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2013-028ORDINANCE No. 2013-028 AN ORDINANCE ACCEPTING SEALED PROPOSALS AND AWARDING A CONTRACT FOR THE PURCHASE OF COMMANDER 1 POLICE MOTORCYCLES FOR THE CITY OF DENTON POLICE DEPARTMENT; AND PROVIDING AN EFFECTIVE DATE (RFP 5119- POLICE MOTORCYCLES AWARDED TO VICTORY POLICE MOTORCYCLES IN THE ESTIMATED AMOUNT OF $210,000 FOR THE REPLACEMENT OF SIX MOTORCYCLES OVER A FIVE (5) YEAR PERIOD). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the purchase of Insurance Consultant Services in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and reviewed and '� recommended that the herein described proposals are the most advantageous to the City considering \ the relative importance of price and the other evaluation factors included in the request for proposals; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items in the following numbered request for proposal for materials, equipment, supplies or services, shown in the "Request for Proposals" on file in the office of the Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals. RFP NUMBER CONTRACTOR AMOUNT 5119 Victory Police Motorcycles $210,000 SECTION 2. By the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Proposal Invitations, Proposals, and related documents. SECTION 3. Should the City and person submitting approved and accepted items and of the submitted proposals wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the proposals, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under RFP 5119 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the �i�� day of �' , 2013. > ti.�.� . MARK . B GH , AYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: � APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY � BY: 3-ORD- 51 9 _ CONTRACT BY AND BETWEEN _ _CTTY OF DENTON, TEXAS AND _ POLICE MOTORCYCLES THIS CONTRACT is made and entered into this 5 day of February A.D., 2013, by and ' between Victory Police Motorcycles a corporation, whose address is 1106 N. Anita Ave., Tucson, AZ 85705, hereinafter referred to as "Supplier,° and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and subsequent execution of this Contract by the Denton City Manager or his dnly authorized designee. For and in consideration of the covenants and agreements 'contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows: _ _ _ , SCOPE OF SERVICES Supplier shall provide products in accordance with the City's RFP # 5119 — POLICE MOTORCYCLES, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written agreement and the following items which are attached hereto, or on file, and incorporated herein by reference: (a) City of Denton's RFP #S ll 9(on file at the office of the Purchasing Agent) (b) Standard Terms and Conditions (Exhibit "A") (c) Special Terms and Conditions (Eghibit "B") (d) Form CIQ — Conflict of Interest Questionnaire (Ezhibit "C"). (e) Supplier's Proposal. (Exhibit "D"); These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to the written ageement then to the contract documents in the order in which they are listed above. These documents shall be referred to collectively as "Contract Documents." RFP 5119 Page 1 of 18 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. ATTEST: JEI�]NIFER WALTERS, CITY SECRETARY BY: i� � APPROVED AS TO LEGAL FORM: AIVITA BURGESS, CITY ATTORNEY � BY: � � `�� j �.. SUPPLIER B ' f.,JiiL�� AUTHORIZED SIGNATURE Date: � I � � � �J? �, Name:� � �(�. �_ u�e i� Title: V� 52�D � �?.0 �5D7� PHONE NLTMBER ��.D - 3� �L�(o 3��1 FAX NUMBER CITY OF DENTON, TEX BY: � GEO . C L, CTTY NAGER Date: � RFP 5119 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 ContractslPurchase 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 Tertns 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 speci�ed 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. SUPPLIER'S OBLIGATIONS. The Supplier shall fully and timely provide all deliverables described in the Solicitation and in the Supplier's Offer in s�ict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. , 2. EFF`ECITVE DATE/'TERM. Unless otherwise specified in the Solicitation, this Contract shall be effecrive as of the date the contract is signed by the ' City, and shall continue in effect until all obligations are �erfortned in accordance with the Contract. 3. SUPPLIER TO PACKAGE DELIVERABLES: The Supplier will pacicage deliverables in accordance with good commercial practice and sha11 include a packing list showing the description of each item, the quantity and unit price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marked as follows: (a) The Supplier's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of cantainers, e.g. box 1 of 4 boxes, and (d} the number of the container bearing the packing list. The Supplier shall bear cost of packaging. Deliverables sha11 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 fmal and conclusive on shipments not accompanied by pacicing lists. 4. SHIFME�IT IJNDER RESERVAI'ION PR�HIBITED: 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. TTTLE & RISK OF LOSS: Title to and risk`of loss of the deliverables shall pass to the City only when the City actually receives and accepts the deliverables. 6. DELIVERY TERMS AND TRANSPORTATION CfIARGES: Deliverables shall be shipped F.O.B. point of delivery unless othenvise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Supplier's price shall be deemed to include all delivery and transportation charges. The City shall have the right , to designate, what method of transportation shall be used to 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 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 c,�se to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. RFP 5119 Page 3 of 18 8. NO REPLACENIENT OF DEF'ECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non-complying tender shall constitute a breach and the Supplier shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Supplier may notify the City of the intenrion to cure and may then malce a conforming tender within the time allotted in the contract. .- . 9. PLACE AND CONDITION OF WORK: The City shall provide the 3upplier access to tfie sites where the � Suppiier is to perform the services as required in order for the Supplier to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Supplier acknowledges that it has satisiied itself as to the nature of the City's service requirements and specifications, the ]ocation and essential characteristics of the work sites, the quality and quantity of materials, equapment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Supplier's obligations under the contract. The Supplier hereby releases and holds the City harmless from and against any liability or claim for damages of any kind or nature if the actual site or service conditions differ from expected conditions. 10. �JVORKFORCE A. The Supplier shall employ only orderly and competent warkers, skilled in the perforir�ance of the services which they will perform under the Contract. B. The Supplier, its employees, subcontractors, and subcontractar's employces may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract or on the City's property . i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the contract; or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated, or under the influence of alcohol or divgs, on the job. C. If the City or the City's represent�tive notifies the Supplier that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Supplier shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City's prior written consent. lmmigration: The Supplier represents and wanants that it shall comply with the requirements of the Imnugration Reform and Control Act of 1986 and 1990 regarding employment verifcation and retention of verifcation fonns for any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIltIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFET'Y, AND ENVIItONMENTAL REGULATIONS: The Supplier, � it's Subcontractars; and their respective employees, shall comply fully with all applicable federal, state, and locai health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by the City and by the .Occupational Safety and Health Administration (OSHA). In case of conflict, T1�e most stringent safety requirement sha11 govern. The Supplier shall , indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, imes, penalties and liability of every kind arising from the breach of the Supplier's obligations under this paragraph. Environmental Protection: The supplier shall be in compliance with all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seq.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. §1251 et seg.). 12. INVOICES: A. The Supplier shall submit separate invoices in duplicate on each purchase order ar purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department's Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, sha11 be attached to the invoice. The Supplier's name, RFP 5119 Page 4 of 18 remittance address and, if applicable, the tax identification number on the invoice must exactly match the information in the Vendor's registration with the City. Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Supplier's invoice. - C. Invoices for labor shall include a copy of all time-sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work-hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. _. D, Unless otherwise eapressly 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 deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the.lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days ufter the grounds for withholding payraenY have been resolved. C. If partial shipments or deliveries are authorized by the City, the Supplier wili be paid for the partial shipment or delivery, as staxed above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set offthe entire payment or part of aay payment otherwise due the Supplier to such extent as may be necessary on acwunt of: i. delivery of defecrive or 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 claitns; iii. failure of the Supplier to pay Subcontractors, or for labor, materials or equipment; iv. damage to the properiy of the City or the City's agents, employees or suppliers, which is not covered by insurance required to be provided by t}�e Supplier; � v. reasonable evidence that thz Supplier's obligations will not be completed within the time speciYied 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 attactunents and supporting documentation; or vii. failure of the Supplier 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 far 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 shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuation of this contract is deper�ient upon the availability of funding. The City's payment obligations aze payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Supplier. The City shall provide the Supplier written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Coniract, or the reduction of any Appropriation to an amount insufficient to pernut 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 tra�el, lodging and per diem expenses in connecuon with the Contract shalt be paid by the Supplier, unless otherwise stated in the contract terms. 15. FINAL PAYMENT AND CLOSE-OUT: A. If a DBE/MBE/WBE Program Plan is agreed to and the Supplier has identified Subcontractors, the Supplier is required to submit a Contract Close-Out MBE/WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract, Final payment, retainage, or both may be withheld RFP 5119 Page 5 of 18 if the Supplier is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: 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, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Supplier to compty with the Contract or the terms of any warranty specified herein, (4) arising from the Supplier's continuing obligations under the Contrac� including but not limited to indemnity and warranty obligations, or (5) arising under the Ciry's right to audit; and ii. a waiver of all claims by the Supplier against the City other than those previously asserted in writing and not yet settled. � 16. SPECIAL ToOLS & TEST EQiIIPMENT: If the price staxed 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 specia] tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Supplier as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Supplier shall retain such books, records, documents and other evidence pertaining to the Contract period and iive 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 Supplier shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documerits and other evidence pertaining to the Conlract, and to allow the City similar access to those documents. All books and records will be made a�ailable within a 50 mile radius of the City of Denton. 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°/a o"r greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Supplier which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Conlract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books", "recards", "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 fmal printed document. 18. SUSCONTRACTORS: A. If the Supplier identified Subcontraotors in a DBE/MBEIWBE agreed to Plan, the Supplier shall comply with all requirements approved by the City. The Supplier shaA not initially employ any Subcontractor except as provided in the Supplier's Plan. The Supplier shall not substitute any Subcontractor identified in the Pian, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Supplier is additionally required to submit a monthly 5ubcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work perfortned for the Supplier by a Subwntractor shall be pursuant to a written contract between the Supplier and 5ubcontractor. 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 fiuther subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. require Subcomractors to submit ail invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Supplier in sufficient time to enable the Supplier to include same - with its invoice or application for payment to the City in accordance with the terms of the Contract; iv. require that all Subcontractors obtain and maintairy throughout the term of their contract, insurance in the type and amounts specified for the Suppliar, 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 shal] be fully responsible to the City for all acts and omissions of the Subconlractors just as the Supplier is responsible for the Supplier's own acts and omissions. Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relarionship between the City and any such Subcontractor, nor shall it RFP 5119 Page 6 of 18 create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Supplier shall pay each Subcontractor its appropriate share of payments made to the Supplier not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY-PRICE: ,. A. The Suppl�er warrants the prices quoted in the Offer are no higher than the Supplier's current prices on orders by _ others for like deliverables under similar terms of purchase. B. The Supplier certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other Firm or with any competitor. ' C. In addition to any other remedy available, the City may deduct from any amounts owed to the Supplier, ar otherwise recover, any amounts paid for items in excess of the Supplier's current prices on orders by others for like deliverables under similar terms of purchase. ° 20. WARRANTY — TITLE: The Supplier warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are f'ree 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. 21. WARRANTY — DELIVEItABLES: The Supplier warrants and represents that a11 deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Supplier, to the terms, covenants and conditions of the Contract, and to ail 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 idenrified as such, B. The Supplier may not limi� 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 irr the Contract, the warranty period shall be at least one year from the date�of acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty period, one or more of the above warranties are breached, the Supplier shall promptly upon receipt of demand either repair the non-confornung deliverables, or replace the non-conforming deliverables with fully conforming deliverables, at the Ciry's option and at no additional cost to the City. Ail costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exdusively by the Supplier. The City shall endeavor to give the Supplier written notice of the breach of warranty within thirCy (30) calendar days of discovery of the breach of warranry, but failure to give timely notice shall not nnpair the City's rights under this section. ' D. If the Supplier is unable or unwilling to repair or replace defective or non-conforming deliverables as required by t1�e 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 sources. In such event, the 5upplier shall pay to the City upon demand the increased wst, if any, incurred by the City to procure such deliverables from another source. E. If the Supplier is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Supplier shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Supplier shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: The Supplier warrants and represents that all services to be provided the City under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and a11 applicable Federal, State and local laws, rules or regulations. A. The Supplier may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without force or effecY. 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 Supplier shall promptly upon receipt of demand perform the services again in aecordance with above standard at no additional cost to the RFP 5119 Page 7 of 18 City. All costs incidental to such additional pertormance shall be borne hy the Supplier. The City shall endeavor to give the Supplier written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. C. If the Supplier is unable or unwilling to perform its services in accordance with the above standard as required by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be required to purchase under the Contract from the Supplier, and purchase conforming services from other sources. In _: such event, the Supplier shall pay to the City upon demand the increased cost, if any, incurred by the City to procure _ such services from another source. ' 23. ACCEPTANCE OF INCOMPLETE OR NON-CONFO1tMING DELNERABLES: 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, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non-confornung deliverables. If any such acceptance occurs prior to fmal payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non-conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Supplier. 24. RIGHT TO ASSITRANCE: VJhenever one pariy to the Contract in good faith has reason to question the other parry'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 lreat 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 lif.e or properry. Upon notification, the Supplier will cease all work until notified by Che 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: Tlie Supplier shall be in default under the Contract if the Supplier (a) fails to fully, timely and faithfiilly 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 banlaliptcy 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 fnr 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 eyuity, the City shall be entitled to recover all actual damages, costs, ]osses and expenses, incurred by the City as a result of the Supplier's default, inoluding, without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post judgment interest at the rnaximum 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. 1`ERIVIINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a norice of termination, the Supplier shall promptly cease all further warlc pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Supplier, to the extent of funds Appropriated or . otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 29. FRAUD: Fraudulent statements 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. RFP S 119 Page 8 of 18 ti 30. DELAYS: A. The City may delay scheduled delivery or other due dates by written notice to the Supplier 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 Supplier shall negotiate an equitable adjustment for costs incmred by the Supplier in the Contract price and execute an amendment to the Contract. The Supplier must assert its right to an adjustment within thirly (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 Resolufion process specified in paragraph 49. However, nothing in this provision shall excuse the Supplier 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; ]abor disruptions; sabotage, sovereign conduc� 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; pmvided, 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. Defuutions: i. "Indemnified Claims° shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including a11 reasonable costs and expenses of litigation, mediation or other altemate 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 ta"the City, the Supplier, their respective agents, officers, employees and subcontractors; the o�cers, agents, and employees of such subcontractors; and third parties); and/or (2) death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person (including°but not limited to the agents, officers and employees of the City, the Supplier, the Supplier's subcontractors, and third parties), ii. "Fault",shall include the sal� of defective or non-conforming deliverables, negligence, willful misconduct or a breach of any legaliy imposed strict liability standard. B. TI3E SUPPLIER SI3AI.I. DEFEND (AT THE OPTION OF THE CTTY�� INDEMNIFY, AND HOLD THE CTTY, TTS SUCCL$SORS, ASSIGNS, OFFICERS� EMPLOYEE5 AND ELECTED OFFICIALS HARMi:ESS FROM AND AGAINST Ai,T. INDEMNIF7ED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM TI3E FAULT oF'ra� SUPPLIER, ox'raE SUPPLIER'S AGENTS� EMPLOYEES OR SUBCONTRACTORS� IN THE rExF'o�.�vc� oF'r� SUPPLIER'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LI14IT THE RIGHTS OF THE CITY OR THE SUPPLIER (INCLUDING, BUT NOT LIlVIITED TO, THE RIGHT TO SEEK CONTRIBUTION� AGAINST ANY TffiRA PARTY WHO MAY BE L7r1BLE FOR AN IlVDEbINIFIED CLAIM. 32. INSURANCE: The following insuranca requirements are applicable, in addition to the specific insurance requirements detailed in the solicitation document. The successful fum shall procure and maintain insurance of the types and in the minimum amounts acceptable to the City of Denton. The �nc��rance shall be written by a company licensed to do business in the State of Te:cas and satisfactory to the City �f 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,iprocess, for the durarion of the Contract, including extension options and hold over periods, and during any wananty period. ii. The 5upplier shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Supplier must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an e:ctension option or bold over period is exercised, as verification of continuing coverage. iii. The Supplier sha11 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 conslrued to be a limitation of liability on the part of the Supplier. iv. 'The Supplier must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. v. The Supplier's and all subcontractors' insurance coverage shall be written by companies licensed to �o business in the State of Texas at the time the policies are issued and shall be written by companies with RFP 5119 Page 9 of 18 A.IVI. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: � City of Denton , Materials Management Deparhnent 901B Texas Sireet Denton, Texas 76209 vii. The "other" insurance clause shall not apply to the City where the City is an addirional insured shown on any policy. It is intended that policies required in the Conh�act, 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 sfiall carry Uthbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it shall follow the form of the primary coverage. ix. The City shall be entitled, upon request, at an agreed upon location, and without expense, to review certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of the parties hereto or the underwriter on any such policies. x. The City reserves the right to review the insurance r�quirements 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 fmancial condition of the insurance company as well as the Supplier. �. The Supplier shall not cause any insurance to be canceled nor permit any inswance to lapse during the term of the Contract or as required in the Contract. xii. The Supplier shall be responsible far premiums, deductibles and self-insured retentions, if any, stated in policies. All deductibles or self-insured retentions shall be disclosed on the Certificate of Insuranee. xni. The Supplier shall endea�or to provide the City thiriy (30) calendar days' written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage's indicated within the Contract. �civ. 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: Specifc insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Supplier which arises under or concerns the Contract, or which could have a material adverse affect on the Supplier's ability to perform thereurider, the Supplier shall give written notice thereof to the City within ten (10) calendar days after receipt of notice by the Supplier. Such notice to the City shall state the date of notification of any such claim, demand, suit, or other action; the names and addresses of the claimant(s); the basis thereof; and the name of each person against whom such claim is being asserted. Such notice shall he 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 McKumey Street, Denton, Texas 76201. 34. NOTICES: Unless otherwise specified, all notices, requests, or other communications required or appropriate to be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after postmarked if sent by U.S. Postal Service Certified or Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefaac, or other cammercially accepted means. Notices to the Supplier shall be sent to the address specified in the Supplier's Offer, or at such other address as a party 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 attenrian of the Parchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTCTAL MATERIAL: All material submitted by the Supplier to the City shall become property of the City upon receipt. Any porCions of such material claimed by the Supplier to be proprietary must be clearly marlced as such. Determination of the public nature of the material is RFP 5119 Page 10 of 18 subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTI' BY CI'FY AGAIlYST INFRINGEMENTS: The Supplier represents and warrvits to the City that: (i) the Supplier shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Supplier in accordance with the specifcations in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind -_ of any third party; that no claims have been made by any person or entity with respect to the ownership or operation � of the deliverables and the Supplier does not Irnow 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 costs and reasonable fees of attomeys and other professionals) ai�sing 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 deIiverables infringes the intellectual property rights of any third party; or (ii) the Supplier's breach of any of Supplier's representations or warranties stated in this Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to act as co-counsel on the City's behal£ Further, Supplier agrees that the City's specifications regarding the deliverables shall in no way diminish Supplier's warranties ar obligations under this paragraph afld the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Supplier. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Supplier may require access to certain of the City's and/or its licensors' confidential informarion (including inventions, employee information, lrade secrets, confidential know-how, confidential business information, and other informarion which the City or its ]icensors consider confidential) (collectively, "Confidential Information"). Supplier acknowledges and agrees that the Confidential Information is the valuable properly of the City and/or its' licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidenrial 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 Informaflon 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 pernutted under this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other govemmental auYhority with proper jurisdiction, •provided the Supplier promptly notifies the City before disclosing such information so as to pem-ut the City reasonable time to seek an appropriate protective order. The Supplier agrees to use protective measures no less sh�ngent 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. OWNERSHIP AND USE OF DELIVERABLES: The City shall own a11 rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Supplier agrees to disclose 'such patentable subject matter to the City. Further, if requested by the City, the Supplier agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to spec�c 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, aclrnowledge, 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 containiiig copyrightable subject matter, the Supplier agrees that upon their creation, such deliverables shall be considered as work made-for-hire by the Supplier for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the City's sole or joint ownership of any such deliverables arising by virtue of the City's sole or joint authorship of such deliverables. Should by operation of law, such deliverables not be considered works made-for-hire, the Supplier hereby assigns to the City (and agrees to cause each of its employees providing services to the Ciry hereunder to eYecute, acknowledge, and deliver an assignment to the City o� all worldwide right, title, and interest in and to such deliverables. With respect to such work made-for-hire, the Supplier agrees to execute, acknowledge, and deliver and cause each of its employees providing services to the City hereunder to execute, acknowiedge, and deliver a work- made-for-hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. C. Additional Assignments. The Supplier fiuther agrees to, and if applicable, cause each of its employees to, execute, aclrnowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work RFP 5119 Page 11 of 18 � registration, trademark regish�ation and/or protection, letters patent, or any similar rights in any and all countries and in order to assign and convey to the City, its successors, assigns and nominees, the sole and esclusive right, title, and interest in and to the deliverables. The Supplier's obligations to execute, aclrnowledge, and deliver (or cause to be executed, aclrno�vledged, and delivered) instruments or papers such as those described in this Paragraph 38 a, b., and c. shall continue after the temunation 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 Supplier agrees to treat the same as Confidential Information under the terms of Paragraph 37 above. ` 39. PUBLICATIONS: All published material and written reports submitted under t�►e 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 sha11 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 ConYract upon any agreement or understand'mg for comrnission, 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 ha�e the right, in addition to any other remedy a�ailable, 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 Contrart 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 treatment with respect to the awarding or amending or the making of any determinations with respect to the performing of such coniract. In the event the Contr�act is canceled by the City pursuant to this provision, the City shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by the Supplier in providing such gratuities. 43. PROHIBITION AGAINST PERSONAL INTEREST IlY CONTRACTS: No o�cer, employee, independent wnsultant, or elected official of the City who is involved in the development, evaluation, or decision-making process of the performance of any solicitation shall ha�e a fmancial interest, direct or ind'uect, in the Contract resulting from that solicitarion. Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action np to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Supplier shall render the Contract voidable by the City. The Supplier shall complete and submit the City's Conflict of Interest Questionnaire (Attachment B). 44. INDEPENDENT SUPPLIER: The Conlract shall not be construed as creating an employer/employee relationship, a parfnership, 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 astablished for employees of the City of Denton, Texas for the purposes of income tax, withhQlding, social securiry taxes, vacation or sick lea�e benefits, worker's compensation, or any other City employee benefit. The City shall not have supezvision and control of the Supplier or any employee of the Supplier, and it is expressly understood that Supplier sha11 perform the services hereunder acwrding to the attached specifications at the general d'uecrion 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 in conformity with this paragraph. The Contract is not intended to confer rights or benefiis on any person, ium or entity not a parly hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract 46. WA1V�R: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a RFP 5119 Page 12 of 18 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 pariy. No waiver by either the Supplier or the City of any one or more events of default by the other pariy, shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contrac� or an express or implied acceptance of any other existing or future default or defaults, whether of a similar ot different character. _- . 47. M�DIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre-printed or similar terms on any the Supplier invoice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. 48. INTERPRETATION: The Contract 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 sha11 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 pariy or the other. Whenever a term defined by the L'Tniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC defmition 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, tt�e parties agree to negotiate prior to prosecuting a suit for damages. However, tlus 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 far a meeting betrveen representatives of each party within fouirteen (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) senior level individual with decision-making authority regarding the dispute. The pwpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within th.irty (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. Neg�tiarion 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 negoriation fail, or ttie parties waive the negotiarion process, the parties may select, within thiriy (30) calendar days, a mediator h-ained in mediation skills to assist with resolution of the dispute. Should they choose this option; the City and the Supplier agree to act in good faith in the selection of the mediator 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 whu is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Supplier will share the mediator's fees equally and the parties will bear their own costs of participation snch as fees for any consultants or attomeys they may utilize to represent them or otherwise assist them in the mediation. �Q. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, TeYas and the parties agee 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 Ciry to seek and secure injunctive relief from any competent authority as contemplated herein. 51, INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Coniract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. RFP 5119 Page 13 of 18 52. HOLIDAYS: The following holidays are observed by the City New Year's Day {observe� MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christrnas Day (observed) New Year's Day (observe� 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 wark performance not within the normal hours of operation must be appraved 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 parlies, shall survive the expiration or temlination of the Contract. 54. I�10N-SUSPENSIOIV OR DEBARMENT CERTIFICATION: , The City of Denton is prohibited from contracting with or making prune or sub-awards to parties that are suspended or de6arred or whose principals aze suspended or debarred from Federal; State; ar City of Denton Contracts. By accepring a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non-Procurement Programs, the State of Texas, or the City of Denton. 55. EQUAL OPPORTUNITY A. Equal Employment Opportunity: No Offeror, or Offeror's agen� shall engage in any discriminatory employment practice, No person shall, on the grounds of race, sex, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compiiance: No Offeror, or Offeror's agent, shall . engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT-SUPPLLES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable, in addition to the specific federaily funded requirements. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated d'uectly into an end product. ii. "Cost of components" means - (1) For components purchased by the Supplier, the acquisirion 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 applicahle 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, includ'mg transportation costs as described in paragraph (i) af this defuution, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means- (1} An unmanufactured end product mined or produced in the United States; or (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency deternunes are not mined, produced, or manufactured in RFP 5119 Page 14 of 18 sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is wnsidered 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 Dishrict 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 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 domesdc for this product if the articles are on a list approved by another Governmental Agency. The Offemr shall submit documentation with their Offer demonsirating that the article is on an approved Governmental lis�t. � D. The Supplier shall deliver only domestic end products except to the e3ctent that it specified delivery of foreign end products in the provision of the Solicitation entitled "Buy American Act Certifica#e". 57. RIGFIT TO INFOI2MATION: The City of Denton reserves the right to use any and all information presented in any response to ttvs 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 ti�e solicitation requires an awarded supplier or supplier to be licensed by the State of Texas, any and all fees and ta�ces are the respoasibility of the supplier. 59. PREVAII.ING WAGE RATES: All suppliers will be required to comply with Provision 5159a of "Vernon's Annotated Civil Stalutes" of the State of Texas with respect to the payment of prevailing wage rates and prohibiting discriminadon in the employment practices. ` http://www,a�,cess•�na Qov/davisbacon/�.html 60. COMPL�ANCE WITTi ALL STATE, F`EDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Supplier must comply with all applicable laws at all times, including, wittiout limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36,09 of the Texas Penal Code, which prolubits the offering or confening of benefits to public servants. The Supplier shall give all notices and comply with all laws and regula#ions applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Supplier shall demonstrate on-site compliance with the Federal Ta�c 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 wmmon law employees. Supplier is responsible 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 or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withhoiding requirements. Supplier shall indemnify the City of Denton and shall pay all costs, penalries, or losses resulting from Supplier's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The supplier sha11 comply with the applicable provisions of the Drug-Free Work �lace Act of 1938 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug- free work environment; and the final rule, government-wide requirements for drug-free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the Drug-Free Work Place Act of 1988 is incorporated by reference and the supplier shall comply with the relevant provisions thereo� including any amendments to the final rule that may hereafter be issued. 63. SUPPLIER LIABIIdTY FOR DAMAGE TO GOVERNMENT PROPERTY: The 5upplier shall be liable for a11 damages to government-owned, leased, or occupied property and equipment caused by the Supplier and its employees, agents, subwnhactors, and suppliers, including any delivery or cartage company, in connection with any performance pursuant to the Contract. The Supplier shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. RFP 5119 � Page 15 of 18 64. FORCE MAJEURE: The City of Denton, any Customer, and the Supplier sha11 not be responsible far perfoimance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other una�oidable cautse not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Supplier will be excused from any further performance or observance of the requirements so affected for as long as such circumstances prevail and the Supplier continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without _- - delay. The Supplier shall immediately notify the City of Denton Procurement Manager by telephone (to be ., confirmed in writing within five (5) calendar days of the inceprion of such occunence) 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 Pariy to require performance by another Party. dnder 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 af�'ect such right or remedy. A waive'r by a Party of any breach of any term of the Contract will not be constived as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract is in any way intended to consritute a waiver by the City of Denton of any immunides from suit or from liability that the City of Denton may have by operation of ]aw. 67. RECORDS RETENTION: The Supplier shall retain all fmancial records, supporting documents, statistical records, and any other records or books relating to the performances called for in the Contract. The Suppiier shall retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters axe resolved, whicl�ever period is longer. The Supplier shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of Texas, and any federal govemmental entity that has authority to review records due to federal funds being spent under the .Contract. RFP 5119 Page 16 of 18 Exhibit B Special Terms and Conditions The Quantities indicated on Exhibit D are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the bid price. Individual purchase orders will be issued on an as needed basis. Product Chan�es Durin� Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change sha11 be submitted in writing to dentonpurchasin�(c�cityofdenton.com, with the above file number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be returned at the supplier's expense. Products that have been installed will be replaced at the supplier's expense. Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The distributor shall be authorized to sell to the City of Denton, and malce available the manufacturer's representative as needed by the City. Contract Terms The contract term will be one (1) year, effective from date of award or notice to proceed as detetmined by the City of Denton Purchasing Department. At the City of Dentori's option and approval by the vendor, the contract inay be renewed for up to four additional one-year periods, as fiu-ther explained in Renewal Options. Renewal Options The City of Denton reserves the right to exercise an option to renew the contract of the vendor for Four (4) additional one (1) year periods if agreed upon in writing by both parties. All terms and conditions must remain the same for each optional additional renewal year. If the City exercises the right in writing, the Price Escalation and De-escalation The City will implement an escalation/de-escalation price adjustment quarterly. The escalation/de-escalation will be based upon manufacturer published pricing sheets to the vendor: The price will be increased or decreased based upon the quarterly percentage change in the manufacturer's price list. The price adjustment will be determined quarterly from the award date. Should the change exceed or decrease a minimum threshold value of +/-1%, then the stated eligible bid prices shall be adjusted in accordance with the published price change. It is the supplier or the Cities responsibility to request a price adjustment quarterly in writing. If no request is made, then it will be assumed that the bid price will be in effect. The supplier must submit or make available the manufacturers pricing sheet used to calculate the bid pronosal, to particinate in the escalation/de-escalation clause. Total Contract Amount The contact total estimated amount of $210,000. Pricing shall be per Exhibit D attached. RFP 5119 Page 17 of 18 EXHIBIT C CONFLICT� OF INTEREST QUESTIONNAIRE FORM C�Q For vendor orbther erson doin business with local overnmental enti � This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. pFFICE USE ONLY This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a Date Recelved person who has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entiiy not later than the 7th business day after the date fhe person becomes aware of fact$ 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 lacal governmental entity. Yl �ul�, 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 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 empioyment or other business relationship as defined by 5ection 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 in�ome, other than investment income, from the filer of the questionnaire? � Yes 0 No B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable Income is not received � ftom the local governmental en6ty? 0 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? � Yes 0 No D. Describe each affiliation or business relationship. 4 5ignature of person doing business with the governmental Date entity RFP 5119 , Page 18 of 18 � EXHIBIT D � ATTACHMENT C BUSINESS OVEIi.VIEW QUESTIONNAIRE AND FORMS 1. Contractor Narne: Victory Police Motorcycles L.L.C. 2. Address {Principal Place of Business):1 X{id N. Anita Ave. 'Tucson, AZ, SS705 3. Does your company have an established physical presence in. the State of Te�cas, or the City qf Denton? No � 4. Tax Payer 7D#: 26-3348701 5. Email Address of Primacy contact: nita@victoiypolicemotorcycles.com 6. Website Address: www.victorypolicemotorcycles.com 7. Telephone:524-770-9500 8. Fax:52Q-382-6349 9. 4ther Locarions: None 10. Organization Class: L.L.C. 3tate of Ai-�zona � 11. Date Established: 9/20aS 12. �ormer Business Name: NA 13. Date of Dissolution: NA 14. Subsidiary of: NA 15. HistoricallyUnderutilizedBusiness; No 16. Principals and Officers: I�ita Buckner CE4 � 17. Bey Personnel and Responsibilities: Nita Buckner CEO t 8. Number o�Pexsonuel by Discipline: Discipline Number of Staff # Ragistered Managernent 2 NA Production 5 NA Accoundng 1 NA Sales 2 NA i9. Seivices Provided by Coniractor: a. Please provide a detailed listing of all services that your company provides. Victory Police Motorcycles designs, up-fits and sells police motorcycles to law enforcement 53 � EXHIBIT D � agencies damestically and internationally. b. Please detail your pz7or expexience working on sixxulai: projects with Texas goveamnnental entities. Victory Police Motorcycles has sold Police Motorcycles to tha following Texas agencies. Tyler Texas Police Department Pasadena Texas Police DepArtment Forney Texas Police Department Harris County Sheriff Department • c. Please detail your similar services provided over the past two (2) years. Victoiy Folice Motorcycles has sold Police Motorcycles to the following agencies. Victoria Regional Police Lenexa, Kansas Police Apache J�znction 1'olice Peatl Mississippi Palice Paacht��ee Poli� University of Iowa Police Mountain Brook Police Plant City Police Windsor Palice Warren Police Seattle police Dubai Redmand Police Lethbridge Regional Police Collagedale i'olice Jakarta I.ee Summit �olice Polaris Asia Lee's Swnmit Palice Myrtle Beach Police Victoria British Columbia, Canada Lenexa, Kansas ; Apache dunction, Ariaona Pearl, Mississippi Peachtree, Georgia Iowa Ciiy, Iowa Mountai.n Brook, AIabama Piant City, Florida Windsor, Canada Warren, Michigan Seat#le, Washington � United Arab Emirates Redmond, O��egon Lethbridge, Canada Collegedale, Tennessee JakartA, Indonesia Lee Summit, Missvuri Asia Rim Lee Summit Missouri Myi�tle Beach Soukh Carolina d. Detail documented proof of at least three (3) projects in the past two (2) years. � We have provided 3 copies of �urchase orders from the following agencies in the appendix Myzrtle Beach Police Department Lee Summit Police Department Mountain Srook Police Department e. Please detail these services, including, the nature of the services pcovided, €he scope of the activities, the organizations for whieh the services were provided, the dates of the projects, and the documented benefit to the governmental entity. Victory Police Motorcycles built and up�tted Commander 1 Motorcycles for the following: MyF�tle Beach Folice Department (5) Commander � Police Motorcycles Project date 9I17I12 (date of Purchase Order) Mountain Bxook Police Department (2) Commander 1 Police Mvtorcycl�s Project date 7/3/12 (date of Purchase Order) Lee's Summit Police Department {4) Commander 1 Palice Motorcycles Project date 4/12/12 {date of Puc�chase Order) . 54 EXHIBIT D 20, Has yaur company filed or been named in any litigation iuvolving yottr company and the Ovvnex on a contract within the last five years under yflur current company name or any • other cotnpany nanae? If so provide details of �lie issues and resalution if availabte. Tnclude lawsuits where Owner was invoived. No 2I. Please provide at least (3} three references {preferahly municipaltties) and contract amounts. Tnclude project descriptian, contact names, posiiion, and organization name and • telephone nunnber for each xeference listed. See attachment F. ,. ` Completed on attachment F 22. Have you ever defaulied on or failed to complete a contract under your current corripany name or any other company name? �f so, where aad wh3f? Crive name and telephane number of Qwnex. No , 23. Have you �ver had a contract terminated by the Owner? If so, where and wh�? Give name and telephone nu�nber (s) of Owner (s}. No 24. �ias your company implemented an Employee Health and Safety Program compliane with 29 CFR 1910 "Generai �ndustry Standards" and/or 29 CFR X92d "Generai Construction Standards" as they apply to your Company's customary activities? http•/lwww osha gov/pls/oshawebJowasxch search form`Ip {doc type=5TANDARDS&t�_toc level=l&� keyvaiue=1926 No N/A 25. Prafessional Liability Caverage, Ei�or & Omissions, etc. t�niount: NA as per page 3 A�tachment A 2b, Work Type — Dis#ribution by Proportion of Anr�,ual Average: Work Type %a by Fee % by Na of Projects Sale of Police Motorcycles % IO�.aO 27. Please indicate the total number of projects your Firm has undertaken withtn the Iast five years? 26 55 ADMENDMEfVTS TO CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND VICTORY POLICE MOTORCYCLES Page 1: Title Should be changed from Police Motorcycles to Victory Police Motorcycles Page 5 Section 14: Travel Any travel, lodging, and per diem expenses by Victory Police Motorcycles for training, equipment upgrades after the delivery of the motorcycles will be quoted and billed separately. Page 9 Section 32: Insurance As Per RFP this requirement is not required according to attachment A Not Applicable Page 17 The Quantities References Exhibit D- Exhibit 1 RFP 5119 pricing worksheet Signed Nita Buckner CEO t��1��;�un� � EXHIBIT D � � N � a O 7. �y, S N µ�p� y 9 gt $ �g �, 66