6918 - Termination Letter Executed
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Contract # 6918
CONTRACT BY AND BETWEEN
CITY OF DENTON, TEXAS AN OPEN COUNTER ENTERPRISES, INC.
(CONTRACT #6918)
THIS CONTRACT is made and entered into this date ______________________, by and
between OPEN COUNTER ENTERPRISES, INC, a DELAWARE corporation, whose address is
25 Taylor Street, San Francisco, CA, 94102, 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
Supplier shall provide products and/or services in accordance with the City’s document –
CONTRACT #6918 – OPEN COUNTER ENTERPRISES, INC, a copy of which is on file at the
office of Purchasing Agent and incorporated herein for all purposes. The Contract consists of this
written agreement and the following items which are attached hereto and incorporated herein by
reference:
(a) Special Terms and Conditions (Exhibit “A”)
(b) City of Denton Standard Terms and Conditions (Exhibit “B”)
(c) Master Service Agreement (Exhibit “C”)
(d) House Bill 89 Verification (Exhibit “D”)
(e) Senate Bill 252 Certification (Exhibit “E”)
(f) Form CIQ – Conflict of Interest Questionnaire (Exhibit "F")
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.”
The parties agree to transact business electronically. Any statutory requirements that certain terms
be in writing will be satisfied using electronic documents and signing. Electronic signing of this
document will be deemed an original for all legal purposes.
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Contract # 6918
IN WITNESS WHEREOF, the parties of these presents have executed this agreement in
the year and day first above written.
CONTRACTOR
BY: ______________________________
PETER KOHT – OWNER
Date: _______________________________
Printed Name: ________________________
Title: _______________________________
___________________________________
PHONE NUMBER
___________________________________
EMAIL ADDRESS
___________________________________
TEXAS ETHICS COMMISSION
CERTIFICATE NUMBER
CITY OF DENTON, TEXAS
ATTEST:
JENNIFER WALTERS, CITY SECRETARY BY:
TODD HILEMAN
CITY MANAGER
BY: __________________________________ Date:
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
BY: __________________________________
THIS AGREEMENT HAS BEEN
BOTH REVIEWED AND APPROVED
as to financial and operational obligations
and business terms.
_______________ ________________
SIGNATURE PRINTED NAME
__________________________________
TITLE
__________________________________
DEPARTMENT
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Contract # 6918
Exhibit A
Special Terms and Conditions
1. Total Contract Amount
The contract total for services shall not exceed $125,000. Pricing shall be per Exhibit C attached.
2. Contract Terms
The contract term will be five (5) years, effective from date of award or notice to proceed as
determined by the City of Denton Purchasing Department.
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. 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.
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Contract # 6918
Exhibit B
Standard Purchase Terms and Conditions
These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings
and other requirements included in the City of Denton’s contract are applicable to
contracts/purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer
and the Seller or respondent herein after referred to as Contractor or Supplier. Any deviations must
be in writing and signed by a representative of the City’s Procurement Department and the
Supplier. No Terms and Conditions contained in the seller’s proposal response, invoice or
statement shall serve to modify the terms set forth herein. If there is a conflict between the
provisions on the face of the contract/purchase order these written provisions will take precedence.
The Contractor agrees that the contract shall be governed by the following terms and conditions,
unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract,
Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and
sections 9, 10, 11, 22 and 32 shall apply only to a solicitation to purchase services to be performed
principally at the City’s premises or on public rights-of-way.
1. CONTRACTOR’S OBLIGATIONS. The Contractor shall fully and timely provide all
deliverables described in the Solicitation and in the Contractor’s Offer in strict accordance with
the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local
laws, rules, and regulations.
2. EFFECTIVE DATE/TERM. Unless otherwise specified in the Solicitation, this Contract shall
be effective as of the date the contract is signed by the City, and shall continue in effect until all
obligations are performed in accordance with the Contract.
3. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor will package
deliverables in accordance with good commercial practice and shall include a packing list showing
the description of each item, the quantity and unit price unless otherwise provided in the
Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly
and permanently marked as follows: (a) The Contractor's name and address, (b) the City’s name,
address and purchase order or purchase release number and the price agreement number if
applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the
number of the container bearing the packing list. The Contractor shall bear cost of packaging.
Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all
the requirements of common carriers and any applicable specification. The City's count or weight
shall be final and conclusive on shipments not accompanied by packing lists.
4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to
ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of
deliverables.
5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City
only when the City actually receives and accepts the deliverables.
6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be
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Contract # 6918
shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and
Conditions. Unless otherwise stated in the Offer, the Contractor’s price shall be deemed to include
all delivery and transportation charges. The City shall have the right to designate what method of
transportation shall be used to ship the deliverables. The place of delivery shall be that set forth
the purchase order.
7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under
law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at
delivery before accepting them, and to reject defective or non-conforming deliverables. If the City
has the right to inspect the Contractor’s, or the Contractor’s Subcontractor’s, facilities, or the
deliverables at the Contractor’s, or the Contractor’s Subcontractor’s, premises, the Contractor shall
furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance
to the City to facilitate such inspection.
8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables
must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity.
Any non-complying tender shall constitute a breach and the Contractor shall not have the right to
substitute a conforming tender; provided, where the time for performance has not yet expired, the
Contractor may notify the City of the intention to cure and may then make a conforming tender
within the time allotted in the contract.
9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the
sites where the Contractor is to perform the services as required in order for the Contractor to
perform the services in a timely and efficient manner, in accordance with and subject to the
applicable security laws, rules, and regulations. The Contractor acknowledges that it has satisfied
itself as to the nature of the City’s service requirements and specifications, the location and
essential characteristics of the work sites, the quality and quantity of materials, equipment, labor
and facilities necessary to perform the services, and any other condition or state of fact which could
in any way affect performance of the Contractor’s obligations under the contract. The Contractor
hereby releases and holds the City harmless from and against any liability or claim for damages of
any kind or nature if the actual site or service conditions differ from expected conditions.
The contractor shall, at all times, exercise reasonable precautions for the safety of their employees,
City Staff, participants and others on or near the City’s facilities.
10. WORKFORCE
A. The Contractor shall employ only orderly and competent workers, skilled in the performance
of the services which they will perform under the Contract.
B. The Contractor, its employees, subcontractors, and subcontractor's employees may not while
engaged in participating or responding to a solicitation or while in the course and scope of
delivering goods or services under a City of Denton contract or on the City's property .
i. use or possess a firearm, including a concealed handgun that is licensed under state law,
except as required by the terms of the contract; or
ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled
substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on
the job.
C. If the City or the City's representative notifies the Contractor that any worker is incompetent,
disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed
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any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the
Contractor shall immediately remove such worker from Contract services, and may not employ
such worker again on Contract services without the City's prior written consent.
Immigration: The Contractor represents and warrants that it shall comply with the requirements
of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification
and retention of verification forms for any individuals hired on or after November 6, 1986, who
will perform any labor or services under the Contract and the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA) enacted on September 30, 1996.
11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL
REGULATIONS: The Contractor, it’s Subcontractors, and their respective employees, shall
comply fully with all applicable federal, state, and local health, safety, and environmental laws,
ordinances, rules and regulations in the performance of the services, including but not limited to
those promulgated by the City and by the Occupational Safety and Health Administration (OSHA).
In case of conflict, the most stringent safety requirement shall govern. The Contractor shall
indemnify and hold the City harmless from and against all claims, demands, suits, actions,
judgments, fines, penalties and liability of every kind arising from the breach of the Contractor’s
obligations under this paragraph.
Environmental Protection: The Respondent shall be in compliance with all applicable standards,
orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et
seq.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. §1251 et seq.).
12. INVOICES:
A. The Contractor shall submit separate invoices in duplicate on each purchase order or purchase
release after each delivery. If partial shipments or deliveries are authorized by the City, a separate
invoice must be sent for each shipment or delivery made.
B. Proper Invoices must include a unique invoice number, the purchase order or delivery
order number and the master agreement number if applicable, the Department’s Name, and
the name of the point of contact for the Department. Invoices shall be itemized and
transportation charges, if any, shall be listed separately. A copy of the bill of 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.
13. PAYMENT:
A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within
thirty (30) calendar days of the City’s receipt of the deliverables or of the invoice being received
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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 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 firm who is in arrears to the City of Denton for
delinquent taxes, the City may offset indebtedness owed the City through payment withholding.
F. 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.
14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the
Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. During the
term of this contract, the contractor shall bill and the City shall reimburse contractor for all
reasonable and approved out of pocket expenses which are incurred in the connection with the
performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by
the contractor in traveling to and from City facilities shall not be reimbursed, unless otherwise
negotiated.
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15. FINAL PAYMENT AND CLOSE-OUT:
A. If a DBE/MBE/WBE Program Plan is agreed to and the Contractor has identified
Subcontractors, the Contractor is required to submit a Contract Close-Out MBE/WBE Compliance
Report to the Purchasing Manager no later than the 15th calendar day after completion of all work
under the contract. Final payment, retainage, or both may be withheld if the Contractor is not in
compliance with the requirements as accepted by the City.
B. The making and acceptance of final payment will constitute:
i. a waiver of all claims by the City against the Contractor, except claims (1) which have
been previously asserted in writing and not yet settled, (2) arising from defective work appearing
after final inspection, (3) arising from failure of the Contractor to comply with the Contract or the
terms of any warranty specified herein, (4) arising from the Contractor’s continuing obligations
under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising
under the City’s right to audit; and ii. a waiver of all claims by the Contractor against the City
other than those previously asserted in writing and not yet settled.
16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost
of any special tooling or special test equipment fabricated or required by the Contractor for the
purpose of filling this order, such special tooling equipment and any process sheets related thereto
shall become the property of the City and shall be identified by the Contractor as such.
17. RIGHT TO AUDIT:
A. The City shall have the right to audit and make copies of the books, records and computations
pertaining to the Contract. The Contractor shall retain such books, records, documents and other
evidence pertaining to the Contract period and five years thereafter, 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.
18. SUBCONTRACTORS:
A. If the Contractor identified Subcontractors in a DBE/MBE/WBE agreed to Plan, the Contractor
shall comply with all requirements approved by the City. The Contractor shall not initially employ
any Subcontractor except as provided in the Contractor’s Plan. The Contractor shall not substitute
any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in
writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or
remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan
has been approved, the Contractor is additionally required to submit a monthly Subcontract
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Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day
of each month.
B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract
between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the
terms of the
Contract, and shall contain provisions that:
i. require that all deliverables to be provided by the Subcontractor be provided in strict
accordance with the provisions, specifications and terms of the Contract;
ii. prohibit the Subcontractor from further subcontracting any portion of the Contract
without the prior written consent of the City and the Contractor. The City may require, as
a condition to such further subcontracting, that the Subcontractor post a payment bond in
form, substance and amount acceptable to the City;
iii. require Subcontractors to submit all invoices and applications for payments, including
any claims for additional payments, damages or otherwise, to the Contractor in sufficient
time to enable the Contractor to include same with its invoice or application for payment
to the City in accordance with the terms of the Contract;
iv. require that all Subcontractors obtain and maintain, throughout the term of their
contract, insurance in the type and amounts specified for the Contractor, with the City
being a named insured as its interest shall appear; and
v. require that the Subcontractor indemnify and hold the City harmless to the same extent
as the Contractor is required to indemnify the City.
C. The Contractor shall be fully responsible to the City for all acts and omissions of the
Subcontractors just as the Contractor is responsible for the Contractor's own acts and omissions.
Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual
relationship between the City and any such Subcontractor, nor shall it create any obligation on the
part of the City to pay or to see to the payment of any moneys due any such Subcontractor except
as may otherwise be required by law.
D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the
Contractor not later than ten (10) calendar days after receipt of payment from the City.
19. WARRANTY-PRICE:
A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's
current prices on orders by others for like deliverables under similar terms of purchase.
B. The Contractor certifies that the prices in the Offer have been arrived at independently without
consultation, communication, or agreement for the purpose of restricting competition, as to any
matter relating to such fees with any other firm or with any 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.
20. WARRANTY – TITLE: The Contractor warrants that it has good and indefeasible title to all
deliverables furnished under the Contract, and that the deliverables are free and clear of all liens,
claims, security interests and encumbrances. The Contractor shall indemnify and hold the City
harmless from and against all adverse title claims to the deliverables.
21. WARRANTY – DELIVERABLES: The Contractor warrants and represents that all
deliverables sold the City under the Contract shall be free from defects in design, workmanship or
manufacture, and conform in all material respects to the specifications, drawings, and descriptions
in the Solicitation, to any samples furnished by the Contractor, to the terms, covenants and
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conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations,
and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall
be new or recycled merchandise, and not used or reconditioned.
A. Recycled deliverables shall be clearly identified as such.
B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty
implied by law; and any attempt to do so shall be without force or effect.
C. Unless otherwise specified in the Contract, the warranty period shall be at least one year from
the date of acceptance of the deliverables or from the date of acceptance of any replacement
deliverables. If during the warranty period, one or more of the above warranties are breached, the
Contractor shall promptly upon receipt of demand either repair the non-conforming deliverables,
or replace the non-conforming deliverables with fully conforming deliverables, at the City’s option
and at no additional cost to the City. All costs incidental to such repair or replacement, including
but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor.
The City shall endeavor to give the Contractor written notice of the breach of warranty within
thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice
shall not impair the City’s rights under this section.
D. If the Contractor is unable or unwilling to repair or replace defective or non-conforming
deliverables as required by the City, then in addition to any other available remedy, the City may
reduce the quantity of deliverables it may be required to purchase under the Contract from the
Contractor, and purchase conforming deliverables from other sources. In such event, the
Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to
procure such deliverables from another source.
E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate
manufacturer’s warranty, the Contractor shall transfer and assign such manufacturer’s warranty to
the City. If for any reason the manufacturer’s warranty cannot be fully transferred to the City, the
Contractor shall assist and cooperate with the City to the fullest extent to enforce such
manufacturer’s warranty for the benefit of the City.
22. WARRANTY – SERVICES: The Contractor warrants and represents that all services to be
provided the City under the Contract will be fully and timely performed in a good and workmanlike
manner in accordance with generally accepted industry standards and practices, the terms,
conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules
or regulations.
A. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty
implied by law, and any attempt to do so shall be without force or effect.
B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from
the Acceptance Date. If during the warranty period, one or more of the above warranties are
breached, the Contractor shall promptly upon receipt of demand perform the services again in
accordance with above standard at no additional cost to the City. All costs incidental to such
additional performance shall be borne by the Contractor. The City shall endeavor to give the
Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery
of the breach warranty, but failure to give timely notice shall not impair the City’s rights under
this section.
C. If the Contractor is unable or unwilling to perform its services in accordance with the above
standard as required by the City, then in addition to any other available remedy, the City may
reduce the amount of services it may be required to purchase under the Contract from the
Contractor, and purchase conforming services from other sources. In such event, the Contractor
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shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such
services from another source.
23. ACCEPTANCE OF INCOMPLETE OR NON-CONFORMING DELIVERABLES: If,
instead of requiring immediate correction or removal and replacement of defective or non-
conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay
all claims, costs, losses and damages attributable to the City’s evaluation of and determination to
accept such defective or non-conforming deliverables. If any such acceptance occurs prior to final
payment, the City may deduct such amounts as are necessary to compensate the City for the
diminished value of the defective or non-conforming deliverables. If the acceptance occurs after
final payment, such amount will be refunded to the City by the Contractor.
24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to
question the other party’s intent to perform, demand may be made to the other party for written
assurance of the intent to perform. In the event that no assurance is given within the time specified
after demand is made, the demanding party may treat this failure as an anticipatory repudiation of
the Contract.
25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event
the Contractor is observed performing in a manner that is in violation of Federal, State, or local
guidelines, or in a manner that is determined by the City to be unsafe to either life or property.
Upon notification, the Contractor will cease all work until notified by the City that the violation or
unsafe condition has been corrected. The Contractor shall be liable for all costs incurred by the
City as a result of the issuance of such Stop Work Notice.
26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to
fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to
provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks
relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in
Contractor’s Offer, or in any report or deliverable required to be submitted by the Contractor to
the City.
27. TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City shall
have the right to terminate the Contract for cause, by written notice effective ten (10) calendar
days, unless otherwise specified, after the date of such notice, unless the Contractor, within such
ten (10) day period, cures such default, or provides evidence sufficient to prove to the City’s
reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy
available under law or in equity, the City shall be entitled to recover all actual damages, costs,
losses and expenses, incurred by the City as a result of the Contractor’s default, including, without
limitation, cost of cover, reasonable attorneys’ fees, court costs, and prejudgment and post-
judgment interest at the maximum lawful rate. Additionally, in the event of a default by the
Contractor, the City may remove the Contractor from the City’s vendor list for three (3) years and
any Offer submitted by the Contractor may be disqualified for up to three (3) years. All rights and
remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by
law.
28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the
Contract, in whole or in part, without cause any time upon thirty (30) calendar days’ prior written
notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work
pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The
City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available
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for such purposes, for all goods delivered and services performed and obligations incurred prior to
the date of termination in accordance with the terms hereof.
29. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable
required to be submitted by the Contractor to the City shall be grounds for the termination of the
Contract for cause by the City and may result in legal action.
30. DELAYS:
A. The City may delay scheduled delivery or other due dates by written notice to the Contractor if
the City deems it is in its best interest. If such delay causes an increase in the cost of the work
under the Contract, the City and the Contractor shall negotiate an equitable adjustment for costs
incurred by the Contractor in the Contract price and execute an amendment to the Contract. The
Contractor must assert its right to an adjustment within thirty (30) calendar days from the date of
receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the
Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall
excuse the Contractor from delaying the delivery as notified.
B. Neither party shall be liable for any default or delay in the performance of its obligations under
this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots,
civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the
reasonable control of such Party. In the event of default or delay in contract performance due to
any of the foregoing causes, then the time for completion of the services will be extended;
provided, however, in such an event, a conference will be held within three (3) business days to
establish a mutually agreeable period of time reasonably necessary to overcome the effect of such
failure to perform.
31. INDEMNITY:
A. Definitions:
i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action,
judgments and liability of every character, type or description, including all reasonable
costs and expenses of litigation, mediation or other alternate dispute resolution mechanism,
including attorney and other professional fees for: (1) damage to or loss of the property of
any person (including, but not limited to the City, the Contractor, their respective agents,
officers, employees and 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
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THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE
RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE
LIABLE FOR AN INDEMNIFIED CLAIM.
32. INSURANCE: The following insurance requirements are applicable, in addition to the specific
insurance requirements detailed in Appendix A for services only. The successful firm shall procure
and maintain insurance of the types and in the minimum amounts acceptable to the City of Denton.
The insurance shall be written by a company licensed to do business in the State of Texas and
satisfactory to the City of Denton.
A. General Requirements:
i. The Contractor shall at a minimum carry insurance in the types and amounts indicated
and agreed to, as submitted to the City and approved by the City within the procurement
process, for the duration of the Contract, including extension options and hold over periods,
and during any warranty period.
ii. The Contractor shall provide Certificates of Insurance with the coverage’s and
endorsements required to the City as verification of coverage prior to contract execution
and within fourteen (14) calendar days after written request from the City. Failure to
provide the required Certificate of Insurance may subject the Offer to disqualification from
consideration for award. The Contractor must also forward a Certificate of Insurance to the
City whenever a previously identified policy period has expired, or an extension option or
hold over period is exercised, as verification of continuing coverage.
iii. The Contractor shall not commence work until the required insurance is obtained and
until such insurance has been reviewed by the City. Approval of insurance by the City shall
not relieve or decrease the liability of the Contractor hereunder and shall not be construed
to be a limitation of liability on the part of the Contractor.
iv. The Contractor must submit certificates of insurance to the City for all subcontractors
prior to the subcontractors commencing work on the project.
v. The Contractor’s and all subcontractors’ insurance coverage shall be written by
companies licensed to do business in the State of Texas at the time the policies are issued
and shall be written by companies with A.M. Best ratings of A- VII or better. The City
will accept workers’ compensation coverage written by the Texas Workers’ Compensation
Insurance Fund.
vi. All endorsements naming the City as additional insured, waivers, and notices of
cancellation endorsements as well as the Certificate of Insurance shall contain the
solicitation number and the following information:
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
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reasonable requests for deletion or revision or modification of particular policy terms,
conditions, limitations, or exclusions except where policy provisions are established by law
or regulations binding upon either of the parties hereto or the underwriter on any such
policies.
x. The City reserves the right to review the insurance requirements set forth during the
effective period of the Contract and to make reasonable adjustments to insurance coverage,
limits, and exclusions when deemed necessary and prudent by the City based upon changes
in statutory law, court decisions, the claims history of the industry or financial condition
of the insurance company as well as the Contractor.
xi. The Contractor shall not cause any insurance to be canceled nor permit any insurance
to lapse during the term of the Contract or as required in the Contract.
xii. The Contractor shall be responsible for premiums, deductibles and self-insured
retentions, if any, stated in policies. All deductibles or self-insured retentions shall be
disclosed on the Certificate of Insurance.
xiii. The Contractor shall endeavor to provide the City thirty (30) calendar days’ written
notice of erosion of the aggregate limits below occurrence limits for all applicable
coverage’s indicated within the Contract.
xiv. The insurance coverage’s specified in within the solicitation and requirements are
required minimums and are not intended to limit the responsibility or liability of the
Contractor.
B. Specific Coverage Requirements: Specific insurance requirements are contained in the
solicitation instrument.
33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which
arises under or concerns the Contract, or which could have a material adverse effect on the
Contractor’s ability to perform thereunder, the Contractor shall give written notice thereof to the
City within ten (10) calendar days after receipt of notice by the Contractor. Such notice to the City
shall state the date of notification of any such claim, demand, suit, or other action; the names and
addresses of the claimant(s); the basis thereof; and the name of each person against whom such
claim is being asserted. Such notice shall be delivered personally or by mail and shall be sent to
the City and to the Denton City Attorney. Personal delivery to the City Attorney shall be to City
Hall, 215 East McKinney Street, Denton, Texas 76201.
34. NOTICES: Unless otherwise specified, all notices, requests, or other communications required
or appropriate to be given under the Contract shall be in writing and shall be deemed delivered
three (3) business days after postmarked if sent by U.S. Postal Service Certified or Registered
Mail, Return Receipt Requested. Notices delivered by other means shall be deemed delivered upon
receipt by the addressee. Routine communications may be made by first class mail, telefax, or
other commercially accepted means. Notices to the Contractor shall be sent to the address specified
in the Contractor’s Offer, or at such other address as a party may notify the other in writing. Notices
to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked
to the attention of the Purchasing Manager.
35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material
submitted by the Contractor to the City shall become property of the City upon receipt. Any
portions of such material claimed by the Contractor to be proprietary must be clearly marked as
such. Determination of the public nature of the material is subject to the Texas Public Information
Act, Chapter 552, and Texas Government Code.
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36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents
and warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title
to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the
specifications in the Contract will not infringe, directly or contributorily, any patent, trademark,
copyright, trade secret, or any other intellectual property right of any kind of any third party; that
no claims have been made by any person or entity with respect to the ownership or operation of
the deliverables and the Contractor does not know of any valid basis for any such claims. The
Contractor shall, at its sole expense, defend, indemnify, and hold the City harmless from and
against all liability, damages, and costs (including court costs and reasonable fees of attorneys and
other professionals) arising out of or resulting from: (i) any claim that the City’s exercise anywhere
in the world of the rights associated with the City’s’ ownership, and if applicable, license rights,
and its use of the deliverables infringes the intellectual property rights of any third party; or (ii)
the Contractor’s breach of any of Contractor’s representations or warranties stated in this Contract.
In the event of any such claim, the City shall have the right to monitor such claim or at its option
engage its own separate counsel to act as co-counsel on the City’s behalf. Further, Contractor
agrees that the City’s specifications regarding the deliverables shall in no way diminish
Contractor’s warranties or obligations under this paragraph and the City makes no warranty that
the production, development, or delivery of such deliverables will not impact such warranties of
Contractor.
37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may
require access to certain of the City’s and/or its licensors’ confidential information (including
inventions, employee information, trade secrets, confidential know-how, confidential business
information, and other information which the City or its licensors consider confidential)
(collectively, “Confidential Information”). Contractor acknowledges and agrees that the
Confidential Information is the valuable property of the City and/or its licensors and any
unauthorized use, disclosure, dissemination, or other release of the Confidential Information will
substantially injure the City and/or its licensors. The Contractor (including its employees,
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.
38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and
interests throughout the world in and to the deliverables.
A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor agrees
to disclose such patentable subject matter to the City. Further, if requested by the City, the
Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire right,
title, and interest to specific inventions under such patentable subject matter to the City and to
execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute,
acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by
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the City, to the City upon request by the City.
B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor
agrees that upon their creation, such deliverables shall be considered as work made-for-hire by the
Contractor for the City and the City shall own all copyrights in and to such deliverables, provided
however, that nothing in this Paragraph 38 shall negate the City’s sole or joint ownership of any
such deliverables arising by virtue of the City’s sole or joint authorship of such deliverables.
Should by operation of law, such deliverables not be considered works made-for-hire, the
Contractor hereby assigns to the City (and agrees to cause each of its employees providing services
to the City hereunder to execute, acknowledge, and deliver an assignment to the City of) all
worldwide right, title, and interest in and to such deliverables. With respect to such work made-
for-hire, the Contractor agrees to execute, acknowledge, and deliver and cause each of its
employees providing services to the City hereunder to execute, acknowledge, and deliver a work-
made-for-hire agreement, in a form to be reasonably approved by the City, to the City upon
delivery of such deliverables to the City or at such other time as the City may request.
C. Additional Assignments. The Contractor further agrees to, and if applicable, cause each of its
employees to, execute, acknowledge, and deliver all applications, specifications, oaths,
assignments, and all other instruments which the City might 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.
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 Contractor shall not advertise or publish, without the City’s prior
consent, the fact that the City has entered into the Contract, except to the extent required by law.
41. NO CONTINGENT FEES: The Contractor warrants that no person or selling agency has
been employed or retained to solicit or secure the Contract upon any agreement or understanding
for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona
fide established commercial or selling agencies maintained by the Contractor for the purpose of
securing business. For breach or violation of this warranty, the City shall have the right, in addition
to any other remedy available, to cancel the Contract without liability and to deduct from any
amounts owed to the Contractor, or otherwise recover, the full amount of such commission,
percentage, brokerage or contingent fee.
42. GRATUITIES: The City may, by written notice to the Contractor, cancel the Contract without
liability if it is determined by the City that gratuities were offered or given by the Contractor or
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any agent or representative of the Contractor to any officer or employee of the City of Denton with
a view toward securing the Contract or securing favorable treatment with respect to the awarding
or amending or the making of any determinations with respect to the performing of such contract.
In the event the Contract is canceled by the City pursuant to this provision, the City shall be
entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost
incurred by the Contractor in providing such gratuities.
43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer,
employee, independent consultant, or elected official of the City who is involved in the
development, evaluation, or decision-making process of the performance of any solicitation shall
have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any
willful violation of this section shall constitute impropriety in office, and any officer or employee
guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation
of this provision, with the knowledge, expressed or implied, of the Contractor shall render the
Contract voidable by the City. The Contractor shall complete and submit the City’s Conflict of
Interest Questionnaire.
44. INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an
employer/employee relationship, a partnership, or a joint venture. The Contractor’s services shall
be those of an independent contractor. The Contractor agrees and understands that the Contract
does not grant any rights or privileges established for employees of the City of Denton, Texas for
the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits,
worker’s compensation, or any other City employee benefit. The City shall not have supervision and
control of the Contractor or any employee of the Contractor, and it is expressly understood that
Contractor shall perform the services hereunder according to the attached specifications at the general
direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. The
contractor is expressly free to advertise and perform services for other parties while performing
services for the City.
45. ASSIGNMENT-DELEGATION: The Contract shall be binding upon and ensure to the
benefit of the City and the Contractor and their respective successors and assigns, provided
however, that no right or interest in the Contract shall be assigned and no obligation shall be
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, firm or entity
not a party hereto; it being the intention of the parties that there are no third party beneficiaries to
the Contract.
46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole
or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is
supported by consideration and is in writing signed by the aggrieved party. No waiver by either
the Contractor or the City of any one or more events of default by the other party shall operate as,
or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an
express or implied acceptance of any other existing or future default or defaults, whether of a
similar or different character.
47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by
both parties. No pre-printed or similar terms on any the Contractor invoice, order or other
document shall have any force or effect to change the terms, covenants, and conditions of the
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Contract.
48. INTERPRETATION: The Contract is intended by the parties as a final, complete and
exclusive statement of the terms of their agreement. No course of prior dealing between the parties
or course of performance or usage of the trade shall be relevant to supplement or explain any term
used in the Contract. Although the Contract may have been substantially drafted by one party, it
is the intent of the parties that all provisions be construed in a manner to be fair to both parties,
reading no provisions more strictly against one party or the other. Whenever a term defined by the
Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC
definition shall control, unless otherwise defined in the Contract.
49. DISPUTE RESOLUTION:
A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to
negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing
of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party
may make a written request for a meeting between representatives of each party within fourteen
(14) calendar days after receipt of the request or such later period as agreed by the parties. Each
party shall include, at a minimum, one (1) senior level individual with decision-making authority
regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith
to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the
parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to
mediation as described below. Negotiation may be waived by a written agreement signed by both
parties, in which event the parties may proceed directly to mediation as described below.
B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation
process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation
skills to assist with resolution of the dispute. Should they choose this option; the City and the
Contractor agree to act in good faith in the selection of the mediator and to give consideration to
qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties
from relying on the skills of a person who is trained in the subject matter of the dispute or a contract
interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of
initiation of the mediation process, the mediator shall be selected by the Denton County Alternative
Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith
for up to thirty (30) calendar days from the date of the first mediation session. The City and the
Contractor will share the mediator’s fees equally and the parties will bear their own costs of
participation such as fees for any consultants or attorneys they may utilize to represent them or
otherwise assist them in the mediation.
50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the
laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted
in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would
refer to and apply the substantive law of another state or jurisdiction. All issues arising from this
Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit
to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be
construed or interpreted to limit or restrict the right or ability of the City to seek and secure
injunctive relief from any competent authority as contemplated herein.
51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract
shall in no way affect the validity or enforceability of any other portion or provision of the
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Contract. Any void provision shall be deemed severed from the Contract and the balance of the
Contract shall be construed and enforced as if the Contract did not contain the particular portion
or provision held to be void. The parties further agree to reform the Contract to replace any stricken
provision with a valid provision that comes as close as possible to the intent of the stricken
provision. The provisions of this section shall not prevent this entire Contract from being void
should a provision which is the essence of the Contract be determined to be void.
52. HOLIDAYS: The following holidays are observed by the City:
New Year’s Day (observed)
MLK Day
Memorial Day
4th of July
Labor Day
Thanksgiving Day
Day After Thanksgiving
Christmas Eve (observed)
Christmas Day (observed)
New Year’s Day (observed)
If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday
falls on Sunday, it will be observed on the following Monday. Normal hours of operation shall be
between 8:00 am and 4:00 pm, Monday through Friday, excluding City of Denton Holidays. Any
scheduled deliveries or work performance not within the normal hours of operation must be
approved by the City Manager of Denton, Texas or his authorized designee.
53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose
continuing obligations on the parties, including but not limited to the warranty, indemnity, and
confidentiality obligations of the parties, shall survive the expiration or termination of the Contract.
54. NON-SUSPENSION OR DEBARMENT CERTIFICATION:
The City of Denton is prohibited from contracting with or making prime or sub-awards to parties
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 not currently suspended or debarred from doing business with the
Federal Government, as indicated by the General Services Administration List of Parties Excluded
from Federal Procurement and Non-Procurement Programs, the State of Texas, or the City of
Denton.
55. EQUAL OPPORTUNITY
A. Equal Employment Opportunity: No Offeror, or Offeror’s agent, shall engage in any
discriminatory employment practice. No person shall, on the grounds of race, sex, sexual
orientation, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of,
or be otherwise subjected to discrimination under any activities resulting from this RFQ.
B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror’s agent, shall
engage in any discriminatory employment practice against individuals with disabilities as defined
in the ADA.
56. BUY AMERICAN ACT-SUPPLIES (Applicable to certain federally funded
requirements)
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The following federally funded requirements are applicable. A. Definitions. As used in this
paragraph –
i. "Component" means an article, material, or supply incorporated directly into an end product.
ii. "Cost of components" means -
(1) For components purchased by the Contractor, the acquisition cost, including transportation
costs to the place of incorporation into the end product (whether or not such costs are paid to a
domestic 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. 10a - 10d) provides a preference for domestic end products
for supplies acquired for use in the United States.
C. The City does not maintain a list of foreign articles that will be treated as domestic for this
Contract; but will consider for approval foreign articles as domestic for this product if the articles
are on a list approved by another Governmental Agency. The Offeror shall submit documentation
with their Offer demonstrating that the article is on an approved Governmental list.
D. The Contractor shall deliver only domestic end products except to the extent that it specified
delivery of foreign end products in the provision of the Solicitation entitled "Buy American Act
Certificate".
57. RIGHT TO INFORMATION: The City of Denton reserves the right to use any and all
information presented in any response to this contract, whether amended or not, except as
prohibited by law. Selection of rejection of the submittal does not affect this right.
58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or
supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the
respondent.
59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as
defined by the United States Department of Labor Davis-Bacon Wage Determination at
http://www.dol.gov/whd/contracts/dbra.htm and at the Wage Determinations website www.wdol.gov
for Denton County, Texas (WD-2509).
60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor
or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent
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must comply with all applicable laws at all times, including, without limitation, the following: (i)
§36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code,
which prohibits the offering or conferring of benefits to public servants. The Respondent shall give
all notices and comply with all laws and regulations applicable to furnishing and performance of
the Contract.
61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on-
site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530
of the Revenue Act of 1978, dealing with issuance of Form W-2's to common law employees.
Respondent is responsible for both federal and State unemployment insurance coverage and
standard Workers’ Compensation insurance coverage. Respondent shall ensure compliance with
all federal and State tax laws and withholding requirements. The City of Denton shall not be liable
to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or
federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall
pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section.
62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions
of the Drug-Free Work Place Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701
ET SEQ.) and maintain a drug-free work environment; and the final rule, government-wide
requirements for drug-free work place (grants), issued by the Office of Management and Budget
and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of 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.
63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The
Respondent shall be liable for all damages to government-owned, leased, or occupied property and
equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers,
including any delivery or cartage company, in connection with any performance pursuant to the
Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any
such damage within one (1) calendar day.
64. FORCE MAJEURE: The City of Denton, any Customer, and the Respondent shall not be
responsible for performance under the Contract should it be prevented from performance by an act
of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault
or negligence of the City of Denton. In the event of an occurrence under this Section, the
Respondent will be excused from any further performance or observance of the requirements so
affected for as long as such circumstances prevail and the Respondent continues to use
commercially reasonable efforts to recommence performance or observance whenever and to
whatever extent possible without delay. The Respondent shall immediately notify the City of
Denton Procurement Manager by telephone (to be confirmed in writing within five (5) calendar
days of the inception of such occurrence) and describe at a reasonable level of detail the
circumstances causing the non-performance or delay in performance.
65. NON-WAIVER OF RIGHTS: Failure of a Party to require performance by another Party
under the Contract will not affect the right of such Party to require performance in the future. No
delay, failure, or waiver of either Party’s exercise or partial exercise of any right or remedy under
the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right
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or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as
a waiver of any continuing or succeeding breach.
66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision
of the Contract is in any way intended to constitute a waiver by the City of Denton of any
immunities from suit or from liability that the City of Denton may have by operation of law.
67. RECORDS RETENTION: The Respondent shall retain all financial records, supporting
documents, statistical records, and any other records or books relating to the performances called
for in the Contract. The Respondent shall retain all such records for a period of four (4) years after
the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit
and litigation matters are resolved, whichever period is longer. The Respondent shall grant access
to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of
Texas, and any federal governmental entity that has authority to review records due to federal
funds being spent under the Contract.
Should a conflict arise between any of the contract documents, it shall be resolved with the
following order of precedence (if applicable). In any event, the final negotiated contract shall
take precedence over any and all contract documents to the extent of such conflict.
1. Final negotiated contract
2. Contract/file documents
3. City’s standard terms and conditions
4. Purchase order
5. Supplier terms and conditions
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Master Services Agreement (rev 11/22//2017) Page 1 OpenCounter + Denton
MASTER SERVICES AGREEMENT
This Master Services Agreement (this “Agreement”), is entered into and made effective as of November, 2018 (the
“Effective Date”), by and between Open Counter Enterprises, Inc. (“OpenCounter”) and the City of Denton, Texas with principal
offices at 215 E McKinney St, Denton, TX 76201 (“City”).
RECITALS
WHEREAS, City is an agency or division of state or local government, and wishes to license OpenCounter’s Hosted
Services and to purchase the related Professional Services for its own use and that of persons and/or businesses applying for one or
more permits or licenses, the issuance of which is within the jurisdiction of City; and
WHEREAS, OpenCounter is willing to provide to City the Hosted Services and related Professional Services, subject to the
terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the representations, warranties, covenants and obligations set forth in this
Agreement, and intending to be legally bound, OpenCounter and City hereby agree as follows:
AGREEMENT
1. Definitions. The following capitalized terms shall have the meanings set forth below (and the following provisions are
hereby agreed to by the parties):
1.1. “Application” means an application for a permit or license submitted by a Permit Applicant through the Hosted
Services.
1.2. “Application Data” means the information, data and files, including any personally identifiable data, inputted,
entered into or otherwise transmitted into the Hosted Services by either the City or Permit Applicants, or generated by the Hosted
Services, in connection with Applications submitted by Permit Applicants.
1.3. “Authorized Users” means employees, contractors and agents of City who are authorized by City to access and use
the Hosted Services on behalf of City under this Agreement. The maximum number of Authorized Users is set forth in the Project
Schedule. City agrees that it will not grant “Authorized User” access to the Hosted Services to any party who is an employee,
contractor or agent of a competitor of OpenCounter.
1.4. “City Content” means the content and materials provided by City to OpenCounter, including without limitation
regulations, statutes, ordinances and summaries thereof, fee tables and other tables.
1.5. “Documentation” means the applicable training, support, and other documentation relating to the use of and access
to the Hosted Services provided by OpenCounter to City and any Updates thereto provided by OpenCounter.
1.6. “Hosted Services” means OpenCounter’s hosted platform identified on the Project Schedule and licensed by City
under this Agreement during the Subscription Term.
1.7. “Intellectual Property Rights” means all patent rights, copyright rights, utility models rights, trade secret rights,
trademark rights (including all goodwill associated therewith), rights of publicity, authors’ rights, mask work rights, industrial rights,
and all other intellectual property, proprietary or other rights, as may exist now and/or hereafter come into existence, including without
limitation, (a) all rights, whether existing now or in the future, whether statutory or common law, whether subject to protection under
statute, regulation or common law, in any jurisdiction in the world, together with all national, foreign and all applications therefor and
state registrations, applications for registration and all renewals and extensions thereof (including, without limitation, any
continuations, continuations-in-part, divisionals, reissues, re-examinations, renewals and extensions thereof); (b) all benefits,
privileges, causes of action and remedies relating to any of the foregoing, whether before or hereafter accrued (including, without
limitation, the exclusive rights to apply for and maintain all such registrations, renewals and extensions); and (c) all rights to sue for all
past, present and future infringements or other violations of any of the foregoing rights, and the right to settle and retain proceeds from
any such actions.
1.8. “Launch Date” means the mutually agreed date on which the Hosted Services for the City will be launched and
made publicly available.
1.9. “Liability” means any and all damages (including punitive damages), losses, expenses (including reasonable
attorneys’ fees and litigation costs), claims, demands, suits, causes of action, settlements, payments, awards, judgments, liens, fines,
fees, penalties, interest and other liability.
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1.10. “Subscription Term” means the term of the subscription for the Hosted Services, beginning on the Effective Date,
and continuing for the period of time set forth on Schedule A.
1.11. “Permit Applicants” means individuals and businesses applying, through the Hosted Services, for one or more
permits or licenses issued by City.
1.12. “Professional Services” means implementation services, training services or any other professional services to be
provided by OpenCounter to City under this Agreement under the Project Schedule.
1.13. “Project Schedule” means the project schedule attached hereto as Schedule B.
1.14. “Term” has the meaning set forth in Section 10.1.
1.15. “Territory” means the territory where the City is located.
1.16. “Updates” means error corrections, bug fixes, enhancements, improvements, new releases, maintenance releases
and updates provided by OpenCounter to City at no additional charge.
2. Implementation; License Grant.
2.1. Features. Schedule A describes the features of the Hosted Services which are purchased by City as of the Effective
Date. OpenCounter may provide, from time to time, enhancements to the Services which are added to the Hosted Services under this
Agreement by City at no additional cost (“Enhancements”). OpenCounter may also provide, from time to time, additional features to
the Services which may, but are not required to, be added to the Hosted Services under this Agreement by City at an additional cost
(“Optional Features”). The parties understand and agree that access to and use of such Optional Features will be subject to both
payment of the applicable fees therefor as well as additional or different terms and conditions applicable to such Optional Features.
The parties may amend Schedule A to add, remove and/or modify the features (including Optional Features) purchased by City and
Schedule B to add any required additional Professional Services required to implement such features, via a signed written amendment
to this Agreement. Unless otherwise stated in such amendment, any changes made to the features of the Hosted Services will be
effective as of the effective date of such amendment.
2.2. Implementation. OpenCounter will use commercially reasonable efforts to implement the Hosted Services by the
Launch Date in accordance with the Project Schedule. City acknowledges that City’s timely provision of (and OpenCounter’s access
to) City’s assistance, cooperation, and complete and accurate feedback, approvals, information and data from City’s officers, agents
and employees as is reasonably requested by OpenCounter (collectively, “Cooperation”) is essential to the implementation of the
Hosted Services, and that OpenCounter shall not be liable for any deficiency, delay or failure in implementing the Hosted Services if
such deficiency, delay or failure results from City’s failure to provide full Cooperation as required hereunder. Cooperation includes,
but is not limited to, designating a project manager to interface with OpenCounter during the course of OpenCounter’s implementation
of the Hosted Services (as described in Section 2.3), and providing all necessary review and feedback as requested by OpenCounter.
2.3. Project Manager. OpenCounter and City shall each designate a project manager who shall be the principal point of
contact for such party for all communications and actions taken by each party under this Agreement. Each project manager shall have
the authority to represent its respective party under this Agreement and to take action and make binding decisions on behalf of such
party. Each party may replace its project manager with a new project manager by providing written notice of such change to the other
party. City’s project manager shall have the right to designate and replace Authorized Users and designated support contacts of City
from time to time by providing written notice thereof to OpenCounter.
2.4. Grant of Licenses. Subject to the terms and conditions of this Agreement, OpenCounter grants to City a personal,
non-exclusive, non-transferable (except as permitted under Section 12.2), non-sublicenseable license in the Territory, during the
Subscription Term, to: (a) permit its Authorized Users to access and use the Hosted Services, and (b) use and reproduce a reasonable
number of copies of the Documentation in support of the foregoing license and for purposes of testing, support and training in
connection with the Hosted Services.
2.5. Restrictions and Obligations. City agrees (on behalf of itself and its Authorized Users), except as expressly
permitted in Section 2.3 of this Agreement, not to: (a) access or use the Hosted Services or Documentation (or any portion thereof) in
any way not expressly permitted under Section 2.3 hereof; (b) sell, rent, lease, sublicense, pledge, assign (except as permitted under
Section 12.2) or otherwise transfer City’s rights, in whole or in part, to access and use Hosted Services or Documentation (or any
portion thereof) to any third party or otherwise make the functionality of the Hosted Services available to third parties; (c) modify,
adapt, translate or create derivative works based on the Hosted Services or Documentation (or any other portions thereof) in any way
not expressly permitted under Section 2.3 hereof; (d) remove or alter any copyright, trademark, or other proprietary notices, legends,
symbols, or labels appearing on or in the Hosted Services or Documentation (or any portion thereof), and City agrees to reproduce all
such notices, legends, symbols and labels on copies of the Documentation; (e) use the Hosted Services or Documentation to create a
product or service which is similar to or competitive with any portion of the Hosted Services or other offerings of OpenCounter; (f)
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disclose to any third party the performance measures of the Hosted Services (or portion thereof) or benchmark tests or other
comparisons of the Hosted Services (or portion thereof) with other services or software without OpenCounter’s prior written consent;
or (g) permit any party who is an employee, contractor or agent of a competitor of OpenCounter to access the Hosted Services,
whether as an Authorized User or in any manner. City will not permit or encourage any third party to do any of the foregoing.
2.6. Access by Authorized Users. During the Subscription Term of the Agreement, City shall have the right to permit
its Authorized Users to access and use the Hosted Services on behalf of City through the administrative portal of the Hosted Services.
City agrees (on behalf of itself and its Authorized Users) that: (a) in registering to access the Hosted Services, City and Authorized
Users will provide true, accurate and complete information; (b) City and Authorized Users will maintain the confidentiality and
security of the login credentials used to access the Hosted Services (“Login Credentials”); (c) City and Authorized Users will not
transfer, share, disclose or resell such Login Credentials or otherwise share or transfer access to the Hosted Services to any third party;
(d) City and Authorized Users will promptly notify OpenCounter of any unauthorized use of such Login Credentials or City’s account
with OpenCounter; and (e) after accessing the Hosted Services, City and Authorized Users will “log off” and exit from their session at
the end of each session. OpenCounter will not be liable for any Liability arising from City’s failure to comply with the foregoing, and
City is entirely responsible for all activities taking place through City’s Login Credentials and actions taken by its Authorized Users.
2.7. Feedback. With respect to comments, suggestions, enhancement requests, recommendations or other feedback
relating to the Hosted Services provided by City, its employees, agents, project manager and/or Authorized Users (“Feedback”), City
hereby grants (on behalf of itself, and its employees, agents, project manager and Authorized Users) to OpenCounter a non-exclusive,
perpetual, irrevocable, world-wide, royalty-free, fully paid up, sublicenseable, transferable, right and license, with full rights to grant
sublicenses, to use, make, have made, offer for sale, sell, license, import, copy, create derivative works of, distribute, perform,
transmit, and display and otherwise exploit such Feedback for any and all purposes whatsoever, without restriction.
2.8. Use of Application Data and City Content. City hereby grants to OpenCounter a worldwide, non-exclusive,
royalty-free, fully paid up, non-transferable (except as permitted under Section 12.2) right and license: (a) during the Subscription
Term, to use, store, process, modify, reproduce, distribute and display the Application Data and City Content, and to grant sublicenses
to third parties, each for the sole purposes of providing the Hosted Services and Professional Services, performing its obligations
under this Agreement, and complying with applicable law or legal requirements; and (b) during and after the Subscription Term, to
use, store, process, modify, reproduce and display the Application Data for OpenCounter’s internal business purposes, including
development, diagnostic, forecasting, planning, analysis and corrective purposes in connection with the Hosted Services, and for
otherwise improving and enhancing the Hosted Services.
2.9. Right to Use Permit Program Data. “Permit Program Data” means data about the City’s program pertaining to
the process of applying for and obtaining permits through the Hosted Services, which may be derived from Application Data, and
which in all instances does not, and cannot be used to, identify any individual. City hereby grants to OpenCounter a worldwide, non-
exclusive, royalty-free, perpetual, fully paid up, non-transferable (except as permitted under Section 12.2) right and license, during
and after the Subscription Term, to use, store, process, reproduce and display the Permit Program Data.
2.10. Right to Use Aggregated Data. “Aggregated Data” means any data obtained by OpenCounter, including data
pertaining to the Hosted Services, OpenCounter’s systems and software, and the use of any of the foregoing, and data which may be
derived from Application Data, which in all instances: (i) does not, and cannot be used to, identify any individual, and (ii) is not
attributed to City. Aggregated Data includes data that has been combined into databases which include third party data.
Notwithstanding anything else in this Agreement, during and after the Subscription Term, OpenCounter shall have the right to
distribute, disclose and otherwise freely exploit in any manner Aggregated Data for OpenCounter’s business purposes, including
disclosure within its public statements and marketing materials describing and/or promoting OpenCounter and/or the Hosted Services.
2.11. Consents from Permit Applicants. City represents, warrants and agrees that: (a) it will comply with applicable
law, including the laws of the territories from which any Application Data is obtained, in transmitting and in soliciting the
transmission of, Application Data into the Hosted Services as contemplated under this Agreement; and (b) OpenCounter represents,
warrants and agrees that prior to authorizing an Application and Application Data to be provided through the Hosted Services,
OpenCounter shall have required each Permit Applicant to provide all applicable consents and approvals required for the transmission
of such Application Data to OpenCounter and for the grant of the licenses to OpenCounter in Section 2.8..
2.12. Prohibited Information. Notwithstanding anything else in this Agreement, the parties acknowledge and agree that
(a) Applicants and City have sole control over any and all Application Data that is provided and/or transmitted into the Hosted
Services; (b) OpenCounter does not require receipt of or access to any specific type or amount of information to be transmitted to
OpenCounter; (c) City shall not transmit, disclose or otherwise provide (or cause or allow to be transmitted or provided to
OpenCounter) (i) social security numbers, passport numbers, driver’s license numbers or other government issued state or national
identification numbers, (ii) health insurance card or policy identification numbers, (iii) medical or health information, (iv) financial
account numbers, credit card or other payment account information, and/or (v) security code passwords (collectively, “Prohibited
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Information”); and (d) if City transmits or provides to OpenCounter any Prohibited Information, to the extent authorized by law, City
shall indemnify, and hold OpenCounter harmless from and against, any Liability arising from the transmission to OpenCounter of any
Prohibited Information, and OpenCounter shall have no liability or obligation whatsoever with respect to such Prohibited Information.
2.13. Additional Terms and Conditions. The parties agree to the additional terms and conditions set forth in Schedule
C (the “City Terms”). In the event that any terms or conditions of this Agreement contradicts any terms or conditions of the City
Terms, the terms or conditions of this Agreement will prevail and control, unless the City Terms make specific reference to the
Section of this Agreement that is to be amended. Notwithstanding the foregoing, no City Term will be effective to: (a) decrease any
limitation of liability, reduce the scope of recoverable damages, or restrict or eliminate exceptions to the limitation of liability; (b)
expand, eliminate or restrict the scope of any indemnity obligations set forth in this Agreement.
3. Fees.
3.1. Fees. City will pay the fees payable under this Agreement as described in the Project Schedule. Unless other
payment terms are set forth in the Project Schedule, all fees payable by City to OpenCounter will be invoiced by OpenCounter and
will be due and payable by City within thirty (30) days after the invoice date. City agrees that unless otherwise set forth in this
Agreement, all fees paid and payable to OpenCounter under this Agreement shall be non-refundable. Any amounts not paid by the
due date thereof will bear interest at the rate of one percent (1.0%) per month or the highest rate permitted by law, whichever is lower,
and OpenCounter reserves the right to suspend the Hosted Services if payment for amounts due under this Agreement is not made
within thirty (30) days after the due date thereof.
3.2. Taxes. The fees payable by City to OpenCounter under this Agreement are exclusive of any and all taxes, levies or
duties imposed by any local, state, federal or international taxing authority, including any applicable, sales, VAT, use, excise, and
withholding taxes based on the transactions or payments made by City to OpenCounter under this Agreement (other than taxes based
on OpenCounter’s net income and taxes which are measured by wages, salaries, or other renumeration paid to persons employed or
contracted by OpenCounter for work performed under this Agreement) (collectively, “Taxes”). City is governmental entity exempt
from the payment of Taxes.
4. Support Services; Support Obligations of the Parties.
4.1. Support Services. Commencing on the Launch Date and continuing throughout the term of the Agreement,
OpenCounter will provide technical support services and maintenance for the Hosted Services (“Support Services”) in accordance
with OpenCounter’s support policy located at [www.opencounter.com/support] (the “Support Services Policy”). The Support
Services Policy is hereby incorporated into this Agreement by this reference. OpenCounter reserves the right to modify the Support
Services Policy from time to time effective immediately by posting an updated Support Services Policy, provided that OpenCounter
will not materially degrade the level of Support Services during the Subscription Term. OpenCounter’s support obligations extend
solely to City’s designated support contacts, the number of which is set forth on Exhibit A. City acknowledges and agrees that, as
between City and OpenCounter, City shall be solely responsible to provide any and all support to Permit Applicants and other third
parties. For purposes of clarity, OpenCounter shall not have any obligation to provide Support Services to Permits Applicants or any
third parties.
5. Confidentiality.
5.1. Confidential Information. Each party to this Agreement acknowledges that, in the course of performing under this
Agreement, each party (as a receiving party) may obtain or otherwise learn the Confidential Information of the other party (as the
disclosing party). “Confidential Information” means any information relating to a disclosing party, its business, technology,
suppliers, licensors, resellers, distributors, customers, and third parties to whom the disclosing party has an obligation of
confidentiality, whether in tangible or intangible form, which is either marked or designated as “confidential” or “proprietary,” or
disclosed under circumstances indicating its confidential or proprietary nature, or otherwise would be known to be confidential or
proprietary by a reasonable person. The Confidential Information of a disclosing party shall be owned exclusively by the disclosing
party. The parties acknowledge and agree that the Documentation, and any performance measures of the Hosted Services are
OpenCounter’s Confidential Information.
5.2. Obligations. The receiving party agrees: (a) to protect the Confidential Information from unauthorized
dissemination and use; (b) to use the Confidential Information solely for performing its obligations and exercising its rights hereunder;
(c) not to disclose any Confidential Information, or any part or parts thereof, except to the receiving party’s employees and contractors
who are aware of the confidentiality obligations imposed by this Section 5.2 and have agreed to comply with the requirements of this
Section 5.2; and (d) not to disclose or otherwise provide to any other third party, without the prior written consent of the disclosing
party, any Confidential Information or any portion thereof. The receiving party shall remain liable for any non-compliance of such
employee or contractor with the terms of this Section 5.2. The receiving party shall take the same degree of care that it uses to protect
its own highly sensitive confidential and proprietary information of similar nature and importance (but in no event less than reasonable
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care) to protect the confidentiality and avoid the unauthorized dissemination, disclosure or use of the Confidential Information.
5.3. Exclusions. The foregoing restrictions pertaining to the Confidential Information shall not apply to any
Confidential Information that: (a) was or becomes publicly known through no fault of or breach of this Agreement by the receiving
party; (b) was known by the receiving party before receipt from the disclosing party; (c) becomes known to the receiving party
without confidential or proprietary restriction from a source that does not owe a duty of confidentiality to the disclosing party with
respect to such Confidential Information; or (d) is independently developed by the receiving party without the use of the Confidential
Information of the disclosing party. In addition, the receiving party may disclose the Confidential Information if the receiving party is
legally compelled to do so, including in accordance with the Texas Public Information Act, Tex. Loc. Gov’t Code Section 552 et al.,
provided that prior to any such compelled disclosure, the receiving party shall (if legally permitted to) notify the disclosing party of
such compelled disclosure, shall cooperate fully with the disclosing party in protecting against any such disclosure and/or obtaining a
protective order narrowing the scope of such disclosure and/or use of the Confidential Information, and shall solely disclose the
portion of the Confidential Information compelled to be disclosed solely to the party entitled to receive it.
5.4. Injunctive Relief. Each receiving party agrees that, due to the unique nature of the Confidential Information, the
unauthorized disclosure or use of the Confidential Information will cause irreparable harm and significant injury to the disclosing
party, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, each
receiving party agrees that the disclosing party, in addition to any other available remedies, shall have the right to seek an immediate
injunction and other equitable relief enjoining any breach or threatened breach of the obligations under this Section 5, without the
necessity of posting any bond or other security. The receiving party shall promptly notify the disclosing party in writing upon
becoming aware of any such breach or threatened breach.
5.5. Terms of Agreement. The parties may disclose the general nature of the relationship between the parties, but a
party may not disclose the terms and conditions of this Agreement without the prior written consent of the other party, except: (a) as
required by the applicable laws, including without limitation, requirements to file a copy of this Agreement (redacted to the extent
reasonably permitted by applicable law) or to disclose information regarding the provisions hereof or performance hereunder to
applicable regulatory authorities; (b) in confidence, to legal counsel; (c) in confidence, to accountants, banks, and financing sources
and their advisors; (d) in connection with the enforcement of this Agreement or any rights hereunder; (e) in confidence, in connection
with an actual or proposed merger, acquisition, or similar transaction; and (f) to the City’s governing body in a public agenda.
5.6. Press Release. On the Launch Date or close to such date, the parties may issue a joint press release announcing the
launch of the Hosted Services. Such press releases shall be subject to City’s written approval, which shall not be unreasonably withheld.
6. Application Data.
6.1. Information Security Programs. Each party will maintain a written information security program that contains
administrative, technical and physical safeguards to protect against anticipated threats or hazards to the security, confidentiality or
integrity of, the unauthorized or accidental destruction, loss, alteration or use of, and the unauthorized access to or acquisition of,
Application Data to which such party has access. Each such information security program will be consistent with the requirements of
applicable laws and regulations.
6.2. Export of Data. To the extent that Application Data is contained within the Hosted Services: (a) City shall have the
right and ability during the Term to export the Application Data through the administrative portal of the Hosted Services; and (b) such
Application Data may not be available more than thirty (30) days following the expiration or termination of this Agreement. Unless
the Application Data has been deleted from the Hosted Services earlier, City may request export of such Application Data within
thirty (30) days after the expiration or termination of this Agreement, provided that OpenCounter shall have the right to charge
reasonable hourly rates for the export of such Application Data.
7. Warranty; Representations and Warranties; Disclaimers.
7.1. Performance. OpenCounter warrants that, during the Subscription Term, the Hosted Services will conform in all
material respects to the applicable specifications contained in the Project Schedule (“Specifications”). In the event that the Hosted
Services do not meet the foregoing warranty, OpenCounter’s sole obligation and City’s exclusive remedy shall be for OpenCounter to
replace the Hosted Services with corrected Hosted Services within thirty (30) days after receipt of notice of such breach(es) from City.
7.2. Mutual Representations and Warranties. Each party hereby represents and warrants that: (a) it has the full
corporate right, power and authority to enter into this Agreement and to perform the acts required hereunder; and (b) the execution of
this Agreement by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate
any agreement to which such party is bound or any obligation of such party.
7.3. Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, EACH
PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,
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INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, ACCURACY, AND ANY WARRANTIES
THAT MAY ARISE OUT OF COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. OPENCOUNTER DOES NOT
WARRANT THAT THE HOSTED SERVICES WILL MEET CITY’S REQUIREMENTS, WILL BE ERROR-FREE OR SECURE,
OR THAT THE HOSTED SERVICES WILL BE UNINTERRUPTED. OPENCOUNTER DOES NOT WARRANT THAT ANY
APPLICATION DATA INPUT INTO THE HOSTED SERVICES WILL BE ACCURATE OR FREE OF ERRORS, THE
OPERATION OF THE HOSTED SERVICES WILL BE COMPLETELY SECURE, ERROR FREE OR UNINTERRUPTED, OR
ALL ERRORS WILL BE CORRECTED. CITY ASSUMES ALL RISK OF DELAYS OR INTERRUPTIONS IN ACCESS TO OR
USE OF THE HOSTED SERVICE RESULTING FROM USE OF THE INTERNET AND/OR TELECOMMUNICATIONS TO
ACCESS THE HOSTED SERVICE, AND OPENCOUNTER SHALL HAVE NO LIABILITY FOR ANY SUCH DELAYS OR
INTERRUPTION.
8. Indemnification.
8.1. By OpenCounter. SUBJECT TO CITY’S COMPLIANCE WITH SECTION 8.3, OPENCOUNTER SHALL
INDEMNIFY CITY FROM ANY LIABILITIES ARISING FROM OPENCOUNTER’S BREACH OF SECTIONS 2.5 AND
2.11. SUBJECT TO CITY’S COMPLIANCE WITH SECTION 8.3, OPENCOUNTER SHALL INDEMNIFY, DEFEND AND
HOLD HARMLESS (AND AT OPENCOUNTER’S OPTION SETTLE) THE CITY FROM ANY CLAIM BROUGHT
AGAINST CITY BY AN UNAFFILIATED THIRD PARTY ALLEGING THAT CITY’S AUTHORIZED USE AND ACCESS
OF THE HOSTED SERVICES (EXCEPT FOR ANY CITY CONTENT INCORPORATED THEREIN) UNDER THIS
AGREEMENT INFRINGES OR MISAPPROPRIATES SUCH THIRD PARTY’S U.S. PATENTS, TRADE SECRETS,
COPYRIGHTS OR TRADEMARKS IN THE TERRITORY (EACH, AN “INFRINGEMENT CLAIM”) AND WILL PAY
ANY SETTLEMENT OF SUCH INFRINGEMENT CLAIM CONSENTED TO BY OPENCOUNTER OR ANY DAMAGES
FINALLY AWARDED TO SUCH THIRD PARTY BY A COURT OF COMPETENT JURISDICTION AS THE RESULT
OF SUCH INFRINGEMENT CLAIM. If an Infringement Claim occurs, or in OpenCounter’s opinion is reasonably likely to occur,
OpenCounter may, at its expense and at its sole discretion, in addition to its indemnification obligations under this Section 8.1: (a)
procure the right to allow City to continue to use the Hosted Services (or infringing portions thereof), or (b) modify or replace the
Hosted Services (or infringing portions thereof) to become non-infringing, or (c) if none of the two (2) foregoing options is
commercially feasible, terminate City’s right to access and use the Hosted Services (or affected portion thereof) and refund, on a pro-
rata basis, any unused portion of the subscription fees paid by City for the Hosted Services (or affected portion thereof).
Notwithstanding the foregoing, OpenCounter shall have no obligations under this Section 8.1 or otherwise with respect to any
Infringement Claim to the extent any Infringement Claim is based upon or arises out of: (i) any modification or alteration of the
Hosted Services (or portion thereof) not made by OpenCounter that results in the alleged infringement; (ii) any unauthorized access or
use of the Hosted Services (or any portion thereof) or any breach of this Agreement by City and/or its Authorized Users; (iii) any
combination or use of the Hosted Services (or any portion thereof) with other software, products, equipment, methods or services not
provided by OpenCounter that results in such infringement; (iv) City’s failure within a reasonable time to use or implement corrected
or replacement Hosted Services (or portions thereof) that would have avoided or mitigated the alleged infringement; (v) City’s
continuance of allegedly infringing activity beyond a reasonable period after being notified thereof; and/or (vi) any specifications or
requirements supplied by City or any City Content.
8.2. By City. Subject to OpenCounter’s compliance with Section 8.3, and to the extent permitted by law, City shall
indemnify OpenCounter from any Liabilities arising from City’s breach of Sections 2.5 and 2.11.
8.3. Procedure. The party seeking indemnification under this Section 8 will: (a) provide notice of the applicable
indemnified claim to the indemnifying party within a reasonable time after becoming aware of such claim; (b) provide reasonable
assistance to indemnifying party in the defense of the indemnified claim and the indemnifying party will promptly assume and
conduct (at its own expense) the full defense and/or settlement of any indemnified claim. The indemnifying party shall not have the
right to settle any indemnified claim, without the prior written consent of the indemnified party, which contains an admission of
liability or wrongdoing on the part of indemnified party or imposes a material obligation (including payment obligation) on
indemnified party that is not wholly discharged by the indemnifying party. The indemnified party may participate in the defense and
settlement of any claim for which it is entitled to indemnification at its sole expense.
8.4. Remedies. The remedies set forth in this Section constitute each indemnified party’s sole and exclusive remedies,
and each indemnifying party’s entire liability, with respect to infringement, violation or misappropriation of third party Intellectual
Property Rights.
9. Ownership.
9.1. By City. As between the parties, City owns and shall retain all right, title and interest (including without limitation
all Intellectual Property Rights) in and to the Applications submitted via the Hosted Services, City Content, and City’s systems and
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networks. City reserves all rights not expressly granted to OpenCounter under this Agreement.
9.2. By OpenCounter. As between the parties, OpenCounter owns and shall retain all right, title and interest (including
without limitation all Intellectual Property Rights) in and to the Hosted Services (except for any City Content incorporated therein),
and any modifications, improvements, derivative works of, and enhancements to all or portions of the Hosted Services (or any portion
thereof) or Documentation performed by any party, and OpenCounter’s systems and networks. OpenCounter reserves all rights not
expressly granted to City under this Agreement.
10. Term and Termination.
10.1. Term. The initial term of this Agreement (the “Initial Term”) is set forth on Schedule A. Thereafter, at the sole option
of the City, the Term may be further extended, not to exceed a total of six (6) months (each, a “Renewal Term”). The Initial Term, plus
any Renewal Terms shall be the “Term” of this Agreement.
10.2. Termination for Breach. In addition to any other termination rights due to breach under this Agreement, if either
party materially breaches this Agreement, the non-breaching party, at its option, shall have the right to terminate this Agreement by
written notice to the breaching party unless, within thirty (30) calendar days (or ten (10) days for payment breaches) after the
breaching party’s receipt of written notice specifying such breach in reasonable detail from the other party, the breaching party cures
such breach. Additionally, OpenCounter shall have the right to suspend the Services in the event of a material breach of this
Agreement by City which has not been cured within thirty (30) days (or ten (10) days for payment breaches) after notice thereof to
City.
10.3. Effect of Termination. Upon the expiration or any termination of this Agreement: (a) the licenses granted by
OpenCounter to City in Sections 2.4 and 2.6 shall terminate, and OpenCounter shall have the right to immediately terminate the
Hosted Services and any other services under this Agreement; (b) each party will promptly and permanently destroy and delete all
Confidential Information of the other party in its possession or control, other than an archival copy for compliance, enforcement, and
defense purposes, provided that any such retained copies shall remain subject to Section 5 of this Agreement for so long as they are
retained; (c) all fees accrued through the date of termination will be immediately due and payable; and (d) Sections 1, 2.8, 2.9, 2.10, 3,
5, 6, 8, 9, 10.3, 11 and 12 shall survive. Upon request from the other party, each party will provide the other party with a written
certification, signed by one of its officers certifying the destruction of all such Confidential Information. Termination of this
Agreement by either party shall not act as a waiver of any breach of this Agreement, shall not act as a release of either party from any
liability for breach of such party’s representations, warranties or obligations under this Agreement, and shall be without prejudice to
any other right or remedy that a party may have at law or in equity. Neither party shall be liable to the other party due to termination
of this Agreement in accordance with Section 10 or any other express termination rights under this Agreement, whether for
compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of
expenditures, inventory, investments, leases or commitments in connection with the business or goodwill of either party
11. Limitation of Liability. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, REVENUE, BUSINESS,
SAVINGS, DATA OR USE, OR THE COST OF SUBSTITUTE PROCUREMENT, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT,
OPENCOUNTER’S AGGREGATE LIABILITY TO CITY UNDER THIS AGREEMENT, WHETHER BASED ON NELIGENCE,
CONTRACT, TORT, INDEMNIFICATION, STRICT LIABILTIY OR ANY OTHER THEORY, WILL NOT EXCEED THE
AMOUNTS PAID BY CITY TO OPENCOUNTER UNDER THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL
OPENCOUNTER HAVE ANY LIABILITY OR RESPONSIBILITY FOR THE ACCURACY OF ANY APPLICATION DATA
THAT IS INPUTTED INTO THE HOSTED SERVICES OR CITY CONTENT INCORPORATED INTO THE HOSTED
SERVICES, INCLUDING, WITHOUT LIMITATION, INACCURACIES IN CITY CONTENT INTRODUCED DURING THE
INPUT BY OPENCOUNTER OF SUCH CITY CONTENT INTO THE HOSTED SERVICE. THE PARTIES ACKNOWLEDGE
THAT BUT FOR THE LIMITATIONS CONTAINED IN THIS AGREEMENT, THEY WOULD NOT HAVE ENTERED INTO THIS
AGREEMENT. THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY
LIMITED REMEDIES SET FORTH IN THIS AGREEMENT. NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, THE LIMITATIONS ON AMOUNT AND/OR TYPES OF DAMAGES SHALL NOT APPLY TO CAUSES OF
ACTION OR DAMAGES CAUSED OR CREATED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF
OPENCOUNTER.
12. General.
12.1. Relationship of Parties. Both parties are, and shall remain at all times, independent contractors, and nothing in this
Agreement will be construed to create an agency, employment, fiduciary, representative or any other relationship between the parties.
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12.2. Assignment. Neither party shall assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or
involuntarily, by operation of law or otherwise, this Agreement or any of its rights or obligations under this Agreement without the
prior written consent of the other party. Notwithstanding the foregoing, a party may assign this Agreement without the prior written
consent of the other party solely in connection with a merger, consolidation, corporate reorganization, sale of all or substantially all of
such party’s assets, sale of stock, change of name or like event, provided that the assigning party provides reasonable notice of such
assignment to the other party. Any attempted assignment other than in accordance with this Section 12.2 shall be null and void.
Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective
successors and permitted assigns.
12.3. Governing Law, Jurisdiction, and Venue. This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas, without reference to its conflicts of law provisions. The parties disclaim the application of the
United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act to this
Agreement. Any dispute regarding this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located
in Denton County, in the State of Texas, and the parties hereby irrevocably agree to submit to the personal and exclusive jurisdiction
and venue of such courts, provided that either party may seek injunctive relief in any court of competent jurisdiction.
12.4. Compliance with Law. In performing its obligations and exercising its rights and licenses under this Agreement,
each party will comply with all applicable laws, rules and regulations as may be applicable to such party.
12.5. Export Control. In performing under this Agreement, City agrees to comply fully with all applicable laws,
including export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations
and the export laws of international countries to which City is subject (collectively “Export Controls”). Without limiting the
generality of the foregoing, City will not, and will require its agents and representatives not to, export, direct or transfer the Services,
Software, Documentation, technical information or other portions of the Services provided by OpenCounter hereunder, or any direct
product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
12.6. Government Use. The Software, Documentation and other portions of the Services are “commercial items” as that
term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,”
respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the Software, Documentation or other portions of the
Services are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1
through 227.7202-4, as applicable, the U.S. Government’s rights in the foregoing will be only those specified in this Agreement.
City’s rights in the Software, Documentation and other portions of the Services are limited to those expressly granted in Sections 2.1
and 2.6. OpenCounter and its licensors reserve all rights and licenses in and to the Software, Documentation and other portions of the
Services not expressly granted to City under this Agreement.
12.7. No Third Party Beneficiary. This Agreement is made and entered into for the sole protection and benefit of the
parties hereto and is not intended to convey any rights or benefits to any third party, nor will this Agreement be interpreted to convey
any rights or benefits to any person except the parties hereto.
12.8. Force Majeure. Neither party shall be liable for any loss, damage or penalty resulting from delays or failures in
performance resulting from Force Majeure Events. The party affected by the Force Majeure Event will promptly notify the other party
and will resume performance when the Force Majeure Event is no longer effective. “Force Majeure Events” means events beyond a
party’s reasonable control, including without limitation acts of nature, labor disputes, the stability or availability of the Internet or a
portion thereof, actions by a governmental authority (such as a moratorium on any activities related to this Agreement or changes in
government codes, ordinances, laws, rules, regulations, or restrictions), telecommunication or Internet network failures or brown-outs,
failures or unavailability of third party systems, networks or software, flood, earthquake, fire, lightning, epidemics, war, acts of
terrorism, riots, civil disturbances, sabotage, power grid failures, and denial of service attacks and other hacking attacks.
12.9. Waiver. The waiver by either party of a breach of or a default under any provision of this Agreement shall be in
writing to be effective and shall not be construed as a waiver of any subsequent breach of or default under the same or any other
provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or
remedy that it has or may have hereunder operate as a waiver of any right or remedy.
12.10. Severability. Any determination that any provision of this Agreement or any application thereof is invalid, illegal or
unenforceable in any respect in any instance shall not affect the validity, legality and enforceability of such provision in any other instance,
or the validity, legality, or enforceability of any other provision of this Agreement.
12.11. Captions and Section Headings. The captions and Section and paragraph headings used in this Agreement are inserted
for convenience only and shall not affect the meaning or interpretation of this Agreement.
12.12. Notices. Any notice required to be given under this Agreement shall be in writing and delivered personally, by email
transmission, or by express overnight mail to the other designated party at the postal address or email address set forth after each party’s
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signature (or such other postal address or email address provided by each party in accordance with this Section). Notices shall be deemed
effective: (a) on the date of delivery if delivered personally; (b) on the date of email transmission, if sent by email and a read receipt or
other confirmation by the recipient of the receipt of such email; or (c) one (1) business day after deposit, if sent by express overnight
courier, with written confirmation of receipt.
12.13. Entire Agreement; Amendment. This Agreement contains the complete understanding between OpenCounter and
City with respect to the subject matter hereof and supersedes and cancels all previous written and oral agreements, communications and
other understandings relating to the subject matter of this Agreement. No changes, amendments, or alterations to this Agreement shall
be effective unless signed by duly authorized representatives of both parties, except as expressly provided herein. No amendment or
modification shall adversely affect vested rights or causes of action that have accrued prior to the effective date of such amendment or
modification. No terms on purchase orders, invoices or like documents exchanged between the parties shall modify or supplement the
terms of this Agreement and shall be deemed void and shall have no effect.
12.14. Counterparts. This Agreement may be executed and delivered in one or more counterparts (including facsimile,
PDF or other electronic counterparts), with the same effect as if the parties had signed the same document. Each counterpart so
executed shall be deemed to be an original, and all such counterparts shall be construed together and shall constitute one Agreement.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Master Services Agreement as of the Effective Date.
OPENCOUNTER ENTERPRISES, INC. CITY OF DENTON, TEXAS
By:
Name: Peter Koht
Title: Co-founder and Chief Operating Officer
By:
Name:
Title:
Address/ Email for Notices:
Address: 25 Taylor Street
San Francisco, CA 94102
Attention: Contracts
Email: contracts@opencounter.com
Address/Email for Notices:
Address: 215 E McKinney St, Denton, TX 76201
Attention: Christina Davis
Email: Christina.Davis@cityofdenton.com
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Master Subscription Agreement Schedule A OpenCounter + Denton
Schedule A
Term: The Term commences on the Effective Date and shall continue for a period Five (5) year(s) after the Effective Date.
Thereafter, at the sole option of the City, the Term may be further extended, not to exceed a total of six (6) months.
Hosted Service Features:
OpenCounter Zoning Portal
The OpenCounter Zoning Portal renders complex land use regulations in the browser and makes regulations responsive to citizen
inquiries.
Specifically, OpenCounter Zoning Portal helps applicants to navigate the site selection process by answering the seemingly simple
question: "Where is my project permitted?" It does so by analyzing and importing the logical structure of the municipal code, factoring
in the kind of project citizen end users want to pursue and secondary issues that may have huge implications for like use, such as
whether a restaurant will serve alcohol, or have live entertainment.
Powered by a patent-pending geospatial rules engine, the OpenCounter Zoning Portal brings a new level of service to applicants,
freeing them from parsing through dense code publishing sites and normalizing the process to an intuitive mapping interface while
putting applicants in touch with City Subject Matter Experts to facilitate formal zoning and land use applications.
OpenCounter Business Portal
The OpenCounter Business Portal helps entrepreneurs understand the costs and complexity of establishing or growing a business. The
OpenCounter Business Portal guides applicants through an intuitive permit discovery process, and estimates the time and cost
associated with the specifics of their project. Once applicants are ready to proceed, it also allows them to submit their data.
Number of City’s Designated Support Contacts: One (1)
Target Launch Date (Zoning Portal): November 31, 2018
Target Launch Date (Business Portal): November 31, 2018
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Master Services Agreement Schedule B OpenCounter + Denton
Schedule B
Project Schedule & Scope of Services
1. Scope of Services
OpenCounter has configured and launched the OpenCounter Zoning Portal and OpenCounter Business Portal for the City. The
installations include use codes, permissions and clearances and has been reviewed and approved by staff. This Phase has been
completed, accepted and launched, but OpenCounter will use the opportunity afforded by this extension to review and augment returns
in the Portals based on staff feedback. All professional services are included in the licensing prices outlined below and services are
subject to the service levels outlined at: https://opencounter.com/terms_of_service
2. Acceptance Testing
When an implementation milestone is ready for use and testing, OpenCounter will notify City and City will commence acceptance
testing of the implementation milestone, with such reasonable assistance and support as necessary from OpenCounter personnel. The
acceptance test (“Acceptance Test”) will be conducted solely for the purpose of demonstrating that the deliverable or functionality
(“Milestone”) performs in accordance with its specifications set forth in the applicable documentation (“Acceptance Criteria”). The
Acceptance Test will be in a form mutually agreed upon between the parties, and will be completed within five (5) business days of
the date upon which OpenCounter informs City that the Milestone is ready for testing (“Acceptance Period”).
If the Milestone passes the Acceptance Test, City will promptly so notify OpenCounter in writing (“Notice of Acceptance”). If the
Milestone does not pass the Acceptance Test, City will notify OpenCounter, in writing, prior to the expiration of the Acceptance
Period, specifying in reasonable detail in what respects the Milestone has failed to meet the Acceptance Criteria (“Notice of
Rejection”).
OpenCounter will promptly correct any deficiencies set forth in the Notice of Rejection, and City will have an additional Acceptance
Period to repeat the Acceptance Test for the corrected Milestone. A Milestone will be deemed accepted by City upon the earlier of (i)
the issuance by City of a Notice of Acceptance, (ii) the use by City of the Milestone on a production basis, or (iii) the expiration of the
applicable Acceptance Period prior to the receipt by OpenCounter of a Notice of Rejection.
3. City Responsibilities and Level of Effort
Commercial Development is a complex project involving multiple departments across the City.
It is critical to the project schedule that City staff are engaged throughout the project in order to ensure successful outcomes. It is also
important that stakeholder roles are defined so that decisions can be made effectively and efficiently during the execution of the
project.
Economic Development (Econ. Dev.) will serve as the project sponsor (“Project Sponsor”). The Project Sponsor will appoint a
project owner (“Project Owner”) as the key executive for the project, and a project manager (“Project Manager”) to facilitate
ongoing project administration.
The Project Owner will be responsible for testing and accepting Milestones in accordance with the applicable Acceptance Criteria
defined above as well as providing strategic oversight for the development of the Instance.
The Project Manager will provide access to required data and resources, facilitate calls and meetings with City staff, and provide
assistance and support during on-site visits and training sessions. OpenCounter will provide bi-weekly updates during the timeframe
outlined in the Implementation Plan set forth in Table 1.
The Project Manager will also facilitate calls and meetings with City subject matter experts (“Subject Matter Experts”) in specific
permitting verticals and provide assistance and support with communications with Subject Matter Experts.
Subject Matter Experts time commitments will be limited to project status calls on an as-needed basis and during the verification of
City Content during defined Acceptance Testing periods defined in the Implementation Plan.
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Master Services Agreement Schedule B OpenCounter + Denton
4. Training
The goal of the project is to build a site that will be easy for citizens to use, and for City staff to administer. To that end, OpenCounter
will offer training sessions to educate Department staff on the tools, technologies, and best practices of the various components of the
Hosted Services.
Three (3) training sessions (each 60 minutes) are included within the fees detailed in 6.1 below. Additional training may be
provided, upon request by City, at OpenCounter’s standard fees for such training. All training will be provided remotely via online
video conference at such dates and times mutually agreed by the parties.
The schedule for the training sessions will be determined by OpenCounter and City project staff and defined during the Project
Management Phase of the Implementation Plan outlined above.
OpenCounter maintains online documentation to explain the functionality of the Hosted Services. Documentation will be updated to
reflect new features. The documentation will be accessible through the following links:
x https://help.opencounter.com
5. Publicity and Post-Launch Promotion
OpenCounter will link to the Instance on OpenCounter’s website at www.opencounter.com. OpenCounter will also tweet new
customer announcements on its Twitter account @opencounter. The City will link to the Instance from its homepage, departmental
landing pages and in its outbound marketing and promotional materials in order to ensure that the service is easily accessible to small
business owners and entrepreneurs.
OpenCounter and the City will collaborate on a launch press release as well as a mid-year press release featuring case studies of end
users who utilize the tool. These case studies may be leveraged for existing City marketing / program materials.
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Master Services Agreement Schedule B OpenCounter + Denton
6. Fees and Invoice Schedule. City will pay the fees described below within thirty (30) days after the date of the applicable
invoice therefor. City agrees that, except as set forth in the Agreement, all fees are non-refundable and its obligation to pay fees under
this Agreement is an irrevocable and binding obligation of City. Invoices will be addressed to City to the attention of the Econ. Dev.
6.1 Fees by Category
Line Item Amount
Professional Services:
Configuration of OpenCounter Hosted Services (Zoning & Business Portals)
$ N/A
Annual Subscription (commencing on the Effective Date) $25,000
6.3 Invoice Schedule
Invoices Date Amount
Configuration / Translation Costs N/A N/A
Year 1 Subscription – May be invoiced on or
prior on the Effective Date
November 31, 2018 to October 31,
2019
$25,000
Year 2 Subscription –First Anniversary of the
Effective Date
November 1, 2019 to October 31,
2020
$25,000
Year 3 Subscription –Second Anniversary of
the Effective Date
November 1, 2020 to October 31,
2021
$25,000
Year 4 Subscription –Third Anniversary of
the Effective Date
November 1, 2021 to October 31,
2022
$25,000
Year 5 Subscription –Fourth Anniversary of
the Effective Date
November 1, 2022 to October 31,
2023
$25,000
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Master Services Agreement Schedule B OpenCounter + Denton
Schedule C
Additional Terms and Conditions
No Excess Obligations. In the event this Agreement spans multiple fiscal years, City’s continuing performance under this Agreement
is contingent upon the appropriation of funds to fulfill the requirements of the contract by the City’s governing body. If the City’s
governing body fails to appropriate or allot the necessary funds, City shall issue written notice to OpenCounter that City may
terminate the Agreement without further duty or obligation.
Limitations. City is subject to constitutional and statutory limitations on its ability to enter into certain terms and conditions of
the Agreement, which may include those terms and conditions relating to: disclaimers and limitations of warranties;
disclaimers and limitations of liability for damages; waivers, disclaimers, and limitations on legal rights, remedies,
requirements, and processes; limitations of time in which to bring legal action; granting control of litigation or settlement to
another party; liability for acts or omissions of third parties; payment of attorney’s fees; dispute resolution; and indemnities.
Terms and conditions relating to these limitations will not be binding on City, except to the extent not prohibited by the
Constitution and the laws of the State of Texas.
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Exhibit
House Bill 89 - Government Code 2270
VERIFICATION
I, _______________________________________________, the undersigned
representative of ______________________________Company or Business name
(hereafter referred to as company), being an adult over the age of eighteen (18)
years of age, verify that the company named-above, under the provisions of
Subtitle F, Title 10, Government Code Chapter 2270:
1. Does not boycott Israel currently; and
2. Will not boycott Israel during the term of the contract the above-named
Company, business or individual with City of Denton.
Pursuant to Section 2270.001, Texas Government Code:
1. “Boycott Israel” means refusing to deal with, terminating business activities
with, or otherwise taking any action that is intended to penalize, inflict
economic harm on, or limit commercial relations specifically with Israel, or
with a person or entity doing business in Israel or in an Israeli-controlled
territory, but does not include an action made for ordinary business
purposes; and
2. “Company” means a for-profit sole proprietorship, organization,
association, corporation, partnership, joint venture, limited partnership,
limited liability partnership, or any limited liability company, including a
wholly owned subsidiary, majority-owned subsidiary, parent company or
affiliate of those entities or business associations that exist to make a profit.
___________________________________
Name of Company Representative (Print)
________________________________
Signature of Company Representative
_________________________________
Date
DocuSign Envelope ID: 5C72B01D-A66F-4E86-9762-992FC1A091E7
Exhibit
Senate Bill 252 -Government Code 2252
CERTIFICATION
I, ______________________________________________, the undersigned
representative of ________________________________________________
(Company or business name) being an adult over the age of eighteen (18) years of
age, pursuant to Texas Government Code, Chapter 2252, Section 2252.152 and
Section 2252.153, certify that the company named above is not listed on the
website of the Comptroller of the State of Texas concerning the listing of
companies that are identified under Section 806.051, Section 807.051 or Section
2253.153. I further certify that should the above-named company enter into a
contract that is on said listing of companies on the website of the Comptroller of
the State of Texas which do business with Iran, Sudan or any Foreign Terrorist
Organization, I will immediately notify the City of Denton’s Materials
Management Department.
___________________________________
Name of Company Representative (Print)
________________________________
Signature of Company Representative
_________________________________
Date
DocuSign Envelope ID: 5C72B01D-A66F-4E86-9762-992FC1A091E7
Exhibit
CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ
For vendor or other person doing business with local governmental entity
This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., Regular Session.
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.e.ine. .. Sec.ion 176.001.1-.. .i.. . loc.l gove.n.en..l en.i.. .n. ..e ven.o. .ee.. .e.ui.e.en.. u n .e . Sec.ion 176.006....
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1 Name of vendor who has a business relationship with local governmental entity.
2
Check this box if you are filing an update to a previously filed questionnaire.
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3 Name of local government officer about whom the information in this section is being disclosed.
...e o. ...ice.
This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the vendor has an employment or other business relationship
as defined by Section 176.001(1-a), Local Government Code. Attach additional pages to this Form CIQ as necessary.
A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the vendor?
Yes No
B. Is the vendor receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer
named in this section AND the taxable income is not received from the local governmental entity?
Yes No
C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an
officer or director, or holds an ownership of one percent or more?
Yes No
D. Describe each employment or business and family relationship with the local government officer named in this section.
4
I have no Conflict of Interest to disclose.
5
Signature of vendor doing business with the governmental entity Date
DocuSign Envelope ID: 5C72B01D-A66F-4E86-9762-992FC1A091E7
Certificate Of Completion
Envelope I.: 7E24569A2C4248.D87FB4408E8266F4C S...u.: Co.ple.e.
Su..ec.: .le..e DocuSign: 6918 .e..in..ion .e..e. .o. .o C.u.e
Sou.ce Envelope:
Docu.en. ..ge.: 42 Sign..u.e.: 2 Envelope ..igin..o.:
Ce..i.ic..e ..ge.: 5 Ini.i.l.: 0 Co.i .o.e.
Au.o..v: En..le.
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901B .e... S..ee.
Den.on. .. 76209
co.i.po.e..ci..o ..en.on.co.
I. A...e..: 198.49.140.104
Record Tracking
S...u.: ..igin.l
4.24.2020 .:51:58 ..
.ol.e.: Co.i .o.e.
co.i.po.e..ci..o ..en.on.co.
.oc..ion: DocuSign
Signer Events Signature Timestamp
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Secu.i.. .evel: E..il. Accoun. Au..en.ic..ion
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..ing I. A...e..: 129.120.6.150
Sen.: 4.24.2020 .:57:51 ..
.ie.e.: 4.27.2020 7:21:50 ..
Signe.: 4.27.2020 7:21:58 ..
Electronic Record and Signature Disclosure:
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..ing I. A...e..: 104.254.68.254
Sen.: 4.27.2020 7:21:59 ..
.e.en.: 5.4.2020 .:45:55 ..
.ie.e.: 4.27.2020 9:14:19 ..
Signe.: 5.20.2020 10:14:18 A.
Electronic Record and Signature Disclosure:
Accep.e.: 4.27.2020 9:14:19 ..
ID: ..4e077.-59..-49cc-869.-.9668822..67
In Person Signer Events Signature Timestamp
Editor Delivery Events Status Timestamp
Agent Delivery Events Status Timestamp
Intermediary Delivery Events Status Timestamp
Certified Delivery Events Status Timestamp
Carbon Copy Events Status Timestamp
C.e.enne De.ee
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Con...c. A..ini.....o.
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Secu.i.. .evel: E..il. Accoun. Au..en.ic..ion
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Sen.: 5.20.2020 10:14:19 A.
Electronic Record and Signature Disclosure:
.o. ...e.e. vi. DocuSign
Witness Events Signature Timestamp
Wotary Events Signature Timestamp
Envelope Summary Events Status Timestamps
Envelope Sen. ....e..Enc..p .e. 5.20.2020 10:14:19 A.
Ce..i.ie. Delive.e. Secu.i.. C.ec.e. 5.20.2020 10:14:19 A.
Signing Co.ple.e Secu.i.. C.ec.e. 5.20.2020 10:14:19 A.
Co.ple.e. Secu.i.. C.ec.e. 5.20.2020 10:14:19 A.
Payment Events Status Timestamps
Electronic Record and Signature Disclosure
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