Pad Mounted Switchgears-5985-Award/Ordinance/Pricing
Docusign City Council T ransmittal Coversheet
File Name
Purchasing Contact
City Council Target Date
Granicus #
Ordinance #
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2/2/15
Karen Smith
5985 RFP
Supply of Pad-mounted Switchgears
Contract 5985
CONTRACT BY AND BETWEEN
CITY OF DENTON, TEXAS AND ANIXTER POWER SOLUTIONS
(CONTRACT 5985 )
THIS CONTRACT is made and entered into this date _______________________, by
and between Anixter Power Solutions a corporation, whose address is 2800 Quail Run Dr.,
Corinth, TX 76208 , hereinafter referred to as "Supplier ," and the CITY OF DENTON, TEXAS ,
a home rule municipal corporation, hereinafter referred to as "City," to be effective upon
approval of the Denton City Council and subsequent execution of this Co ntract by the Denton
City Manager or his duly authorized designee.
For and in consideration of the covenants and agreements contained herein, and for the
mutual benefits to be obtained hereby, the parties agree as follows:
SCOPE OF SERVICES
Supplier sh all provide products in accordance with the City’s RFP # 5985 Supply of
Padmounted Switchgear , a copy of which is on file at the office of Purchasing Agent and
incorporated herein for all purposes . The Contract consists of this written agreement and the
following items which are attached hereto, or on file, and incorporated herein by reference:
(a) Special Terms and Conditions (Exhibit “A”);
(b) City of Denton’s RFP 5985 (Exhibit “B” o n file at the office of the Purchasing
Agent );
(c) City of Denton Standard Terms a nd Conditions (Exhibit “C ”);
(d) Supplier’s Proposal. (Exhibit "D ");
These documents make up the Contract documents and what is called for by one shall be
as binding as if called for by all. In the event of an inconsistency or conflict in any of the
provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving
precedence first to the written agreement then to the contract documents in the order in which
they are listed above. These documents shall be referred to coll ectively as “Contract
Documents.”
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Contract 5985
IN WITNESS WHEREOF, the parties of these presents have executed this agreement in
the year and day first above written.
SUPPLIER
BY:
AUTHORIZED SIGNATURE
Date:
Name:
Title:
PHONE NUMBER
FAX NUMBER
CITY OF DENTON, TEXAS
ATTEST:
JENNIFER WALTERS, CITY SECRETARY BY: _____________________________
GEORGE C. CAMPBELL, CITY MANAGER
BY: __________________________________ Date:________________________
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY: _______________________________
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scott.price2@hdsupply.com
940-270-7243
1/13/2016
Inside Sales
Scott Price
2/5/2016
Contract 5985
Exhibit A
Special Terms and Conditions
The Quantities indicated on Exhibit D , are estimates based upon the best available information.
The City reserves the right to increase or decrease the quantities to meet its actual needs without
any adjustments in the bid price. Individual purchase orders will be issued on an as needed
basis.
Product Ch anges During Contract Term
The supplier shall not change specifications during the contract term without prior approval.
Any deviation in the specifications or change in the product must be approved in advance by the
City of Denton. Notice of a change sh all be submitted in writing to
dentonpurchasing@cityofdenton.com , with the above file number in the subject line, for review.
Products found to have changed specifications without notification, and acceptance, will be
returned at the supplier’s expense. Products that have been installed will be replaced at the
supplier’s expense.
Authorized D istributor
The supplier shall be the manufacturer or authorized distributor of the proposed products. The
distributor shall be authorized to sell to the City of Denton, and make available the
manufacturer’s representative as needed by the City.
Contrac t Terms
The contract term will be one (1) year, effective from date of award. The City and the Supplier
shall have the option to renew this contract for an additional two (2) one -year periods.
The contract shall commence upon the issuance of a Notice of Award by the City of Denton and
shall automatically renew each year, from the date of award by City Council, unless either party
notifies the other prior to the scheduled renewal date. At the sole option of the City of Denton,
the contract may be further extended as needed, not to exceed a total of six (6) months.
Price Escalation and De -escalation
Prices must be firm for a period of one year from date of contract award. Any request for price
adjustment must be based on the, U.S Department of Labor, Bureau of Labor Statistics, Producer
Price Index (PPI) for other Switchgear and switchboard apparatus manufacturing
(PCU335313335313). The price will be increased or decreased based upon the annual
percentage change in the PPI. The m aximum escalation will not exceed +/- 8% for any individual
year. The escalation will be determined annually at the renewal date. Should the PPI change
exceed a minimum threshold value of +/-1%, then the stated eligible bid prices shall be adjusted
in ac cordance with the PPI change not to exceed the 8% limit per year. The supplier should
provide documentation as percentage of each cost associated with the unit prices quoted for
consideration.
Request must be submitted in writing with supporting evidence for need of such increase to the
Purchasing Manager at least 60 days prior to contract expiration of each year. Respondent must
also provide supporting documentation as justification for the request.
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Upon receipt of such request, the City of Denton reserves the right to either: accept the escalation
as competitive with the general market price at the time, and become effective upon the renewal
date of the contract award or reject the increases within 3 0 calendar days after receipt of a
properly submitted request. If a properly submitted increase is rejected, the Contractor may
request cancellation of such items from the Contract by giving the City of Denton written notice.
Cancellation will not go into effect for 15 calendar days after a determination has been issued.
Pre -price increase prices must be honored on orders dated up to the official date of the City of
Denton approval and/or cancellation.
The request can be sent by e -mail to: purchasing@cityofdenton.com noting the solicitation
number.
The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes
Total Contract Amount
The contract total shall not exceed $6,00 0,000. Pricing shall be per Exhibit D attached .
Delivery Lead Time
Product or services shall be delivered to the City per the days/weeks noted in Exhibit D after
receipt of the order.
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Exhibit C
City of Denton
Standard Purchase Terms and Conditions
These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings
and other requirements included in the City of Denton’s contract are applicable to
contracts/purchase orders issued by the City of Denton hereinafter referred to as the City or
Buyer and the Seller or respondent herein after referred to as Contractor or Supplier. Any
deviations must be in writing and signed by a representative of the City’s Procurement
Department and the Supplier. No Terms and Conditions contained in the seller’s proposal
response, invoice or statement shall serve to modify the terms set forth herein. If there is a
conflict between the provisions on the face of the contract/purchase order these written
provisions will take precedence.
The Contractor agrees that the contract shall be governed by the following terms and conditions,
unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract,
Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitatio n to purchase goods, and
sections 9, 10, 11, 22 and 32 shall apply only to a solicitation to purchase services to be
performed principally at the City’s premises or on public rights -of -way.
1. CONTRACTOR’S OBLIGATIONS . The Contractor shall fully and timel y provide all
deliverables described in the Solicitation and in the Contractor’s Offer in strict accordance with
the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local
laws, rules, and regulations.
2. EFFECTIVE D ATE/TERM . Unless otherwise specified in the Solicitation, this Contract
shall be effective as of the date the contract is signed by the City, and shall continue in effect
until all obligations are performed in accordance with the Contract.
3. CONTRACTOR T O PACKAGE DELIVERABLES : The Contractor will package
deliverables in accordance with good commercial practice and shall include a packing list
showing the description of each item, the quantity and unit price unless otherwise provided in the
Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly
and permanently marked as follows: (a) The Contractor's name and address, (b) the City’s name,
address and purchase order or purchase release number and the price agreement numb er if
applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d)
the number of the container bearing the packing list. The Contractor shall bear cost of packaging.
Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all
the requirements of common carriers and any applicable specification. The City's count or
weight shall be final and conclusive on shipments not accompanied by packing lists.
4. SHIPMENT UNDER RESERVATION PROHIBIT ED : The Contractor is not authorized to
ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of
deliverables.
5. TITLE & RISK OF LOSS : Title to and risk of loss of the deliverables shall pass to the City
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only when the City actually receives and accepts the deliverables.
6. DELIVERY TERMS AND TRANSPORTATION CHARGES : Deliverables shall be
shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and
Conditions. Unless otherwise stated in the Offer, the Contractor’s price shall be deemed to
include all delivery and transportation charges. The City shall have the right to designate what
method of transportation shall be used to ship the deliverables. The place of delivery shall be that
s et forth the purchase order.
7. RIGHT OF INSPECTION AND REJECTION : The City expressly reserves all rights under
law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at
delivery before accepting them, and to reject d efective or non -conforming deliverables. If the
City has the right to inspect the Contractor’s, or the Contractor’s Subcontractor’s, facilities, or
the deliverables at the Contractor’s, or the Contractor’s Subcontractor’s, premises, the Contractor
shall fu rnish, or cause to be furnished, without additional charge, all reasonable facilities and
assistance to the City to facilitate such inspection.
8. NO REPLACEMENT OF DEFECTIVE TENDER : Every tender or delivery of
deliverables must fully comply with all prov isions of the Contract as to time of delivery, quality,
and quantity. Any non -complying tender shall constitute a breach and the Contractor shall not
have the right to substitute a conforming tender; provided, where the time for performance has
not yet exp ired, the Contractor may notify the City of the intention to cure and may then make a
conforming tender within the time allotted in the contract.
9. PLACE AND CONDITION OF WORK : The City shall provide the Contractor access to the
sites where the Contracto r is to perform the services as required in order for the Contractor to
perform the services in a timely and efficient manner, in accordance with and subject to the
applicable security laws, rules, and regulations. The Contractor acknowledges that it has s atisfied
itself as to the nature of the City’s service requirements and specifications, the location and
essential characteristics of the work sites, the quality and quantity of materials, equipment, labor
and facilities necessary to perform the services, and any other condition or state of fact which
could in any way affect performance of the Contractor’s obligations under the contract. The
Contractor hereby releases and holds the City harmless from and against any liability or claim
for damages of any kin d or nature if the actual site or service conditions differ from expected
conditions.
The contractor shall, at all times, exercise reasonable precautions for the safety of their
employees, City Staff, participants and others on or near the City’s faciliti es.
10. WORKFORCE
A. The Contractor shall employ only orderly and competent workers, skilled in the performance
of the services which they will perform under the Contract.
B. The Contractor, its employees, subcontractors, and subcontractor's employees may not while
engaged in participating or responding to a solicitation or while in the course and scope of
delivering goods or services under a City of Denton contract or on the City's property .
i. use or possess a firearm, including a concealed handgun that is licensed under state law,
except as required by the terms of the contract; or
ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled
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substances, nor may such workers be intoxicated, or under the influence of alcohol o r drugs, on
the job.
C. If the City or the City's representative notifies the Contractor that any worker is incompetent,
disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed
any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the
Contractor shall immediately remove such worker from Contract services, and may not employ
such worker again on Contract services without the City's prior written consent.
Immigration: The Contractor represents and warrants that it shall comply with the requirements
of the Immigration Reform and Control Act of 1986 and 1990 regarding employment
verification and retention of verification forms for any individuals hired on or after November 6,
1986, who will perform any labor or services under the Contract and the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (“IIRIRA) enacted on September 30, 1996.
11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL
REGULATIONS : The Contractor, it’s Subcontractors, and their respective employees, shall
comply fully with all applicable federal, state, and local health, safety, and environmental laws,
ordinances, rules and regulations in the performance of the services, including but not limited to
those promulgated by the City and by the Occupational Safety and Health Administration
(OSHA). In case of conflict, the most stringent safety requirement shall govern. The Contractor
shall indemnify and hold the City harmless from and against all claims, demands, suits, actions,
judgments, fines, penalties and liability of every kind arising from the breach of the Contractor’s
obligations under this paragraph.
Environmental Protection: The Respondent shall be in compliance with all applicable
standards, o rders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C.
§7401 et seq .) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. §1251 et
seq .).
12. INVOICES :
A. The Contractor shall submit separate invoices in dupl icate on each purchase order or purchase
release after each delivery. If partial shipments or deliveries are authorized by the City, a
separate invoice must be sent for each shipment or delivery made.
B. Proper Invoices must include a unique invoice number , the purchase order or delivery
order number and the master agreement number if applicable, the Department’s Name,
and the name of the point of contact for the Department . Invoices shall be itemized and
transportation charges, if any, shall be listed sepa rately. A copy of the bill of lading and the
freight waybill, when applicable, shall be attached to the invoice. The Contractor’s name,
remittance address and, if applicable, the tax identification number on the invoice must exactly
match the information i n the Vendor’s registration with the City. Unless otherwise instructed in
writing, the City may rely on the remittance address specified on the Contractor’s invoice.
C. Invoices for labor shall include a copy of all time -sheets with trade labor rate and de liverables
order number clearly identified. Invoices shall also include a tabulation of work -hours at the
appropriate rates and grouped by work order number. Time billed for labor shall be limited to
hours actually worked at the work site.
D. Unless otherw ise expressly authorized in the Contract, the Contractor shall pass through all
Subcontract and other authorized expenses at actual cost without markup.
E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced
amount.
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The City will furnish a tax exemption certificate upon request.
13. PAYMENT :
A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid
within thirty (30) calendar days of the City’s receipt of the deliverables or of the i nvoice being
received in Accounts Payable, whichever is later.
B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid
balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or
the maximum law ful rate; except, if payment is not timely made for a reason for which the
City may withhold payment hereunder, interest shall not accrue until ten (10) calendar
days after the grounds for withholding payment have been resolved.
C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the
partial shipment or delivery, as stated above, provided that the invoice matches the shipment or
delivery.
D. The City may withhold or set off the entire payment or part of any paym ent otherwise due the
Contractor to such extent as may be necessary on account of:
i. delivery of defective or non -conforming deliverables by the Contractor;
ii. third party claims, which are not covered by the insurance which the Contractor is
required to
provide, are filed or reasonable evidence indicating probable filing of such claims;
iii. failure of the Contractor to pay Subcontractors, or for labor, materials or equipment;
iv. damage to the property of the City or the City’s agents, employees or c ontractors,
which is not covered by insurance required to be provided by the Contractor;
v. reasonable evidence that the Contractor’s obligations will not be completed within the
time specified in the Contract, and that the unpaid balance would not be ad equate to
cover actual or liquidated damages for the anticipated delay;
vi. failure of the Contractor to submit proper invoices with purchase order number, with
all required attachments and supporting documentation; or
vii. failure of the Contractor to co mply with any material provision of the Contract
Documents.
E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for
delinquent taxes, the City may offset indebtedness owed the City through payment withholding.
F. Paymen t will be made by check unless the parties mutually agree to payment by credit card or
electronic transfer of funds. The Contractor agrees that there shall be no additional charges,
surcharges, or penalties to the City for payments made by credit card or e lectronic funds transfer.
G. The awarding or continuation of this contract is dependent upon the availability of funding.
The City’s payment obligations are payable only and solely from funds Appropriated and
available for this contract. The absence of App ropriated or other lawfully available funds shall
render the Contract null and void to the extent funds are not Appropriated or available and any
deliverables delivered but unpaid shall be returned to the Contractor. The City shall provide the
Contractor w ritten notice of the failure of the City to make an adequate Appropriation for any
fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to
an amount insufficient to permit the City to pay its obligations under the Co ntract. In the event of
none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to
the City.
14. TRAVEL EXPENSES : All travel, lodging and per diem expenses in connection with the
Contract shall be paid by the Contracto r, unless otherwise stated in the contract terms. During the
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term of this contract, the contractor shall bill and the City shall reimburse contractor for all
reasonable and approved out of pocket expenses which are incurred in the connection with the
perfo rmance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by
the contractor in traveling to and from City facilities whall not be reimbursed, unless otherwise
negotiated.
15. FINAL PAYMENT AND CLOSE -OUT :
A. If a DBE/MBE/WBE P rogram Plan is agreed to and the Contractor has identified
Subcontractors, the Contractor is required to submit a Contract Close -Out MBE/WBE
Compliance Report to the Purchasing Manager no later than the 15th calendar day after
completion of all work under the contract. Final payment, retainage, or both may be withheld if
the Contractor is not in compliance with the requirements as accepted by the City.
B. The making and acceptance of final payment will constitute:
i. a waiver of all claims by the City again st the Contractor, except claims (1) which have
been previously asserted in writing and not yet settled, (2) arising from defective work appearing
after final inspection, (3) arising from failure of the Contractor to comply with the Contract or
the terms o f any warranty specified herein, (4) arising from the Contractor’s continuing
obligations under the Contract, including but not limited to indemnity and warranty obligations,
or (5) arising under the City’s right to audit; and ii. a waiver of all claims by the Contractor
against the City other than those previously asserted in writing and not yet settled.
16. SPECIAL TOOLS & TEST EQUIPMENT : If the price stated on the Offer includes the
cost of any special tooling or special test equipment fabricated or req uired by the Contractor for
the purpose of filling this order, such special tooling equipment and any process sheets related
thereto shall become the property of the City and shall be identified by the Contractor as such.
17. RIGHT TO AUDIT :
A. The City shall have the right to audit and make copies of the books, records and computations
pertaining to the Contract. The Contractor shall retain such books, records, documents and other
evidence pertaining to the Contract period and five years thereafte r, except if an audit is in
progress or audit findings are yet unresolved, in which case records shall be kept until all audit
tasks are completed and resolved. These books, records, documents and other evidence shall be
available, within ten (10) busines s days of written request. Further, the Contractor shall also
require all Subcontractors, material suppliers, and other payees to retain all books, records,
documents and other evidence pertaining to the Contract, and to allow the City similar access to
t hose documents. All books and records will be made available within a 50 mile radius of the
City of Denton. The cost of the audit will be borne by the City unless the audit reveals an
overpayment of 1% or greater. If an overpayment of 1% or greater occu rs, the reasonable cost of
the audit, including any travel costs, must be borne by the Contractor which must be payable
within five (5) business days of receipt of an invoice.
B. Failure to comply with the provisions of this section shall be a material bre ach of the Contract
and shall constitute, in the City’s sole discretion, grounds for termination thereof. Each of the
terms “books”, “records”, “documents” and “other evidence”, as used above, shall be construed
to include drafts and electronic files, eve n if such drafts or electronic files are subsequently used
to generate or prepare a final printed document.
18. SUBCONTRACTORS :
A. If the Contractor identified Subcontractors in a DBE/MBE/WBE agreed to Plan, the
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Contractor shall comply with all requiremen ts approved by the City. The Contractor shall not
initially employ any Subcontractor except as provided in the Contractor’s Plan. The Contractor
shall not substitute any Subcontractor identified in the Plan, unless the substitute has been
accepted by the C ity in writing. No acceptance by the City of any Subcontractor shall constitute
a waiver of any rights or remedies of the City with respect to defective deliverables provided by
a Subcontractor. If a Plan has been approved, the Contractor is additionally r equired to submit a
monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later
than the tenth calendar day of each month.
B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract
between t he Contractor and Subcontractor. The terms of the subcontract may not conflict with
the terms of the
Contract, and shall contain provisions that:
i. require that all deliverables to be provided by the Subcontractor be provided in strict
accordance with th e provisions, specifications and terms of the Contract;
ii. prohibit the Subcontractor from further subcontracting any portion of the Contract
without the prior written consent of the City and the Contractor. The City may require, as
a condition to such further subcontracting, that the Subcontractor post a payment bond in
form, substance and amount acceptable to the City;
iii. require Subcontractors to submit all invoices and applications for payments, including
any claims for additional payments, dama ges or otherwise, to the Contractor in sufficient
time to enable the Contractor to include same with its invoice or application for payment
to the City in accordance with the terms of the Contract;
iv. require that all Subcontractors obtain and maintain, throughout the term of their
contract, insurance in the type and amounts specified for the Contractor, with the City
being a named insured as its interest shall appear; and
v. require that the Subcontractor indemnify and hold the City harmless to the sam e extent
as the Contractor is required to indemnify the City.
C. The Contractor shall be fully responsible to the City for all acts and omissions of the
Subcontractors just as the Contractor is responsible for the Contractor's own acts and omissions.
Noth ing in the Contract shall create for the benefit of any such Subcontractor any contractual
relationship between the City and any such Subcontractor, nor shall it create any obligation on
the part of the City to pay or to see to the payment of any moneys du e any such Subcontractor
except as may otherwise be required by law.
D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the
Contractor not later than ten (10) calendar days after receipt of payment from the City.
19. WARRANTY -PRICE :
A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's
current prices on orders by others for like deliverables under similar terms of purchase.
B. The Contractor certifies that the prices in the Offer have been arrived at independently
without consultation, communication, or agreement for the purpose of restricting competition, as
to any matter relating to such fees with any other firm or with any compe titor.
C. In addition to any other remedy available, the City may deduct from any amounts owed to the
Contractor, or otherwise recover, any amounts paid for items in excess of the Contractor's
current prices on orders by others for like deliverables under similar terms of purchase.
20. WARRANTY – TITLE : The Contractor warrants that it has good and indefeasible title to
all deliverables furnished under the Contract, and that the deliverables are free and clear of all
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liens, claims, security interests and en cumbrances. The Contractor shall indemnify and hold the
City harmless from and against all adverse title claims to the deliverables.
21. WARRANTY – DELIVERABLES : The Contractor warrants and represents that all
deliverables sold the City under the Contract shall be free from defects in design, workmanship
or manufacture, and conform in all material respects to the specifications, drawings, and
descriptions in the Solicitation, to any samples furnished by the Contractor, to the terms,
covenants and condition s of the Contract, and to all applicable State, Federal or local laws, rules,
and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the
deliverables shall be new or recycled merchandise, and not used or recondition ed.
A. Recycled deliverables shall be clearly identified as such.
B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty
implied by law; and any attempt to do so shall be without force or effect.
C. Unless otherwise spe cified in the Contract, the warranty period shall be at least one year from
the date of acceptance of the deliverables or from the date of acceptance of any replacement
deliverables. If during the warranty period, one or more of the above warranties are br eached, the
Contractor shall promptly upon receipt of demand either repair the non -conforming deliverables,
or replace the non -conforming deliverables with fully conforming deliverables, at the City’s
option and at no additional cost to the City. All costs incidental to such repair or replacement,
including but not limited to, any packaging and shipping costs shall be borne exclusively by the
Contractor. The City shall endeavor to give the Contractor written notice of the breach of
warranty within thirty (3 0) calendar days of discovery of the breach of warranty, but failure to
give timely notice shall not impair the City’s rights under this section.
D. If the Contractor is unable or unwilling to repair or replace defective or non -conforming
deliverables as r equired by the City, then in addition to any other available remedy, the City may
reduce the quantity of deliverables it may be required to purchase under the Contract from the
Contractor, and purchase conforming deliverables from other sources. In such ev ent, the
Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to
procure such deliverables from another source.
E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate
manufactur er’s warranty, the Contractor shall transfer and assign such manufacturer’s warranty
to the City. If for any reason the manufacturer’s warranty cannot be fully transferred to the City,
the Contractor shall assist and cooperate with the City to the fullest extent to enforce such
manufacturer’s warranty for the benefit of the City.
22. WARRANTY – SERVICES : The Contractor warrants and represents that all services to be
provided the City under the Contract will be fully and timely performed in a good and
workm anlike manner in accordance with generally accepted industry standards and practices, the
terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws,
rules or regulations.
A. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty
implied by law, and any attempt to do so shall be without force or effect.
B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from
the Acceptance Date. If during the warranty period, one or more of the above warranties are
breached, the Contractor shall promptly upon receipt of demand perform the services again in
accordance with above standard at no additional cost to the City. All costs incidental to such
additional performance shall be borne by the Contractor. The City shall endeavor to give the
Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery
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of the breach warranty, but failure to give timely notice shall not impair the City’s rights under
this section.
C. If the Contractor is unable or unwilling to perform its services in accordance with the above
standard as required by the City, then in addition to any other available remedy, the City may
reduce the amount of servi ces it may be required to purchase under the Contract from the
Contractor, and purchase conforming services from other sources. In such event, the Contractor
shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such
services from another source.
23. ACCEPTANCE OF INCOMPLETE OR NON -CONFORMING DELIVERABLES : If,
instead of requiring immediate correction or removal and replacement of defective or non -
conforming deliverables, the City prefers to accept it, the City may d o so. The Contractor shall
pay all claims, costs, losses and damages attributable to the City’s evaluation of and
determination to accept such defective or non -conforming deliverables. If any such acceptance
occurs prior to final payment, the City may dedu ct such amounts as are necessary to compensate
the City for the diminished value of the defective or non -conforming deliverables. If the
acceptance occurs after final payment, such amount will be refunded to the City by the
Contractor.
24. RIGHT TO ASSURA NCE : Whenever one party to the Contract in good faith has reason to
question the other party’s intent to perform, demand may be made to the other party for written
assurance of the intent to perform. In the event that no assurance is given within the time
specified after demand is made, the demanding party may treat this failure as an anticipatory
repudiation of the Contract.
25. STOP WORK NOTICE : The City may issue an immediate Stop Work Notice in the event
the Contractor is observed performing in a manne r that is in violation of Federal, State, or local
guidelines, or in a manner that is determined by the City to be unsafe to either life or property.
Upon notification, the Contractor will cease all work until notified by the City that the violation
or uns afe condition has been corrected. The Contractor shall be liable for all costs incurred by
the City as a result of the issuance of such Stop Work Notice.
26. DEFAULT : The Contractor shall be in default under the Contract if the Contractor (a) fails
to ful ly, timely and faithfully perform any of its material obligations under the Contract, (b) fails
to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or
seeks relief under the bankruptcy laws of the United States or (d) mak es a material
misrepresentation in Contractor’s Offer, or in any report or deliverable required to be submitted
by the Contractor to the City.
27. TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City shall
have the right to termina te the Contract for cause, by written notice effective ten (10) calendar
days, unless otherwise specified, after the date of such notice, unless the Contractor, within such
ten (10) day period, cures such default, or provides evidence sufficient to prove t o the City’s
reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy
available under law or in equity, the City shall be entitled to recover all actual damages, costs,
losses and expenses, incurred by the City as a result of the Contractor’s default, including,
without limitation, cost of cover, reasonable attorneys’ fees, court costs, and prejudgment and
post -judgment interest at the maximum lawful rate. Additionally, in the event of a default by the
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Contractor, the City may remove the Contractor from the City’s vendor list for three (3) years
and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All
rights and remedies under the Contract are cumulative and are not exclusive of a ny other right or
remedy provided by law.
28. TERMINATION WITHOUT CAUSE : The City shall have the right to terminate the
Contract, in whole or in part, without cause any time upon thirty (30) calendar days’ prior written
notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further
work pursuant to the Contract, with such exceptions, if any, specified in the notice of
termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise
legally a vailable for such purposes, for all goods delivered and services performed and
obligations incurred prior to the date of termination in accordance with the terms hereof.
29. FRAUD : Fraudulent statements by the Contractor on any Offer or in any report or
deliverable required to be submitted by the Contractor to the City shall be grounds for the
termination of the Contract for cause by the City and may result in legal action.
30. DELAYS :
A. The City may delay scheduled delivery or other due dates by writt en notice to the Contractor
if the City deems it is in its best interest. If such delay causes an increase in the cost of the work
under the Contract, the City and the Contractor shall negotiate an equitable adjustment for costs
incurred by the Contractor in the Contract price and execute an amendment to the Contract. The
Contractor must assert its right to an adjustment within thirty (30) calendar days from the date of
receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the
Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall
excuse the Contractor from delaying the delivery as notified.
B. Neither party shall be liable for any default or delay in the performance of its oblig ations
under this Contract if, while and to the extent such default or delay is caused by acts of God, fire,
riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond
the reasonable control of such Party. In the even t of default or delay in contract performance due
to any of the foregoing causes, then the time for completion of the services will be extended;
provided, however, in such an event, a conference will be held within three (3) business days to
establish a mu tually agreeable period of time reasonably necessary to overcome the effect of
such failure to perform.
31. INDEMNITY :
A. Definitions:
i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action,
judgments and liability of every character, type or description, including all reasonable
costs and expenses of litigation, mediation or other alternate dispute resolution
mechanism, including attorney and other professional fees for: (1) damage to or loss of
the property of any per son (including, but not limited to the City, the Contractor, their
respective agents, officers, employees and subcontractors; the officers, agents, and
employees of such subcontractors; and third parties); and/or (2) death, bodily injury,
illness, disease, worker's compensation, loss of services, or loss of income or wages to
any person (including but not limited to the agents, officers and employees of the City,
the Contractor, the Contractor’s subcontractors, and third parties), ii. "Fault" shall include
the sale of defective or non -conforming deliverables, negligence, willful misconduct or a
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breach of any legally imposed strict liability standard.
B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY),
INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, AS SIGNS, OFFICERS,
EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL
INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO,
CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, OR
THE CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN TH E
PERFORMANCE OF THE CONTRACTOR’S OBLIGATIONS UNDER THE
CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF
THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE
RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE
LIABLE FOR AN INDEMNIFIED CLAIM.
32. INSURANCE : The following insurance requirements are applicable, in addition to the
specific insurance requirements detailed in Appendix A for services only . The successful firm
shall procure and maintain insurance of the types and in the minimum amounts acceptable to the
City of Denton. The insurance shall be written by a company licensed to do business in the State of
Texas and satisfactory to the City of Denton.
A. General Requirements:
i. The Contractor shall at a minimum ca rry insurance in the types and amounts indicated
and agreed to, as submitted to the City and approved by the City within the procurement
process, for the duration of the Contract, including extension options and hold over
periods, and during any warranty p eriod.
ii. The Contractor shall provide Certificates of Insurance with the coverage’s and
endorsements required to the City as verification of coverage prior to contract execution
and within fourteen (14) calendar days after written request from the City. Failure to
provide the required Certificate of Insurance may subject the Offer to disqualification
from consideration for award. The Contractor must also forward a Certificate of
Insurance to the City whenever a previously identified policy period has expi red, or an
extension option or hold over period is exercised, as verification of continuing coverage.
iii. The Contractor shall not commence work until the required insurance is obtained and
until such insurance has been reviewed by the City. Approval of i nsurance by the City
shall not relieve or decrease the liability of the Contractor hereunder and shall not be
construed to be a limitation of liability on the part of the Contractor.
iv. The Contractor must submit certificates of insurance to the City for all subcontractors
prior to the subcontractors commencing work on the project.
v. The Contractor’s and all subcontractors’ insurance coverage shall be written by
companies licensed to do business in the State of Texas at the time the policies are issued
an d shall be written by companies with A.M. Best ratings of A - VII or better . The City
will accept workers’ compensation coverage written by the Texas Workers’
Compensation Insurance Fund.
vi. All endorsements naming the City as additional insured, waivers, and notices of
cancellation endorsements as well as the Certificate of Insurance shall contain the
solicitation number and the following information:
City of Denton
Materials Management Department
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901B Texas Street
Denton, Texas 76209
vii. The “other” insurance clause shall not apply to the City where the City is an
additional insured shown on any policy. It is intended that policies required in the
Contract, covering both the City and the Contractor, shall be considered primary
coverage as applicable.
viii. If insurance policies are not written for amounts agreed to with the City, the
Contractor shall carry Umbrella or Excess Liability Insurance for any differences in
amounts specified. If Excess Liability Insurance is provided, it shall follow the form of
the primary coverage.
ix. The City shall be entitled, upon request, at an agreed upon location, and without
expense, to review certified copies of policies and endorsements thereto and may make
any reasonable requests for deletion or revision or modifi cation of particular policy
terms, conditions, limitations, or exclusions except where policy provisions are
established by law or regulations binding upon either of the parties hereto or the
underwriter on any such policies.
x. The City reserves the right to review the insurance requirements set forth during the
effective period of the Contract and to make reasonable adjustments to insurance
coverage, limits, and exclusions when deemed necessary and prudent by the City based
upon changes in statutory law, court decisions, the claims history of the industry or
financial condition of the insurance company as well as the Contractor.
xi. The Contractor shall not cause any insurance to be canceled nor permit any insurance
to lapse during the term of the Contract or as required in the Contract.
xii. The Contractor shall be responsible for premiums, deductibles and self -insured
retentions, if any, stated in policies. All deductibles or self -insured retentions shall be
disclosed on the Certificate of Insurance.
xiii . The Contractor shall endeavor to provide the City thirty (30) calendar days’ written
notice of erosion of the aggregate limits below occurrence limits for all applicable
coverage’s indicated within the Contract.
xiv. The insurance coverage’s specified in within the solicitation and requirements are
required minimums and are not intended to limit the responsibility or liability of the
Contractor.
B. Specific Coverage Requirements: Specific insurance requirements are contained in the
solicitation instrument .
33. CLAIMS : If any claim, demand, suit, or other action is asserted against the Contractor which
arises under or concerns the Contract, or which could have a material adverse affect on the
Contractor’s ability to perform thereunder, the Contractor shall give written notice thereof to the
City within ten (10) calendar days after receipt of notice by the Contractor. Such notice to the
City shall state the date of notification of any such claim, demand, suit, or other action; the
names and addresses of the claimant(s); the basis thereof; and the name of each person against
whom such claim is being asserted. Such notice shall be delivered personally or by mail and
shall be sent to the City and to the Denton City Attorney. Personal delivery to the City Attorne y
shall be to City Hall, 215 East McKinney Street, Denton, Texas 76201.
34. NOTICES : Unless otherwise specified, all notices, requests, or other communications
required or appropriate to be given under the Contract shall be in writing and shall be deemed
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delivered three (3) business days after postmarked if sent by U.S. Postal Service Certified or
Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deemed
delivered upon receipt by the addressee. Routine communications may be made by first class
mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to
the address specified in the Contractor’s Offer, or at such other address as a party may notify the
other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton,
Texas 76209 and marked to the attention of the Purchasing Manager.
35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL : All material
submitted by the Contractor to the City shall become prope rty of the City upon receipt. Any
portions of such material claimed by the Contractor to be proprietary must be clearly marked as
such. Determination of the public nature of the material is subject to the Texas Public
Information Act, Chapter 552, and Texa s Government Code.
36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS : The Contractor represents
and warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title
to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the
specifications in the Contract will not infringe, directly or contributorily, any patent, trademark,
copyright, trade secret, or any other intellectual property right of any kind of any third party; that
no claims have bee n made by any person or entity with respect to the ownership or operation of
the deliverables and the Contractor does not know of any valid basis for any such claims. The
Contractor shall, at its sole expense, defend, indemnify, and hold the City harmless from and
against all liability, damages, and costs (including court costs and reasonable fees of attorneys
and other professionals) arising out of or resulting from: (i) any claim that the City’s exercise
anywhere in the world of the rights associated with the City’s’ ownership, and if applicable,
license rights, and its use of the deliverables infringes the intellectual property rights of any third
party; or (ii) the Contractor’s breach of any of Contractor’s representations or warranties stated
in this Co ntract. In the event of any such claim, the City shall have the right to monitor such
claim or at its option engage its own separate counsel to act as co -counsel on the City’s behalf.
Further, Contractor agrees that the City’s specifications regarding the deliverables shall in no
way diminish Contractor’s warranties or obligations under this paragraph and the City makes no
warranty that the production, development, or delivery of such deliverables will not impact such
warranties of Contractor.
37. CONFIDEN TIALITY : In order to provide the deliverables to the City, Contractor may
require access to certain of the City’s and/or its licensors’ confidential information (including
inventions, employee information, trade secrets, confidential know -how, confidential business
information, and other information which the City or its licensors consider confidential)
(collectively, “Confidential Information”). Contractor acknowledges and agrees that the
Confidential Information is the valuable property of the City and/or its licensors and any
unauthorized use, disclosure, dissemination, or other release of the Confidential Information will
substantially injure the City and/or its licensors. The Contractor (including its employees,
subcontractors, agents, or representative s) agrees that it will maintain the Confidential
Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or
otherwise use the Confidential Information without the prior written consent of the City or in a
manner not e xpressly permitted under this Agreement, unless the Confidential Information is
required to be disclosed by law or an order of any court or other governmental authority with
proper jurisdiction, provided the Contractor promptly notifies the City before dis closing such
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information so as to permit the City reasonable time to seek an appropriate protective order. The
Contractor agrees to use protective measures no less stringent than the Contractor uses within its
own business to protect its own most valuable information, which protective measures shall
under all circumstances be at least reasonable measures to ensure the continued confidentiality of
the Confidential Information.
38. OWNERSHIP AND USE OF DELIVERABLES : The City shall own all rights, titles, and
interests throughout the world in and to the deliverables.
A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor
agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the
Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire
right, title, and interest to specific inventions under such patentable subject matter to the City and
to execute, acknowledge, and deliver and, if necessary, c ause each of its employees to execute,
acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by
the City, to the City upon request by the City.
B. Copyrights. As to any deliverables containing copyrightable subject m atter, the Contractor
agrees that upon their creation, such deliverables shall be considered as work made -for -hire by
the Contractor for the City and the City shall own all copyrights in and to such deliverables,
provided however, that nothing in this Para graph 38 shall negate the City’s sole or joint
ownership of any such deliverables arising by virtue of the City’s sole or joint authorship of such
deliverables. Should by operation of law, such deliverables not be considered works made -for -
hire, the Contra ctor hereby assigns to the City (and agrees to cause each of its employees
providing services to the City hereunder to execute, acknowledge, and deliver an assignment to
the City of) all worldwide right, title, and interest in and to such deliverables. Wit h respect to
such work made -for -hire, the Contractor agrees to execute, acknowledge, and deliver and cause
each of its employees providing services to the City hereunder to execute, acknowledge, and
deliver a work -made -for -hire agreement, in a form to be r easonably approved by the City, to the
City upon delivery of such deliverables to the City or at such other time as the City may request.
C. Additional Assignments. The Contractor further agrees to, and if applicable, cause each of its
employees to, execut e, acknowledge, and deliver all applications, specifications, oaths,
assignments, and all other instruments which the City might reasonably deem necessary in order
to apply for and obtain copyright protection, mask work registration, trademark registration
and/or protection, letters patent, or any similar rights in any and all countries and in order to
assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right,
title, and interest in and to the deliverables. The Contra ctor’s obligations to execute,
acknowledge, and deliver (or cause to be executed, acknowledged, and delivered) instruments or
papers such as those described in this Paragraph 38 a., b., and c. shall continue after the
termination of this Contract with resp ect to such deliverables. In the event the City should not
seek to obtain copyright protection, mask work registration or patent protection for any of the
deliverables, but should desire to keep the same secret, the Contractor agrees to treat the same as
C onfidential Information under the terms of Paragraph 37 above.
39. PUBLICATIONS : All published material and written reports submitted under the Contract
must be originally developed material unless otherwise specifically provided in the Contract.
When mat erial not originally developed is included in a report in any form, the source shall be
identified.
40. ADVERTISING : The Contractor shall not advertise or publish, without the City’s prior
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consent, the fact that the City has entered into the Contract, except to the extent required by law.
41. NO CONTINGENT FEES : The Contractor warrants that no person or selling agency has
been employed or retained to solicit or secure the Contract upon any agreement or understanding
for commission, percentage, brokerag e, or contingent fee, excepting bona fide employees of
bona fide established commercial or selling agencies maintained by the Contractor for the
purpose of securing business. For breach or violation of this warranty, the City shall have the
right, in addit ion to any other remedy available, to cancel the Contract without liability and to
deduct from any amounts owed to the Contractor, or otherwise recover, the full amount of such
commission, percentage, brokerage or contingent fee.
42. GRATUITIES : The City may, by written notice to the Contractor, cancel the Contract
without liability if it is determined by the City that gratuities were offered or given by the
Contractor or any agent or representative of the Contractor to any officer or employee of the City
of Denton with a view toward securing the Contract or securing favorable treatment with respect
to the awarding or amending or the making of any determinations with respect to the performing
of such contract. In the event the Contract is canceled by the Ci ty pursuant to this provision, the
City shall be entitled, in addition to any other rights and remedies, to recover or withhold the
amount of the cost incurred by the Contractor in providing such gratuities.
43. PROHIBITION AGAINST PERSONAL INTEREST IN CO NTRACTS : No officer,
employee, independent consultant, or elected official of the City who is involved in the
development, evaluation, or decision -making process of the performance of any solicitation shall
have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any
willful violation of this section shall constitute impropriety in office, and any officer or employee
guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation
of this provision, with the knowledge, expressed or implied, of the Contractor shall render the
Contract voidable by the City. The Contractor shall complete and submit the City’s Conflict of
Interest Questionnaire.
44. INDEPENDENT CONTRACTOR : The Contract shall not be construed as creating an
employer/employee relationship, a partnership, or a joint venture. The Contractor’s services shall
be those of an independent contractor. The Contractor agrees and understands that the Contract
does not grant any right s or privileges established for employees of the City of Denton, Texas for
the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits,
worker’s compensation, or any other City employee benefit. The City shall not have s upervision and
control of the Contractor or any employee of the Contractor, and it is expressly understood that
Contractor shall perform the services hereunder according to the attached specifications at the
general direction of the City Manager of the Cit y of Denton, Texas, or his designee under this
agreement. The contractor is expressly free to advertise and perform services for other parties while
performing services for the City.
45. ASSIGNMENT -DELEGATION : The Contract shall be binding upon and ensure to the
benefit of the City and the Contractor and their respective successors and assigns, provided
however, that no right or interest in the Contract shall be assigned and no obligation shall be
delegated by the Contractor without the prior written conse nt of the City. Any attempted
assignment or delegation by the Contractor shall be void unless made in conformity with this
paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity
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not a party hereto; it being the i ntention of the parties that there are no third party beneficiaries to
the Contract.
46. WAIVER : No claim or right arising out of a breach of the Contract can be discharged in
whole or in part by a waiver or renunciation of the claim or right unless the w aiver or
renunciation is supported by consideration and is in writing signed by the aggrieved party. No
waiver by either the Contractor or the City of any one or more events of default by the other
party shall operate as, or be construed to be, a permanent waiver of any rights or obligations
under the Contract, or an express or implied acceptance of any other existing or future default or
defaults, whether of a similar or different character.
47. MODIFICATIONS : The Contract can be modified or amended only by a writing signed by
both parties. No pre -printed or similar terms on any the Contractor invoice, order or other
document shall have any force or effect to change the terms, covenants, and conditions of the
Contract.
48. INTERPRETATION : The Contract is intended by the parties as a final, complete and
exclusive statement of the terms of their agreement. No course of prior dealing between the
parties or course of performance or usage of the trade shall be relevant to supplement or explain
any term used in the Contract. Although the Contract may have been substantially drafted by one
party, it is the intent of the parties that all provisions be construed in a manner to be fair to both
parties, reading no provisions more strictly against one party or the othe r. Whenever a term
defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the
Contract, the UCC definition shall control, unless otherwise defined in the Contract.
49. DISPUTE RESOLUTION :
A. If a dispute arises out of or rela tes to the Contract, or the breach thereof, the parties agree to
negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the
filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief . Either
party may make a written request for a meeting between representatives of each party within
fourteen (14) calendar days after receipt of the request or such later period as agreed by the
parties. Each party shall include, at a minimum, one (1) sen ior level individual with decision -
making authority regarding the dispute. The purpose of this and any subsequent meeting is to
attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days
after such meeting, the par ties have not succeeded in negotiating a resolution of the dispute, they
will proceed directly to mediation as described below. Negotiation may be waived by a written
agreement signed by both parties, in which event the parties may proceed directly to medi ation
as described below.
B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the
negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in
mediation skills to assist with resol ution of the dispute. Should they choose this option; the City
and the Contractor agree to act in good faith in the selection of the mediator and to give
consideration to qualified individuals nominated to act as mediator. Nothing in the Contract
prevents the parties from relying on the skills of a person who is trained in the subject matter of
the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within
thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by
the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to
participate in mediation in good faith for up to thirty (30) calendar days from the date of the first
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mediation session. The City and th e Contractor will share the mediator’s fees equally and the
parties will bear their own costs of participation such as fees for any consultants or attorneys they
may utilize to represent them or otherwise assist them in the mediation.
50. JURISDICTION AND VENUE : The Contract is made under and shall be governed by the
laws of the State of Texas, including, when applicable, the Uniform Commercial Code as
adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that
would refe r to and apply the substantive law of another state or jurisdiction. All issues arising
from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree
to submit to the exclusive personal jurisdiction of such courts. The fo regoing, however, shall not
be construed or interpreted to limit or restrict the right or ability of the City to seek and secure
injunctive relief from any competent authority as contemplated herein.
51. INVALIDITY : The invalidity, illegality, or unenforc eability of any provision of the
Contract shall in no way affect the validity or enforceability of any other portion or provision of
the Contract. Any void provision shall be deemed severed from the Contract and the balance of
the Contract shall be constru ed and enforced as if the Contract did not contain the particular
portion or provision held to be void. The parties further agree to reform the Contract to replace
any stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision. The provisions of this section shall not prevent this entire Contract from
being void should a provision which is the essence of the Contract be determined to be void.
52. HOLIDAYS: The following holidays are observed by the Cit y:
New Year’s Day (observed)
MLK Day
Memorial Day
4th of July
Labor Day
Thanksgiving Day
Day After Thanksgiving
Christmas Eve (observed)
Christmas Day (observed)
New Year’s Day (observed)
If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal
Holiday falls on Sunday, it will be observed on the following Monday. Normal hours of
operation shall be between 8:00 am and 4:00 pm, Monday through Friday, exclu ding City of
Denton Holidays. Any scheduled deliveries or work performance not within the normal hours of
operation must be approved by the City Manager of Denton, Texas or his authorized designee.
53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose
continuing obligations on the parties, including but not limited to the warranty, indemnity, and
confidentiality obligations of the parties, shall survive the expiration or termination of the
Contract.
54. NON -SUSPENSION OR DEBARMENT CERTIFICATION:
The City of Denton is prohibited from contracting with or making prime or sub -awards to parties
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that are suspended or debarred or whose principals are suspended or debarred from Federal,
State, or City of Denton Contracts. By accepting a Con tract with the City, the Vendor certifies
that its firm and its principals are not currently suspended or debarred from doing business with
the Federal Government, as indicated by the General Services Administration List of Parties
Excluded from Federal Pr ocurement and Non -Procurement Programs, the State of Texas, or the
City of Denton.
55. EQUAL OPPORTUNITY
A. Equal Employment Opportunity: No Offeror, or Offeror’s agent, shall engage in any
discriminatory employment practice. No person shall, on the grounds of race, sex, age, disability,
creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected
to discrimination under any activities resulting from this RFQ.
B. Americans with Disabi lities Act (ADA) Compliance: No Offeror, or Offeror’s agent, shall
engage in any discriminatory employment practice against individuals with disabilities as
defined
in the ADA.
56. BUY AMERICAN ACT -SUPPLIES (Applicable to certain federally funded
requirem ents)
The following federally funded requirements are applicable. A. Definitions. As used in this
paragraph –
i. "Component" means an article, material, or supply incorporated directly into an end product.
ii. "Cost of components" means -
(1) For component s purchased by the Contractor, the acquisition cost, including transportation
costs to the place of incorporation into the end product (whether or not such costs are paid to a
domestic firm), and any applicable duty (whether or not a duty -free entry certif icate is issued); or
(2) For components manufactured by the Contractor, all costs associated with the manufacture of
the component, including transportation costs as described in paragraph (1) of this definition,
plus allocable overhead costs, but excludin g profit. Cost of components does not include any
costs associated with the manufacture of the end product.
iii. "Domestic end product" means -
(1) An unmanufactured end product mined or produced in the United States; or
(2) An end product manufactured in t he United States, if the cost of its components mined,
produced, or manufactured in the United States exceeds 50 percent of the cost of all its
components. Components of foreign origin of the same class or kind as those that the agency
determines are not m ined, produced, or manufactured in sufficient and reasonably available
commercial quantities of a satisfactory quality are treated as domestic. Scrap generated,
collected, and prepared for processing in the United States is considered domestic.
iv. "End pr oduct" means those articles, materials, and supplies to be acquired under the contract
for public use.
v. "Foreign end product" means an end product other than a domestic end product.
vi. "United States" means the 50 States, the District of Columbia, and o utlying areas.
B. The Buy American Act (41 U.S.C. 10a - 10d) provides a preference for domestic end products
for supplies acquired for use in the United States.
C. The City does not maintain a list of foreign articles that will be treated as domestic for t his
Contract; but will consider for approval foreign articles as domestic for this product if the articles
are on a list approved by another Governmental Agency. The Offeror shall submit
documentation with their Offer demonstrating that the article is on a n approved Governmental
DocuSign Envelope ID: B11E784C-3A74-44DA-A409-15881ADC3E91
Contract 5985
list.
D. The Contractor shall deliver only domestic end products except to the extent that it specified
delivery of foreign end products in the provision of the Solicitation entitled "Buy American Act
Certificate".
57. RIGHT TO INF ORMATION: The City of Denton reserves the right to use any and all
information presented in any response to this contract, whether amended or not, except as
prohibited by law. Selection of rejection of the submittal does not affect this right.
58. LICENSE FEES OR TAXE S: Provided the solicitation requires an awarded contractor or
supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the
respondent.
59. PREVAILING WAGE RATE S: The contractor shall comply with prevailing wage rates as
defined by the United States Department of Labor Davis -Bacon Wage Determination at
http://www.dol.gov/whd/contracts/dbra.htm and at the Wage Determinations website
www.wdol.gov for Denton County, Texas (WD -2509).
60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor
or supplier shall comply with all State, Federal, and Local laws and requirements. The
Respondent must comply with all applicable laws at all times, including, without limitation, the
following: (i) §36.02 of the Texas Penal Code, which proh ibits bribery; (ii) §36.09 of the Texas
Penal Code, which prohibits the offering or conferring of benefits to public servants. The
Respondent shall give all notices and comply with all laws and regulations applicable to
furnishing and performance of the Co ntract.
61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate
on -site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section
530 of the Revenue Act of of 1978, dealing with issuance of Form W -2's to common law
employees. Respondent is responsible for both federal and State unemployment insurance
coverage and standard Workers’ Compensation insurance coverage. Respondent shall ensure
compliance with all fede ral and State tax laws and withholding requirements. The City of Denton
shall not be liable to Respondent or its employees for any Unemployment or Workers'
Compensation coverage, or federal or State withholding requirements. Contractor shall
indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from
Respondent's omission or breach of this Section.
62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions
of the Drug -Free Work Place Act of 1988 (Publi c Law 100 -690, Title V, Subtitle D; 41 U.S.C.
701 ET SEQ.) and maintain a drug -free work environment; and the final rule, government -wide
requirements for drug -free work place (grants), issued by the Office of Management and Budget
and the Department of De fense (32 CFR Part 280, Subpart F) to implement the provisions of the
Drug -Free Work Place Act of 1988 is incorporated by reference and the contractor shall comply
with the relevant provisions thereof, including any amendments to the final rule that may
he reafter be issued.
63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERN MENT PROPERTY: The
Respondent shall be liable for all damages to government -owned, leased, or occupied property
DocuSign Envelope ID: B11E784C-3A74-44DA-A409-15881ADC3E91
Contract 5985
and equipment caused by the Respondent and its employees, agents, subcontractor s, and
suppliers, including any delivery or cartage company, in connection with any performance
pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager
in writing of any such damage within one (1) calendar day.
64. FOR CE MAJEURE: The City of Denton, any Customer, and the Respondent shall not be
responsible for performance under the Contract should it be prevented from performance by an
act of war, order of legal authority, act of God, or other unavoidable cause not attr ibutable to the
fault or negligence of the City of Denton. In the event of an occurrence under this Section, the
Respondent will be excused from any further performance or observance of the requirements so
affected for as long as such circumstances prevail and the Respondent continues to use
commercially reasonable efforts to recommence performance or observance whenever and to
whatever extent possible without delay. The Respondent shall immediately notify the City of
Denton Procurement Manager by telephone (to be confirmed in writing within five (5) calendar
days of the inception of such occurrence) and describe at a reasonable level of detail the
circumstances causing the non -performance or delay in performance.
65. NON -WAIVER OF RIGHTS: Failure of a Party to require performance by another Party
under the Contract will not affect the right of such Party to require performance in the future. No
delay, failure, or waiver of either Party’s exercise or partial exercise of any right or remedy under
the Cont ract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right
or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed
as a waiver of any continuing or succeeding breach.
66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no
provision of the Contract is in any way intended to constitute a waiver by the City of Denton of
any immunities from suit or from liability that the City of Denton may have by operation of law.
67. RECORDS RETENTION: The Respondent shall retain all financial records, supporting
documents, statistical records, and any other records or books relating to the performances called
for in the Contract. The Respondent shall retain all such records for a peri od of four (4) years
after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all
audit and litigation matters are resolved, whichever period is longer. The Respondent shall grant
access to all books, records and d ocuments pertinent to the Contract to the CPA, the State
Auditor of Texas, and any federal governmental entity that has authority to review records due to
federal funds being spent under the Contract.
Should a conflict arise between any of the contract d ocuments, it shall be resolved with the
following order of precedence (if applicable). In any event, the final negotiated contract
shall take precedence over any and all contract documents to the extent of such conflict.
1. Final negotiated contract
2. RFP/Bid documents
3. City’s standard terms and conditions
4. Purchase order
5. Supplier terms and conditions
DocuSign Envelope ID: B11E784C-3A74-44DA-A409-15881ADC3E91
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RFP 5985 - Pricing Sheet for SUPPLY OF ELECTRIC UTILITY PADMOUNTED SWITCHGEAR
Respondent's Business Name:Respondent's Business Name:
Item #COD #EST. ANNUAL
QTY UOM Product Description S & C Catalog Number Unit Price Estimated Delivery ARO
(Business Days)
1 28579309 7 EA Manual PME-9 configuration, Padmounted
Switchgear, 14.4 kV nominal, 3-Phase unit. 65152R1-E1F2K-S393
15,745.00 $ 50
2 28579310 2 EA
Manual PME-10 configuration,
Padmounted Switchgear, 14.4kV nominal,
3-Phase unit.
65242R1-F2K
16,080.00 $ 50
3 28579311 15 EA
Manual PME-11 configuration,
Padmounted Switchgear, 14.4 kV nominal,
3-Phase unit.
65162R1-E1F2K-S393
16,125.00 $ 50
3A 2 EA
Manual PME-12 configuration,
Padmounted Switchgear, 14.4 kV nominal,
3-Phase unit.
65172R1-E2F2K-S393
16,995.00 $ 50
4 3 EA
Automatic PME-9 configuration,
Padmounted Switchgear, 14.4 kV nominal
3-Phase unit with S&C 6802 control as
specified in the technical specifications.
266152R3-E1F2KY2-S393
63,825.00 $ 100
5 2 EA
Automatic PME-10 configuration,
Padmounted Switchgear, 14.4 kV nominal,
3-Phase unit with S&C 6802 control as
specified in the technical specifications. (2
motor operated switches)
266242R3-F2KY2-S393
62,940.00 $ 100
6 2 EA
Automatic PME-10 configuration,
Padmounted Switchgear, 14.4 kV nominal,
3-Phase unit with two (2) S&C 6802
controls as specified in the technical
specifications. (3 motor operated
switches)
366242R3-F2KY2-S393
86,580.00 $ 100
7 2 EA
Automatic PME-10 configuration,
Padmounted Switchgear, 14.4 kV nominal,
3-Phase unit with two (2) S&C 6802
controls as specified in the technical
specifications. (4 motor operated
switches)
466242R3-F2KY2-S393
95,085.00 $ 100
8 2 EA
Automatic PME-11 configuation,
Padmounted Switchgear, 14.4 kV nominal,
3-Phase unit with S&C 6802 control as
specified in the technical specifications. (2
motor operated switches)
266162R3-E1F2KY2-S393
62,872.00 $ 100
9 2 EA
Automatic PME-11 configuation,
Padmounted Switchgear, 14.4 kV nominal,
3-Phase unit with two (2) S&C 6802
controls as specified in the technical
specifications. (3 motor operated
switches)
366162R3-E1F2KY2-S393
86,495.00 $ 100
10 8 EA Switch, Padmount, PME-9, 200A 65152R1-E1F2KM4-S393 16,530.00 $ 50
11 1 EA Switch, Padmount, PME-10, 200A 65242R1-E1F2KM4-S393 17,660.00 $ 50
12 2 EA Switch, Padmount, PME-11, 200A 65162R1-E2F2KM4-S393 17,312.00 $ 50
Anixter Power Solutions
Exhibit D
Contract 5985
DocuSign Envelope ID: B11E784C-3A74-44DA-A409-15881ADC3E91
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Certificate Of Completion
Envelope Id: B11E784C3A7444DAA40915881ADC3E91 Status: Completed
Subject: Please DocuSign: Contract Documents 5985
Source Envelope:
Document Pages: 35 Signatures: 4 Envelope Originator:
Certificate Pages: 6 Initials: 0 Karen E. Smith
AutoNav: Enabled
EnvelopeId Stamping: Disabled
Time Zone: (UTC-06:00) Central Time (US & Canada)
karen.smith@cityofdenton.com
IP Address: 129.120.6.150
Record Tracking
Status: Original
1/4/2016 9:13:16 AM
Holder: Karen E. Smith
karen.smith@cityofdenton.com
Location: DocuSign
Signer Events Signature Timestamp
Karen E. Smith
karen.smith@cityofdenton.com
Assistant Purchasing Manager
City of Denton
Security Level: Email, Account Authentication
(Optional)
Completed
Using IP Address: 129.120.6.150
Sent: 1/4/2016 9:16:58 AM
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Signed: 1/4/2016 9:17:51 AM
Electronic Record and Signature Disclosure:
Not Offered
ID:
Scott Price
scott.price2@hdsupply.com
Inside Sales
Anixter Power Solutions
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Using IP Address: 10.102.101.11
Sent: 1/4/2016 9:17:54 AM
Resent: 1/7/2016 8:18:05 AM
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Resent: 1/12/2016 3:32:28 PM
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Signed: 1/13/2016 9:14:07 AM
Electronic Record and Signature Disclosure:
Accepted: 1/13/2016 8:58:24 AM
ID: a6632f75-9951-4aea-a337-aea651094e29
John Knight
john.knight@cityofdenton.com
Deputy City Attorney
City of Denton
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Julia Klinck
julia.klinck@cityofdenton.com
Contracts Administration Supervisor
City of Denton
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George C. Campbell
george.campbell@cityofdenton.com
City Manager
City of Denton
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City Secretary
City of Denton
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Julia Klinck
julia.klinck@cityofdenton.com
Contracts Administration Supervisor
City of Denton
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Electronic Record and Signature Disclosure
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described below. Please also see the paragraph imme diately above that describes the
consequences of your electing not to receive delive ry of the notices and disclosures
electronically from us.
Electronic Record and Signature Disclosure created on: 4/20/2015 2:25:38 PM
Parties agreed to: Scott Price, Robin Fox, Jerry Fielder
How to contact City of Denton:
You may contact us to let us know of your changes a s to how we may contact you electronically,
to request paper copies of certain information from us, and to withdraw your prior consent to
receive notices and disclosures electronically as f ollows:
To contact us by email send messages to: kevin.gun n@cityofdenton.com
To advise City of Denton of your new e-mail address
To let us know of a change in your e-mail address w here we should send notices and disclosures
electronically to you, you must send an email messa ge to us at kevin.gunn@cityofdenton.com
and in the body of such request you must state: you r previous e-mail address, your new e-mail
address. We do not require any other information f rom you to change your email address..
In addition, you must notify DocuSign, Inc to arran ge for your new email address to be reflected
in your DocuSign account by following the process f or changing e-mail in DocuSign.
To request paper copies from City of Denton
To request delivery from us of paper copies of the notices and disclosures previously provided
by us to you electronically, you must send us an e-mail to kevin.gunn@cityofdenton.com and in
the body of such request you must state your e-mail address, full name, US Postal address, and
telephone number. We will bill you for any fees at that time, if any.
To withdraw your consent with City of Denton
To inform us that you no longer want to receive fut ure notices and disclosures in electronic
format you may:
i. decline to sign a document from within your Docu Sign account, and on the subsequent
page, select the check-box indicating you wish to w ithdraw your consent, or you may;
ii. send us an e-mail to kevin.gunn@cityofdenton.co m and in the body of such request you
must state your e-mail, full name, IS Postal Addres s, telephone number, and account
number. We do not need any other information from y ou to withdraw consent.. The
consequences of your withdrawing consent for online documents will be that transactions
may take a longer time to process..
Required hardware and software
Operating Systems: Windows2000? or WindowsXP?
Browsers (for SENDERS): Internet Explorer 6.0? or above
Browsers (for SIGNERS): Internet Explorer 6.0?, Mozilla FireFox 1.0,
NetScape 7.2 (or above)
Email: Access to a valid email account
Screen Resolution: 800 x 600 minimum
Enabled Security Settings:
•Allow per session cookies
•Users accessing the internet behind a Proxy
Server must enable HTTP 1.1 settings via
proxy connection
** These minimum requirements are subject to change . If these requirements change, we will
provide you with an email message at the email addr ess we have on file for you at that time
providing you with the revised hardware and softwar e requirements, at which time you will
have the right to withdraw your consent.
Acknowledging your access and consent to receive ma terials electronically
To confirm to us that you can access this informati on electronically, which will be similar to
other electronic notices and disclosures that we wi ll provide to you, please verify that you
were able to read this electronic disclosure and th at you also were able to print on paper or
electronically save this page for your future refer ence and access or that you were able to
e-mail this disclosure and consent to an address wh ere you will be able to print on paper or
save it for your future reference and access. Furth er, if you consent to receiving notices and
disclosures exclusively in electronic format on the terms and conditions described above,
please let us know by clicking the 'I agree' button below.
By checking the 'I Agree' box, I confirm that:
•I can access and read this Electronic CONSENT TO E LECTRONIC RECEIPT OF
ELECTRONIC RECORD AND SIGNATURE DISCLOSURES documen t; and
•I can print on paper the disclosure or save or sen d the disclosure to a place where I can
print it, for future reference and access; and
•Until or unless I notify City of Denton as describ ed above, I consent to receive from
exclusively through electronic means all notices, d isclosures, authorizations,
acknowledgements, and other documents that are requ ired to be provided or made
available to me by City of Denton during the cours e of my relationship with you.