Delinquent Tax Collection Services-6062-Award/Ordinance/Pricing
Docusign City Council Transmittal Coversheet
File Name
Purchasing Contact
City Council Target Date
Granicus #
Ordinance #
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6062
Elton Brock
Delinquent Tax Collection Services
RFQ
July 19, 2016
Contract # 6062
CONTRACT BY AND BETWEEN
CITY OF DENTON, TEXAS AND SAWKO & BURROUGHS, P.C.
(FILE 6062)
THIS CONTRACT is made and entered into this date ____________, by and between
SAWKO & BURROUGHS, P.C. a professional corporation, whose address is 1172 Bent Oaks
Drive, Denton, Texas 76210, hereinafter referred to as "Contractor," 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 Contract 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
Contractor shall provide services in accordance with the City’s document RFQ 6062,
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 and incorporated herein by reference:
(a) Special Terms and Conditions (Exhibit “A”);
(b) Request for Qualifications (Exhibit “B” on File at the Office of the Purchasing
Agent);
(c) City of Denton Standard Terms and Conditions (Exhibit “C”);
(d) Insurance Requirements (Exhibit “D”);
(e) Certificate of Interested Parties Electronic Filing (Exhibit "E");
(f) Form CIQ – Conflict of Interest Questionnaire (Exhibit "F");
(g) Contractor’s Proposal. (Exhibit "G");
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 collectively as “Contract Documents.”
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June 28, 2016
Contract # 6062
IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year
and day first above written.
CONTRACTOR
BY: ________________________________
AUTHORIZED SIGNATURE
Date:
Name: Gregory J. Sawko
Title: CEO
940-382-4357
PHONE NUMBER
gsawko@dentonlawyer.com
EMAIL ADDRESS
2016-41062
TEXAS ETHICS COMMISSION
CERTIFICATE NUMBER
CITY OF DENTON, TEXAS
BY:
HOWARD MARTIN, CITY MANAGER
Date:
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: __________________________________
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY: __________________________________
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7/6/2016
7/12/2016
Contract # 6062
Exhibit A
Special Requirements, Terms and Conditions
1. INDEPENDENT CONTRACTOR STATUS
City agrees to contract with the Contractor as an independent contractor . CONTRACTOR
hereby agrees to enforce, by suit or otherwise, the collection of all delinquent taxes, penalties,
and interest owing to CITY. All references herein to CITY shall also incorporate
reference to CITY’s contract with Denton County, Texas to collect taxes.
A. CONTRACTOR shall initiate collection on current and prior year delinquencies as of July
1, 2016, and shall initiate collection on subsequent delinquencies as of each subsequent July
1st anniversary.
B. With respect to delinquent personal property taxes only, CONTRACTOR shall have the
option to initiate collection on March 1st of the year in which they become delinquent;
however, CITY shall not owe the CONTRACTOR a fee on current year delinquent personal
property taxes collected between March 1st and June 30th unless attorney fees are collected
pursuant to Texas Property Tax Code 33.11 or 33.48.
C. CONTRACTOR shall perform all those services set forth in City’s Request for Qualifications
(RFQ #6062), the CONTRACTOR’s response to the RFQ, which are on file with the office of the
CITY’s Purchasing Agent, and this Contract.
CONTRACTOR hereby agrees to perform these services with diligence and in accordance with
the highest professional standards customarily associated with such services in t he State of Texas.
CONTRACTOR shall provide services to the CITY as an independent Contractor, not as an
employee of the CITY. CONTRACTOR shall not have or claim any right arising from employee
status.
2. PROVISION OF INFORMATION
The CITY agrees to furnish its delinquent tax information to the CONTRACTOR on all property
within the boundaries of the CITY, including name, identity, location of necessary parties, and
property description.
3. INVESTIGATION AND ASSISTANCE
CONTRACTOR agrees to investigate the address of each taxpayer, and the location of the
property, where such information may be incorrect on the delinquent tax record.
CONTRACTOR shall bring to the attention of the appropriate tax official of CITY any errors,
double assessments, discrepancies, or inaccuracies detected by CONTRACTOR in the delinquent
tax record. CONTRACTOR further agrees to provide CITY any advice or assistance in updating
the tax rolls.
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4. COLLECTION
Upon initial receipt of computer readable delinquent tax records, CONTRACTOR
agrees to initiate collection of the full amount due from each taxpayer. Within a reasonable time
frame, but not more than 60 days from CONTRACTOR's receipt of the delinquent tax records,
CONTRACTOR hereby agrees to send, by first class mail, a notice of delinquency to each
and every delinquent taxpayer, requesting said taxpayer to remit the full amount due and owing
to CITY, except in cases where the taxes have been deferred or made the basis of a lawsuit
against the Denton County Appraisal District to determine value.
5. REVIEW AND AUTHORIZATION TO SUE
Following transmittal of the notice of delinquency as specified above, CONTRACTOR
will aggressively pursue collection, in anticipation of litigation. CITY shall have absolute
discretion over the decision to file suit. Transmittal of the delinquent tax information from
CITY to CONTRACTOR shall constitute authorization to file suit, following the mailing of the
initial notice of delinquency. Upon written notice, CITY may, at any time, withdraw
authorization to file suit. CITY may at any time withdraw authorization to foreclose and sell
the property, and said withdrawal shall be in writing.
6. TAXPAYER SERVICES
In addition to litigation, CONTRACTOR further agrees to provide taxpayer service
without charge. As such, CONTRACTOR agrees: (1) to provide CITY legal advice and
written opinions regarding property tax matters upon request; (2) to respond to taxpayer inquiries
and to advise CITY, in writing; and (3) make any recommendations concerning installment
payment agreements and settlement agreements proposed by the taxpayer. CITY shall have final
determination in acceptance of all installment payments or settlement agreements within
parameters established by CITY. CONTRACTOR shall have discretion to enter into installment
agreements, subject to CITY's prerogative of final determination. In all demand letters and all
communications with taxpayers, CONTRACTOR shall inform and instruct the taxpayer to remit
payment to CITY. If remittance is received by CONTRACTOR, it must be transmitted in its
entirety to CITY and received for processing by 11:30 a.m., the following business day.
Checks made payable to CONTRACTOR shall be endorsed by CONTRACTOR to CITY. No
check, cash, or money order for payment of delinquent taxes shall be deposited in any
CONTRACTOR account except into a trust account for the sole purpose of reissuing payment to
proper parties when combined in one deposit instrument by a taxpayer.
7. LITIGATION RESPONSIBILITIES
A. CONTRACTOR agrees to commence litigation, prosecute, and reduce to judgment
all delinquent accounts, including all pending lawsuits that CONTRACTOR deems to
warrant, or upon which CITY has specifically requested action in writing. Each suit
filed shall seek: personal judgment against the individual taxpayer for all taxes upon
which the taxpayer can be held personally liable; penalty and interest; foreclosure of any
tax lien which may exist by operation of law; any and all court costs incurred in
prosecuting the lawsuit; and any collection fees or attorney fees which the taxpayer is
obligated to pay. CONTRACTOR shall perform litigation responsibilities and protect
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CITY's legal remedies, including appeals, preparation of any documents required, post-
judgment activities, and any other actions necessary in order to collect the delinquent
taxes.
B. CONTRACTOR will assume the representation of CITY in all lawsuits, including
all pending lawsuits, involving the collection of delinquent taxes and enforcement of
tax liens, including, but not limited to bankruptcy litigation, claims, and actions required
to be filed with federal agencies such as FDIC, FSLIC and RTC, interventions in suits
filed on behalf of any other taxing units' current suits, and any other suit or litigation
which may involve or relate to the collection of delinquent taxes. CONTRACTOR will
inform CITY of any counterclaims or cross-actions filed against CITY.
C. Upon request, CONTRACTOR agrees to provide legal advice and assistance to
CITY in the acquisition of property for public purpose use, pursuant to the Property Tax
Code.
8. PROGRESS REPORTS
CONTRACTOR agrees to make delinquent tax collection progress reports to CITY
monthly and quarterly, in a format containing information requested by CITY's Director of
Finance. Progress reports may include, without limitation:
a. Number and type of communication with delinquent taxpayers;
b. Summary of all delinquent accounts collected;
c. Number of suits filed;
d. Detailed list of suits filed;
e. Number of judgments rendered;
f. Detailed list of judgments rendered;
g. Number of warrants issued/served;
h. Detailed list of bankruptcies and status of those properties;
1. Number of properties submitted to courts for auction;
j. Detailed list of properties submitted to courts for auction, with date submitted
and most recent status;
k. Number of properties sold; and
I. Detailed list of properties sold or reverting to taxing entity because of non-sale.
Within parameters established at the initiation of the collection program, CONTRACTOR shall
advise CITY of any case in which CONTRACTOR's investigation has revealed that the taxpayer
cannot be found, the enforcement of the tax lien cannot be accomplished, or further attempts at
tax collection would be futile, and shall provide CONTRACTOR's recommendation regarding
the proper disposition of the case. In such cases, CITY shall advise CONTRACTOR as to the
appropriate disposition of the account.
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9. COMPENSATION
A. As compensation for the services rendered hereunder by the Contractor, the City hereby
agrees that the Contractor may retain 20% of the total amount of all delinquent taxes,
penalties, and interest for the tax years covered by this Contract, as authorized by Texas
Property Tax Code 6.30(c). Said 20% shall constitute an additional penalty, to defray costs
of collection as set forth in Texas Property Tax Code 33.07. All compensation set forth
above shall become the property of the Contractor at the time payment of taxes, penalties,
and interest are received by the City. The 20% collection fee will only be retained on taxes
which remain delinquent after July 1st of the year on which they became delinquent,
pursuant to Texas Property Tax Code 33.07, or after the dates set forth under Texas Property
Tax Code 33.08 or 33.11, if applicable. Contractor shall not be entitled to the aforesaid 20%
unless and until the Contractor has taken some action in connection with recovering
delinquent taxes. The transmittal of a notice of delinquency shall constitute sufficient action
in order to entitle the Contractor to the aforementioned fee. As compensation for the
services rendered hereunder by the Contractor for the collection of taxes which are not
eligible for the additional penalty authorized by Texas Property Tax Code 33.07, and upon
which suit has been filed, the compensation shall be reasonable attorney fees approved by
the Court, not exceeding 15% of the total amount of taxes, penalties, and interest due to the
City. In no event shall the Contractor be entitled to any fee, unless and until the City
actuall y collects the delinquent taxes, penalties, interest, court costs, collection costs, or
attorney fees from the taxpayer, or from the proceeds of a forced sale or foreclosure. In no
event shall the Contractor be entitled to any fee, unless said fee is collected by the City
during the term of this contract, or fee is collected by the City on accounts upon which the
Contractor is attorney of record at the time of judgement. No interest shall accrue on any
late payment from the City to the Contractor.
B. The compensation set forth in paragraphs 9, 10, and 11 of this Contract shall be the total
compensation due to the Contractor for all services provided pursuant to this Contract, and
in no event shall the Contractor seek any additional compensation from the City.
10. COLLECTION OF OTHER DELINQUENT ACCOUNTS
The Contractor shall, upon written request of the City, undertake the collection of delinquent
accounts for paving assessment liens, substandard housing demolition liens, and weed liens. The
collection of these accounts shall be undertaken on the basis of attorney fees assessed to and
collected from the debtors. The City agrees to pay the Contractor, as compensation, all amounts
received as attorney fees on delinquent accounts for paving assessment liens, substandard
housing demolitions liens, and weed liens which are collected as a result of the Contractor’s
collection efforts during the term of this contract.
11. ATTORNEY FEES
In eminent domain and other judicial proceedings, the Contractor will be entitled to only those
attorney fees awarded by the Court, and then only if collected by the City. In bankruptcy
proceedings, the Contractor shall be entitled to a fee of 20% of the tax, penalties, and interest
actually collected by the City. The Contractor agrees to file and diligently pursue all property tax
claims on behalf of the City in bankruptcy, eminent domain, and other judicial or administrative
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proceedings, whether Federal or State, in nature.
12. CONTRACT TERM
This contract shall not exceed a two (2) year period, and requires no annual renewals, which begins
on July, 1. 2016. The City and the Awarded Contractor will be required to commence within
fourteen (14) days of delivery of a Notice to Proceed, or issuance of the Purchase Order.
In the event of an emergency or extenuating circumstances, the City may at its sole option, elect to
extend the contract for an additional (12) month period.
The City may terminate the contract for any reason, with or without cause in accordance with
Exhibit 2 - City of Denton Terms and Conditions #27 and #28, and upon thirty (30) days’ written
notice to the CONTRACTOR. The City will allow CONTRACTOR an additional six (6) months
to reduce to judgment all suits filed prior to the expiration of the contract. The CONTRACTOR
must provide for the orderly delivery of copies of all complete tax files to be turned over to the
City Attorney when the contract is terminated.
13. CONFLICTS OF INTEREST
CONTRACTOR agrees not to represent any client who has an adversarial position with the
City of Denton or engage in any conflict of interest, and agrees to comply fully with the Texas
Disciplinary Rules of Professional Conduct (Subtitle G - Texas Government Code) for the
duration of this Contract.
14. TAX WARRANTS
Upon request and authorization of CITY, CONTRACTOR shall prepare and pursue the
issuance of tax warrants. CONTRACTOR shall then coordinate the seizure of personal
property, pursuant to warrant. CONTRACTOR shall accompany the Tax Collector to the
location of the personal property which is to be seized to insure that all necessary procedures
have been followed.
15. SETTLEMENTS
No settlements or compromises of taxes, penalties, or interest shall be effected where
prohibited by law, and only upon approval by CITY where authorized by law. If a taxpayer
requested waiver is upheld as provided by Tex. Prop. Tax Code §33.011, CONTRACTOR will
bear the costs of suit if it failed to notify the taxpayer of the delinquency prior to filing of the
suit.
16. NOTICE
Any notice or other written instrument required or permitted to be delivered pursuant to the
terms of this Contract shall be deemed to have been delivered, whether actually received or not,
when deposited in the United States Postal Service, postage prepaid, registered, or certified,
return receipt requested, addressed to the CITY or CONTRACTOR, as the case may be at the
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following addresses:
CITY: CONTRACTOR:
City of Denton, Texas Sawko & Burroughs, P.C.
Attn: City Manager Attn: Gregory Sawko
215 East McKinney Street 1172 Bent Oaks Drive
Denton, Texas 76201 Denton, Texas 76210
purchasing@Cityofdenton.com GSawko@dentonlawyer.com
Either party may change its mailing address by sending notice of change of address to the other
at the above address by electronic communication.
17. COLLECTION REQUIREMENTS
The CONTRACTOR will be required to collect a minimum of 60% of the current year
delinquent taxes due to the City of Denton. For the purpose of this calculation, current year
delinquent taxes are defined as the ad valorem taxes that are delinquent as of July 1st for the
current tax year. The sixty percent (60%) collection percentage will be determined as of June
30th, of each year following the July 1st date in which the accounts are turned over to the
delinquent tax collection law firm. The collection rate will be adjusted for any accounts that
have been deleted from the roll by either the Denton County Appraisal District or a Court of
competent jurisdiction.
The CONTRACTOR will be required to collect a minimum of 30% of the prior year delinquent
taxes due to the City of Denton. For the purpose of this calculation, prior year delinquent taxes
are defined as the ad valorem taxes that are delinquent as of July 1st for all tax years except the
current tax year. The thirty percent (30%) collection percentage will be determined as of June
30th, of each year following the July 1st date in which the accounts are turned over to the
delinquent tax collection law firm. The collection rate will be adjusted for any accounts that
have been deleted from the roll by either the Denton County Appraisal District or a Court of
competent jurisdiction.
18. VENUE
The terms, obligations, and requirements of this Contract shall be construed in accordance
with the laws of the State of Texas. The obligations and requirements of the parties hereto
are performable in Denton County, Texas. Any litigation involving this Contract shall be
tried in a court of competent jurisdiction sitting in Denton County, Texas.
19. ACCEPTANCE OF CONTRACT
In consideration of the terms, covenants, and mutual agreements hereinabove stated,
CONTRACTOR hereby accepts the contract with the CITY, and undertakes the performance
of this Contract as above stated.
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20. DIRECTIVES
All directives between CONTRACTOR and CITY shall be continued in writing.
21. COVENANT NOT TO SUE
CONTRACTOR further agrees not to bring any cause of action against CITY relative to this
Contract. Should CONTRACTOR bring any cause of action against CITY, CONTRACTOR
agrees the liquidated damages shall not exceed $1.00, and the filing of such cause of action
shall be considered a material breach of this Contract.
22. AMBIGUITY
Any ambiguity within this Contract shall be liberally interpreted in favor of CITY.
23. PERSONNEL AND EQUIPMENT
A. CONTRACTOR represents that it has or will secure, at its own expense, all
personnel required to perform all the services required under this Contract .
Such personnel shall not be employees or officers of, or have any contractual
relations with, CITY. CONTRACTOR shall inform CITY of any conflict of interest
or potential conflict of interest that may arise during the term of this Contract.
B. All services required hereunder will be performed by CONTRACTOR, or under its
supervision. All personnel engaged in work shall be qualified, and shall be
authorized and permitted under state and local laws to perform such services.
C. CONTRACTOR represents that it has or will secure, at its own expense, the
hardware, software, and other resources required to perform, all the services required
under the terms of this contract in a timely manner.
24. MODIFICATION
No waiver or modification of this Contract, or of any covenant, condition, or limitation
herein contained shall be valid, unless in writing and duly executed by the party to be
charged therewith. No evidence of any waiver or modification shall be offered or received in
evidence in any proceeding arising between the parties hereto, out of, or affecting this Contract,
or the rights or obligations of the parties hereunder, unless such waiver or modification is in
writing and duly executed. The parties further agree that the provisions of this section will not
be waived unless as herein set forth.
25. MISCELLANEOUS
A. For the purpose of this Contract, the key person who will perform most of this work
hereunder shall be Gregory Sawko. However, nothing herein shall limit
CONTRACTOR from using other qualified and competent members of its
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CONTRACTOR to perform the services required herein.
B. CONTRACTOR shall commence, carry on, and complete any and all projects with
all applicable dispatch, in a sound, economical, efficient manner, and in accordance
with the provisions hereof. In accomplishing the services hereunder,
CONTRACTOR shall take such steps as are appropriate to ensure that the work
involved is properly coordinated with related work being carried on by CITY.
C. CITY shall assist the CONTRACTOR by placing at the CONTRACTOR’s disposal all
available information pertinent to the services outlined in this contract, including
previous reports and any other data relative to the services outlined in this Contract, and
arranging for access thereto. CITY shall make all provisions necessary for
CONTRACTOR to enter in or upon public and private property as required for
CONTRACTOR to perform services under this contract.
26. TIME OF THE ESSENCE
Time is of the essence with respect to all matter covered by this Contract.
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Exhibit C
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 solicitati on 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 and Sections 12, 13, 14,
15, 16, 19, 23, & 56 shall not be applicable to the contract.
1. CONTRACTOR’S OBLIGATIONS. The Contractor shall fully and timely 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 DATE/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 TO 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 number 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 PROHIBITED: 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.
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5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City
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
set 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 defective 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 furnish, 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 provisions 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 expired, 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 Contractor 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 satisfied
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 kind 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 facilities.
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,
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except as required by the terms of the contract; or
ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled
substances, nor may such workers be intoxicated, or under the influence of alcohol or 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, orders, 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 duplicate 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 separately. A copy of the bill of ladin g 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 in 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 deliverables
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 otherwise expressly authorized in the Contract, the Contractor shall pass through all
Subcontract and other authorized expenses at actual cost without markup.
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E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced
amount.
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 invoice 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 lawful 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 payment 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 Contractors,
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 adequate 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 comply with any material provision of the Contract
Documents.
E. Notice is hereby given that any awarded CONTRACTOR who is in arrears to the City of
Denton for delinquent taxes, the City may offset indebtedness owed the City through payment
withholding.
F. Payment 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 electronic 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 Appropriated 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 written 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 Contract. In the event of
none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to
the City.
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Contract # 6062
14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the
Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. During the
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
performance 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 Program 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 against 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 of 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 required 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 thereafter, ex cept 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) business 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
those 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 occurs, t he 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 breach 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, even if such drafts or electronic files are subsequently used
to generate or prepare a final printed document.
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Contract # 6062
18. SUBCONTRACTORS:
A. If the Contractor identified SubContractors in a DBE/MBE/WBE agreed to Plan, the
Contractor shall comply with all requirements 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 City 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 required 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 the 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 the 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, damages 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 same 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.
Nothing 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 due any such Sub Contractor
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 CONTRACTOR or with any competitor.
C. In addition to any other remedy available, the City may deduct from any amounts owed to the
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Contract # 6062
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
liens, claims, security interests and encumbrances. 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 conditions 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 reconditioned.
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 specified 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 breached, 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 (30) 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 required 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 event, 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
manufacturer’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
workmanlike 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
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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
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 services 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 do 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 deduct 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 ASSURANCE: 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 manner 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 unsafe 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 fully, 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) makes 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 terminate 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 to the City’s
reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy
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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
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 any 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 available 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 written 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 obligations
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 event 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 mutually 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 person (including, but not limited to the City, the Contractor, their
respective agents, officers, employees and sub Contractors; 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
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any person (including but not limited to the agents, officers and employees of the City,
the Contractor, the Contractor’s SubContractor’s, and third parties), ii. "Fault" shall
include the sale of defective or non-conforming deliverables, negligence, willful
misconduct or a 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, ASSIGNS, 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 THE
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 D for services only. The successful
CONTRACTOR 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 carry 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 period.
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 expired, 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 insurance 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
and 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:
DocuSign Envelope ID: A2AD485A-911B-4E94-9146-9C90C4E8D864
Contract # 6062
City of Denton
Materials Management Department
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 modification 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 effect 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 Attorney
shall be to City Hall, 215 East McKinney Street, Denton, Texas 76201.
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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
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 property 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 Texas 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 been 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 Contract. 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. CONFIDENTIALITY: 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, Sub-
Contractors, agents, or representatives) 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
expressly permitted under this Agreement, unless the Confidential Information is required to be
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disclosed by law or an order of any court or other governmental authority with proper
jurisdiction, provided the Contractor promptly notifies the City before disclosing such
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, cause 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 matter, 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 Paragraph 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 Contractor 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. With 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 reasonably 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, execute, acknowledge, and deliver all applications, specifications, oaths,
assignments, and all other instruments which the City might reasonabl y 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 Contractor’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 respect 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
Confidential 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 material not originally developed is included in a report in any form, the source shall be
identified.
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40. ADVERTISING: The Contractor shall not advertise or publish, without the City’s prior
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, brokerage, 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 addition to any other remedy available, to cancel the Contract without liability a nd 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 City 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 CONTRACTS: 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 rights 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 supervision 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 City 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
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delegated by the Contractor without the prior written consent 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,
CONTRACTOR or entity not a party hereto; it being the intention 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 waiver 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 expla in
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 other. 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 relates 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) senior 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 parties 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 mediation
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 resolution 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
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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
mediation session. The City and the 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 refer 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 foregoing, 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 unenforceability 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 construed 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 City:
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, excluding 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 Contract with the City, the Vendor certifies
that it’s CONTRACTOR 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 Procurement 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 Disabilities 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
requirements)
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 components 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 CONTRACTOR), and any applicable duty (whether or not a duty-free entry certificate
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 excluding 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 the 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 mined, 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 product" 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 outlying 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 this
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 an approved Governmental
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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 INFORMATION: 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 TAXES: 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 RATES: 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 prohibits 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 Contract.
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 federal 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 (Public 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 Defense (32 CFR Part 280, Subpart F) to implement the provisions of th e
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
hereafter be issued.
63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The
Respondent shall be liable for all damages to government-owned, leased, or occupied property
and equipment caused by the Respondent and its employees, agents, sub Contractors, and
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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. FORCE 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 attributable 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 con tinues 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 contacted 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 Contract 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 period 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 documents 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 documents, it shall be res olved 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. RFQ/Bid documents
3. City’s standard terms and conditions
4. Purchase order
5. Supplier terms and conditions
Exhibit D
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INSURANCE REQUIREMENTS AND
WORKERS’ COMPENSATION REQUIREMENTS
Upon contract execution, all insurance requirements shall become contractual obligations,
which the successful Contractor shall have a duty to maintain throughout the course of this
contract.
STANDARD PROVISIONS:
Without limiting any of the other obligations or liabilities of the Contractor, the
Contractor shall provide and maintain until the contracted work has been completed and
accepted by the City of Denton, Owner, the minimum insurance coverage as indicated
hereinafter.
Contractor shall file with the Purchasing Department satisfactory certificates of
insurance including any applicable addendum or endorsements, containing the contract
number and title of the project. Contractor may, upon written request to the
Purchasing Department, ask for clarification of any insurance requirements at any time;
however, Contractor shall not commence any work or deliver any material until he or she
receives notification that the contract has been accepted, approved, and signed by the
City of Denton.
All insurance policies proposed or obtained in satisfaction of these requirements shall
comply with the following general specifications, and shall be maintained in compliance
with these general specifications throughout the duration of the Contract, or longer, if so
noted:
Each policy shall be issued by a company authorized to do business in the State of
Texas with an A.M. Best Company rating of at least A or better.
Any deductibles or self-insured retentions shall be declared in the proposal. If requested
by the City, the insurer shall reduce or eliminate such deductibles or self-insured
retentions with respect to the City, its officials, agents, employees and volunteers; or, the
Contractor shall procure a bond guaranteeing payment of losses and related
investigations, claim administration and defense expenses.
Liability policies shall be endorsed to provide the following:
Name as Additional Insured the City of Denton, its Officials, Agents, Employees
and volunteers.
That such insurance is primary to any other insurance available to the Additional
Insured with respect to claims covered under the policy and that this insurance
applies separately to each insured against whom claim is made or suit is brought.
The inclusion of more than one insured shall not operate to increase the insurer's
limit of liability.
Cancellation: City requires 30 day written notice should any of the policies
described on the certificate be cancelled or materially changed before the
expiration date.
Should any of the required insurance be provided under a claims made form, Contractor
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shall maintain such coverage continuously throughout the term of this contract and,
without lapse, for a period of three years beyond the contract expiration, such that
occurrences arising during the contract term which give rise to claims made after
expiration of the contract shall be covered.
Should any of the required insurance be provided under a form of coverage that includes
a general annual aggregate limit providing for claims investigation or legal defense costs
to be included in the general annual aggregate limit, the Contractor shall either double
the occurrence limits or obtain Owners and Contractors Protective Liability Insurance.
Should any required insurance lapse during the contract term, requests for payments
originating after such lapse shall not be processed until the City receives satisfactory
evidence of reinstated coverage as required by this contract, effective as of the lapse
date. If insurance is not reinstated, City may, at its sole option, terminate this agreement
effective on the date of the lapse.
SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS:
All insurance policies proposed or obtained in satisfaction of this Contract shall
additionally comply with the following marked specifications, and shall be maintained in
compliance with these additional specifications throughout the duration of the Contract,
or longer, if so noted:
[X] A. General Liability Insurance:
General Liability insurance with combined single limits of not less than
$1,000,000.00 shall be provided and maintained by the Contractor. The policy shall
be written on an occurrence basis either in a single policy or in a combination of
underlying and umbrella or excess policies.
If the Commercial General Liability form (ISO Form CG 0001 current edition) is
used:
Coverage A shall include premises, operations, products, and completed
operations, independent Contractors, contractual liability covering this
contract and broad form property damage coverage.
Coverage B shall include personal injury.
Coverage C, medical payments, is not required.
If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition
and ISO Form GL 0404) is used, it shall include at least:
Bodily injury and Property Damage Liability for premises, operations,
products and completed operations, independent Contractors and property
damage resulting from explosion, collapse or underground (XCU) exposures.
Broad form contractual liability (preferably by endorsement) covering this
contract, personal injury liability and broad form property damage liability.
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[] Automobile Liability Insurance:
Contractor shall provide Commercial Automobile Liability insurance with Combined
Single Limits (CSL) of not less than $500,000 either in a single policy or in a combination
of basic and umbrella or excess policies. The policy will include bodily injury and
property damage liability arising out of the operation, maintenance and use of all
automobiles and mobile equipment used in conjunction with this contract.
Satisfaction of the above requirement shall be in the form of a policy endorsement for:
any auto, or
all owned hired and non-owned autos.
[] Workers’ Compensation Insurance
Contractor shall purchase and maintain Workers’ Compensation insurance which, in
addition to meeting the minimum statutory requirements for issuance of such insurance,
has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each
employee, and a $500,000 policy limit for occupational disease. The City need not be
named as an "Additional Insured" but the insurer shall agree to waive all rights of
subrogation against the City, its officials, agents, employees and volunteers for any work
performed for the City by the Named Insured. For building or construction projects, the
Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096
of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers ’ Compensation
Commission (TWCC).
[ ] Owner's and Contractor's Protective Liability Insurance
The Contractor shall obtain, pay for and maintain at all times during the prosecution of
the work under this contract, an Owner's and Contractor's Protective Liability insurance
policy naming the City as insured for property damage and bodily injury which may arise
in the prosecution of the work or Contractor's operations under this contract. Coverage
shall be on an “occurrence" basis and the policy shall be issued by the same insurance
company that carries the Contractor's liability insurance. Policy limits will be at least
$500,000.00 combined bodily injury and property damage per occurrence with a
$1,000,000.00 aggregate.
[ ] Fire Damage Legal Liability Insurance
Coverage is required if Broad form General Liability is not provided or is unavailable to
the Contractor or if a Contractor leases or rents a portion of a City building. Limits of not
less than each occurrence are required.
[ ] Professional Liability Insurance
Professional liability insurance with limits not less than $1,000,000.00 per claim with
respect to negligent acts, errors or omissions in connection with professional services is
required under this Agreement.
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[ ] Builders' Risk Insurance
Builders' Risk Insurance, on an All-Risk form for 100% of the completed value shall be
provided. Such policy shall include as "Named Insured" the City of Denton and all
subContractors as their interests may appear.
[ ] Environmental Liability Insurance
Environmental liability insurance for $1,000,000 to cover all hazards contemplated by
this contract.
[ ] Riggers Insurance
The Contractor shall provide coverage for Rigger’s Liability. Said coverage may be
provided by a Rigger’s Liability endorsement on the existing CGL coverage; through and
Installation Floater covering rigging Contractors; or through ISO form IH 00 91 12 11,
Rigger’s Liability Coverage form. Said coverage shall mirror the limits provided by the
CGL coverage
[ ] Commercial Crime
Provides coverage for the theft or disappearance of cash or checks, robbery
inside/outside the premises, burglary of the premises, and employee fidelity. The
employee fidelity portion of this coverage should be written on a “blanket” basis to cover
all employees, including new hires. This type insurance should be required if the
Contractor has access to City funds. Limits of not less than $ each
occurrence are required.
[ ] Additional Insurance
Other insurance may be required on an individual basis for extra hazardous contracts
and specific service agreements. If such additional insurance is required for a specific
contract, that requirement will be described in the "Specific Conditions" of the contract
specifications.
ATTACHMENT 1
[] Workers’ Compensation Coverage for Building or Construction Projects for
Governmental Entities
A. Definitions:
Certificate of coverage ("certificate")-A copy of a certificate of insurance, a
certificate of authority to self-insure issued by the commission, or a coverage
agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing
statutory workers' compensation insurance coverage for the person's or
entity's employees providing services on a project, for the duration of the
project.
DocuSign Envelope ID: A2AD485A-911B-4E94-9146-9C90C4E8D864
Contract # 6062
Duration of the project - includes the time from the beginning of the work on
the project until the Contractor's/person's work on the project has been
completed and accepted by the governmental entity.
Persons providing services on the project ("subContractor" in §406.096) -
includes all persons or entities performing all or part of the services the
Contractor has undertaken to perform on the project, regardless of whether
that person contracted directly with the Contractor and regardless of whether
that person has employees. This includes, without limitation, independent
Contractors, subContractors, leasing companies, motor carriers, owner-
operators, employees of any such entity, or employees of any entity which
furnishes persons to provide services on the project. "Services" include,
without limitation, providing, hauling, or delivering equipment or materials, or
providing labor, transportation, or other service related to a project.
"Services" does not include activities unrelated to the project, such as
food/beverage vendors, office supply deliveries, and delivery of portable
toilets.
B. The Contractor shall provide coverage, based on proper reporting of
classification codes and payroll amounts and filing of any overage
agreements, which meets the statutory requirements of Texas Labor Code,
Section 401.011(44) for all employees of the Contractor providing services
on the project, for the duration of the project.
C. The Contractor must provide a certificate of coverage to the governmental
entity prior to being awarded the contract.
D. If the coverage period shown on the Contractor's current certificate of
coverage ends during the duration of the project, the Contractor must, prior
to the end of the coverage period, file a new certificate of coverage with the
governmental entity showing that coverage has been extended.
E. The Contractor shall obtain from each person providing services on a
project, and provide to the governmental entity:
1. a certificate of coverage, prior to that person beginning work on the
project, so the governmental entity will have on file certificates of
coverage showing coverage for all persons providing services on the
project; and
2. no later than seven days after receipt by the Contractor, a new
certificate of coverage showing extension of coverage, if the coverage
period shown on the current certificate of coverage ends during the
duration of the project.
F. The Contractor shall retain all required certificates of coverage for the
DocuSign Envelope ID: A2AD485A-911B-4E94-9146-9C90C4E8D864
Contract # 6062
duration of the project and for one year thereafter.
G. The Contractor shall notify the governmental entity in writing by certified mail
or personal delivery, within 10 days after the Contractor knew or should have
known, of any change that materially affects the provision of coverage of any
person providing services on the project.
H. The Contractor shall post on each project site a notice, in the text, form and
manner prescribed by the Texas Workers' Compensation Commission,
informing all persons providing services on the project that they are required
to be covered, and stating how a person may ver ify coverage and report lack
of coverage.
I. The Contractor shall contractually require each person with whom it
contracts to provide services on a project, to:
1. provide coverage, based on proper reporting of classification codes and
payroll amounts and filing of any coverage agreements, which meets the
statutory requirements of Texas Labor Code, Section 401.011(44) for all of
its employees providing services on the project, for the duration of the
project;
2. provide to the Contractor, prior to that person beginning work on the
project, a certificate of coverage showing that coverage is being provided
for all employees of the person providing services on the project, for the
duration of the project;
3. provide the Contractor, prior to the end of the coverage period, a new
certificate of coverage showing extension of coverage, if the coverage
period shown on the current certificate of coverage ends during the
duration of the project;
4. obtain from each other person with whom it contracts, and provide to the
Contractor:
a. a certificate of coverage, prior to the other person beginning work on
the project; and
b. a new certificate of coverage showing extension of coverage, prior to
the end of the coverage period, if the coverage period shown on the
current certificate of coverage ends during the duration of the project;
5. retain all required certificates of coverage on file for the duration of the
project and for one year thereafter;
6. notify the governmental entity in writing by certified mail or personal
delivery, within 10 days after the person knew or should have known, of
any change that materially affects the provision of coverage of any person
DocuSign Envelope ID: A2AD485A-911B-4E94-9146-9C90C4E8D864
Contract # 6062
providing services on the project; and
7. Contractually require each person with whom it contracts, to perform as
required by paragraphs (1) - (7), with the certificates of coverage to be
provided to the person for whom they are providing services.
J. By signing this contract or providing or causing to be provided a certificate of
coverage, the Contractor is representing to the governmental entity that all
employees of the Contractor who will provide services on the project will be
covered by workers' compensation coverage for the duration of the project,
that the coverage will be based on proper reporting of classification codes
and payroll amounts, and that all coverage agreements will be filed with the
appropriate insurance carrier or, in the case of a self -insured, with the
commission's Division of Self -Insurance Regulation. Providing false or
misleading information may subject the Contractor to administrative
penalties, criminal penalties, civil penalties, or other civil actions.
K. The Contractor’s failure to comply with any of these provisions is a breach of
contract by the Contractor which entitles the governmental entity to declare
the contract void if the Contractor does not remedy the breach within ten
days after receipt of notice of breach from the governmental entity.
DocuSign Envelope ID: A2AD485A-911B-4E94-9146-9C90C4E8D864
Contract # 6062
Exhibit E
Certificate of Interested Parties Electronic Filing
In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the
Government Code. The law states that the City may not enter into this contract unless the
Contractor submits a disclosure of interested parties (Form 1295) to the City at the time the
Contractor submits the signed contract. The Texas Ethics Commission has adopted rules
requiring the business entity to file Form 1295 electronically with the Commission.
Contractor will be required to furnish an original notarized Certificate of Interest Parties
before the contract is awarded, in accordance with Government Code 2252.908.
The Contractor shall:
1. Log onto the State Ethics Commission Website at :
https://www.ethics.state.tx.us/whatsnew/elf_info_form1295.htm
2. Register utilizing the tutorial provided by the State
3. Print a copy of the completed Form 1295
4. Enter the Certificate Number on page 2 of this contract.
5. Sign and notarize the Form 1295
6. Email the notarized form to purchasing@Cityofdenton.com with the contract number in the
subject line. (EX: Contract 1234 – Form 1295)
The City must acknowledge the receipt of the filed Form 1295 not later than the 30th day after
Council award. Once a Form 1295 is acknowledged, it will be posted to the Texas Ethics
Commission’s website within seven business days.
DocuSign Envelope ID: A2AD485A-911B-4E94-9146-9C90C4E8D864
Contract # 6062
Exhibit F
CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ
For vendor or other person doing business with local governmental entity
This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., Regular Session .
This questionnaire is being filed in accordance with Chapter 176, Local Government Code, by a vendor who has a business relationship as
defined by Section 176.001(1-a) with a local governmental entity and the vendor meets requirements under Section 176.006(a).
By law this questionnaire must be filed with t he records administrator of the local government entity not later than the 7th business day after
the date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Government Code.
A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code. An offense under this section is a
misdemeanor.
1 Name of vendor who has a business relationship with local governmental entity.
SAWKO & BURROUGHS, P.C.
2
Check this box if you are filing an update to a previously filed questionnaire.
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7 th business
day after the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate.)
3 Name of local government officer about whom the information in this section is being disclosed.
Name of Officer
This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the vendor has an employment or other business relationship
as defined by Section 176.001(1-a), Local Government Code. Attach additional pages to this Form CIQ as necessary.
A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the vendor?
Yes No
B. Is the vendor receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer
named in this section AND the taxable income is not received from the local governmental entity?
Yes No
C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an
officer or director, or holds an ownership of one percent or more?
Yes No
D. Describe each employment or business and family relationship with the local government officer named in this section.
4
I have no Conflict of Interest to disclose.
5
Signature of vendor doing business with the governmental entity Date
DocuSign Envelope ID: A2AD485A-911B-4E94-9146-9C90C4E8D864
Certificate Of Completion
Envelope Id: A2AD485A911B4E9491469C90C4E8D864 Status: Completed
Subject: City Council Docusign Item - 6062 Delinquent Tax Collection Services
Source Envelope:
Document Pages: 39 Signatures: 4 Envelope Originator:
Certificate Pages: 6 Initials: 0 Elton Brock
AutoNav: Enabled
EnvelopeId Stamping: Enabled
Time Zone: (UTC-08:00) Pacific Time (US & Canada)
elton.brock@cityofdenton.com
IP Address: 129.120.6.150
Record Tracking
Status: Original
7/6/2016 9:52:43 AM
Holder: Elton Brock
elton.brock@cityofdenton.com
Location: DocuSign
Signer Events Signature Timestamp
Elton Brock
elton.brock@cityofdenton.com
Purchasing Manager
City of Denton
Security Level: Email, Account Authentication
(Optional)
Completed
Using IP Address: 129.120.6.150
Sent: 7/6/2016 10:02:52 AM
Viewed: 7/6/2016 10:03:03 AM
Signed: 7/6/2016 10:04:08 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
Gregory J. Sawko, CEO
gsawko@dentonlawyer.com
Chairman of Board
Security Level: Email, Account Authentication
(Optional)Using IP Address: 96.226.245.89
Sent: 7/6/2016 10:04:10 AM
Viewed: 7/6/2016 10:04:43 AM
Signed: 7/6/2016 10:06:37 AM
Electronic Record and Signature Disclosure:
Accepted: 7/6/2016 10:04:43 AM
ID: ec70ce2f-ecba-42ea-a516-1e45da1aa851
John Knight
john.knight@cityofdenton.com
Deputy City Attorney
City of Denton
Security Level: Email, Account Authentication
(Optional)
Using IP Address: 129.120.6.150
Sent: 7/6/2016 10:06:41 AM
Resent: 7/12/2016 6:56:11 AM
Viewed: 7/12/2016 8:28:02 AM
Signed: 7/12/2016 8:28:14 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
Julia Winkley
julia.winkley@cityofdenton.com
Contracts Administration Supervisor
City of Denton
Security Level: Email, Account Authentication
(Optional)
Completed
Using IP Address: 129.120.6.150
Sent: 7/12/2016 8:28:15 AM
Viewed: 7/12/2016 8:37:11 AM
Signed: 7/12/2016 8:38:44 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
Signer Events Signature Timestamp
Howard Martin
howard.martin@cityofdenton.com
Interim City Manager
City of Denton
Security Level: Email, Account Authentication
(Optional)
Using IP Address: 129.120.6.150
Sent: 7/12/2016 8:38:47 AM
Viewed: 7/12/2016 9:17:03 AM
Signed: 7/12/2016 9:17:29 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
Jennifer Walters
jennifer.walters@cityofdenton.com
City Secretary
City of Denton
Security Level: Email, Account Authentication
(Optional)
Using IP Address: 129.120.6.150
Sent: 7/12/2016 9:17:31 AM
Viewed: 7/12/2016 12:13:27 PM
Signed: 7/12/2016 12:14:08 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
In Person Signer Events Signature Timestamp
Editor Delivery Events Status Timestamp
Agent Delivery Events Status Timestamp
Intermediary Delivery Events Status Timestamp
Certified Delivery Events Status Timestamp
Carbon Copy Events Status Timestamp
Julia Winkley
julia.winkley@cityofdenton.com
Contracts Administration Supervisor
City of Denton
Security Level: Email, Account Authentication
(Optional)
Sent: 7/6/2016 10:06:39 AM
Viewed: 7/6/2016 10:08:35 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
Sherri Thurman
sherri.thurman@cityofdenton.com
Security Level: Email, Account Authentication
(Optional)
Sent: 7/6/2016 10:06:40 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
Jane Richardson
jane.richardson@cityofdenton.com
Security Level: Email, Account Authentication
(Optional)
Sent: 7/12/2016 8:38:46 AM
Viewed: 7/12/2016 9:01:59 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
Robin Fox
Robin.fox@cityofdenton.com
Security Level: Email, Account Authentication
(Optional)
Sent: 7/12/2016 8:38:46 AM
Viewed: 7/12/2016 9:02:26 AM
Carbon Copy Events Status Timestamp
Electronic Record and Signature Disclosure:
Accepted: 10/9/2015 11:39:51 AM
ID: 04463961-03db-4c4d-9228-d660d6146ed6
Jennifer Bridges
jennifer.bridges@cityofdenton.com
Procurement Assistant
City of Denton
Security Level: Email, Account Authentication
(Optional)
Sent: 7/12/2016 12:14:11 PM
Viewed: 7/12/2016 12:37:50 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
Jane Richardson
jane.richardson@cityofdenton.com
Security Level: Email, Account Authentication
(Optional)
Sent: 7/12/2016 12:14:12 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
Bryan Langley, Assistant City Manager
bryan.langley@cityofdenton.com
Assistant City Manager
City of Denton
Security Level: Email, Account Authentication
(Optional)
Sent: 7/12/2016 12:14:13 PM
Electronic Record and Signature Disclosure:
Accepted: 10/1/2015 1:20:49 PM
ID: 1fc05fe6-b134-484b-98a3-16f354e2af78
Notary Events Timestamp
Envelope Summary Events Status Timestamps
Envelope Sent Hashed/Encrypted 7/12/2016 12:14:13 PM
Certified Delivered Security Checked 7/12/2016 12:14:13 PM
Signing Complete Security Checked 7/12/2016 12:14:13 PM
Completed Security Checked 7/12/2016 12:14:13 PM
Electronic Record and Signature Disclosure
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Electronic Record and Signature Disclosure created on: 4/20/2015 2:25:38 PM
Parties agreed to: Gregory J. Sawko, CEO, Robin Fox, Bryan Langley, Assistant City Manager
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