Police Motorcycles-5119-Award/Ordinance/PricingORDINANCE NO. 2013-028
AN ORDINANCE ACCEPTING SEALED PROPOSALS AND AWARDING A CONTRACT FOR
THE PURCHASE OF COMMANDER 1 POLICE MOTORCYCLES FOR THE CITY OF
DENTON POLICE DEPARTMENT; AND PROVIDING AN EFFECTIVE DATE (RFP 5119 -
POLICE MOTORCYCLES AWARDED TO VICTORY POLICE MOTORCYCLES IN THE
ESTIMATED AMOUNT OF $210,000 FOR THE REPLACEMENT OF SIX MOTORCYCLES
OVER A FIVE (5) YEAR PERIOD).
WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for
the purchase of Insurance Consultant Services in accordance with the procedures of State law and
City ordinances; and
WHEREAS, the City Manager or a designated employee has received and reviewed and',
recommended that the herein described proposals are the most advantageous to the City considering
the relative importance of price and the other evaluation factors included in the request for proposals;
and
WHEREAS, the City Council has provided in the City Budget for the appropriation of funds
to be used for the purchase of the materials, equipment, supplies or services approved and accepted
herein; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The items in the following numbered request for proposal for materials,
equipment, supplies or services, shown in the "Request for Proposals" on file in the office of the
Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City
considering the relative importance of price and the other evaluation factors included in the request
for proposals.
RFP
NUMBER CONTRACTOR AMOUNT
5119 Victory Police Motorcycles $210,000
SECTION 2. By the acceptance and approval of the above numbered items of the submitted
proposals, the City accepts the offer of the persons submitting the proposals for such items and
agrees to purchase the materials, equipment, supplies or services in accordance with the terms,
specifications, standards, quantities and for the specified sums contained in the Proposal Invitations,
Proposals, and related documents.
SECTION 3. Should the City and person submitting approved and accepted items and of the
submitted proposals wish to enter into a formal written agreement as a result of the acceptance,
approval, and awarding of the proposals, the City Manager or his designated representative is hereby
authorized to execute the written contract; provided that the written contract is in accordance with
the terms, conditions, specifications, standards, quantities and specified sums contained in the
Proposal and related documents herein approved and accepted.
SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the
authority to take any actions that may be required or permitted to be performed by the City of Denton
under RFP 5119 to the City Manager of the City of Denton, Texas, or his designee.
SECTION 5. By the acceptance and approval of the above enumerated bids, the City
Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with
the approved bids.
SECTION 6. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the 5M- day of , 2013.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
3-O
CONTRACT BY AND BETWEEN
CITY OF DENTON, TEXAS AND _
POLICE MOTORCYCLES
THIS CONTRACT is made and entered into this 5 day of February A.D., 2013, by and
between Victory Police Motorcycles acorporation, whose address is 1106 N. Anita Ave.,
Tucson, AZ 85705, hereinafter referred to as "Supplier," and the CITY OF DENTON, TEXAS,
a home rule municipal corporation, hereinafter referred to as "City;" to be effective upon
approval of the Denton City Council and subsequent execution of this 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
Supplier shall provide products in accordance with the City's RFP # 5119 — POLICE
MOTORCYCLES, a copy of which is on file at the office of Purchasing Agent and incorporated
herein for all purposes. The Contract consists of this written agreement and the following items
which are attached hereto, or on file, and incorporated herein by reference:
(a) City of Denton's RFP 45119 (on file at the office of the Purchasing Agent)
(b) Standard Terms and Conditions (Exhibit "A")
(c) Special Terms and Conditions (Exhibit "B")
(d) Form CIO — Conflict of Interest` Questionnaire (Exhibit "C").
(e) Supplier's Proposal. (Exhibit "D");
These documents make up the Contract documents and what is called for by one shall be
as binding as if called for by all. In the event of an inconsistency or conflict in any of the
provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving
precedence first to the written agreement then to the contract documents in the order in which
they are listed above. These documents shall be referrgd to collectively as "Contract
Documents."
RFP 5119 Page 1 of 18
i
IN WITNESS WHEREOF, the parties of these presents have executed this agreement in
the year and day first above written.
SUPPLIER
B
AUTHORIZED SIGNATURE
Date:
Naame: i (u 15tt(We r
Title: Up
PHONE NUMBER
5�D-,;wA-(a3q9
FAX NUMBER
CITY OF DENTON, TEXAS
ATTEST:
JENNIFER WALTERS, CITY SECRETARY BY
GEQn6k4V
RGE C. CAMPBELL, CITY MANAGER
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
RFP 5119
Date: oG
Z43
Page 2 of 18
s
Exhibit A
City of Denton
Standard Purchase Terms and Conditions
These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other
requirementsincluded in the City of Denton's solicitation are applicable to ContractsTurchase Orders
issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller herein after
referred to as the 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 Supplier'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.
By submitting an Offer in response to the Solicitation, the Supplier 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 toa
Solicitation to purchase Goods, and Sections 9, 10, 11 and 22 shall apply only to a Solicitation to
purchase Services to be performed principally at the City's premises or on public rights-of-way.
1. SUPPLIER'S OBLIGATIONS. The Supplier shall fully. and timely provide all deliverables described in the
Solicitation and in the Supplier's Offer instrict accordance with the terms, covenants, and conditions of the Contract
and all applicable Federal, State, and local laws, rules, and regulations.
2. EFFECTIVE DATFJTERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of
thedatethe contract is signed by the City, and shall continue in effect until all obligations are performed in
accordance with the Contract
3. SUPPLIER TO PACKAGE DELIVERABLES: The Supplier 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 Supplier'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 hearing
the packing list The -Supplier 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 Supplier is not authorized to ship the
deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables.
5. TITLE & RISKOF LOSS; Title to and risk'ofloss 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 Supplier'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 slip the deliverables The place of delivery. shall be that
setforth 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 Supplier's, or the Supplier's
Subcontractor's, facilities, or the deliverables at the Supplier's,: or the Supplier's Subcontmctoes; premises, the
Supplier shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to
the City to facilitate such inspection.
RFP 5119 Page 3 of 18
s _
4
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 Supplier shall not have the right to substitute a conforming tender, provided, where the
time for performance hasnotyet expired,. the Supplier may notify the City of the intentiontocure 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 Supplier access to the sites where the
Supplier is to perform the services as required in order for the Supplier to perform the services in a timely and
efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The. Supplier
.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 Supplier's obligationsunder the contract. The Supplier 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.
10. WORKFORCE.
A. The Supplier shall employ only orderly and competent workers, skilled in the performance of the services which
they will perform under the Contract:
B. The Supplier, its employees, subcontractors, and subcontractor's employees may not while engaged in
participating or responding to a solicitation or while in the course and scope of delivering goods or services under a
City of Denton contract or on the City's property.
i. use or possess a firearm, including a. concealed handgun that is licensed under state law, except as
required by the terms of the contract; or
ii: use or possess alcoholic or other intoxicating beverages, illegaldrugs 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 Supplier 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 Supplier 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 Supplier 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 onor atter November 6, 1986, who will perform any labor or services under the Contract and
the Illegal Immigration Reform and Immigrant. Responsibility Act of 1996 ("IHURA) enacted on September 30,
1996..
11. COMPLIANCE WITH HEALTH,. SAFETY, AND ENVIRONMENTAL REGULATIONS: The Supplier,
if s Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local
health, safety,and. environmental .laws,ordinances, rules and regulationsin the. performanceof 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 Supplier 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 Supplier's obligations under this paragraph.
Environmental Protection: The supplier 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 Supplier shall submit separateinvoices 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, andthetime of thepoint 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 Supplier's name,
RFP 5119 Page 4 of 18
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 Supplier'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 worksite.. .
D. Unless otherwise expressly authorized in the Contract, the Supplier 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
famish atax exemption certificate upon request.
13. PAYMENT:
A. All proper invoices need to be sent to Accounts Payable. Approved invoices will bepaid 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,4per 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 Supplier 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
Supplier to such extent as may be necessary on account of:
i. delivery of defective or non -conforming deliverables: by the Supplier;
ii. third party claims, which are not covered by the insurance which the Supplier. is required to
provides are filed or reasonable evidence indicating probable filing of such claims;
iii. failure of the Supplier to pay Subcontractors, or for labor, materials or equipment;
iv. damage to the property of the City or the City's agents, employees or suppliers,which is not
covered by insurance required to be provided by the. Supplier;
v. reasonable evidencethat the Supplier'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 Supplier to submit proper invoices with purchase order number, with all required
attachments and supporting
documentation; or
Al. failure of the Supplier to comply with my material. provision of the Contract Documents.
E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquenttaxes, 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 Supplier agrees thatthere 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 Supplier. The City shall
provide the Supplier written notice of the failure of the City to make an adequate Appropriation for any fiscal year to
pay: theamounts due under the Contract, or the reduction of any Appropriation toan amount insufficient to permit
the City to pay its. obligations under the Contract. In the event of none or inadequate appropriation of fiords,there
will be no penalty nor removal fees charged to the City.
14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid
by the Supplier, unless otherwise stated in the contract terms.
15. FINAL PAYMENT AND CLOSE-OUT:
A. If DBE/MBE/WBE Program Plan is agreed to and the Supplier has identified Subcontractors, the Supplier 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
RFP 5119 Page 5 of 18
if the Supplier is not in compliance with the requirements as accepted by the City.
B. The making and acceptance of final payment will constitute:.
is a waiver of all claims by the City against the Supplier, 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 Supplier to comply with the Contract or the terms of any warranty specified herein, (4) arising
from the Supplier'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 Supplier 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 Supplier 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 Supplier 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 Supplier shall: retain such books; records, documents and other evidence pertaining to the Contract
period and five years thereafter, exceptif 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 Supplier 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 bebome 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 bome. by the Supplier which must bepayable within. five. (5)..
business days of receipt of an invoice.
B. Failure to comply with the provisions of this section shall be amaterial 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 -
18. SUBCONTRACTORS:
A. If the Supplier identified Subcontractors in DBE/MBE/WBE agreed to Plan, the Supplier shall comply with all
requirements approved by the City. The Supplier shall not initially employ any Subcontractor except as provided in
the Supplier's Plan. The Supplier shall not substitute any Subcontractor identified in the Platy 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 Supplier is additionallyrequired to submit a monthly Subcontract Awards. and Expenditures.
Reportto-the Procurement Manager, no later than the tenth calendar day of each month.
-.. - - -
B. Work performed for the. Supplier by a Subcontractor shall be pursuant to a written contract between theSupplier....... -. _ -
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 accordancewith
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 Supplier. 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 Supplier in sufficient time to enable the Supplier 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 Supplier, with the City being a namedinsuredas its interest shall appear; and
v. require that the Subcontractor indemnify and hold the City harmless to the same extentas the Supplier is
required to indemnify the City.
C. The Supplier shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the
..Supplier is responsible for the Supplier'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
RFP 5119 Page.6 of 18
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 Supplier shall pay each Subcontractor its appropriate share of payments made to the Supplier not later than
ten (10) calendar. days after receipt of payment from the .City.
19. WARRANTY -PRICE:
A. The Supplier warrants the prices quoted in the Offer are no higher than the Supplier's current prices on orders by
others for like deliverables under similar terms of purchase.
B. The Supplier certifies that the prices in the Offer have been arrived at independently without consultation,
communication, or agreement for the purpose of restricting competition, as to any matter relating to: such fees with
any other firm or with any competitor.
C. In addition to any other remedy available, the City may deduct from any amounts owed to the Supplier, or
otherwise recover, any amounts paid for items in excess of the Supplier's current prices on orders by others for like
deliverables under similar terms of purchase:
20. WARRANTY — TITLE: The Supplier warrants that it has good and indefeasible title to all deliverables
famished under the Contract, and that the deliverables are free and clear of all liens; claims, security interests and.
encumbrances: The Supplier shall indemnify and hold the City hamtless from and against all adverse title claims to
the deliverables.
21. WARRANTY — DELIVERABLES The Supplier 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
Supplier, 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 Supplier 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 beat least one year from the date of
acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during thewarranty
period, one or more of the above warranties are breached, the Supplier shall promptly upon receipt of demand either
repair the non -conforming. deliverables, or replace the non-commining deliverables with fully conforming.
deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repay or
replacement, including but not limited to, any packaging and shippingcosts shall be bome exclusively. by the
Supplier. The City shall endeavor to give the Supplier 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 Supplier is unable or unwilling to repair or replace defective or non -conforming deliverables as required by
- the City, then in addition to any otheravailableremedy, the City may reduce the quantity of deliverables it may be
required to purchase under the Contract from the Supplier: and purchase conforming deliverables from other
sources. In such event the Supplier 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 Supplier is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty,
the Supplier 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 Supplier 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 Supplier 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, Hiles or regulations.
A. The Supplier 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. -
S. 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 moreof the above warranties are breached; the Supplier shall promptly
.upon receipt of demand perform the services again in accordance with above standard at no additional cost to the
RFP 5119 Page 7 of 18
City. All costs incidental to such additional performance shall be borne by the Supplier. The City shall endeavor to
give the Supplier 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 Supplier 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 Supplier, and purchase conforming services from other sources. In..
„- such event, the Supplier 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 nonconforming deliverables, the City prefers to
accept it, the City may do so. The Supplier 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 defectiveor non -conforming deliverables. If the acceptance occurs after final payment; such
amount will be refunded to: the City by the Supplier.
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 speed atter 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 Supplier 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 Supplier will cease all: work_ _ -
until notified by the City that the violation or unsafe condition has been corrected. The Supplier shall be liable for all -
costs incurred by the City as a result of theissuance of such Stop Work Notice.
26. DEFAULT: The Supplier shall be in default under the Contract if the Supplier (a) fails to fully, timely and -
faithfullyperform any of its material obligations order 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 Supplier's Offer, or in .any report or deliverable required to be
submittedby the Supplier to the City.
27. TERMINATION FOR CAUSE- In the event of a default by the Supplier, 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 Supplier, 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 Supplier's default, including,without limitation, cost of cover, _....
reasonable attorneys' fees, court costs, and prejudgment and, post judgment interest at die maximum lawful rate. :.
Additionally, in the event of a default by the Supplier, the .City may remove the Supplier from the City's vendor list
for three (3) years and any Offer submitted by the Supplier 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, withoutcause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of
termination,. the Supplier 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 Supplier, 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 b3' the Supplier on any Offer or in any report or deliverable required to be
submitted by the Supplier to the City shall be grounds for the termination of the Contract for cause by the City and
may result in legal action..
RFP 5119 Page 8 of 18
30. DELAYS:.
A. The City may delay scheduled delivery or other due dates bywritten notice to the Supplier if the City deems itis
in itsbest interest If such delay causes anincrease in the cost of the work under the Contract, the City and the
Supplier shall negotiate an equitable adjustment for costs incurred by the Supplier in the Contract price and execute
an amendment to the Contract The Supplier 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 my adjusted price shall be handled under the
Dispute Resolution pmcess specified in paragraph 49. However; nothing in this provision shall excuse the Supplier
from delaying the delivery as notified
B. Neither. party shalt be liable for any default or delay in the performance of its obligationsunder 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 W'the City, the Supplier,
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 Supplier, they Supplier'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. SUPPLIER SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS
.. SUCCESSORS,ASSIGNS,OFFICERS, EMPLOYEES AND ELECTED OFFICIALffHARMr ESS FROM AND AGAINST ALL.
INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT
OF THE SUPPLIER, OR THE SUPPLIER'S AGENTS, EMPLOYEES OR SUBCONTRACTORS,. IN THE _
PERFORMANCE OF THE SUPPLIER'S. OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL. BE
DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE SUPPLIER (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 the solicitation document Thesuccessful firm shall procure and maintain insurance of the
types and in the ntinimum amounts acceptable to the City of Demon, 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 Supplier 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 Supplier 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 Supplier 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 Supplier 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 Supplier hereunder andshall not be construed to be a limitation of liability on the part of the,
Supplier.
iv. The Supplier must submit certificates of insurance to the City for all subcontractors prior to the
subcontractors commencing work on the project.
v. The Supplier's and all subcontractors' insurance coverage shall be written by companies licensed to do
business in the State of Texas at thetime the policies areissuedand shall be written by. companies with
RFP 5119 Page 9 of 18
AAM. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by
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:
Cityof 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 Supplier,
shall be considered primary coverage as applicable.. 1 - -
viii. If insurance policies. are not written for amounts agreed to with the .City, the Supplier 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 agreedupon 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 particularpolicy-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 theeffective 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 Supplier.
xi. The Supplier 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 Supplier 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 Supplier 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 Supplier.
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 Supplier which arises under or.
concerns the Contract, or which could have a materialadverse affect on the Supplier's ability to perform thereunder,
the Supplier shall give written notice thereof to the City within ten (10) calendar days after receipt of notice by the
- Supplier. 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 trail 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,
Texas76201.
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) businessdays after
posmtarked if sent by U.S. Postal Service Certified or Registered Mail, Return Receipt Requested. Notices delivered
by other means shall be deemeddelivered uponreceiptby the addressee. Routine communications may be made by -
first class mail, telefax, or other commercially accepted means. Notices to the Supplier shall be sent to the address
specified in the Supplier's Offer, or at such other address as a party nay notify the other in writing. Notices to the
City shall beaddressed 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 - -
Supplier to the City shall become property of the City upon receipt. Any portions of such material claimed by the
Supplier to be proprietary. must be clearly marked as such. Determination of the public nature' of the material is...
RFP 5119 Page 10 of 18
subject to the Texas PublicInformationAct, Chapter 552, and Texas Govemment Code
36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Supplier represents and warrants to the
City :that: (i) the Suppliershall provide the City good and indefeasible title to the deliverables and(ii)the
deliverables supplied by the Supplier in accordance with the specifications in the Contract will not infringe; directly
or contributorily, any patent, trademark, copyright, trade secret, or any other intellectualproperty right of any kind
of any third parry; that no claims have been made by any person or entity with respect to the ownership or operation
of the deliverables and the Supplier does not know of any valid basisfor any such claims. The Supplier 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 exerciseanywhere 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 Supplier's breach of any of Supplier's representations or warranties stated in this Contract In the eventof
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-counselon the City's behalf. Further, Supplier agrees that the City's specifications regarding the
deliverables shall in no way diminish Supplier'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
Supplier.
37, CONFIDENTIALITY: In order to provide the deliverables to the City; Supplier may require access to certain
of the City's and/orits licensors' confidential information (including inventions; employee information, Wade
secrets, confidential know-how. confidential business information, and other information which the City or its.
licensors consider confidential) (collectively, "Confidential Information"). Supplier 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 Supplier (including its employees, subcontractors, agents; or representatives) agreesthat 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 permittedunderthis 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 Supplier promptly
notifies the City before disclosing such information so as to permit. the City reasonable time to seek an appropriate
protective order. The Supplier agrees to use protective measures no less stringent than the Supplier 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 continuedconfidentiality 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 Supplier agrees to disclose 'such
Patentable subject matter to the City. Further, if requested by the City,. the. Supplier' agrees to assign and, if
- - _ necessary, cause each of its employees to assign the entire right, title, andinterest 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 Supplier agrees that upon their
creation. such deliverables shall be considered as work made -for -hire by the Supplier 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 -hive, the Supplier
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 Supplier 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 Supplier 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
RFP 5119 Page I I of 18
registration, trademark registration and/or protection, letters patent, or my similar rights in my 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. Supplier'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. snail continue after the terminationof this Contract with respect to such deliverables. In the event the City
should not seekto obtain copyright protection, mask work registration orpatent. protection for any of the
deliverables, but should desire to keep the same secret, the Supplier 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.
40. ADVERTISING: The Supplier shall notadvertiseor 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 Supplierwarrants that no person orselling 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 Supplier 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 Supplier, or otherwise recover, the fall amount of such. commission, percentage,
brokerage or contingent fee.
42. GRATUITIES: The City may,by written notice. to the Supplier, cancel the Contract without liability if it is
determined by the City that gratuities were offered or given by the Supplier or anyagent or representative of the -
Supplier 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 Supplier 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 Supplier shall render the. Contract voidable by the
City. The Supplier shall complete and submit the City's Conflict of Interest Questionnaire (Attachment B).
44. INDEPENDENT SUPPLIER: The Contractshall not be construed as creating an employer/employee
relationship, a partnership, or a joint venture. The Supplier's sfrices shall be those of an independent supplier. The
Supplier 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 employce benefit The City shall not have supervision and control of
the Supplier or any employee of the Supplier, and it is expressly understood that Supplier 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
45. ASSIGNMENT -DELEGATION: The Contractshall be binding upon and ensure to the benefit of the City and
the Supplier 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 Supplier without the prior written consent of the City.
Any attempted assignment or delegation by the. Supplier shall be void unless made in conformity with this
paragraph: The Contract isnot intended to confer rights or benefits on any person, firm or entitynot aparty hereto; it
being the intention of the parties that there are no third panty beneficiaries to the Contract.
46. WAIVER:. No claim or right arising out of abreach of the Contract can be discharged in whole orin part by a
RFP 5119 Page 12 of IS
waiver orrenunciation 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 Supplier 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 ordifferent character: -
47. MODIFICATIONS: The Contract can be modified oramended only by a writing. signed by both parties. No
pre-printed or similar terms on any the Supplier 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 isintended 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 tern used in the Contract. Although the Contract may have been
substantially drafted by one party, itis the intent of the parties: that all provisions be construed in a manner to be fair
to both parties, reading no provisions more strictlyagainst one party or the other. whenever. a tern defined by the
Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall
control, unlessotherwise 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 limitationsor 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 ofthedispute. If within thirty (30) calendar days after such meeting,-theparties 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 trainedin mediation skills to assist with resolution of
the dispute. Should they choose this option; the City and the Supplier agree to act in good faith in the selection of the
mediator andto give consideration to qualified individualsnominated 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 partiesfail to agree on a mediator within. thirty (30) calendar days of initiation
of the mediation process; the mediator shall be selected by the Demon 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 Supplier will share the mediator's fees equally and the
parties will bear their own. costs of participation: such as fees for any consultants or atmmeys. 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.CA., 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 inthe courts of Denton County, Texas and the
partiesagreeto 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 beconstrued and enforced as if the Contract - -
did not contain the particularportion or provision held 4o be void. The parties further agreeto refonn 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.
RFP 5119 Page 13 of 18
wing holidays are observed by the City
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 observedon 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 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 its firm and its principals are riot currently suspended or
debarred from doing business with the Federal Govemmem, as indicated by the General Services Administration
List of Patties 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 he 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 anydiscriminatory 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, in addition to the .specific federally funded
requirements.
A. Definitions. As used in this paragraph —
L "Component" means an article, material, or supply incorporated directly into an end product.
ii. "Cost of components" means -
(1) For components purchased by the Supplier, 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 Supplier, all costs associated with the manufacture of thecomponent,
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 endproduct manufactured in the United States, if the cost of its components rima .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
RFP 5119 Page 14 of 18
sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic.. Scrap
generated; collected, and prepared for processingin 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 thearticle is on an approved Governmental list.
D. The Supplier 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 responseto this solicitation, whether amended or not, excep}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 supplier or supplier to be licensed by I
the State of Texas, any and all fees and taxes are the responsibility of the supplier.
59. PREVAILING WAGE RATES: All suppliers 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,
http://www.access.--Do.gov/davisbaconft.htmi
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 Supplier 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 Supplier shall give all notices and comply with all laws and regulations applicable to furnishing and
performance of the Contract r
61. FEDERAL, STATE, AND LOCAL. REQUIREMENTS: Supplier 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. Supplier is responsible for both federal and State
unemployment insurance coverage aid standard Worker's Compensation insurance coverage. Supplier shall -eiso e -
compliance with all federal. and State tax laws and withholding requirements. The City of Denton shall not be liable
to Supplier or its employees for any Unemployment. or Workers' Compensation- coverage, or federal or State
withholding requirements. Supplier shall indemnify the City of Denton and shall pay all costs, penalties,or losses
resulting from Supplier's omission or breach of this Section.
62. DRUG FREE WORKPLACE: The supplier 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 -flee workplace (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 supplier
shall comply with the relevant provisions thereof including any amendments to the final rule that may hereafter be
issued
63. SUPPLIER LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Supplier shall be liable
for all damages to government-owned, leased, or occupied property and equipment caused by the Supplier and its
employees, agents, subcontractors, and suppliers,including any delivery or cartage company, in connection with any
performance pursuant to the Contract The supplier shall notify the City of Denton Procurement Manager in writing
of any such damage within one (1) calendar day.
RFP 5119 Page 15 of 18
64. FORCE MAJEURE: The City of Denton, any Customer, and the Supplier shall not be responsiblefor
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 Supplier will be excused from any farther performance or observance of the
requirements so affected for as long as such circumstances prevail and the Supplier continues to use commercially
reasonable efforts to recommence performance or observancewhenever and to whatever extent possible without
delay. The. Supplier shall immediately notify the City of Deaton Procurement Manager by telephone. (to. be
confirmed in writing within five (5) calendar days of the inception of such occurrence) and describeat 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 requireperformance. by another Party. Bader 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 rightor remedy under the Contract shall operate to limit, impair, preclude,
cancel, waive or otherwise affect such right or remedy. A waiver by a Parryof 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 Supplier 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 Supplier 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
Supplier shall grant access to all books, records and documents pertinent to the Contract to the. CPA, the State "
AudMr of Texas, and any federal governmental entity that has authority to review records due to federal funds
being spentunder the Contract_
RFP 5119 Page 16 of 18
Exhibit B
Special Terms and Conditions
The Ouantities indicated on Exhibit D are estimates based upon the best available information.
The City reserves the right to increase or decrease the quantities to meet its actual needs without
any adjustments in the bid price. Individual purchase orders will be issued on an as needed
basis.
Product Changes During Contract Term
The supplier shall not change specifications during the contract term without prior approval.
Any deviation in the specifications or change in the product must be approved in advance by the
City of Denton. Notice of a change shall be submitted in writing to
dentonpurchasinggcityofdenton.com, with the above file number in the subject line, for review.
Products found to have changed specifications without notification, and acceptance, will be
returned at the supplier's expense. Products that have been installed will be replaced at the
supplier's expense.
Authorized Distributor
The supplier shall be the manufacturer or authorized distributor of the proposed products. The
distributor shall be authorized to sell to the City of Denton, and make available the
manufacturer's representative as needed by the City.
Contract Terms
The contract term will be one (1) year, effective from date of award or notice to proceed as
determined by the City of Denton Purchasing Department. At the City of Denton's option and
approval by the vendor, the contract may be renewed for up to four additional one-year periods,
as further explained in Renewal Options.
Renewal Options
The City of Denton reserves the right to exercise an option to renew the contract of the vendor
for Four (4) additional one (1) year periods if agreed upon in writing by both parties. All terms
and conditions must remain the same for each optional additional renewal year. If the City
exercises the right in writing, the
Price Escalation and De-escalation
The City will implement an escalation/de-escalation price adjustment quarterly. The
escalation/de-escalation will be based upon manufacturer published pricing sheets to the vendor.
The price will be increased or decreased based upon the quarterly percentage change in the
manufacturer's price list. The price adjustment will be determined quarterly from the award
date. Should the change exceed or decrease a minimum threshold value of +/-1%, then the stated
eligible bid prices shall be adjusted in accordance with the published price change. It is the
supplier or the Cities responsibility to request a price adjustment quarterly in writing. If no
request is made, then it will be assumed that the bid price will be in effect. The supplier must
submit or make available the manufacturers pricing sheet used to calculate the bid
Proposal, to participate in the escalation/de-escalation clause.
Total Contract Amount
The contact total estimated amount of $210,000. Pricing shall be per Exhibit D attached.
RFP 5119 Page 17 of 18
Exhibit B
Special Terms and Conditions
The Quantities indicated on Exhibit D are estimates based upon the best available information.
The City reserves the right to increase or decrease the quantities to meet its actual needs without
any adjustments in the bid price. Individual purchase orders will be issued on an as needed
basis.
Product Charm Dunne Contract Term
The supplier shall not change specifications during the contract term without prior approval.
Any deviation in the specifications or change in the product must be approved in advance by the
City of Denton. Notice of a change shall be submitted in writing to
dentonpurchasinena.citvofdenton.com with the above file number in the subject lice, for review.
Products found to have changed specifications without notification, and acceptance, will be
returned at the supplier's expense. Products that have been installed will be replaced at the
supplier's expense.
Authorized Distributor
The supplier shall be the manufacturer or authorized distributor of the proposed products. The
distnbutor shall be authorized to sell to the City of Denton, and make available the
manufacturer's representative as needed by the City.
Contract Terms
The contract term will be one (1) year, effective from date of award or notice to proceed as
determined by the City of Denton Purchasing Department. At the City of Denton's option and
approval by the vendor, the contract may be renewed for up to four additional one-year periods,
as further explained in Renewal Options.
Renewal Options
The City of Denton reserves the right to exercise an option to renew the contract of the vendor
for Five (5) additional one (1) year periods if agreed upon in writing by both parties. All terms
and conditions must remain the same for each optional additional renewal year. If the City
exercises the tight in writing, the
Price Escalation and De-escalation
The City will implement an escalation/do-escalation price adjustment quarterly. The
escalation/de-escalation will be based upon manufacturer published pricing sheets to the vendor.
The price will be increased or decreased based upon the quarterly percentage change in the
manufacturer's price list. The price adjustment will be determined quarterly from the award
date. Should the change exceed or decrease a minimum threshold value of +/-1%, then the stated
eligible bid prices shall be adjusted in accordance with the published price change. It is the
supplier or the Cities responsibility to request a price adjustment quarterly in writing. If no
request is made, then it will be assumed that the bid price will be in effect The supplier moat
Total Contract Amount
The contact total estimated amount of $210,000. Pricing shall be per Exhibit D attached.
RFP 5119 Page 17 of 18
CONFLICT OF INTEREST QUESTIONNAIRE FORM CLQ
For vendor or other person doing business with local governmental entity
This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session.
OFFICE
"
.USE ONLY
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
Date Reaeivea
"
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
laterthan the 7th 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 offenseif the person knowingly violates Section 176.006, ,Local Government
Code. An offense under this section is a Class C misdemeanor.
1 Name of person who has a business relationship with local governmental entity.. -
helvil
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 r 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 withwhom the filer 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 filer of the questionnaire?
F-1 =
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?
1-1 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 ownershipof10 percent or more?
0 Yes F-1
No
D. Describe each affiliation or business relationship.
4
Signature of persondoing business with the governmental Date
entity
RFP 5119 Page 18 of 18
EXHIBIT D I
ATTACHMENT C
BUSINESS OVERVIEW QUESTIONNAIRE AND FORMS
1. Contractor Name: Victory Police Motorcycles L.L.C.
2. Address (Principal Place of Business): 1106 N. Anita Ave. Tucson, AZ, 85705
3. Does your company have an established physical presence in the State of Texas, or.the City of
Denton? No
4. Tax Payer ID#: 26-3348701
5. Email Address of Primary contact:'vita@victorypolicemotorcycles.com
6. Website Address:www.victorypolicemotorcycles.com
7. Telephone: 520-770-9500
8. Fax: 520-382-6349
9. Other Locations: None
10. Organization Class:
L.L.C.
State of Arizona
11. Date Established: 912008
12. Former Business Name: NA
13. Date of Dissolution: NA
14. Subsidiaryof: NA
15. Historically Underutilized Business: No
16. Principals and Officers: Nita Buckner CEO
17. Key Personnel and Responsibilities: Nita Buckner CEO
18. Number of Personnel by Discipline:
Discipline Number of Staff # Registered
Management 2 NA
Production 5 NA
Accounting 1 NA
Sales 2 NA
19. Services Provided by Contractor:
a. Please provide a detailed listing of all services that your company provides.
Victory Police Motorcycles designs, up -fits and sells police motorcycles to law enforcement
1 ' 53
EXHIBIT D
agencies domestically and internationally.
b. Please detail your prior experience working on similar projects with Texas governmental
entities:
Victory Police Motorcycles has sold Police Motorcycles to the following Texas agencies.
Tyler Texas Police Department
Pasadena Texas Police Department
Forney Texas Police Department
Harris County Sheriff Department
c. Please detail your similar services provided over the past two (2) years.
Victory Police Motorcycles has sold Police Motorcycles to the following agencies.
Victoria Regional Police Victoria British Columbia, Canada
Lenexa, Kansas Police Lenexa, Kansas
Apache Junction Police Apache Junction, Arizona
Pearl Mississippi Police Pearl, Mississippi
Peachtree Police Peachtree, Georgia
University of Iowa Police Iowa City, Iowa
Mountain Brook Police Mountain Brook, Alabama
Plant City Police Plant City, Florida
Windsor Police Windsor, Canada
Warren Police Warren, Michigan
Seattle Police Seattle, Washington
Dubai United Arab Emirates
Redmond Police Redmond, Oregon
Lethbridge Regional Police Lethbridge, Canada
Collegedale Police Collegedale, Tennessee
Jakarta Jakarta, Indonesia
Lee Summit Police Lee Summit, Missouri
Polaris Asia Asia Rim
Lee's Summit Police Lee Summit Missouri
Myrtle Beach Police Myrtle Beach South Carolina
d. Detail documented proof of at least three (3) projects in the past two (2) }mars.
We have provided 3 copies of purchase orders from the following agencies in the appendix
Myrtle Beach Police Department
Lee Summit Police Department
Mountain Brook Police Department
e. Please detail time services, including, the nature of the services provided, the stupe of the
activities, the organizations for which the services were provided, the dates of the projects,
and the documented benefit to the governmental entity.
Victory Police Motorcycles built and upfitted Commander 1 Motorcycles for the following:
Myrtle Beach Police Department (5) Commander 1 Police Motorcycles
Project date 9/17/12 (date of Purchase Order)
Mountain Brook Police Department (2) Commander 1 Police Motorcycles
Project date 7/3/12 (date of Purchase Order)
Lee's Summit Police Department (4) Commander 1 Police Motorcycles
Project date 4/12112 (date of Purchase Order)
54
EXHIBIT D
20. Has your company filed or been named in any litigation involving your company and the
Owner on a contract within the last five years under your current company name or any
other company name? Nso provide details of the issues and resolution if available. Include
lawsuits where Owner was involved. No
21. Please provide at least (3) three references (preferably municiparides) and contract
amounts. Include project description, contact names, position, and organization name and
telephone number for each reference listed. See attachment F.
Completed on attachment F
22. 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. No
23. Have you ever had a contract terminated by the Owner? if so, where and why? Give name
and telephone number (s) of Owner (s). Na
24. Has your company implemented an Employee Health and Safety Program compliant with 29
CFR 1910 "General Industry Standards" and/or 29 CFR 1926 "General Construction
Standards" as they apply to your Company's customary activities?
htty:/Iwww osha ag�v/pWoshaweb/owasreh search form?p doe type=STANDARDS&p toc
level=l&o kewalue=1926 No N/A
25. Professional liability Coverage, Error & Omissions, etc.
Amount: NA as per page 3 Attachment A
26. Work Type — Distribution by Proportion of Annual Average:
Work Type % by Fee % by No of Projects
Sale of Police Motorcycles %100.00
27. Please indicate the total number of projects your Firm has undertaken within the last five
years? 26
55
ADMENDMENTS TO CONTRACT BY AND BETWEEN
CITY OF DENTON, TEXAS AND VICTORY POLICE MOTORCYCLES
Pagel: Title
Should be changed from Police Motorcycles to Victory Police Motorcycles
Page 5 Section 14: Travel
Any travel, lodging, and per diem expenses by Victory Police Motorcycles for training, equipment
upgrades after the delivery of the motorcycles will be quoted and billed separately.
Page 9 Section 32: Insurance
As Per RFP this requirement is not required according to attachment A Not Applicable
Page 17 The Quantities
References Exhibit D- Exhibit 1 RFP 5119 pricing worksheet
Signed
Nita Buckner CEO
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