2013-138ORDINANCE NO. 2013-138
AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR,
AUTHORIZING, AND APPROVING THE EXPENDITURE OF FUNDS FOR THE
PURCHASE OF TRAFFIC SIGNAL HEAD LIGHT-EMITTING-DIODODE (LED)
1NDICATIONS AND PEDESTRIAN LED INDICATIONS, FOR THE CITY OF DENTON
TRAFFIC DEPARTMENT, 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 REQUIREMENTS OF
COMPETITIVE BIDDING; AND PROVIDING AN EFFECTIVE DATE (FILE 5266
AWARDED TO DYNAMIC VISION IN THE ANNUAL ESTIMATED AMOUNT OF
$125,000 FOR A THREE (3) YEAR NOT TO EXCEED AMOUNT OF $375,000).
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 books; electricity, gas, water and other utility purchases; captive replacement
parts or components for equipment; and library materials for a public library that are available
only from the persons holding exclusive distribution rights to the materials; and need not be
submitted to competitive bids; and
WHEREAS, the City Council wishes to procure one or more of the items mentioned in
the above paragraph; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The following purchase of materials, equipment or 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
5266 Dynamic Vision $375,000
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 books; electricity, gas, water and other utility purchases;
captive replacement parts or components for equipment; and library materials for a public library
that are available only from the persons holding exclusive distribution rights to the materials; and
need not be submitted to competitive bids.
SECTION 3. The acceptance and approval of the above items shall not constitute a
contract between the City and the person submitting the quotation for such items until such
person shall comply with all requirements specified by the Purchasing Department.
SECTION 4. The City Manager is hereby authorized to execute any contracts relating to
the items specified in Section 1 and the expenditure of funds pursuant to said contracts is hereby
authorized.
SECTION 5. The City Council of the City of Denton, Texas hereby expressly delegates
the authority to take any actions that may be required or permitted to be performed by the City of
Denton under the File 5266 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.
MARK A. _ _U UGH , YOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: �
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY: � ` �
5-ORD-Fi 266
FILE 5266
CONTRACT BY AND BETWEEN
CITY OF DENTON, TEXAS AND
DYNAMIC VISION CO. (FILE 5266)
THIS CONTRACT is made and entered into this �`�� day of �,i�iA.D., 2013,
by and between Dynamic Vision Co. a corporation, whose address is 210 N. Hwy, 360 #1600,
Grand Prairie, TX 75050, hereinafter referred to as "Supplier," and the CITY OF DENTON,
TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be effective
upon approval of the Denton City Council and subsequent execution of this Contract by the
Denton City Manager or his duly authorized designee.
For and in consideration of the covenants and agreements contained herein, and far the
mutual benefits to be obtained hereby, the parties agree as follows:
SCOPE OF SERVICES
Supplier shall provide products in accordance with the City's FILE # 5266, a copy of
which is on file at the office of Purchasing Agent and incorporated herein for all purposes. The
Contract consists of this written agreement and the following items which are attached hereto, or
on file, and incorporated herein by reference:
(a) City of Denton's FII,E 5266 (on file at the office of the Purchasing Agent)
(b) Standard Terms and Conditions (E�hibit "A")
(c) Special Terms and Conditions (Exhibit "B")
(d) Forr� CIQ — Conflict of Interest Questionnaire (Exhibit "C").
(e) Supplier's Proposal. (Exhibit "D");
These documents make up the Contract documents and what is called for by one shall be
as binding as if called far by all. In the event of an inconsistency ar conflict in any of the
provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving
precedence first to the written agreement then to the contract documents in the order in which
they are listed above. These documents shall be referred to collectively as "Contract
Documents."
FILE 5266
IN WITNESS WHEREOF, the parties of these presents have executed this agreement in
the year and day first above written.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: ��
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
SUPPLIER
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AUTHORIZED SI
Date:
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CITY OF DENTON, TEXAS
BY• 4.
GEORGE C. AMPBELL, CITY MANAGER
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FILE 5266
Exhibit A
Citv of Denton
Standard Purchase Terms and Conditions
These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other
requirements included in the City of Denton's solicitation are applicable to Contracts/Purchase Orders
issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller herein after
referred to as the Supplier. Any deviations must be in writing and signed by a representative of the City's
Procurement Department and the Supplier. No Terms and Conditions contained in the Supplier's Proposal
response, Invoice ar Statement shall serve to modify the terms set forth herein. If there is a conflict
between the provisions on the face of the Contract/Purchase Order these written provisions will take
precedence.
By submitting an Offer in response to the Solicitation, the Supplier agrees that the contract sha11 be
governed by the following terms and conditions, unless exceptions are duly noted and fu11y negotiated.
Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a
Solicitation to purchase Goods, and Sections 9, 10, 11 and 22 shall apply only to a Solicitation to
purchase Services to be performed principally at the City's premises or on public rights-of-way.
1. SUPPLIER'S OBLIGATIONS. The Supplier shall fully and timely provide all deliverables described in the
Solicitation and in the Supplier's Offer in strict accordance with the terms, covenants, and conditions of the Contract
and all applicable Federal, State, and local laws, rules, and regulations.
2. EFFECTIVE DATE/TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of
the date the contract is signed by the City, and shall continue in effect until all obligations are performed in
accordance with the Contract.
3. SUPPLIER TO PACKAGE DELIVERABLES: The Supplier will package deliverables in accordance with
good commercial practice and shall include a packing list showing the description of each item, the quantity and unit
price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping
container shall be clearly and permanently marked as follows: (a) The Supplier's name and address, (b) the City's
name, address and purchase order or purchase release number and the price agreement number if applicable, (c)
Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing
the packing list. The Supplier shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest
transportation costs and to conform to all the requirements of common carriers and any applicable specification. The
City's count or weight shall be final and conclusive on shipments not accompanied by packing lists.
4. SHIPMENT UNDER RESERVATION PRO�IBITED: The Supplier is not authorized to ship the
deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables.
5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City only when the City
actually receives and accepts the deliverables.
6. DELNERY TERMS AND TRANSPORTATION CHARGES; Deliverables shall be shipped F.O.B. point of
delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer,
the Supplier's price shall be deemed to include all delivery and transportation charges. The City shall have the right
to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that
set forth the purchase order.
7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including, but
not limited to the Uniform Commercial Code, to inspect the deliverables at delivery befare accepting them, and to
reject defective or non-conforming deliverables. If the City has the right to inspect the Supplier's, or the Supplier's
Subcontractor's, facilities, or the deliverables at the Supplier's, or the Supplier's Subcontractor's, premises, the
Supplier shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to
the City to facilitate such inspection.
FILE 5266
8. NO REPLACEMENT OF DEFECTNE TENDER: Every tender or delivery of deliverables must fully comply
with all provisions of the Contract as to time of delivery, quality, and quantity. Any non-complymg tender shall
constitute a breach and the Supplier shall not have the right to substitute a conforming tender; provided, where the
time far performance has not yet expired, the Supplier may notify the City of the intention to cure and may then
make a conforming tender witlun the time allotted in the contract.
9. PLACE AND CONDITION OF R'ORK: The City shall provide the Supplier access to the sites where the
Supplier is to perform the services as required in order for the Supplier to perform the services in a timely and
efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Supplier
acknowledges that it has satisfied itself as to the nature of the City's service requirements and specifications, the
location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and
facilities necessary to perform the services, and any other condition or state of fact which could in any way affect
performance of the Supplier's obligations under the contract. The Supplier hereby releases and holds the CiTy
harmless from and against any liability ar claim for damages of any kind or nature if the actual site or service
conditions differ from expected conditions.
10. WORKFORCE
A. The Supplier shall employ only orderly and competent workers, skilled in the performance of the services which
they will perform under the Contract.
B. The Supplier, its employees, subcontractors, and subcontractor's employees may not while engaged in
participating or responding to a solicitation or while in the course and scope of delivering goods or services under a
City of Denton contract or on the City's property .
i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as
required by the terms of the contract; or
ii. use or possess alcoholic ar other intoxicating beverages, illegal drugs or controlled substances, nor may
such workers be intoxicated, or under the influence of alcohol or drugs, on the job.
C. If the City or the City's representative notifies the Supplier that any worker is incompetent, disorderly or
disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or
was under the influence of alcohol or drugs on the job, the Supplier shall immediately remove such worlcer from
Contract services, and may not employ such worker again on Contract services without the City's prior written
consent.
Immigration: The Supplier represents and warrants that it shall comply with the requirements of the Immigration
Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for
any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and
the Illegal Immigration Re�orm and Immigant Responsibility Act of 1996 ("IIIZIRA) enacted on September 30,
1996.
11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Supplier,
it's Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local
health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services,
including but not limited to those promulgated by the City and by the Occupational Safety and Health
Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Supplier shall
indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines,
penalties and liability of every kind arising from the breach of the Supplier's obligations under this paragraph.
Environmental Protection: The supplier shall be in compliance with all applicable standards, orders, or regulations
issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seq.) and the Federal Water Pollution
Control Act, as amended, (33 U.S.C. §1251 etseq.).
12. INVOICES:
A. The Supplier shall submit separate invoices in duplicate on each purchase order or purchase release after each
delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each
shipment or delivery made.
FILE 5266
B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and
the master agreement number if applicable, the Department's Name, and the name of the point of contact for
the Department. Invoices shall be itemized and transportation
charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall
be attached to the invoice. The Supplier's name, remittance address and, if applicable, the tax identification number
on the invoice must exactly match the information in the Vendor's registration with the City. Unless otherwise
instructed in writing, the City may rely on the remittance address specified on the Supplier's invoice.
C. Invoices for labor shall include a copy of all time-sheets with lrade labor rate and deliverables order number
clearly identified. Invoices shall also include a tabulation of work-hours at the appropriate rates and gouped by
work order number. Time billed far labar shall be limited to hours actually worked at the work site.
D. Unless otherwise expressly authorized in the Contract, the.Supplier shall pass through all Subcontract and other
authorized expenses at actual cost without markup.
E. Federal excise taa�es, 5tate taxes, or City sales taxes must not be included in the invoiced amount. The City will
furnish a tax exemption certificate upon request.
13. PAYMENT: -
A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30)
calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable,
whichever is later.
B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser
of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if
payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall
not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved.
C. If partial shipments or deliveries are authorized by the City, the Supplier will be paid for the partial shipment or
delivery, as stated above, provided that the invoice matches the shipment or delivery.
D. The City may withhold or set off the entire payment or paxt of any payment otherwise due the Supplier to such
extent as may be necessary on account oi
i. delivery of defective or non-conforming deliverables by the Supplier;
u. third party claims, which are not covered by the insurance which the Supplier is required to provide, are
filed or reasonable evidence indicating probable filing of such claims;
iii. failure of the Supplier to pay Subcontractors, or for labor, materials or equipment;
iv. damage to the property of the Ciiy or the City's agents, employees or suppliers, which is not covered by
insurance required to be provided by the Supplier;
v. reasonable evidence that the Supplier's obligations will not be completed within the time specified in the
Contract, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the
anticipated delay;
vi. failure of the Supplier to submit proper invoices with purchase order number, with all required
attachments and supporting documentation; or
vii. failure of the Supplier to comply with any material provision of the Contract Documents.
E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City
may offset indebtedness owed the City through payment withholding.
F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer
of funds. The Supplier agrees that there shall be no additional charges, surcharges, ar penalties to the City for
payments made by credit card or electronic funds transfer.
G. The awarding or continuation of this contract is dependent upon the availability of funding. The City's payment
obligations are payable only and solely from funds Appropriated and available for this contract. The absence of
Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not
Appropriated or available and any deliverables delivered but unpaid shall be returned to the Supplier. The City shall
provide the Supplier written notice of the failure of the City to make an adequate Appropriation for any fiscal year to
pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit
the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there
will be no penalry nor removal fees charged to the City.
14. TRAVEL EXPENSES: All travel, lodging and per diem ea�penses in connection with the Contract shall be paid
by the Supplier, unless otherwise stated in the contract terms.
FILE 5266
15. FINAL PAYMENT AND CLOSE-OUT:
A. If a DBE/MBE/WBE Program Plan is ageed to and the Supplier has identified Subcontractors, the Supplier is
required to submit a Contract Close-Out MBE/WBE Compliance Report to the Purchasing Manager no later than the
15th calendar day after completion of a11 work under the contract. Final payment, retainage, or both may be withheld
if the Supplier is not in compliance with the requirements as accepted by the City.
B. The making and acceptance of final payment will constitute:
i. a waiver of all claims by the City against the Supplier, except claims (1) which have been previously
asserted in writing and not yet settled, (2) arising from defective wark appearing after final inspection, (3) arising
from failure of the Supplier to comply with the Contract or the terms of any warranty specified herein, (4) arising
from the Supplier's continuing obligations under the Contract, including but not limited to indemnity and warranty
obligations, or (5) arising under the City's right to audit; and ii. a waiver of all claims by the Supplier against the
City other than those previously asserted in writing and not yet settled.
16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special
tooling or special test equipment fabricated or required by the Supplier for the purpose of filling this order, such
special tooling equipment and any process sheets related thereto shall become the property of the City and shall be
identified by the Supplier as such.
17. RIGHT TO AUDIT:
A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the
Contract. The Supplier shall retain such books, records, documents and other evidence pertaining to the Contract
period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case
records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other
evidence shall be available, within ten (10) business days of written request. Further, the Supplier shall also require
all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence
pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be
made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless
the audit reveals an overpayment of 1% or geater. If an overpayment of 1% or greater occurs, the reasonable cost
of the audit, including any travel costs, must be borne by the Supplier which must be payable within five (5)
business days of receipt of an invoice.
B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall
constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books", "records",
"documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if
such drafts or electronic files are subsequently used to generate or prepare a fmal printed document.
18. SUBCONTRACTORS:
A. If the Supplier identified Subcontractors in a DBE/MBE/WBE agreed to Plan, the Supplier shall comply with all
requirements approved by the CiTy. The Supplier sha11 not initially employ any Subcontractor except as provided in
the Supplier's Plan. The Supplier shall not substitute any Subcontractor identified in the Plan, unless the substitute
has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of
any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has
been approved, the Supplier is additionally required to submit a monthly Subcontract Awards and Expenditures
Report to the Procurement Manager, no later than the tenth calendar day of each month.
B. Work performed far the Supplier by a Subcontractor shall be pursuant to a written contract between the Supplier
and Subcontractor. The terms of the subcontract may not conflict with the terms of the
Contract, and shall contain provisions that:
i. require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the
provisions, specifications and terms of the Contract;
ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior
written consent of the CiTy and the Supplier. The City may require, as a condition to such futther subcontracting,
that the Subcontractor post a payment bond in form, substance and amount acceptable to the City;
iii. require Subcontractors to submit all invoices and applications for payments, including any claims for
additional payments, damages or otherwise, to the Supplier in sufficient time to enable the Supplier to include same
with its invoice or application for payment to the City in accordance with the terms of the Contract;
iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in
the type and amounts specified for the Supplier, with the City being a named insured as its interest shall appear; and
v. require that the Subcontractor indemnify and hold the City harmless to the same e�ent as the Supplier is
required to indemnify the City.
FILE 5266
C. The Supplier shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the
Supplier is responsible for the Supplier's own acts and omissions. Nothing in the Contract shall create for the benefit
of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it
create any obligation on the part of the City to pay or to see to the payment of any moneys due any such
Subcontractor except as may otherwise be required by law.
D. The Supplier shall pay each Subcontractor its appropriate share of payments made to the Supplier not later than
ten (10) calendar days after receipt of payment from the City.
19. WARRANTY-PRICE:
A. The Supplier warrants the prices quoted in the Offer are no higher thari the Supplier's current prices on orders by
others for like deliverables under similar terms of purchase.
B. The Supplier certifies that the prices in the Offer have been arrived at independently without consultation,
communication, ar agreement for the purpose of restricting competition, as to any matter relating to such fees with
any other firm or with any competitor.
C. In addition to any other remedy available, the City may deduct from any amounts owed to the Supplier, or
otherwise recover, any amounts paid for items in excess of the Supplier's current prices on orders by others for like
deliverables under similar terms of purchase.
20. WARRANTY — TITLE: The Supplier warrants that it has good and indefeasible title to all deliverables
furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and
encumbrances. The Supplier shall indemnify and hold the City harmless from and against a11 adverse title claims to
the deliverables.
21. R'r1RRANTY — DELIVERABLES: The Supplier warrants and represents that all deliverables sold the City
under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material
respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the
Supplier, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws,
rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables
shall be new or recycled merchandise, and not used or reconditioned.
A. Recycled deliverables shall be clearly identified as such.
B. The Supplier may not limit, exclude or disclaim the foregoing warranty ar any wananty implied by law; and any
attempt to do so shall be without force or effect.
C. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the date of
acceptance of the deliverables ar from the date of acceptance of any replacement deliverables. If during the warranty
period, one or more of the above warranties are breached, the Supplier shall promptly upon receipt of demand either
repair the non-conforming deliverables, or replace the non-conforming deliverables with fully conforming
deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or
replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the
Supplier. The City shall endeavar to give the Supplier written notice of the breach of warranTy within thirty (30)
calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's
rights under this section.
D. If the Supplier is unable or unwilling to repair or replace defective or non-conforming deliverables as required by
the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be
required to purchase under the Contract from the Supplier, and purchase conforming deliverables from other
sources. In such event, the Supplier shall pay to the City upon demand the increased cost, if any, incurred by the
City to procure such deliverables from another source.
E. If the Supplier is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty,
the Supplier sha11 transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's
warranty cannot be fully transferred to the City, the Supplier shall assist and cooperate with the City to the fullest
extent to enforce such manufacturer's warranty for the benefit of the City.
22. WARRANTY — SERVICES: The Supplier wanants and represents that all services to be provided the City
under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with
generally accepted industry standards and practices, the terms, condirions, and covenants of the Contract, and all
applicable Federal, State and local laws, rules or regulations.
A. The Supplier may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law,
and any attempt to do so shall be without force ar effect.
FILE 5266
B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance
Date. If during the warranty period, one or more of the above warranties are breached, the Supplier shall promptly
upon receipt of demand perform the services again in accordance with above standard at no additional cost to the
City. All costs incidental to such additional perFormance shall be borne by the Supplier. The City shall endeavor to
give the Supplier written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach
warranty, but failure to give timely notice shall not impair the Ciry's rights under this section.
C. If the Supplier is unable or unwilling to perform its services in accordance with the above standard as required by
the City, then in addition to any other available remedy, the City may reduce the amount of services it may be
required to purchase under the Contract from the Supplier, and purchase conforming services from other sources. In
such event, the Supplier shall pay to the City upon demand the increased cost, if any, incurred by the City to procure
such services from another source.
23. ACCEPTANCE OF INCOMPLETE OR NON-CONFORMING DELNERABLES: If, instead of requiring
immediate correction or removal and replacement of defective or non-conforming deliverables, the City prefers to
accept it, the Gity may do so. The Supplier sha11 pay all claims, costs, losses and damages attributable to the City's
evaluat'ion of and detemunation to accept such defective ar non-conforming deliverables. If any such acceptance
occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the
diminished value of the defective or non-conforming deliverables. If the acceptance occurs after final payment, such
amount will be refunded to the City by the Supplier.
24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other
pariy's intent to perform, demand may be made to the other party for written assm•ance of the intent to perform. In
the event that no assurance is given within the time specified after demand is made, the demanding party may treat
this failure as an anticipatory repudiation of the Contract.
25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Supplier is
observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is
determined by the City to be unsafe to either life or property. Upon notification, the Supplier will cease all work
until notified by the City that the violation or unsafe condition has been corrected. The Supplier shall be liable for all
costs incurred by the City as a result of the issuance of such Stop Work Notice.
26. DEFAULT: The Supplier shall be in default under the Contract if the Supplier (a) fails to fully, timely and
faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of
performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United
States ar(d) makes a material misrepresentation in Supplier's Offer, or in any report or deliverable required to be
submitted by the Supplier to the City.
27. TERMINATION FOR CAUSE: In the event of a default by the Supplier, the City shall have the right to
terminate the Contract far cause, by written notice effective ten (10) calendar days, unless otherwise specified, after
the date of such notice, unless the Supplier, within such ten (10) day period, cures such default, or provides evidence
sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, e�st. In addition to any
other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses
and expenses, incurred by the City as a result of the Supplier's default, including, without limitation, cost of cover,
reasonable attorneys' fees, court costs, and prejudgment and post judgment interest at the maximum lawful rate.
Additionally, in the event of a default by the Supplier, the City may remove the Supplier from the City's vendor list
for three (3) years and any Offer submitted by the Supplier may be disqualified for up to three (3) years. All rights
and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law.
28. TERMINATION WITHOUT CAUSE: The Ciry shall have the right to terminate the Contract, in whole or in
_ part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of
termination, the Supplier sha11 promptly cease all further work pursuant to the Contract, with such exceptions, if any,
specified in the notice of termination. The City shall pay the Supplier, to the extent of funds Appropriated or
otherwise legally available for such purposes, for all goods delivered and services performed and obligations
incurred priar to the date of termination in accordance with the terms hereof.
29. FRAUD: Fraudulent statements by the Supplier on any Offer or in any report or deliverable required to be
submitted by the Supplier to the City shall be grounds for the termination of the Contract for cause by the City and
may result in legal action.
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30. DELAYS: .
A, T'he City may delay scheduled delivery or other due dates by written notice to the Supplier if the City deems it is
in its best interest. If such delay causes an increase in the cost of the work under the Contract, the CiTy and the
Supplier shall negotiate an equitable adjustment for costs incurred by the Supplier in the Contract price and execute
an amendment to the Contract. The Supplier must assert its right to an adjustment within thirty (30) calendar days
from the date of receipt of the notice of delay, Failure to agree on any adjusted price shall be handled under the
Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the Supplier
from delaying the delivery as notified.
B. Neither party shall be liable for any default or delay in the performance of its obligations under this Contract if,
while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions,
sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event of default
or delay in contract performance due to any of the foregoing causes, then the time for completion of the services will
be e�ended; provided, however, in such an event, a conference will be held within three (3) business days to
establish a mutually ageeable period of time reasonably necessary to overcome the effect of such failure to perform.
31. INDEMIVITY: A. Definitions:
i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and
liability of every character, type or description, including all reasonable costs and expenses of litigation,
mediation or other alternate dispute resolution mechanism, including attorney and other professional fees
for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Supplier,
their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such
subcontractors; and third parties); and/or (2) death, bodily injury, illness, disease, worker's compensation,
loss of services, or loss of income or wages to any person (including but not limited to the agents, officers
and employees of the City, the Supplier, the Supplier's subcontractors, and third parties), ii. "Fault" shall
include the sale of defective or non-conforming deliverables, negiigence, willful misconduct or a breach of
any legally imposed strict liability standard.
B. THE SUPPLIER SHALL DEFEND (AT THE OPTION OF THE CTTY�, INDEMNIFY, AND HOLD THE CTTY, TTS
SUCCESSORS, ASSIGNS� OFFICERS� EMPLOYEES AND ELECTED OFFTCIALS NARMi,ESS FROM AND AGAINST ALL
INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT
oF 1'� SUPPLIER, OR THE SUPPLIER'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE
OF "ITIE SUPPLIER'S OBLIGATIONS UNDER TAE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIlVIIT THE
RIGHTS OF THE CITY OR THE SUPPLIER (INCLUDING, BUT NOT LINIITED TO, THE RIGHT TO SEEK
CONTRIBUTION� AGAINST ANY THIRD PARTY WHO MAY BE LLABLE FOR AN INDEMNIFIED CLAIM.
32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance
requirements detailed in the solicitation document. The successfui firm shall procure and maintain insurance of the
types and in the minimum amounts acceptable to the City of Denton. The insurance shall be written by a company
licensed to do business in the State of Texas and satisfactory to the City of Denton.
A. General Requirements.
i. The Supplier shall at a minimum carry insurance in the types and amounts indicated and agreed to, as
submitted to the City and approved by the City within the procurement process, for the duration of the
Contract, including extension options and hold over periods, and during any warranty period.
ii. The Supplier shall provide Certificates of Insurance with the coverage's and endorsements required to
the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after
written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer
to disqualification from consideration for award. The Supplier must also forward a Certificate of Insurance
to the City whenever, a previously identified policy period has expired, or an e�ctension option or hold over
period is exercised, as verification of continuing coverage.
iii. The Supplier shall not commence work unti] the required insurance is obtained and until such insurance
has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability
of the Supplier hereunder and sha11 not be construed to be a limitation of liability on the part of the
Supplier.
iv. The Supplier must submit certificates of insurance to the City for all subcontractors prior to the
subcontractars commencing work on the project.
v. The Supplier's and all subcontractors' insurance coverage shall be written by companies licensed to do
business in the State of Texas at the time the policies are issued and shall be written by companies with
A.M. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the
Texas Workers' Compensation Insurance Fund.
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vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation
endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following
information:
City of Denton
Materials Management Department
901B Texas Street
Denton, Texas 76209
vii. The "other" insurance clause shall not apply to the City where the City is an additional insured shown
on any policy. It is intended that policies required in the Contract, covering both the City and the Supplier,
shall be considered primary coverage as applicable.
viii. If insurance policies are not written for amounts agreed to with the City, the Supplier shall carry
Umbrella ar Excess Liability Insurance for any differences in amounts specified. If Excess Liability
Insurance is provided, it shall follow the form of the primary coverage.
ix. The CiTy shall be entitled, upon request, at an agreed upon location, and without expense, to review
certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or
revision or modification of particular policy terms, conditions, limitations, or exclusions except where
policy provisions are established by law or regulations binding upon either of the parties hereto or the
underwriter on any such policies.
x. The Ciry reserves the right to review the insurance requirements set forth during the effective period of
the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when
deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims
history of the industry or financial condition of the insurance company as well as the Supplier.
xi. The Supplier sha11 not cause any insurance to be canceled nar permit any insurance to lapse during the
term of the Contract or as required in the Contract.
�cii. The Supplier shall be responsible for premiums, deductibles and self-insured retentions, if any, stated in
policies. All deductibles or self-insured retentions shall be disclosed on the Certificate of Insurance.
xiii. The Supplier shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of
the aggregate limits below occurrence lunits for all applicable coverage's indicated within the Contract.
xiv. The insurance coverage's specified in within the solicitation and requirements are required minimums
and are not intended to limit the responsibility or liability of the Supplier.
B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument.
33. CLAIlVIS: If any claim, demand, suit, or other action is asserted against the Supplier which arises under or
concerns the Contract, or which could have a material adverse affect on the Supplier's ability to perform thereunder,
the Supplier shall give written notice thereof to the City within ten (10) calendar days after receipt of notice by the
Supplier. Such notice to the City shall state the date of notification of any such claim, demand, suit, or other action;
the names and addresses of the claimant(s); the basis thereof; and the name of each person against whom such claim
is being asserted. Such notice shall be delivered personally or by mail and shall be sent to the City and to the Denton
City Attorney. Personal delivery to the City Attorney shall be to City Hall, 215 East McKinney Street, Denton,
Texas76201.
34. NOTICES: Unless otherwise specified, all notices, requests, or other communications required or appropriate to
be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after
postmarked if sent by U.S. Postal Service Certified or Registered Mail, Return Receipt Requested. Notices delivered
by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by
first class mail, telefax, or other commercially accepted means. Notices to the Supplier shall be sent to the address
specified in the Supplier's Offer, or at such other address as a party may notify the other in writing. Notices to the
City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the
Purchasing Manager.
35. RIGI3TS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submiited by the
Supplier to the City shall become property of the City upon receipt. Any portions of such material claimed by the
Supplier to be proprietary must be clearly marked as such. Determination of the public nature of the material is
subject to the Texas Public Information Act, Chapter 552, and Texas Governruent Code.
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36. NO WARRANT'Y BY CITY AGAINST INFRINGEMENTS: The Supplier represents and warrants to the
City that: (i) the Supplier shall provide the City good and indefeasible title to the deliverables and (ii) the
deliverables supplied by the Supplier in accordance with the specifications in the Contract will not infringe, directly
or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual properiy right of any kind
of any third party; that no claims have been made by any person or entity with respect to the ownership or operation
of the deliverables and the Supplier does not know of any valid basis for any such claims. The Supplier shall, at its
sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs
(including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i)
any claim that the Ciry's exercise anywhere in the world of the rights associated with the City's' ownership, and if
applicable, license rights, and its use of the deliverables infringes the intellectual properiy rights of any third party;
or (ii) the Supplier's breach of any of Supplier's representations ar warranties stated in this Contract. In the event of
any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to
act as co-counsel on the City's behalf. Further, Supplier agrees that the City's specifications regarding the
deliverables shall in no way diminish Supplier's watranties ar obligations under this paragraph and the City makes
no warranty that the production, development, or delivery of such deliverables will not impact such warranties of
Supplier.
37. CONFIDEN'TIALITY: In order to provide the deliverables to the City, Supplier may require access to certain
of the City's and/or its licensars' confidential information (including inventions, employee information, trade
secrets, confidential know-how, confidential business information, and other information which the City or its
licensors consider confidential) (collectively, "Confidential Information"). Supplier acknowledges and agrees that
the Confidential Information is the valuable property of the City and/or its licensors and any unautharized use,
disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and/or its
licensors. The Supplier (including its employees, subcontractors, agents, or representatives) agees that it will
maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge,
recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner
not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law
or an order of any court or other governmental authority with proper jurisdiction; provided the Supplier promptly
notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate
protective arder. The Supplier agrees to use protective measures no less stringent than the Supplier uses within its
own business to protect its own most valuable information, which protective measures shall under all circumstances
be at least reasonable measures to ensure the continued confidentiality of the Confidential Information.
38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout
the world in and to the deliverables.
A. Patents. As to any patentable subject matter contained in the deliverables, the Supplier agrees to disclose such
patentable subject matter to the City. Further, if requested by the City, the Supplier agrees to assign and, if
necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such
patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its
employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved
by the City, to the City upon request by the City.
B. Copyrights. As to any deliverables containing copyrightable subject matter, the Supplier agrees that upon their
creation, such deliverables shall be considered as wark made-for-hire by the Supplier for the City and the City shall
own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the
City's sole or joint ownership of any such deliverables arising by virtue of the City's sole or joint authorship of such
deliverables. Should by operation of law, such deliverables not be considered works made-for-hire, the Supplier
hereby assigns to the City (and agrees to cause each of its employees providing services to the City hereunder to
execute, acknowledge, and deliver an assignment to the City o fl all worldwide right, title, and interest in and to such
deliverables. With respect to such wark made-for-hire, the Supplier agrees to execute, acknowledge, and deliver and
cause each of its employees providing services t� the City hereunder to execute, acknowledge, and deliver a work-
made-for-hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such
deliverables to the City or at such other time as the City may request.
C. Additional Assignments. The Supplier further agrees to, and if applicable, cause each of its employees to,
execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments
which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work
registration, trademark regisiration and/or protection, letters patent, or any similar rights in any and all countries and
in order to assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and
interest in and to the deliverables. The Supplier's obligations to execute, acknowledge, and deliver (or cause to be
executed, acknowledged, and delivered) instruments ar papers such as those described in this Paragraph 38 a., b.,
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and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City
should not seek to obtain copyright protection, mask work registration or patent protection for any of the
deliverables, but should desire to keep the same secret, the Supplier agrees to treat the same as Confidential
Information under the terms of Paragaph 37 above.
39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally
developed material unless otherwise specifically provided in the Contract. When material not originally developed is
included in a report in any form, the source shall be identified.
40. ADVERTISING: The Supplier shall not advertise or publish, without the City's prior consent, the fact that the
City has entered into the Contract, except to the extent required by law.
41. NO CONTINGENT FEES: The Supplier warrants that no person or selling agency has been employed ar
retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage,
brokerage, or contingent #'ee, excepting bona fide employees of bona fide established commercial or selling agencies
maintained by the Supplier for the purpose of securing business. Far breach or violation of this warranty, the City
shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct
from any amounts owed to the Supplier, or otherwise recover, the full amount of such commission, percentage,
brokerage or contingent fee.
42. GRATLTITIES: The City may, by written notice to the Supplier, cancel the Contract without liability if it is
determined by the City that gratuities were offered or given by the Supplier or any agent or representative of the
Supplier to any officer or employee of the City of Denton with a view toward securing the Contract or securing
favorable treatment with respect to the awarding or amending or the making of any determinations with respect to
the performing of such contract. In the event the Contract is canceled by the City pursuant to this provision, the City
shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred
by the Supplier in providing such gratuities.
43. PROHISITION AGAINST PERSONAL INTEREST IN CONTRACTS: No o�cer, employee, independent
consultant, or elected official of tt�e City who is involved in the development, evaluation, or decision-making
process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract
resulting from that solicitation. Any willful violation of this section shall constitute impropriety in office, and any
officer ar employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation
of this provision, with the knowledge, expressed or implied, of the Supplier shall render the Contract voidable by the
City. The Supplier shall complete and submit the City's Conflict of Interest Questionnaire (Attachment B).
44. INDEPENDENT SUPPLIER: The Contract shall not be construed as creating an employer/employee
relationship, a parhiership, or a joint venture. The Supplier's services shall be those of an independent supplier. The
Supplier agrees and understands that the Contract does not grant any rights or privileges established for employees
of the City of Denton, Texas for the purposes of income tax, withholding, social security ta��es, vacation ar sick lea�e
benefits, worker's compensation, or any other City employee benefit. The City shall not have supervision and control of
the Supplier or any employee of the Supplier, and it is e�tpressly understood that Supplier shall perform the services
hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton,
Texas, or his designee under this agreement.
45. ASSIGNMENT-DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and
the Supplier and their respective successors and assigns, provided however, that no right or interest in the Contract
shall be assigned and no obligation shall be delegated by the Supplier without the prior written consent of the City.
Any attempted assignment or delegation by the Supplier shall be void utiless made in conformity with this
paragraph. The Contraet is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it
being the intention of the parties that there are no third pariy beneficiaries to the Contract.
46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a
waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in
writing signed by the aggrieved party. No waiver by either the Supplier or the CiTy of any one or more events of
default by the other pariy shall operate as, or be construed to be, a permanent waiver of any rights or obligations
under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of
a similar or different character.
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47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No
pre-printed or similar terms on any the Supplier invoice, arder or other document shall have any farce ar effect to
change the terms, covenants, and conditions of the Contract.
48. INTERPRETATION: The Contract is intended by the parties as a fmal, complete and exclusive statement of
the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the
trade shall be relevant to supplement ar explain any term used in the Contract. Although the Contract may have.been
substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair
to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the
Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall
control, unless otherrvise defined in the Coniract.
49. DISPUTE RESOLUTION:
A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to
prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a
statute of limitations or to seek injunctive relief. Either party may make a written request for a meefing between
representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as
agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision-making
authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to
negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not
succeeded in negotiating a resolution of the dispute, they will proceed directly to rnediation as described below.
Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed
directly to mediation as described below.
B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the
parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of
the dispute. Should they choose this option; the CiTy and the Supplier agree to act in good faith in the selection of the
mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract
prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a
contract interpretation e�cpert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation
of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution
Program (DCAP). The parties agree to participate in mediation in good faith for up to thiriy (30) calendar days from
the date of the first mediation session. The City and the Supplier will share the mediator's fees equally and the
parties will bear their own costs of participation such as fees for any consultants or attorneys they may utIlize to
represent them or otherwise assist them in the mediation.
50. JLIRISDICTION AND VENTJE: The Contract is made under and shall be governed by the laws of the State of
Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm.
Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or
jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the
parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be
construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from
any competent authority as contemplated herein.
51. INVALIDITY: The invalidity, illegality, or unenfarceability of any provision of the Contract shail in no way
affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be
deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract
did not contain the particular portion or provision held to be void. The parties further agee to reform the Contract to
replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken
provision. The provisions of this section shall not prevent this entire Contract from being void should a provision
which is the essence of the Contract be determined to be void.
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52. HOLIDAYS: The following holidays are observed by the City
New Year's Day (observed)
MLK Day
Memorial Day
4th of July
Labor Day
Thanksgiving Day
Day After Thanksgiving
Christmas Eve (observed)
Christmas Day (observed)
New Year's Day (observed)
If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday,
it will be observed on the following Monday. Normal hours of operation shall be between 8:00 am and 4:00 pm,
Monday through Friday, excluding City of Denton Holidays. Any scheduled deliveries or work performance not
within the normal hours of operation must be approved by the CiTy Manager of Denton, Texas or his authorized
designee.
53. SURVNABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on
the parties, including but not limited to the warranty, indemnity, and confidentiality obligations of the parties, shall
survive the expiration or termination of the Contract.
54. NON-SUSPENSION OR DEBARMENT CERTIFICATION:
The City of Denton is prohibited from contracting with or making prime or sub-awards to parties that are suspended
ar debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By
accepting a Contract with the City, the Vendor certifies that its firm and its principals axe not currently suspended or
debarred from doing business with the Federal Government, as indicated by the General Services Administration
List of Parties Excluded from Federal Procurement and Non-Procurement.Programs, the State of Texas, or the CiTy
of Denton.
55. EQUAL OPPORTITNITY
A. Equal Employment Opportunity: No Offeror, or Offeror's agent, shall engage in any discriminatoiy
employment practice. No person shall, on the grounds of race, sex, age, disability, creed, color, genetic testing, or
national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from
this RFQ.
B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall
engage in any discriminatory employment practice against individuals with disabilities as defined
in the ADA.
56. BiJi' AMERICAN ACT-SUPPLIES (Applicable to certain federally funded requirements)
The following federally funded requirements are applicable, in addition to the specific federally funded
requirements.
A. Definitions. As used in this paragraph —
i. "Component" means an article, material, or supply incorporated directly into an end product.
ii. "Cost of components" means -
(1) For components purchased by the Supplier, the acquisition cost, including transportation costs to the place of
incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty
(whether or not a duty-free entry certificate is issued); ar
(2) For components manufactured by the Supplier, all costs associated with the manufacture of the component,
including transportation costs as described in paragraph (1) of this deimition, plus allocable overhead costs, but
excluding profit. Cost of components does not include any costs associated with the manufacture of the end product.
iii. "Domestic end product" means-
(1) An unmanufactured end product mined or produced in the United States; or
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(2) An end product manufactured in the United States, if the cost of its components mined, produced, or
manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign
origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in
sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap
generated, collected, and prepared for processing in the United States is considered domestic.
iv. "End product" means those articles, materials, and supplies to be acquired under the contract for public use.
v. "Foreign end product" means an end product other than a domestic end product.
vi. "United States" means the 50 States, the District of Columbia, and outlying areas.
B. The Buy American Act (41 U.S.C. l0a - lOd) provides a preference for domestic end products far supplies
acquired for use in the United States.
C. The City does not maintain a list of fareign articles that will be treated as domestic for this Contract;
but will consider for approval foreign articles as domestic for this product if the articles are on a list
approved by another Governmental Agency. The Offeror shall submit documentation with their Offer
demonstrating that the article is on an approved Governmental list.
D. The Supplier shall deliver only domestic end products except to the extent that it specified delivery of foreign end
products in the provision of the Solicitation entitled "Buy American Act Certificate".
57. RIGHT TO INFORMATION: The City of Denton reserves the right to use any and all information presented in
any response to this solicitation, whether amended or not, except as prohibited by law. Selection of rejection of the
submittal does not affect this right.
58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded supplier or supplier to be licensed by
the State of Texas, any and all fees and taYes are the responsibility of the supplier.
59. PREVAILING WAGE RATES: All suppliers will be required to comply with Provision 5159a of "Vernon's
Annotated Civil Statutes" of the State of Texas with respect to the payment of prevailing wage rates and prohibiting
discrimination in the employment practices.
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60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall
comply with all State, Federal, and Local laws and requirements. The Supplier must comply with all applicable laws
at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits
bribery; (ri) §36.09 of the Texas Penal Code, which prohibits the offering or confeming of benefits to public
servants. The Supplier shall give all notices and comply with all laws and regulations applicable to furnishing and
performance of the Contract.
61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Supplier shall demonstrate on-site compliance with
the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing
with issuance of Form W-2's to common law employees. Supplier is responsible for both federal and State
unemployment insurance coverage and standard Worker's Compensation insurance coverage. Supplier shall ensure
compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable
to Supplier or its employees for any Unemployment or Workers' Compensation coverage, or federal or State
withholding requirements. Supplier shall indemnify the City of Denton and shall pay all costs, penalties, or losses
resulting from Supplier's omission or breach of this Section.
62. DRUG FREE WORKPLACE: The supplier shall comply with the applicable provisions of the Drug-Free
Work Place Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug-
free work environment; and the final rule, government-wide requirements for drug-free work place (grants), issued
by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to
implement the provisions of the Drug-Free Work Place Act of 1988 is incorporated by reference and the supplier
shall comply with the relevant provisions thereof, including any amendments to the fmal rule that may hereafter be
issued.
63. SUPPLIER LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Supplier shall be liable
for all damages to government-owned, leased, or occupied property and equipment caused by the Supplier and its
employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any
performance pursuant to the Contract. The Supplier shall notify the City of Denton Procurement Manager in writing
of any such damage within one (1) calendar day.
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FILE 5266
64. FORCE MAJEiTRE: The City of Denton, any Customer, and the Supplier shall not be responsible for
performance under the Contract should it be prevented from performance by an act of war, order of legal authority,
act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event
of an occurrence under this Section, the Supplier will be excused from any further performance or observance of the
requirements so affected for as long as such circumstances prevail and the Supplier continues to use commercially
reasonable efforts to recommence performance ar observance whenever and to whatever e�ttent possible without
delay. The Supplier shall immediately notify the City of Denton Procurement Manager by telephone (to be
confirmed in writing within five (5) calendar days of the inception of such occurrence) and describe at a reasonable
level of detail the circumstances causing the non-performance ar delay in performance. '
65. NON-WAIVER OF RIGHTS: Failure of a Party to require performance by another Pariy under the Contract
will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either
Party's exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude,
cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the
Contract will nof be construed as a waiver of any continuing or succeeding breach.
66. NO WAIV�R OF SOVEREIGN IMMiJTTITY: The Parties expressly agree that no provision of the Contract
is in any way intended to constitute a waiver by the City of Denton of any immunities from suit or from liability that
the City of Denton may have by operation of law.
67. RECORDS RETENTION: The Supplier shall retain all financial records, supporting documents, statistical
records, and any other records or books relating to the performances called for in the Contract. The Supplier shall
retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State
Auditor's Office is satisfied that all audit and litigation matters are resolved, whichever period is longer. The
Supplier shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State
Auditor of Texas, and any federal govemmernal entity that has authority to review recards due to federal funds
being spent under the Contract.
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FILE 52�6
Exhibit B
S�ecial Term's and Condi#ions
The Quantifies indicated on Exhibit D are estimates based tipon ihe best available information.
The City reserves the right to increase or decrease the quantities to meet its actual needs without
any adjusiments in the bid price, Individnal purchase orders wi11 be issued on an as needed
basis. �
Praduct Chan�es Durin� Contract Term
The supplier sha11 n.at change specifications duzing fhe can#�•aci tezzn without prior approval.
.A.t�y devxation in the specifications or change in the product rr�ust be approved in advance by the
City of Denton. Notice of a change shall be su�mitted in tizn�iting to
dentonpu�chasing�,citvofdenton.�om, r�viih the above iile number in the subject 1ine, for review.
Products fo�ind to have ckanged specifications without no#ification, and acceptance, wz11 be
retu��ed ai the supplier's e�pense, P�oducts that have been installed will be replaced at the
suppliex's e:�pense. _
Aufhorized Dist�•ibutor
The supplier shall be the manufacturer ox authorized distributor oi the p��oposed products. The
CI15f11U11t01• shall be au#horized to sell to the City of Denton, and make available the
manufacturer's represen#ative as needed 6y the City.
Contract Terms
The contract term will be one (1) year, effective fi�om date of award or notice to pi•oeeed as
determined by the City af Denton Purchasing Departm�nt. At the City of Denton's option and
approval by the vendor, the eontract may be renewed for up to two (2) additional ane-year
pariods, as further explained in Renewal �ptions.
Renewal OUtions
The City of Denton reserves th� right to exe�cise an option to renew the cantract of fihe vendor
for two (2) additianal c�ne (1) year periods if agreed upon in w�7ting by both pa��tzes. All texms
and conditions must remain ihe sa�n� for each aptional additioz�al renewal year.
Price Escalation and De-escalati��a �
The City will implement an escalatipnlde-escalation price adjustment quarterly. The
escalati.an/de-escala#ion will be based upon rzxanufacturea• publ�shed pt7cing sheets to the vendar.
The price will be increased or decreased based upon the qua��terly percentage change in the
manufactw�er's price list. The price adjustr�ent will be determined c�ua��terly fiom the award
date. Shauld the change exceed oi• decxease a minimunn threshold value o£+/-1%, then the stated
eligibie bid prices shall be adjusted in accordance with the published price c�ange. It is the
supplier or the Cities responsibility to request a price adjustment quarterly in writing. If no
ret�uest is made, then �t wi11 be assu�a�ed that ti�e bid price will be in: eff�ct. The suuplxer must
subm�t or �nake availabie the manufacturers pricing sl�eet usec� to calculate the bid
nropasal, to �articinate in the escalation/de-escalation clause.
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FILE 5266
'�'otal Contract Amounf
The contact totat for services sl�all ��ot eLceed $375,000 foz the tiuee year #erm. Pricilig shall be
par Exhibit D attaciied.
Delivci�Y Lead Ti�na
Prodtict or ser��ices sliall be delivered ta the Ciiy per the days/weeks noted in Exhibit D after
receipt of tlie order.
EXHIBIT C
CONFLICT OF INTEREST QUESTIONNAIRE
FILE 5266
FORM CIQ
For vendor or other erson doin business with local overnmental entit
This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. OFFICE
USE ONLY
This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a Date Received
person who has a business relationship as defined by Section 176.001(1-a) with a local governmental
entity and the person meets requirements under Section 176.006(a).
By law this questionnaire must be filed with the records administrator of the local government entity not
later than the 7th business day after the date the person becomes aware of facts that require the
statement to be filed. See Section 176.006, Local Government Code.
A person commits an offense if the person knowingly violates Section 176.006, Local Government
Code. An offense under this section is a Class C misdemeanor.
� Name of person who has a business relationship with local governmental entity.
� U h(�,Yl�l,� C� l9 l CS1�. c;U ���' -
� Check this box if you are filing an update to a previously filed questionnaire.
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not
later than the 7'" business day after the date the originally filed questionnaire becomes incomplete or
inaccurate.)
3
Name of local government officer with whom filer has an employment or business
relationship.
I� �
Name of Officer
This section, (item 3 including subparts A, B, C& D), must be completed for each officer with whom the filer has an
employment or other business relationship as defined by Section 176.001(1-a), Local Government Code. Atta�h`'f
additional pages to this Form CIQ as necessary. "`I�
y- �
A. Is the local government officer named in this section receiving or likely to receive tax ble-income, other than
investment income, from the filer of the questionnaire?
� Yes 0 No s
B. Is the filer of the questionnaire receiving or likely to
or at the direction of the local government office m
from the local governmental entity?
� Yes � No
Ge taxable income, other than investment income, from
in this section AND the taxable income is not received
C. Is the filer of this qu�est��naire employed by a corporation or other business entity with respect to which the
local governme��6fificer serves as an officer or director, or holds an ownership of 10 percent or more?
Yes 0 No
D. Describe each affiliation or business relationship.
I
�
Signature of person doing usi es h th govern ental
entitv
19
Date
EXHIBIT D
���.���
/ �'� i � ,
'2�00 N. Hwy. 360 #1600
'��rand Prairie, TX 7505Q
T-o; City o# penton
Aifn: Scotf Wilson
Commenfs or specia! instrucfiions:
bATE: Augusf 9, .2092
Quotatlon #: Q20288
Quota�ion valid until:
Prepared by.� Veronica Lopez
,- .,.. �.. _ .,: :. _ : - - - - -- -
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_.... � _
, _..._.. _.. _.
. _.:.;_::. _, .._ _._ _,,,,�_..
_..._ �,._s..,_ :.. .... ... .............._.....,._..:_.:�._....._._......._.._...........:.._.__:-:.,....-.__� :,��,,,:.;::_,:--,- - - -
.�,.. . ...._... _ :.::::.::... . . - -
_. . . . ... _ .._ ... .: . .. . . . . . . _...... ....._ ,. . ._. . - -..... = --
,. , ,� ..........: . . ... ..:... . ... . _ ,._.... <:..�_.:- :-,-_..-._ - �� - - -
.:.3TEM_ "QT`S' ;',: `. , ��_- t _;> . _., _ DESCRIPTI0I�I � ,:..... �_ 4..ti�= � -• ,_ ��ICE� TOTAI;.'::�'
- -..�,-
Unlsss stated under the Line ftem Description, Dynamic is bidding ,
material anly.
1 96 JXC300-HFTR 12" REp LED - HlFLUX $4'1.04 $3,939.84
2 98 JXC3�0-HF7Y02 '[2" YELLOW LED - NI FLUX (H1GN TFMPERATURE) $5fi.16 $5,5�3.68
3 96 JXG30Q-HFTG 12" GI�E�N L�b - Nl FLUX $56.96 $5,39�.36
4 46 JXJ 300-07R03 RED ARROW - R�GH�' - $38.88 $1,788.48
1NCANDESCENT LOOKlNG, OMNJ DlRFCTlONAL
5 46 JXJ 300-�7RQ3 REi7 ARROW -LEFr- $38.88 $'1,788.48
lNCANDESCENT L�OKJNG, OMNI DfRECTlONAL
6 46 J�{J300-07Y03 YELLOW ARROW - Rrcxr- $39.96 $1,838.16
INCANDESCEIJT LOp1tlNG, OM1V1 DlRECT10NA�
7 4b JXJ300-OiY03 YELLOW ARROW -LEF7 - -- $39.9fi $1,838.16
1NCANDL�SCENT LOOKING, OMN! DlRECT10NAL
8 46 JXJ30�-07G03 GREEN ARROW � R�Gxr- $5�I.84 $2,384.64
1NCANDESCENT LDOKING, OMNI DlRECTlON�iL
9 46 JXJ300-07G03 GRE�N ARROW � r�r- $5�1.84 $2,3$4.64
INCANDESCENT 1.pOKING, QMNi DIRECTIONAL �
'{0 8� JXM-400VlElL COUNTDOWN P€DESTRIAN L�b -lrvcaNOESC�NT�oorunt� $164.�16 $�13,'132.SQ
� 1"O7A1. $39,99p.24
Dynamic Vision Co. lnc.
P(? Box 535397
Denton, TX 75053
Ph: 94tl-735-3035
Fx: 940-4$�4-017D
viopezCa)_dynvisian, nefi
THANK YDU FOR YQUR BUSIIV�SS!
20