Section 125 Claims Administration-5047-Award/Ordinance/PricingCONTRACT #5047 BY AND BETWEEN
CITY OF DENTON, TEXAS AND PAYFi(.EX SYSTEM USA, INC.
THIS CONTRACT is made and entered into this 6a' day of November A.D., 2012, by
and between P"Flex System USA, Inc. a corporation, whose address is 10802 Farnam Drive,
Suite 100, Omaha, Nebraska 68154, 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 products or services in accordance with the Contractor's
proposal in response thereto, a copy of which is attached hereto and incorporated herein for all
purposes as Exhibit "A". The Contract consists of this written agreement and the following
items which are attached hereto and incorporated herein by reference:
(a) Contractor Response to RFP 5047 - Contract Pricing
(b) City of Denton Standard Terms and Conditions
and contractual requirements
(c) Contractors' Business Information
(d) Contractor Response to RFP 5047 - Conflict of Interest Questionnaire
(e) Contractor Response to RFP 5047 - Insurance Documentation
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."
IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year
and day first above written.
ATTEST:
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APPROVED AS TO FORM:
BY:
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General Notary •State of Nebraska
KELLIE BURKHARD
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EXHIBIT A
Contractor Pricing
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_City of Denton Standard
Terms and Conditions
and
itional contractual require
These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings
and other requirements included in the City's solicitation are applicable to Contracts/Purchase
Orders issued by the City hereinafter referred to as the City or Buyer and the Seller hereinafter
referred to as the Bidder, 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 Sellers Solicitation 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.
By submitting an Offer in response to the Solicitation, the Contractor agrees that the Contract
shall be governed by the following terms and conditions, unless exceptions are duly noted and
fully negotiated.
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. 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 lading and the
freight waybill, when applicable, shall be attached to the invoice. The Contractor's name,
remittance address and, if applicable, the tax identification number on the invoice must exactly
match the information 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.
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.
4. 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 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.
5. 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.
b. 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.
7. 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, except if an audit is in
progress or audit findings are yet unresolved, in which case records shall be kept until all audit
tasks are completed and resolved. These books, records, documents and other evidence shall be
available, within ten (10) 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, the reasonable cost of
the audit, including any travel costs, must be borne by the Contractor which must be payable
within five (5) business days of receipt of an invoice.
B. Failure to comply with the provisions of this section shall be a material 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.
8. 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:
L 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 farther 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 Subcontractor
except as may otherwise be required by law.
D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the
Contractor not later than ten (10) calendar days after receipt of payment from the City.
9. 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
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.
10. 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
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 home 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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
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.
16. 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.
17. 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.
18. 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.
19. 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 subcontractors; the officers, agents, and
employees of such subcontractors; and third parties); and/or (2) death, bodily injury,
illness, disease, worker's compensation, loss of services, or loss of income or wages to
any person (including but not limited to the agents, officers and employees of the City,
the Contractor, the Contractor's subcontractors, and third parties), ii. "Fault" shall include
the sale of defective or non -conforming deliverables, negligence, willful misconduct or a
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.
20. INSURANCE: The following insurance requirements are applicable, in addition to the
specific insurance requirements detailed in Attachment A. The successful Contractor shall
procure and maintain insurance of the types and in the minimum amounts acceptable to the City.
The insurance shall be written by a company licensed to do business in the State of Texas and
satisfactory to the City.
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 Fetid.
vi. All endorsements naming the City as additional insured, waivers, and notices of
cancellation endorsements as well as the Certificate of Insurance shall contain the
solicitation number and the following information:
City of Denton
Materials Management Department
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.
21. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which
arises under or concerns the Contract, or which could have a material adverse affect on the
Contractor's ability to perform thereunder, the Contractor shall give written notice thereof to the
City within ten (10) calendar days after receipt of notice by the Contractor. Such notice to the
City shall state the date of notification of any such claim, demand, suit, or other action; the
names and addresses of the claimant(s); the basis thereof; and the name of each person against
whom such claim is being asserted. Such notice shall be delivered personally or by mail and
shall be sent to the City and to the Denton City Attorney. Personal delivery to the City Attorney
shall be to City Hall, 215 East McKinney Street, Denton, Texas 76201.
22. 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.
23. 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.
24. 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.
25. 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,
subcontractors, 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 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.
26.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, tate 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 ot) 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 reasonably deem necessary in order
to apply for and obtain copyright protection, mask work registration, trademark registration
and/or protection, letters patent, or any similar rights in any and all countries and in order to
assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right,
title, and interest in and to the deliverables. The 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.
27. 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.
28. 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.
29. 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 and to
deduct from any amounts owed to the Contractor, or otherwise recover, the full amount of such
commission, percentage, brokerage or contingent fee.
30. 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
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.
31. 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 (Attachment D).
32. 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, 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, Texas, or his designee under this agreement.
33. ASSIGNMENT -DELEGATION: The Contract shall be binding upon and ensure to the
benefit of the City and the Contractor and their respective successors and assigns, provided
however, that no right or interest in the Contract shall be assigned and no obligation shall be
delegated by the Contractor without the prior written 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, film or entity
not a party hereto; it being the intention of the parties that there are no third party beneficiaries to
the Contract.
34. 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.
35. 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.
36. INTERPRETATION: The Contract is intended by the parties as a final, complete and
exclusive statement of the terms of their agreement. No course of prior dealing between the
parties or course of performance or usage of the trade shall be relevant to supplement or explain
any term used in the Contract. Although the Contract may have been substantially drafted by one
party, it is the intent of the parties that all provisions be construed in a manner to be fair to both
parties, reading no provisions more strictly against one party or the 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.
37. 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
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.
38. 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.
39. 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 farther 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.
40. 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 Da 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 5:00 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.
41. 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.
42. NON -SUSPENSION OR DEBARMENT CERTIFICATION:
The City is prohibited from contracting with or making prime or sub -awards to parties that are
suspended or debarred or whose principals are suspended or debarred from Federal, State, or
City Contracts. By accepting a Contract with the City, the Vendor certifies that its firm and its
principals are not currently suspended or debarred from doing business with the Federal
Government, as indicated by the General Services Administration List of Parties Excluded from
Federal Procurement and Non -Procurement Programs, the State of Texas, or the City.
43. 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.
44. BUY AMERICAN ACT -SUPPLIES (Applicable to certain federally funded
requirements)
The following federally funded requirements are applicable, in addition to the specific federally
funded requirements.
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 firm), 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. 1 Oa - 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
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".
45. RIGHT TO INFORMATION: The City reserves the right to use any and all information
presented in any response to this solicitation, whether amended or not, except as prohibited by
law. Selection of rejection of the submittal does not affect this right.
46. 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.
47. PREVAILING WAGE RATES: All respondents will be required to comply with Provision
5159a of "Vernon's Annotated Civil Statutes" of the State of Texas with respect to the payment
of prevailing wage rates and prohibiting discrimination in the employment practices.
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48. COlYIPLIANCE 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.
49, 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 Worker's Compensation insurance coverage. Respondent shall ensure
compliance with all federal and State tax laws and withholding requirements. The City 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 and
shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this
Section.
50. 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 the
Drug -Free Work Place Act of 1988 is incorporated by reference and the contractor shall comply
with the relevant provisions thereof, including any amendments to the final rule that may
hereafter be issued.
51. 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, subcontractors, and
suppliers, including any delivery or cartage company, in connection with any performance
pursuant to the Contract. The Respondent shall notify the City Procurement Manager in writing
of any such damage within one (1) calendar day.
52. FORCE MAJEURE: The City, 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. In the event of an occurrence under this Section, the Respondent will be
excused from any further performance or observance of the requirements so affected for as long
as such circumstances prevail and the Respondent continues to use commercially reasonable
efforts to recommence performance or observance whenever and to whatever extent possible
without delay. The Respondent shall immediately notify the City Procurement Manager by
telephone (to be confirmed in writing within five (5) calendar days of the inception of such
occurrence) and describe at a reasonable level of detail the circumstances causing the non-
performance or delay in performance.
53. 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.
54. 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 any
immunities from suit or from liability that the City may have by operation of law.
55. 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.
ADDITIONAL TERMS AND CONDITIONS
Contract Terms
It is the intention of the City of Denton to award a contract for a one (1) year period. The City and
the Awarded Contractor shall have the option to renew this contract for an additional four (1) one-
year periods. Materials and services undertaken pursuant to this RFP will be required to commence
within fourteen (14) days of delivery of a Notice to Proceed. The services shall be accomplished per
the Scope of Work and Services as identified in Section III and the Procurement Process and
Procedures as outlined in Section il.
The Contract shall commence upon the issuance of a Notice of Award by the City of Denton and
shall automatically renew each year, from the date of award by City Council, unless either party
notifies the other prior to the scheduled renewal date in accordance with the provision of the
section titled "price adjustments", or the section(s) titled termination. At the sole option of the
City of Denton, the Contract may be further extended as needed, not to exceed a total of six (6)
months.
Pricin
Firm Price
Pricing and discounts proposed is firm for the initial one-year period specified in the solicitation.
Price decreases are allowed at any time. Price increases shall only be considered as stipulated
below in paragraph #5, "PRICE ADJUSTMENTS".
Price Decreases/Discount Increases
Contractors are required to immediately implement any price decrease or discount increase that
may become available. The City ofDenton must be notified in writing for updating the contract.
Price Adiustments
Prices negotiated for this service must be firm for a period of one year from date of contract
award. Any request for price increase must be based on the Consumer Price Index, Inflation
Calculator, or competitive wage adjustment and capped at 5%. Request must be submitted in
writing with supporting evidence for need of such increase to the Manager of Materials
Management at least 120 days prior to January 1st of each year. Respondent must also provide
supporting documentation as justification for the request.
Upon receipt of such request, the City reserves the right to either: accept the escalation as
competitive with the general market price at the time, and become effective January 1" of the
year the request is made or reject the increases within 30 calendar days after receipt of a properly
submitted request. If a properly submitted increase is rejected, the Contractor may request
cancellation from the Contract by giving the City written notice. Cancellation will not go into
effect for 15 calendar days after a determination has been issued. Pre -price increase prices must
be honored on purchase orders dated up to the official date of the City approval and/or
cancellation. The request can be sent by e-mail to: purchasing c+.citvofdenton.com
Or mail to:
City of Denton
Attn: Manager, Materials Management
901B Texas Street
Denton, Texas 76209
The City reserves the right to accept, reject, or negotiate the proposed price changes.
Rights to Data Documents and Computer Software (Government Entity Ownership)
Any software, research, reports studies, data, photographs, negatives or other documents,
drawings or materials prepared by contractor in the performance of its obligations under this
contract shall be the exclusive property of the City and all such materials shall be delivered to the
City by the contractor upon completion, termination, or cancellation of this contract. Contractor
may, at its own expense, keep copies of all its writings for its personal files. Contractor shall not
use, willingly allow, or cause to have such materials used for any purpose other than the
performance of contractor's obligations under this contract without the prior written consent of
the City; provided, however, that contractor shall be allowed to use non -confidential materials
for writing samples in pursuit of the work.
The ownership rights described herein shall include, but not be limited to, the right to copy,
publish, display, transfer, prepare derivative works, or otherwise use the works.
Adding New Products or Services to the Contract after Award
Following the Contract award, ADDITIONAL recycling services of the same general category
that could have been encompassed in the award of this contract, and that are not already on the
contract, may be added. A formal written request may be sent to successful Contractor (s) to
provide a proposal on the additional services and shall submit a pricing proposal to the City as
instructed. All submitted prices are subject to negotiation with a Best and Final Offer C BAFO").
The City may accept or reject the pricing proposal, and may issue a separate RFP or IFB for the
services requested, after rejecting some, or all, of the pricing proposal. The services covered
under this provision shall conform to the statement of work, specifications, and requirements as
outlined in the request. Contract changes shall be made in accordance with Local Government
Code 252.048.
PAYMENT TO THE CITY OF DENTON:
All proposals shall specify terms and conditions of payment, which will be considered as part of,
but not control, the award of proposals. City review, inspection, and processing procedures
ordinarily require thirty (30) days after receipt of invoice, materials, or services. Proposals
which call for payment before thirty (30) days from receipt of invoice, or cash discounts given
on such payment, will be considered only if, in the opinion of the Purchasing Manager, the
review, inspection, and processing procedures can be completed as specified.
Invoices shall be sent directly to the City of Denton Accounts Payable Department, 215 E
McKinney St, Denton, TX, 76201-4299. A pro -forma invoice shall be sent to the contract
administrator. It is the intention of the City to make payment on completed orders within thirty
(30) days after receipt of invoice or items; whichever is later, unless unusual circumstances arise.
Invoices must be fully documented as to labor, materials, and equipment provided, if
applicable, and must reference the City of Denton Purchase Order Number in order to be
processed. No payments shall be made on invoices not listing a Purchase Order Number.
Upon contract award, suppliers are encouraged to receive payments through direct deposit.
Additional information regarding direct deposit payments is available at
www dentonpurchasing.com
TAX EXEMPTION:
The City qualifies for sales tax exemption pursuant to the provisions of Article 20.04 (F) of the
Texas Limited Sales, Excise and Use Tax Act, Any Contractor performing work under this
contract for the City may purchase materials and supplies and rent or lease equipment sales tax
free. This is accomplished by issuing exemption certificates to suppliers. Certificates must
comply with State Comptroller's ruling #95-0.07 and 995-0.09.
INSURANCE REQUIREMENTS AND
WORKERS' COMPENSENTATION REQUIREMENTS
Respondent's attention is directed to the insurance requirements below. It is highly
recommended that respondents confer with their respective insurance carriers or brokers to
determine in advance of Proposal/Bid submission the availability of insurance certificates and
endorsements as prescribed and provided herein. If an apparent low respondent fails to comply
strictly with the insurance requirements, that respondent may be disqualified from award of the
contract. Upon contract mvard, all insurance requirements shall become contractual
obligations, which the suceessfrd contractor shall have a duly 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 tire
City, Owner, the minimum insurance coverage as indicated hereinafter.
As soon as practicable after notification of contract award, 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, Contractors are strongly advised to make
such requests prior to proposallbid opening, since the insurance requirements may not be
modified or waived after proposallbid opening unless a written exception has been submitted
with the proposal/bid. 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. ,
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 spec (cations 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- VIIA 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, 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
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.
M Professional Liability Insurance
Professional liability insurance with limits not less than $1000.000.00 per claim with
respect to negligent acts, errors or omissions in connection with professional services is
required under this Agreement.
formation
CITY OF DENTON
RFP FOR 5047 IRS Section 125 Plan Administration
ATTACHMENT B
BUSINESS OVERVIEW QUESTIONNAIRE AND FORMS
1. Contractor Name: PayFlex Systems USA, Inc.
2. Address (Principal Place of Business): 10802 Famam Drive, Suite 100, Omaha NE 68154
3. Does your company have an established physical presence in the State of Texas, or the
City of Denton? No
4. Tax Payer ID#: 91-1774434
5. Email Address of Primary contact: khitzemannpavflex.com
6. Website Address: www.healthhub.com
7. Telephone: (800) 284-4885
8. Fax: (402) 231-8610
9. Other Locations:
Colorado
7852 South Elati Street, Ste 200
Littleton, CO 80120
Illinois
120 S. Riverside Plaza, Suite 2100
Chicago, IL 60606
Maryland
13511 Label Lane, Ste 200
Hagerstown, MD 21740
lo. Organization Class: Corporation
11. Date Established: 1987
12. Former Business Name: Not applicable.
13. Date of Dissolution: Not applicable.
14. Subsidiary of: Aetna
RFP 95047
CITY OF DENTON
RFP FOR 5047 IRS Section 125 Plan Administration
15, Historically Underutilized Business: No
16. Key Personnel and Responsibilities:
Please detail responsibilities with the name of each key personnel.
James Handy — Client Services Manager (CSM
As your CSM, James Handy is responsible for the daily, operational aspects of your
program and will facilitate your implementation activities. James is also tasked with
marshaling resources throughout the PayFlex organization to meet your ongoing
operational business requirements. As necessary, other team members will be available
to assist James. This includes IT resources, file transmission experts and operational
management team members. James brings in the appropriate resources as needed to
ensure a successful relationship with The City of Denton. James has been City of
Denton's CSM since 2011.
Kevin Hitzemann — Vice President National Sales
Kevin Hitzemann is your ongoing strategic point of contact. Kevin is tasked with
marshaling resources throughout the PayFlex organization to meet your ongoing strategic
business requirements. Kevin has been City of Denton's strategic point of contact since
2002.
17. Has your company filed or been named in any legal judgments involving your
company and the Owner on a contract within the last five years under your current
company name or any other company name? If so provide details of the issues and
resolution if available. Include lawsuits where Owner was involved.
PayFlex has not been named in any legal judgments.
18. Please provide at least (3) three references (preferably municipalities). Include
project description, contact names, position, and organization name and telephone
number for each reference listed.
References have been provided under Tab C as requested.
19. Have you ever defaulted on or failed to complete a contract under your current
company name or any other company name? If so, where and why? Give name and
telephone number of Owner.
PayFlex has not defaulted or failed to complete a contract under its current name or any
other company name.
RFP #5047
nnaire
CITY OF DENTON
RFP FOR 5047 IRS Section 125 Plan Administration
ATTACHMENT D
CONFLICT OF INTEREST QUESTIONNAIRE
questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session.
This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a
person who has a business relationship as defined by Section 176.001(1-a) with a local governmental
entity and the person meets requirements under Section 176.006(a).
By law this questionnaire must be filed with the records administrator of the local government entity not later than
the 71h business day after the date the person becomes aware of facts that require the statement to be filed. See
Section 176.006, Local Government Code.
A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An
offense under this section is a Class C misdemeanor.
who
local
FORM CIQ
OFFICE USE ONLY
;Received
F1 Check this box if you are filing an update to a previously flied questionnaire.
(The law requires that )rou file an updated completed questionnaire with the appropriate filing authority not later than the T" business day
after the date the originally filed questionnaire becomes incomplete or inaccurate.)
3
Name of local government officer with whom filer has an employment or business relationship.
Name of Officer
This section, (item 3 Including subparts A, B, C & D), must be completed for each officer with whom the filer has an employment or other
business relationship as defined by Section 170.001(1-a), Local Government Code. Attach additionai 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 filer of the questionnaire?
0 Yes 0 No
B. Is the filer of the questionnaire 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 0 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 10 percent or more?
Yes = No
D. Describe each affiliation or business relationship.
RFP #5047
September 28, 2012
Date
Insurance Documentation
Certificate of
SAM
Insurance
xp U PnRxjATJDN ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
........
I,.-'DIil
ery.+�•>ua---- .
CERTIFICATE DOES NOT AMEND EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLIU&S BbLvw.
COMPANIES AFFORDING COVERAGE
Corporate Risk Management — RE2T Company
Aetna Inc. Letter A -Sr. PAUL FIRE & MARINE INSURANCE COMPANY
151 Farmington Avenue Company
Hartford, CT 06156 Letter
Company
Letter _
=[l�I�EI�1T'tTE:'A,
Aetna Inc. and its Affiliated Companies Including Pa;iex Evidence of Fidelity Bond coverage including Employee
Holdings Inc, PaYFlex Systems USA Inc, Blackstone Dishonesty Coverage.
Insurance Inc and Canopy Acquisition LLC
151 Farmington Avenue
Hartford, CT 06156
THIS IS TO CERTIFY THAT PODCIES OF INSURANCE IISTBD BELOW HAVE BEEN ISSUEDTO
THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING
ANY RECIUIRE.MENC, TERM OR CO.VDmION OF MY CONTRACT OR OTHER DOCUMENT WHH
RPSPaer To WHICH THIS CERTIFICAIS MAY BE ISSUED ORMAY PERTAIN. THE INSURANCE
AFFORDHDBYTHE POLICIESDESCRfeEDHER UN IS SUBJECT TO ALL THE TERMS•
B%CWS..... ANDCONDIIONSOF SUC [POLICIES.
-- - 191AeX=. �-oPFE4�Ttv1'—" RSNIR�TAQN Bu.RY.i3Mrrs- —""L`
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COMPREHENSIVE
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BACK OCCURRENCE
PRODUCTS'COMPLETEDOPERATIONS
rReDAMAGE(AWpoaBre)
CONTRACTUAL
MED. EXP. (Any Pne gm*
OTHER
COMBINED SINGLE LHGT
AUTOMOBILE LLUIHATY
(PERACCIDENT)
ANYAUTO
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AUTOMEDICAL PAYM8NT5
OTHER
EACHOCCURRHVCE
EXCESS LLABMITY (UMBRELLA)
AGGRHGATE
STATUTOKYLLWTS
WORKERVCOMPENSATION
AND BACHACCIDENT
EMPLOYERS' LIABILITY I DISEASE-POLICYI.WT
DISEASE-EACHBMNAYBE _
A FIDELITY BOND 469 BD 2023 10/01/11 10/01/12 Empioya $1000,000
469 BD 2024 10/01/11 10/01112 Computer $I,000,000
S140UM LA-` OF THE
DESCRIBED
ES _ ---. H
`^ _ �EXPIRA ONDA11ITHRONOB THE ISSUINOCOCIBSBE alENEDBEFORBTAe
30 DAYS WRITTEN
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al DAYS U TI'OMAH, SUCH
H UnCR SHALL IMPOSENO OBLIGATION
ION OR PFT.
BUTFAILURH IOAZULSUCNNTHU ESHALL IMPOSE E TSOR ION OR
LIABILITY OF ANY KIND UPON THB COMPANY- 1T5 AGENTS OR
Evidence of Coverage REPRESENTATIVE — --
04/13/2012
04/13/2012
Certificate of Insurance
mnnrn rc Ica IGn Ac A mATTER OF INFORMATION ONLY AND ODNFERS NO RIGHTS UPON THE CERTIFICATE HOLDER THIS CERTIFICATE DOES NOT AMEND,
,...--..----- .._
EXTEND OR ALTERTHE COVERAGE AFFORDED BY THE POLICIES BELOW.
COMPANIES AFFORDING COVERAGE
Marsh USA Inc.
Company
Letter A - ACE AMERICAN INSURANCE COMPANY
One State Street
Hartford, Cr 06103
Company
AND INDUSTRY INSURANCE CO.
Letter B -COMMERCE
Company,
Letter
:_saBll+rFoii'oFoen+iiiNsft(rrAIiaAsTirEenc[rc►AL
Evidence of Aetna's General Liability, Automobile Liability,
Aetna Inc. and Its Affiliated Companies including PayFlex
Holdings Inc, PayFlex Systems USA Inc, Blackstone
and Excess Liability insurance coverages.
Insurance Inc and Canopy Acquisition LLC
151 Farmington Avenue
Hartford, CT 06156
THIS IS TO CER7IFYTHAT POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSIEDTOTHE
INSURED NAMED ABOW FORTHE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY
REQUIREMENT, TERM OR CONDmON OF ANYCONTRACr OROTHER DOCUMENT WrrH RESPECT
ORMAYPEgrAIN
rOWHWK-nMCEgnFICATe MAY BE ISSUED MSURAN
EDVAMSIONS,ANDFORDEO BY
THE POLICIES DESCRIBED HEREIN IS SUBIECTTOALLTHE TERMS
CONDITIONS OF SUCH POLICIES.
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EQPINSiBRANCE
DATE
COMMERCIAL GENERAL LIABILITY
GENERAL AGGREGATE SI,MAeO
PROWCTS{OMP/OP ACG.
2, 000
)( COMPREHENSIVE
04Nll13
PERSONAL IADV. INWRY
Stp00,C00
EACH OCCURRENCE
51,000AO0
A
X PREMISE -OPERATIONS
HDOG205014-2
O4NU12
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FIRE DAMAGE (Alryaie Ere)
5500,000
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COMBINED SINGLE LIMR
S1,OW,000
(PERACCIDENT)
A
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ISA M0706252-6
04=2
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MEOPAY
510,000
OTHER
EXCESS LIABILITY(UMBRELLA)
04101A3EACH
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04101(12
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.AtITN6iRI3EBjIt:R.ii;€?�NTATIIlE==�_=�. -- _ .
Evidence of Insurance,,,(()
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Issued on 04113/2012
Client#: 83469
AETNINC
ACORD CERTIFICATE OF LIABILITY INSURANCE a1s�2o�2
THIS CERTIFICATE IS ISSUED ASA MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. , ,,,,i ,rn.aa wetvcn. snh)art h
the terms and conditions of the policy, certain
certificate holder in lieu of such endorsement(
Willis of Connecticut, LLC
185 Asylum Street
26th Floor
Hartford, CT 06103.3708
Aetna Inc. and Its Affiliated Companies
151 Farmington Avenue, RE2T
Hartford, CT 06156
tNSUncu'rna pmrurpoeJ .....a. --o..__•___... ----- -- --
may require an endorsement. A statement on this certificate does not confer rights to the
860
NI IMRFR-
COVERAGES CERTIFICATE NUMBEn: '—"-""""----
ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN
CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
-THE
INDICATED. NOTWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY
DESCRIBED
HEREIN IS SUBJECT TO ALL TERMS,
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES
SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS
TRR ADO UB pppp
TYPE OF INSURANCE POLICY NUMBER MMID MMID
LIMITS
EACH OCCURRENCE $
GENERAL LIABILITY
ene9 S
COMMERCIAL GENERAL LIABILITY
PREMISES Fa£aawT,Ei
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GENERALAGGREGATE S
pRODUCTS-COMFIOPAGG $
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$
POLICY M LOG
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ALL OWN9D SCHEDULED
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pees
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E.L. DISEASE -EA EMPLOYEE b
(Mandatory in NH)
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OF OPERATIONS bN
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DESCRIMION
8879142012 21012012V21011201
$10,000,000 Per Claim
A Managed Care
$10,000,000 Aggregate
Professional
Liability
DEBCIep,noN of OpeRATMSILOCATIONS i VEHICLES (At1mh ACORD 701, Addlgonal Ru,,no Schedule, if more apace U required)
Occurrence Coverage.
Aetna Affiliated companies Including PayFIGX Holdings, Inc.; PayFlex
This policy provides coverage to all
Systems USA, Inc.; Blackstone Insurance Inc and Canopy Acquisition I.I.C.
Evidence of Coverage
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
ACCORDANCE WITH THE POLICY PROVISIONS.
REPRESENTATNE
®1998.2010 ACORD CORPORATION. All riohts reserved.
ACORD 25 (2010105) 1 of 1 The ACORD name and logo are registered marks of ACORD
xen�Deemeaaoeq�0 . W no a
Certificate of Insurance
INKS CERTIFICATE ISSUED ASA MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND,
cXl c1YU U(ALI CK Inc W VCIfKUC wrrvnwcv o, , nc rw...w.+�w...
COMPANIES AFFORDING COVERAGE
Marsh USA Inc.
Company
One State Street
Letter A - ACE AMERICAN INSURANCE COMPANY
Hartford, CT 06103
Company
Letter
Company -
Letter C- INDEMNITY INSURANCE CO. OF NORTH AMERICA
Aetna Inc, and its Affiliated Companies Including PayFlex
=i1EscNlplxaN_e�aP1€A�:'Di(s ncJras/51t1841_0I-CW LI1�:--'-='.
Evidence of Aetna's Workers' Compensation/Employer's
Holdings Inc, PayFlex Systems USA Inc, Blackstone
Uabiilty insurance coverages.
Insurance Inc and Canopy Acquisition LLC
151 Farmington Avenue
Hartford, CT 06156
THIS LSTO CERTIFYTHAT POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE
WSIRED NAMEOABOVE FORTHE POLICY PERIOD INDICATED. NOTWITHSTANDUIGANY
REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT
TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY
THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS, AND
CONDITIONS OF SUCH POLICIES
1
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FIRE DAMAGE"aReJRe)
CONTRACTUAL
MED.EXP.(Arq'aaep�)
OTHER
AUTOMOBILE LIABILITY
COMBINED SINGLE LIMIT
ANYAUTO
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PER PERSON)
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AUTO MEDICAL PAYMENTS
OTHER
EXCESS LIABILITY (UMBRELLA)
EACH OCCURRENCE
AGGREGATE
A
C
A
WORKERS'COMPENSATION
AND
EMPLOYERS'LIABILITY
SCF C4311904-7(NJ, WI)
W(.RC431iW-A(ONMr)
WLRC4311919.9(AZ,CAMA)
U4p1/12
04flH113
EL EACH ACCIDENT sIXUAN
"DISEASE-POLICYLFiIT 11.01HIAO
EL DISE'Ag#4 EMPUTYEE 1
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-- :^_ _ :..�_ _..__ _ _._--.� _.:
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELED BEFORE THE EXPIRATION DATE
THEREOF NOTICE WILL BE DEL(VEREO IN ACCORDANCE LYDH THE POLICY PROWSIONS.
_ . �_____...
1R1L9OLgTEQ'�01TJWVA—_ _ ==.— " - -- -'---.
Evidence of Insurance
0", Q 2
Issued on 04113/2012