HomeMy WebLinkAbout2014-302111 •''•• ♦' •, ♦' • •
WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for
load forecasting software to be used by Denton Municipal Electric in accordance with the procedures
of State law and City ordinances; and
WHEREAS, the City Manager or a designated employee has received and reviewed and
recommended that the herein described proposals are the most advantageous to the City considering
the relative importance of price and the other evaluation factors included in the request for proposals;
and
WHEREAS, the City Council has provided in the City Budget for the appropriation of funds
to be used for the purchase of the materials, equipment, supplies or services approved and accepted
herein, NOW, THEREFORE,
SECTION 1. The items in the following numbered request for proposal for materials,
equipment, supplies or services, shown in the "Request for Proposals" on file in the office of the
Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City
considering the relative importance of price and the other evaluation factors included in the request
for proposals.
RFP
NUMBER CONTRACTOR AMOUNT
5595 Pattern Recognition Technologies, Inc. $171,000
5595 WSI Corporation $ 77,004
SECTION 2. By the acceptance and approval of the above numbered items of the submitted
proposals, the City accepts the offer of the persons submitting the proposals for such items and
agrees to purchase the materials, equipment, supplies or services in accordance with the terms,
specifications, standards, quantities and for the specified sums contained in the Proposal Invitations,
Proposals, and related documents.
SECTION 3. Should the City and person submitting approved and accepted items and of the
submitted proposals wish to enter into a formal written agreement as a result of the acceptance,
approval, and awarding of the proposals, the City Manager or his designated representative is hereby
authorized to execute the written contract; provided that the written contract is in accordance with
the terms, conditions, specifications, standards, quantities and specified sums contained in the
Proposal and related documents herein approved and accepted.
SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the
authority to take any actions that may be required or permitted to be performed by the City of Denton
under RFP 5595 to the City Manager of the City of Denton, Texas, or his designee.
SECTION 5. By the acceptance and approval of the above enumerated bids, the City Council
hereby authorizes the expenditure of funds therefor in the amount and in accordance with the
approved proposals.
SECTION 6. This ordinance shall become effective immediately upon its passage and
approval.
PASSI-,l) AND APPROVED this the day of 2014.
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ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
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BY: 1-14
CONTRACT BY AND BETWEEN
CITY OF DENTON, TEXAS AND
PTT C. (RFP 55
THIS CONTRACT is made and entered into this 8th day of September, 2014, by and
between PATTERN RECOGN !TION JNC., whose address is 2400
Dallas Parkway. Suite hereinafter referred to as "Supplier," and the
CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as
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 thii
mutual benefits to be obtained hereby, the parties agree as follows:
I
Supplier shall provide products in accordance with the City's Rl'T #5595 l-,0A �D, K 11
opoh is on file at the office of
WE,AJTI.['R. WIND F0RE(-AST[NG SERVICES, a cy f whic
Purchasing Agent and incorporated herein for all purposes, The Contract consists of this written
agreement and the following items which are attached hereto, or on file, and incorporated herein
by reference:
(a) Terms and Conditions (Exhibit "A")
(b) City of Denton's RFP 5595 (Exhibit "B" on file at the office of the Purchasing
Agent) (c) Form CIQ — Conflict of Interest Questionnaire (1111)Exhibit C
(d) Supplier's Proposal, (Exhibit "D")
(e) Special Conditions and Requirements of Supplier (Exhibit "E")
These documents make up the Contract documents and what is called for by one shall be
as binding as if called for by all. In the event of an inconsistency or conflict in any of the
provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving
precedence first to the written agreement then to the contract documents in the order in which
they are listed above, These documents shall be referred to collectively as "Contract
Documents."
IN WITNESS WHEREOF, the parties of these presents have executed this agreement in
the year and day first above written.
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1190104110
BY: V
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BY:
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BY:
Al F] I II ORIZED SIG ATURE
Date: September 8, 2014 - - -----
Name: Al Kliokiiizad
Title: .1'resid-ei,it . ... . . .. .... —
214-692-5252
PHONE NUMBER
214-6926083
FAX NUMBER
BY:,(
GE01W I; CCAMPBELL, CITY MANAGER
Date: tl
Special Terms and Conditions
Selected Services
This contract includes sections I & 2 of the RFP, Load and Price Forecasting services. See
Exhibit D attached.
Total Contract Amount
The contract total shall not exceed $171,000. A purchase order will be issued on an annual basis.
Pricing shall be per Exhibit D attached.
Product Changes DurinV, Contract Term
The supplier shall not change specifications during the contract term without prior approv
Any deviation in the specifications or change in the product must be approved in advance by t
City of Denton. Notice of a change shall be submitted in writing
dentonpurchasinggcityofdenton.com, with the above file number in the subject line, for reviel
Products found to have changed specifications without notification, and acceptance, will
returned at the supplier's expense, Products that have been installed will be replaced at t]
Authorized Distributor
___ . .... ... ......... ...
The supplier shall be the manufacturer or authorized distributor of the proposed products. TbJ
distributor shall be authorized to sell to the City of Denton, and make available tIll,
manufacturer's representative as needed by the City, I
Contract Terms
The __ c " ontr I act term will be one (1) year, effective from date of award. The City and the Supplier
shall have the option to renew this contract for an additional two (2) one-year periods,
The contract shall commence upon the issuance of a Notice of Award by the City of Denton an,41
shall automatically renew each year, from the date of award by City Council, unless either party
notifies the other prior to the scheduled renewal date. At the sole option of the City of Denton,
the contract may be further extended as needed, not to exceed a total of six (6) months.
Defivery Lead Time
Product or services shall be delivered to the City per the days/weeks noted in Exhibit D after
receipt of the order.
Citv of Denton
Standard Purchase Terms and Conditions
These standard Termu and Conditions and the Terms and Conditions, Specifications, Drawings and other
requirements included in the City of Denton`a solicitation are applicable to Contracts/Purchase Orders
issued by the City of Denton hereinafter referred to as the City or Buyer and dbe 9n||or heroin after
referred to as the Supplier. Any deviations must be in writing and signed by ancpreaontutive of the City"s
Procurement Department and the Supplier. NoTerms and Conditions contained inthe Supplier's Proposal
response, Invoice or Statement mbuD serve to modify the terms set forth herein. If there is u conflict
between the provisions nn the face of tile Contract/Purchase Order these written provisions will take
precedence.
By submitting an Offer in response to the Solicitation, the Supplier agrees that the contract shall be
governed by the following terms and conditions, on|oaa exceptions are duly noted and fully negotiated.
lJn|eua otherwise specified in the contract, Sections 3' 4" 5, 6, 7, 8, 20` 21, and 35 shall apply only to a
Solicitation to purchase Goods, and Sections 9` 10` ll and 22 ahu|| apply only to u Solicitation to
purchase Services to be performed principally at the Cih/`o premises or oil public rights -of -way.
l. SUPPLIER'S OBLIGATIONS. The Supplier ahu\| fully and timely provide all deliverables described in the
Solicitation and in the Supplier's Offer in strict accordance with the terms, covenants, and conditions ofthe Contract
and all applicable Federal, State, and |000| |mpa, rules, and regulations.
2. EFFECTIVE DATE/TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective uauf
the du1u the contract is signed by the City, and abo}| continue in effect until all obligations are performed in
accordance with the Contract.
3. SUPPLIER TO PACKAGE DELIVERABLES: The Supplier will package dc|iveruh|ua iuaccordance with
good commercial practice and shall include upuokiog 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 sbuO be clearly and permanently marked as 6/l|ovva: (u) The Supplier's name and address, (h) the City`a
name, address and purchase order orpurchase m\eume number and the price agreement number i[applicable, (o)
Container number and total number ofcontainers, e.g. box l of4boxes, and (d)dbe number ofthe container bearing
the packing list. The Supplier shall bear cost nfpackaging. Deliverables shall be suitably packed io secure lowest
transportation costs and to conform to all the requirements of common carriers and any applicable specification. The
City'u count ocweight shall be final and conclusive oo shipments not accompanied hypacking lists.
4. SHIPMENT UNDER RESERVATION PROHIBITED: The Supplier ixnot authorized tn ship the
deliverables under reservation and uutender mfubill nflading will operate ommtender ofdeliverables.
5.TITLE & RISK OF LOSS: Title toand risk ofloss ofthe deliverables nhal|pass to the City only when the City
actually receives and accepts the deliverables.
6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall beshipped P.O.B.point of
delivery unless otherwise specified iothe Supplemental Terms and Conditions. Unless otherwise stated inthe ODer,
the Supplier's price obuO be deemed to include all delivery and transportation charges. The City ahu|| have the right
to designate what method oftransportation shall be used to ship the deliverables. The place ofdelivery shall bothat
set forth the purchase order,
7. RIGHT OFINSPECTION 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 ornon-conforming del iveruh|ou
g. PLACE AND CONDITION OF WORK: The City shall provide the Supplier access to the sites where the
Supplier is to purhnnn the services as required in order for the Supplier to perform the services in u timely and
efficient manner, in accordance with and subject tothe applicable security lonm` rules, and regulations. The Supplier
acknowledges that it has satisfied itself as to the nature of the City`s service requirements and opuoifiou1iouo. 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 oto1u of fact which could in any way affect
performance of the Supplier's obligations under the contract. The Supplier hereby re|euuoo and holds the City
harmless from and against any liability or claim for damages of any kind or nature if the uotuu| site or service
conditions differ from expected conditions.
lO. WORKFORCE
A. The Supplier shall employ only orderly and competent workers, skilled inthe performance ofthe services which
they will perform under the Contract.
B. The Supplier, its employees, subcontractors, and subcontractor's employees may not while engaged in
participating orresponding tousolicitation or while inthe course and scope ofdelivering goody or services under
City ofDenton contract oronthe Ci|y'oproperty .
i. use or poaxomu u firnurm, including u oonoou|od handgun that is licensed under state law, except as
required bythe terms ofthe contract; or
ii. use or possess alcoholic orother intoxicating beverages, iDogu\ drugs orcontrolled 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'u representative notifies the Supplier that any worker is incompetent, disorderly or
disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or
was under the influence of alcohol or drugs on the job` the Supplier ahu|| immediately remove such worker from
Contract services, and may not employ such worker again on Contract services without the City'x prior written
consent.
Immigration: The Supplier represents and warrants that it shall comply with the requirements of the Immigration
Reform and Control Act oyl986and lAy0regarding employment verification and retention ofvurifioationforms for
any individuals hired onorafter November 6, lA86,who will perform any labor orservices under the Contract and
the Illegal Immigration Reform and Immigrant Responsibility Act of|9g6 ("llR|KA) oumded on Septomber3O,
1996.
\|. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Supplier,
it's Subcontractors, and their respective employees, ohuU comply fully with all applicable federal, state, and local
health, safety, and environmental \m*o, ordinances, rules and regulations in the performance of the services,
including but not limited to those promulgated by the City and by the Ououpu1inou| Safety and Health
Administration (OSHA). locase ofconflict, the most stringent safety requirement shall govern. The Supplier shall
indemnify and bold the City harmless from and against all claims, demands, suits, actions, judgments, fiuom,
penalties and liability of every kind arising from the breach of the Supplier's obligations under this paragraph.
Environmental Protection: The supplier shall be in compliance with all applicable standards, orders, or regulations
issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 a/ seq.) and the Rodoru] Water Pollution
Control Act, uxamended, (33U.8.C. §|25| c/soqj.
12.0MV0ICES:
A.The Supplier shall submit separate invoices induplicate oneach purchase order orpurchase
release after each delivery. lfpartial shipments ordeliveries are authorized by the City, aseparate
invoice must 6esent for each shipment nrdelivery 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 nfthe point ofcontact for the Department. Invoices shall beitemized and transportation
charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when
upp|iou6|o, shall be attached to the invoice. The Supplier's name, remittance address and, if applicable, the tux
identification number onthe invoice must exactly match the information in the Vendor's registration with the City.
Unless otherwise instructed in writing, the City may rely mthe remittance address specified on the Supplier's
invoice.
C. Invoices for labor shall include a copy of all time -sheets with trade labor rate and deliverables order number
clearly identified. 1uvoloeu shall also include u ta6u|mdno 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. Uo|uaa otherwise expressly authorized in the Contract, the Supplier shall pass through all
Subcontract and other authorized expenses & actual cost without markup.
B. PeJmo\ excise taxes, State taxes, or City ou|ua taxes must not he included in the invoiced amount.
The City will furnish utax exemption uodifixateupon request.
13.yAYMBNT:
A. All proper invoices need to be sent to Accounts Puyuh|o. Approved invoices will be paid within thirty (30)
calendar days of the City`x receipt of the deliverables or of the invoice being received in Accounts Payable,
whichever iolater.
B.0[payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at
the lesser ofthe rate specified |oTexas Government Code Section 2251.025orthe 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. I(partial shipments ordeliveries are authorized bythe City, the Supplier will bopaid for the partial
shipment ordelivery, as stated above, provided that the invoice matches the shipment ordelivery.
D. The City may withhold orset off the entire payment o/part ofany payment otherwise due the
Supplier tnsuch extent ommay benecessary onaccount of-
i. delivery ofdefective ornon-conforming deliverables by the Supplier;
ii.third party claims, which are not covered hythe insurance which the Supplier ixrequired to
provide, are filed orreasonable evidence indicating probable filing ofsuch claims;
iiL failure ofthe Supplier topay Subcontractors, or for labor, materials or equipment;
iv. damage iothe property of the City orthe City`oagenta, employees or suppliers, vvbioh is not
covered hyinsurance required to6uprovided bythe Supplier;
v. poaaonah|o evidence that the Supplier's obligations will not be completed within the time
specified in the Contract, and that the oupuiJ balance would not bo adequate to cover actual or
liquidated damages for the anticipated delay;
vi. failure of the Supplier to submit proper invoices with purchase order number, with all required
attachments and supporting
documentation; or
vii. failure of the Supplier to comply with any material provision of the Contract Documents.
E.Notlne iuhereby given that any awarded firm who is in arrears tnthe City ofDenton 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 Supplier agrees that there ohu|| be no additional uborgcu, surcharges, or peoukiou to the City for
payments made bycredit card orelectronic funds transfer.
G. The awarding or continuation of this contract is dependent upon the availability of funding. The City's payment
nh|iAu1iooa are payable only and solely from funds Appropriated and uvui|ub|o for this contract. The ohoenoo of
Appropriated or other lawfully available funds mhu|| render the Contract null and void to the extent funds are not
Appropriated or available and any deliverables delivered but unpaid shall be returned to the Supplier. The City shall
provide the Supplier written notice o[the failure nfthe City tomake unadequate Appropriation for any fiooa|year to
pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient topermit
the City to pay its obligations under the ContraoC In the event of none or inadequate appropriation of funds, there
will bonopenalty nor removal fees charged tothe City.
14.TRAVEL EXPENSES: All travel, lodging and per them expenses in connection with the Contractshall 6upaid
15. FINAL PAYMENT AND CLOSE-OUT:
A. If DBE/MBEDYV8E Program Mou is agreed to and the Supplier has identified Subcontractors, the Supplier is
required to submit a Contract Close -Out MBE/WBE Compliance Report to the Purchasing Manager no later than the
15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld
if the Supplier imnot iucompliance with the requirements uoaccepted bythe City.
8.The making and acceptance offiou|payment will constitute:
i. u waiver of all claims by the City against the Supplier, except u|oimy (l) vvhiob have been previously
asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising
from failure of the Supplier to comply with the Contract or the icrnoa of any warranty specified herein, (4) arising
from the Supplier's continuing obligations under the Contract, including but not limited to indemnity and warranty
obligations, or (5) arising under the Ci1y`y right to audit; and U. a waiver of all claims by the Supplier against the
City other than those previously asserted iowriting and not yet settled.
16. SPECIAL TOOLS & TEST EQUIPMENT: Ifthe price stated onthe Offer includes the cost ofany special
tooling or special test equipment fabricated or required by the Supplier for the purpose of filling this order, such
special tooling equipment and any process sheets related thereto o6d\ become the property of the City and shall be
identified by'the Supplier as such.
17.RlG8T TO AUDIT:
City shall have the right toaudit and examine the books and records ofSupplier during the period o[this contract
and for two years thereafter and take issue with the same.
18.SUBCONTRACTORS:
A. If the Supplier identified Subcontractors in o DBE/M0B/WBB agreed to Plan, the Supplier shall comply with all
requirements approved bythe City. The Supplier shall not initially employ any Subcontractor except auprovided in
the Supplier's Plan. The Supplier shall not substitute any Subcontractor idendfiediuthe Plan, unless the substitute
has been accepted bydbe City inwriting. Nn acceptance hythe City of any Subcontractor shall constitute uwaiver nf
any rights or remedies of the City with respect tn defective de|ivnruh|na provided byu Subcontractor. {yaPlan has
been approved, the Supplier is additionally required to submit u monthly Subcontract /\vvarda and Expenditures
Report tothe Procurement Manager, no later than the tenth calendar day ofeach month.
B. Work performed for the Supplier by a Subcontractor shall be pursuant to a written contract between the Supplier
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 bythe Subcontractor be provided in strict accordance with the
provisions, opeuifiuo1ionoand terms ofthe Contract;
i|. prohibit the Subcontractor from further uubunutroobog any portion of the Contract without the prior
written consent ofthe City and the Supplier. The City may require, as a condition to such further subcontracting,
that the Subcontractor post upuynnent bond in form, substance and amount acceptable to the City;
iii. require Subcontractors to submit all invoices and applications for payments, including any o|uima for
additional payments, damages or otherwise, to the Supplier in sufficient time to enable the Supplier to include ommu
with its invoice orapplication for payment tnthe City inaccordance with the terms ofthe Contract;
iv. require that all Subcontractors obtain and maintain, throughout the tonn of their contract, insurance in
the type and amounts specified for the Supplier, 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 Supplier is
required to indemnify the City.
C. The Supplier shall bofully responsible tothe City for all acts and omissions ofthe Subcontractors just aathe
Supplier is responsible for the Supplier's own acts and omissions. Nothing in the Conti -act shall create for the benefit
of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it
urco1u any obligation on the pm'( of the City to pay or to see to the payment of any moneys due any such
Subcontractor except osmay otherwise borequired bylaw.
D. The Supplier shall pay each Subcontractor its appropriate share of payments made to the Supplier not later than
ten (lO)calendar days after receipt ofpayment from the City.
lg. :
A. The Supplier warrants the prices quoted inthe Offer are nohigher than the Supplier's current prices on orders by
others for like deliverables under similar terms ofpurchase.
B. The Supplier certifies that the prices in the Offer have been arrived at independently without consultation,
communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with
any other firm ocwith any competitor.
C. In addition to any other remedy available, the City may deduct from any amounts owed tothe Supplier, or
otherwise recover, any amounts paid for items in excess o[the Supplier's current prices onorders byothers for like
deliverables under similar terms ofpurchase.
20. WARRANTY — TITLE: The Supplier 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 Supplier shall indemnify and hold the City harmless from and against all adverse title claims to
the deliverables.
2iWARRANTY — DELIVERABLE&
D.Ifthe Supplier isunable munwilling 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 Supplier, and purchase conforming deliverables from other
aomrom. In such event. the Supplier shall pay 0othe City upon demand the increased cost` if any, incurred bythe
City to procure such deliverables from another source.
E. If the Supplier is not the manufacturer, and the deliverables are covered by u separate manufacturer's warranty,
the Supplier shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's
warranty uxunnt be fully transferred to the City, the Supplier ubaU uumiut and cooperate with the City to the Cu||uyt
extent to enforce such manufacturer's warranty for the benefit of the City.
22. WARRANTY — SERVICES: The Supplier vvnnuoto and represents that all services to be provided the City
under the Cootcuo1 will be fully and timely performed in u 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 |mvs. rules urregulations.
A. The Supplier may not limit, exclude ordisclaim the foregoing warranty oxany warranty implied by |u*, and any
attempt tod000shall bewithout force oreffect.
B. Dn\emm otherwise specified in the Contract, the warranty period shall be at least one year from the /\ocup1anuu
Date. If during the warranty period, one or more of the above warranties are breached, the Supplier shall promptly
upon receipt of demand perform the services again in accordance with above standard at no additional cost to the
City. All costs incidental to such additional performance mbai| be borne by the Supplier. The City o6u|| endeavor to
give the Supplier written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach
warranty, but failure to give timely notice shall not impair the City's rights under this section.
C. If the Supplier is unable or unwilling toperform its services in accordance with the above standard as required by
the City, then in addition to any other available remedy, the City may reduce the amount of services it may be
required to purchase under the Contract from the Supplier, and purchase conforming services from other sources. In
such event, the Supplier shall pay tnthe City upon demand the increased cost, if any, incurred bythe City to procure
such services from another source.
23. ACCEPTANCE OF INCOMPLETE OR NON -CONFORMING D0LKVERABLE& 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 Supplier shall pay all claims, uom1o, |oyxna and damages attributable tothe Ciiy`a
evaluation ofand determination to accept such defective nrnon-conforming deliverables. If any such uucep\unoo
occurs prior to fiou| payment, the City may deduct such amounts as are 000nsmury to compensate the City for the
diminished value u[the defective ornon-conforming deliverables. If the acceptance nuuun after final payment, such
amount will kurefunded tothe City bythe Supplier.
24. RIGHT TO ASSURANCE: Whomever 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 Supplier is
observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is
determined by the City to be unsafe to either life or property. Upon notification, the Supplier will cease all work
until notified by the City that the violation or unsafe condition has been corrected. The Supplier shall be liable for all
costs incurred by the City as a result of the issuance of such Stop Work Notice.
26. DEFAULT: The Supplier shall be in default under the Contract if the Supplier (a) fails to fully, timely and
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 Supplier's Offer, or in any report or deliverable required to be
submitted by the Supplier to the City.
27. TERMINATION FOR CAUSE: In the event of a default by the Supplier, the City shall have the right to
terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after
the date of such notice, unless the Supplier, within such ten (10) day period, cures such default, or provides evidence
sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, exist. In addition to any
other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses
and expenses, incurred by the City as a result of the Supplier's default, including, without limitation, cost of cover,
reasonable attorneys' fees, court costs, and prejudgment and post -judgment interest at the maximum lawful rate.
Additionally, in the event of a default by the Supplier, the City may remove the Supplier from the City's vendor list
for three (3) years and any Offer submitted by the Supplier may be disqualified for up to three (3) years, All rights
and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law.
28. Intentionally left blank.
29. FRAUD: Fraudulent statements by the Supplier on any Offer or in any report or deliverable required to be
submitted by the Supplier to the City shall be grounds for the termination of the Contract for cause by the City and
may result in legal action.
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 Supplier,
their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such
subcontractors; and third parties); and/or (2) death, bodily injury, illness, disease, worker's compensation,
loss of services, or loss of income or wages to aIijy person (including but not limited to the agents, officers
and employees of the City, the Supplier, the Supplier's subcontractors, and third parties), ii. "Fault" shall
include the sale of defective or non -conforming deliverables, negligence, willful misconduct or a breach of
any legally imposed strict liability standard.
B. THE SUPPLIER SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS
SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL
INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM TILE FAULT
OF THE SUPPLIER, OR THE SUPPLIER'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE
PERFORMANCE OF THE SUPPLIER'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE
DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE SUPPLIER (INCLUDING, BUT NOT LIMITED TO, THE
RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM.
32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance
requirements detailed in the ycdioi\u1|ou document. The auucuasK/| finn shall procure and maintain insurance of the
types and inthe minimum amounts acceptable tothe City ofDenton. The insurance shall bewritten byacompany
licensed to do business in the State ol-l'uxas and satisfactory to the City of Denton.
A. General Requirements.
i The Supplier shall u1ominimum carry insurance iuthe 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.
i|. The Supplier ohuU provide Certificates of Insurance with the coverage's and endorsements required to
the City uoverification ofcoverage prior tncontract execution and within fourteen (l4)calendar days after
written request from the City. Failure toprovide the required Certificate of Insurance may subject the Offer
todimqnaUficutionfrom consideration for award. The Supplier must also forward uCertificate ofInsurance
to the City whenever uprovioum|y identified policy period has expired, or an extension option or hold over
period is exercised, uaverification ofcontinuing coverage.
Ui. The Supplier shall not commence work until the required insurance is obtained and until such insurance
has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability
of the Supplier hereunder and shall not be construed to be o limitation of liability on the part of the
Supplier.
iv. The Supplier must submit certificates of insurance to the City for all subcontractors prior to the
subcontractors commencing work on the project.
v. The Supplier's and all subcontractors' insurance coverage shall be written by companies |ioonood to do
business in the State of Texas at the time the policies are issued and shall be written by ooxnpuoiem with
A.M. Best ratings ofA-`P8l or better. The City will accept workers' compensation coverage written bythe
Texas Workers' Compensation Insurance Fund.
vi. All endorsements naming the City as additional insured, waivers, and notices of ouocoUuLion
endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following
City of Denton
Denton, Texas 76209
viiThe "other" insurance clause shall not apply tothe City where the City iaunadditional insured shown
on any policy. It is |nVoodod that policies required in the Contract, covering both the City and the Supplier,
ahoJ| boconsidered primary coverage uuapplicable.
viii. If insurance policies are not written for amounts agreed to with the City, the Supplier obm|l carry
Dmhn:Uu o, Bxueua Liability Insurance for any differences in amounts specified. If Excess Liability
Insurance is provided, it shall follow the form ofthe primary coverage.
ix. The City oba|| be entitled, upon request, at an agreed upon location, and without expense, 0oreview
certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or
revision or modification of particular policy tauno, conditions, limitations, or exclusions except where
policy provisions are established by law or regulations binding upon either of the parties hereto or the
underwriter ooany such policies.
x. The City reserves the right to review the insurance requirements set forth during the effective period nf
the Contract and to make reasonable adjustments to ioauroouo coverage, limits, and exclusions when
deemed necessary and prudent hythe City based upon changes in statutory lovv` court decisions, the claims
history ofthe industry or financial condition oythe insurance company as well as the Supplier.
xi. The Supplier shall not cause any insurance to be canceled nor permit any insurance to |upuo during the
term of the Contract orao required in the Contract.
xii.Tbe Supplier shall be responsible for premiums, deductibles and self -insured retentions, if any, stated in
policies. All deductibles orself-insured retentions shall bedisclosed outhe Certificate of Insurance.
xi|i The Supplier shall endeavor to provide the City thirty (30)calendar days' written notice oferosion of
the aggregate 6mdobelowocoorreooeUmkstbraJ|app\ioob|uuovuruge`oindiuutedvvdhbothuCnntnact.
xjv. The insurance coverage's specified iuwithin the solicitation and requirements are required minimums
and are not intended tolimit the responsibility orliability ofthe Supplier.
B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument.
33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Supplier which arises under or
concerns the Contract, or which could have amaterial adverse affect uothe Supplier's ability tnperform thereunder,
the Supplier shall give written notice thereof to the City within ton (10) calendar days after receipt nfnotice by the
Supplier. Such notice tothe City shall state the date ofnotification of any such claim, demand, suit, orother action;
the names and addresses ofthe o|aimunt(o);tbohuxixdhorcof, and the name ofeach 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. Pormnou\ delivery to the City Attorney uhu|| be to City RuJ|, 215 Buot McKinney Street, Denton,
Texaa762Ol.
34. NOTICES: Unless otherwise specified, all notices, requests, orother communications required orappropriate tn
be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after
postmarked ifsent hy D.G. Postal 8crviom Cort|RodnrRcg(mtcrrd K4niL Kmumn Ruoo|p/Koquxmod.Notices delivered
byother means shall hedeemed delivered upon receipt by tile oddromawu. KoudouoonxwuniuoUome n)uy hc u/adthy
first class mail, k:iefax, orother commercially moumptcd mcano. Notices to the Supplier shall be sent to Uhemddrouo
specified inthe 8opp|ior`u Offer, orutsuch other address umoparty muy ooi[[ythe other in writing. Notices /otile
City shall boaddressed tnthe City utg8lBTexas Street, Denton, l'exna762D9and mmkcd hothe ultumdunuftile
Purchasing Manager.
35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All mu1uriu| submitted by the
Supplier to the City uba|| become property of the City upon receipt. Determination of the public nature of the
material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code.
36.NO WARRANTY BYCITY AGAINST INFRINGEMENTS: The Supplier represents and warrants tnthe
City that: (i) the Supplier shall provide the City good and indefeasible title to the deliverables and (ii) the
deliverables supplied bythe Supplier inaccordance with the specifications in the Contract will not infringe, directly
or000tri6utori|y` any patent, trademark, copyright, trade ouomt, or any other intellectual property right nfany kind
ofany third party; that noclaims have been made byany person or entity with respect tothe ownership oroperation
ofthe deliverables and the Supplier does not know of any valid basis for any such claims. The Supplier shall, at its
sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs
(including court uoaim and ruuaooub|u fees of attorneys and other professionals) arising out of or resulting 6om: (i)
any claim that the City`a exercise anywhere in the vvnr|d of the rights oxaon{atod with the City`o` ownership, and if
applicable, license rights, and its use of the dc|ivoruhiem infringes the intellectual property rights oyany third party;
or (ii) the Supplier's breach of any of Supplier'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
ant as co -counsel on the City`m beboit Further, Supplier agrees that the City`o specifications regarding tile
deliverables mbaU in no way diminish Supplier's warranties or obligations under this paragraph and tile City mxkoe
no warranty that the production, development, or delivery of such deliverables will not impact such ponrxmhrm of
Supplier.
37. CONFIDENTIALITY: In order to provide the deliverables to the City. Supplier may require access to certain
of the City`a and/or its licensors' confidential information (including invendono, employee information, trade
secrets, uoufideo(iu| know-how, confidential business information, and other information which the City or its
Uoonano consider confidential) (collectively, ^^CnnOdendu| Information"). Supplier acknowledges and agrees that
the Confidential Information is the valuable property of the City and/or its licensors and any unauthorized use,
diau\oaoru` diamumioe1inn` orother release ofthe Confidential Information will substantially injure the City and/or its
licensors. The Supplier (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 Supplier promptly
notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate
protective order. The Supplier agrees to use protective measures no less stringent than the Supplier uses within its
own business to protect its own most valuable information, which protective measures shall under all circumstances
be at least reasonable measures to ensure the continued confidentiality of the Confidential Information.
38. Intentionally left blank.
39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally
developed material unless otherwise specifically provided in the Contract. When material not originally developed is
included in a report in any form, the source shall be identified.
40. ADVERTISING: The Supplier shall 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 Supplier 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 Supplier for the purpose of securing business. For breach or violation of this warranty, the City
shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct
from any amounts owed to the Supplier, or otherwise recover, the full amount of such commission, percentage,
brokerage or contingent fee.
42. "GRATUITIES: The City may, by written notice to the Supplier, cancel the Conti -act without liability if it is
determined by the City that gratuities were offered or given by the Supplier or any agent or representative of the
Supplier to any officer or employee of the City of Denton with a view toward securing the Contract or securing
favorable trc€ltnicnt with respect to tile awarding
or allielidino or the making of any determinations with respect to
tile perforlililig , of such contract. In the event the Contract is canceled by the City pursuant to this provision the City
shal I be entitled, in addition to any other rights and remedies, to recover 01' withhold the amount of the cost incurred
by the Supplier in providing such gratuities.
43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer, employee, independent
consultant, or elected official of the City who is involved in the development, evaluation, or decision -making
process of the performance of any solicitation shall have a finmicial interest, direct or ilidirect, it) the Contract
resulting from that solicitation. Any willful violation ofthis section shall Constitute impropriety in office, and any
officer or employee guilty thereof shall be subject to disciplinary action up 10 alicl including dismissal. Any violation
of this provision, with the knowledge, expressed or implied, ()f1he Supplier shall render the Contract voidable by [lie
City. The Supplier shall complete and submit the City's Conflict of Interest Questionnaire (Attachment B).
44. INDEPENDENT SUPPLIER: The Contract shall not be construed as creating an employer/employee
relationship, a partnership, or a joint venture. The Supplier's services shall be those of an independent supplier. The
Supplier agrees and understands that the Contract does not grant any rights or privileges established for employees
of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave
benefits, worker's compensation, or any other City employee benefit. The City shall not have supervision and control of
the Supplier or any employee of the Supplier, and it is expressly understood that Supplier shall perform the services
hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton,
Texas, or his designee under this agreement.
45. ASSIGNMENT -DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and
the Supplier and their respective successors and assigns, provided however, that no right or interest in the Contract
shall be assigned and no obligation shall be delegated by the Supplier without the prior written consent of the City.
Any attempted assignment or delegation by the Supplier shall be void unless made inconformity with this
paragraph. The Contract ionot intended toconfer rights nrbenefits ooany person, firm c«entity not oparty hereto; it
being the intention ufthe parties that there are oothird party beoefioiariemtothe Contract.
46. WAIVER: No claim orright arising out o[ubreach of the Contract can be discharged in whole or in part by u
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 Supplier or the City of any one or more events of
default by the other party aba|| operate as, or be construed to be, u 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
usimilar nrdifferent character.
47. MODIFICATIONS: The Contract can bemodifiodoramended only hy uwriting signed hyboth parties. Nn
pre-printed orsimilar terms on any the Supplier invoice, order or other document ohu\| have any force oreffect to
change the terms, covenants, and conditions ofthe 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 u\erm defined by the
Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the DCC definition shall
control, unless otherwise defined inthe Contract.
49.DISPUTE RESOLUTION:
A.|fadispute arises out oforrelates tothe Contract, orthe breach thereof, the parties agree Nnegotiate prior to
prosecuting asuit for damages. However, this section does not prohibit the filing ofulawsuit totoll the running oyo
statute of limitations or to seek injunctive relief. Either party may make u written request for a nucedn8 butvvoon
representatives ofeach party within fourteen (l4)ou\eodar days after receipt ofthe request or such later period as
agreed hythe parties. Each party shall include, atuminimum, ooe(l) 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 o resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not
succeeded in negotiating u resolution of the dispute, they will proceed directly to mediation as described hu\nvv.
Negotiation may be waived by uvvritten agreement signed byboth parties, in which event the parties may proceed
directly to mediation as described below.
B. If the oDbrto to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the
parties may select, within thirty (30) calendar days, o mediator trained in mediation skills to oaoixt with resolution of
the dispute. Should they choose this option; the City and the Supplier agree to act in good faith in the selection of the
mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract
prevents the parties from relying on the uki|\o o[aperson who is trained inthe subject matter ofthe dispute or
contract interpretation orperL If the pudiom fail to u&rxo on omediator within thirty (30) calendar days of initiation
of the mediation process, the mediator shall be uo\eutod by the Denton County Alternative Dispute Resolution
9rugrmm(DCAP). The parties agree to participate in mediation in good faith for upto thirty (30)calendar days from
the date of the first mediation session. The City and the Supplier will share the mediator's h:oo equally and the
parties will bear their own costs of participation such as fees for any onnau\tmto orattorneys they may utilize to
represent them orotherwise assist them iothe mediation.
50.JBRI8DIC3ION AND VENUE: The Conti -act is made under and shall be governed bythe laws of the State of
Tnsum'including, when applicable, the Uniform CommercialCommercialCode as adopted in Texas, VIC./\, Bus. & Comm.
Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another stateor
jurisdiction. All ioauoa arising from this Contract shall be resolved in the courts of Denton Couoiy. Texas and the
parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing` however, ubaU not be
construed or interpreted to limit orrestrict the right or ability of the City to seek and ouuuro injunctive r6iufftom
any competent authority ou contemplated herein.
�l INVALIDITY: The 1xvu|k]ity` lDegdhy` or unenknxoob\hy of any provision of the Cnn�uo obaU in no way
-' —�ovu|@|ty 'rcmknzuobUiLyofuny�bexpo�ionorprovioionoftheCon�aoC Any void 'oinnshall bn
~~~~^'severed
' — ni [heContract and the b�unmoof&oContnmtohaUbuoons�uedand en�xoedeoi[�eContn�t
~`~---cmo��o--�obou|arpo�iunorprovision held 0ohuvoid. The pn�ieofbnbcragree turoformdbnConin�tto
did not stricken -- '—roviuiun with u valid provision that comes as close as pnnuih|e to the intent of the stricken
�pmo� any p
^ii ' iakr/ ofd i� m�ui�oo shall not prevent this entire Contract from being void abooid apcovixioo
provision. �o�prov provisions u`o �
which is the essence of the Contract be determined to be void.
52.HOLIDAYS: The following holidays are observed hythe City
MLK Day
Memorial Day
4th of July
Labor Day
Thanksgiving Day
Day After Thanksgiving
Christmas Eve (obxen/ed)
Christmas Day (ohnervod)
New Yrved
lfaLogu Bo|�ayOd)xoo8mnrdoy,i|vviHbevhm�vedmo�opuzud1mgFriday, IfoLegu Holiday fJlaonSunday,
it willbeobserved on the following, Monday. Nmrnm| boom u[opuq\iou shall be between 8:00 um and 4:00 pm, Monday dhnnuAb Friday, excluding City a[Detun '|[u|idoyo. Any scheduled deliveries or work performance not
within the normal hours of operation musk be xMxovmd bUie City K4onagmr o[ Dooton` Texas or his authorized
designee.
53SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose umu�miogohi�udo n on
the parties, including but not limited tothe warranty, indemnity, and ooufidooba|ityobligations ofthe parties, shall
survive the expiration nrtermination ofthe Contract.
54 NON -SUSPENSION OR DEBARMENT CERTIFICATION:
T6'`K�
CiiyoyDenton is prohibited from contracting with or making prime orsub-awards \o parties that are suspended
or~obucrudorvvhooep6noipa|oare suspended ordeboncdfrom Federal, State, orCity ofDenton Cnntroob.By
mcptioAuCon�uctwidhthoCiiy,|hoVuodoro��ihoothu1|�o�r
``munditoprinoipn|ourenotcurrentlyuuopuododor
di b
debarred from indicated omdoiu�buuin�oo with Federal Government, as u » y the General 8ecviuox AdministrationAdministrationiou
List ofParties Excluded from Federal Procurement and Non -Procurement Programs, the State ofTexas, or the City
of Denton.
55 EQUAL OPPORTUNITY
A. Equal Employment Opportunity: No Offeror, or 0fferor`x agent, nhu|| engage in any discriminatory employment practice. No person shall, on the grounds of race, sox` age, disability, creed, color, genetic testing, or
no1inua| origin, be refused the benefits of, nrhootherwise subjected to discrimination under any activities resulting from
&ioBFQ.
B^�muricuuo+v\tb0viambHitimw/�ot(/���'�)o�umplioncc:l�nO�eror,orO�eror`xagent, shuU
engage ioany discriminatory employment practice ugainotindividuu(mvvit6divahJitieu as defined
inthe /\DA.
56 BUY /kMER}CAN ACT -SUPPLIES (Applicable to certain federally funded requirements)
The following federally funded requirements are opp|iouh|x, in addition to the apouifiu federally funded
requirements.
A.Defioid000.Aaused iuthis paragraph —
i. "Component" xu0000 an article, material, or supply incorporated directly into an end product.
ii "Cost ofcomponents" oeuox-
())Foxoomponuntapurcbaxedbythu Supplier, the acquisition cost, including transportation costs to the place of
incorporation into the end product (whether ornot such costs are paid tnodomestic firm), and any applicable duty
(whether ornot uduty-free entry certificate is issued); or
(2) For components manufactured by the Supplier, all costs uynouiu1ed with the manufacture of the component,
including transportation costs as described in paragraph (|) of this definition, plus u|louob\c 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 Qto1oo, if the coat of its components mined, produced, or
manufactured in the United 8to1ou exceeds 50 percent of the cost of all its components. Components of foreign
origin of the same ciomo or kind as those that the agency determines are not miood, produced, or manufactured in
sufficient and reasonably available commercial quantities of satisfactory quality are treated as domestic. Scrap
generated, collected, and prepared for processing inthe United States imconsidered domestic.
{v. "End product" means those articles, materials, and supplies to he acquired under the contract for public use.
v. "Foreign end product" means an end product other than udomestic end product.
vi. "United States" means the 50 States, the District nfColumbia, and outlying areas.
B. The Buy American /\ui(4l U.S.C. lOa- 10d)p,uvidem uyreterence for domestic end products for supplies
acquired for use in the United States.
C.The City does not maintain ulist offoreign articles that will betreated uedomestic 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 on approved Governmental |iot.
D. The Supplier shall deliver only domestic end products except to the extent that it specified delivery of foreign end
products inthe provision ofthe Solicitation entitled "Buy American Act Cndifiuu1c"
57. RIGHT TOINFORMATION: The City ufDenton reserves the right to use any and all information presented in
any response tothis solicitation, 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 n:qoircm on awarded supplier or supplier to be licensed by
the State of Texas, any and all fees and taxes are the responsibility of the supplier.
59. PREVAILING WAGE RATES: All suppliers will be required to comply with Provision 5159u of "Vernon's
Annotated Civil Statutes" of the State ofTexas with respect tothe payment ofprevailing wage ru1oa and prohibiting
discrimination iothe employment practices.
60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor orsupplier shall
comply with all State, Federal, and Local \mvo and requirements. The Supplier must comply with all applicable laws
at all times, including, without limitation, the following: (i) 836.02 of the Texas Penal Code, which prohibits
bribery; (ii) §36.09 oithe Texas Penal Code, which prohibits the offering orconferring ofbenefits topublic
servants. The Supplier shall give all notices and comply with all laws and regulations applicable tofurnishing and
performance ofthe Contract.
6l.FEDERAL, STATE, AND LOCAL REQUIREMENTS: Supplier shall demonstrate on -site compliance with
the Federal Tax Reform Act of|pg6,Section l706,amending Section 53Oofthe Revenue Act ofoflg7X'dealing
with issuance o[Form VV-2'atocommon law employees. Supplier ioresponsible for both federal and State
unemployment insurance coverage and standard Worker's Compensation insurance coverage. Supplier shall ensure
compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable
to Supplier urits employees for any Unemployment orWorkers' Compensation ooveruge, or federal or State
withholding requirements. Supplier shall indemnify the City of Denton and shall pay all costs, poou\dem, or losses
resulting from Supplier's omission or breach of this Section.
62. DRUG FREE WORKPLACE: The supplier shall comply with the applicable provisions of the Drug -Free
Work Place Act oflg88(Public Law l0O-6g0,Title V.Subtitle D;4lU.S2.70lET8BQ)and maintain odrug-
6uoxmrkenvironment; and the final rule, government -wide requirements for drug -free work place (grmnta), issued
by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F)to
implement the provisions o[the Drug -Free Work Place Act oyl08Rioincorporated byreference and the supplier
shall comply with the relevant provisions thereof, including any amendments to the fioo|rule that may hereafter he
issued.
63.S0PPLDER LIABILITY FOR DAMAGE TOGOVERNMENT PROPERTY: The Supplier shall 6cliable
for all damages to guvornmont-unmed` leased, oroccupied property and equipment caused by the Supplier and its
emp|nyoou' agents, subcontractors, and uoppho/a` including any delivery or cartage company, in connection with any
performance pursuant tothe Contract. The Supplier shall notify the City ofDenton Procurement Manager in writing
ofany such damage within one (i)calendar day.
64. FORCE MAJENRE: The City of Denton, any Customer, and the Supplier uba|| not be responsible for
performance under the Contract should it be prevented from performance by an act of war, order of legal authority,
act ofGod, or other unavoidable cause not attributable to the fault ornegligence of the City of Denton. In the event
ofonoccurrence under this Section, the Supplier will buexcused from any further performance orobservance o[the
requirements so affected for as long as such circumstances prevail and the Supplier continues to use commercially
reasonable efforts torecommence performance orobservance whenever and to whatever extent possible without
delay. The Supplier uhu|| immediately notify the City of Denton Procurement Manager by telephone (to be
confirmed in writing within five(5) calendar days ofthe inception of such oouonronoo) and describe otareasonable
level o[detail the circumstances causing the non-performance ordelay inperformance.
65. NON -WAIVER OF RIGHTS: Failure of Party to require performance by another Party under the Contract
will not affect the right of such Party to require pnr0000uoue in the future. No delay, failure, or waiver of either
Porty`oexercise orpartial exercise o[any right orremedy under the Contract shall operate tnlimit, impair, preclude,
uonuu|, waive or otherwise affect such right or remedy. /\ waiver by u Party of any brcuub 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
|uinany way intended toconstitute uwaiver hythe City ofDenton of any immunities from suit orfrom liability that
the City ofDenton may have byoperation oflaw.
67. RECORDS RETENTION: Supplier shall retain all fiuuncia|records and supporting documents, and any other
records or books relating to the performances ou|lcd for in the contract for u period of one year from the date of
completion ortermination oythe contract, whichever date shall firatoccur.
EXHIBIT C
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. 1491, 80th Leg., Regular Session. OFFICE
USE ONLY
This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a Date
person who has a business relationship as defined by Section 176.001(1-a) with a local governmental Received
entity and the person meets requirements under Section 176.006(a).
By law this questionnaire must be filed with the records administrator of the local government entity not
later than the 7th business day after the date the person becomes aware of facts that require the
statement to be filed. See Section 176.006, Local Government Code.
A person commits an offense if the person knowingly violates Section 176,006, Local Government
Code. An offense under this section is a Class C misdemeanor,
Name of person who has a business relationship with local governmental entity.
Check this box if you are filing an update to a previously filed questionnaire.
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not
later than the 71h business day after the date the originally filed questionnaire becomes incomplete or
inaccurate.)
3
Name of local government officer with whom filer has an employment or business relationship.
Name of Officer
This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an
employment or other business relationship as defined by Section 176.001(1-a), Local Government Code. Attach
additional pages to this Form CIQ as necessary.
A. Is the local government officer named in this section receiving or likely to receive taxable income, other than
investment income, from the filer of the questionnaire:?
El Yes El No
B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income,
from or at the direction of the local government officer named in this section AND the taxable income is not
received from the local governmental entity?
Yes l.e._J No
C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the
local government officer serves as an officer or director, or holds an ownership of 10 percent or more?
Yes LJ No
D. Describe each affiliation or business relationship.
Signature of person doing business with the governmental Date
Exhibit D
RFP 5595 - LOAD, PRICE, WEATHER, & WIND
FORECASTING SERVICES
EST. UOM
Product Description
p
QT
Section 1
LOAD FORECASTING (web_ -based).
Short -Term ForecastsLoad for DME
7YR
(Native)Load Region
Short -Term Load Forecasts for ERCOT
3 YR
Total & 4 Regions (Houston, North,
South, West)
Mid -Term Load Forecasts for ERCOT
3 YR
Total & 4 Regions (Houston, North,
South, West)
Section 2
3 YR
PRICE FORECASTING (web -based)
PRT, Inc
Plano, TX
Estimated
Extended
Implementation
Unit Price
Price
ARO (Days)
$19,200 00
$57,600.00
30
$21,600.00
$64,800.00
1.
$7,800.00
$23,400.00
5
$8,400 00
$25,200.00
1
EXHIBIT "E"
Special Conditions and Requirements of Supplier
On -Line Forecasting Service Access and Use Agreement
THIS AGREEMENT (the "Agreement") is made between Pattern Recognition Technologies, Inc., a Texas
corporation (the "Company") and the City of Denton, a Texas Municipal Corporation with principal offices
located in Denton, Texas (the "Customer"), collectively the Party or Parties. Under the terms and
conditions set out below, the Company agrees to provide on-line forecasting services which, at a
minimum, shall include the features listed or described in Schedule A of the Agreement (hereinafter
referred to as "OnLine Service"). The Customer agrees to pay a monthly fee to the Company for the
OnLine Service.
1.. Access to OnLine Service. The Customer's access to the OnLine Service will be via (1) any
standard World Wide Web browser software, (2) an optional Microsoft EXCEL interface provided by
the Company and (3) an optional FTP site provided by the Company. The Company will assign a
unique username and password to the Customer for gaining access to the Online Service. It is the
Customer's responsibility to safeguard and protect its assigned username and password from
disclosure or use by others. Upon request by the Customer, the Company will assign a replacement
username or password to assist Customer in controlling access. The Customer will promptly notify
the Company if it has reason to believe its account is being improperly accessed or used by others.
2. Use of OnLine Service.
a. Authorized Users. Under the non-exclusive, non -transferable, limited license to access the
Online Service received by the Customer under this Agreement, all authorized employees of the
Customer may make Permitted Use of the Online Service (pursuant to the definition and
conditions of Subsection 2.b, Permitted Uses).
b. Permitted Uses. Permitted Use means to access the Online Service and to display information
derived from the Online Service on a computer or terminal screen, to download and store such
information in memory in machine-readable form indefinitely, and to print copies of such
information. The information obtained from the Online Service may be used for any legitimate
purpose which does not compete in the open market with the OnLine Service.
c. Prohibited Uses. Except as authorized under Subsection 2.b, Permitted Uses, the Customer may
not display, copy, download, store, reproduce, transmit, distribute, resell or otherwise
commercially exploit any part of the Online Service, including any data or information derived
from the Online Service, in any format or through any technology or media now existing or
hereafter developed but excluding any third party data or information essentially available to the
Customer in the same or similar format from another generally accessible source. The Customer
is specifically prohibited from disclosing to third parties any part of the Online Service, data or
information that may be considered proprietary to the Company. The Customer is prohibited from
disseminating any part of the Online Service, data or information in a manner that potentially
would usurp the market for the OnLine Service.
Price & Payment.
a. OnLine Service Charges. Service Charges entitling the Customer to unlimited access and use
of the Online Service are described in Schedule A.
b. Payment & Late Charges. Service Charges shall be invoiced every three months ("Billing
Period") at the beginning of each upcoming Billing Period, to be paid by the Customer within
thirty (30) days from receipt ("Due Date"). Any amount not paid by the Due Date shall be
considered past due and subject to interest at the rate of the Prompt Payment Interest per
Texas statute. If Customer fails to pay the Service Charges within forty-five (45) days, then this
Agreement may, at Company's option, be suspended or terminated.
c. Changes to Service Charges. The Company may change the Service Charges, at its sole
discretion, upon providing sixty (60) days' notice to Customer in advance of the next term
renewal if a renewal clause is provided in Section 9.a. Customer's continued use of the Online
Service after the effective date of any price change will constitute Customer's acceptance of
this change. If the Customer does not wish to accept the proposed price change, the Customer
may exercise its termination rights under Section 9, Term & Termination.
4. Certain Proprietary Rights.
a. Copyrights. The Company warrants and represents that all right, title and interest (including all
copyrights and other intellectual property rights) in the OnLine Service belong exclusively to the
Company. Except for Customer's use, as defined in this Agreement, of the information furnished
by the Online Service, Customer agrees that this Agreement confers no rights on Customer to
the copyrights and other intellectual property of Company in the Online Service.
b. Certain Trade Secrets. The OnLine Service is provided to the Customer in machine-readable
form and contains certain trade secrets and proprietary information of the Company. The
Customer agrees not to disassemble, decompile, or reverse engineer any of the Online Service
features. The Customer will at all times use due diligence to safeguard and protect all Online
Service related information.
5. Force Majeure. Each Party is excused from any failure, default, or delay in performance of
responsibilities under this Agreement for any cause beyond its reasonable control. Such causes
include, without limitation, fires, floods, storms, earthquakes, civil disturbances, disruption of
telecommunications, transportation, extended power outages, governmental action, computer
viruses, and failure of any information services shown to be a critical component of the Online Service
and provided by third parties to the Company. Nothing herein enlarges any warranty or diminishes
any disclaimer provided in Section 6, Warranties.
Warranties.
a. Non -Infringement Warranty. The Company represents and warrants to the best of its knowledge
and belief that it has the rights needed to enter into this Agreement and that Permitted Use by the
Customer of features in the Online Service will not infringe or misappropriate any United States
copyright, trademark, patent, or the trade secrets of any third persons. If promptly notified of any
claim to the contrary, the Company shall defend, indemnify and hold harmless the Customer, with
respect to all claims actions, liabilities, damages, losses, costs and expenses including
reasonable attorneys' fees, costs and expenses incurred by Customer, and shall (i) defend
through litigation or obtain through negotiation the Customer's right to continue using the Online
Service; (ii) rework the OnLine Service to make it non -infringing while preserving the original
purpose, or (iii) replace the Online Service with functionally equivalent content.
b. Third Party Information. Some features of the OnLine Service rely on data and information
provided by third parties such as weather service providers and wholesale electricity markets.
The Company has no control over the quality and timeliness of the needed third party information.
As such, the Company is not responsible for any nonperformance of the Online Service due to
problems related to the required third party information.
c. Disclaimer. Except as provided in this Section, the Customer agrees that the OnLine Service is
provided strictly on an "as is" and "as available" basis without any express or implied warranty,
guarantee or other assurance of quality, accuracy, timeliness, completeness, conformity with
specifications, reliability or functionality. THE COMPANY MAKES NO WARRANTY, EXPRESS
RFP 5595
OR IMPLIED, AND DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AND
FITNESS FOR A PARTICULAR PURPOSE.
7. Limitation of Remedies & Liabilities. The following provisions are a material condition of this
Agreement and reflect a fair allocation of risk:
a. Remedies. The Customer agrees that if the Company violates any warranty or other provision of
this Agreement, and the Company determines that repair or other corrective action is not
economically or technically feasible, the Company's total liability shall not exceed the amounts
paid for the OnLine Service by the Customer during the previous twelve (12) months. The
Customer agrees that legal remedies alone provide inadequate protection of intellectual property
rights described in Section 4, Certain Proprietary Rights, and that, in addition to other relief, the
Company may go to court. Liabilities. EXCEPT AS OTHERWISE SPECIFIED IN SECTION 6
OF THIS AGREEMENT, IN NO EVENT SHALL COMPANY BE LIABLE, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAVINGS OR PROFIT,
LOST DATA, BUSINESS INTERRUPTION OR ATTORNEYS FEES EVEN IF NOTIFIED IN
ADVANCE OF SUCH POSSIBILITY) INCURRED BY THE CUSTOMER, THE CUSTOMER'S
CUSTOMERS OR ANY THIRD PARTY.
8. Indemnity. The Customer releases and discharges and shall indemnify and hold harmless, to the
extent permitted by applicable law the Company and its representatives from and against any and all
claims actions, liabilities, damages, losses, costs and expenses including attorney's fees, costs and
expenses made by persons other than the Customer for any matter arising out of or relating to the
Customer's use of the OnLine Service provided under this Agreement. The Company releases and
discharges and shall indemnify and hold harmless the Customer and its representatives from and
against any and all claims actions, liabilities, damages, losses, costs and expenses including
attorney's fees, costs and expenses made by persons other than the Company for any matter arising
out of or relating to the Company's creation, maintenance or management of the Online Service
provided under this Agreement.
9. Term & Termination.
a. Term. The term of this Agreement shall commence on ("Effective Date") and
continue for a period of twelve (12) months. The Agreement will then be automatically renewed
thereafter for recurring twelve-month terms unless written termination notice is received from
Customer at least thirty (30) days prior to the commencement of the next annual term. Either
Party may suspend or terminate this Agreement at any time without notice if the other Party
breaches in a material manner any material provision and fails to cure such breach within thirty
(30) days after its receipt of written notice thereof.
b. Effect of Termination. Termination of this Agreement will terminate Customer's right to access or
use the OnLine Service. Termination will have no effect on payment of amounts due under
Section3, Price & Payment, proprietary rights and obligations under Section 4, Certain Proprietary
Rights, warranties or disclaimers under Section 6, Warranties, limitations under Section 7
Limitation of Remedies & Liabilities, and indemnifications under Section 8, Indemnity.
10. Confidentiality. Company shall treat all Customer's actual load data provided by Customer as
confidential and not disclose it to any third parties who are not employees of the Company or
Consultants working on related projects for the Company or use it for any other purpose. This
obligation shall not apply to any load data that is obtained by Company from other parties than
Customer free of any obligation of confidentiality. The Company will at all times use due diligence to
safeguard and protect all such confidential information.
11. Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE UNITED STATES AND THE STATE OF
TEXAS, AND ANY ACTION SHALL BE INITIATED AND MAINTAINED IN A FORUM OF
COMPETENT JURISDICTION IN SUCH DESIGNATED STATE. ANY ACTION OR OTHER
PROCEEDING BY THE CUSTOMER SHALL BE INITIATED WITHIN ONE (1) YEAR AFTER THE
CAUSE OF ACTION AROSE, OR BE BARRED.
RFP 5595
12. Miscellaneous. This Agreement between the Parties (including any and all attachments hereto) is
the sole and entire agreement between the Parties relating to the subject matter hereof and
supersedes all prior arrangements, agreements and representations, oral or written. This Agreement
may be amended only in writing signed by both Parties. This document and Customer's signature in
electronic form, or a hardcopy duplicate in good form, shall be considered an original document with
authenticated signature admissible into evidence unless the document's authenticity is genuinely
placed in question. Any provision hereof found by a tribunal or court of competent jurisdiction to be
illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all
other provisions shall remain in full force and effect. Waiver of any provision hereof in one instance
shall not preclude enforcement of it on future occasions. Section, subsection, or paragraph headings
are for reference purposes only and shall in no way be construed as interpretations of the text.
13. Notification. Notices provided under the terms of this Agreement shall be in writing and transmitted by
overnight delivery or by certified mail, return receipt requested (receipt effective upon scheduled
weekday delivery day) or First Class U.S. Mail to a Party's designated representative at the address
set forth below.
Notices to the Company shall be addressed to:
PRT, Inc.
14185 Dallas Pkwy
Suite 1275
Dallas, TX 75254
ATTN: President
Notices to the Customer shall be addressed to:
ATTN: Lance Cunningham
Email: lance.cunningham@cityofdenton.com
Either Party may change its designated representative at any time by providing written notice of such
change to the other Party.
IN WITNESS WHEREOF, Company and Customer have executed this Agreement on the dates set forth
below to be effective as of the Effective Date specified in Section 9.a.
Agreed and accepted (Company):
Pattern Recognition Technologies, Inc.
a f
g
Name: Al Khotanz d,, Ph.D., E,.,n___
Title: President
Date signed:. September 8 2014
Agreed and accepted (Customer):
CITY OF DENTON, TEXAS
A Texas Municipal Corporation
By:
Name
Title: ,/
Date signed: f ,;,) LI. )r4' .,.. 16,/ 2 f ..
RFP 5595
Schedule A
Online Service & Service Charges
The Online Service includes two separate services of e-LoadForecasr and e-ISOForecasfi.
A.I. e-LoadForecasto. The main features of the e-LoadForecasl`o service are as follows:
a. The Company will provide the following hourly forecasts:
- Short -Term load forecasts for Customer's one load region
- Short -Term temperature forecasts for Denton, Texas which are used to generate the load
forecasts
b. Short -Term forecasts are provided for the current day and six days (144 hours) beyond midnight
of the current day.
c. The actual observed temperature data of the current and previous day are provided.
d. The actual temperature data of the previous hour is provided every hour.
e. Load forecasts are updated every hour with the most recent available actual load/weather data.
f. The actual load data of the current and previous day are provided if they are made available to
the Company by Customer.
g. The Company will post the forecasts on a designated password protected World Wide Web page
for access by Customer 24 hours a day, 7 days a week.
h. The Customer will have the ability to interact with the Online Service through a Company
provided Microsoft Excel interface. The following features are provided via this interface:
• View and chart load and temperature forecasts
• Edit temperature forecasts and generate corresponding load forecasts
• View load and temperature data of the three most similar days from history
• Reshape load forecasts
• Compare load and temperature forecasts to actual data of a user selectable day from history
• View performance record of load and temperature forecasts
• View historical load and temperature data
g. Customer will provide historical hourly loads for initial model training.
h. Customer will provide actual hourly loads on an ongoing basis.
A.2. e-ISOForecast°. The main features of the e-ISOForecasto service are as follows:
a. The Company will provide the following hourly forecasts for the listed electricity markets:
• ERCOT
■ Short -Term load forecasts for system -wide load and four regional loads of North, South,
Houston and West
■ Short -Term Day -Ahead and Real -Time LMP price forecasts for six pricing points of: North
Hub, South Hub, Houston Hub, West Hub, Hub Average and Bus Average
■ Mid -Term load forecasts for system -wide load and four regional loads of North, South,
Houston and West
b. Short -Term forecasts are provided for the current day and six days (144 hours) beyond midnight
of the current day.
c. Short -Term load and price forecasts are updated at least hourly with the most recent actual
observed data.
d. Mid -Term forecasts are provided for a forecast horizon extending to twelve months beyond the
current day.
e. Mid -Term load forecasts are provided for three different weather scenarios.
f. Mid -Term load forecasts are updated once a day.
g. The actual observed data of current and previous day are provided after they are made available
on the ERCOT's public World Wide Web site.
h. The Company will post the Short -Term and Mid -Term Load forecasts on its designated World
Wide Web page for access by Customer 24 hours a day, 7 days a week. (Web Only Access).
i. During the term of the Agreement, there could be structural changes in the electricity markets of this
Section A.2. As a consequence of such a change, some of the market forecasts listed in this section may
become non applicable or irrelevant. In that case, the Service Charges specified in Section A.3 for the e-
RFP 5595
ISOForv(,�as/M, service Nvill be sLibject to chringe during the term. The Company shall oiv(,, the CListonier a
30 day advance jotice of the revised Service. Charges. If the Customer does not wish to accej)( the revised
Service Ch;irge, the Customer r1lay cz,11cel its subscription to the specific forecasts that are subject to
change.
A.3. Service Charges. The monthly Service Charges entitling Customer to unlimited access and use of
the OnLine Service and 24/7 telephone and email support are in the amount of Four Thousand Seven
Hundred Fifty Dollars ($4,750) per month. The charges are broken out as follows:
• e-LoadForecastg Service: $1,600
• e-ISOForecas? Service: $3,150
Mul 1110,111101
MUM ILW-93 '14 ORK-4 0 (4101[l
THIS CONTRACT is made and catered into this /6" day o fc, A.D., 2014,
by and between WSI CORPORATION, whose address, is 400 MinuteiTicili load Andover, MA
QIM, hereinafter referred to as "Supplier," and the CITY OF DENTON, TEXAS, a home rule
municipal corporation, hereinafter referred to as "City," to be effective upon approval of the
Denton City Council and subsequent execution of this Contract by the Denton City Manager or
his duly authorized designee.
For and in consideration of the covenants and agreements contained herein, and for the
mutual benefits to be obtained hereby, the parties agree as follows:
Supplier shall provide products in accordance with the City's R-FP 45595 LOAD, PRICE,
WEATHER, WIND FORECASTING SERVICES, a copy of which is on file at the office of
Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written
agreement and the following items which are attached hereto, or on file, and incorporated herein
by reference:
(a) Terms and Conditions (Exhibit "A")
(b) City of Denton's RFP 5595 (Exhibit 111311 on file at the office of the Purchasing
Agent)
(c) Form CIQ — Conflict of Interest Questionnaire (Exhibit "C").
(d) Supplier's Proposal. (Exhibit "D");
These documents make up the Contract documents and what is called for by one shall be
as binding as if called for by all. In the event of an inconsistency or conflict in any of the
provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving
precedence first to the written agreement then to the contract documents in the order in which
they are listed above. These documents shall be referred to collectively as "Contract
Documents."
IN WITNESS WHEREOF, the parties of these presents have executed this agreement in
the year and day first above written.
S111 . PPLIER 0
BY: mma.-tRA
4,UT
Date: 9 In
Name:Mnrk n11dafs1MVa
Title: Preswent
qqV- q& -- L306
PHONE NUMBER
cjq�- c
FAX NUMBER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY BY.,
'
i)� C. tA M PBE
G li C N NXNM-R-,
BY: Date:
41
BY:
Exhibit A
Special Terms and Conditions
Selected Services
This contract includes sections 3 & 4 of the RFP, Weather and Wind Forecasting services. See
Exhibit D attached.
Total Contract Amount
The contract total shall not exceed $77,004. A purchase order will be issued on an annual basis.
Pricing shall be per Exhibit D attached.
Product Changes During Contract Term
The Supplier shall not change specifications during the contract term without prior approval.
Except as provided in this Agreement, any deviation in the specifications or change in the
product must be approved in advance by the City of Denton. Notice of a change shall be
submitted in writing to dentoLipurchasina(&cityofdenton.com, with the above file number in the
subject line, for review. Except for changes noted in this Agreement, (a) Products found to have
changed specifications without notification, and acceptance, will be returned at the supplier's
expense, and (b) Products that have been installed will be replaced at the supplier's expense.
In order to improve the quality of the products, Supplier reserves the right to make changes from
time to time in the products without notice to City; provided, however, that Supplier shall give
notice to City of changes that significantly affect City's access to the products. City
acknowledges that Supplier receives certain data included in the products from third parties and
agrees that if receipt of such data by Supplier is terminated for any reason, Supplier shall have
the right to terminate transmission if after use of commercially reasonable efforts it is unable to
provide substitute products hereunder. If Supplier is not able to provide substitute products, the
parties shall make an equitable adjustment in the fees payable under this Agreement or this
Agreement shall terminate without further liability to either party hereto.
Authorized Distributor
The •• shall • the manufacturer • authorized distributor • the proposed •• Th*-
distributor shall be authorized to sell to the City of Denton, and make available th*
manufacturer's • as needed • the City.
Contract Terms
The contract term will be one (1) year, effective from date of award. The City and the Supplier
shall have the option to renew this contract for an additional two (2) one-year periods.
The contract shall commence upon the issuance of a Notice of Award by the City of Denton and
shall automatically renew each year, from the date of award by City Council, unless either party
notifies the other prior to the scheduled renewal date. At the sole option of the City of Denton,
the contract may be further extended as needed, not to exceed a total of six (6) months.
Delivery Lead Time
Product or services shall be delivered to the City per the days/weeks noted in Exhibit D after
receipt of the order.
City of Denton
Standard Purchase Terms and Conditions
These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other
requirements included in the City of Denton's solicitation are applicable to Contracts/Purchase Orders
issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller herein after
referred to as the Supplier. Any deviations must be in writing and signed by a representative of the City's
Procurement Department and the Supplier. No Terms and Conditions contained in the Supplier's Proposal
response, Invoice or Statement shall serve to modify the terms set forth herein. If there is a conflict
between the provisions on the face of the Contract/Purchase Order these written provisions will take
precedence.
By submitting an Offer in response to the Solicitation, the Supplier agrees that the contract shall be
governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated.
Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a
Solicitation to purchase Goods (the parties acknowledging that Supplier is providing only services under
this Agreement ("Services"), and Sections 9, 10, 11 and 22 shall apply only to a Solicitation to purchase
Services to be performed principally at the City's premises or on public rights -of -way.
1. SUPPLIER'S OBLIGATIONS. The Supplier shall fully and timely provide all deliverables described in the
Q*liVi6,26i41:i,-694 in tilimWin
all applicable Federal, State, and local laws, rules, and regulations.
Supplier grants to City a limited, non-exclusive, non -transferable license to access and use the Services exclusively
for City's own internal use. City acknowledges and agrees that City shall be assigned a unique user code and
,lass—_*r(f �,y Syyjlier, &A-4- that the Yser ctde 7A4, y,,?.ssw*r4, sk,011te kg�,t sx�rtly g*xf4enti,?l TAi used exclusively �*
City employees. If City suspects that a user code and password has been compromised, it is City's responsibility to
report this to Supplier immediately via phone or email.
FITIT"ITIVE DATE/TERM. Unless otherwise sIIv�ecified 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
,?ccordance with the Contract.
1 11 1, X "19 was M I
MKINUUM 1 11.1011 ENRON KI R.
g000 commercial pracuct; allu Snall INUIUIT_� WA
Vrice unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping
container shall be clearly and permanently marked as follows: (a) The Supplier's name and address, (b) the City's
name, address and purchase order or purchase release number and the price agreement number if applicable, (c)
Container number and total number of containers, e.g. box I of 4 boxes, and (d) the number of the container bearing
the packing list. The Supplier shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest
transportation costs and to conform to all the requirements of common carriers and any applicable specification. The
City's count or weight shall be final and conclusive on shipments not accompanied by packing lists.
4. SHIPMENT UNDER RESERVATION PROHIBITED: The Supplier is not authorized to ship the
deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables.
5. TITLE & 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.
"'Noill I OWN
I - F00910141y.7111W
WR= 1 s it-,
the Supplier-s price snall rie (leemea to include all GellVeTy MCI LrU
•
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.
RFP 5595
not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to
reject defective or non -conforming deliverables. If the City has the right to inspect the Supplier's, or the Supplier's
Subcontractor's, facilities, or the deliverables at the Supplier's, or the Supplier's Subcontractor's, premises, the
Supplier shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance t4
the City to facilitate such inspection.
wim an provisions or me Contract as to time or cielivery, quality, and quantity. Xny non-corriplyllig WIRICI Slit&
constitute a breach and the Supplier shall not have the right to substitute a conforming tender; provided, where the
time for performance has not yet expired, the Supplier may notify the City of the intention to cure and may then
inake a conforming tender within the time allotted in the contract.
9. PLACE AND CONDITION OF WORK: The City shall provide the Supplier access to the sites where the
Supplier is to perform the services as required in order for the Supplier to perform the services in a timely anif
efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Supplier
acknowledges that it has satisfied itself as to the nature of the City's service requirements and specifications, the
location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and
facilities necessary to perform the services, and any other condition or state of fact which could in any way affect
fi,erformance of the Supplier's obligations under the • The Supplier hereby releases and holds the City
harmless from and against any liability or claim for damages of any kind • nature if the actual site or service
conditions differ from expected conditions.
10. 1TO.'YV1RCE
A. The Supplier shall employ only orderly and competent workers, skilled in the performance of the services which
they will perform under the •
B, The Supplier, its employees, subcontractors, and subcontractor's employees may not while engaged in
ig*446
City of Denton • 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 • the contract; •
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 Supplier that any worker is incompetent, disorderly or
ii,+Vvij�� *r r-fimW�42�w"-1--d �nx �._Q�oossessed ®r
was under the influence of alcohol or drugs on the job, the Supplier shall immediately remove such worker from
Contract services, and may not employ such worker again on Contract services without the City's prior written
consent.
Immigration: The Supplier represents and warrants that it shall comply with the requirements of the Immigration
Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for
mip�v4TvLoInials hired on or after November 6 1986 who will Lurform. arip labor or services under the Contract ant
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA) enacted on September 30,
1996.
11. COMPLIANCE WITH HEALTH, SAFETV, AND ENVIRONMENTAL REGULATIONS: The Supplier,
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 • In case • • the most stringent safety requirement shall +;• The Supplier shall
indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines.,
penalties and liability of every kind arising from the breach of the Supplier's obligations under this paragraph.
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. City will be billed on a quarterly or annual basis, in advance. The Supplier shall submit separate invoices in
RFP 5595
duplicate on each purchase order or purchase
release. 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 Supplier's name, remittance address and, if applicable, the t
identification number on the invoice must exactly match the information in the Vendor's registration with the Cit
Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Supplie
invoice.
C. Invoices for labor shall include a copy of all time -sheets with trade labor rate and deliverables order numbLl-
clearly identified. Invoices shall also include a tabulation of work -hours at the appropriate rates and grouped
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 Supplier shall pass through all
Subcontract and other authorized expenses at actual cost without markup.
E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount.
The City will 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 invoice being received in Accounts Payable, whichever is later.
B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at
the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum
lawful rate; except, if payment is not timely made for a reason for which the City may withhold
payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for
withholding payment have been resolved.
C. If partial shipments or deliveries are authorized by the City, the Supplier will be paid for the partial
shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery,
D. The City may withhold or set off the entire payment or part of any payment otherwise due the
Supplier to such extent as may be necessary on account o f:
i. delivery of non -conforming deliverables by the Supplier;
ii. third party claims, which are not covered by the insurance which the Supplier is required to
provide, are filed or reasonable evidence indicating probable filing of such claims;
iii. failure of the Supplier to pay Subcontractors, or for labor, materials or equipment;
iv. damage to the property of the City or the City's agents, employees or suppliers, which is not
covered by insurance required to be provided by the Supplier;
v. reasonable evidence that the Supplier's obligations will not be completed within the time
specified in the Contract, and that the unpaid balance would not be adequate to cover actual or
liquidated damages for the anticipated delay;
vi. failure of the Supplier to submit proper invoices with purchase order number, with all required
attachments and supporting
documentation; or
vii. failure of the Supplier to comply with any material provision of the Contract Documents.
that aW awarded firm who is in arrears to the CitVA of Denton for delinquent taxes, the Citg
may offset indebtedness owed the City through payment withholding.
F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer
of funds. The Supplier agrees that there shall be no additional charges, surcharges, or penalties to the City for
payments made by credit card or electronic funds transfer.
"Wai I NAM"*
161.1,111 1 0.1ilmlilipli_i
extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the
Supplier. The City shall provide the Supplier written notice of the failure of the City to make an adequate
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 them expenses in connection with the Contract shall be pa4-
by the Supplier, unless otherwise stated in the contract terms.
IS. FINAL PAYMENT A0,D-C1AWF,011 -
A. If a DBE/MBE/WBE Program Plan is agreed to and the Supplier has identified Subcontractors, the Supplier is
Manager no later than the
15th calendar day after cornpletion of all work under the contract. Final payment, retainage, or both may be withheld
if the Supplier is not in compliance with the requirements as accepted by the City.
B. The making and acceptance of final payment will constitute:
i. a waiver of all claims by the City against the Supplier, except claims (1) which have been previously
asserted in writing and not yet settled, (3) arising from failure of the Supplier to comply with the Contract or the
terms of any warranty specified herein, (4) arising from the Supplier's continuing obligations under the Contract,
_J,j ntj obligations, or arising, under the Cit , s riihi tQ audit; and ii.
Zr-11-&-r settled, or (b) arising from failure of City to comply with any of its obligations with respect to the matter in clausl
(4) above. Nothing herein shall limit the survival of certain provisions of this Agreement as provided in Section 53
below.
16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special
tooling or special test equipment fabricated or required by the Supplier for the purpose of filling this order, such
�Xw-i4lv]AwJing ell�ui�tment and anWrocess sheets related thereto shall become the propertv f �the Citi and shall be
identified by the Supplier as such.
17. RIGHT TO AUDIT:
audit ans make copies of the books, records and computations pertaining to the Contract. The Supplier shall retain
such books, records, documents and other evidence pertaining to the Contract period and five years thereafter ,
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. The cost of the audit will be bome 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
-musUb-e- �rne b-, �te ii�v-lier which must be pagable 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 electronic files, even if such
electronic files are subsequently used to generate or prepare a final printed document.
I&SUBCONTRACTORS:
A. If the Supplier identified Subcontractors in a DBE/MBE/WBE agreed to Plan, the Supplier shall comply with all
mv�-a�*ry.roved bp the Citp. Th S Mlier shall not initiall emplokLan p7�, Subcontractor except as provided in
the Supplier's Plan. The Supplier 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
,? 'tQiVKL -4 ?VIi1W-b -1*A-7.*r*kNi4,- —'i ",—Si-1wontractor. If a Plan has
been approved, the Supplier is additionally required to submit a monthly Subcontract Awards and Expenditures
Report to the Procurement Manager, no later than the tenth calendar day of each month.
B. Work performed for the Supplier by an identified Subcontractor, if any, shall be pursuant to a written contract
between the Supplier 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 Supplier. The City may require, as a condition to such further subcontracting,
that the Subcontractor post a payment bond in form, substance and amount acceptable to the City;
require Subcontractors to submit all invoices and applications for payments, including any claims for
or otherwise, to the Supplier in sufficient time to enable the Supplier to include same
with its invoice or application for payment to the City in accordance with the terms of the Contract;
iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in
the type and amounts specified for the Supplier, with the City being a 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 Supplier is
required to indemnify the City.
C. The Supplier shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the
un ert e ontract will be performed in a good and workmanlike manner and in accordance with genera yaccepe
industry standards and all applicable Federal, State and local laws, rules or regulations.
EXCEPT AS PROVIDED IN THIS SECTION, SUPPLIER MAKE NO WARRANTY WITH RESPECT TO THE
SERVICES AND, ACCORDINGLY, THE SERVICES HEREUNDER ARE PROVIDED "AS IS". SUPPLIER
W'"t 11416AW Ul "61,64 4A 'E- -17fT77"rilt M,
B,9;1'11U'l LIMHED I(J-VTAPV��IIIES UP PlYIESS PAP&A TARl'l170LAAL-L1A?'*S Wr
OR OF MERCHANTABILITY (WHICH ARE DISCLAIMED), WITH RESPECT TO THE SERVICES.
SUPPLIER ASSUMES NO RESPONSIBILITY WITH RESPECT TO THE USE BY CITY OR ITS EMPLOYEES
OR CLIENTS OF THE SERVICES.
City acknowledges and agrees that the Services are wholly advisory in nature and all actions and judgments taken
with respect to the Services are City's sole responsibility. Supplier and its suppliers make no representations with
respect to the reliability, timeliness, predictive value or accuracy of the weather or other information contained
within the Services and Supplier and its suppliers shall not be responsible for errors resulting from any inaccurate,
delayed, omitted, misstated, incorrectly displayed or other erroneous information. City acknowledges the inherent
?xi
use. The Services should not be considered investment advice or any form of recommendation to buy, sell or
subscribe for any assets. Supplier and its suppliers shall not be liable for any losses or expenses arising directly or
indirectly out of the use of or reliance on the forecasts or infortnation included within the Services.
23. [intentionally Omitted]
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 Supplier is
observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is
determined by the City to be unsafe to either life or property. Upon notification, the Supplier will cease all work
until notified by the City that the violation or unsafe condition has been corrected.
111,9101 nadul, kF) W11S Ut PIFUT11 Llic %_* OW
9UL'8'CFF*-11-1Tdr[CC;
(c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material
7yyTT=-VMy1'r 1=#X-y4T= rJ-Cy=LT; -PIP my,- Y'e IV W -4�"j -&--I
for three (3) years and any Offer submitted by the Supplier may be disqualified for up to three (3) years. All rights
29. FRAUD: Fraudulent statements by the Supplier on any Offer or in any report or deliverable required to be
submitted by the Supplier to the City shall be grounds for the termination of the Contract for cause by t e City an
may result in legal action.
30. DELAYS:
A. A. 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
?iv
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.
3 1. LIMITATION OF LIABILITY:
NOTWITHSTANDING ANYTHING CONTAINED HEREIN, OR THE FORUM IN WHICH ANY LEGAL OR
EQUITABLE ACTION MAY BE BROUGHT BY CITY AGAINST SUPPLIER, CITY AGREES THAT
SUPPLTETIJ jjjjjj 1�&,NY TW CITY FOR ANY LOSS, DAMAGE CLAIM, LIABILITY OR EXPENSE,
I U14111110-mum
IV
OF SUPPLIER SHALL BE EXCLUSIVELY LIMITED TO GENERAL MONEY DAMAGES IN AN AMOUNT
NOT TO EXCEED THE PRICE PAID BY CITY TO SUPPLIER HEREUNDER FOR THE MOST RECENT
TWELVE MONTHS OF SERVICES. IN NO EVENT SHALL SUPPLIER OR ITS SUPPLIERS BE LIABLE FOR
SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR
LOST PROFITS OR DAMAGES FROM LOSS OF USE OR DATA (DESPITE THE FACT THAT THE
POSSIBILITY OF SUCH DAMAGES ARE OR MAY BE KNOWN TO SUPPLIER AND/OR ITS SUPPLIERS),
WHETHER ARISING OUT OF BREACH OF AGREEMENT, TORT OR ANY OTHER CAUSE OF ACTION
RELATING TO THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT.
32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance
requirements detailed in the solicitation document. The successful firra shall procure and maintain insurance of the
types and in the minimum amounts acceptable to the City of Denton.
A. General Requirements.
i. The Supplier shall at a minimum carry insurance in the types and amounts indicated and agreed to, as
submitted to the City and approved by the City within the procurement process, for the duration of the
Contract, including extension options and hold over periods, and during any warranty period.
ii. The Supplier shall provide Certificates of Insurance with the coverage's and endorsements required to
LIS 1,110 %-AtJ-1T11JC11O7Of d 0. 0 1,
period is exercised, as verification of continuing coverage.
iii. The Supplier shall not commence work until the required insurance is obtained and until such insurance
the City shall not relieve or decrease the liabLity
of the Supplier hereunder and shall not be construed to be a limitation of liability on the part of the
Supplier.
iv. The Supplier must submit certificates of insurance to the City for all identified subcontractors, if any,
prior to the subcontractors commencing work on the project.
v. The Supplier's and all subcontractors' insurance coverage shall be written by companies licensed to do
business in the State of Texas at the time the policies are issued and shall be written by companies with
A.M. Best ratings of A- VIT 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
information:
City of Denton
901 B Texas Street
Denton, Texas 76209
vii. The "other" insurance clause shall not apply to the City where the City is an additional insured shown
on any policy. It is intended that policies required in the Contract, covering both the City and the Supplier,
shall be considered primary coverage as applicable.
viii. If insurance policies are not written for amounts agreed to with the City, the Supplier shall carry
Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability
Insurance is provided, it shall follow the form of the primary coverage.
ix. The City shall be entitled, upon request, at an agreed upon location, and without expense, to review
certified copies of policies and endorsements thereto.
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 Supplier.
xi. The Supplier shall not cause any insurance to be canceled nor permit any insurance to lapse during the
term of the Contract or as required in the Contract.
xii. The Supplier shall be responsible for premiums, deductibles and self -insured retentions, if any, stated in
policies. All deductibles or self -insured retentions shall be disclosed on the Certificate of Insurance.
xiii. The Supplier shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of
the aggregate limits below occurrence limits for all applicable coverage's indicated within the Contract.
xiv. The insurance coverage's specified in within the solicitation and requirements are required minimums
and are not intended to limit the responsibility or liability of the Supplier.
B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument.
33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Supplier which arises under
mtrqct. *r which could[ !tzve ?. material adverse affect on the Supplier's ability to perform thereundOP,
City Attorney. Personal delivery to the City Attorney s all be to City Hall, 215 East McKinney Street, Dento
Texas 76201. 1
014 11111141"MR10111.2014.1111 g4molsian
specified in the Supplier's Offer, or at such other address as a party may notify the other in writing, with a copy to
The Weather Channel, LLC, 300 Interstate North Parkway, Atlanta, Georgia 30339, Attention General Counsel.
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.
NNIN A Now.,
§1=W_C_�J-WJA*VrMVeYPN--. n
9,upplier to be proprietary must be clearly marked as such. Determination of the public nature of the material is
�.ubject to the Texas Public Information Act, Chapter 552, and Texas Government Code.
111611, -
MU+0 5j, any persitri Of CIR111' ITH11 IeSy= LO LnC 3effICOS Ti anj Taliv- I
such claims. The Supplier shall, at its sole expense, defend, indemnify, and hold the City harmless from and against
all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals)
arising out of or resulting from: (i) any claim that the Services supplied hereunder and the City's use thereof as
. . Jint, trade secret or coiji!ht enforceable in the United States In the event
to act on the City's behalf. Provided, however, that Supplier's obligations under this section are subject to the
following: City promptly notifies Supplier in writing of the claim, Supplier has sole control of the defense and all
related settlement negotiations, City reasonably cooperates with Supplier and provides Supplier with complete
information concerning the claim. Supplier's liability hereunder shall not apply to the extent that City or any third
in ination of
LIX 3CIVAX6 V?JL11 d11J OULICI trAU111O1V;:T1 plJl9)ltJ!L;LN 11:1 U111 L11C 11111111�,UIIICIIL V411,11t 1111% HaTc—al
combination. Supplier's obligation hereunder is further conditioned on City's agreement that, if any part of the
Services become, or in Supplier's opinion is likely to become, the subject of such claim, City will permit Supplier, at
same so that it becomes non -infringing while retaining equivalent functionality. If neither of the foregoing
alternatives is available on terms that are reasonable in Supplier's judgment, Supplier shall have the right to
terminate this Agreement without further liability to either party hereto, This Section states Supplier's entire liability
for infringements of the intellectual property rights of any third party.
require access to certain of the other party's (the "Disclosing Party") and/or its licensors' confidential information
(including inventions, employee information, trade secrets, confidential know-how, confidential business
information, and other information which the Disclosing Party or its licensors consider confidential) (collectively,
;roi, t "J%1,Q1tijI Information does not include information that li�
is or oecomes pan 3Y Me PUUIIL; UU HIU111 HIJULgil lilt IdUlL *1 L11C rIXUIZIT111�, FdILJ, C79;
Party from a third party as a matter of right without any restriction on disclosure; or (iii) was developed by the
Receiving Party independently. Confidential Information of a Disclosing Party will be used by the Receiving Party
solely in furtherance of the transactions contemplated herein and for any other purpose. Each party as the Receiving
Party acknowledges and agrees that the Confidential Information of the Disclosing Party is the valuable property of
the Disclosing Party and/or its licensors and any unauthorized use, disclosure, dissemination, or other release of the
Confidential Infori-nation by the Receiving Party will substantially injure the Disclosing Party and/or its licensors.
will maintain the Confidential Information of the Disclosing Party in strict confidence and shall not disclose,
disseminate, copy, divulge, recreate, or otherwise use the Confidential Information of the Disclosing Party without
the prior written consent of the Disclosing Party or in a manner not expressly permitted under this Agreement,
I Two
11161111"110111 "mill _1 , 0 1 oil'
lit IJ41- w I
protective order. Each party agrees to use protective measures no less stringent than it 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. [intentionally Omitted]
39. [Intentionally Omitted]
40. ADVERTISING: The Supplier 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 Supplier 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,
9 bona fide errryloyees of bona fide established commercial or sell i nqi ies
maintained by the Supplier for the purpose of securing business. For breach or violation of this warranty, the City
shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct
from any amounts owed to the Supplier, or otherwise recover, the full amount of such commission, percentage,
brokerage •: • fee.
42. GRATUITIES: The City may, by written notice to the Supplier, cancel the Contract without liability if it is
determined by the City that gratuities were offered or given by the Supplier or any agent or representative of the
Supplier to any officer or employee of the City of Denton with a view toward securing the Contract or securing
Pt
Imam OMMOON Na= 111111111111110 -1
HL 41 111 --
SIIHII OU VIRILIVU, III diJUILIVII LV any ouin iligins uiiu fullieuies, 10 f0084tf aMli +1 111 ,1
by the Supplier in providing such gratuities.
ic............. 1 1
City. The Supplier shall complete and submit the City's Conflict of Interest Questionnaire (Attachment B).
�4. INDEPENDENT SUPPLIER: The Contract shall not be construed as creating an employer/employee
relationship, a partnership, or a joint venture. The Supplier's services shall be those of an independent supplier. The
9AW
the Supplier or any employee of the Supplier, and it is expressly understood that Supplier shall perfon-n 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.
i woo I IN I N 1110111 Wrillikim
sale of substantially all of its assets, no right or interest in the Contract shall be assigned and no obligation shall be
delegated by the Supplier without the prior written consent of the City. Any attempted assignment or delegation by
the Supplier shall be void unless made in conformity with this paragraph. The Contract is not intended to confer
third party beneficiaries to the Contract.
46. WAtVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a
No 0
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.
J,7. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No
1�re-printed or similar terms on any the Supplier invoice, order or other document shall have any force or effect to
change the terms, covenants, and conditions of the Contract.
trade shall be relevant to supplement or explain any term used in the Contract. AitnoUgn the Coni
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
I�srosecuting a suit for damaiyes. However this section does not Li�rohibit the film of a lawsuit to !Q11 the running of a
statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between
4)na�nln- iII 7ep�uIc"gg
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
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
i2jc a,--2Rt_kcLe. IiTgy P191i - - - I -
jfbb-k-_VtJ1Ly_LJIU c,?Jenda1L_4,.9%s of i
frog�ram Nuiv,
the date of the first mediation session. The City and the Supplier will share the mediator's fees equally and the
parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to
represent them or otherwise assist them in the mediation.
-5111. J1J'A'I"I1IUIT(I is made under —anU 'sa ne Rovernea Q
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 • shall be resolved in the courts of Denton • 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, • • of any provision • the • shall in no way
rovisio-,t of the Contract. Anv ovision shall be
did not contain the particular portion orprovision field to 6e void. Ine parties rurmer agree to reTorm me �_omracl
replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken
provision. The provisions of this section shall not prevent this entire Contract from being void should a provision
which is the essence of the Contract be determined to be void.
RFP 5595
F"45WIMUMMMMIT
MLK Day
Memorial Day
4th of July
Labor Day
Thanksgiving Day
Day After Thanksgiving
Christmas Eve (observed)
Christmas 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 authorizei
designee.
53. SJORTFIABILITT OF OBLIGATIO
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 CERTIFICATI01:
7��h rr-im&ki-t
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 De-tito-c.
55. EQUAL OPPORTUNITY
A. Equal Employment Opportunity: No Offeror, or Offeror's agent, shall engage in any discriminatory
employment practice. No person shall, on the grounds of race, sex, age, disability, creed, color, genetic testing, or
d to discrimination under an 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 D.
56. BUY AMERICAN ACT -SUPPLIES (Applicable to certain federally funded requirements)
The following federally funded requirements are applicable, in addition to the specific federally funded
requirements.
A. Definitions. As used in this paragraph —
i. "Component" means an article, material, or supply incorporated directly into an end product.
"Cost of components" means -
(1) For components purchased by the Supplier, the acquisition cost, including transportation costs to the place of
incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty
(whether or not a duty-free entry certificate is issued); or
(2) For components manufactured by the Supplier, all costs associated with the manufacture of 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.
"Domestic end product" means-
(1) An uninanufactured 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.
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in any response to this solicitation, whether amended or not, except as prohibited by law. Selection of rejection of
the submittal does not affect this right. Without limiting the foregoing, all pricing information shall be deemed to be
Confidential Information of Supplier under the Confidentiality Agreement.
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59. PREVAILING WAGE RATES: All suppliers will be required to comply with Provision 5159a of "Vernons
Annotated Civil Statutes" of the State of Texas with respect to the payment of prevailing wage rates and prohibitiAll
discrimination in the employment practices.
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and performance of the Contract.
the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing
with issuance of Form W-2's to common law employees. Supplier is responsible for •• federal and State
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to Supplier or its employees for any Unemployment • Workers' Compensation coverage, • federal • State
withholding requirements. Supplier shall indemnify the City of Denton and shall pay all costs, penalties, or losses
resulting from Supplier's omission or breach of this Section.
by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to
implement the provisions of the Drug -Free Work Place Act of 1988 is incorporated by reference and the supplier
shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter b,ai
issued.
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CONFLICT OF INTEREST QUESTIONNAIRE FORM CI
For vendor or other person doing business with local ciovernmental entity
This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. OFFICE
USE
This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a ONLY
person who has a business relationship as defined by Section 176.001(1-a) with a local governmental date
entity and the person meets requirements under Section 176.006(a). Received
By law this questionnaire must be filed with the records administrator of the local government entity not
later than the 7th business day after the date the person becomes aware of facts that require the
statement to be filed. See Section 176.006, Local Government Code.
A person commits an offense if the person knowingly violates Section 176.006, Local Government
Code. An offense under this section is a Class C misdemeanor.
q Name of person who has a business relationship with local governmental entity.
® Check this box if you are filing an update to a previously filed questionnaire.
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not
later than the 7`h business day after the date the originally filed questionnaire becomes incomplete or
inaccurate.)
Name of local government officer with whom filer has an employment or business relationship.
Name of Officer
This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an
employment or other business relationship as defined by Section 176.001 (1 -a), Local Government Code. Attach
additional pages to this Form CIQ as necessary.
A. Is the local government officer named in this section receiving or likely to receive taxable income, other
than investment income, from the filer of the questionnaire?
Yes El No
B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income,
from or at the direction of the local government officer named in this section AND the taxable income is not
received from the local governmental entity?
El 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 10 percent or more?
El Yes = No
D. Describe each affiliation or business relationship.
Signature of person doing business with the governmental Date
entity
RFP 5595