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2013-029 %(+$1$%$1$-"$%.1, 2013029 AdditionalFileExists AdditionalFileContainsRecordsNotPublic,AccordingtothePublicRecordsAct Other %(+$2#§º«(´¯º¯§²¹ FourthAmendmentKOrdinanceNo.201442712/16/14JR ORDINANCE No. 2013-029 AN ORDINANCE ACCEPTING COMPETITNE PROPOSALS AND AWARDING A CONTRACT FOR THE PURCHASE OF TAPERED, TUBULAR, AND GALVANIZED STEEL STRUCTURES FOR DENTON MUNICIPAL ELECTRIC SUBSTATIONS FROM FALCON STEEL COMPANY IN AN AMOUNT NOT TO EXCEED $1,660,000 AND A CONTRACT FOR THE PURCHASE OF SUBSTATION STRUCTURES FABRICATED FROM STANDARD SHAPED STEEL PRODUCTS FROM R AND C WELDING 1N AN AMOUNT NOT TO EXCEED $2,140,000; PROVIDiNG FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5115-GALVANIZED STEEL STRUCTURES). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the purchase of galvanized steel structures 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 5115 Falcon Steel Company $1,660,000 S 115 R and C Welding $2,140,000 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 speciiied 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 5115 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the above enumerated proposals, 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 J�t� ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: �--- APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY � , BY: day of �T�`' � , 2013. _, MARI� A. BURROU , AYOR CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND FALCON STEEL COMPANY (RFP 5115) THIS CONTRACT is made and entered into this ��f� day of � �� .D., 2013, by and between Falcon Steel Company, a corporation, whose address is 4201 O Denton Road, Haltom Citv, TX 76117, hereinafter referred to as "Supplier," and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. For and in consideration of the covenants and agreements contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Supplier shall provide products in accordance with the City's RFP # 5115 Galvanized Substation Structures, 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 5115 (on file at the office of the Purchasing Agent) (b) Standard Terms and Conditions (Exhibit "A") (c) Special Terms and Conditions (Exhibit "B") (d) Supplier's Proposal. (Exhibit "C"); 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." RFP 5115 IN WITNESS WIIEREOF, the parties of these presents have executed this agreement in the year and day first above written. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY. APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ��-� L� BY: .� -� �, , RFP 5115 .. � . :�;y..r 1 1'� '- . �� . �. - � - L..1 L� _�. � - � .1 1. i1.� ! . • ,�� . • ., ;. • � I`�, `�-�.1 ul: ; CITY OF DENTON, TEXAS BY: �' GEORGE C. CAMPBELL, CITY MANAGER Date: ��J'Ll.L�'1.�� , Z�� —� Exhibit A Citv of Denton Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Speciiications, Drawings and other requirements included in the City of Denton's solicitation are applicable to Contracts/Purchase Orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller herein after referred to as the Supplier. Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Supplier. No Terms and Conditions contained in the Supplier's Proposal response, Invoice or Statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the Contract/Purchase Order these written provisions will talce precedence. By submitting an Offer in response to the Solicitation, the Supplier agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a Solicitation to purchase Goods, 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 strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE/TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. SUPPLIER TO PACKAGE DELIVERABLES: The Supplier will package deliverables in accordance with good commercial practice and shall include a pacicing list showing the description of each item, the quantity and unit price unless otherwise provided in the Speci£ications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marlced as follows: (a) The Supplier's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the pacicing list. The Supplier shall bear cost of pacicaging. Deliverables shall be suitably paciced 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 pacicing lists. 4. SHIPMENT iJNDER RESERVATION PROHIBTTED: The Supplier is not authorized to ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Title to and rislc 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 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 Subconh•actor's, premises, the Supplier shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. RFP 5115 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non-complying tender shall constitute a breach and the Supplier shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Supplier may notify the City of the intention to cure and may then malce a conforming tender within the time allotted in the contract. 9. PLACE AND CONDTTION OF WORK: The City shall provide the Supplier access to the sites where the Supplier is to perform the services as required in order for the Supplier to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Supplier acicnowledges that it has satisfied itself as to the nature of the City's service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Supplier's obligations under the contract. The Supplier hereby releases and holds the City harmless from and against any liability or claim for damages of any lcind or nature if the actual site or service conditions differ from expected conditions. 10. WORKFORCE A. The Supplier shall employ only orderly and competent worlcers, slcilled in the performance of the seivices which they will perform under the Contract. B. The Supplier, its employees, subcontractors, and subcontractor's employees may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract ar 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 worlcers be intoxicated, or under the influence of alcohol ar drugs, on the job. C. If the City or the City's representative notifies the Supplier that any worlcer 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 worlcer from Contract services, and may not employ such worlcer again on Contract services without the City's prior written consent. Immigration: The Supplier represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired 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 ("IIlZIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGiTLATIONS: The Supplier, it's Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules and regulations in the perfortnance of the services, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Supplier shall indemnify and hold the City harmless fi•om and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every lcind 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 etseq.). 12. INVOICES: A. The Supplier 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 RFP 5115 charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Supplier's name, remittance address and, if applicable, the ta�c identification number on the invoice must exactly match the infonnation 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 worlc-hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the worlc site. D. Unless otherwise expressly authorized in the Contract, the Supplier shall pass through a11 Subcontract and other authorized expenses at actual cost without marlcup. E. Federal excise ta�ces, 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. PAYIVIENT: 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 speci�ed in Texas Government Code Section 2251.025 or the ma�umum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Supplier will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the 5upplier to such extent as may be necessary on account of: i. delivery of defective or non-conforming deliverables by the Supplier; ii. third party claims, which are not covered by the insurance which the Supplier is required to provide, are filed or reasonable evidence indicating probable filing of such claims; iii. failure of the Supplier to pay Subcontractors, or for labor, materials or equipment; iv. damage to the property of the City or the City's agents, employees or suppliers, which is not covered by insurance required to be provided by the Supplier; v. reasonable evidence that the Supplier's obligations will not be completed within the time specified in the Contract, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; vi, failw•e of the Supplier to submit proper invoices with purchase order number, with all required attachments and supporting documentation; or vii. failure of the Supplier to comply with any material provision of the Contract Documents. E. 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 checic 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 dependent upon the availability of funding. The City's payment obligations are payable only and solely fi•om 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 ea�tent funds are not Appropriated ar 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 mal<e 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 Supplier, unless otherwise stated in the contract terms. 15. FINAL PAYMENT AND CLOSE-OUT: RFP 5115 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 worlc under the contract. Final payment, retainage, or both may be withheld if the Supplier is not in compliance with the requirements as accepted by the City. B. The malcing 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 worlc appearing after final inspection, (3) arising from failure of the Supplier to comply with the Contract or the terms of any wairanty specified herein, (4) arising from the Supplier's continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City's right to audit; and ii. a waiver of all claims by the Supplier against the City other than those previously asserted in writing and not yet settled. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Supplier for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Supplier as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and malce copies of the boolcs, records and computations pertaining to the Contract. The Supplier shall retain such boolcs, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit taslcs are completed and resolved. These boolcs, 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 boolcs, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All boolcs 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 oveipayment of 1% or 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 Contract and shali constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "boolcs", "recards", "documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if such drafts or elecn•onic files are subsequently used to generate or prepare a final printed document. 18. SUBCONTRACTORS: A. If the Supplier identified Subcontractors in a DBE/MBE/WBE agreed to Plan, the Supplier shall comply with all requirements approved by the City. The Supplier shall not initially employ any Subcontractor except as provided in the Supplier's Plan. The Supplier shall not substitute any Subcontractor identified in the 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 Supplier is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Worlc perfortned for the Supplier by a Subconh•actor shall be pursuant to a written contract between the Supplier and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: i. require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract; ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent of the City and the Supplier. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. require Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Supplier in sufficient time to enabie the Supplier to include same with its invoice or application for payment to the City in accordance with the terms of the Contract; iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Supplier, with the City being a named insured as its interest shall appear; and v. require that the Subcontractor indemnify and hold the City harmless to the same extent as the Supplier is required to indemnify the City. RFP 5115 C. The Supplier shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Supplier is responsible for the Supplier's own acts and omissions. Nothing in the Contract shall create for the beneiit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Supplier shall pay each Subcontractor its appropriate share of payments made to the Supplier not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY-PRICE: A. The Supplier wa��rants the prices quoted in the Offer are no higher than the Supplier's current prices on orders by others for lilce 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 ar with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Supplier, or otherwise recover, any amounts paid for items in excess of the Supplier's current prices on orders by others for lilce 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 free and clear of all liens, claims, security interests and encumbrances. The Supplier shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. 21. WARRANTY — DELIVERABLES: The Supplier wairants and represents that all deliverables sold the City under the Contract shall be free from defects in design, worlcmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Supplier, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. B. The Supplier may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C, Unless otherwise specified in the Contract, the warranty period shall 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-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 pacicaging and shipping costs shall be borne exclusively by the Supplier. The City shall endeavor to give the Supplier written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Supplier is unable or unwilling to repair or replace defective or non-conforming deliverables as required by the City, then in addition to any 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 Supplier shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Supplier is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Supplier shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Supplier shall assist and cooperate with the City to the fullest ea�tent 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 wi11 be fully and timely performed in a good and worlcmanlilce 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 Supplier may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without force or effect. RFP 5115 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 accordance w�th above standard at no additional cost to the City. All costs incidental to such additional performance shall be borne by the Supplier. The City shall endeavor to give the Supplier written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. C. If the Supplier is unable or unwilling to perform its services in accordance with the above standard as required by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be required to purchase under the Contract from the Supplier, and purchase conforming services from other sources. In such event, the Supplier shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. 23. ACCEPTANCE OF INCOMPLETE OR NON-CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or 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-conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non-conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Supplier. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time 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 Worlc Notice in the event the Supplier is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Supplier will cease all worlc until notified by the City that the violation or unsafe condition has been corrected. The Supplier shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Supplier sha11 be in default under the Contract if the Supplier (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seelcs relief under the banlcruptcy 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 sha11 have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Supplier, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, 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 e�cpenses, incurred by the City as a result of the Supplier's default, including, without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Supplier, the City may remove the Supplier from the City's vendor list for three (3) years and any Offer submitted by the Supplier may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Supplier shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Supplier, to the e�.tent 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 ar 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 RFP 5115 may result in legal action. 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 worlc under the Contract, the CiTy and the Supplier shall negotiate an equitable adjustment for costs incurred by the Supplier in the Contract price and execute an amendment to the Contract. The Supplier must assert its right to an adjustment within thirty (30) calendar days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the Supplier from delaying the delivery as notifed. 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 e�ctended; provided, however, in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. 31. INDEMNITY: A. Definitions: i. °Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Supplier, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and/or (2) death, bodily injury, illness, disease, worlcer'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 sale of defective or non-conforming deliverables, neg]igence, willful misconduct or a breach of any legally imposed strict liability standard. B. THE SUPPLIER SHALL D�FEND (AT THE OPTION OF THE CITY�� IlVDEMNIFY� AND HOLD THE CITY, ITS SUCC�SSORS� ASSIGNS� OFFICERS� EMPLOYE�S AND �L�CTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDENINIFIED CLAIMS DII2ECTLY ARISING OUT OF� INCIDENT TO� CONC�RNING OR RESULTING FROM TFIE FAULT OF THE SUPPLIER� OR THE SUPPLIER'S AGENTS� EMPLOYEES OR SUBCONTRACTORS� IN TI3� PE�'oR1v�ANCE oF 1'� SUPPLIER'S OBLIGATIONS UND�R TH� CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGI3TS OF THE CITY OR THE SUPPLIER (INCLUDING� BUT NOT LINIITED TO� TAE RIGHT TO SEEK CONTRIBUTION� AGAINST ANY TIIIIiD PARTY WHO MAY BE LIABLE FOR AN IND�MNIF"IED CLAIM. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in the solicitation document. The successful firm shall procure and maintain insurance of the types and in the minimum amounts acceptable to the City of Denton. The insurance shall be written by a company licensed to do business in the State of Texas and satisfactory to the City of Denton. A. General Requirements. i. The Supplier shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Supplier shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Cet�tificate of Insurance may subject the Offer to disqualification from consideration for award. The Supplier must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Supplier shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve ar decrease the liability of the Supplier hereunder and shall not be construed to be a limitation of liability on the part of the Supplier. iv. The Supplier must submit certificates of insurance to the City for all subcontractors prior to the RFP 5115 subcontractors commencing wor]< on the project. v. The Supplier's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept worlcers' compensation coverage written by the Texas Worlcers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 vii. The "other" insurance clause shall not apply to the City where the City is an additional insured shown on any policy. It is intended that policies required in the Contract, covering both the City and the Supplier, shall be considered primary coverage as applicable. viii. If insurance policies are not written for amounts agreed to with the City, the Supplier shall carry Umbrella or Excess Liability Insurance for any differences in amounts specifed. 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 requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Supplier. xi. The Supplier shall not cause any insurance to be canceled nor pertnit any insurance to lapse during the term of the Contract or as required in the Contract. xii. The Supplier shall be responsible for premiums, deductibles and self-ins�u•ed retentions, if any, stated in policies. All deductibles or self-insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Supplier shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage's indicated within the Contract. �v. The insurance coverage's specified in within the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Supplier. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Supplier which arises under ar concerns the Contract, or which could have a material adverse affect on the Supplier's ability to perform thereunder, the Supplier shall give written notice thereof to the City within ten (10) calendar days after receipt of notice by the Supplier. Such notice to the City shall state the date of notification of any such claim, demand, suit, or other action; the names and addresses of the claimant(s); the basis thereof; and the name of each person against whom such claim is being asserted. Such notice shall be delivered personally or by mail and shall be sent to the City and to the Denton City Attorney. Personal delivery to the City Attorney shall be to City Hall, 215 East McI�inney 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 postmarl<ed 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 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 marlced to the attention of the Purchasing Manager. RFP 5115 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Supplier to the City shall become property of the City upon receipt. Any portions of such material claimed by the Supplier to be proprietary must be clearly marlced as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Supplier represents and warrants 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 specifications in the Contract will not infringe, directly ar contributorily, any patent, trademarlc, copyright, trade secret, or any other intellectual property right of any kind of any third party; that no clauns have been made by any person or entity with respect to the ownership or operation of the deliverables and the Supplier does not lcnow 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 attorneys and other professionals) arising out of or resulting from: (i) any claim that the City's exercise anywhere in the world of the rights associated with the City's' ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third pariy; 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 behalf. Further, Supplier agrees that the City's specifications regarding the deliverables shall in no way diminish Supplier's warranties or obligations under this paragraph and the City malces 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 infoimation (including inventions, employee information, trade secrets, confidential lrnow-how, confidential business infarmation, and other information which the City or its licensors consider confidential) (collectively, "Confidential Information"). Supplier acicnowledges and agrees that the Confidential Information is the valuable property of the City and/or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Conf"idential Information will substantially injure the City and/or its licensors. The Supplier (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other governmental authority with proper jurisdiction, provided the Supplier promptly notifes the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Supplier agrees to use protective measures no less stringent than the Supplier uses within its own business to protect its own most valuable information, which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information. 38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Supplier agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Supplier agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acicnowledge, and deliver and, if necessary, cause each of its employees to execute, acicnowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Supplier agrees that upon their creation, such deliverables shall be considered as work made-for-hire by the Supplier for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the CiTy's sole or joint ownership of any such deliverables arising by virtue of the City's sole or joint authorship of such deliverables. Should by operation of law, such deliverables not be considered works made-for-hire, the Supplier hereby assigns to the City (and agrees to cause each of its employees providing services to the City hereunder to execute, acicnowledge, and deliver an assignment to the City o fl all worldwide right, title, and interest in and to such deliverables. With respect to such worlc made-for-hire, the Supplier agrees to execute, acicnowledge, and deliver and cause each of its employees providing services to the City hereunder to execute, acicnowledge, and deliver a warlc- 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. RFP 5115 C. Additional Assignments. The Supplier further agrees to, and if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specifications, oaths, assigntnents, and all other instruments which the City might reasonably deem necessary in arder to apply for and obtain copyright protection, maslc work registration, trademarlc 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 Supplier's obligations to execute, acicnowledge, and deliver (or cause to be executed, acicnowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City should not seelc to obtain copyright protection, maslc worlc registration or patent protection for any of the deliverables, but should desire to Iceep the same secret, the Supplier agrees to treat the same as Confidential Information under the terms of Paragraph 37 above. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Gontract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Supplier shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. 41. NO CONTINGENT FEES: The Supplier warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial ar selling agencies maintained by the Supplier for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Supplier, ar otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATiTITIES: The City may, by written notice to the Supplier, cancel the Contract without liability if it is determined by the City that gratuities were offered or given by the Supplier ar 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 malcing of any determinations with respect to the performing of such contract. In the event the Contract is canceled by the City pursuant to this provision, the City shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by the Supplier in providing such gratuities. 43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer, employee, independent consultant, or elected official of the City who is involved in the development, evaluation, or decision-malcing process of the performance of any solicitation shall have a fmancial 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 lcnowledge, 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 Contract shall not be construed as creating an employer/employee relationship, a partnership, or a joint venture. The Supplier's services shall be those of an independent supplier. The Supplier agrees and understands that the Contract does not grant any rights or privileges established for employees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation ar sicic leave benefits, worlcer's compensation, or any other City employee benefit. The City shall not have supervision and conirol of the Supplier or any employee of the Supplier, and it is expressly understood that Supplier shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. 45. ASSIGNMENT-DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Supplier and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Supplier without the prior written consent of the City. Any attempted assignment or delegation by the Supplier shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it RFP 5115 being the intention of the parties that there are no third party beneficiaries to the Contract. 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Supplier or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre-printed or similar terms on any the Supplier invoice, order or other document shall ha�e 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 fmal, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term used in the Contract. Although the Contract may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless otherwise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for• damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may malce a written request for a meeting between representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision-making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation slcills 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 sltills of a person who is trained in the subject matter of the dispute or a contract interpretation e�ert. 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 %rst mediation session. The City and the Supplier will share the mediator's fees equally and the parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENLTE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seelc and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall 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 stricicen RFP 5115 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) MI,K Day Memorial Day 4th of 7uly Labor Day Thanlcsgiving Day Day After Thanlcsgiving 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. Nortnal 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 worlc performance not within the normal hours of operation must be approved by the City Manager of Denton, Texas or his authorized designee. 53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on the parties, including but not limited to the warranty, indemnity, and confidentiality obligations of the parties, shall survive the expiration ar tertnination of the Contract. 54. NON-SUSPENSION OR DEBARMENT CERTIFICATION: The City of Denton is prohibited from contracting with or making prime or sub-awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By accepting a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non-Procurement Programs, the State of Texas, or the City of Denton. 55. EQUAL OPPORTUNITY A. Equal Employment Opportunity: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice. No person shall, on the grounds of race, sex, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT-SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable, in addition to the specific federally funded requirements. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Supplier, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or (2) For components manufactured by the Supplier, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means- (1) An unmanufactured end product mined or produced in the United States; or RFP 5115 (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 rnined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. iv. "End producY' 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 for use in the United States. C. The City does not maintain a list of foreign articles that will be treated as domestic for this Contract; but will consider for approval foreign articles as domestic for this product if the articles are on a list approved by another Governmental Agency. The Offeror shall submit documentation with their Offer demonstrating that the article is on an approved Governmental list. D. The Supplier shall deliver only domestic end products except to the extent that it specif'ied 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 supplier or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the supplier. 59. PREVAILING WAGE RATES: All suppliers will be required to comply with Provision 5159a of "Vernon's Annotated Civil Statutes" of the State of Texas with respect to the payment of prevailing wage rates and prohibiting discrimination in the employment practices. http://www.access. gpo. �ov/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 Supplier must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Supplier shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Supplier shall demonstrate on-site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W-2's to common law employees. Supplier is responsible for both federal and State unemployment insurance coverage and standard Worl<er'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 Worlcers' Compensation coverage, or federal or State withholding requirements. Supplier shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Supplier's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The supplier shall comply with the applicable provisions of the Drug-Free Worlc Place Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug- free warlc environment; and the final rule, government-wide requirements for drug-free worlc 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 Worlc Place Act of 1988 is incorporated by reference and the supplier shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be issued. 63. SUPPLIER LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Supplier shall be liable for all damages to government-owned, leased, ar occupied property and equipment caused by the Supplier and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any RFP 5115 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. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Supplier shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other una�oidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Supplier will be excused from any further performance or obseroance 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 inception of such occurrence) and describe at a reasonable level of detail the circumstances causing the non-performance ar delay in performance. 65. NON-WAIVER OF RIGHT5: Failure of a Party to require performance by another Pariy 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 IlVIMiJNITY: The Parties expressly agree that no provision of the Contract is in any way intended to constitute a waiver by the City of Denton of any immunities from suit or from liability that the City of Denton may have by operation of law. 67. RECORDS RETENTION: The Supplier shall retain all financial records, supporting documents, statistical records, and any other records or boolcs relating to the performances called for in the Contract. The Supplier shall retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that a11 audit and litigation matters are resolved, whichever period is longer. The Supplier shall grant access to all boolcs, 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. RFP 5115 Exhibit B Special Terms and Conditions The Quantities indicated on E�ibit C 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 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 Term The contract term will be one (1) year, effective from date of award. The City and the Awarded Contractor shall have the option to renew this contract for an additional two (2) one-year periods. The Contract shall commence upon the issuance of a Notice of Award by the City of Denton and shall automatically renew each year, from the date of award by City Council, unless either party notifies the other prior to the scheduled renewal date. At the sole option of the City of Denton, the Contract may be further extended as needed, not to exceed a total of six (6) months. Price Escalation and De-escalation Prices agreed upon during the RFP process must be firm for a period of ninety days from date due date of the proposal. Any request for price adjustment must be based on the, U.S Department of Labor, Bureau of Labor Statistics, Producer Price Index (PPn for Iron, Steel Pipe and Tube from purchased steel (PCU331210331210) as found at (http://www.bls.�ov/�pi/home.htm). The price will be increased or decreased based upon the monthly percentage change in the latest published PPI. The escalation will be determined monthly. Should the PPI change exceed a minimum threshold value of +/-1%, then the stated eligible prices shall be adjusted in accordance with the PPI change. The supplier should provide documentation as percentage of each cost associated with the unit prices quoted for consideration. Total Contract Amount The contact total for services shall not exceed $1,660,000 per term. Pricing shall be per Exhibit C attached. RFP 5115 EXHIBIT C Supplier's Proposal RFP 5115 Pricing Sheet for Galvanized Steel Structures for Substations Pt'oposer Falcon Steel Company Estimated First Year Estimated Total Delivery ITEM # UOM Description Annual Quantity Unit Cost Annual Cost (Weeks ARO) Ta ered Tubular Structures Sfructures (includina assemblv boltsl 1 EA 65' overhead shield wire pole 13 $7,724.00 $ 100,412.00 18-20 2 EA 138kV H-frame transmission termination structure 8 $22,432.00 $ 179,456.00 18-20 3 EA Lightbracketfortaperedtubularstructures 40 $42.00 $ 1,680.00 18-20 Anchor Bolf Assemb/ies (includinp templates) 4 EA Anchor assemblies for 65-OSHW01 13 $550.00 $ 7,150.00 14-16 5 EA Anchor assemblies for 138-TOS02 16 $1,100.00 $ 17,600.00 14-16 Additiona! Strucfure or Structure Modification Pricina 19 LB Price change per pound for decreasing structure height 300 $1.00 $ (300.00) 20 LB Price change per pound for increasing structure height 1000 $2.00 $ 2,000.00 21 LB Average price per pound for adding a new structure 2000 $2.00 $ 4,000.00 Fabricator: Location of Fabricating Facility: Galvanized substation fabrication experience: years Years of experience providing galvanized, tapered tubular steel structures to utilities in the United States of America: years a. Number of similar substation steel projects shipped in the last 18 months: b. Percentage of shipments that did not ship on time: c. Average delay for shipments that did not ship on time: (days) If the fabricator is foreign, state the name and location of the facility in the US that will be used in the event that repairs or corrections are necessary: there any exceptions to the specification? Invoice Paid in 20 Invoice Paid in 15 Invoice Paid in 10 Falcon Steel Haltom City, TX 50 40 150 3-5 7 NO Additional Discount % 0.50% 0.50% 2.00% EXHIBIT C Suppiier's Proposal CITY OF A�NTQN RFP FOR SUPPLY OF GALVAN��D STEEL STRUCTiJR�S FOR SUBSTATIONS BUS�NESS 4VERVX�'VV QUESTIOI�TNAYRE AND FORMS 1. Conh�actor Name: Falcon SteeI Compauy 2. Address (Principal Place of Bt2sinESS}: 4201 Olci Aentoi� Road, Haltom City, TX 76117 3. Does yot�r company have an established physical presence in ihe State of Texas, oX the City of De�ton? Yes — State of Texas 4. Tax �'ayer ID#: 75-1153689 S. EmailAdd�•assofPzimar��cont�ct: jchilde�•s@faIconsteel.com 6. Website Add�•ess: �vww.falconsteel.co�n 7. Telepl�one: (817) 581-9540 8. Fax: {Sl'�} 581-6898 9, Q�lier Locations: Kaufivan, TX and Euless, TX 10, Organization Class: Pa�'tne�•ship Individual Corporation - Yes Association 11. Date Establisl�ed:1963 12. Fornier B�isiness Name: N!A 13. Date of Dissolurion: N/A 14. St�bsidialy of NIA 15. Historically Uncle��tilized Business: No 1G. Principals �nd Officers: Da�vid Sanith — Chairm�n and CEO — Executive Management .�oiin Janczak— P�resic�ent -- Ma�nagennent of Company Opez•at�o��s 17, Key Personnel and �Zesponsibllities: Cody Bariy -- Divisian Manager -- F�cility Wicle P��oject 1Ylanagement PAGE 42 OF RFP #5195 EXHIBIT C Supplier's Proposal CITY OF D�NTON R�'P FOR SUPPLY O� GALVANIZED STE�L, STRUCTURES FOR SU�STATiONS Abr1m �'otier -- Managel• of iTtilify Sales Julie Childers -- Project Specitic Pz•oject Managemei�t 18. Number of Personnel by Disciplinex: Discipline Number of Staff Execufive Management �axgit#eering DraFting Production ControY SaYes Accouuiing Purchasing Tnformation Techno�ogy Pro duction/ShippinglMainte�xance 2 3 9 4 5 3 3 2 iaa # Registered '�Note:lrTumbex•s Reportett aba��e are for Falcon Steel Company �Haitom Ciiy TaciYify 19, Has your compan.3T �letl or been named in any litigation involving your company and the Ow�zer on a confract within ihe las# five years under your current company name ar any ather company narne? If s� provide deiails of tl�e issi�es and resolution ii available, Include lawsuits wliere Ow,�er was involved. No 20, Please provide a# �easf (3) three references (p��efe��ably f�zirnrcipalities) and cantract amaunts. Include project description, contae# names, position, and organization name and telephon.e number for aach reference listed, See Attachment F. 21. Have yol� ever defaulted on or failed io camplete a con#ract under your cturent company name or any other company name? Tf so, where and why? Give name and telepl�one nc�niber of Owner. No 22. Have yau ever had a contract terminafied by the �wner? If so, where and why? Give n�me and teiephone nuinber {s) o� Owner (s). 23. Has your coinpany implemanted an Employee Health and Safety ��ogram complianf wi#h 29 CF12. � 910 "General Inclustty Standards" and/or 29 C�R 1926 "Genez�al Const� uetion Standards" as they apply to you�• Coznpauy's custon�ary activities? http�//wvs�v osha gov/pls/oshawebJowas��ch.search form?p doc tvne�ST ANDARDS&�, toc level=l &p keyvalue=1926 PAGE 43 OF RFP #5915 EXHIBIT C CIT'��Or DLNTON RFP F�R SUPPLY O�' GALVANIZ�D STEEL STRUCTURCS i'OR SUBSTATIONS ATTACHMENT G CONFLICT OF 1NTER�ST QUESTIONNAIRE FORM CIQ For vendor a• other erson cioiu busiuess ��itli lacal overnmental eutit � Tiifs questioii�iaire i•eflects cha��ges made to the law by H.B. 2491, $Ofh Leg., Regular Session. OFFICE USE ONLY Tlzis questionnaire is being filed in aeeord�ice �vith ch�pter l76 of the I.ocal Government Code by a person DTteReceiaeh wi�o has a business relatio�tship as ciefined by Section 17b.001(1-a} �vith a local governmental entity atid ti�e person meets requirements under Section 17d.006(a). By law tius questionnau�e must be �tec� with the records administrator of the local governniant entity not later thaii ihe 7th busi��ess day after t;te date the person becoines aware of facts that reqt�is•e tlie st�te�nent to be %led. See Section 176.ObG, Local Governmeut Code. A person comn�its an offense if the person kno�vingiy violates Section 17G,006, Local Governtnent Code. An offense imder this section is a CI�ss C misdemeanor, 1 Noneo of person �ti�lio h�s a busiucss rclationship n�iNi [ocnl go��er�unental cufih�. Jutie C'I�ilders � � Chcclt ttds bax if►�ou are filiug an npdate fo a previously filed ryucstionnaire. (The la�v requires thlt you filc :�n updated completecl ques[ionnaire witli flie appropri�ke filing auti�ority not later fUmt tl3e 7'h business day �Rer the date the origin�lly �led c�uestio�mnire becomes v�complete ar inncciirate.) 3 Name oFlocal govenunent o£ficer �viQi whom Cler hus an en�ploynieut or i�trsiness retationship. N/A Name af Officer 7his section, (item 3 including subparts A, �, C& D), musE be complelecl for each offlcer with wham ihe filer has an employment or other business relationshlp as defined by Section 176.00'I(9-a}, Local Government Code. Atfach addlfional pages to fhis Form CIQ as necessary. A. Is the local government officer named in this section recelving or Ilkefy to receive faxable income, oiher than investment income, irom the filer of the questionnaire7 � Yes � No B. Es ihe filer of the quesfionna�re receiving or likely fo receive taxable income, other Ihan investment income, from or at the direction of ihe loca! gavernment officer named in this section AND fhe taxable income is not receIved from the focal governmenfat entity? � Yes � No C. Is the fller of lhis questfonnaire employed by a corporatfon or other business entiEy wiih respect to which the Ioca1 government officer serves as an offlcer or director, or holds an ownership of 10 percent or more? 0 Yes � No Q. bescrihe each affiliation or business relafionship. 4 . c December 12, 2012 Sig ture person doing business with the governmenfal eniity bafe PAG� 45 OF RFP #5'E 15 EXHIBIT C Supplier's Proposal City of Dentan RFP 5915 � Minimum Requirements -- Falcon Stee[ Company • Five {5) years experience providing s�milar products ar services in the North Texas area o Falcon Steel Campany has been servicing #he ufillfy industry fabr�cating galvanized, tapered tubular sfeel substation structures beyond fhe minimum five year period in the North Texas area. Falcon Steel Company has provided sueh siructures fo cusfamers such as City Pu,blic Setvice of San Antonio, Duke Energy and Brazos �'lectric Power Cooperative all of which are Iocafecf in the Unifed States. • A sfandard license or certifieation if ap�licable: o N/A • The individua! or business musf be registered by the State of Texas or the Caunty of Denton as a business and the musi have all licensure required by ih� 5tate to �rovide any services. a Sfate of Texas Cerfificate of Incorporaiion, Chan`er #�95999, dated August 29, �963. • Three (3) refierences from governmental entities for the products ar services requested. The City prefers references from municipalities of similar size o This requirement has been fulfilled in Aftachm�nf F associafed wifh thfs proposal. • Provide information demonsfrating a defined level of indus#ry know[edge and undersfanding. o Falcon Stesl Company has heen designing and fabricafing qualiiy stee! strucfures for 50 years. • The individual or business must discfose any business relationship that would have an effect of a conflict af interes#. o Conflict of lnterest statement included as Aftachment G. • Provide information indicaiing the abifity to suppiy products as specified. Falcon Sfee! Company has proposecf Iead frmes based upon current producfion capacify to fulfill th� inifial quanfiiiss indicated on Exhibit 9. 4201 OldDe�atof� Rorr�7/Hcrllonr Cily/Textr.s/76117 a 817-Sc41-95p0 Falcon Steel Company 420'f Old Denton Road Haitom City TX 76� 17-2208 Quote Number: 239 Rev#: EXHIBIT C Supplier's Proposal �^tX" b'. ��d �< .� 1 p,�'� �i #" .. �`' � ��r��1 � �� - f � � f'Y � `� �` " ,Y`"fit��l;�"� : ,� � �r� - � - uote io: �I.TON D. F3RQCK, MBA, CTPM, CTCM, C.�.M. CITY OF DENTU�! PURCHASING D�PARTMENT 901-8 T�XAS STREET DENTON TX 762Q9 Phone: 940-349-7104 Phane:817-5$1-9500 Fax: 817-5$1-6$98 Date: 121� 2I2012 Quote Due: 12/92/2012 Expires: 1/11l2�13 Salespersan: JUI.I� CWILD�RS jchilders a�falconsteel.com Enquiry No: RFP 5915 aid: 2o�z�7�z REQUESTF4R PR4POSALS (RFP} #5995 � SUPPLY OF GAL.V/�Nl,ZED STEEL STRUCTURES FOR SUBSTA TIONS Page: 1 of 3 PRlCING 7'O CONSfST OF: DETAIL, FURNiSH, FA8RICATE, GALVANIZE AND DELlVER 1 LOT STEE'L SUBSTATl�N STRUCTUf2�S AS OUTLfNEI? fN R�QUEST FOR PROP�SALS (RFP} #�195 - SUl'PLY OF GALVANlZED STEE'L STRUCTURES �OR SUBSTA710NS. COMPL�TE WIT'HANCHOR BOLTS AND ASSEMB�YBpLiS. SHIPPED KNOCK�I� DOWN, ALL TO BE 1N ACC4RDANCE WITH C17Y OF DENTON DR�4WINGS AND SPECIFlCATIONS LXC�f�i AS NOTEQ BE'LOW. NOTE: 9. NO FlELD LABOR OR UIVL.OADlNG lNCLUDED, 2. QU07A7'!ON iS BASER ONACCEPTANCE OFA�t JTEMSAND QUANT177ES. 3. GOMPLETE DETAlL AND EREC770N DRAWJNGS WILL 8F SUBMITTE� �OR APPROVAL AFTER RECEiPT OF ORDER. 4. NO CLlMB1N� DEVICES lNCI.UDEQ. 5. 90 PERCEN7' PAR7IAL PEIVETRATlOJV WlTN F!l.LET OVERLAY SHALL 8E USED FOR AFtM-TO ARM BASE, VANGE-TO-PLATE SHAFT AND ARM BOX ,10INTS. ,.., n�5� „-:�:�s.� ti� �:;yiu":�"'�'f�-� u�*;��_. , �- ��-��' �,' ..a. �.`�'"'r-'� _-��"„s---��x�-�.. ��--?��`�.�`�-"�r„-.�;�;�� 3°�' - �r ��ln��.-��it�.��=��D�S �� ;�- �-.�- � �� = �..�.,. �, .��. �- � `�ti �SD - - �: �� ,�� :� . -,� z � �.. �� , �-��s � 1 Q-239-1 PER RFP 57 95 - SUPPLY OF GALVANI��p ST��I. STRUCTURES FOR SUSSTATIONS A.� Lead Time : Sfructure Lead Time : Finish Detail: Primary Finish: Galvanized Est UniP We3ght (LgS) 0.00 ' t �� '� � � +�. = � ��s,- . _— �'S-�' . �_--.r -•:�- � �a �i 'i ��' y7 ♦- F �r.c: t�° �``��-�a�i�Y� � �� -[�i�p�,,,�� ___ � � �. ��. �r� �,�{?��"� , ��,� �a�� .��. � T�.�� .� • �. �..�. _ w` Payment Terms: NET 30 Tot�l Ext Price: O.�Q FOB: DESTINATION Total Est. Weigh4 (LBS); O.Ob Clarifications and Genera! 7erms & Conditions are a(tached. Forquestions, please confact fhe associated salesperson. / � j,. � .................................... QuofForm:001:4b . . _ � , F .a . . .. 4 � . � .e �alcon Steel Company 4201 Old Denfon Rvad Haliom City TX 761 �7-2208 Quois Numher: 239 Revf�: EXHIBIT C Supplier's Proposal � � ��-� � :: �-� � �� , ` � �� I ��`z ,�;� .. t �, {; �'r� ` =; . � �=�.. - �,�-�-.� - �s�`� ��:. -,;;-�� ;�� -�:m �� >,� �� a .�w�� } �� -�.��, -�-� i.:�i5� : stix��4�> Phone: 817-5$9-9500 Fax: 817�581-6898 Fage: 2 of 3 Clarifications 9. No sales tax or use taxes have been inciuded unless so speclfied. 2. All quotations are subject to the terms and conditions attached. 3. Pricing Methodology a, Prices are vafid for quoie cfuration. b. Prices are based on acceptance of at[ items and quantities. c. Prices are to remain firm if the following requirements are met; i. There are no changes to the drawings / designs with t�e quote. ii. A purchase ordar is received during fhe durafion of fhe quote. 4. Correcfive Charges a. Back charges for corrective work or replaced materials will not be accepted unless expressiy auti�arized by Falcan Steel bsfore any such aosts are incurred. � 5. Fabrication a. �abrication wili be per A.I.S.C. and A.W.S. D1.1 skandards. Falcan Steel qua{ity control personnel maintain active A.W.S., Ceriified Welding lnspectar credentials, Quality Co[�trol personnel also maintain certi#fcations in non desiructive testing methods compliani to A.S.N.T.-S.N,T,�3,C.1.A. All welders at Falcan Steel maintain certification to the current requirements of the American Welding Sociefy standard D1.'[. (Siructural Welding Code). b. 90 percent partial penetration with fillet overlay sl�all be used for arm-to-arm base, vang-ta-plate shaft, and arm box joints. c. Faicon Steel wi{! measure fwist in the pole shafi per a tvlerance of 1 degree per 10 ft. 6. Finish / Coatings a. Structures that are to be galvanized wili be per ASTM A-'f 23. b. Other caatings per specifications unless otherwise noted. 7. Cffm6ing devlces are not included unless otherwise noted within the quotation, 8. FreighE a. No fie�d labor or unEoading included. Ta be provided by athers. b. Anchor bolts are assumed to ship with fha siructures. Pre-shipment of any kind may require additionaf freight charges io be applie�. 9. Delivery a. Qelivery dates quated are based on ihe best informafion available from our suppliers at this tlme. Any delays in our supplier's s}tip dates may [mpact our prom€se� delivery dates. 10. Engineering Clariflcations and Assumpfions {if deslgns are required} a. Our preliminary design calculailons have been included wEth ihis quotation and require written approvai, b. Prlces quoted are based on drawings provided. If there is a discrepancy befween what was quoted and what is acfuaEfy needed, �alcfln Stee1 reseNes fha righf to re-evaluate the quote and adjust pricing accordingly. ----------------------------------- QuotForm:001:00 �aicon Stesl Company 42D1 Old Denton Road Haftom Cfty 7X 76917-2208 Quote Number: 239 Rev#: EXHIBIT C Supplier's Proposal �� ¢ �� y , � : � ' � �� {� � ;�� . _ } ��'�i�� ,�-�` - Phone: 817-589-9500 Fax: 817-589 -6898 Page: 3 of 3 GENERAL TERMS AND GONpiTIONS OF AGREEMENT Accepiance T�is proposal in the form of a quotation must be accepted by custc�mer within the stated expiration date after it is submitted by Falcon Sfeel ai which t(me is a binding agreement unless ofherwise specified upon acceptance. Delays This agreement is confingenf upon str3kes, accidents, and. other causes of delay beyond Falcon Steel's controi. Canceltations Orders cannat be heid canceUed, specificatlons changes, or goods returned without Falcon Steel's perrrtission. Accepfance is conditfonedon reimbursement for all consequential loss to �alcon Steel. Deliveries Schedules af deliveries are given as accurately as condifions will permit, but Falcon Steel does not guarantee shipmenfs on date or dates given, Warranty Falcan Steel warrants its products to be free from defec#s in materials and workmanship for one year under normal use and service. Any products found to be defective wlthin one year from the date of shipment, and examined by Faicon Steel and deiermined to be defectiva shaf! be replaced ar repaired by Falcon Steel free of charge. This warranfy is in lieu of all ofher warranties, express or implied, including without Eimitation, the warranty of inerchantability and the warranty of suitabilify for a particular purpose. Falcon Steel assumes no liability for consequential, incidental, or liquidafed damages arising out of a breat of sale, including any warranties arising therefrom and the customer's sole remedy shall be (imited to the repair or replacemer (as so determined by Falcon Steel) of defective parts as descrlbed above. Falcon Steel reserves the rfght to irnplement produc changeslimprovements to its design or materfal without advance notice. Exciusions Tne warranty excludes fatigue fai�ure or simiEar phenomena resulting from induced vibration, harmonic ascillation.or resonanc� associated with movetnent of air currents around the product. �urther, labor required to remove and(or reins#all ariginai or rep{acement parts shall be the responsibility of the ctasiomer. 7he warranty excludes damage caused by improper installation, overloading, misuse, abuse, acoident or neglect, In addifion, this v,rarranty does nat cover alterations, modlficatlons, or additior unless ti�e change is acknowledged and accepted, in advance, in wrifing, by Falcon SteeL tf tne products are to be used on ar existing foundation or on oiher structures, customer assumes all responsibility for str�ictural integrity of fhe exis#ing foundatlon anchorage ar s}ructures and all consequences arising therefrom. Arbitration of DESputes Any controversy beiween the partfes to this agreemeni invo[ving the construcfion or appfication of any of the ierms, covenanks or conditions of this agreement shall, on the wr(tten request of one party served on the other, be submitted to arbltration, and such arbitration sha11 comply wlih and be governed by ihe provlsions of the Texas General Arbitrafian Act or by ihe Federai Arbitration Act, if ihe subject of arbitration fs invo{ved in interstate commerce. --------------------------------- QuotForm:00'f :DO CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND R& C WELDING AND FABRICATION, INC (RFP 5115) THIS CONTRACT is made and entered into this FJ f"�Z day of � .D., 2013, by and between R& C Welding and Fabrication, Inc, a corporation, whose addr ss is 880 East Countrv Club Road, Gerin�, NE 69341, hereinafter referred to as "Supplier," and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. For and in consideration of the covenants and agreements contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Supplier shall provide products in accordance with the City's RFP # 5115 Galvanized Substation Structures, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes: The Coritract consists of this written agreement and the following iterns which are attached hereto, or on file, and incorporated herein by reference: (a) City of Denton's RFP 5115 (on file at the office of the Purchasing Agent) (b) . Standard Terms and Conditions (Eghibit ��A") . (c) Special Terms and Conditions (Exhibit "B") (d) Supplier's Proposal. (Exhibit "C"); 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 docume�ts, the incorisistency or coaflict shall be resolved by giving precedence first to the written agreement then to the contract documents in the order in which they are listed abave. . These documents shall be referred' to :collectively as "Contract Documents." ;{ � ,. _ 1 , . i � _ � ' ` , I _ 1 RFP 5115 , � i _ j - i IN WIT'NESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. ATTEST: JENNIFER WALTERS, CITY SECRETARY r BY: � � 1 ' SUPPLIER � E � � � 4 "'� . BY: THORIZED SIG ATURE Date: Name: '°�c.� l'I'd ��v� Title:_ _ f �s%/ii°J2?c!�/r7Y' /YYJ�' J��`"�d� �4S'� � �S � d0�� PHONE NUMBER � D �- � �.s ' �l7% � FAX N UMBER _ i , CITY OF DENTON, T S � B GEOR E C. CAMPBELL, CIT MANAGER Date: t��'�'LLC,�7/1� ,� 2�/ � 3 APPROVED AS TO LEGAL FORM: _ I ANITA BURGESS, GITY ATTORNEY j ! �.. , I BY: - - � . . _ ; RFP 5115 � - � Eghibit A Citv of Denton Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terxns and Conditions, Specifications, Drawings and other requirements included in the City of Denton's solicitation are applicable to Contracts/Purchase Orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller herein after referred to as the Supplier: Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Supplier. No Terms and Conditions contained in the Supplier's Proposal response, Invoice or Statement sha.11 serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the Contract/Purchase Order these written provisions will take precedence. By submitting an Offer in response to the Solicitation, the Supplier agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a Solicitation to purchase Goods, 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 strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTNE 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. SUPPLIER TO PACKAGE DELNERABLES: The Supplier will package deliverables in accordance with good commercial practice and shall include a packing list showing the description of each item, the quantity and unit price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marked as follows: (a) The Supplier's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Supplier shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to confo�an to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Supplier is not authorized to ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliveiables shall pass to the City only when the City actually receives and accepts the deliverables. 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Supplier's price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery sha11 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 Subconiractor's, facilities, or the deliverables at the Supplier's, or the Supplier's Subcontractor's, premises, the Supplier shall furnish, or caase to be fiunished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. RFP 5115 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non-complying tender shall constitute a breach and the Supplier shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Supplier may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDTTION OF WORK: The City shall provide the Supplier access to the sites where the Supplier is to perform the services as required in order for the Supplier to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Supplier acknowledges that it has satisfied itself as to the nature of the City's service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Supplier's obligations under the cor�tract. The Supplier hereby releases and holds the City harmless from and against any liability or claim for damages of any kind or nature if the actual site or service conditions differ from expected conditions. 10. WORKFORCE A. The Supplier shall employ only orderly and competent workers, skilled in the performanbe of the services which they will perform under the Contract. B. The Supplier, its employees, subcontractors, and subcontractor's employees may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract or on the CiTy's property . i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the contract; or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. C. If the City or the City's representative notifies the Supplier that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Supplier shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City's prior written consent. , Immigration: The Supplier represents and warrants that it shall comply with the requirements of the Immigrat'ion Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIIZIltA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Supplier, 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 Administration (OSHA). In case of conflict, the most siringent safety requirement shall govern. The Supplier shall indemnify and hold the City harmless from and against all claims, demands; suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Supplier's obligations under this paragraph. Environmental Protection: The supplier shall be in compliance with all applicable standards, orders, or regulations issued pursuant to the mandates of the C1ean�Air Act (42 U.S.C. §7401. et seq.) and the Federal Water Pollution - Control Act, as amended, (33 U.S.C. §1251 etseq.). 12. IlvVOICES: A. The Supplier shall submit sepaxate 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 shail be itemized and transportation RFP 5115 � charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Supplier's name, remittance address and, if applicable, the 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. Tnne billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Supplier shall pass through all Subcontract and other authorized expenses at actual cost without markup. E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request. 13. PAYMENT: - A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the 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 Tegas Government Code Section 2251.025 or the maximum lawful rate; ezcept, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Supplier will be paid for the partial shipment or delivery, as stated above, provided that the invoice mafches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Supplier to such extent as may be necessary on account of: i. delivery of defective or non-conforming deliverables by the Supplier; ii. third party claims, which are not covered by the insurance which the Supplier is required to provide, are filed or reasonable evidence indicating probable filing of such claims; iii. failure of the Supplier to pay Subcontractors, or for labor, materials or equipment; iv. damage to the property of the City or the City's agents, employees or suppliers, which is not covered by insurance required to be provided by the Supplier; v. reasonable evidence that the Supplier's obligations will not be completed within the time specified in the Contract, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; vi. failure of the Supplier to submit proper invoices with purchase order number, with all required attachments and supporting documentation; or vii. failure of the Supplier to comply with any material provision of the Contract Documents. 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 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 ar continuation of this contract is dependent upon the availability of funding. The City's payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be retumed 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 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 sha11 be paid by the Supplier, unless otherwise stated in the contract terms. 15. FINAL PAYMENT AND CLOSE-OUT; RFP 5115 A. If a DBE/MBE/WBE Program Plan is ageed to and the Supplier has identified Subcontractors, the Supplier is required to submit a Contract Close-Out MBE/WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract. Final payment, retainage; or both may be withheld if the Supplier 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 comply with the Contract or the terms of any warranty specified herein, (4) arising from the Supplier's continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City's right to audit; and ii, a waiver of all claims by the Supplier against the City other than those previously asserted in writing and not yet settled. • 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Supplier for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Supplier as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The_Supplier shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, 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 shail 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 zeasonable 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 Contract and shall constitute, in the City's sole discretion, grounds for ternunation thereof. Each of the terms "books", "records", "documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18. SUBCONTRACTORS: A. If the Supplier identified Subcontractors in a DBE/MBE/WBE agreed to Plan, the Supplier shall comply with all requirements.approved by the City. The Supplier shall not initially employ any Subcontractor except as provided in the 5upplier's Plan. The Supplier shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the CiTy with respect to defective deliverables provided by a Subconlractor. If a Plan has been approved, the Supplier is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Supplier by a Subcontractor sha11 be pursuant to a written contract between the Supplier and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and sha11 contain provisions that: i. require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract; ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent of the City and the Supplier. The City may require, as a condition to such further subcqntracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. require Subcontractors to submit a11 invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Supplier in sufficient time to enable the Supplier to include 'same with its invoice or application for payment to the City in accordance with the terms of the Contract; iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Supplier, with the City being a 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. RFP 5115 C. The Supplier shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Supplier is responsibie for the Supplier's own acts and omissions. Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relationstiip between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The 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. R'Al2I2ANTY-PRICE: A. The Supplier warrants the prices quoted in the Offer are no higher than the Supplier's current prices on orders by others for like deliverables under similar terms of purchase. B. The Supplier certifies that the prices in the Offer bave been amved 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 ar with any competitor. � C. In addition to any other remedy available, the City may deduct from any amounts owed to the Supplier, or otherwise recover, any amounts paid for items in excess of the Supplier's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTI' — TITLE: The Supplier warrants that it has good and indefeasible title to all deliverables fiu-nished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encurnbrances. The Supplier shall indemnify and hold the City hannless from and against all adverse title claims to the deliverables. 21. WARRANTY — DELIVERABLES: The Supplier warrants and represents that all deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Supplier, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. B. The Supplier may not limit, exclude or disclaim the foregoing wartanTy or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the date of acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty period, one or more of the above warranties are breached, the Supplier shall promptly upon receipt of demand either repair the non-conforming deliverables, or replace the non-conforming deliverables with fully conforming deliverables, at tlie City's option and at no additional cost to the City. All costs incidental to such repau or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Supplier. The City shall endeavor to give the Supplier written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give tunely notice shall not impair the City's rights under this section. D. If the Supplier is unable or unwilling to repair or replace defective or non-conforming deliverables as required by the City, then in addition to any 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 Supplier shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Supplier is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Supplier shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Supplier shall assist and cooperate with the City to the fullest e�ent to enforce such manufacturer's warranty for the benefit of the City. 22. R'ARRANTY — 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 effect. RFP 5115 B. Unless otherwise specified in the Contract, the wananty 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 shal] 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 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 sha11 pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. 23. ACCEPTANCE OF INCOMPLETE OR NON-CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non-conforming deliverables, the City prefers to accept it, the City may do so. The Supplier shall pay all oIaims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non-conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non-conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Supplier. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time 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 irnmediate 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 dete�nined by the City to be unsafe to either life or property. Upon notification, the Supplier will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Supplier shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Supplier shall be in default under the Contract if the Supplier (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Supplier's Offer,_ or in any report or deliverable required to be submitted by the Supplier to the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Supplier, the City shall have the right to terminate the Coniract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Supplier, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, 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 Supplier's default, including, without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Supplier, the City may remove the Supplier from the City's vendor list for three (3) years and any Offer submitted by the Supplier may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The,City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirly (30) cale�dar days' prior written notice. Upon receipt of a notice of ternunation, the Supplier shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Supplier, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of ter.mination 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 aud RFP 5115 may result in legal action. 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 incurred by the Supplier in the Contract price and execute an amendment to the Contract. The Supplier must assert its right to an adjustment within thirty (30) calendar days from the date of receipt of the notice of delay. Failure to a�ee on any adjusted price shall be handled under the Dispute Resolution 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, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event of default or delay in contract performance due to any of the foregoing causes, then the time for completion of the services will be extended; provided, however, in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Supplier, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and/or (2) death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person (including but not limited to the agents, officers and employees of the City, the Supplier, the Supplier's subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non-conforming deliverables, negligence, willful misconduct or a breach of any legally unposed strict liability standard. B. THE SUPPLIER SHALL DEFEND (AT TT3E OPTION OF THE CTTY�� INDENINIFX� AND HOLD THE CTTY, ITS SUCCESSORS, ASSIGNS� OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARIVILE55 FROM AND AGAINST ALL INDEMNJFIED CLAIMS D1ItECTLY ARISING OUT OF� INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT oF TxE SUPPLIER, OR THE SUPPLIER'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE SUPPLIER'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIlVITT THE RIGHTS OF THE CTTY OR THE SUPPLIER (INCLUDING, BUT NOT LIlVI[TED TO� THE ffiGHT TO SEEK CONTRIBiITION� AGAINST ANY THIItD PARTY WHO MAY BE LIABLE FOR AN INDEMN�'IED CLAIM. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in the solicitation document, The successful firm sha11 procure and maintain insurance of the types and in the minimum amounts acceptable to the City of Denton. The insurance sha11 be written by a company licensed to do business in the State of Texas and satisfactory to the City of Denton. A. General Requirements. i. The Supplier shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for.the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Supplier shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contxact execution and within fourteen (14) calendar days a$er written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Supplier must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Supplier shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Supplier hereunder and shall not be construed to be a limitation of liability on the part of the Supplier. iv. The Supplier must submit certificates of insurance to the City for all subcontractors prior to the RFP 5115 subcontractors commencing work on the project. v. The Supplier's and all subcontractors' insurance coverage shali be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: - City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 vii. The "other" insurance clause shall not apply to the City where the City is an additional insured shown on any policy. It is intended that policies required in the Coniract, covering both the City and the Supplier, shall be considered primary coverage as applicable. viii. If insurance policies are not written for amounts agreed to with the City, the Supplier shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it shall follow the form of the primary coverage. ix. The City shall be entitled, upon request, at an agreed upon location, and without expense, to review certified copies of policies and endorsements thereto 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 requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Supplier. � xi. The Supplier shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. xii. The Supplier shall be responsible for premiums, deductibles and self-insured retentions, if any, stated in policies. All deductibles or self-insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Supplier shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage's indicated within the Contract. aciv. The insurance coverage's specified in within the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Supplier. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Supplier wluch arises under or concerns the Coniract, or which could have a material adverse affect on the Supplier's abiliTy to perform thereunder, the Supplier shall give written notice thereof to the City within ten (10) calendar days after receipt of notice by the Supplier. Such notice to the City shall state the date of notification of any such claim, demand, suit, or other action; the names and addresses of the claimant(s); the basis thereof; and the name of each person against whom such claim is being asserted. Such notice shall be delivered personally or by mail and shall be sent to the City and to the Denton City Attorney. Personal delivery to the City Attorney shall be to City Hall, 215 East McKinney Street, Denton, Texas 76201. 34. NOTICES: Unless otherwise specified, all notices, requests, or other communications required or appropriate to be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after postmarked if sent by U.S. Postal Service Certified or Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the 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 attention of the Purchasing Manager. RFP 5115 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Supplier to the City shall become property of the City upon receipt. Any portions of such material claimed by the Supplier to be proprietary must be clearly marked as such. Deternunation of the public nature of the material is subject to the �exas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Supplier represents and wanants 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 specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind of any third party; that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables arid the Supplier does not know of any valid basis for any such claims. The Supplier shall, at its sole expense; defend, indemnify, and hold the City hannless 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 assooiated with the City's' ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) the Supplier's breach of any of Supplier's representations or warranties stated in this Contract. In the event of any such claim, the City shall have the right to monitox such claim or at its option engage its own separate counsel to act as co-counsel on the City's behalf. Further, Supplier agrees that the City's specifications regarding the deliverables shall in no way diminish Supplier's warranties or obligations under this paragaph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Supplier. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Supplier may require access to certain of the City's and/or its licensors' confidential information (including inventions, employee information, trade secrets, confidential know-how, confidential business information, and other information which the City or its licensoxs consider confidential) (collectively, "Confidential Information"). Supplier aclrnowledges and agrees that the Confidential Information is the valuable property of the City and/or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and/or its licensors. The Supplier (including its employees, subconiractors, agents, or representatives) a�ees 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 urider this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other governmental authoriTy with proper jurisdiction, provided the Supplier promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Supplier agrees to use protective measures no less stringent than the Supplier uses within its own business to protect its own most valuable information, which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information. 38. OWNERSffiP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Supplier agees 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 specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Supplier agrees that upon their creation, such deliverables shall be considered as work made-for-hire by the Supplier for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the City's sole or joint ownership of any such deliverables arising by virtue of the City's sole or joint authorship of such deliverables. Should by operation of law, such deliverables not be considered works made-for-hire, the Supplier hereby assigns to the City (and agrees to cause each of its employees providing services to the City hereunder to execute, aclrnowledge, 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 Supplier agrees to execute, acknowledge, and deliver and cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver a work- made-for-hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. - RFP 5115 � C. Additional Assignments. The Suppliei further agrees to, and if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work registration, trademark registration and/or protection, letters patent, or any similar rights in. any and all countries and in order to assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and interest in and to the deliverables. The Supplier's obligations to execute, acknowledge, and deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shall continue after the ternunation of this Coniract 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 re�orts submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Supplier shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. 41. NO CONTINGENT FEES: The Supplier warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Supplier for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Supplier, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The City may, by written notice to the Supplier, cancel the Coniract 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 fa�orable treatment with respect to the awarding or amending or the making of any determinations with respect to the performing of such contract. In the event the Contract is canceled by the City pursuant to this provision, the City shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by the Supplier in providing such gratuities. 43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No offi�er, employee, independent consultant, or elected official of the CiTy who is involved in the development, evaluation, or decision-making process of the performance of any solicitation shall have a fmancial 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�cpressed 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 Contract shall not be construed as creating an employer/employee relationship, a partnership, or a joint venture. The Supplier's services shall be tho'se of an independent supplier. The Supplier agrees and understands that the Contract does not grant any rights or privileges established for employees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker's compensation, or any other CiTy employee benefit. The City shall not have supervision and control of the Supplier or any employee of the Supplier, and it is expressly understood that Supplier shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. 45. ASSIGNMENT-DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Supplier and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Supplier without the prior written consent of the City. Any attempted assignment or delegation by the Supplier shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it RFP 5115 being the intention of the parties that there are no third party beneficiazies to the Contract. 46. WANER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Supplier or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Coniract 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 fnal, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term used in the Contract. Although the Contract may have been substantially drafted by one pariy, it is the intent of the parties �hat 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. DISPiJTE 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 party shall include, at a minimum, one (1) senior level individual with decision-making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties ha�e not succeeded in negotiating a resolution of the dispufe, they will proceed directly to mediation as described below. Negotiation may be waived by a written. agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they clioose 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 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 Altemative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thiriy (30) calendar days from the date of the first mediation session. The City and the Supplier will share the mediator's fees equally and the parties will bear their own costs of participation such as fees for any consultants or attomeys they may utilize to represent them or otherwise assist them in the mediation. �50. JiJRISDICTION 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 jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITI': The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall 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 RFP 5115 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 NewYear'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 fa11s on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, it will be observed on the following Monday. Normal hours of operation shall be between 8:00 am and 4:00 pm, Monday through Friday, excluding City of Denton Holidays. Any scheduled deliveries or work performance not within the normal hours of operation must be approved by the City Manager of Denton, Texas or his authorized designee. 53. SURVIVABILITY OF OSLIGATIONS: 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 Adminisiration List of Parties Excluded from Federal Procurement and Non-Procurement Programs, the State of Texas, or the City of Denton. 55. EQUAL OPPORTUNiTY A. Equal Employment Opportunity: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice. No person shall, on the grounds of race, sex, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimuiation under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT-SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable, in addition to the specific federally funded requirements. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Supplier, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or (2) For components manufactured by the Supplier, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means- (1) An unmanufactured end product mined or produced in the United States; or RFP 5115 (2) A.n 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 a�d reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. iv. "End product" means those articles, materials, and supplies to be acquired under the contract for public use. v. "Foreign end product" means an end product other than a domestic end product. vi. "United States" means the 50 States, the District of Columbia, and outlying areas. B. The. Buy American Act (41 U.S.C. 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 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 Supplier shall deliver only domestic end products except to the extent that it specified delivery of foreign end products in the provision of the Solicitation entitled "Buy American Act Certificate". 57. RIGHT TO INFORMATION: The City of Denton reserves the right to use any and all information presented in any 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 supplier or supplier to be licensed by the State of Texas, any and all fees and ta�ces are the responsibility of the supplier. 59. PREVAII�ING WAGE RATES: All suppliers will be required to comply with Provision 5159a of "Vernon's Annotated Civil Statutes" of the State of Texas with respect to the payment of prevailing wage rates and prohibiting discrimination in.the employment practices. http_//www.access. gpo. gov/davisbacon/tx.html 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with a11 State, Federal, and Local laws and requirements. The Supplier must comply with all applicable laws at all times, including, without limitation, the. following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The 5upplier 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: Supplier shall demonstrate on-site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W-2's to common law employees. Supplier is responsible for both federal and State unemployment insurance coverage 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 withholding requirements. Supplier shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Supplier's omission or breach of this Section. 62, DRUG FREE WORKPLACE: The supplier shall comply with the applicable provisions of the Drug-Free Work Place Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug- free work environment; and the final rule, government-wide requirements for drug-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 thereof, including any amendments to the final rule that may hereafter be issued. 63. SUPPLIER LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Supplier shall be liable for all damages to government-owned, leased, or occupied property and equipment caused by the Supplier and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any RFP 5115 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. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Supplier shall not be � responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Supplier will be excused from any further performance or observance of the requirements so affected for as long as such c�rcutnstances 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 Pxocurement 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 Pariy to require performance by another Party under the Contract will not affect the right of such Pariy 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 WANER OF SOVEREIGN I1VIMiTNITY: The Parties expressly agree that no provision of the Coniract is in any way intended to constitute a waiver by the City of Denton of any immunities from suit or from liability that the City of Denton may have by operation of law. 67. RECORDS RETENTION: The Supplier shall retain all financial records, supporting documents, statistical records, and any other records or books relating to the performances called for in the Contract. The Supplier shall retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters are resolved, whichever period is longer. The Supplier shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of Texas, and any federal governmental entity that has authority to review records due to federal funds being spent under the Contract. RFP 5115 Eghibit B Special Terms and Conditions The Quantities indicated on Exhibit C 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 shall be submitted in writing to dentonpurchasing(a),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. Contract Term The contract term will be one (1) year, effective from date of award. The City and the Awarded Contractor shall have the option to renew this contract for an additional two (2) one-year periods. The Contract shall commence upon the issuance of a Notice of Award by the City of Denton and shall automatically renew each year, from the date of awaxd by City Council, unless either party notifies the other prior to the scheduled renewal date. At the sole option of the. City of Denton, the Contract may be further extended as needed, not to exceed a total of six (6) months. Price Escalation and De-escalation Prices agreed upon during the RFP process must be firm for a period of ninety days from date due date of the proposal. Any request for price adjustment must be based on the, U.S Department of Labor, Bureau of Labor Statistics, Producer Price Index (PP� for Iron, Steel Pipe and Tube from purchased steel (PCU331210331210) as found at (http://www.bls.gov/ppi/home.htm). The price will be increased or decreased based upon the monthly percentage change in the latest published PPI. The escalation will be determined monthly. Should the PPI change exceed a minimum threshold value of +/-1%, then the stated eligible prices shall be adjusted in accordance with the PPI change. The supplier should provide documentation as percentage of each cost associated with the unit prices quoted for consideration. Total Contract Amount The contact total for services shall not exceed $2,140,000 per term. Pricing shall be per E�ibit C attached. RFP 5115 EXHIBIT C Supplier's Proposal RFP 5115 Pricing Sheet for Galvanized Steel Structures for Substations Proposer. R & C Welding EsUmated Fifst Year Estimated Total Delivery ITEM # UOM DeSC�lptlOfl Annual Quanfity Unit Cost Annual Cost (Weeks ARO) Sauare Tube and I-Beam Sfructures Structures fincludinq assemblv bolts) 6 EA 13.2kV 3-phase bus support 6 $799.82 $ 4,798.92 5-6 7 EA 138kV single-phase CT pedestal 6. $603.17 $ 3,619.02 5-6 8 EA 138kV single-phase PT pedestal 57 $1,078.03 $ 61,447.71 5-6 9 EA 138kV single- phase high bus pedestal 42 $812.99 $ 34,145.58 5-6 10 EA 138kV single- phase low bus pedestal 75 $557.52 $ 41,814.00 5-6 11 EA 138kV high bus disconnect switch stand 32 $3,306.72 $ 105,815.04 5-6 12 EA 138kV low bus disconnect switch stand 27 $2,682.14 $ 72,417.78 5-6 13 EA Transformer bar grating and support members 6 $12,953.60 $ 77,721.60 5-6 Anchor Bolts and Temnlates 14 EA Anchor bolts for Foundations F2 and F10 (1 "m x 2'-6") 1372 $17.70 $ 24,284.40 4-5 15 EA Anchor bolt template for Foundation F2 (Template TP3) 60 $16.15 $ 969.00 4-5 16 EA Anchor bolt template for Foundation F10 (Template TP6) 15 $9.43 $ 141,45 4-5 Specia/ Construction Items 16 EA Bearing plate for equipment shelter foundation (not galvanized) 68 $110.97 $ 7,545.96 4-5 17 EA 138kV EV2 switch outrigger (aluminum) 96 $175.62 $ 16,859,52 6-8 18 EA Switch spacer plate 27 $10.81 $ 291.87 5-6 Additional Structure or Strucfure Modification Pricin4 19 Ib Price change per pound for decreasing structure height 300 $1.36 $ (408.00) 20 Ib Price change per pound for increasing structure height 1000 $1.36 $ 1,360.tl0 21 Ib Average price per pound for adding a new structure 2000 $1.36 $ 2,720.00 Fabricator: of Fa6ricating Facility: R&C Gering, NE Galvanized substation fabrication experience: years 2� Years of experience providing galvanized, tapered tubular steel structures to utilities in the United States of 5 America: years a. Number of similar substation steel projects shipped in the last 18 months: 40 b. Percentage of shipments that did not ship on time: 3 c. Average delay for shipments that did not ship on time: (days) ' 5 If the fabricator is foreign, state the name and location of the facility in the US that will be used in the eve.nt that repairs or corrections are necessary: there any exceptions to the specification? Invoice Paid in 20 d Invoice Paid in 15 d Invoice Paid in 10 d NO Additional Discount % 0.00% 0.00% 0.00% EXH181T C Supplier's Proposal CITY OF D�NTON RF�' FOR SUPPLY OF GALVANIZED STEEL STRUCTUR�S FOR SUBSTATIONS BUSINESS OVERVIEW QUESTIOI�INAIRE AND FORMS I. Contractor Name: R F� L. G�� +G� � n, i' �'�.�1 � G<,��rb �..L, . . 2, Address (Principal Place af Busin�ss): �`�/%D �r�h-i GdGsn��y Gi�� ioct�� (�Er'r n� �Vi� �S> 13�� 3. Does your company ha�e an establisk�ed physical presence in the State of Texas, oi the City of Denton? �j � 4. Tax Payer ID#: ' 1-(� 7-- 4(v � 7�6 �7 . 5. Bmail Acldress of Primaty contact: �-�K�CI ��u�e �G�'^ J' ��»� 6. WebsiteAddress: �ct�e �r�Y��G�' C�� 7. Talepb.one: .�j�'�'� �- �� 5�� l� �'� I s.. F�: 3t� ��.1�� r ��7 9, Otlz.er Locations: 10. Organization C1ass: Pai�tnership Indi 'dual ' �e rafion As�ociation 1�1, Date Es#ablished: j�' f�f ��'; � , � 12. Fortrzer Business Name: � � f�- � � .. 13. Date of Disso�ution; 0� `c'1 � � � � � � . . . i � ... 14. . Subszdiary of � � . . . � 15. I�istokically Undezutilized Business: Yes o No � . : . � . . � , . � ib. Principals and �fficexs; . �. . � .. - , . �.. �� Please deta�l resporisib�li#les w�th the name of each principal, or afficer. ��7,. Key Personnel and�Resp�nsibilities: � � � . � . . �. : �Please detail.responsibilities with the name �of.each key personnel. .-. . � : ... : . . � . �. � . � �. �.PAGE49 �F:RFP:�51.15 .'.. ,I.: .. �.;:�;:�. �-:.�..��.:' � ��.��. �.. . . � . � �. 0 EXHIBIT C Supplier's Proposal CiTY Oit' DENTON RFP FOR SUPPLY OF GALVAI+IIZED STEEL STRUCTUR�S FOR SUBSTATIONS 18. Number of Parsonnel by D�scipiine: Discipline _ Number of Staff # Registered 19. Has your company filed or been named in any litigation involving your company and the . Owner on a con�.�act within �he Iast five years under your current company name or any - other company na�ne? If so provide details of tha issues a�d xesolut�on if available. Include lawsuits where Owner was invalved. � f� 20. Please provide at leasi (3) tivee references (pj�eferably mrntic�palrties) and cont�ac# amounts. Inolude project descripiian, eontactnames, position, and organization name and t�lephone numbex for each reference listed. See Attachment F. 21. Have you �evex defaulted on or failed to complete a contract under your currant company name or any othei company name? If so, where and why? Give name and ielephone numbex of Owner. � (�� 22, Have you ever had a cont�aot terminated hy the Ownex? If so, where arid why7 Give name and telephone number (s) af Owner (s). i�� . : . . .. : .: . . 23. Has �your c.oxripariy.ixnplemented an�Employee,;Heal�li'�and �afeiy Pxog%am��cotripliai�t::,evith 29 � �FR.:19.10.".Genexal:.�Industry.Stanaards" ant3%�t�29. CFR��1926 "General�.Conatruction �Staridarcls" as �they apply io your Cpmpany's .cpstomaxy:.actzv.iiies?� Y� �j . htt}�•//www osha�ov/pls/oshaweb/o,wasrch search foi7n?p doc tvpe=ST � ANDARDS& toc � ia, ei=1& ka alue=1926 . . .., , . . . � : . . • . . . . , • � . . . . . � . . .. . , . .... � � � : �: PAG� 42-OF RFP.#5115. : `.' ;: ..._ �, � , � . , � � � . EXHIBIT C Suppiier's Proposal EXHIBIT C 5upplier's Proposal ' . 1 • y_/'::.�� r � ,�,� � ■ i � �� F�BRI�4TIC�N 88fl E, Count� Club Bd„ Gerin$, NE 69341 308-B35-0081 � �8x - 30&685-71II PROPOSAL TO: Ciiy of Denton ATTN: DATE; December 91, 20 t 2 PRO]ECT: Substation Steel LOCATION: Denton TX. We propose #o furnish as per your specifications, subject fa conBitions herein and on reverse side of this proposa�, the•following items. Pleased to quote per.prints, . . All hot dipped galvanized. . � Price fncludes �1] connection hardware, Price Is based qn tuck loads of at feast 40,000 Ibs � . � Loads less tha:n 40,000, freight cost wifl be adjusted .{ Rate of adjustment .08 cenfi Ib.) Thanks � � � � . Jack . : � � � � � . , � . � . . � . � � �AUthorized sfgnature Jack.McKnighk_ � � : . . � • We recommend Ehat all tdfical. items be Independentiy tested and / or englneere� to assure the buyer that the wark, material and . '• � � equlpmenY are:suit�ble.foryour rteeds.. IS is expressty understood that any�technfcal advice furnished hy R&C Welding & Fabrlcadon ... . . Inc, and its empEoyees with respect to the use of its goods or services !s given w[thout charge, and seller assumes no obfigation or . � .� . . �tiabiqty. Po� the.adyic�. 9iven, or resuits. . . ' . . . � . ' . . . � . �.�..... �... .. , :.. .: . . � . . . . . . � . . •. . . .: . � .. ... . •..•. �.....�.. . . . . . . ..: .. .. . .. . . . : :. . . • • . . . ;. •�. Acceptance:of Propasal . . < . . • . . . . ..�.. The above, price5,�specifroalions and conditions are satisfactory and are.hereby accepted. You are authorizad io iio ihe � . '�:, :work as.sp�cifed.. The�terms an�d condl�ions on the reverse side of this proposal are a:part.af ihis p�oposal. ' . :.' � �. - �. � �Accepted: � ' . . . .: � : � . . . . . � : . . . -. : ,I : . . . . . .. . . . , . . : : � ; . . . . . . . '. � � . .Signakare:� ' � � � � � � � ' � : flata: . . , . `� �� . . � � ... . � � � �. : � . . � . � � . ,