2011-198ORDINANCE N � I — r ! �
AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR,
AUTHORIZING, AND APPROVING THE EXPENDITURE OF FUNDS FOR THE
PURCHASE OF RETAINING WALL MATERIALS UTILIZED 1N THE
CONSTRUCTION OF A SCREENING WALL AT THE CITY OF DENTON
LANDFILL; THE REQUESTED MATERIALS ARE FROM ONLY ONE SOURCE
AND 1N ACCORDANCE WITH CHAPTER 252.022 OF THE TEXAS LOCAL
GOVERNMENT CODE AND CITY OF DENTON PURCHASING POLICY
CHAPTER 2, SECTION III. SUCH PURCHASES ARE EXEMPT FROM THE
REQUIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN
EFFECTIVE DATE (FILE 4834-THREE YEAR CONTRACT FOR THE PURCHASE
OF RETAINING WALL MATERIALS FOR CITY OF DENTON LANDFILL
AWARDED TO STONE STRONG, LLC 1N ESTIMATED AMOUNT OF $150,000
ANN UALLY).
WHEREAS, Section 252.022 of the Local Government Code provides that
procurement of items that are only available from one source, including; items that are
only available from one source because of patents, copyrights, secret processes or natural
monopolies; films, manuscripts or books; electricity, gas, water and other utility
purchases; captive replacement parts or components for equipment; and library materials
for a public library that are available only from the persons holding exclusive distribution
rights to the materials; and need not be submitted to competitive bids; and
WHEREAS, the City Council wishes to procure one or mare of the items
mentioned in the above paragraph; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The following purchase of materials, equipment or su�plies, as
described in the "File" listed hereon, and on file in the office of the Purchasing Agent,
and the license terms attached axe hereby approved:
FILE
NUMBER
4834
VENDOR
Stone Strong, LLC
AMOUNT
Per Exhibit D of Agreement
SECTION 2. The City Council hereby finds that this bid, and the award thereof,
constitutes a procurement of items that are available from only one source, including,
items that are only available from one source because of patents, copyrights, secret
processes or natural monopolies; films, manuscripts or books; electricity, gas, water and
other utility purchases; captive replacement parts or components for equipment; and
library materials for a public library that are available only from the persons holding
exclusive distribution rights to the materials; and need not be submitted to competitive
bids.
SECTION 3. The acceptance and approval of the above items shall not
constitute a contract between the City and the person submitting the quotation for such
items until such person shall comply with all requirements specified by the Purchasing
Department.
SECTION 4. The City Manager is hereby authorized to execute any contracts
relating to the items specified in Section 1 and the expenditure of funds pursuant to said
contracts is hereby authorized.
SECTION 5. 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 File 4834 to the City Manager of the City of
Denton, Texas, or his designee.
SECTION 6. This ordinance shall become effective immediately upon its
passage and approval.
PASSED AND APPROVED this the day o �, 2011.
� :�� �
�
�ARK AtBU UG S YOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: .,.
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
,
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BY: j .�
5-ORD-Fil 34
CONTRACT BY AND BETWEEN
CITY OF DENTON, TEXAS AND
STONE STRONG SYSTEMS (FILE 4834)
THIS CONTRACT is made and entered into this /� day o� A.D., 2011,
by and between Stone Strong of Texas a corporation, whose address is PO Box 835, Justin, TX
76247, hereinafter referred to as "Supplier," and the CITY OF DENTON, TEXAS, a home rule
municipal corporation, hereinafter referred to as "City," to be effective upon approval of the
Denton City Council and subsequent execution of this Contract by the Denton City Manager or
his duly authorized designee.
For and in consideration of the covenants and agreements contained herein, and for the
mutual benefits to be obtained hereby, the parties agree as follows:
SCOPE OF SERVICES
Supplier sha11 provide products in accordance with the Supplier's proposal in response
thereto, a copy of which is attached hereto and incorporated herein for all purposes as Exhibit
"D". The Contract consists of this written agreement and the following items which are attached
hereto and incorporated herein by reference:
(a) City of Denton Standard Terms and Conditions (Exhibit "A")
(b) Special Terms and Conditions (Exhibit "B")
(c) Form CIQ — Conflict of Interest Questionnaire (Exhibit "C").
(d) Supplier's Proposal. (Exhibit "D");
These documents malce 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."
Page 1 of 18
IN WITNESS WI-IEREOF, the parties of these presents have executed this agreement in
the year and day first above written.
APPROVED AS TO LEGAL FORM
ANITA BURGESS, CITY ATTORNEY
BY: ,, �� �
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DATE: �� � �
SUPPLIER
BY:
IGNATURE
Date: cJ-Zb�2o[1
Name: �ol�Y �I�sAP-nT's
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MAILING ADDRESS
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PHONE NUMBER
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FAX NUMBER
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PRINTED NAME
CITY OF DENTON
BY• �
ITY MANAGER
DaTE: /� - / �'- �, �//
Page 2 of 18
Eghibit A
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 Bidder, Contractor or Supplier. Any deviations must be in writing and signed by a
representative of the City's Procurement Department and the Supplier. No Terms and Conditions
contained in the Sellers Proposal response, Invoice or Statement shall serve to modify the terms set forth
herein. If there is � conflict between the provisions on the face of the Contract/Purchase Order these
written provisions will take precedence.
By submitting an Offer in response to the Solicitation, the Contractor agees that the Contract shall be
governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated.
Unless otherwise specified in the Contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a
Solicitation to purchase Goods, and Sections 9, 10, 11 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. CONTRACTOR'S OBLIGATIONS. The Contractor shall fully and timely provide all deliverables described in
the Solicitation and in the Contractor's Offer in strict accordance with the terms, covenants, and conditions of the
Coniract and all applicable Federal, State, and local laws, rules, and regulations.
2. EFFECTIVE DATE/TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of
the date the contract is signed by the City, and shall continue in effect until all obligations are performed in
accordance with the Contract.
3. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor will package deliverables in accordance
with good commercial practice and shall include a packing list showing the description of each item, the quantity
and unit price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping
container shall be clearly and permanently marked as follows: (a) The Contractar's name and address, (b) the City's
name, address and purchase order or purchase release number and the price agreement number if applicable, (c)
Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing
the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest
transportation costs and to conform to all the requirements of common carriers and any applicable specification. The
City's count or weight shall be final and conclusive on shipments not accompanied by packing lists.
4. SHIPMENT iJNDER RESERVATION PROHISITED: The Contractor is not authorized to ship the
deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables.
5. TITLE & RI,SK OF LOS5: Title to and risk of loss of the deliverables shall pass to the City only when the City
actually receives and accepts the deliverables.
6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of
delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer,
the Contractor's price shall be deemed to include all delivery and transportation charges. The City shall have the
right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be
that set forth the purchase order.
7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including, but
not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to
reject defective or non-conforming deliverables. If the City has the right to inspect the Contractor's, ar the
Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's,
premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities
and assistance to the City to facilitate such inspection.
Page 3 of 18
8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply
with all provisions of the Contract as to time of delivery, quality, and quantity. Any non-complying tender shall
consritute a breach and the Coniractor shall not have the right to substitute a conforming tender; provided, where the
time for performance has not yet expired, the Contractor may notify the City of the intenrion to cure and may then
make a conforming tender within the time allotted in the contract.
9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the
Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and
efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The
Contractor acknowledges that it has satisfied itself as to the nature of the City's service requirements and
specifications, the location and essential characteristics of the work sites, the quality and quantity of materials,
equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which
could in any way affect performance of the Contractor's obligations under the contract. The Contractor hereby
releases and holds the City harmless from and against any liabiliTy or claim for damages of any kind or nature if the
actual site or service conditions differ from expected conditions.
10. WORi�'ORCE
A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services
which they will perForm under the Contract.
B. The Contractor, its employees, subcontractors, and subcontractor's employees may not while engaged in
participating or responding to a solicitation or while in the course and scope of delivering goods or services under a
City of Denton contract or on the City's properly .
i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as
required by the terms of the contract; or
u. use or possess alcoholic or other intoxicating beverages, illegal drugs or conlrolled substances, nor may
such workers be intolcicated, or under the influence of alcohol or drugs, on the job.
C. If the City or the City's representative norifies the Contractar that any warker is incompetent, disorderly or
disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or
was under the influence of alcohol or drugs on the job, the Contractor shall immediately remove such worker from
Contract services, and may not employ such worker again on Contract services without the City's prior written
consent.
Immigratiou: The Contractor represents and warrants that it shall comply with the requirements of the Iminigration
Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for
any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and
the IDegal Immigration Reform and Immigant Responsibility Act of 1996 ("IIRIRA) enacted on September 30,
1996.
11. COMPLIANCE WITH FIEALTH, SAFETY, AND ENVIRONIVIENTAL REGiTLATIONS: The
Contractor, iYs 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
Ad.ministrarion (OSHA). In case of conflict, the most siringent safery requirement shall govern. The Contractor shall
indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines,
penalries and liability of every kind arising from the breach of the Contractor's obligations under this paragraph.
Environmental Protection: The Respondent shal] be in compliance with all applicable standards, orders, or
regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seq.) and the Federal Water
Pollution Control Act, as amended, (33 U.S.C. §1251 et seq.).
12. INVOICES:
A. The Contractor shall submit separate invoices in duplicate on each purchase order or purchase
release after each delivery. If partial shipments or deliveries are authorized by the City, a separate
invoice must be sent for each shipment or delivery made.
B. Proper Invoices must include a unique invoice number, the purchase order or delivery order
number and the master agreement number if applicable, the Department's Name, and the
name of the point of contact for the Department. Invoices shall be itemized and transportation
Page 4 of 18
charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when
applicable, shall be attached to the invoice. The Contractor's name, remittance address and, if applicable, the tax
identification number on the invoice must exactly match the information in the Vendor's registrarion with the City.
Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Contractor's
invoice.
C. Invoices for labor shall include a copy of all time-sheets with irade labar rate and deliverables order number
clearly identified. Invoices shall also include a tabulation of work-hours at the appropriate rates and grouped by
work order number. Time billed for labor shall be limited to hours actually warked at the work site.
D. Unless otherwise expressly authorized in the Contract, the Contractor shall pass through all
Subcontract and other authorized expenses at actual cost without markup.
E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount.
The City will furnish a tax exemption certificate upon request.
13. PAYMENT:
A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30)
calendar days of the City's receipt of the deliverables or of the invoice being received 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 spec'if'ied in Texas Government Code Section 2251.025 or the maximum
lawful rate; egcept, if payment is not timely made for a reason for which the City may withhold
payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for
withholding payment have been resolved.
C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the partial
shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery.
D. The City may withhold or set off the entire payment or part of any payment otherwise due the
Contractor to such extent as may be necessary on account of:
i. delivery of defective or non-conforming deliverables by the Contractor;
u. third party claims, which are not covered by the insurance which the Contractor is required to
provide, are filed or reasonable evidence indicating probable filing of such claims;
rii. failure of the Contractor to pay Subcontractors, or for labor, materials or equipment;
iv. damage to the property of the City or the City's agents, employees or contractors, which is not
covered by insurance required to be provided by the Contractor;
v. reasonable evidence that the Contractor's obligations will not be completed within the time
specified in the Contract, and that the unpaid balance would not be adequate to cover actual or
liquidated damages for the anticipated delay;
vi. failure of the Contractor to submit proper invoices with purchase order number, with all required
attachments and supporting
documentation; or
vu. failure of the Contractor to comply with any material provision of the Contract Documents.
E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City
may offset indebtedness owed the City through payment withholding.
F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer
of funds. The Contractor agrees that there shall be no addirional charges, surcharges, or penalties to the City far
payments made by credit card or electronic funds transfer.
G. The awarding or continuation of this contract is dependent upon the availability of funding. The City's payment
obligations are payable only and solely from funds Appropriated and a�ailable for this contract. The absence of
Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not
Appropriated or available and any deliverables delivered but unpaid shall be returned to the Contractor. The City
shall provide the Contractor written notice of the failure of the City to make an adequate Appropriation for any fiscal
year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to
permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds,
there will be no penalTy nor removal fees charged to the City.
14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid
by the Contractor, unless otherwise stated in the coniract terms.
15. FINAL PAYIVIENT AND CLOSE-OUT:
Page 5 of 18
A. If a DBE/MBE/WBE Program Plan is agreed to and the Contractor has identified Subcontractors, the Contractor
is required to submit a Contract Close-Out MBE/WBE Compliance Report to the Purchasing Manager no later than
the 15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be
withheld if the Contractor is not in compliance with the requirements as accepted by the City.
B. The making and acceptance of final payment will constitute:
i. a waiver of all claims by the City against the Contractor, except claims (1) which have been previously
asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising
from failure of the Conlractor to comply with the Contract or the terms of any warranty specified herein, (4} arising
from the Contractor's continuing obligarions under the Contract, including but not limited to indemnity and
warranty obligations, or (5) arising under the City's right to audit; and ri. a waiver of all claims by the Contractor
against the City other than those previously asserted in writing and not yet settled.
16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special
tooling or special test equipment fabricated or required by the Coniractor for the purpose of filling this order, such
special tooling equipment and any process sheets related thereto shall become the property of the City and shall be
identified by the Contractor as such.
17. RIGHT TO AUDIT:
A. The Ciry shall have the right to audit and make copies of the books, records and computations pertaining to the
Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Coniract
period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case
records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other
evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also
require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other
evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records
will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City
unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable
cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5)
business days of receipt of an invoice.
B. Failure to comply with the provisions of this secrion shall be a material breach of the Contract and shall
consritute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books", "records",
"documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if
such drafts or electronic files are subsequently used to generate or prepare a final printed document.
18. SUBCONTRACTORS:
A. If the Contractor identified Subcontractors in a DBE/MBE/WBE agreed to Plan, the Contractor shall comply with
all requirements approved by the City. The Contractor shall not initially employ any Subcontractor except as
provided in the Conlractor's Plan. The Contractar shall not substitute any Subcontractor identified in the Plan,
unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall
constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a
Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract
Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month.
B. Wark performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the
Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the
Contract, and shall contain provisions that:
i. require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the
provisions, specifications and terms of the Contract;
ri. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior
written consent of the City and the Contractor. The City may require, as a condition to such furkher subcontracting,
that the Subcontractor post a payment bond in form, substance and amount acceptable to the City;
iu. require Subcontractors to submit all invoices and applications for payments, including any claims for
addirional payments, clamages or otherwise, to the Contractor in sufficient time to enable the Contractor to include
same with its invoice or application for payment to the City in accordance with the terms of the Contract;
iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in
the type and amounts specified for the Contractor, with the City being a named insured as its interest shall appear;
and
v. require that the Subcontractor indemnify and hold the City haimless to the same extent as the Contractor
Page 6 of 18
is required to indemnify the City.
C. The Contractor shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the
Contractar is responsible for the Contractor's own acts and omissions. Nothing in the Contract shall create far the
benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor
shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such
Subcontractar except as may otherwise be required by law.
D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the Contractor not later
than ten (10) calendar days after receipt of payment from the City.
19. WARRANTY-PRICE:
A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's current prices on orders
by others for like deliverables under similar terms of purchase.
B. The Contractor ceriifies that the prices in the Offer have been arrived at independently without consultation,
communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with
any other firm or with any competitor.
C. In addition to any other remedy available, the City may deduct from any amounts owed to the Contractor, or
otherwise recover, any amounts paid for items in excess of the Contractor's current prices on orders by others for
like deliverables under similar terms of purchase.
20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables
furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and
encumbrances. The Conlractor shall indemnify and hold the City harmless from and against all adverse ritle claims
to the deliverables.
21. WARRANTY — DELIVERABLES: The Contractor warrants and represents that all deliverables sold the City
under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material
respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the
Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws,
rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables
shall be new or recycled merchandise, and not used or reconditioned.
A. Recycled deliverables shall be clearly identified as such.
B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and
any attempt to do so shall be without force or effect.
C. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the date of
acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty
period, one or more of the above warranries are breached, the Contractor shall promptly upon receipt of demand
either repair the non-conforming deliverables, or replace the non-conforming deliverables with fully conforming
deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or
replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the
Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within tbirty (30)
calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's
rights under this secrion.
D. If the Contractor is unable or unwilling to repair or replace defective or non-conforming deliverables as required
by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may
be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other
sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the
City to procure such deliverables from another source.
E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty,
the Contractor shall transfer and assign such manufacturer's warranty to the City. If for any reason the
manufacturer's warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the
City to the fullest extent to enforce such manufacturer's warranty far the benefit of the City.
22. WARRANTY — SERVICES: The Contractor warrants and represents that all services to be provided the City
under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with
generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all
applicable Federal, State and local laws, rules or regulations.
A. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranTy implied by law, aud
Page 7 of 18
any attempt to do so shall be without force or effect.
B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance
Date. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly
upon receipt of demand perform the services again in accordance with above standard at no additional cost to the
City. All costs incidental to such additional performance shall be borne by the Contractor. The City shall endeavor
to give the Contractor written notice of the breach of warranty within thu�ty (30) calendar days of discovery of the
breach warranty, but failure to give timely norice shall not impair the City's rights under this section.
C. If the Contractar is unable or unwilling to perform its services in accordance with the above standard as required
by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be
required to purchase under the Contract from the Contractor, and purchase conforming services from other sources.
In such event, the Contractar shall pay to the City upon demand the increased cost, if any, incurred by the City to
procure such services from another source.
23. ACCEPTANCE OF INCOMPLETE OR NON-CONFORIVIING DELIVERABLES: If, instead of requiring
immediate correction or removal and replacement of defective or non-conforming deliverables, the City prefers to
accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's
evaluation of and determination to accept such defecrive or non-conforming deliverables. If any such acceptance
occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the
dinuuished value of the defective or non-conforming deliverables. If the acceptance occurs after final payment, such
amount will be refunded to the City by the Conlractor.
24. RIGHT TO ASSURANCE: Whenever one parly to the Contract in good faith has reason to question the other
pariy's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In
the event that no assurance is given within the time specified after demand is made, the demanding party may treat
this failure as an anticipatory repudiation of the Contract.
25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is
observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is
determined by the City to be unsafe to either life or property. Upon notification, the Contractor will cease all work
until notified by the City that the violation or unsafe condition has been corrected. Tt�e Contractor shall be liable for
all costs incurred by the City as a result of the issuance of such Stop Wark Notice.
26. DEFAULT: The Coniractor shall be in default under the Contract if the Contractor (a) faiLs to fully, timely and
faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of
performance under Paragraph 24, (c) becomes insolvent or seeks relief under the banlcruptcy laws of the United
States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be
submitted by the Contractor to the City.
27. TERMINATION FOR CAUSE: In the event of a default by the Contractar, the City shall have the right to
terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after
the date of such notice, unless the Contractor, within such ten (10) day period, cures such default, or provides
evidence sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, e�st. 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 Coniractor's default, including, without limitation, cost of
cover, reasonable attorneys' fees, court costs, and prejudgment and post judgment interest at the maximum lawful
rate. Additionally, in the event of a default by the Contractor, the City may remove the Contractor from the CiTy's
vendor list for three (3) years and any Offer submitted by the Contractor may be disqualified for up to three (3)
years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy
provided by law.
28. TERNIINATION WITHOiTT CAUSE: The City shall have the right to terminate the Contract, in whole or in
part, without cause any time upon thirly (30) calendar days' priar written notice. Upon receipt of a notice of
termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if
any, specified in the notice of termination. The City shall pay the Coniractor, to the extent of funds Appropriated or
otherwise legally available for such purposes, for all goods delivered and services performed and obligations
incurred prior to the date of termination in accordance with the terms hereof.
Page 8 of 18
29. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable required to be
submitted by the Contractar to the City shall be grounds for the termination of the Contract for cause by the City and
may result in legal action.
30. DELAYS:
A. The City may delay scheduled delivery or other due dates by written notice to the Contractor if the City deems it
is in its best interest. If such delay causes an increase in the cost of the work under the Contract, the City and the
Contractor shall negotiate an equitable adjustment for costs incurred by the Contractor in the Contract price and
execute an amendment to the Contract. The Contractor must assert its right to an adjustment within thirty (30)
calendar days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled
under the Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the
Contractor from delaying the delivery as notified.
B. Neither party shall be liable for any default or delay in the performance of its obligations under this Contract if,
while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions,
sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event of default
or delay in contract performance due to any of the foregoing causes, then the time for completion of the services will
be extended; provided, however, in such an event, a conference will be held within three (3) business days to
establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform.
31. INDEMNITY: A. Definitions:
i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and
liability of every character, type or description, including all reasonable costs and expenses of lirigation,
mediation or other alternate dispute resolution mechanism, including attorney and other professional fees
for: (1) damage to or loss of the property of any person (including, but not limited to the City, the
Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and
employees of such subcontractors; and third parties); and/or (2) death, bodily injury, illness, disease,
worker's compensation, loss of services, or loss of income or wages to any person (including but not limited
to the agents, officers and employees of the City, the Contractor, the Contractor's subcontractors, and third
parties), u. "Fault" shall include the sale of defective or non-conforming deliverables, negligence, willful
misconduct or a breach of any legally imposed strict liability standard.
B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE C1TY), INDENINIFY, AND HOLD TI3E CITY, TTS
SUCCESSORS, ASSIGNS, OFFICERS� EMPLOYEES AND ELECTED OFFICIALS AARMT.ESS FROM AND AGAINST ALL
INDEMNIFIED CLAIMS DIItECTLY ARISING OUT OF, INCIDENT TO� CONCERNING OR R�SULTING FROM THE FAULT
OF THE CONTRACTOR, OR TI�E CON'I'RACTOR'S AG�NTS, EMPLOYEES OR SUBCONTRACTORS, IN THE
PERFORMANCE OF THE CONTRACTOR'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE
DEEMED TO LIl�IIT THE RIGHTS OF THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO� THE
RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THII2D PARTY WHO MAY BE LIABLE FOR AN INDENINIFIED CLAIM.
. INSURANCE: The following insurance requirements are applicable, in addition to the spec' uisurance
req ents detailed in Attachment A. The successful firm shall procure and maintain insuran the e and in
the minim ounts acceptable to the City of Denton. The insurance shall be written com any li d to do
business in the Sta Texas and satisfactory to the City of Denton.
A. General Requirements. �
i. The Contractor sha t minimum carry insurance in the �'pes and amounts indic ed d greed to, as
submitted to the City and� ved by the City wit ' the procurement process, for the duration of the
Contract, including extension option d hold �.e periods, and during any warranty period.
u. The Contractor shall provide Certificat Insurance with the coverage's and endorsements required to
the City as verification of coverage p' to con execution and within fourteen (14) calendar days after
written request from the City. Fa' e to provide the re ' ed Certificate of Insurance may subject the Offer
to disqualification from co ' erarion for award. The Co ctor must also forward a Cerlificate of
Insurance to the City w ever a previously identified policy perio expired, ar an extension option or
hold over period is rcised, as verification of continuing coverage.
iii. The Contra r shall not commence work until the required insurance i btained and until such
insurance h een reviewed by the City. Approval of insurance by the City shall not r' ve or decrease the
liabilitv the Contractor hereunder and shall not be construed to be a limitation of liabih n the part of
The Contractor must submit certificates of insurance to the City for all subcontractors prior to the
Page 9 of 18
'
subcontractors commencing work on the project. �
v. The Co actor's and all subcontractors' insurance coverage shall be written by companies �ensed to do
business in e State of Texas at the time the policies are issued and shall be written by, companies with
A.M. Best ra ' s of B+vII or better. The City will accept workers' compensation coyerage written by the
Texas Workers' ompensation Insurance Fund. �
vi. All endorsem ts naming the City as addirional insured, waivers, an� notices of cancellation
endorsements as wel s the Certificate of Insurance shall contain the solicit�on number and the following
information:
City of Denton
Materials Management
901B Texas Street
Denton, Texas 76209
i� � ��s� --
/ � _�
�'
�
vu. The "other" insurance clause shall n3�t�pply�fo the City where the City is an additional insured shown
on any policy. It is intended that policie required in the Contract, covering both the City and the
Contractor, shall be considered primary co�ra as applicable.
vui. If insurance policies are not wri��for am nts agreed to with the City, the Contractor shall carry
Umbrella or Excess Liability Insurance for any i�erences in amounts specified. If Excess Liability
Insurance is provided, it shall follow the form of the prvn�ry coverage.
iX. The City shall be entitled, u�pon request, at an agreed'upon location, and without expense, to review
certified copies of policies a��endorsements thereto and may make any reasonable requests for deletion or
revision or modification�° f particular policy terms, conditions��imitations, or exclusions except where
policy provisions are stablished by law or regulations binding u��n either of the parties hereto or the
underwriter on auy s}��h policies. `
x. The City reserv,e's the right to review the insurance requirements set for�h during the effective period of
the Contract d to make reasonable adjustments to insurance coverage,�limits, and exclusions when
deemed nece ary and prudent by the City based upon changes in statutory lav;;�court decisions, the claims
history of t industry or financial condition of the insurance company as well as �he Contractor.
xi. The ntractor shall not cause any insurance to be canceled nar permit any insurance to lapse during the
term o he Contract or as required in the Contract.
�i. e Contractor shall be responsible for premiums, deducribles and self-insured retentio�ns, if any, stated
in olicies. All deductibles or self-insured retentions shall be disclosed on the Certificate of I�surance.
'. The Contractor shall endeavor to provide the City thirty (30) calendar days' written notice of erosion
of the aggregate limits below occurrence limits for all applicable coverage's indicated within the C�ontract.
xiv. The insurance coverage's specified in within the solicitation and requirements are required ums
and are not intended to limit the responsibility or liability of the Contractor.
B. Specific Coverage Requirements: Speci_fic insurance requirements are contained in the solicitation instrumen .
33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under o
concerns the Contract, or which could have a material adverse affect on the Contractor's ability to perform
thereunder, the Contractor shall give written notice thereof to the City within ten (10) calendar days after receipt of
notice by the Contractor. Such notice to the City shall state the date of notification of any such claim, demand, suit,
or other action; the names and addresses of the claimant(s); the basis thereof; and the name of each person against
whom such claim is being asserted. Such notice shall be delivered personally or by mail and shall be sent to the City
and to the Denton City Attorney. Personal delivery to the City Attomey shall be to City Hall, 215 East McKinney
Street, Denton, Texas 76201.
34. NOTICES: Unless otherwise specified, all notices, requests, ar other communications required or appropriate to
be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after
postmarked if sent by U.S. Postal Service Certified or Registered Mail, Return Receipt Requested. Notices delivered
by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by
first class mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address
specified in the Coniractor's Offer, or at such other address as a party may notify the other in writing. Notices to the
City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the
Purchasing Manager.
Page 10 of 18
35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the
Conlractor to the City shall become properly of the City upon receipt. Any portions of such material claimed by the
Contractor to be proprietary must be clearly marked as such. Detennination of the public nature of the material is
subject to the Texas Public Information Act, Chapter 552, and Texas Government Code.
36. NO WARRANTY BY CITY AGAiNST IlVIRINGEMENTS: The Contractor represents and warrants to the
City that: (i) the Contractor shall provide the Ciry good and indefeasible title to the deliverables and (ii) the
deliverables supplied by the Contractor in accordance with the specificarions in the Contract will not infringe,
directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of
any kind of any third party; that no claims have been made by any person or enrity with respect to the ownership or
operation of the deliverables and the Contractor does not know of any valid basis for any such claims. The
Contractor shall, at its sole e�ense, defend, indemvify, and hold the Ciry harmless from and against all liability,
damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or
resulting from: (i) any claim that the City's exercise anywhere in the world of the rights associated with the City's'
ownership, and if applicable, license rights, and its use of the deliverables infi�inges the intellectual properiy rights of
any third party; or (ii) the Contractor's breach of any of Contractor's representations or warranties stated in this
Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its oprion engage
its own separate counsel to act as co-counsel on the CiTy's behalf. Further, Contractor agrees that the City's
specifications regarding the deliverables shall in no way diminish Contractar's warranties or obligations under this
paragraph aud the City makes no warranty that the production, development, or delivery of such deliverables will
not impact such warranties of Contractor.
37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain
of the City's and/or its licensors' confidential information (including inventions, employee information, trade
secrets, confidential know-how, confidential business information, and other information which the City ar its
licensors consider confidential) (collectively, "Confidential Information"). Contractor acknowledges and agrees that
the Confidenrial Information is the valuable property of the City and/or its licensors and any unauthorized use,
disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and/or its
licensors. The Conlractor (including its employees, subcontractors, agents, or representatives) agrees that it will
maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge,
recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner
not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law
or an order of any court or other governmental authority with proper jurisdiction, provided the Contractor promptly
notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate
protective order. The Contractor agrees to use protective measures no less stringent than the Coniractor 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
Infortnation.
38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout
the world in and to the deliverables.
A. Patents. As to any patentable subject matter contained in the deliverables, the Contractar agees to disclose such
patentable subject matter to the City. Further, if requested by the City, the Contractor agrees to assign and, if
necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such
patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its
employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved
by the City, to the City upon request by the City.
B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor agrees that upon their
creation, such deliverables shall be considered as work made-for-hire by the Coniractor for the City and the City
shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall
negate the City's sole or joint ownership of any such deliverables arising by virtue of the City's sole or joint
authorship of such deliverables. Should by operation of law, such deliverables not be considered works made-for-
hire, the Contractor hereby assigns to the City (and agrees to cause each of its employees providing services to the
City hereunder to execute, aclaiowledge, and deliver an assignment to the City o fl all worldwide right, title, and
interest in and to such deliverables. With respect to such work made-for-hire, the Contractor agrees to execute,
acknowledge, and deliver and cause each of its employees providing services to the City hereunder to execute,
acknowledge, and deliver a work-made-for-hire agreement, in a form to be reasonably approved by the City, to the
Page 11 of 18
City upon delivery of such deliverables to the City or at such other time as the City may request.
C. Additional Assignments. The Contractor further agrees to, and if applicable, cause each of its employees to,
execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments
which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work
registration, trademark registration and/or protection, letters patent, ar any similar rights in any and all countries and
in order to assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and
interest in and to the deliverables. The Contractor's obligations to execute, acknowledge, and deliver (or cause to be
executed, acknowledged, and delivered) insttuments or papers such as those described in this Paragraph 38 a., b.,
and c. shall continue after the terminarion of this Contract with respect to such deliverables. In the event the City
should not seek to obtain copyright protection, mask work registration or patent protection for any of the
deliverables, but should desire to keep the same secret, the Contractor agrees to treat the same as Confidential
Information under the terms of Paragraph 37 above.
39. PUBLICATI�NS: 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 idenrified.
40. ADVERTISING: The Contractor shall not advertise or publish, without the City's prior consent, the fact that
the City has entered into the Contract, except to the extent required by law.
41. NO CONTINGENT FEES: The Contractor warrants that no person or selling agency has been employed or
retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage,
brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies
maintained by the Coniractor for the purpose of securing business. For breach or violarion of this warranty, the City
shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to dednct
from any amounts owed to the Contractor, or otherwise recover, the full amount of such commission, percentage,
brokerage or contingent fee.
42. GRATUITIES: The City may, by written notice to the Contractor, cancel the Contract without liability if it is
determined by the City that gratuities were offered or given by the Contractor or any agent or representative of the
Contractor to any officer or employee of the City of Denton with a view toward securing the Contract or securing
favorable treatment with respect to the awarding or amending or the making of any determinations with respect to
the performing of such contract. In the event the Contract is canceled by the City pursuant to this provision, the City
shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred
by the Contractor in providing such gratuities.
43. PROHIBITION AGAIN5T PERSONAL INTEREST IN CONTRACTS: No officer, employee, independent
consultant, ar elected official of the City who is involved in the development, evaluation, or decision-making
process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract
resulting from that solicitation. Any willful violation of this section shall constitute impropriety in office, and any
officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation
of this provision, with the knowledge, e�ressed or implied, of the Contractor shall render the Contract voidable by
the City. The Conlractor shall complete and submit the City's Conflict of Interest Questionnaire (Attachment S).
44. INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an employer/employee
relationship, a partnership, or a joint venture. The Contractor's services shall be those of an independent contractor.
The Contractor agrees and understands that the Contract does not grant any rights or privileges established for
employees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or
sick leave benefits, worker's compensation, or any other City employee benefit. The City shall not have supervision and
control of the Contractar or any employee of the Contractar, and it is expressly understood that Contractor shall perform
the services hereunder according to the attached specifications at the general direction of the City Manager of the City of
Denton, Texas, or his designee under this agreement.
45. ASSIGNMENT-DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and
the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract
shall be assigned and no obligarion shall be delegated by the Contractor without the priar written consent of the
City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this
Page 12 of 18
paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it
being the intention of the parties that there are no third party beneficiaries to the Contract.
46. R'AIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a
waiver or renunciarion of the claim or right unless the waiver or renunciation is supported by consideration and is in
writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of
default by the other party shall operate as, or be construed to be, a permanent waiver of any rights ar obligations
under the Conlract, or an e�ress or implied acceptance of any other e�usting or future default or defaults, whether of
a similar or different character.
47. MODIFICATIONS: The Contract can be modified or amended only by � writing signed by both parties. No
pre-printed or similar terms on any the Contractor invoice, order or other document shall have any force or effect to
change the terms, covenants, and conditions of the Contract.
48. INTERPRETATION: The Contract is intended by the parties as a fina1, 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
irade shall be relevant to supplement or explain any term used in the Coniract. Although the Contract may have been
substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair
to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the
Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall
control, unless otherwise defined in the Contract.
49. DISPUTE RESOLUTION:
A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to
prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a
statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between
representatives of each pariy within fourteen (14) calendar days after receipt of the request or such later period as
agreed by the parties. Each pariy shall include, at a minimum, one (1} seniar 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 resolurion of the dispute. I� within thirty (30) calendar days after such meeting, the parties have not
succeeded in negotiating a resolurion 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 negotiarion fail, or the parties waive the negotiation process, the
parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of
the dispute. Should they choose this option; the City and the Contractor agree to act in good faith in the selection of
the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract
prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a
contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation
of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution
Program (DCAP). The parties agree to participate in mediation in good faith for up to thirly (30) calendar days from
the date of the first mediation session. The City and the Contractor will share the mediator's fees equally and the
parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to
represent them or otherwise assist them in the mediation.
50. JURISDICTION AND VENiJE: The Contract is made under and shall be governed by the laws of the State of
Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm.
Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or
jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the
parties agree to submit to the exclusive personal jurisdicrion of such courts. The foregoing, however, shall not be
construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from
any competent authority as contemplated herein.
51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Coniract shall in no way
affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be
deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract
did not contain the particular portion or provision held to be void. The parties furkher agree to reform the Contract to
Page 13 of 18
replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken
provision. The provisions of this section shall not prevent this entire Contract from being void should a provision
which is the essence of the Contract be determined to be void.
52. HOLIDAYS: The following holidays are observed by the City
New Year's Day (observed)
MLK Day
Memorial Day
4th of July
Labor Day
Thanksgiving Day
Day After Thanksgiving
Christmas Eve (observed)
Christmas Day (observed)
New Year's Day (observed)
If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday,
it will be observed on the following Monday. Normal hours of operation shall be between 8:00 am and 4:00 pm,
Monday through Friday, excluding City of Denton Holidays. Any scheduled deliveries or work performance not
within the normal hottrs of operation must be approved by the City Manager of Denton, Texas or his authorized
designee.
53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on
the parties, including but not limited to the warranty, indemnity, and confidentiality obligations of the parties, shall
survive the expiration or termination of the Contract.
54. NON-SUSPENSION OR DEBARMENT CERTIFICATION:
The City of Denton is prohibited from contracting with or making prime or sub-awards to parties that are suspended
or debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By
accepting a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or
debarred from doing business with the Federal Government, as indicated by the General Services Administration
List of Parties Excluded from Federal Procurement and Non-Procurement Programs, the State of Texas, or the City
of Denton.
55. EQUAL OPPQRTUNITY
A. Equal Employment Opportunity: No Offeror, or Offeror's agent, shall engage in any discritninatory
employment pracrice. No person shall, on the grounds of race, sex, age, disability, creed, color, genetic testing, or
national origin, be refused the benefits o� or be otherwise subjected to discrimination under any activities resulting from
this RFQ.
B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall
engage in any discriminatory employment practice against individuals with disabilities as defined
in the ADA.
56. BiJY AMERICAN ACT-SUPPLIES (Applicable to certain federally funded requirements)
The following federally funded requirements are applicable, in addition to the specific federally funded requirements
detailed in Attachment C.
A. Definirions. As used in this paragraph —
i. "Component" means an al�ticle, material, or supply incorporated directly into an end product.
ri. "Cost of components" means -
(1) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of
incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty
(whether or not a duty-free entry certificate is issued); or
(2) For components manufactured by the Contractor, all costs associated with the manufacture of the component,
including transportation costs as described in paragraph (1) of this definirion, plus allocable overhead costs, but
excluding profit. Cost of components does not include any costs associated with the manufacture of the end product.
iu. "Domestic end product" means-
Page 14 of 18
(1) An unmanufactured end product mined or produced in the United States; or
(2) An end product manufactured in the United States, if the cost of its components mined, produced, or
manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign
origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in
sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap
generated, collected, and prepared for processing in the United States is considered domestic.
iv. 'Bnd 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. l0a - lOd) provides a preference for domestic end products for supplies
acquired far use in the United States.
C. The City does not maintain a list of foreign articles that will be treated as domestic for this Contract;
but will consider for approval foreign articles as domestic for this product if the articles are on a list
approved by another Governmental Agency. The Offeror shall submit documentation with their Offer
demonstrating that the article is on an approved Governmental list.
D. The Contractor shall deliver only domestic end products except to the extent that it specified delivery of foreign
end products in the provision of the Solicitation entitled "Buy American Act Certificate".
57. RIGHT TO INFORMATION: The City of Denton reserves the right to use any and all information presented in
any response to this 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 requires an awarded contractor or supplier to be licensed by
the State of Texas, any and all fees and taxes are the responsibility of the respondent.
59. PREVAII.,ING WAGE RATES: All respondents will be required to comply with Provision 5159a of "Vemon's
Annotated Civil Statutes" of the State of Texas with respect to the payment of prevailing wage rates and prohibiting
discriminarion in the employment practices.
http://www.access.gpo. gov/davisbacon/tx.html
60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall
comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable
laws at all times, including, without limitation, the following. (i) §36.02 of the Texas Penal Code, which prohibits
bribery; (u) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public
servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing
and performance of the Contract.
61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on-site compliance
with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978,
dealing with issuance of Form W-2's to common law employees. Respondent is responsible for both federal and
State unemployment insurance coverage and standard Worker's Compensation insurance coverage. Respondent shall
ensure compliance with all federal and State tax laws and withholding requirements. The CiTy of Denton shall not be
liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or
State withholding requirements. Contractar shall indemnify the City of Denton and shall pay all costs, penalties, or
losses resulting from Respondent's omission or breach of this Secrion.
62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug-Free
Work Place Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug-
free work environment; and the final rule, government-wide requirements for drug-free wark place (grants), issued
by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to
implement the provisions of the Drug-Free Vi7ork Place Act of 1988 is incorporated by reference and the contractor
shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be
issued.
63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be
liable for all damages to government-owned, leased, or occupied property and equipment caused by the Respondent
Page 15 of 18
and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connecrion
with any performance pursuant to the Contract. The Respondent shall notify the City of Denton Procurement
Manager in writing of any such damage within one (1) calendar day.
64. FORCE MAJEURE: The City of Denton, any Customer, and the Respondent shall not be responsible far
performance under the Contract should it be prevented from performance by an act of war, order of legal authority,
act of God, or other unavoidable cause not amibutable to the fault or negligence of the City of Denton. In the event
of an occurrence under this Section, the Respondent will be excused from any further performance or observance of
the requirements so affected for as long as such circumstances prevail and the Respondent conrinues to use
commercially reasonable efforts to recommence performance or observance whenever and to whatever extent
possible without delay. The Respondent shall immediately notify the City of Denton Procurement Manager by
telephone (to be confirmed in writing within five (5) calendar days of the inception of such occurrence) and describe
at a reasonable level of detail the circumstances causing the non-performance or delay in performance.
65. NON-WAIVER OF RIGHTS: Failure of a Party to require performance by another Parly under the Contract
will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either
Party's exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude,
cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the
Contract will not be construed as a waiver of any continuing or succeeding breach.
66. NO WAiVER OF SOVEREIGN IlVIlVIUNITY: The Parties expressly agree that no provision of the Coniract
is in any way intended to consritute a waiver by the City of Denton of any immunities from suit or from liability that
the City of Denton may have by operation of law.
67. RECORD5 RETENTION: The Respondent shall retain all financial records, supporting documents, statistical
records, and any other records or books relating to the performances called for in the Contract. The Respondent shall
retain all such records for a period of four (4) years after the expirarion of the Contract, ar until the CPA or State
Auditor's Office is satisfied that all audit and lirigation matters are resolved, whichever period is longer. The
Respondent shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State
Auditor of Texas, and any federal governmental entity that has authority to review records due to federal funds
being spent under the Contract.
Page 16 of 18
Eghibit B
Special Terms and Conditions
Estimated Quantities
The City is not obligated to purchase product through the contract term. The City reserves the
right to purchase to meet its actual needs, and individual purchase orders will be issued on an as
needed basis.
Minimum Order Quantity
Unit pricing is based upon a 5000' square foot minimum order.
Frei�ht
Freight will be billed at cost, plusl0%. Shipping will be F.O.B. Destination. The base cost for
shipping was $400 at contract execution.
Product Changes durin� Contract Term
The supplier sha11 not change specifications during the contract term without prior approval.
Any deviation in the specifications or change in the product must be approved in advance by the
City of Denton. Notice of a change shall be submitted in writing to
dentonpurchasin�(a�citvofdenton.com, with the above file number in the subject line, for review.
Products found to have changed specifications without notification, and acceptance, will be
returned at the supplier's expense. Products that have been installed will be replaced at the
supplier's expense.
Contract Terms
The contract term will be three (3) year, effective from date of award or notice to proceed as
determined by the City of Denton Purchasing Department. At the City of Denton's option and
approval by the vendor, the contract may be renewed for up to two additional one-year periods,
as further explained in Renewal Options.
Renewal Options
The City of Denton reserves the right to exercise an option to renew the contract of the vendor
far two (2) additional one (1) year periods if agreed upon in writing by both parties. All terms
and conditions must remain the same for each optional additional renewal year. If the City
exercises the right in writing, the
Price Escalation and De-escalation
The City will implement an escalation/de-escalation price adjustment quarterly. The escalation
will be based upon the U.S Department of Labor, Bureau of Labor Statistics, Producer Price
Index (PPn* for ready mix concrete manufacturing
PCU3273203273200)http://www.bls. ov/ppi/home.htm). The price will be increased ar
decreased based upon the quarterly percentage change in the PPI. The ma�mum escalation will
not exceed +/- 8% for any individual year. The escalation will be determined quarterly from the
award date. Should the PPI change exceed a minimum threshold value of +/-1%, then the stated
eligible bid prices shall be adjusted in accordance with the PPI change not to exceed the 8% limit
per year.
Page 17 of 18
EXHIBIT C
CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ
For vendor or other person doin 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 pate Received
person who has a business relationship as defined by Section 176.001(1-a) with a local governmental
entity and the person meets requirements under Section 176.006(a).
By law this questionnaire must be filed with the records administrator of the local government entity not
later than the 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.
2
� Check this box if you are filing an update to a previously filed questionnaire.
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not
later than the 7'h business day after the date the originally filed questionnaire becomes incomplete or
inaccu rate. )
3
Name of local government officer with whom �iler 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?
0 Yes � 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?
0 Yes 0 No
C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the
local government officer serves as an officer or director, or holds an ownership of 10 percent or more?
0 Yes � No
D. Describe each affiliation or business relationship.
4
q-z� - z� ��
Signa e of rson doing business with the governmental Date
entity
Page 18 of 18
Stone Strong of Texas
Bigger � Stronger • Fasfer
io: City of Denton
C/O Karen Smith
Materials Management
901 B Texas Street
Denton, TX 76209
Ma
Jody DuBois
A
�
Exhibit D
�STQNE �
�STRON�
� S jl S t� �Tl S
Issue Date: 09/08/11
Expiration Date: N/A
Project Name Location
Long Term Agreement Proposal �� Denton, TX
Manufacturing
Code 5ystem Accessories
.a _,.....,_..m ..,._.w._�........��_______.�.._,
CS �Cap / Step Unit
,....�.._._...y�..�.�_,.
12DF Dual Face Unit
90 � 90° Unit ��
45 45°Unit ���mp�m
Proposal Prepared by: Rhonda DuBois - Business Development Manager
To Accept this proposal, please sign, date and return via fax or email:
Name;
Date:
Manufacturing
Fee Per 5F Price Per Unit
per piece costs �� $ W�220.00
$ 15,00 $ 384.00
$ ���e�� 22 00 $ 258.00
$ ���� 22.00 � $ ����132.00
Subtotal
Shipping per load @ 500.00
Sales Tax
Total
Thank you for your business!
f'.C). Box 835, Jus9in, TX 76247 • PH: 44U-231-6C"15 • FX: 440-627-bi68
jody�s'stonesTrongoffe,xes.com • rhanda�� ston�stronc7oitex;as.com