2013-052ORDINANCE NO. 2� 13-�52
AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR,
AUTHORIZING, AND APPROVING THE EXPENDITURE OF FUNDS FOR THE
PURCHASE OF SANITARY SEWER ROOT CONTROL SERVICES FROM DUKE'S
ROOT CONTROL, INC., WHICH IS AVAILABLE FROM ONLY ONE SOURCE
AND IN ACCORDANCE WITH CHAPTER 252.022 OF THE TEXAS LOCAL
GOVERNMENT CODE SUCH PURCHASES ARE EXEMPT FROM THE
REQLJIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN
EFFECTIVE DATE (FILE 4553-PURCHASE OF SANITARY SEWER ROOT
CONTROL SERVICES FOR THE WASTEWATER COLLECTIONS DEPARTMENT
IN THE ANNUAL ESTIMATED AMOUNT OF $90,000 FOR A THREE YEAR
TOTAL NOT TO EXCEED $270,000).
WHEREAS, Section 252.022 of the Local Government Code provides that
procurement of items that are only available from one source, including; items that are
only available from one source because of patents, copyrights, secret processes or natural
monopolies; films, manuscripts or boolcs; electricity, gas, water and other utility
purchases; captive replacement parts or components for equipment; and library materials
for a public library that are available only from the persons holding exclusive distribution
rights to the materials; and need not be submitted to competitive bids; and
WHEREAS, the City Council wishes to procure one or more of the items
mentioned in the above paragraph; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAlNS:
SECTION 1. The following purchase of materials, equipment or supplies, as
described in the "File" listed hereon, and on file in the office of the Purchasing Agent,
and the license terms attached are hereby approved:
FILE
NUMBER VENDOR AMOUNT
4553 Duke's Root Control, Inc. $270,000
SECTION 2. The City Council hereby finds that this bid, and the award thereof,
constitutes a procurement of items that are available from only one source, including,
items that are only available from one source because of patents, copyrights, secret
processes or natural monopolies; films, manuscripts or boolcs; electricity, gas, water and
other utility purchases; captive replacement parts or components for equipment; and
library materials for a public library that are available only from the persons holding
exclusive distribution rights to the materials; and need not be submitted to competitive
bids.
SECTION 3. The acceptance and approval of the above items shall not
constitute a contract between the City and the person submitting the quotation for such
items until such person sha11 comply with all requirements specified by the Purchasing
Department.
SECTION 4. The City Manager is hereby authorized to execute any contracts
relating to the items specified in Section 1 and the expenditure of funds pursuant to said
contracts is hereby authorized.
SECTION 5. The City Council of the City of Denton, Texas hereby expressly
delegates the authority to take any actions that may required by the City of Denton under
File 4553 to the City Manager of the City of Denton, Texas, or his designee.
SECTION 6. This ordinance shall become effective immediately upon its
passage and approval.
PASSED AND APPROVED this the � day of � 2013.
M . O HS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: ►
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
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C�N`�'RACT BY AND BETWEEN
CITY OF DENTON, TE�AS ,AND DUKE'S CONTROL, IIVC.
FYLE �553
THIS CONTRACT is made and entered into this ��'rrz day of � .D., 20i,�,
by and be%veen Dt�ke's Root Cotttrol, Inc. a carporation, whose address is l0�awatha Blvd,
West, Syracuse, NY ]320I, heieinafter referred to as "Contractor," and the CITY OF
DENTON, TEXAS, a hoine rule municipal coi�oration, hereina�tex• x•eferred to as "City," to be
effective upon approval of the Denton Ciry Council and si�bsec�uent exect�tion of this Contract by
the Denton City Manager or his dnly autlxorized desi�nee.
For and in consideration of the covenants and agreements contained herein, and for the
mutual bene�ts to be obtained hereby, the parties agree as folIows:
SCOPE OF SERVICES
Contractor shRll provide products and or services in acca�dance vc+ith the Contractor's
propasal in response thereta, a copy of tivl�ich 'rs attached hereto and incorporated he�•ein far all
puiposes as Exhibit "E". `�'he CantrACt consists of this written agreement and tlte followi��g
items which are attached hereto and incorporated herein by refet•ence:
(a) City of D�nton Standar� Terms and Canditions (E�chibit'�A");
(b) Special Terms and Conditions (E�Iiibit "B");
(c) Insut�ance Requirements (�Yhibit ��C");
(d} Form CIQ — Conflict of Interest Questionnaire (E�I�ibit "D");
{e) Contractor's Pcaposal. (Exhibit "E");
These documents make up the Contract docurnents and �vhat is called far by one shall be
as binding Rs if callect for by all. In the event of an inconsistency or canflict in any of the
provisions of the Contract doct�ments, the inconsistency or conflict s1�a11 be ��esotved by giving
preeedence first to the wcitten a�reement then to the contract daeurnents in the order in which
they are listed above. These documents shall be raferred to collectively as "ContracE
Documents."
File #�553 Page 1 of 27
IN WITNESS WHEREOF, the parties of thase presents have execirted this agceement in
the year and day first above tivriiten.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
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APPROVED AS TO LEGAL F�RM:
ANITA BURGESS, CITYATTORNEY
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BY: ��-
CQNTRA TO
BY:
THORIZED SICsNATURE
Date;
Name: William J. Anderson
Vice President
315-472-4781
PHONE NUIViBER
bill@dukes.com
EMA7L AbD1�SS
CrTY OF DENTON, TEXEiS
BY
GEOR L� C. CAMPBELL, CITY MANAG�R
Date. Q2�/� ��0%�
File # 4553 Page 2 of 27
Exhibit A
Sfanda�•d Prrrchase Terms a�id Conditions
These standard Tertns and Conditions and the Terms and Canditions, Specifications, Draivings
and other requirements included in the City's solicitation Are applicable to Contracts/Purchase
Ordars issued by the City hereinafter referred to as the City oc� Buye�� and tlie SeIle�• herein after
referred to as the Bidder, Contractor or St�pplier. Any deviations must be in 4vriting and signect
by a repres�ntative of the City's Procucement Depaitment and the Supplier, No Terms and
Conc�itions contained in the Sellers Solicitation Res�onse, Invoice or Statement sliall seive to
tnodify the terms set Forth hereiii. If there is a conflict between tlie pz•ovisions on the face of the
Contract/P�zrchase Order these written provisions '�vill take precedence,
gy suhmitting A►� Offer in response to #he Salicitation, the Coniractor agrees that tl�e Contract
shall be governed by tiie followin� tertns and conditions, �anless ea;ceptions are duly noted and
fi3lly negotiated.
l, CONTRACT�R'S OBLIGATIONS. The Contcactor shall fiiliy and timely provide all
deliverables described in the Solicitation and in the Cont�•actor's Offer in strict accordance �vith
the terms, covenants, and conditions of the Contract and all applieable Pederal, State, and local
laws, rulas, and regulations.
2, EI'F�CTIVE DATE/T.CRM. Unless other�vise speci�ed in the Solicitaiio�l, this Contract
shall be effective as of the date the cantract is signed by the City, and shall continue in effact
urrtil all obligations are performed in accordance witl� tlze Contract.
3. INVOYCES:
A. The Contr�ctor shall submit sepacate invoices in duplicate on each purehase orde�� o�• purohase
release afteY• each delivery. If partial shipments or deliveries are authorized by the City, a
separate invo�ce must be sent for each shipment or de�ivery made.
B. Proper Ynvoices must inclucle a unique invoice numbea•, the purc�►ase o�•cler or cie�aveiy
order number and tlye master agreement �tuml�er if appIicable, the De�artmei�t's Name,
anci the name of the poiut of contact foy the Depart�nent. In�oices shall be itemized and
transportation charges, if any, shai] be listed separately. A copy af the Uill of lading and tha
freight waybill, �svhen applicable, shall be attached to the in.voice. `�'}ae Conh�actor's narne,
temiitance address and, if applicable, the tas identification number on the invoice must exactly
match the inforination in the Vendor's registration with the City. Unless other�vise instrt�cted in
wx�iting, the City may t�ely on the t•emittance address specified on the Coniractar's invoice.
C, Invoices for labot� shall includ� a copy of all time-she�ts �vith trade laboi• rate and deliverables
order number clearly identified. Invoices shall �Iso include a tabulation of work�hours at the
appropriate rates and grouped by work order nt►mber. Tima billed for iabor shail be limited to
hours actually worked at the work site.
D. Unless otheiti�ise expressty auihorized in the Contract, the Cont��actor shall pass through alI
S�►bcontcact and otl�e�• authorized expenses at actual cost without mai•kup.
E; �'edei�al excise taxes; State taYes, or City sales taYes must riot be incliided iri t�ie zi�voiced
amount,
The City tivill fui�nish a tax eYemption certificate upon rec�uest.
File # 4553 Page 3 of 27
4. PAYMENT;
A. All proper invoices need to be seatt to Accounts Payable. Approved invaices will 6e paid
within thit�ty (30) calendar days af the City's receipt of the deliverables or of tl�e invoice being
a•eceived in Accounts Payable, whichever is later,
B, If payment is not timeiy made, (per paragraph A); i�rte��est shall acci�ue on t�xe unpaid
UaIance at the lesser of tlie rate specified i�i Texas Gor�ernment Code Section 2251..025 0�•
f�18 IllitX1I1111111 YRFVfIIl rate; excepf, if payme��t is ttot timely znade �'or a reason for which the
Ciiy may withliold payment hereiuidei•, iuterest sliall nof acc�•ue iuitil te�i (10) cale�idar
days after tlie groiu�ds for withholding payment h�ve been resolved.
C. If pat-tial shipments or deliveries are atxthorized by the Ciry, the Coi�tractor rvill be paid for the
partial shipment or delivery, as stated above, provided tliat the invoice matclies the shipment or
cteliveiy.
D. The City may rvithhold or set off the entice payment or parf of any payment otheitivise chie the
Contt•actor to st�ch extent as may be necessary on accaunt of
i. cieliveiy of defective or non-confo�•ming delive�•ables by the Canti�actor;
ii. third party elaims, whieh are not eovered by the insucance which the Contractor is
requi�•ed to
provide, are iiled or reasonable evidence indicating probable filing of such claitrts;
iii. failure of the Contz�actoz• to pay Subcon#�acto��s, or fox• labor, materials o�• equipment;
iv. damage to the pt�ope�•ty of the Ciiy or the City's a�ents, employees or contractors,
rvhicl� is not covered by insurance required to be provided by tl�e Contractor;
v, reasonable evidence that the Contractor's obligations will not be completed witl�in the
time speciiied in the Contract, and thai the unpaid balance would not be adequate to
cover actual or liquidated damages foc the anticipated delay;
vi. failure of the Contractor to submit proper invoices with p�uchase order mimber, wiih
�11 required attachments and supporting docittnentation; or
vii, failure of the Contractor to connply with any mate��ial p�•avisian of the Contract
Documents,
E. Notice is hereby given that any awarded Contractor who is in arrears to tl�e Ciry for deiinquent
taxes, the City may offset indebtedness otived the City through pay�xtent tivithl�olding,
F. Payment will be made by check unless the pai�ties mutually agree to payment by credit card or
alectconic t��ansfec of fu��ds. The Contractor agrees tliat tfiere shall be no additional charges,
snrcharges, or penalties to the City for payments made by credit card or electronic fiinds transfer.
G, The awarding or continuation of this contraet is dependent upor► tha availability of f�inding,
The City's payment obligations are payable only and soleiy fi•om fi�nds Appropriated and
available fox• this contract. The absence of Appropriated or other la�vfiilly available fiinds shall
render the Contraet nutl and void to the extent funds are not Appropriated ot� availAble and any
deli�verables delivered but tmpaid shall be retui�ned #o the Co�ihactar. The City shall p►•ovide the
Contractor �vritten notice of the failure of tY�e City to make an adequate Appropriation for any
fiscal year to pay the amounts dt�e unde�• tha Contz•act, ar the ��eduetion of any Appropiiation to
an a�nount insuf�cient to permit the City to pay its obligations under the Contract. In the event of
none or inadequate appropriation of funds, there wili be no penalry nor removal fees charged #o
the City.
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5, TRAVEL EXP�NS�S: All travel, lodging and per diem eYpenses in connection with the
Contract sl�all be paid by the Contractor, unless o#hettivise stated in tk�e contract terms. �
File # 4553 Pa�e � of 27
6. I�'INAL PAYM�NT ANll CLOSE-OUT:
A. If a DB�/MBE/WBE I'rogram Plau is agreed to and the Contractoc lias identified
SuUcontractars, tlie Contractor is required to submit a Contract Close-Out MBE/WBE
Compliance Report to the Purchasiiig Manager no later than the 15t1i calendar day after
completion of all tivoc�k under the contz�act. Final payment, retainage, or both may be witliheid if
tlae Contx•actor is not in compliance with the requirements as accepted by the City.
B. The making and acceptance of final payment tivill constitute:
i, a waiver of all claims by tiie City against the Contractor, except claims (1) which have
been previously asserked in tivriting and nat yet settled, (2) arising fi•om defective work appearing
af�ei• final inspection, (3) arising from failure of the Contractor to comply with the Contract or
the terms of any warranty speci�ed lierein, {4) arising fi•om the Cantractor's continuing
obligations �ulder the Contract, inclt�ding but noi limited to indemnity and tivarx�anty obligatio��s,
or (5) arising under the City's rigE�t to audit; and ii. a��aiver of atl elaims by the Contractor
against the City other than those p�eviously asserted in writing and not yet settied.
i. Tt[G�IT T� AUDIT:
A. The City sl�all have the r7ght to audit alid �nake copies of the books, records and computations
pertaining ta tl�e Contcact. The Contractor shall retain such boofcs, records, documents and other
evidence pec�taining to the Co�ltract periad and flve years the�eafter, except if an audit is i�i
progress or audit findings are yet unresolved, in wllich case records shall be kept until all audit
taslcs are completed and resolved. Tl�ese books, recards, documents and other evidence shall be
available, with�n ten (10} business days af wriiten request. Furthe�•, the Contraotor shall also
requira all Subcon#ractors, material suppliers, and other payees to retain all books, recox•ds,
documents and other evidence pertaining to the Contract, and to allow the City sitnilai• access to
those docnments. All books and records �vill be inade available within a 50 mile radius of the
City of Denton. The cost of the audit ti�ill be borne by the City unless the audii reveals an
overpayment of 1% or greater. If an ove�•pay�nent of 1% or greate�• occurs, tlie reasonable cost of
the audit, including any travel costs, rnt�st be borne 6y the Cantractor which must be payable
within five {5) business days of receipt af an invoice,
B. Failu��e ta coinply with the provisions of this section shatl be a matex•iai bzeach o�the Contract
and si�all constitute, in tlie City's sole discretian, grounds for termination theceof. Each of the
terms "books" "recards" "doci�rnents" and "other evidence" as used above shall be consti�ued
> > > >
to include d�•afts an�d electeonic files, even if such drafts or electi�onic files are subsequently used
to generate or prepare a iinal p�•inted doci�ment.
8. SUSCONTRACTORS:
A. If the Con#rACtor identi£'ied Subcontracta�•s in a DBE/MBE/WBE agreed #o Plan, the
Contracto�� shall comply with ali requirements approvecl by the City, The Conhactor shali not
initiall�+ employ any S�tbcontractoc except as provided in the Con#eactor's Flan. The Coatractor
shall not substitute any Subcontractor identiiied in the Plai�, u�aless the substitute has been
accepted by tlie City in writing, No acceptance by the City of any Subcontractor shall constitute
a �vaiver of at�y rights or remecfies of the City with respect to defective deliverables pi•ovideel by
a Subcontcactor. If a Plan has been app�•oved, the Contx•actor is additionally required to submit a
.... monthly. Subcontract A.rvards. and Expenditures Report to the. Procurernent IVfanager, no Iater. ...... ....
tl�an the tenth calendar day of each manth.
B. Work perfarmed fok• the Cont�•acto�� by a Subcont��actoi• shal� be ptusuat�t to a written contract
bet�rveen the Con#ractar and Subcontractor, The terms of the subcontract ma� not conflict �r+ith
the terms of the
�'iie # 4553 Page 5 of 27
Contract, and shaIl cot�tain provisions that:
i. tequire tl�at all deliverables to be provided by the Sttbcontractoc be provided in stt•ict
accordance with the provisions, sp�cifications and terms of the Coi�tract;
ii. prohibit the Subcont�'actor frotn fi���ther subcontracting any portion of tlie Contract
r�vithout the pt•ior written consent af the City and tlze Cont�•acto��. The City may requiie, as
a conditian to such fi�rt�er subcontractin�, that t�e Subcontractor post a payment bond in
form, substance and amoiznt acceptable to the Gity;
iii. require Subcontractors to, snbmit all invoices and appiications for payments, incltic�ing
Any eiaiins foc additional payments, damages or other�vise, to the Cont�actor in s��fficient
time to enable the Con'tracto�• to iacl�tde same with its invoice or application for payment
to the City in accordance �vith the terms of the Cantract;
iv. rec���ire that all St�bcontractors obtain and maintain, th�oughout the tea•m of theiz•
contract, insurance in the type and amounts specified for the Contractor, �vith the City
being a named insured as its inteE�est �hall appear; and �
v, require that t�ie S�ibcon�actor indemnify and hold tlie City liaz•mlass to the satne axtent
as the Contractor is required to indemniFy the City,
C. The Contractoc shall be fally res�anszbla to the City for alI acts anci omissions of the
Subcontractors just as the Contracto�• is k•espoi�sible foz• the Contractor's own acts and omissions.
Nothing in the Contract shall c��eate for t(ie beneiit of any such Subco►ttraetor any cant��actua)
relationship bet4veen tl�e City and any such 5ubcontractor, nor shall it create any obligation on
the pat�t of the City to pay or to sea #o the payment of any moi�eys due any such Subcontractor
except as may otherwise be required by law.
D. The Contractor shall pay each Stibcontractor its apprapriate share of pa.yments made to tha
Coiitcactor not later thaii ten (10) calendar days after receipt of payment feom tha City.
9. WARRANTY-PRICE:
A. The Cantractor warrants the prices quoted in the 4ffer are no higher fl�an t1�e Contractor's
curt'ettt px ices on ox'ders by others fo� like deliverables under similar terms of p«cchase,
B. The Contractor cartifies that ftza prices in the Offer have been arrived at inctependently
without consultation, communication, or �greement fo�• the purpose of t•estricting competition, as
to any inatter relati�tg to suc�� fees with any other Contractor or �vith any competitor.
C. In addition to any athea• t�emedy available, tlre City may deduct fi�om any amoimts owed to the
Contractor, or otherwise recover, any amou��ts paid for items in escess of the Confractor's
current prices on orders by others for like deliverables �ander similar te��ms of purchase.
10, 'WARRANTY -- S�R'V'CCES: The Contraeto�c wartarzts and repiesents that all services to be
provided the City �inder the Cantract wilI be fi�lly and timety performed in a good and
workmanlike rnanner in accordance with getierally accepted indttstcy standards and pt'aetiees, the
terms, conditions, and covenants of the Contract, and all applicable Federal, State and lacal laws,
t•ules or zegul�tions.
A. The Contt•actor may not limit, exclude or disclaim the foregaing warranty or any; wacr�nty
implied by law, and any attempt ta da so shall be withaut force or effeet.
$.. LTnless othervvise specified in the Contract, the.wat�ranty period shall lie at least one year fi•om
the Acceptance D�te. If duruig the warranty period, one or moce of the above wai•ranties are
breached, the Contractor shall promptly upon ceceipt of demand �erform the services again in
accordauce tivith a6ove standard at na aciditianal cost to the City. All costs incidental to such
additional performance shall be borne by the Cantractar, The City sha11 endeavor to give the
File # 4553 Page 6 of 27
Contractar written notice of the breach of warranty tivithin thirty (30) calendar days of discovex•y
of the breach warranty, but faiauce to give timely natice shall not impair the City's rights under
this section.
C. If the Contractor is unable oc umvilling to perform its seivices in accotdance with the abo'��e
staiidacd as required by tiie City, then in addition to any otl�er available retnedy, tlie City may
reduce the amount of services it may be reqt�ired to pu��chase under the Contract from the
Contractor, and }�ucchase conforming services frotn other sources. In such eveni, tlie Contractor
shall pay to tli� City upon dertta�id tl�e increased cost, if any, incurred by tl�e City to procux•e such
services fi�om another source,
11. ACC�PTANCE OF INCOMPLETE OR NON�CONFORMYNG D�LIVERABLES: If,
insteaci of requu•ing immediat� correctian or remaval aud replacement of defective or no�i-
conforming deliverables, the City prefers to accept it, tha City may do so. The Contcactor shalt
pay atl claims, custs, losse's anc� damages attribtitable to the City's evalu�tion of and
determination to accept sueli defeetive or non-eonfoeming deliverables. If any sucli acceptance
occt�rs priar to final paytnet�t, the City may deduct such amounts as are necessary to compensate
the City far the dimin'rshed val�ie of the defective oi• yion-confoeming deliverables. If the
acceptance accurs after �nal payment, snch amotint will be refianded to the City by tlie
Contractor.
12, RXGHT TO ASSU.�2A1V�C�; �Vhenever one party to the Contcaot in good faith has reason to
questioii the other parry's intent to perform, demand rnay be made to t1�e other party for written
assurance of the intent to pe�•fo�•m. in the event that no assurance is given within th� time
specified after demat�d is made, #ha demanding party may treat this failure as an anticipatot'y
�•epudiation of the Contract.
13, STOP WORK NOT�CE: The City tnay issue an itnmediate Stop Work Notice in the event
tha Con#ractor is abserved performing in a maruier that is in violation of Fedet•a1, State, ar local
guidelir►es, or in a manner that is determined by ti�e City to be unsafe #o either life or property,
Upon notiiication, tl�e Contractor �vill cease ai1 work until notified by the City that the violation
or imsafe eondition has been cor�•ected. The Contractor s13a11 be liable for al1 costs ineurced by
tE�e City as a result of the issuance of sttch Stop Work Notice.
14. D�FAULT: The Contractor shall be in default under the Contr�ct if the Contractor (a) fai3s
to fi�lly, timely and faithfully perform any of its material obligations under the Contract, (b) fails
to provida adequate assurance of perfarmance under Paragraph 24, (c) becomes insolvent or
seeks relief Ltnder d�e banluuptcy laws of the LTnited Sta#es or (d) makes a material
mis�epresentation in Contractor's Offer, or in Any report o�• deliverable rec�uired to be submitted
by #he Contractor to the City.
15, TERIYIINATYOIV' �+"OR CAUSE; In the event of a default by the Cantractoe, the Ci#y shall
have tl�e t•ight to terminate tlie Contract for cai�se, by writtan notice effective ten (10) calendar
days, unless othei�vvise speciited, after the data of sucl� notice, unless the Contractor, �vithin such
ten (.10) . day period, cUres such defaUlt, . or..provides avidence sufficient to prove to the City's ... .
reasonable satisfaction that suci� default does not, in fact, exist, In addition to any other ren.aedy
available under law or in equity, the City shall be entitled to recover a!1 actual damages, costs,
Iosses and espensas, incu�•red by the City as a resuit of the Can�•actor's defal�lt, including,
without limitation, cost af cove�•, reasonable attorneys' fees, court costs, and prejudgment and
File # 4553 Page 7 of 27
post jttdgment interest at the maximum la�v�ul rate. Additioa�ally, irt the event of a default by the
Contcactor, the City may remave the Contractor from the City's vendor tist for tht•ee (3) years
and any Offer submitted by the Cantractoc• may be disquatified for up to three (3) yeacs. All
rights and remedies unde�• the Contract are cumulative and are not exclusive af any other right or
remedy provided by law.
16, TEIiMINATION 'W��'HOUT CAUS�: The City siaall have the x'ight to ter�ninate tlie
Contract, in whole or in part, without cat�se any time upon thi��ty (30) calendar days' peior tivritten
notice. Upon receipt of a notice of termic�ation, ti�e Conteactor shall promptly cease all furthe�•
�vork pursuai�t to the Contract, r�vith such exceptions, if any, specifieci in the notice of
termination. The City shall pay ihe Coiihactor, to the e:ctent of fiinds Appx•opz�iatad or otherrvise
legally available for such purposes, for all goods delivered and sez�vices pe��£ocr�ted and
o6ligatious incurred prior to the date of termination in accordance �vith tlie terms heLeof.
17, FRr�iUD: Fraud�tlent statements by the Contractor on any �ffer o�� in any ��epo��t oc
deliverable reqi�ued to �Ue submitted by the Contractot• to the City shall be grounds for the
termination of the Contract €oc cause by the City and may result in legal action.
18. D�LAYS;
A, The City may ctelay scheduled deiivez•y or ottzer due dates by wt•itten notice to the ContrRCtor
if th� City cleetns i� is in its best interest. if sucl� delay causes an increase in the cost of the work
undet' the Contract, the City and the Contractor shall negotiate an eqtiitable adjustment for costs
incurred by the Contractor in the Contract price and e:��cEite an atr�e��d�nent to the Contract, The
Contcactor must assert its right to an adji�stnient within thit�ty {30) calendar days fi•oin the date of
receipt of the notice af delay. Failure to agree on any adjusted price shall be handled under tl�e
Dispitte Resolutian p�•ocess speci�ed in paragraph �9. However, nadiing in this provision sl�all
excuse the Contractor from delaying the delivery as notified.
B. Neither party s1�a11 be liable for any defauit or delay in the performance of its ob�igations
uuder this Contt�act if, while and to the extent such default or delay is caused by acts of God, fire,
riots, civil commotion, labar disrtiptio�is, sabotage, sovereign condiict, o� any othet• c�use beyond
tkie reasonable control of stECh Pa��ty. In the event of default or delay in conhact performance due
to any of tlle foregotng causes, then the time for completian of the services will be extended;
pcovided, ho�vever, in siich an event, a conference tivill be held within thrae (3) husiness days to
establish � mutually agreea6le periac� of time reasouably iaecessaty to ove��come the effect of
such fail�ue to perform.
19. INDEMNITY;
A. De�nitions:
i. "Ii�demnified Claims" shall include any and all elaims, dem�nds, suits, causes af action,
judgments and liability of every ckiaractez�, type or description, including all reasonable
costs and expenses of litigation, mediation or other alternate dispute resolution
tnecl�aaism, inclt�ding attorney and other pro%ssional fees far: (1} damage to or loss of
the property of any person {inclitding, but not limited to the City, tlte Cont��actoc, tlZeir
respective .agents, ofiicers, .einployees. and st�bcontractors; tlie offieers, agents, and
employees of such subcontractors; anci third pai�kies}; and/or (2) death, bodily injury,
illness, disease, worker`s compensation, loss of services, oz� loss of income o�• wages to
any person (incltEding but not li�nited to the agents, officeFS and employees of the City,
the Contractor, th� Contractot''S SL1�COtltl�actors, and thicd pat�ties}, ii, "Fauft" shall include
F'ile #��53 � Page 8 of 27
the sale of defective or non-conforming delivei•ables, riegliganc�, �viliful misconduct or a
breach of at�y legally imposed strict liability standard.
B. THE CONTRACTOR SHALL DEI'�ND (AT THE �PTION OF THE CITY),
INDEMNIF'Y, AND HOLD THE CITY, �TS SUCCESSORS, ASSIGNS, OI+'FIC�RS,
EMPLOYE�S AND ELECTED OFFICIALS HARA�L�SS I'ROM AND AGAINST ALL
iNDEMNIFI�D CLAIMS _ DIRECTLY ARTSTNG OUT OF, INCIDENT TO,
CONCE�tNING OR TtGSTJLTrN'G T'ROlVI THE FAULT OF THE CONTRACTOR, OR
THE COIVTRACTUR'S AGENTS, �MPLOYEES OR SUBCONTRACTORS, IN TT�E
PERTORMANC� OF TH� CONTRACTOR'S OBLIGATIONS UNDER THE
CONTRACT, l�IOTHING HEREIN SRALL BE DEEI�I�D TO LIMIT TI3� RIG�HTS OF
THE CITY OR '�'�IE CONTRACTOR {INCLUDING, BUT NOT LINIITED TO, THE
RIGHT TO SEEK CONTRIBUTiON) AGATNST ANY THIRD PARTX WHO MAY BE
LIAI3LE FOR AN INDEMNIFIED CLAIM.
20. INSUR.AIVC�: The foliowing insurance requi�•einents are applicable, in addition to the
speci#'ic insurance requirements detaiied in EXHIBIT C The successfiit Contractor shall procure
and inaintain insurance of the types and in the minimum amot�nts acceptable to the City. The
uisurance shall be �vritten by a company licensed to do bUSiness in the State of TeYas and
satisfactory to the City.
A, General Requirements:
i. The Contractor shall at a minimum carry insurance in the types and amounts indic�ted
and agreed to, as stEbmittec� to the C'ity and approved by tha City within the p��ocurement
pcocess, for the d�aratioi� of #l�e Cont�act, incl�zdin� e:ctension options and hold over
periods, and d�iring any vvarranty period.
ii. The Contraetor shall pravide Cei�tificates of Insurance with the covez•age's and
endorsem�nts required to tl2e City as verification of coverage prio� to contract execution
and within fourteen (14} calendar days aftec written request fi•om the City. Tailure to
provide the required Cei�ti�cate of Insurance may s�ibject tke Offer to disqualifeation
from consideration for ativard. The Contractor must also foi�vard a Cet�tificate of
Insut�ance to the City whenever a previously idet�tifed policy period has expu•ed, or an
extension option or hald over period is exercised, as verification of continuing coverage.
iii. The Cont��actor sha11 not commence t�vork t�ntil the requued insurance is obtaitaed and
until such insurance has been reviewed by the City. Approval of insucance by the City
shali not relieve or decrease tlie liability of the Conteactoi• heretGnder and shall not be
construed to be a limitation of liability on the part of the Contractor,
iv, The Cont�actok' mttst submit cei�ificates af insurance to the City for all si�bcontractors
prior to the subcontractors commencing work on the project.
v. The Contractor's and all subcontractors' insucance coverage s1ia11 be written by
companies licensed to d� business in tha State of Texas at the tirne the policies are issued
and shali be writteu by cotnpanies with A,M. Best ratings of A- VII ar better. The Cify
will accept wo►ket's' compensation coverage written by tlte Texas Workers'
Compensation Insurance Fund.
vi. All endorsements naming the City as additional insured, �vaivers, and natices of
..... . cancellation eadorsements as weii ..as ..the Cei�ti�cate .of Tnst►rance . shal� contain the
salicitation num6er and the following ii�fo�•anation:
City of Denton
Nlaterials Management Department
k'ile # 4553 Page 9 of 27
901 B Texas Street
Denton, Te.cas 76209
vii, The "other" insurance clause sl�ail z�ot apply to the City where the City is aii
additional insured shown on any polic�, It is intended that policies t�equiced in tlle
Contract, covering both the City and the Contractor, shall be considered p�•imat�y
covecage as applicable.
viii, If insurance policies are not �vri#teli for amounts agreed to with the City, the
Contractor shall carry Umbrella or Excess Liability Insurance for any differences in
amounts specified. If EYCess Liability Insurance is pt'ovided, it shall �ollo�v the form of
the prima�y coverage,
ix, The City slaat� be entitled, upor� request, at an agreeci upon location, and without
expense, to review cei�tified copies of policies artd eitidorseinents thereto and may make
any reasanable reqiiests for deletion or revision or modi�cation of paxtzcular policy
terms, conditions, timitations, or exchisions except whei•e policy pro�isioi�s a�•e
established by law or a•egatations binding upon eithei• of the parties hereto or the
�mdertivriter on any such policies.
x. The City reserves the right to review the insurance requit�ements set foi�th du�•ing the
effective period of the Contract and to tnake reasonable adjustments to insurance
coverage, litnits, and exch�sions when c�eemed necessary and pradent by the City 6ased
upon changes in statt�tory law, caurt decisions, the claims history of the industty ar
finaucial condition of the insurance company as r�vell as the Contractor.
xi. The Contractor shaIi not cause any insurance ta be canceled nor permit any insurance
to lapse during the te��m of the Cont��act or as required in the Contcact.
Yii. The Contractor shall be responsible for premiums, deductibtes and self-insured
retentions, if any, stated in palicies, All deductibles o�• self-insut•ed cetentio«s shall Ue
disclased on the Cet�tificate of Insiirauca.
xiii. The Contractor shall endeavor to pcovide fhe City thit�ty (30) calendar days' tivritten
notice of erosion of the aggregate limits belo�v ocec�i7ence Iimits for all applicable
covat�age's indicated within the Contract.
xiv, The insurance coverage's specified in within the solicitation and reqturements are
reqi2ired rninimums and aF•e not intended to limit the tesponsibility or liabiIity of tt�e
Contractor.
B, Specifc Covecage Requiremeuts: Specifc insurance requirements are contained in the
solicitation instrument.
21. CLAIlVIS: If Any claim, demand, suit, or other action is asserted a�ainst tlie Cont�•actar r,vhich
arises imder or coneerns the Cont�act, or which coulcl have a material adverse affect on the
Contractoi's ability to perfocm thet�eunde�•, the Contractor shalI give �vritten notice tliereof to the
City within ten (10) calendar days afte�� t�ecaipt of notica by the Contractor. Such notice to the
City shatl siaie the date of notification of any such claim, demand, suit, or other actioii; the
names and addresses of the claimant(s); the basis thereof; and the �iatrze of each person against
whom such claim is being asserted. Such notice shall be delivered personall� or b� mail and
sha11 be. satrt to the City anci to the Denton City Attorney. Personal delivery to.the.City Atto�•aey
shall be to City Hall, 2] S�ast McKinaey Street, Denton, T�xas 76201.
22. NOTIC�S: Uniess otherwise speci�ed, all notices, requests, or other comrnunications
required or appropriate to be given under the Contract shall be in writing and shall be deemed
File #�-553 Page 10 of 27
delivered tluee (3} business days after postmarked if sent by U.S. Postal Service Certifed oi•
Registered Mail, Return Receipt Requested. Notices delive��ed by other means shall be deemed
delivered i�gou receipt by the add�•essee. Ro�ttine communications may be made by frst class
mail, telefax, or othar commercially accepted means. Notices to tlie Contractor shall be sent to
the address speeified in the Coiztractor's Offer, or at suc�� other �ddress as a party may notify the
oti�ei� in wr'tting. Notices ta the City shalI be addressed to tl�e City at 901B Texas Stc•eet, Denton,
Texas 76209 and marked to the attentio�i of the Put'chasing Manager. �
23. R.IGHTS TO BID, PROPOSAL AND CONTI2ACTUAL MATERIAL: All mate�•ial
s�ibmitted by the Contractor ta tfie City sha1l become property of the Cl�.� lljJOi] receipt. Atty
porti�ns of such material claimed by the Conh�actor to be propt•iet�ry must be cleacly marked as
stxch. Deterrnit�ation of the public nature of the material is si�bject to the Texas I'ublic
Inforniation Act, Chaptet 552, An� Texas Government Code,
2�, N� WARRANTY BY CITY AGAINST INFRiNGEMENTS: The Co►itractor represents
and warrants to the City tl�at: (i} tlie Cont�actor shall provide the City goad and indefeasfbie title
to the deliverables and (ii) the deliverables suppiied by the Contractor in accorda��ee with the
specifications in tlte Contract wiil not infi•inge, CI1IECtIY OT COI1tTIbL1tOT1Ij7, any patent, t�•ademark,
copyright, trade secret, or any other intellectual property right of any kind of any third party; ihat
no claims have been made by any person or �ntity wi#h respect to the ownersliip or operation of
the deliverables and the Cantractar does not knor�v of any valid basis for any such claitxts. The
Cont��actor shall, At its sole expense, defend, indemnify, and hold the City harmtess from and
against all liability, damages, and costs (including cout�t costs and �•easonable fees of attorneys
and otkier professionaIs) arising oiit of or resulting fi�om: (i) an� claim that tne City's exercise
anywhere in the �vorld of the rights Associated with the Ciry's' ownership, and if ap�alieable,
lic�ns� rights, and its ase of the deliverables infringes Ehe inteliect�ial propei�ty rights of any third
party; or {ii) the Contractor's breach of any of Contractoc's representations or warranties stated
in this Coiitract. In tha event of any such claim, tl�e City shall have the riglit to monitor s�ich
claim or at its option engage its own separate counsel to act as co-counsel on the City's be�.alf,
Fui�the�•, Con#ractor agrees that the City's specifcations z�egarding tlie deliverables shall in no
way diminish Contractot�'s wart�anties ar obligations �tnder this paragraph and ihe City makes no
warrflnry that the production, development, oc delivery of such deliverables will iiot impaet such
r�varc�anties of Contractor, .
25. CONFIDENTIALZTY: Irz order to provide the deliverables to the City, Contractor inay
requice access to ce��tain of the City's and/or its licensors' confidential infoiinatiou (including
inventions, employee information, trade secrets, confidential kttow-how, confidential business
information, and other information «+hich the City or its licensors consider co�ifldential)
(collectively, "Coniidential Infax�tnation"). Contcactor ackno�vled�es ancl agrees that the
Confidential Information is the val;�able property of the City and/or its licensors and any
unauthorized use, disclosure, dissemination, ar other release of the Confidential Information will
substantially injure the City and/or its licensors. The Contractor (including its amployees,
subeonteactocs, agents, or representatives) agrees that it wilI maintain the Confidentiai
Info�mation in strict conficience and shall.not.disclose, dissetninate, .copy, divi�lge, recreate, or... ... ..
atherwise use the Confidential Information without the prior written consen# of the City or in a
manner not expressly perinitted under this Agieeme�lt, unless tl�e Con�dential Information is
required fo be disclosed by law or an�orde�• of any cautt or other governmental at�tliarity wi#h
proper jurisdiction, provided the Contractor pronnptly nati�es the City before disclosing sEich
Fite # 4553 Page 11 of 27
information so as to peimit the City x'easonable time to seek an appropriate �rotective oa�der. The
Contractor agcees to use protective measut'es no less st�'ingent tlian tiie Contractor uses within its
o�vn business to protect its owt� most valuable infoimation, which protective rneasures shall
L�nder aIl circiimstances be at least reasonable measures to ensi�re the continued confidentiality of
the Confidentiat Information.
2G. OWNERSHIP AND USE �F D�LIVERABL�S: Tlie City shall otivn alI z•igl�ts, titles, and
interests throughout the world in and to the deliverables,
A, 1'atents. As to any patentable subject matter contained in the delivet•nbles, the Contractoi•
agrees to disclose such patentable subject matter to t�ie City. Fui�hat, if t�equested 6� the City, the
Contractoe agrees to assign and, if necessa�y, cause each of its employees to assign the entire
�•ight, title, and interest to speciiic inventions uttdez• such patet�table subject matter to the City and
to e�eeute, aclaiowledge, and deliver and, if necessaiy, cai�se each of its employees to execu#e,
acknowledge, and deliver an assignment of letters patent, in a form to be t•easann6Iy ftpproved by
the City, to ihe City upon request 6y the City.
B. Copyt'ights. As to any deliverables containing copyrightable subject matter, tlte Contractor
agrees that �ipon thcit• creation, such deliverables shall be considex•ed �s tivork made-for-hue l�y
the Contractor fot• the City and the City shall own all eopyrights in and to such deiiverables,
pt•ovided I�or�ever, that nothing in this Paragrapl� 38 shall negate tlie City's sole ar joint
orvnecship of any such deliverables arisitag by vii�tue af the City's sole or joint authorship of such
deliverables. Sliould by opera#ion of la�r, such cfeliverables not be considered r�varks made-for-
hire, the Cont�actor hereby assigns to the City (and agrees to ca��se eacl� af its employees
providing services to the City hereunder to e�cecute, acknovwledge, and deliver an assignment to
the City ofj all �voildwide right, titl�, and interest in and to such deliverahles. With respect to
such work made-for-hire, the Contractor agrees to execute, ackno�vledge, and deliver and cause
each of iis empioyees providing services to the City hereundec to execute, acknowledge, ancl
deli�er a work-made-for-hire agreement, in � for3n to be reasonably approved by the City, to tlie
City �ipon deliveiy of sucl� delive��ables ta the City or at s�ich other titne as the City may request.
C. Additional Assignments. The Contractar fi�rther agrees to, and if applicable, cause each of its
employees to, execute, acknowledge, and deliver all applications, speciiications, oatlls,
assi�ntnents, and all othec instrutttents r�vhich the City might reasonably deetn necessary in order
to apply for and obtain copyright protection, mask work regist�ation, tx•ademark regist�ation
and/ar protection, letters patent, or any similar ��igl�ts in any and all cotintries aiid in o��der to
assign and convey to the City, its successors, assigns and npminees, the sole and exclusive z'ight,
title, and interest in and ta the deliverables. The Contractor's obligations 'to execute,
acknowledge, and delive� (ot� cause to be e.cecuted, acknowledged, and delivered) instruments or
papers such as those described in this Parag��aph 38 a., b., and c. shall continue after the
termination of this Contract with respect to such deliverables. Yn the event the City shouid not
seek to obtain copyright protection, nnask wot�k registration or pateiit proteciion for any of the
delive�•ables, but should desire ta keep the same secret, the Contractor agrees to treat the same as
Confidential InfoY�mation under the terms of Paragraph 37 above.
27. PUBLZCATIUlV'S: All published material and wt'itten a'epoi�s sttbmitted under the Cont►�act
mi�st .6e .originall� developed material unless..otherlvise specificaily provided in the Contz•act.
When material not originally cleveloped �s inclt[ded in a report in any form, tlie souz•ce shalt be
identified.
2$. ADV�RTYSING: The Conhactor shall not advertise o�• publish, without the City's �rior
File # 4553 Paga 12 af 27
consent, the fact tl�at the City has entered into the Conti•act, except #o #he extent requieed by taw.
29, N� C�NTINGENT FEES: Tlie Contracto�• �va�•rants that na persan or selling agency has
been employed or retained to solieit or secu��e the Conta•act tipon any ag�•eement or undei•standiiig
for commissiota, percentage, 6i�okerage, or contingent fee, exceptiug bona fide employees of
bona f'tde established commercial or selling agencies maintained by the Contracto�' for #he
purpose of securing busuiess. For breach or violatio3i of tl�is �varranty, tl�e City sltali have tf�e
right, in �ddition to any other remedy availahte, to cancel tl�e Contt�act wi#haut liability aud to
decfuct from any arrtounts owed to the Contracto�•, or othert7aise recover, tl�e fiill amount of sucl�
commission, perceatage, bt�okeraga or contin�ent fee. �
30, -GRATUITIES: The City may, by written notice to #he Cont�actox�, cancel the Contract
withoi�t liability if it is datef•mined by the City tt�at g��atuities rvere offerecf or given by the
Contractor oi• any agent ot� �•epresentative of the Contractor to any of�cer ar employee of the City
with a view tarvacd securing ttie Contract or sectuin� favorabl� traatment with respect ta the
awarding or amending or the making of any determinations tivith x•espect ta the performing of
stich contract. In the event the Contract is canceled by the City pursuant to this pravision, the
City shall be entitled, in addition to any other rig�its and remedies, to recover or �vithhold the
amount of the cost incurred by the Conh�actor in providing such gt•atuities.
31. PROHIBITI�N .A.GATNST PER$(INAL INTEItCST IN CONTRACTS: No office�•,
empioyee, inde�etide�it consultant, or electec� official of tlie City who is involved in the
developrnent, evah�ation, or decision-makilig process of tlie pet•foz•mance af any solicitation shall
have a financial. interest, direct or indirect, in the Contcact t�es�ilting from that solicitatian. Any
`vilffiil violation of tltis section shall constitute impcopriery in office, and any officer or employee
guilry theceof shatl be subject ta disciplinary action t�p to and including dismissal. Any violation.
of this provision, with the kno�vledge, expressed or implied, of the Contx�actor shall render the
Contract voidable by the City. Tlte Contt'actor shail complete and submit tl�e City's Conflict of
Interest Questionnaire (Exhibit D),
32. IND�PENDENT CONTRACTOR: The Cant�•act shall not be construed as creating an
amployer/employee relatio��shi�, a par�nership, ot• a joint venture. The Cantrac#or's services sl�all
be those of an independent contractor, The Contractor agrees and underst�nds that the Contract
does not geant any rights or privileges establisl�ed for employees o� the City, Texas for the
pucposes of income tax, tivithholding, sociai security taxes, vacation or sick leave benefits, worker's
compensation, or any othaz• City employee bene�t, The City shall not have supervision and con#rol
of the Contractor or any employee of the Cont�actor, and it is expressly understood that Contractor
si�ali perforin the services hereunder according to the attached speciiications at the general di�'ection
of the City Manager of tlie City, Texas, o�� his designee under this agreement,
33. ASSIGNM�NT-DELEGAT�4N: The Contract shall be binding upon and ensure to the
benefit of the City attd the Contcaetar and their cespective successors and assigns, provided
howeve�, that no ri�ht or interest in the Cont�act shall be assigned and no obligation shall be
delegated by the. .Contractar . without .the ..prior w�itten conseiit. .of the City. Any attempted
assignment or delegation by the Conhactor shall be void unless made in confoc•mity with fhis
parag�•aph, The Contract is iiot intended to confer rights or beneflts on any pat�son, ficm or entity
not a party hereto; it being the intention of the pat�ties thAt there are no third pa��ty beneficiaries to
the Contract,
File #�553 Page 13 of 27
34. WATVER; No claim or right arising out of a breach of the Cont�'act can be discharged in
whole or i�� part by a w�iver or rent�nciation of the claim or right unless the waiver or
renunciation is supported by conside�•ation and is in writing si�ned by the aggrieved party. No
wai�er by either the Contractor or the City of any ozie or �nore events of default by the other
party shatl operate as, or be constr�ted to be, a peFinanent waiver of any rights or obligltions
under the Contract, ot� an eYpress oe implied acceptance of any other existing or futi�re default or
defau�ts, whetlier of a siinila� or cliffe�•ent character.
35. MODII+'ICATIONS: Tha Cont►•act can be modi�ed or amended only by a �vritiiig signed by
both parties. No pre�p��inted oi• similar terms on atiy the Contractor invoice, ord�r or other
document shall have any force or effect to cl�ange the terms, covenants, and conditions of the
Contract.
36. YNT�RPRETATION: The Contract is intended by the parties as a final, complete and
�xclusive statement of tlie terms of their agreement. No cot�rse of prio�• deal�ng beriveen the
pa��ties or course of performance or usage of the tcacie shait be relevant to supplement or explain
any term ttsed in the Contract. Although the Contract �nay l�ave been substantially d��a�ted by one
party, it is the intent of the parties that all provisions be construed in a manner to be fair to both
pat�ties, reading no provisions more stiictly against one pa��ty or the otliez•, Whenever a term
defined by the Uniform Commercial Code, as enacted by the State of Texas, is usecE in the
Contract, the UCC de�nitio�l shall coartrol, itnless otherwise defined in the Contract.
37. DISPUTE RESOLUTION:
A. If a dispute arises out of or relates to the Contract, or tl�e b�•each thereaf, tlie parties agrea to
negotiate prior to prosect,rting a suit for damages. However, tl�is section cfoes not pral�ihit the
filing of a lawsuit to ioll the t�unning of a statute of limitations ar to seek injunctive relief. Either
parky may make a vti+ritten request for a meeting benveen repx•esentatives of each pai�ty witliin
fourteen (14) calendar days after receipt of #he request or such later period as agreed by the
parties. Eacli party shall i��clUde, at a minitnum, one (1) senior level inciividual with dacision-
making authot•ity re�arding the dispuie. The purpose of this and any subsequant meeting is to
attempt in good faitl� to negotiate a resolutiot� of #he dispute. If, �vithin thirty {30} calenctar days
after such ineeting, the parties ltave not succeedad in negotiating a resolution of fhe dispute, they
will proceed di��ectly to mediation as described below. Negotiation tnay be waived by a written
ag��eement signed by both parties, in which event the parties may proceed directly to mec�i�tioi�
as described below.
B, If the efforts to resolve the dispute through negotiation fail, or the parties �vaive the
negotiation process, the pai�ties may select, r�vithin thirry {30) calendar days, a madiator f�•aiiied in
�nediation skills to assist �vith resoIution of the dispute. Should they choose this option; the City
acid tlie Con#ractor agrea 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
pievents the parties fi�om t�elying on the skiIls of a person who is trained in the subject mattar of
the cfispute ar a contract intex•pretation expe��t. Tf the parties fail to agree oii a mediator within
thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by
the . Denton Coti�nty Alternative Disptrte Resolution Program .(DCAP). The . pa��ties agcee to
pat�ticipate in tnediation in good faith for up to thii�ty (3�) calendaz� days from the date of the first
madiation session. The City and the Contcactor will shara the mediatoa•'s fees equaIly and the
parties wili bear their own eosts ofpartieipation such as fees for any consultanfs or attorneys they
may utilize to represent them or otheitivise assist them in the mediation,
File #�553 Page 14 of 27
38. JURISDICTIOIV AND VENU�; The Canh•act is made under and shall be gove��ned by the
lativs of the State of Texas, including, when applicable, the Uniform Commercial Code as
adopted in Texas, V.T.C.A., Bi15. & Comin. Code, Chapter 1, excluding any �•i�le or principle that
tivouid refer to and apply the substantive la�v of another state ot' �111iSC�ICt�OS1. Atl issues acisitig
from this Contract shall b� resolved in the cout�ts of Dentoi� County, Texas and fhe parties a�ee
to submit to the e�clusive pek'S01]A1 jAPiSdLCt1011 Of S1ECI� C011t'�S, The foce�oing, however, shall not
be constt�ued or interpreted to limit or restrict the right or ability af the City to seek ai�.d secixre
injunetive relief fi�om any competent auti�ority as contemptated hereiii.
39, INVALIDITY: The invalidity, illegality, or t�nenforceability of any pi•ovision of the
Contract shall in no way affect the rralidity or enforceability of any other portion or provision of
the Cont�•act. Any void provision shall be deemed severed from the Contract and the balance of
the Contract shatl be cot�strued and en�orced as if tlie Contract did not eantain #he particular
portion or provision held to be void. The parties fiirth�r agree to �•efot•m the Con#ract to replace
any strieken p�'ovisiott wit�i tt vatid provision th�t cames as clase as possible to the intent of #he
stricken p�•ovision. The provisions of #his section shall not prevent ttiis eirti��e Contract fro�n
being void should a provision which is the essence of the Contract be determined to be void,
40. HOLIDAYS: The follo�vin� holidays are abserved by the City;
New Year's Day (observed)
MLK Day
Memoria� Day
�t1i af July
Labor Day
Thanksgiving Day
Day After Thanksgiving
Christmas �ve (observed)
Christmas Day (o6served)
New Yeai's Day (observed)
If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal
Holiday f�lls an Su�iday, it �vill be observed on the following Monday. Normal hours of
operation shall be between 8:00 am and 5:00 pm, Monday through Friday, e�cIuding City of
Denton Holidays, Any scheduled deliveries or work performance not tivitltin the normal hours of
operation must be a�proved by the City Managet• of Denton, Texas or his authorized designee.
�t. SURVIVABILYTY OT' OBLIGATIONS: All provisions of the Coirtract that impose
continuing obiigations on the parties, including but not limited to the wailanty, indemnity, and
coniidentiality o6ligations of the parties, shall survive tlae expiration at� termination of the
Contract.
�t2. NON-SUSPENSZON OR DEBARMENT C�RTiFYCATION;
The.City is prohibited from contracting.with..or.making pi�ime.or stt6-awards to.parti�s tt�at are.
sttspended or debarred or r}vhose principals are suspended or debacred fi•om Federal, State, o�'
City Contracts. By accepting a Contract with the City, the Vendor cet�tifles that its flrm and its
principals are not currently suspended or debaired frorn doiug bttsiness rvi#h the Fede��al
Government, as indicated 6y the Genera! Servicas Administration List of Pariies �xcl�►ded fi•om
k'ile # 4553 Page 15 of 27
�,
Federal Procurement and Non�Procnt�einent Programs, the State of Texas, or the City.
43. �QUAI., O�PO�t.TUNITY
A. Eqnal �m��loymei�t Oppoi•twiiiy: No Offeror, or Offerar's agent, shall engage in any
discriminatocy employment practice. No person shall, on the gcounds of race, se.c, age, disability,
ereed, eoloc, genetic testing, or national origin, be refiised the beitefits af, a�• 6e otherwise subjected
to discrimination unde� any activities t•est�lting fi•om this RFQ.
B. Americans with DisaUilities Act (ADA} Compliance: No Offeror, or Offeror's agent, sltall
eiigage in a�ay discriminatory empioyment practice against individuals with disabilities as
defined in the ADA.
�4, BUY AMERICAN ACT-SUPPL�E5 (Ap}�licable ta certai�t federail,y fiiaaded
requirements)
The follotiving federally funded requirements are applicable, i�i additian to the specific federally
fitnded requirements. �
A, Def�nitions. As used in this paragraph
i. "Compo�aer►t" means an article, material, or supply incorporated dit•eetly into an end product.
ii. "Cost af components" means -
(1) For components purchased by the Con#�•aetor, tlie acquisition cost, including transpo��ation
costs to the place of incor�oration into the end product {�vhether or not such costs ace paid to a
domestic �rm), a►�d any appliaable duty (whether or not a duty-fi•ee en#ry ee��tificate is issued}; or
(2) Fo�� cott�pone�its man��factured 6y tiie Contractor, aIl costs associated witli the manufftcture of
tlie component, incliiding transpo��tation costs as desccibed in paragraph (1) of this de�nition,
plus allocable overl�ead costs, but excluding pt�ofit. Cost of components does not i�tclude any
costs associated rvith tlie mamtfactt�re of the end product.
iii. "Domestic end product" means-
{1) An unmanufact�ired end produci nninad o�� pt•aduced in the United Stxtes; or
{2) An end product manufactured in the United States, if the cost of its components mined,
produced, o�� manitfactured in t�ie United States exceeds 50 pe��cent of the cost of al� its
components, Camponents of fo�eigz� origin of the same class or kinc� as those that the agency
determines are not mined, produced, ar manuf�ctuced in snfficient and t�easanably available
eommercial quantities of a satisfactory quality are heated as donnestic. Se�ap �enerated,
collected, ancf prepared for processing in the Un.ited 5tates is considered domestic,
iv, "�nd product" means tkose ai�ticles, matacials, and sttpplies to be acquired under the contcact
for public use.
v. "Foreign end product" means an end product other than a domestie end produet.
vi. "United States" means the S� States, the District of Colutnbia, and outlying aceas,
B. The Bt�y American Act (4i U.S.C. l0a - l Od) provides a preference for dotneseic end prodncts
for supplies acquired for �ise in the United States,
C. The City does not nnaintain a list of foceign articles that will be treated as doix�estie fo�• this
Contract; but will consider for approval foreign articles as do�nestic ;foc this p�•oduct if the articles
are oi� a list appraved by another Governmental Agency. The Offeeor shall submit
documentation with tlieir Offer demonstratiiig that the article is on an approved Governme�ztal
list.. .
... . . .. . . . . .
D. The Contractar shaIl delivea• anly domestic end products e�cept to the estent that it specified
delivery of foreign end prodt�c�s in the provision of the Solicitation entitled "Buy Amex•ican Act
Certificate".
F'ile #�553 Page 1 b of 27
�S. RXGHT TO INF'ORMATION: The City �•eserves the right to use any and all info��m�tion
pt�esented in an� response to this solicitation, whether atneiided or not, except as proltibited by
law. Selection of rejeotion of the submittal daes not affect this right.
46. LICENS� k`��S OR TAXCS: Provided the solicitation xequires an ativarded contractox� oa•
supplier to be licensed by the State of Texas, any and ali fees and taxes ai�e the responsibility of the
x�espondent.
47. PR�VAIL�NG WAG� RATES: All respondents tivill bE reqt�ired ta cotnply witli Provision
5159a of "Vernon's Annotated Civil Statutes" of the State of Texas with respect to the payment
of p�•evailing wage rates and prohi6ituig discrimination in the en�ployment practices.
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48, C0117PLIANC� WITH ALL STAT�, T+'�D�RAL, AND LOCAL LAWS; The contractor
or suppliex• shall comply with all State, Faderal, and Local laws anci requiremei�ts. The
Raspondent must comply with alI applicable lativs at aIl times, including, without li�litation, the
following: (i) §3fi.02 of the TeYas Penai Code, whicl� pi•ohibits ba�ibety; {ii) §3G,09 of the Texas
1'enal Code, tiV�lIC�] prohibits the offering or conferri�ig of bettefits to pE�blic servants. The
�tespondent sh�ll give ail notices and comply with all la��vs and regulations appiicable to
furnishing and performance of the Contract.
49. FEDERAL, STAT�, AND LOCAL kEQUIREM�NTS: Respondent shall demonstrate
on-site compliance with the Federal Tax �2.e�orm Act of 198b, Section i706, atnending Section
530 af the Revenue Act of of 1978, dealing �vith issuance of Form W-2`s to cotnmon l�.w
employees. Respondent is cesponsible for both federal and Sta#e unemployment insurance
coverage and standacd Worker's Campensation insurance coverage. Respondent shall ensure
co�npliance witli all federa� and State tax tativs and withholdi�ig requirements. The Ctty shall not
be liable to Respondertt or its emplayees for any Unemptoyment or Wockers' Cotnpensation
coverage, or federal ot• State withholding reqiiirements. Cont�•actar shall indemnify the City and
shall pay all costs, penalties, or losses resulting fi�om Respondent's ainission or breaeh of this
Sec#ion,
50. DRUG FREE WO1tI�PLACE: The cont��acto�• shalI comply r�vith the applicable provisions
of tlte Drug-Free Work Place Act of 1988 (Publie �aw 100-690, Title V, Su6title D; �l X U.S.C.
701 ET SEQ.) and maintain a drug-free work environmei�t; and the final rule, government-wide
requirements for dt•ug�fi•ee work place (gcants), issued by the Office a� Man�zgement and Budget
and tlie Depai�tment af Defense (32 CFR Part 2$0, Stibpa��t F) ta implernent the provisions of the
Drug-F�•ee Wot�k �'lace Act of 1988 is incorporated by x•efecence and the contractor shall comply
with the relevant provisions the�•eof, including any amendments to the fina] rute that m�y
E�ereafter be issued.
51. RESPOND�NT LTABYLYTY FOR DAMAGE TO GOVERNMENT PROP�RTY: The
Respondent shall be liable for all damages to government-owned, leased, or occupied propet�ty
.. and . equipinent caused .by .. the .Respondent....and its emplo.y.ees, . agents, su6co�tractoa�s, and
suppliers, including any delivary or cat�tage company, in conneetion with any pet•fot•mance
pu�suant to the Contiact. The Respond$nt shall tiotify the Gity Procurement l�ianager in wciting
of any such damage within one (1) calendar day,
File # 4553 Page 17 af 2'1
52. FORC� MAJ�URE: The City, any Customer, and the Respondent shall t�ot be responsi6le
for pe�•fot•nnance under the Cont�act should it be p�•evented from performance by an act of war,
order of legal authority, act of God, or ot�iet unavoida6le cause �tot attributable to the fauit or
negligence of the City. In the event of an occurrence under tliis Section, the Respondent will be
excused from any fiirther performance or obse�vance of tlte requirements so affected for as long
as such circutnstances prevail and the Respondei�t cantinues to i►se commercially reasonable
efforts to eeeommence performance oz• obsecvance �viienever and to whatever extent possible
without delay. The Respondent shall immediately notify the City Procucement Manager by
telephone {to be confirmed in writin� witl�in five (5) calend�tr days of the inception of sttch
occitcrence) and desc��Ibe at a reasonable levei of detail the circi�mstances causing tlie non-
performance or delay in performance.
53. NON-WAr'VER OF RIGHTS: Failure oP a Party to require perfo��mance by another Party
tinder the Contract tivill not affeet the i•igl�t oF such Parry to �•aquire pecformance in tlie future. No
delay, failure, or waiver of either Party's exercise or pat�tiat exercise of any riglit or rerr►edy under
the Contt�act shall operate to limit, impair, preclude, cancel, waive or ott�erwise affect sucli right
or remedy. A waiver by a Party of an� breach of any term of the Contract will not be construed
as a waiver of any cotitinuing o�• succeeding breach.
5�. NO WAIV�R OF SOVER.�IGN I�VIMUNITY: The Parties e�p�•essly agree that no
provision of the Contract is 'tn any r�vay inte��ded to constitute a waiver 6y die City of any
imfnunities from suit or from Iiability tl�at tlie City may have by operation of law.
55. REC�RDS ItETENTION: The Raspondent shall retain all financial recoi`ds, supporting
documents, StcltlStICAI 1EC01'ds, and any other records or books t�elati��� to the perfoi�mances called
foi• in the Con#ract. The Respondent shall retain all such �•eco��ds foi• a period of fo��r (4} years
ftfter the espiration of the Contract, or until tlte CPA or State Auditor's Office is satisfied that all
audit arid lItigatioi� maiters are �•esolved, �vhichever period is longer. The Respondent shall grant
access ta all books, reeords �nd dacuments pertinent to the Contt'act ta the CPA, the State
Atiditor of Tesas, a►�d any federal governmental entity that has authority to review reco��ds due ta
federal fiinds being spent unde�� the Contract.
File #�553 Page 18 of 27
Exl�ibit S
Speci.il Terl�is ancl Coaiclitions
Tot�l Contraci Aanount
The cantact total for services shall not esceed $270,�a0 �aer term. Pricing shall be ��er E�tiibit E
attaclaecl.
Co�itr�ct Ternis
The co�it�act t�rin ��ilI be oile (1) year, eff�ctive fi�om date of award o� fiotice to proceed as
deterininec� by the CiTy of Dentoz� Pttrchasing Deparhneiit. At tlie City of Dentoii's option aizcl
approval by the vendor, the coi�tract niay be rene�ved fox• l�p to #�vo ac�ditional oiae-ye�r periods,
as fiu�ther elplauied izi Rene�val Options.
Renc�a�al Or�tions
Tlie City af Denton resei�res the right to exercise �n option to rea�e�v the contract of the vendor
for t�vo (2) additional one (1) pear periflds if agreed upon iu wri#iilg by botfi parties, All tez��ns
and coiiditions mt�st rei�lai�� the same fox• each apfianal additional aenewal year. If the City
etercises the right in writiug, the
Price �scalation at�c� De-esc�lfltio►t
'�'he City will implenietit ai� escalatioi�/de�escal�tion price adjustn�ei�t quacte�•Iy. The
escalation/de-escalation �vill be b�sed t�poti i�ianufacturer publisheci Z�x•icing sheets to tlie vendor.
The price �vill be incre�sec� or decreased based Lipo�1 tIie quarterly pex•centage change iii the
manufacturer's price list. The price adjustment will be dete�•i��ii�ed quarte�•ly fi•on� the �.w�t•d
date. Shoi.tld the chatige exceed or decrease a inini�llum thresholc� value of +/-1%, tlieri tl�e stateci
eligible bid �rices shall be adjusted in accordaixce �vith the pttblished pz�ice cl�ange. It is the
supplier or the Cities responsibility #o i'BC�LleSt a j)T1C2 c�C�jl1S�111EF1t C]11�i�0TIy in tivriting. �f no
Y•eqnest is inade, then it �vill be assunied tlaat the bid p�•ice will be ix� effect. Tlie sunplier must
sub�a�it ai� malce avAilaUle tl�e m�tuufacturers nric3ns sheet used to caIculste the bic�
uronosal, fo n���ticinate ia� the esc�lafion/cle-escalafiox� cl�use.
File # 4553 Page 19 of 27
Exhibit C
WSURANCE REQUIREMENTS AND
WORKERS' COMPENSENTATION REQUIREMENTS
Upon contracf execufion, afl insurance requirements shall become contracfual obligations,
which the successful confracfor shall have a duty to maintain throughouf the course of this
contracf.
STANDARD PROVISIQNS:
Wifhout limiting any of fhe other obligaflons or Ila,billties of the Confracfar, fhe
Confracfor shall provide and mainfain until the contracfed avork has been complefed and
accepted by ihe City of Denton, Owner, the minimum insurance coverage as indicated
hereinafter.
Contractor shall flle wlfh the Purchasing Departmenf safisfactory cerfificates of
insurance incJ�fding any applicable addendum or endorsemenfs, confaining fhe contract
number and title of the projecf. Contractor may, upon wriften request to the
Purchasfng Departmeni, ask for clarfficafion of any insurance requlrements ai any fime;
however, Contractorshall not commence any wark or deliver any maferial unti! he or she
receives nofificafion fhaf ihe contract has been accepfed, appraved, and signed by the
Clty afDenton.
Al! insurance policies proposed or o,6tained in satisfacfion of these requiremenfs shall
comply wifh fhe following general speclficatlons, and shal! be malnfained In compliance
with these genera! specifications ihroughou! the duration of fhe Confract, orlonger, if so
noted:
• Each policy shall be issued by a company authorized to do business in fhe State of
Texas with an A.M. Best Company rating of at least A- VII or better.
Any deductibles or s�lf-insured retenfians shall be deciared in the proposal. [f requested
by the City, the insurer shall reduce or eliminate such deductibles or self-insured
retentions with respect to the City, its af€icials, agents, emplayees and volunteers; or, the
contractor shall procure a bond guaranteeing payment of losses and related
investigations, ciaim administration and defense expenses.
Liability policies shall be endorsed to provide the foilowing:
� Name as Addifional Insured the Cify of Oenton, �ts Off[cials, Agents, �mployees
and volunteers.
� That such insurance is primary to any other insurance available to the Additional
lnsured with respect to claims covered under the policy and that this insurance
applies separately to each insured against whom claim is made or suit is brought.
The inclusion of more than one insured shall not ope�ate fo increase the insurer's
[imit of fiability.
Cancellatian: Clfy requires 30 day wriften notice should any of fhe policies
described on fhe certlficafe be cancelled ar mater}ally changed before the
expiration date.
File # 4553 Pa�e 20 of 27
• Should any af the required insurance be proviclad under a clafms made form, Contracior
shall maintain such coverage continuously throughout fhe ferm of this contract and,
wifhout lapse, for a periad of fhree years beyond fhe contract expiration, such that
occurrences arising during the contract term which give rise to c[aims made after
expiration of the contract shafl be covered.
o Shoufd any of the required insurance be provided under a form of coverage that includes
a general annual aggregate limif providing for claims investiga#ion or legal defense costs
to be included in the general annual aggregate limit, the Contractor shall either doub[e
the occurrence limits or obtain Owners and Coniractors profective Liability Insurance.
o Should any required insurance fapse during the contract term, requests for payments
originating after such lapse shall not be processed until the City receiues satisfactory
evidence of reinstated coverage as required by this contract, effective as of the lapse
date. If insurartce is not reinsta#ed, City may, at its sole option, terminate this agreement
effective on the date of the lapse.
SPECIFIC AI�DITIONAI. INSURANC� REQUIREMENTS:
AII insurance pollcles proposed or obtained in satisfaction of ihis Contracf shall
addifionally comply with the following marked specifications, and shall be mainfained in
compliance with fhese additlona! specificafions throughouf the duration of the Contract,
or longer, rf sa noted:
[X] A. Generai Liability Insurance:
General L.iability insurance with combined single limits of not less than
�1,000,000.00 shail be pr4vided and maintained �y khe Contractor. The policy sha[I
be written an an occurrence basis either in a sing[e policy or in a combination of
underlying and umbrella or excess policies.
If the Comrr►erciai Generaf Liabifiiy form {ISO Form CG 0001 current edition) is
used:
Coverage A shaU include premises, operations, products, and cor�pleted
operations, inde�endent contractors, contractuaf liability covering this
contract and broad farm pro�erty damage caverage.
• Coverage B shall include personal injury.
• Coverage C, medical payments, is not required.
If t�e Comprehensive General Liability form (IS� Form G�. 0002 Current Edition and
ISO Form GL 0404) is used, it shall include at least:
� Bodily injury anci Property Damage Liabilify for premises, operakions,
producis and completed operations,. independertt con#ractors and property
damage resulting from explosion, collapse ar underground (XCU) expasures.
• Broad form contraotual liability {preferabiy by endarsement) covering this
contract, parsonal injury liabiiity and br.oad form property damage liability.
File # 4553 Page 21 of 27
[X] Aut�mobile Liability ]nsurance:
Canfractor shall provide Commercial Automobile Liabiiity insurance wifh Combined
Single �i�nits {CSl.} of nat less than 500 000 either in a single policy or in a cambination
of basic and umbrella or excess policies. The policy will include bodiiy injury and
property damage liability aris9ng aut of the o�eration, maintenance and use of all
automobil�s and mobile equipment used in conjuncfion with this contract.
Satisfacfion of the abave requirement shall be in the form of a policy endorsement for: "
• any auto, or
• all owned hired and non-owned autos.
[Xj Workers' Compensation Insurance
Contractor shall purchase and maintain Warke�s' Compensation insurance which, in
addition to meeting ihe minimum statutory requirements for issuance of such insurance,
has �mployer's Liabilify fimits of at least $100,U00 for each accidenf, $100,000 per eacFi
employee, and a$500,000 policy limit far occupationaf disease. The City need not be
named as an "Aciditionaf fnsured" but the insurer shall agree to waive a11 rights af
subragation against the City, its officials, agents, emplaye�s and volunteers for any work
performed fo� the City by fhe Named Insured. For building or co�struction pro�ects, the
Confractor shall compiy with the provisions of Attachment 1 in accorciance with §406.096
of the Texas Labor Code and rule 287AC 110.110 of the iexas Warkers' Compensation
Commission {TWCC).
[] Owner's and Contractor's Protective L,Eabiiity Insurance
The Contractor shall obtain, pay for and mainfain at all times during the prosecution of
the worlc under this contract, an"Owner's and Contractor's Protective Liability insurance
policy naming the Cify as insured for properfy damage and bodily injury which may arfse
in the prosecution of the work or Contractor's operations under this contract. Coverage
shall be on an "occurrence" basis and the po[icy shall be issued by the same insurance
company that carrles tne Contractflr's liabiliiy insurance. Policy limits will be at feast
$500,000.00 combined bodily injury and property damage per occurrence with a
�1 000,004.00 aggregate.
[ ] �ire Damage Legal l.iability insurance
Coverage.is required if Broad form General L.iability is not provided or is unavailab�e to
fhe cantractor or if a contractar leases ar rents a poriion of a City building. �imits of noi
less than each occurrence are required.
f 1 Professional Liabili#y Insurance
.
F'rofessional liabiiity insurance wiih limi#s not less than $1,000,400.fl0 per claim wiih
respect to negligent acts, errors or omissipns in connection wiftt profes'sional services is
required under this Agreemen#.
File # 4553 Pa�e 22 of 27
[ ] Builders' Risk Insurance
Builders' Risk Insurance, on an Alf-aisk form for 100% of #he completed value shall be
provided. Such policy shafl include as "IVamed Insured" fhe Ciry of Denton and all
subcontractors as their interests may appear.
[ ] Commercial Crime
Provides coverage for the theft or disappearance of cash or checks, robbery
inside/oufside the premises, burglary of the premises, and employee fldelEty. 7he
employee fidelity portion of this coverage should be written on a"blanket" basis to cover
all employees, including new hires, This type insurance should be required if the
contrac#or has access to City funds, Limits of not less than � each
occurrence are required.
[ ] AddltlonaE Insurance
Ofher insurance may be required an an individual basis for extra hazardous contracts
and specific service agreements. If such additional insurance is required for a specific
contract, that requ'trement will be described in fhe "Specific Condifions" of the contract
speciftcatlons.
File # �SS3 �'age 23 of 27
ATl"ACHM�NT 1
[X] Workers' Campensation Coverage for E�uilding or Canstruction Projects for
Governmental Entities
A. Definitions:
C�rfificat� of coverage ("certificate")-A copy of a certificate of insurance, a
certificate of authority to seEf insure issued by the commission, or a coverage.
agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), shovsiin�g
statutory workers' compensation insurance coverage for the person's or
entity's �employees providtng services on a project, for the duration of the
project.
Duration of the project - includes the time from the beginning of the work on
#he project until the confractor's/person's work on the project has been
cornpleted and accepted by the governmental entity.
Persons providing services on the project ("subcontractor" in §406.Q96) -
includes all persons or entities perForming a1! or part of the services the
contractor has undertaken to perform on the project, regardless of whether
that person contracted directly with the contractor and regardless of whether
thaf person has employees. This includes, wifhout limitation, independent
contractors, subcantractors, leasing campaz�i�s, motor carriers, owner-
operators, em�iayees of any such entity, or employ��s o� any �ntity which
furnishes persons to provide services on the project. "Services" include,
without limltation, providing, hauling, or delivering equipment or materEals, or
providir�g labor, transpor�ation, or other service related to a project.
"Services" does not include activities unrelafed to the project, such as
food/beverage vendors, office supply deliveries, and delivery of portab�e
toilets,
B, The contractor shail provide caverage, based an p�oper reporting of
classification codes and payrall amounts and fifing of any overage
agreemenis, which meets the statutory requiremenis of Texas Labor Code,
Section 401.Q41(44) for all emplayees of the Contractor providing services
on the project, for fhe duration of the project.
C, The Contractor m�st provide a certificate of coverage to the governmental
entity prior to being awarded the contraci.
D. lf the coverage period shown on the contractor's current cerfiticafe of
coverage ends during fhe duration of the project, the cantractar must, prior to
the end o# the coverage period, file a new ce�iificate o# coverage with the
governmental entity showing that coverage has been extended.
�. The contractor shalf obtain from each person prov�ding services on a project,
Fi1e # 4553 Page 24 of 27
and provide to the gavernmental entity: �
�, a cerfificate of coverage, prior to that person beginning work on the
project, so the governmet�tal entity will have o.n file cerfifieafes of
coverage showing coverage for afl p�rsons providing services on the
project; and
2, no later than seven days after receipt by the contractor, a new
certificate of coverage showing extensian of caverage, if the coverage
period shawn on the current aertificate of coverage ends during the
duration of the project.
F. The contractor shall refain ali required certificates of coverage for the
duration �f the project and for one year thereafter.
G, The contractor shall notify the governmental entity in writing by cerfified mail
or personal delivery, wi#hin 10 days after the contractor knew or should have
known, aP any change that materia!{y affects the provisian of coverage af any
person providing services on the project.
H. The contractor shall post on each proJect site a notice, in the kext, form and
manner prescribed by fhe Texas Workers' Compensation Commission,
informing all persans providing services an the project that they are required
to be covered, and stating how a person may verify coverage and report lack
of coverage.
I. The contractor shall contractually require each person with whom it contracts
to provide services on a project, fo:
1, provide coverage, based on proper reporting of classification codes an�
payroll amounts and filing of any caverage agreements, which meets the
statutory requirements of Texas Labor Code, Section 401.Q11(44) for all of
its employees providing services on the project, for the duration of the
project;
2, provide to the contractor, prior io that person beginning work on ti�e
pro�ect, a certificate of co�erage shawing fhat coverage is being provided
for all employees of the �ersan providing services on the project, for the
duration of the projec�;
3. provide the contractar, prior to the end of the coverage period, a new
ceriificafe of coverage showing extension of caverage, if the coverage
period shown on the current certificate of coverage ends during the
duration of fhe praject;
4. obtain from each ofher person wifh whom it contracts, �nd provide to the
contractor:
a. a certificate of coverage, prior to the other person beginning work on
File # 4553 Page 25 of 27
the project; and
b. a new certificate of coverage showing extension of coverage, prior to
the end of the coverage period, if the caverage period shown on the
current cer�ificate af coverage ends during #he durafion of the project;
5. retain all required certificates of coverage on fife for the duratior� of the
project and for one year thereafter;
6, notify the go�ernmental entity in writing by certified maif ar persona[
delivery, within 10 days after #he person knew ar should have knawn, of
any change that materially affects the provision of coverage of any person
praviding services on the project; and
7. Contractually require each person with whom it contracts, to perform as
required by paragraphs (1} -(7), with the certificates af coverage to be
provided to the person for whom fhey are providing services.
J. By signing this contract or providing or causing to be provided a certificate of
caverage, the contractor is representing to the governmental entity that all
employees of the contractor wha will provide servlces on the project will be
covered by workers' compensation co�erage for the durafion of the project,
that the coverage will be based on proper reparting of classification codes
and payrail amoun�s, and that all coverage agreements wiii be filed with the
appropriat� insurartce carrier or, in the case of a self-insured, with the
commission's Division of Self-lnsurance Regulation. Providing false ar
misleading information may subject the contractor to administraiive
penalties, criminal penalties, civil penalties, ar other civil actions.
K, The contractor's failure io comply with any of these provisians �s a breach of
contract by the contractor which entitles the gavernmenta( entity to declare
the contract void if the confracior does not remedy the breach within ten
days after receipt of notice of breach from the governmental entify.
�ife # 4553 Page 26 of 27
Exhihit D
CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ
For vendor or ather erson doin buslness wfth local overnmentaf entit
ihis questionnaire reftects changes made to f8e !aw by H.B. 9491, 80th Leg., Ftegular Sesslon. pFFICE
US� ONLY
This questionnaire is being filed in accordance wifh chapter 176 of the Lacal Government Code by a n�te Received
person who has a business relationship as defined by 5ection 176.001(1-a) wifh a local go�ernmental
entity and the person meets requirements under Sectfon �76.006(a).
By faw this quesfionnaire must be filed with the records administrator of the focal government entify not
lafer ihan the 7th business day after the date the person becomes aware of facts that require the
statement to be flled. See Sectlon 476.006, Local Government Code.
A person corrfmifs an offense if the person knowingfy vio[ates Section 176.006, Local Gavernmenf
Code. An offense under this section is a Class C misdemeanor.
� Name of person who has a bus[ness relationship wifh local governmental enlity.
No relationships exist with the City of Denton, TX
2
� Gheck this box if you are filing an update fo a previously flled questionnaire,
(7he law requires that you flle an updated completed quesiionnalre wlth the appropriate flling aut�ority not
later than the 7�' business day after the date ihe originally filad questionnaire becomes incompleie or
inaccurate.)
3
Name of loca( government offlcer with whom tller has an employment or business relattanshlp.
None
Name of Officer
This seciion, (iiem 3 incfuding subparis A, B, C& D), must be completed for each officerwith �vhom the filer has an
employtnent ar olher business relationship as defined by 5eclion 176.001{1-a), Local Government Code. Aiiach
additional pages to tE�is Form C1Q as necessary,
A. fs the local government officer named in this sectfon recelving or likely to recelve taxable income, olher than
investmeni lncome, from ihe filer of ihe questionnaire?
0 Yes � No
6. is the filer of the questionnaire recelving or likely to receive taxa6fe income, other than investmenf income, from
or at fhe direction of the local government officer named in this sectlon AND the taxable Income Is not recelved
from the locaf go�arnmentat enfiiy?
� Yes � N o
C. Is khe i11er of this quesiionnaire employed by a corporaUon or other business entity with respect fo which ihe
local government officer serves as an officer or director, or holds an ownershlp af 10 percent or more?
� Yes � No
D. Describe each affllfatian or bus(ness relaiionship. s
4
January 24, 2013
Signature af person @oing business with tt�e governmental bate
entiry William J. Anderson, Vice President
File # 4553 Page 27 of 27
EXHIBIT E
DIJ��C�'S ��VIC�� L�N� �1��M[�r4L RO�`� ��fViROL
F���P���� ��►,G���{UI��I`T �0�:
il�� �l`�Y �F ���l7'�N, i���4S
The following pro�osed agreem�,nt constitutes an offer to treat municipal sewer lines so as to
c�estroy tree roots �resent fn the �ipe, and ta detar ihefr regrowth. Duke's Root ControF, inc. will
honor fhe prlces, the guarantee and nIE oihor terms and conditions sBt forth In this docume�f,
�rovlded The City of Denton accepfs fiils agreement on or before June 34, 2013,
Submitfed by: ___ November 14, 2fl12
Brlan S. Conroy
�orm 01-98
�
E?CHIBiT E
iA��� U� CONTI�NiS
pac�e
General.......................................................................................................................................1
C�mpliance ............ ........................................... .................................................................... �
Cninposition of Root ControE Maierlal .........................................................................................2
Mannerof Ap�ficaflon ........................................,..,...................,...,......,........,...,,,....,,....,.........,..2
Mixingand �iandling ...................................................................................................................2
l7uke's Responsibilities ...............................................................................................................3
Custorner's ftesponsibllities .......................................................................................................3
Guarantse...................................................................................................................................4
�.iabllity ........ ...............................................................................................................................4
Quafification5.............................................................................................................................. 5
Term............................:............................_........,.,......,,....................,......,..,,..............................5
priaeSchedu[e .........., ........................................,.....,.,...................................................,...........5
PollutionInsurance ....................................................................................................................�
EXHIBIT E
GENERAL
Duke's Root �ontrol, Inc. (herein. pe�ke'sj will apply licensed root control agents fo
various main line sanitary sewars, as setected by The C[ty of penton ln order to kill the
root growth �resent In ihe I�nes ancf to inhibit roat re-growth, wilhout perma�iently
damaging tl�e vec�etation producing the roats.
puke's will apply t�e ci�emical, as a foam, dlrecfly to tne roois via a hase iE�at extends
fhroughout the eni�re length of each sewer secfion. The rnaterfal wil( be applied evenly
and unlformly, so as to compietely flll tl�e sewer pipe, Duke`s wifl nat use "pour down"
or spr�yed ci�emica[s.
puke's wiil punip lhe chemical foam under pressure ta assure fhai the enlire sewer
sectian is completely filled wifl� foam, ancf ta assure i�at foam penefrates "wye"
connectior�s.
The chemica! agent wiil contain a herbicitie to destroy ro4t iissue and a foaminc�
surfactant ko dsffver the i�erbfcide to the targei root growths,
Dui�e's wiU relurn periadically (every 4 to 8 monfhs) throughout the Ilfe of ihe guaranfee,
to examine tfte treaiacE sewers, and to arrange any free Guarantee work ihat may arise.
Duke's wlll perform, re-ireafinents, as may be required at no additfonal charc�e, as set
forflt in the guaranfee (see GUAF�ANTE�, page 4). Duice's shalt nof be responsl�le for
any damages caused by sewer stoppaJes,
Duke`s wili not use su�eontractors for any poriion of thQ work.
COMI'LIANCE
1'he maferlals will be EPA reglskered, Eabeled far tt�e infendecf use In sawer lines, and
regisferad wilh lha Texas Structura! Pest Control BoarcE.
Dulce's will compiy wifh all applEcaE�ie federal, state, and Ivcal requiremenls and
ordinances relative to th9s tyge af rnateria! and usage thereof (OSHA, �PA, DOT and
State peskicida regulatary agencies. Chemical handlinc� and treatmer�ts wili be done by
lrained, professional applicatars that are certifled by tha State pesticide regulator}r
agency, as required by law.
The U.S. Depariment of Transportatian �DOi') number, necessary for fhe transporiatfon
of root conirol chemicals, assigned fo Dt�ke's is 401961. Du[ce`s adheres #o ali DOT
regu[attons rslaiive to commerc;ial vef�Icle num�ering, placardliig and registration; driver
Ifcensfng, driver drt�g testing, and record keepinc�; and all other periinenk raquii�ements
contained in �edera# Motor Ca�rier Safety Regulalions.
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EXHIBIT E
R041`CONTROL MAi�RIAL
Quke's wlll sunpiy aIt components of the rooc contro! materlal; in arder to insure the
cornpaiibility of said tnaferiais, Ail root conlr�l materials provided by Duke's will be
speci[icaEiy desic�neci for use in sewers. �uke's crews wfll have Materia! Safefy
informafinn avaifable on slfe, including praduct Iabeliny.
f]uke's wilt not use �our down producis and/or prod4icts composed of acids or caustic
compounds that are used fQ ctestroy roo#s or cnr�vey herbicide.
Duke's will be responsibie fvr all shlpping, and storage of roat confroi materials, Duke's
Is afso responsible for the disposai of spent roof control material contalners.
MA�t�IER OF ApPLICAT[QN
Applicatlon of fhe chemical root cantrol agen# wiil be by foaminc� ir� accordance witl� the
best-racommended praclice for conditions presenf in tha line undgr treatment, All
foaming prncedures wil[ be in sirfct accordance wiih the instruCfions on the cantainer
label.
All soiution wil! be mixed fresh, tha day the work is to bQ performed, The water used ta
prepare the solation will be clear, coo{, and free of aci�, afkall, oxidizing agenEs, Earc�e
amounts of oil, cnmpounds or n�aterials,
A foam discharge i�ose will be lnserted ihrougitout the e�zlire length af the sewer
section to be treated. Hydraufic sewer cleaners or other such aquipment that might
damage !he roots, theroby reducing tha immediate absarpiion of ihe root confrol ageni,
wlll nof be used In thae trealment process.
Ghemlcal foam w11( be applled under pressure to assure that the entire se+r�er secfion is
comple#ely filled with foam, and to assure tl�at foam penetrates "wye" connecttons, The
hose refrieval will be timed to evenly distrlbute the full quanl[ty of foam throughaut the
enfire area o� troatment. The quantity of €oam will be sufflcieilt to campletefy fill the
entire vdlume of the mein line sewer, �lus an additiorial 90% to allow for the penetraiion
of mafer(a! up connectfnc� lateral sewers, and the lass of maferia! ln manholes. Sewer
servlce fo homeowners will not �e interrupted.
An �pproved fresh waier, backflaw, prevent(on system will be provided, and will be
used whenevar filifng any chemicaf sforago tank v�itn fresl� wafer,
MIXING AND HANbLINC
Alf liquid products will be packaged in re-usablo confainers that are f�dT approved fior
such use. These contafners wil! be part pf a closed mixing and handling system, A
closed rnixing and handlEn� system is provided in order to eliminafe, or signlficantly
minim€ze worker expasure fa vofaliie liquld compounds,
.2.
EXHIBfT E
DUKE'S RESpONSIBELfT(�S
Should ar�y chemiaaf root controi agent spifi on the ground, the chemical �nd
the affecfed soif will be removed by Duite's anc! saf�fy disposed of. Duke's w�ll
restora the area to a condilion equal to or f�etter fhan before #he s�ilL Any
damac�e to vegetafEon resulting from misuse of fhe chemical roof cantrol ac�ent is
ihe rosponsib1111y of Duke's.
2. nuke's wlll respect the righis of properfy owners, and nof enter unon private
pro�erty wlthout abtainfng permission from the ownflr.
3. Duke's will �lace �i•oper frafflc warning devices io pratect i�e specifPc job site,
and to prevent accideitis oC �orsottal l�Jury to the pubflc, Flagtnen for safe
t►•affle conlroi will be provfded as conditions dictate.
�4, Duke's wll{ keep campfete, �ccuraf� records of aach day's operat(on. f�ecords
si�ail show t6ze date of trea#ment, tf�e ssctlons of line traated, pipe size and
d�stanco, ancl otizer pertlnent information. Logsi�eets wlp bv submittod with ihe
�nvoiee.
5. Duke's wilE ass€st In fhe ev�(uafion af the root confrol applica#�on. Duke's wfil
��efurn 4 io 8 monfhs after the wo�k Is compfetecf, and �erlodloally throughout the
life of t�e Guaranfee,
6. Duke's will dispose of a!I pesticEde con#afners, according to the state and federa!
regulafions periain9ng ihereto,
7. Duke's shall �ot be responsi�fe for any damages caused by sewer stoppages,
1'H� CUSI"OMER'S R�SPONSI�fl.IT1�S
�'rovide a clepartment representatEve to accompany qt�ke's crew, andlar sewer
system draw9ngs showing the exact locations of the pfpes fa be treated.
Assist and make provfsion for enterin� �r(vate lands, pubiic lands and
right�af�ways,
3. F'rouide fresh water for fhe purpose of mixfng the root conirol ac�ent an� for
clean irp.
4. Loca#e and uncover hidden or burfed Enanholes, and restore street surfaces,
easemenfs, etc.
•3-
EXHIBIT E
GUARANTEE
Duke's c��tarantees io kill all the roots fn every sewer it treats in order to eliminate main
fine sewer stoppages caused by Iive tree roots.
If a treated sewer �luc�s up and ifoods due ta [ivs iree rools during fho guaraniae perioc�
(see below), DUK�'S will RE-TREAT fhat seclIon, AT lT'S OWN �KP�NSE, or remit ta
Tlle City of penton �00% af tile paymenf received tp treat that section of sewar.
The dectsion of The Cfiy of penton as io the cause oi lhe plug-up is binding.
duke's wlil app[y this guaran#ee for a period of two (2) years, begfnning on the cfate of
treatment, and ending lwo years affer the data of freatment.
Duke's will prov[de a THR��-YEAR GUARAN7�� an ahy p�id repeat applical[dns Ef�at
are per�ormod wifhin six rnon#hs of the expiration ciate of ihe prevfous guarantee periaci.
Re-lreatnienis, porformcd ai no charge in honor of khe gu�rantee, do nnt extend the
expJration date of the guaranfee,
Thls guarantee applios only ta sewer stoppages caused by Iive free roots. It does not
appiy fa stoppages caused by grease or other foreic�n ��atter; flat, collapsed or
daformed pipe; ar flaod(ng caused by a surchargcd ar pfugged sawer section
dawnstream from a gttaranteed sewer section. Duke's shail not be responsit�le for any
damages caused by sewer sta�pages.
7his c�uarantee applfes ta main Ilne sewers only.
Lf/-1BiLl'fY
buke's is an insured, fully licensed pesticlde ap�l(catioE� company, and is ceriified to
Apply EPA regisfered roof confroi prot{ucts with State environmental regttlatory
agencies.
Duke's will provide annual bonding, at ihe direcf eost of sald bonds. Duke's accepts
res�onsibiliry for damage to aboveground vegetatlnn, �uke's is not respansible for
darnages caused !�y sewer stoppac�es.
Certificates of insurance are avall�ble upon request.
-4�
�XHiBIT E
QUAE.[FlCATIONS
�uke's l�as completed over 5,000 root�contra! Jobs, treatlnc� in excess of 190,000,000
feet of sewer, since 1976. Duke's h�s controlied tree roots in more sewer plpe, under
more condit(ons than any other organization in the IJ.S,, public �r prlvate.
TERM
The term of this contract is for 36 monfhs, Thls contract r�tay �ie extendad u� to an
add'rtiona� 36 months by The C►ty af Denton wifh the mutual consent af bot1� parlies.
PR[CE SCNEqUL�
Duke's Fioot Control, Inc. submits il�e folfowing nrices 1n accordance with the
8uy8o�rd Contracf # 35��10:
Pipe D(ameter
6"-12"
'15"
9 8'�
21"
24��
27"
3�" p�us
F'rice pe�� FooE
$9.3�Ift
$2.20/ff
�3,fl0/�f
$3.40/ff
$5.001ff
$�.60/fi
$6,OO/ft
Prices are compuled p�r finear foot, manhofo fo ntanhola, and include all l.abor,
Materials, �quipment, and Mobliizafion. Also, pfease note that a�3,000.00 minimum
charc�e is required.
POLLIlTfON AND LlABIl.1TY lNSURANC�
The Pollulion and Liability lnsurance described herein ls in addltion ta all other
insurance pravlded by Duke's, 7his cvverage sliall protect ths Qw�ier, ai�d ihe Owner's
officers, agenis, anct employees frorn claims for damages for bocfily or personal lnjury,
sickness ar disaase, ihcludinc� death; and from claims for damac�es to propert� and/or
the eilvfranment, which may ar[se directly ouf of the use of chemio�tls and/or p�llut(on,
The am�unt af fhis insurance sliall be $5,000,0OO,Od fotal Ioss,
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