure that no unauthorized aliens will be employed, or (2) the Company provides evidence that it is not required to provide an affidavit because it is licensed pursuant to Title 26 or Title 43 or by the State Bar of Georgia and is in good standing as of the date when the contract for services is to be rendered. The Company hereby verifies that it has, prior to executing this Agreement, executed a notarized affidavit, the form of which is provided in Exhibit “B”, and submitted such affidavit to Client or provided the Client with evidence that it is not required to provide such an affidavit because it is licensed and in good standing as noted in subsection (2) above. Further, Company hereby agrees to comply with the requirements of the federal Immigration Reform and Control Act of 1986 (IRCA), P.L. 99-603, O.C.G.A. § 13-10-91 and Rule 300-10-1-.02. In the event the Company employs or contracts with any subcontractor(s) in connection with the covered contract, the Company agrees to secure from such subcontractor(s) attestation of the subcontractor’s compliance with O.C.G.A. § 13-10- 91 and Rule 300-10-1-.02 by the subcontractor’s execution of the subcontractor affidavit, the form of which is attached hereto as Exhibit “C”, which subcontractor affidavit shall become part of the contractor/subcontractor agreement, or evidence that the subcontractor is not required to provide such an affidavit because it is licensed and in good standing as noted in subsection (2) above. If a subcontractor affidavit is obtained, Company agrees to provide a completed copy to the Client within five (5) business days of receipt from any subcontractor. Where Company is required to provide an affidavit pursuant to O.C.G.A. § 13-10-91, the City Manager or his/her designee shall be authorized to conduct an inspection of the Company’s and Company’s subcontractors’ verification process at any time to determine that the verification was correct and complete. The Company and Company’s subcontractors shall retain all documents and records of their respective verification process for a period of three (3) years following completion of the contract. Further, where Company is required to provide an affidavit pursuant to O.C.G.A. § 13-10-91, the City Manager or his/her designee shall further be authorized to conduct periodic inspections to ensure that no Client Contractor or Contractor’s subcontractors employ unauthorized aliens on Client contracts. By entering into a contract with the Client, the Company and Company’s subcontractors agree to cooperate with any such investigation by making their records and personnel available upon reasonable notice for inspection and questioning. Where a Company or Company’s subcontractors are found to have employed an unauthorized alien, the City Manager or his/her designee may report same to the Department of Homeland Security. The Company’s failure to cooperate with the investigation may be sanctioned by termination of the contract, and the Company shall be liable for all damages and delays occasioned by the Client thereby. Confidential 9 Company agrees that the employee-number category designated below is applicable to the Company. [Information only required if a contractor affidavit is required pursuant to O.C.G.A. § 13 -10- 91.] ____ 500 or more employees. ____ 100 or more employees. ____ Fewer than 100 employees. Company hereby agrees that, in the event Company employs or contracts with any subcontractor(s) in connection with this Agreement and where the subcontractor is required to provide an affidavit pursuant to O.C.G.A. § 13-10-91, the Company will secure from the subcontractor(s) such subcontractor(s’) indication of the above employee - number category that is applicable to the subcontractor. The above requirements shall be in addition to the requirements of State and federal law, and shall be construed to be in conformity with those laws. IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the date first above written. COMPANY: VC3, Inc. By: Name: Title: CLIENT: By: Name: Title: Exhibit A Hourly Rates Service Area Hourly Bill Rate Description of Service Area Consulting & Project Management $139.05 Consulting (Design, Architecture, Planning); Technology Assessments; Security Audits. Project Management. CIO Consulting Services including product evaluations and application/infrastructure planning services. Application Development $133.90 Application Software development and Systems Programming (System Level Scripting/Automation). Includes SharePoint design services. Web Design Services $123.60 Web site design and implementation services. Infrastructure Deployment Services $123.60 Installation and Setup of the following: Networks, Electronic Messaging Systems, Servers, SANs, VMWare, Citrix, Network Domains and Desktop Deployments. Infrastructure Maintenance Services $118.45 Maintenance Services for the following: Networks, Electronic Messaging Systems, Servers, SANs, VMWare, Domains, Microsoft Server and Desktop support. Travel Time $82.40 Travel time to and from the Customer. This rate includes the mileage expense at the current IRS approved mileage rate. After Hours Support Services $154.50 All reactive support services provided to Customer outside of the hours of 8am to 5pm Monday through Friday and all services provided on National Holidays Note: Rates will automatically increase on an annual basis equivalent to the CPI change for All Urban Consumers. Annual rate increases will become effective on the first of the month following the release of data for the prior calendar year. EXHIBIT “B” CONTRACTOR AFFIDAVIT AND AGREEMENT STATE OF GEORGIA CITY OF MILTON By executing this affidavit, the undersigned contractor verifies its compliance with O.C.G.A. § 13-10-91, stating affirmatively that the individual, firm, or corporation which is engaged in the physical performance of services on behalf of the City of Milton has registered with, is authorized to use and uses the federal work authorization program commonly known as E-Verify, or any subsequent replacement program, in accordance with the applicable provisions and deadlines established in O.C.G.A. § 13-10-91. Furthermore, the undersigned contractor will continue to use the federal work authorization program throughout the contract period and the undersigned contractor will contract for the physical performance of services in satisfaction of such contract only with subcontractors who present an affidavit to the contractor with the information required by O.C.G.A. § 13-10-91(b). Contractor hereby attests that its federal work authorization user identification number and date of authorization are as follows: _________________________________ eVerify Number _________________________________ Date of Authorization VC3, Inc. Name of Contractor Cloud-Based IT Services Name of Project City of Milton Name of Public Employer I hereby declare under penalty of perjury that the foregoing is true and correct. Executed on ______, ___, 201__ in _____(city), ______(state). _________________________________ Signature of Authorized Officer or Agent _______________________________ Printed Name and Title of Authorized Officer or Agent SUBSCRIBED AND SWORN BEFORE ME ON THIS THE ______ DAY OF ______________,201__. _________________________________ NOTARY PUBLIC [NOTARY SEAL] My Commission Expires: _________________________________ EXHIBIT “C” SUBCONTRACTOR AFFIDAVIT STATE OF GEORGIA CITY OF MILTON By executing this affidavit, the undersigned subcontractor verifies its compliance with O.C.G.A. § 13 -10-91, stating affirmatively that the individual, firm or corporation which is engaged in the physical performance of servi ces under a contract with VC3, Inc. on behalf of the City of Milton has registered with, is authorized to use and uses the federal work authorization program commonly known as E-Verify, or any subsequent replacement program, in accordance with the applicable provisions and deadlines established in O.C.G.A. § 13 -10-91. Furthermore, the undersigned subcontractor will continue to use the federal work authorization program throughout the contract period, and the undersigned subcontractor will contract for the physical performance of services in satisfaction of such contract only with sub-subcontractors who present an affidavit to the subcontractor with the information required by O.C.G.A. § 13-10-91(b). Additionally, the undersigned subcontractor will forward notice of the receipt of an affidavit from a sub -subcontractor to the contractor within five (5) business days of receipt. If the undersigned subcontractor receives notice that a sub-subcontractor has received an affidavit from any other contracted sub - subcontractor, the undersigned subcontractor must forward, within five (5) business days of receipt, a copy of the notice to the contractor. Subcontractor hereby attests that its federal work authorization user identification number and date of authorizat ion are as follows: ________________________________ eVerify Number _________________________________ Date of Authorization Click here to enter text. Name of Subcontractor Click here to enter text. Name of Project City of Milton Name of Public Employer I hereby declare under penalty of perjury that the foregoing is true and correct. Executed on ______, ___, 201__ in _____(city), ______(state). _________________________________ Signature of Authorized Officer or Agent _______________________________ Printed Name and Title of Authorized Officer or Agent SUBSCRIBED AND SWORN BEFORE ME ON THIS THE ______ DAY OF ______________,201__. _________________________________ NOTARY PUBLIC [NOTARY SEAL] My Commission Expires:______________________ Atlanta Columbia Raleigh 1301 Gervais Street, Suite 1800 | Columbia, SC 29201 800.787.1160 City of Milton, GA VC3Advantage Work Order VirtualOffice Advantage Work Order No. [ VC3INC-1097-45876 ] under the Master Services Agreement, dated _________. October 28, 2014 Work Order 10/28/2014 Page 2 of 14 VC3INC-1097-45876 V:5.0 TABLE OF CONTENTS TABLE OF CONTENTS .................................................................................................................. 2 1. VC3 OVERVIEW ................................................................................................................. 3 2. OVERVIEW OF WORK ORDER ............................................................................................ 4 3. SUMMARY OF SCOPE OF SERVICES AND FEES ................................................................... 4 4. DELIVERABLES AND SERVICES ........................................................................................... 6 VIRTUALOFFICE ADVANTAGE – DELIVERABLES AND SERVICES ............................................................ 6 General ..................................................................................................................................... 6 Deployment & Migration Services ............................................................................................ 7 Support & VCIO Services ........................................................................................................... 8 5. CUSTOMER RESPONSIBILITEIS ........................................................................................... 9 6. ASSUMPTIONS ................................................................................................................ 10 7. EXCLUDED SERVICES ....................................................................................................... 10 8. INVOICING....................................................................................................................... 11 9. ADDENDUM A – SERVICE DESK PRIORITIES ..................................................................... 12 10. ADDENDUM B – MAINTENANCE WINDOWS ................................................................... 14 Work Order 10/28/2014 Page 3 of 14 VC3INC-1097-45876 V:5.0 1. VC3 OVERVIEW VC3 has been on the leading edge of Information Technology since 1994, providing customer- oriented solutions to both commercial and public sector customers. We implement IT projects and services that can provide above average returns on investment, significantly enhance productivity and lower technology ownership costs. Current services offerings include:  Hosted Desktop (Cloud based desktop solutions)  Hosted and On Premise Voice Solutions (Cloud and premise based voice solutions)  Managed Support Services  Website Design and Hosting  Network Security  Data Center Services  Technology Assessments & Security Audits  Application Development  Technology Consulting  Disaster Recovery VC3’s customers include small, medium, and large organizations throughout the South East. Some of our customers include well-known technology companies in the Fortune 500. These organizations have some of the most stringent and demanding expectations of their technology partners; VC3 has answered their call. A proud member of the CRN Tech Elite 250, which recognizes the most technologically advanced Information Technology providers in the United States, VC3 has been consistently recognized as a leader in developing internet based applications and web technologies, network technology solutions, and world-class support services. VC3 remains committed to incorporating the latest industry technological advances into the applications and solutions we provide. To that end, VC3 is firmly committed to using industry leading products from such vendors as Cisco, Microsoft, Dell, VM Ware and Citrix, resulting in consistent success in providing our customers with the highest level of return and satisfaction. The advent of cloud computing has made VC3’s long term strategic goal of offering customized solutions a reality. In 2009, VC3 launched the first of our VC3 Advantage product offerings, which utilizes cloud-based technologies. Our Advantage Customers are realizing reduced costs, improved reliability and flexibility, and worry-free maintenance. VC3’s multi-dimensional offerings and ongoing success relies heavily on our ability to build solid, long-term relationships with our customers. We sincerely look forward to providing your organization with the highest quality solution. VC3 was named one of South Carolina’s Fastest-Growing Companies in 2007 and again in 2008. VC3 was also named one of the Best Places To Work in S.C. 2010, 2011, and 2012. For more information, please visit us at www.vc3.com. Work Order 10/28/2014 Page 4 of 14 VC3INC-1097-45876 V:5.0 2. OVERVIEW OF WORK ORD ER This Work Order is part of, and incorporated into, the Master Services Agreement between City of Milton, GA and VC3, Inc. and is subject to the terms and conditions of the Agreement and any definitions contained in the Agreement. If any provision of this Work Order conflicts with the Agreement, the terms and conditions of the Agreement shall control. 3. SUMMARY OF SCOPE OF SERVICES AND FEES VC3 will provide the following services listed in Table A. This Work Order shall begin and become effective on November 1st, 2014 (Effective Services Start Date) and shall continue for 60 Months unless terminated in accordance with the terms of the Master Services Agreement. Any termination of this work order prior to the end of the 60 month work order period, will result in a decommissioning fee of the initial monthly contract amount times the number of months remaining in the 60 month work order term times 10%. City of Milton, GA will be invoiced based on the number of active VOA seats, with each seat representing a user of VOA that is configured and has permission to log into their personal hosted desktop. Seats that are active for less than 20 business days will be prorated daily as 1/20th of a seat for each business day less than 20. City of Milton, GA will be invoiced based on the number of units of each type listed in Table A. The monthly fee is based on the number of supported units of each type listed. Additional services may be added at any time during the life of this contract at the unit rates listed below. VC3 will audit the Customer’s usage of units on a monthly basis; for each unit found in excess of the amount listed in Table A, VC3 will increase the monthly fee by the corresponding amount indicated in Table A. Reductions in Units above the minimum threshold will be reflected on the invoice within 30 days of service removal. Work Order 10/28/2014 Page 5 of 14 VC3INC-1097-45876 V:5.0 Table A: Services & Fees Description Units Unit Price Monthly Fee Annual or One-Time Fee Initial Setup (One Time)32,008.00$ Base VOA Infrastructure 1 1 600.00$ 600.00$ VOA Seats (10 Seat Minimum)92 140.00$ 12,880.00$ Additional VOA Seat Activiation 2 140.00$ Additional Supported Device 50.00$ -$ Included Travel Hours 3 9.25 Virtual Servers (VOA) 4 (30 GB Disk, 2 GB Memory)10 190.00$ 1,900.00$ Additional Virtual Memory per GB 8 25.00$ 200.00$ Additional Disk Storage per GB 100 2.00$ 200.00$ Additional Bandwidth (Mb/Sec)150.00$ -$ Additional Monitor 10 10.00$ 100.00$ Kiosk w/ MS Office 8 185.00$ 1,480.00$ Email Data Migration (non-Exchange)100.00$ -$ SQL Server Access License (Per User)10.00$ -$ SQL per Processor License 1 300.00$ 300.00$ Office Pro Upgrade (MS Access, Publisher)10 6.00$ 60.00$ Additional Exchange Account 5 82 12.50$ 1,025.00$ Communications Link 1 500.00$ 500.00$ SSL Certificate (Annually)1 300.00$ 300.00$ ActiveSync 40 3.75$ 150.00$ Additional Exchange Storage per GB 3.75$ -$ Blackberry 12.00$ -$ Archiving 6 174 3.50$ 609.00$ Web Filtering 7 0 7.50$ -$ Total 20,004.00$ 32,308.00$ 1. The “Base VOA Infrastructure” includes Virtual servers used to deliver the base functionality of the VOA environment. 2. The “Additional VOA Seat Activation” will be invoiced for each unit increase in VOA Seats. 3. The specified travel hours each month are included as part of this Work Order. Additional travel hours will be invoiced at the hourly rate stated in the Master Services Agreement. 4. Each virtual server will be invoiced at the rate specified in Table A. 5. Each VirtualOffice subscription includes one Microsoft Exchange user license. Additional Exchange accounts will be invoiced at the “Additional Exchange Account” rate specified in Table A. 6. Archiving must be turned on for all users and is not supported for a subset of user s. 7. Web Filtering must be turned on for all users and is not supported for a subset of users. Work Order 10/28/2014 Page 6 of 14 VC3INC-1097-45876 V:5.0 4. DELIVERABLES AND SER VICES VIRTUALOFFICE ADVANT AGE – DELIVERABLES AND SER VICES VC3 will provide the following functions and services for the number of devices outlined in Table A as part of this Work Order. Included Devices: ‘Included Devices’ will be defined as applicable devices associated with the unit quantities stated in Table A. This includes Network route/switch infrastructure, all included servers and all included thin client, desktop or laptop devices which correlate to the included quantities reflected in Table A. GENERAL A. For each supported VOA seat, VC3 will provide the customer with a Desktop environment and will provide licensing for Microsoft Office Standard Edition. Microsoft Office Standard Includes Word, Excel, PowerPoint, Outlook, Publisher and OneNote. B. VC3 will provide the customer with 2GB Microsoft Exchange mailboxes with Spam filtering per licensed user. Each mailbox in excess of the total number of seats will be charged at the rates listed in Table A. 1. A total aggregate Exchange storage of up to 2GB per user will be provided as part of the base fee. Additional Exchange data storage will be provided at the rate specified in Table A. C. VC3 will provide complete thin client packages or support of one Laptop/Desktop device per Seat (Thin client package includes: thin client, keyboard, monitor and mouse). Support and replacement of thin client hardware is included within pricing. VC3 will make arrangements to repair or replace the failed component in the event of a failure. Once the hardware has been replaced, customer is responsible for returning the replaced device to VC3 within 7 business days. Failure to return said device within 7 business days will result in a replacement charge for the item. D. VC3 will provide individual and shared file storage for all users. 1. Total aggregate file storage of up to 8GB per user will be provided as part of the base fee. Additional file storage will be provided at the rate specified in Table A. E. VC3 will minimally maintain two weeks of daily backups (Monday-Friday). F. VC3 will provide 56 kb/s per user and with a minimum aggregate bandwidth of 1 Mb/s, between the customer’s hosted environment and the public internet per 30 supported seats. Additional bandwidth usage charges may apply as listed in Table A. Work Order 10/28/2014 Page 7 of 14 VC3INC-1097-45876 V:5.0 DEPLOYMENT & MIGRATI ON SERVICES A. VC3 will provide the customer with migration services for their data into the new environment: 1. VC3 will implement performance monitoring of customer’s network prior to and during implementation. If potential issues are discovered, VC3 will make the customer aware of those issues and provide options to resolve them. 2. VC3 will migrate all file shares currently accessed by PC clients. 3. VC3 will migrate up to 2GB of Exchange data per user for existing Exchange server mailbox accounts. Public Folders are not supported and will not be migrated. 4. VC3 will work with the customer’s vendor to migrate the primary data repository for the supported third-party applications listed in Table A. 5. VC3 will provide a repository folder on each PC for end-users to place local files and application settings. 6. VC3 will provide instructions for end-users on how to export mail, contact lists, and bookmarks from common e-mail applications and browsers and how to import them into the cloud environment. 7. VC3 will setup the customer’s printers and file shares within the new cloud environment. Customer is responsible for testing and confirming appropriate permissions to files and applications have been set. 8. VC3 will provide end-user training documentation on the cloud environment, Office 2010, and how to obtain support. 9. VC3 will provide ‘Day 1’ onsite support. B. Other services include onsite customer training, ‘full-service’ migration of PC settings by VC3 staff and migration of additional third-party application data sets that are available upon request via a Change Order. Work Order 10/28/2014 Page 8 of 14 VC3INC-1097-45876 V:5.0 SUPPORT & VCIO SERVICES A. Application Support: 1. Customer is responsible for procurement and ownership of all licenses, maintenance, and vender support agreements required for support of their third- party applications, excluding the Microsoft licensing explicitly included in the per seat packages identified in Table A. 2. VC3 will provide support for customer licensed 3rd party applications. If it is determined from the initial discovery and/or from third-party application vendors that an application requires additional servers, licensing or support resources, additional monthly costs may be required before the application can be supported. B. 24X7 Monitoring and Incident Response Services: 1. VC3 will provide 24X7 Incident response services for all included devices. 2. VC3 will track all incidents through an ITIL (Information Technology Infrastructure Library) based Service Desk system. All requests will be prioritized and processed per the 'Priority' guidelines listed in Addendum A. 3. VC3 will provide 24x7 collection of performance data for the customer’s included server and network devices per VC3’s best practices. 4. VC3 will provide 24X7 response to critical event driven Incidents. 5. VC3 will utilize industry best practices for remote access, control and management of all devices. 6. VC3 Network Operations Center is staffed from 7:00am to 6:00pm Monday through Friday. After hours incident response will be provided via callback within 1 hour of incident submission. C. Proactive Services: 1. Backup Management: VC3 will monitor and maintain backups for included devices. 2. Patch Management: VC3 will perform maintenance activities on included devices such as the application of vendor provided software and firmware updates. 3. Antivirus and Support Tools: VC3 will deploy the VC3 Remote Support and Anti- Virus agents to all applicable included devices. VC3 will make a “best effort” to automatically deploy these agents to the said devices. 4. Anti-Spam: VC3 will provide Spam filtering for all inbound mail. Work Order 10/28/2014 Page 9 of 14 VC3INC-1097-45876 V:5.0 D. VCIO Services: VC3 will provide the customer with a named 'VCIO' or Virtual Chief Information Officer. 1. Budgeting: The VCIO will work with the cusomter to develop an annual technology budget for recurring expense items and new capital reqirments in alignment with organizational goals. 2. Strategic Planning: The VCIO will recommend technology solutions as well as provide roadmaps that support key business processes in order to help the customer leverage technology appropriately. The VCIO will work with the customer as part of the annual planning process to understand the current business drivers and goals and make recommendations targeted toward maximizing the effectiveness of the customer’s technology investment. 3. Analyze IT Health data: The VCIO will analyze the data collected by VC3’s monitoring systems to proactively resolve issues and assess potential risks within the environment. The VCIO will make this this analysis avilable to key stakeholders and provide direction on business decisions regarding the level of investment. E. Excluded Services: 1. Items other than those included above are expressly excluded from the Services provided within this Work Order. Section 7 includes examples of typical services which are excluded from the Scope of Services provided in this Work Order. 2. When customer requests services by VC3 not explicitly included in this agreement, they are agreeing to invoicing of said services per the terms outlined In the Master Services Agreement. For all services which incur additional hourly fees, VC3 will notify the customer that these services are outside the scope of this work order and will receive approval from customer prior to rendering these additional services. 3. Services allowing public internet access, such as websites and payment gateways, are not included within the VirtualOffice Advantage product but may be provided via a separate hosting Work Order. 5. CUSTOMER RESPONSIBIL ITEIS A. Customer will provide a primary point of contact for VC3 to work with on all services provided in this Work Order. B. Customer is responsible for authorizing access for VC3 to sites that are owned / controlled by third parties. C. Customer is responsible for proper disposal of customer-owned devices. D. Customer will make a best effort to maintain the minimum infrastructure requirements as defined by VC3. E. Customer will maintain both hardware and software maintenance agreements with the source Vendor whenever possible to allow for ongoing access to security updates and to provide quick replacement of non-functioning components. Work Order 10/28/2014 Page 10 of 14 VC3INC-1097-45876 V:5.0 6. ASSUM PTIONS A. VC3 will make reasonable efforts to resolve all issues remotely prior to dispatching an engineer onsite. Travel hours incurred which exceed the monthly allotment included with this work order will be invoiced according to the Master Services Agreement. B. The Work Order will not become effective unless and until it is agreed upon and signed by the customer and VC3. C. VC3 assumes that the Customers’ business applications can be consolidated to the number of virtual servers specified in Table A. Should additional servers be required to support the Customers’ business applications, additional charges will be incurred at the rates listed in Table A. 7. EXCLUDED SERVICES Excluded services are those related to functionality upgrades, such as those required to evaluate, specify, purchase, and implement client system or server upgrades such as operating systems, Microsoft Office suite software unless included with a specific VC3 product, third party software deployments or upgrades, or equipment related to these services whose scope exceeds that defined above. VC3 will provide these services to the customer on a Time & Materials Work Order basis at the rates outlined in the Master Services Agreement. If modification or replacement of a hardware device or component is required, customer is responsible for all hardware and hardware vendor services costs, excluding VC3 owned hardware explicitly provided through this work order. Software development, training and project work, including customer-owned PC upgrades and non-patch upgrades of software, are not included. Work Order 10/28/2014 Page 11 of 14 VC3INC-1097-45876 V:5.0 8. INVOICING VC3 will invoice Customer per Table B. VC3 will invoice the implementation fee upon receipt of the signed customer work order. VC3 will invoice the customer a pro-rated monthly fee based on any partial month of service plus the first full month of service on the effective services start date. All subsequent service months will be invoiced at the start of the month in which services are to be rendered. If additional services are turned on during the course of a month, then fees associated with those services will be included in the next customer invoice. Any taxes related to services purchased or licensed pursuant to this Work Order shall be paid by customer or customer shall present an exemption certificate acceptable to the taxing authorities. Applicable taxes and freight charges shall be billed as a separate item on the invoice. Table B Milestone Billing Milestone Description / Date Invoice Amount Implementation Fee Invoiced at the signing of Work Order $ 32,308.00 Monthly Fee (60 Month Term) Invoicing to begin at Effective Services Start Date $ 20,004.00 VC3, Inc. City of Milton, GA By: ___________________________ By: ___________________________ Name: ___________________________ Name: ___________________________ Title: ___________________________ Title: ___________________________ Date: ___________________________ Date: ____________________________ Work Order 10/28/2014 Page 12 of 14 VC3INC-1097-45876 V:5.0 9. ADDENDUM A – SERVICE DESK PRIORITIES Incidents and Service Requests are triaged and prioritized to effectively resolve the most important issues in a timely manner. VC3 utilizes the following priorities, criteria and response metrics: A. Priority 1: o System/device/service down causing work to cease and critical impact to the organization or a whole department; no work around available; customer is in danger of or is experiencing a financial loss or the ability to make strategic business decisions is impaired; begin resolution activities immediately. o 24x7 Support: Priority 1 incidents will be addressed on a 24 hours a day, 7 days a week basis including holidays. B. Priority 2: o System/device/service down causing work to cease and potential business impact for an individual user; no work around available. o Level of service degraded causing impact to the organization or a whole department; no work around available. o 24x7 Support: Priority 2 incidents will be addressed on a 24 hours a day, 7 days a week basis including holidays. C. Priority 3: o Level of service degraded causing impact to an individual user; no work around available. o Operational impact to the organization or a whole department though work continues as a result of implementing a work around or use of other system/device/service. o A request to enable or configure a system/device/service within 2 business days. o Incidents related to Backup system failures. o Business Hours Support: Priority 3 incidents will be addressed during normal business hours Monday-Friday, 8:00am to 5:00pm excluding holidays. D. Priority 4: o Operational impact to the organization, department or user exists though work continues as a result of implementing a work around or use of another system/device/service. o A request to enable or configure a system/device/service within 5 business days. o Business Hours Support: Priority 4 incidents will be addressed during normal business hours Monday-Friday, 8:00am to 5:00pm excluding holidays. E. Priority 5: o Operational impact to the organization, department or user is minimal or is mitigated by a reliable workaround. o A request to enable or configure a system/device/service beyond 5 business days from the date of the request. o Requests that have longer lead times to implement than is possible within 5 business days. Work Order 10/28/2014 Page 13 of 14 VC3INC-1097-45876 V:5.0 o Business Hours Support: Priority 5 incidents will be addressed during normal business hours Monday-Friday, 8:00am to 5:00pm excluding holidays. Call Priority Initial Customer Contact Guidelines Initial Customer Contact Percentages 1 30 Min 95% 2 60 Min 95% 3 4 business hours 95% 4 8 business hours 95% 5 8 Business Hours 95% Work Order 10/28/2014 Page 14 of 14 VC3INC-1097-45876 V:5.0 10. ADDENDUM B – MAINTENANCE WINDOWS All work performed within VC3’s Hosting Infrastructure is a form of maintenance. Such work may or may not result in a disruption of service depending on the scope of the activity. A. Scheduled Maintenance: All planned work performed on VC3’s Hosting Infrastructure by VC3 engineers or staff is defined as “Scheduled Maintenance”. During scheduled maintenance, some or all of VC3’s Hosting Infrastructure may be out of service and therefore may not be accessible to users. Regularly scheduled maintenance will occur on the 1st and 4th Thursday of every month from 2:00am to 4:00 am. In all cases, a 15-minute downtime is expected during those windows. If customer has a business need to avoid said outage, they must provide their request via the VC3 Service Desk ten business days in advance. 1. Notification: If VC3 decides to perform a scheduled maintenance activity beyond the standard 15-minute downtime, customer will be notified via email ten business days before the scheduled maintenance window. B. Emergency Maintenance: All work performed in response to a disruption or a threat to the availability of a component of VC3’s Hosting Infrastructure within the control of VC3 is defined as “Emergency Maintenance”. Emergency maintenance will be conducted based upon the timeframe that the emergency exists. Normal business hours will see an immediate response. For issues that occur during non-business hours, the impact of the event will be evaluated as soon as possible and appropriate measures taken to return the system to normal availability. C. Notification: Customer will be notified via email should emergency maintenance be necessary. D. Hosting Service Areas: The VC3 Hosting Infrastructure includes but is not limited to the following areas; E-mail hosting, server hosting, website hosting, Content Management System, Hosted Applications, Internet Service Provider, Hosted Voice, and custom application hosting. VERBAGE FOR WHAT IS COVERED (IE SUPPORT OF ENVIRONMENT AT SI GNING) HOME OF ` ESTAI�LISIIED 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: October 29, 2014 FROM: City Manager AGENDA ITEM: Consideration of a Sole Source Professional Services Agreement between the City of Milton, GA and Laurel A. Florio for Land Conservation Consulting Services. MEETING DATE: Monday, November 3, 2014 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: (,APPROVED () NOT APPROVED CITY ATTORNEY APPROVAL REQUIRED: X YES {) NO CITY ATTORNEY REVIEW REQUIRED: S,/} YES {) NO APPROVAL BY CITY ATTORNEY x APPROVED {) NOT APPROVED PLACED ON AGENDA FOR: j i o 31 i -I - REMARKS ® 10 You(M 0-1.1 - *** PHONE: 678.242.25001 FAX: 678.242.2499 reen v *c "tifi'-d infvftifyomiltonga.us www.cifyofmiltongaus Community ���ch« 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004 To: Honorable Mayor and City Council Members From: Chris Lagerbloom, City Manager Date: Submitted on October 29, 2014 for the November 3, 2014 Regular Council Meeting Agenda Item: Consideration of a Sole Source Professional Services Agreement between the City of Milton, GA and Laurel A. Florio for Land Conservation Consulting Services. ______________________________________________________________________________ Department Recommendation: Approval. Executive Summary: The City of Milton recognizes the need to continue to retain an expert to provide certain services generally described as conservation-related consulting services. In response to the vision and mission of the city, as well as fully established in the strategic plan titled as ‘preserve open space’, the City finds that specialized knowledge, skills, and training are necessary to further advance current practices and rely upon new practices in conservation and preservation. Laurel Florio is a consultant who is highly qualified by her training and experience to perform the necessary work; she is a lawyer by degree and also a Milton citizen. Laurel Florio has provided the city over five months of dedicated professional services and therefore she now possesses a range of knowledge and understanding of the unique conservation challenges facing the city that would be impossible for another consultant to replicate without the city expending considerable additional (and duplicative) funds to retain. She is now vested with a unique skill set, a specialized understanding of the pertinent issues facing the city and a level of engagement with requisite community stakeholders that could not be duplicated by another provider. The anticipated scope of work (which is designed on purpose with some flexibility) is more fully described within the following bullet points: Page 2 of 2 1. Working with staff on procedures/policies regarding conservation transactions. 2. Landowner outreach/education 3. Staff/Council outreach/education 4. Actual land protection transactions utilizing TDR, Conservation Easements, PDR, land acquisition, etc. 5. Funding for land protection 6. Federal/state/local incentives for landowners. Funding and Fiscal Impact: As of the date of entry into this Agreement if adopted by Council, there is $30,000 approved toward the work, and that amount shall serve as a cap for those services to be provided by the Consultant. Upon exhaustion of $30,000 the Consultant shall discontinue providing services pending receipt of a notice of termination, authorization by the City Council of an additional retainer amount, or authorization of up to an addition $10,000 per Section II(c) of the Agreement. Alternatives: Do not approve the contract. Legal Review: Ken Jarrard, City Attorney Concurrent Review: None. Attachment(s): Professional Services Agreement THIS SOLE SOURCE PROFESSIONAL SERVICES AGREEMENT ("Agreement") is effective as of October 1, 2014 ("Effective Date"), by and between the CITE' OF MILTON, a political subdivision of the State of Georgia, acting by and through its governing authority, the City of Milton Mayor and City Council, and having its principle place of business at 13000 Deerfield Parkway, Suite 107G, Milton, Georgia 30004 ("City"), and LAURE L A. FLORID, acting in her individual capacity and having her principle address at P.O. Box 2116, Roswell, Georgia 30077 ("Consultant"), collectively referred to as the "Parties." WHEREAS, the City has previously retained the Consultant to provide professional services to the City for purposes of undertaking a Conservation Initiative; WHEREAS, that professional service initiative has been ongoing since April 2014 - with the Consultant performing services since that time; WHEREAS, the professional services agreement under which those original services were provided, to include the single amendment thereto, has now expired; WHEREAS, based upon the Consultant having provided over five months of dedicated services to the City, the Consultant now possesses a range of knowledge and understanding of the unique conservation challenges facing the City that would be impossible for another consultant to replicate; WHEREAS, the City's purchasing policies specifically authorize the City to utilize sole source procurement when the "supply service" may only be secured from a single source; WHEREAS, it is the position of the City Manager, the authorized purchasing agent for the City, that the Consultant is now vested with (1) a unique skill set, (2) a specialized understanding of the pertinent issues, and a (3) level of engagement with the requisite community that could not be duplicated by any another provider, and that therefore sole source procurement is appropriate; WHEREAS, a copy of the sole source certification to that effect is attached hereto as Exhibit "A"; WHEREAS, based upon these factors, the City desires to renew and further retain the Consultant to provide certain services generally described as conservation -related consulting services; and ELAS, the City finds that specialized knowledge, skills, and training are necessary to perform the Work contemplated under this Agreement; and WHEREAS, the Consultant has represented that it is qualified by training and experience to perform the Work; and WHEREAS, the Consultant desires to perform the Work under the terms and conditions set forth in this Agreement; and WHEREAS, the public interest will be served by this Agreement; NOW, THEREFORE, for and in consideration of the mutual promises, the public purposes, and the acknowledgements and agreements contained herein,. together with other good and adequate consideration, .the sufficiency of which is hereby acknowledged, the Parties hereto do mutually agree as follows: SCOPE OF j'. AND i t i Pt N DATE A. Project Description The ongoing Project is generally described as conservation - related consulting. B. The Work. The Work to be completed under this Agreement (the "Work"} is more specifically described in Exhibit "13", attached hereto and incorporated herein by reference, and includes all material, labor. insurance, tools, equipment, and other miscellaneous items and work reasonably inferable from this Agreement. The term "reasonably inferable" takes into consideration the understanding of the Parties that some details necessary for completion of the Work may not be shown in Exhibit "B", but they are a requirement of the Work if they are a usual and customary component of the Work or otherwise necessary to complete the Work. C. Schedule, CoEnnletion late and Term of A reernesnt Consultant warrants and represents that it will perform its services in a prompt and timely manner, which shall not impose delays on the progress of the Work. This Agreement shall commence as of the Effective Date provided above, and the Work shall be completed on or before December 31 2015. Ft. WORK CHANGES A. Right to Order Changes The Parties reserve the right to recommend changes in the Work to be performed under this Agreement and further propose the altering, adding to, or deducting from the Work. All such proposed changes shall be incorporated in written change orders executed by the Consultant and the City and are otherwise subject to the limitations set forth in Section II(C). Such change orders shall specify the changes ordered and any necessary adjustment of compensation and completion time. B. Change Order Res�sairernent Any work added to the scope of this Agreement shall be added by a change order executed under all the applicable conditions of this Agreement. No claim for additional compensation or extension of time shall be recognized. unless contained in a written change order duly executed on behalf of the City and the Consultant. C. Authority to Execute Change Order. The City Manager has authority to 2 execute, without further action of the City Council, any number of change orders so long as their total effect does not materially alter the tern -is of this Agreement or materially increase the total amount to be paid under this Agreement, as set forth in Section III(B) below. Any such change orders materially altering the terms of this Agreement or increasing the total amount to be paid under this Agreement in excess of $10,000 must be approved by resolution of the City of Milton City Council. A. Payment for Werk Completed and Costs Incurred Subject to the provisions of Section III(B), the City agrees to pay the Consultant for the Work performed and costs incurred by Consultant upon certification by the City (or City staff) that the Work was actually performed and costs actually incurred in accordance with the Agreement. Compensation for Work performed and reimbursement for costs incurred shall be paid to the Consultant upon receipt and approval by the City of invoices, setting forth in detail the services performed and costs incurred, along Nvith all supporting documents requested by the City to process the invoice. Invoices shall be submitted on a weekly basis, and such invoices shall reflect charges incurred versus charges budgeted. Any material deviations in tests or inspections performed, or times or locations required to complete such tests or inspections, and like deviations from the Work described in this Agreement, shall be clearly communicated to the City before charges are incurred and shall be handled through change orders as described in Section II above. The City shall pay the Consultant within thirty (30) days after approval of the invoice by City staff. B. Maximum Contract Price. The total amount to be paid under this Agreement as compensation for the Work performed and reimbursement for costs incurred shall be based upon those funding authorizations specifically approved by the Milton City Council. Each such authorization shall act as, effectively, a retainer for services - and upon the amounts in such retainer being expended for services rendered, any further effort toward fulfillment of the Work by the Consultant shall discontinue pending (1) a notice of termination as set forth in Section VI(B) or (2) upon authorization by the City Council of an additional retainer amount. As of the date of entry into this Agreement, the City Council has approved $30,000 toward the Work, and that amount shall serve as a cap for those services to be provided by the Consultant Upon exhaustion of $30,000, the Consultant shall discontinue providing services pending (1) receipt of a notice of termination, (2) authorization by the City Council of an additional retainer amount, or (3) authorization of up to an additional $10,000 per Section II(C). C. Reimbursement for Costs. Reimbursement for costs incurred shall not be provided under this Agreement, unless such costs are approved by the City Manager prior to being incurred, and such reimbursement for costs (if approved) shall be limited as follows. Long distance telephone and telecommunications, facsimile transmission, normal postage and express mail, photocopying charges and time, supplies and outside services, transportation, lodging, meals and authorized subcontracts shall be billed at cost. Automobile mileage shall be no more than the current deductible rate set by the Internal Revenue Service. In no event shall the total reimbursement for costs incurred during a particular month exceed five (S) percent of the total amount due for Work for that particular month. B1. COVENANTS OF CONSULTANT Aa Expertise of Consultant. Consultant accepts the relationship of trust and confidence established between it and the City, recognizing that the City's intention and purpose in entering into this Agreement is to engage an entity with the requisite capacity, experience, and professional skill and judgment to provide the Work in pursuit of the timely and competent completion of the Work undertaken by Consultant under this Agreement. B. Budgetary Limitations. Consultant agrees and acknowledges that budgetary limitations are not a justification for breach of sound principals of Consultant's profession and industry. Consultant shall take no calculated risk in the performance of the Work. Specifically, Consultant agrees that, in the event it cannot perform the Work within the budgetary limitations established without disregarding sound principals of Consultant's profession and industry. Consultant will give written notice immediately to the City. C. City's reliance on the Work. The Consultant acknowledges and agrees that the City does not undertake to approve or pass upon matters of expertise of the Consultant and that, therefore, the City bears no responsibility for Consultant's Work performed under this Agreement. The Consultant acknowledges and agrees that the acceptance of advice, reports, schedules, etc. by the City is limited to the function of determining whether there has been compliance with what is required to be produced under this Agreement. The City will not, and need not, inquire into adequacy, fitness, suitability or correctness of Consultant's performance. Consultant further agrees that no approval of advice, reports, schedules, etc. by any person, body or agency shall relieve Consultant of the responsibility for adequacy, fitness, suitability, and correctness of Consultant's Work under professional and industry standards, or for performing services under this Agreement in accordance with sound and accepted professional and industry principals. D. Consultant's Reliance on Submissions by the City. Consultant must have timely information and input from the City in order to perform the Work required under this Agreement. Consultant is entitled to rely upon information provided by the City, but Consultant shall be required to provide immediate written notice to the City if Consultant knows or reasonably should know that any information provided by the City is erroneous, inconsistent, or otherwise problematic. E. Assignment of Agreement. The Consultant covenants and agrees not to assign or transfer any interest in, nor delegate any duties of this Agreement, without the prior express written consent of the City. As to any approved subcontractors, the Consultant shall be solely responsible for reimbursing diem, and the City shall have no obligation to them. E. Responsibility of Consultant and indemnification of Cites The Consultant covenants and agrees to take and assume all responsibility for the Work rendered by Consultant in connection with this Agreement. The Consultant shall bear all losses and damages directly or indirectly resulting to it and/or the City on account of the performance or character of the Work rendered by Consultant pursuant to this Agreement. Consultant shall defend, indemnify and hold 4 harmless the City and the City's elected and appointed officials, officers, boards, commissions, employees, representatives, consultants, sen?ants, agents and volunteers (hereinafter referred to as "City Parties") from and against any and all claims, suits, actions, judgments, injuries. damages, losses, costs, expenses and liability of any kind whatsoever, including but not limited to attorney's fees and costs of defense (hereinafter "Liabilities"), which may arise from or be the result of alleged willful, negligent or tortious conduct arising out of the Work, performance of contracted services, or operations by the Consultant, any Consultant subcontractor, anyone directly or indirectly employed by the Consultant or subcontractor or anyone for whose acts the Consultant or subcontractor may be liable, regardless of whether or not the negligent act or omission is caused in part by a party indemnified hereunder. This indemnity obligation does not include Liabilities caused by or resulting from the sole negligence of the City or City Parties. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this provision. In any and all claims against the City or Cit v Parties, by any employee of the Consultant, any Consultant subcontractor, anyone directly or indirectly employed by the Consultant or Consultant subcontractor or anyone for whose acts the Consultant or Consultant subcontractor may be liable, the indemnification obligation set forth in this provision shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Consultant or any Consultant subcontractor under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts. This obligation to indemnify, defend, and hold harmless the City and City Parties shall survive expiration or termination of this Agreement, provided that the claims are based upon or arise out of actions that occurred during the performance of this Agreement. G. Independent Contractor. Consultant hereby covenants and declares that it is engaged in an independent business and agrees to perform the Work as an independent contractor and not as the agent or employee of the City. Nothing contained in this Agreement shall be construed to make the Consultant or any of its employees, servants, or subcontractors an employee, servant or agent of the City for any purpose. The Consultant agrees to be solely responsible for its own matters relating to the time and place the Work is performed and the method used to perform such Work; the instrumentalities, tools, supplies and/or materials necessary to complete the Work; hiring of consultants, agents or employees to complete the Work; and the payment of employees, including compliance with Social Security, withholding and all other regulations governing such matters. The Consultant agrees to be solely responsible for its own acts and those of its subordinates, employees, and subcontractors during the life of this Agreement. There shall be no contractual relationship between any subcontractor or supplier and the City by virtue of this Agreement with Consultant. Any provisions of this Agreement that may appear to give the City the right to direct Consultant as to the details of the services to be performed by Consultant or to exercise a measure of control over such services will be deemed to mean that Consultant shall follow the directions of the City with regard to the results of such services only. It is further understood that this Agreement is not exclusive, and the City may hire additional entities to perform Work related to this Agreement. H. Insurance. The Consultant shall have and maintain in full force and effect for the duration of this Agreement commercially reasonable insurance insuring against claims for injuries to persons or damages to property which may arise from or in connection with the 5 performance of the tVork by the Consultant. its agents, representatives. employees or subcontractors, which insurance shall, at minimum, include general liability insurance. automobile insurance and E & O insurance. The Consultant shall independently satisfy any obligations with respect to compliance with the Georgia Workers' Compensation Act. 1. )Emplovment of Unauthorized Aliens Prohibited - E -Verify Affidavit. Pursuant to O.C.G.A. ti 13-10-91, unauthorized aliens shall not be employed to perform work on City contracts involving the physical perfomiance of services. The Parties hereto agree and acknowledge that the Consultant has no employees and does not intend to hire any employees for purposes of satisf; ing or completing the ten -ns and conditions of this Agreement. Therefore, the Parties agree and acknowledge that, pursuant to O.C.G.A. § 13-10-91(b)(5). Consultant Inas provided to the City a copy of her state -issued driver's license, which license must have been issued by a state that verifies lawful immigration status prior to issuing a driver's license or identification card, as listed on the State Law Department's website. Further, Consultant agrees that, if she later determines that she will need to hire employees to satisfy or complete the physical performance of services pursuant to this Agreement, then she shall first be required to comply with the affidavit requirements provided in O.C.G.A. § 13-10-91. These requirements shall be in addition to the requirements of State and federal law, and shall be construed to be in conformity with those laws. �> Records, Reports and Audits (1) Records: (a) Books, records, documents, account legers, data bases, and similar materials relating to the Work performed for the City under this Agreement ("Records") shall be established and maintained by the Consultant in accordance with requirements prescribed by the City with respect to all matters covered by this Agreement. Except as otherwise authorized, such Records shall be maintained for at least three (3) years from the date that final payment is made to Consultant by the City under this Agreement. Furthermore, Records that are the subject of audit findings shall be retained for three (3) years or until such audit findings have been resolved, whichever is later. (b) All costs claimed or anticipated to be incurred in performance of this Agreement shall be supported by properly executed payrolls, time records, invoices, contracts, or vouchers, or other official documentation evidencing in proper detail the nature and propriety of the charges. All checks, payrolls, invoices, contracts, vouchers, orders or other accounting documents pertaining in whole or in part to this Agreement shall be clearly identified and readily accessible. (2) Retorts and Information: G Upon request, the Consultant shall furnish to the City any and all Records related to matters covered by this Agreement in the form requested by the City. All Records stored on a computer database must be of a format compatible with the City's computer systems and software. (3) Audits and Inspections: At any time during normal business hours and as often as the Citv may deem necessary, Consultant shall make available to the City or City's representative(s) for examination all Records with respect to all matters covered by this Agreement. The Consultant will permit the City or City's representative(s) to audit, examine, and make copies, excerpts or transcripts from such Records, and to audit all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and/or data relating to all matters covered by this Agreement. K Conflicts of Interest. Consultant agrees that it shall not engage in any activity or conduct that would result in a violation of the City of Milton Code of Ethics. The Parties agree that the City is not, nor shall it be, the sole client of Consultant. L. Confidentiality. Consultant acknowledges that it may receive confidential information of the City and that it will protect the confidentiality of any such confidential information and will require any of its subcontractors, consultants, and/or staff to likewise protect such confidential information. The Consultant agrees that confidential information it receives or such reports, information, opinions or conclusions that Consultant creates under this Agreement shall not be made available to, or discussed with, any individual or organization, including the news media, without prior written approval of the City. The Consultant shall exercise reasonable precautions to prevent the unauthorized disclosure and use of City information whether specifically deemed confidential or not. Consultant acknowledges that the City's disclosure of documentation is governed by Georgia's Open Records Act, and Consultant further acknowledges that if Consultant submits records containing trade secret information, and if Consultant wishes to keep such records confidential, Consultant must submit and attach to such records an affidavit affirmatively declaring that specific information in the records constitutes trade secrets pursuant to Article 27 of Chapter I of Title 10, and the Parties shall follow the requirements of O.C.G.A. § 50-18- 72(a)(34) related thereto. A Licenses, Certifications and Permits The Consultant covenants and declares that it has obtained all diplomas, certificates, licenses, permits or the like required of the Consultant by any and all national, state, regional, City, local boards, agencies, commissions, committees or other regulatory bodies in order to perform the Work contracted for under this Agreement. All work performed by Consultant under this Agreement shall be in accordance with applicable legal requirements and shall meet the standard of quality ordinarily expected of competent professionals. 7 T. Ownership of Work. All reports, designs. drawings, plans, specifications, schedules, work product and other materials prepared or in the process of being prepared for the Work to be performed by the Consultant ("Materials") shall be the property of the City, and the City shall be entitled to full access and copies of all such Materials. Any such Materials remaining in the hands of the Consultant or subcontractor upon completion or termination of the Work shall be delivered immediately to the City. The Consultant assumes all risk of loss. damage or destruction of or to such Materials. If any Materials are lost, damaged or destroyed before final delivery to the City, the Consultant shall replace them at its own expense. Any and all copyTightabie subject matter in all Materials is hereby assigned to the City, and the Consultant agrees to execute any additional documents that may be necessary to evidence such assignment. O. Nondiscrimination. In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. ti 20004, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and all other provisions of Federal law, the Consultant agrees that, during performance of this Agreement, Consultant, for itself, its assignees and successors in interest, will not discriminate against any employee or applicant for employment, any subcontractor, or any supplier because of race, color, creed, national origin, gender, age or disability. In addition, Consultant agrees to comply with all applicable implementing regulations and shall include the provisions of this Section IV(0) in every subcontract for services contemplated under this Agreement. A. Right of Entry. The City- shall provide for right of entry for Consultant and all necessary equipment to City property, in order for Consultant to complete the Work. B. City's Representative. The Citi Manager shall be authorized to act on the City's behalf with respect to the Work as the City's designated representative, provided that any changes to the Fork or the terms of this Agreement must be approved as provided in Section 1I above. A. Multi-year Services Agreement. This Agreement shall terminate absolutely and without further obligation on the part of the City on December 31, 2014. However, this Agreement shall be automatically renewed for one additional calendar year unless the City provides notice to the Consultant of its intention to terminate at least 30 days prior to December 31, 2014. In the event no such notice of non -renewal is provided, the Agreement shall renew- and extend until December 31, 2015, at which point the Agreement will terminate with no further right of renewal unless the Agreement is returned to the Council for formal approval at an open meeting for an additional term.. The total financial obligation of the City under this Agreement is presently $30,000, subject to the ability of the City Manager to authorize an increase of up to $10,000.. Title to any supplies, materials, equipment, and other personal property shall remain in the name of Consultant until fully paid for by the City. Any termination of this Agreement 8 occasioned by non -renewal b;; the City shall remain subject to the terms and requirements of Section VI(C). B. Parties' Right to Terminate. Notwithstanding Section VI(A), the Parties shall each have the right to terminate this Agreement for convenience by providing written notice thereof at least five (5) calendar days in advance of the termination date. Upon a notice of termination for convenience, the Consultant shall have no further right expectation of fees except as set forth in Section VI(C) and the City shall have no further right to expect or receive services from the Consultant. Consultant shall not be held liable nor unilaterally expected to deliver a set number of land transactions under this Agreement. Consultant's responsibilities are established within the Scope of Work attached hereto, however, the Parties acknowledge that actual land transactions establishing conservation areas are subject to the consent and participation of third party landowners that are beyond the direct control of the Consultant C. Payment Upon Termination Upon termination, City shall provide for payment to the Consultant for services rendered and approved expenses incurred prior to the termination date. D. Consultant Obligations Upon Termination Upon termination, the Consultant shall: (1) promptly discontinue all services, cancel as many outstanding obligations as possible, and not incur any new obligations, unless the notice directs otherwise; and (2) promptly deliver to the City all data, drawings, reports, summaries, and such other information and materials as may have been generated or used by the Consultant in performing this Agreement, whether completed or in process, in the form specified by the City. D. Additional Remedies. The rights and remedies of the City and the Consultant provided in this Article are in addition to any other rights and remedies provided under this Agreement or at law or in equity. Nothing herein shall be construed as creating any individual or personal liability on the part of any City Party. No City Party shall be personally liable to the Consultant or any successor in interest in the event of any default or breach by the City or for any amount which may become due to the Consultant or successor or on any obligation under the terms of this Agreement. �' I This Agreement constitutes the complete agreement between the Parties and supersedes any and all other agreements, either oral or in writing, between the Parties with respect to the subject matter of this Agreement. No other agreement, statement or promise relating to the subject matter of this Agreement not contained in this Agreement shall be valid or binding. This Agreement may be modified or amended only by a written document signed by representatives of both Parties with appropriate authorization. 0 IX. SUCCESSORS AND ASSIGNS Subject to the provision of this Agreement regarding assignment, this Agreement shall be binding on the heirs, executors. administrators. successors and assigns of the respective Parties. provided that no Parti- may assign this Agreement without prior written approval of the other Part} This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia. if any action at law or in equity is brought to enforce or interpret the provisions of this Agreement, the rules, regulations, statutes and laws of -the State of Georgia will control. Anv action or suit related to this Agreement shall be brought in the Superior Court of Fulton County, Georgia, and Consultant submits to the jurisdiction and venue of such court. The caption or headnote on articles or sections of this Agreement are intended for convenience and reference purposes only and in no way define, limit or describe the scope or intent thereof, or of this Agreement nor in any way affect this Agreement. Should any article(s) or section(s), or any part thereof, later be deemed illegal, invalid or unenforceable by a court of competent jurisdiction, the offending portion of the Agreement should be severed, and the remainder of this Agreement shall remain in full force and effect to the extent possible, as the Parties declare that they would have agreed to the remaining parts of this Agreement if they had known that the severed provision or portions thereof would be determined illegal, invalid or unenforceable. A. Communications Relating to Day -to -Day Activities All communications relating to the day-to-day activities of the Work shall be exchanged between the City Manager for the City and the Consultant. B. Official Notices. All other notices, requests, demands, writings, or correspondence, as required by this Agreement, shall be in writing and shall be deemed received, and shall be effective, when: (1) personally delivered, or (2) on the third day after the postmark date when mailed by certified mail, postage prepaid, return receipt requested, or (3) upon actual delivery when sent via national overnight commercial carrier to the Parties at the addresses given below, or at a substitute address previously furnished to the other Parties by written notice in accordance herewith: NOTICE TO THE CITY shall be sent to: City Manager 10 City of Milton 13000 Deerfield Parkway, Suite 107F Milton, Georgia 30004 NOTICE TO THE CONSULTANT shall be sent to: Laurel A. Florio, J.D. P.O. Box 1-116 Roswell, GA 30077 Future changes in address shall be effective only upon written notice being given by the City to Consultant or by Consultant to City Manager via one of the delivery- methods described in this Section. No failure by the City to enforce any right or power granted under this Agreement, or to insist upon strict compliance by Consultant with this Agreement, and no custom or practice of the City at variance with the terms and conditions of this Agreement shall constitute a general waiver of any future breach or default or affect the City's right to demand exact and strict compliance by Consultant with the terms and conditions of this Agreement. Further, no express waiver shall affect any term or condition other than the one specified in such waiver, and that one only for the time and manner specifically stated. This Agreement shall be exclusively for the benefit of the Parties and shall not provide any third parties with any remedy, claim, liability, reimbursement, cause of action or other right. T.i Nothing contained in this Agreement shall be construed to be a waiver of the Citv's sovereign immunity or any individual's qualified good faith or official immunities. Neither the City nor Consultant shall be liable for their respective non -negligent or non - willful failure to perform or shall be deemed in default with respect to the failure to perform (or cure a failure to perform) any of their respective duties or obligations under this Agreement or for any delay in such performance due to: (a) any cause beyond their respective reasonable control; (b) any act of God; (c) any change in applicable governmental rules or regulations rendering the performance of any portion of this Agreement legally impossible; (d) earthquake, fire, explosion or flood; (e) strike or labor dispute, excluding strikes or labor disputes by employees and/or agents of Consultant; (f) delay or failure to act by any governmental or military authority; or (g) any war, hostility, embargo, sabotage, civil disturbance, riot, insurrection or invasion. In such event, the time for performance shall be extended by an amount of time equal to the period of delay caused by such acts, and all other obligations shall remain intact. L- IN WITNESS NN'HER.E®]F the City and the Consultant have executed this Agreement, which shall be effective as of the Effective Date provided above. CONSULTANT: Laurel A. Florio, J.D., acting in tee individual capacity SIGNED, SEALED, AND DELIVERED in the presence of. i>1 ess Notary Pub]zC [NOTARY SEAL] V Commi sion Expires: i ` M G X90 �i�i `.�Cp..JSSiONF.,011I' OF MI.>I'ON 17 �0 oiz : CC Attest: By: Its: City Clerk 12 Approved as to form: City Attorney 13 EXHIBIT A CERTIFICATION OF SOLE SOURCE that: As the duly appointed purchasing agent for the City of Milton, I hereby certify, and affirm I. The Consultant has provided the City over five months of dedicated professional services and therefore the Consultant now possesses a range of knowledge and understanding of the unique conservation challenges facing the City that would be impossible for another consultant to replicate without the City expending considerable additional (and duplicative) funds to retain - thereby effectively starting the City's conservation program over from the beginning; 2. Such an exercise would be financially wasteful; 3. Moreover, even if another vendor was retained, the relationships the present Consultant has cultivated with the affected conservation stakeholders in the City would be impossible to replicate; 4. The Consultant is now vested with (1) a unique skill set, (2) a specialized understanding of the pertinent issues facing the City, and a (3) level of engagement with requisite community stakeholders that could not be duplicated by another provider; and 5. Therefore, it is my opinion that a sole source is appropriate, justified, and authorized by the City's purchasing policies. So affirmed this ?- 8 day of October, 2014. Chris Lager, oo ` City Manag ` E EXHIBIT "B" The Consultant shall provide consulting services related to the items described below, including related work associated Mth the conservation of land and landscape in the city of Milton. Actual work undertaken shall be directly related to the intended conservation of land within the City of Milton and billed on an hourly basis. Consultant may or may not be directly responsible for actually completing each of the items listed below and shall provide consulting services on an as -needed basis as requested by the City Manager. This Scope of Work may be modified, verbally or in writing by the Parties at any time. Consultant shall provide consulting services related to the following: A. Working with stair on procedures/policies regarding conservation transactions B. Landowner outreach/education C. Staff/council outreach education D. Actual land Protection transactions utilizing TDR, Conservation Easements, PDR, land acquisition, etc; E. Funding for land protection F. Federal/state/local incentives for landowners This list is not exhaustive, but focuses on those primary issues to which Consultant will focus the greater balance of her time. 15