2014-029
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FirstAmendmenttoAgreement11/13/14JR
SecondAmendmenttoAgreementɋOrdinanceNo.201705502/21/17JR
ORDINANCE NO. 2014 -029
AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A
CONTRACT FOR THE PURCHASE BY THE CITY OF DENTON, TEXAS OF FORWARD
MARKETING MODELING SOFTWARE IN SUPPORT OF THE ENERGY MARKETING
ORGANIZATION OF DENTON MUNICIPAL ELECTRIC FROM LCG CONSULTING IN AN
AMOUNT NOT -TO- EXCEED $309,000; PROVIDING FOR THE EXPENDITURE OF FUNDS
THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5424- AWARDED TO LCG
CONSULTING IN THE NOT -TO- EXCEED AMOUNT OF $309,000).
WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the
purchase of Forward Marketing Modeling Software for Denton Municipal Electric in accordance
with the procedures of State law and City ordinances; and
WHEREAS, the City Manager or a designated employee has received and reviewed and
recommended that the herein described proposals are the most advantageous to the City considering
the relative importance of price and the other evaluation factors included in the request for proposals;
and
WHEREAS, the City Council has provided in the City Budget for the appropriation of funds
to be used for the purchase of the materials, equipment, supplies or services approved and accepted
herein; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTIONa 1. The items in the following numbered request for proposal for materials,
equipment, supplies or services, shown in the "Request for Proposals" on file in the office of the
Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City
considering the relative importance of price and the other evaluation factors included in the request
for proposals.
RFP
NUMBER VENDOR AMOUNT
5424 LCG Consulting $309,000
SECTION 2. By the acceptance and approval of the above numbered items of the submitted
proposals, the City accepts the offer of the persons submitting the proposals for such items and
agrees to purchase the materials, equipment, supplies or services in accordance with the terms,
specifications, standards, quantities and for the specified sums contained in the Proposal Invitations,
Proposals, and related documents.
SECTION 3. Should the City and person submitting approved and accepted items and of
the submitted proposals wish to enter into a formal written agreement as a result of the acceptance,
approval, and awarding of the proposals, the City Manager or his designated representative is hereby
authorized to execute the written contract; provided that the written contract is in accordance with
the terms, conditions, specifications, standards, quantities and specified sums contained in the
Proposal and related documents herein approved and accepted.
SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the
authority to take any actions that may be required or permitted to be performed by the City of Denton
under the RFP 5424 to the City Manager of the City of Denton, Texas, or his designee.
SECTION 5. By the acceptance and approval of the above enumerated bids, the City Council
hereby authorizes the expenditure of funds therefor in the amount and in accordance with the
approved bids.
SECTION 6. This ordinance shall become effective immediately upon its passage and
approval.
PASS1; D AND Al'1'ROVI -'U) this tltc � day c�I" .... ,
2014.
MA RK A, B 1�RIOU�I'f, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: 10 �
o,
24
RFP 54 "
CONTRACT BY AND BETWEEN
CITY OF DENTON, TEXAS AND
FORWARD MARKET MODELING SOFTWARE (RFP 5424 )
THIS CONTRACT is made and entered into this 4 -�-h day of l—A.D., 2014,
by and between LCG CONSULTING a corporation, whose address is 4962 El Camino Real,
Suite 112, Los Altos, CA 94022, hereinafter referred to as "Supplier," and the CITY OF
DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be
effective upon approval of the Denton City Council and subsequent execution of this Contract by
the Denton City Manager or his duly authorized designee.
For and in consideration of the covenants and agreements contained herein, and for the
mutual benefits to be obtained hereby, the parties agree as follows:
SCOPE OF SERVICES
Supplier shall provide products in accordance with the City's RFP #5424 Forward
Market Modeling Software, 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) Special Terms and Conditions (Exhibit "A ")
(b) City of Denton's RFP 5424 (on file at the office of the Purchasing Agent)
(c) Standard Terms and Conditions (Exhibit "B ")
(d) Form 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 for by all. In the event of an inconsistency or conflict in any of the
provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving
precedence first to the written agreement then to the contract documents in the order in which
they are listed above. These documents shall be referred to collectively as "Contract
Documents."
RFP 5424
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
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY ��a p
RFP 5424
SULTING
BY:��
AlJ°lTlORIZI,, SIGNATURE
Date: January 17, 2014
Name: Rajat Deb
Title: President
650 - 962 -9670
PHONE NUMBER
650 - 962 -9615
FAX NUMBER
CITY OF DENTON, TEXAS
BY:
C (. AMPIIFLL, CITY MANAGER
Date: �11=
Exhibit A
Special Terms and Conditions
Total Contract Amount
The contract total shall not exceed $309,000. Pricing shall be per Exhibit D attached.
Delivery Lead Time
Products or services will be delivered within 15 days after the receipt of order from the City.
Additional Items
Supplier agrees to provide a resulting data only view user, at no additional cost.
Exception
Supplier has taken exception to Item 7 on page 8 of the RFP. The item has been revised as
follows:
LCG's proprietary UPLAN software model, as well as all other models and databases
commercially developed and offered to the City in this proposal, will remain the sole property of
LCG Consulting. Specifically, the City will receive the right to use these models and databases
during the license term with payment of the agreed upon license fees, the City will not become
the owner of these models, databases or any confidential and proprietary information contained
therein.
Term
The contract term will be one (1) year, effective from date of award. The City and the Supplier
shall have the option to renew this contract for an additional two (2) one -year periods.
The contract shall commence upon the date of signature by the City of Denton and shall
automatically renew each year, from the date of award by City Council, unless either party
notifies the other prior to the scheduled renewal date. At the sole option of the City of Denton,
the contract may be further extended as needed, not to exceed a total of six (6) months.
RFP 5424
Exhibit
Denton City of
Standard
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 or Statement shall serve to modify the terms set forth herein. If there is a conflict
between the provisions on the face of the Contract /Purchase Order these written provisions will take
precedence.
By submitting an Offer in response to the Solicitation, the Supplier agrees that the contract shall be
governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated.
Unless otherwise 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 PROHIBITED: The Supplier is not authorized to ship the
deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables.
5. TITLE & RISK OF LOSS: Supplier grants to the City a non- exclusive, limited term, and entity specific license
for the use of the deliverables. Title to the deliverables shall remain with Supplier.
6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of
delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer,
the Supplier's price shall be deemed to include all delivery and transportation charges. The City shall have the right
to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that
set forth the purchase order.
7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including, but
not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to
reject defective or non - conforming deliverables. If the City has the right to inspect the Supplier's, or the Supplier's
Subcontractor's, facilities, or the deliverables at the Supplier's, or the Supplier's 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.
FP 5424
8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply
with all provisions of the Contract as to time of delivery, quality, and quantity. Any non- complying tender shall
constitute a breach and the Supplier shall not have the right to substitute a conforming tender; provided, where the
time for performance has not yet expired, the Supplier may notify the City of the intention to cure and may then
make a conforming tender within the time allotted in the contract.
9. PLACE AND CONDITION OF WORK: The City shall provide the Supplier access to the sites where the
Supplier is to perform the services as required in order for the Supplier to perform the services in a timely and
efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Supplier
acknowledges that it has satisfied itself as to the nature of the City's service requirements and specifications, the
location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and
facilities necessary to perform the services, and any other condition or state of fact which could in any way affect
performance of the Supplier's obligations under the contract. The Supplier hereby releases and holds the City
harmless from and against any liability or claim for damages of any kind or nature if the actual site or service
conditions differ from expected conditions.
10. 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 or other intoxicating beverages, illegal drugs or controlled substances, nor may
such workers be intoxicated, or under the influence of alcohol or drugs, on the job.
C. if the City or the City's representative notifies the Supplier that any worker is incompetent, disorderly or
disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or
was under the influence of alcohol or drugs on the job, the Supplier shall immediately remove such worker from
Contract services, and may not employ such worker again on Contract services without the City's prior written
consent.
Immigration: The Supplier represents and warrants that it shall comply with the requirements of the Immigration
Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for
any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( "IIRIRA) 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 et seq.).
12. INVOICES:
A. The Supplier shall submit separate invoices in duplicate on each purchase order or purchase
release after each delivery. If partial shipments or deliveries are authorized by the City, a separate
invoice must be sent for each shipment or delivery made.
B. Proper Invoices must include a unique invoice number, the purchase order or delivery order
number and the master agreement number if applicable, the Department's Name, and the
name of the point of contact for the Department. Invoices shall be itemized and transportation
1009 MINA!
charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when
applicable, shall be attached to the invoice. The Supplier's name, remittance address and, if applicable, the tax
identification number on the invoice must exactly match the information in the Vendor's registration with the City.
Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Supplier's
invoice.
C. Invoices for labor shall include a copy of all time - sheets with trade labor rate and deliverables order number
clearly identified. Invoices shall also include a tabulation of work -hours at the appropriate rates and grouped by
work order number. Time billed for labor shall be limited to hours actually worked at the work site.
D. Unless otherwise expressly authorized in the Contract, the Supplier shall pass through all
Subcontract and other authorized expenses at actual cost without markup.
E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount.
The City will furnish a tax exemption certificate upon request.
13. PAYMENT:
A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30)
calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable,
whichever is later.
B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at
the lesser of the rate specified in 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 part of any payment otherwise due the
Supplier to such extent as may be necessary on account of-
i. delivery of defective or non - conforming deliverables by the Supplier;
ii. third party claims, which are not covered by the insurance which the Supplier is required to
provide, are filed or reasonable evidence indicating probable filing of such claims;
iii. failure of the Supplier to pay Subcontractors, or for labor, materials or equipment;
iv, damage to the property of the City or the City's agents, employees or suppliers, which is not
covered by insurance required to be provided by the Supplier;
v. reasonable evidence that the Supplier's obligations will not be completed within the time
specified in the Contract, and that the unpaid balance would not be adequate to cover actual or
liquidated damages for the anticipated delay;
vi. failure of the Supplier to submit proper invoices with purchase order number, with all required
attachments and supporting
documentation; or
vii. failure of the Supplier to comply with any material provision of the Contract Documents.
E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City
may offset indebtedness owed the City through payment withholding.
F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer
of funds. The Supplier agrees that there shall be no additional charges, surcharges, or penalties to the City for
payments made by credit card or electronic funds transfer.
G. The awarding 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 penalty nor removal fees charged to the City.
14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid
by the Supplier, unless otherwise stated in the contract terms.
15. FINAL PAYMENT AND CLOSE-OUT:
A. \fuDB8/MBB/WDEProgram Plan in agreed to and the Supplier has identified Subcontractors, the Supplier is
required 10 submit u Contract Close-Out MBE/WBE Compliance Report to the Purchasing Manager no later than the
15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld
if the Supplier is not in compliance with the requirements as accepted by the City.
B. The making and acceptance nyfinal payment will uoou6tntu:
i. o waiver of all o|uimo by the City against the Supp|ier, except claims (\) which have been previously
asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising
from failure of the Supplier to comply with the Contract or the terms of any warranty specified herein, (4) arising
from the Supplier's continuing obligations under the Contract, including but not limited to indemnity and warranty
obligations, or (5) arising under the City's right to audit; and ii u waiver of all u}uima by the Supplier against the
City other than those previously asserted in writing and not yet settled.
16. SPECIAL TOOLS & TEST EQUIPMENT: 1f the price stated on the Offer includes the cost ofany spccial
tooling or opooiu\ text equipment fabricated or required by the Supplier for the purpose of filling this order, such
special tooling equipment and any pmueun sheets related thereto shall become the property ofthe City and shall be
identified hy the Supplier uusuch.
17. RIGHT TO AUDIT:
A. The City shall have the right to audit and make copies of the 6nnkx, records and computations pertaining to the
Contract. The Supplier shall retain such books, nuoords, documents and other evidence pertaining tn the Contract
period and five years thereafter, except if an audit is in progress oraudit findings are yet unresolved, in which case
records xhu|| be kept until all audit tasks are completed and resolved. These hnnko, records, documents and other
evidence shall be available, within ten (lO)business days of written request. Further, the Supplier shall also require
all Subcontractors, material suppliers, and other payees W retain all books, records, duunmcno and other evidence
pertaining 1othe Contract, and to allow the City similar access to those documents. All books and records will he
made available within a50 mile radius oy the City oyDenton. The cost oy the audit will be borne hy the City unless
the audit reveals ou overpayment ofl%orgreater. If an overpayment ofl%nr greater occurs, the rouaonub|u cost
of the audit, including any travel costs, must be borne by the Supplier which must be yuyuh|u within five (5)
business days n[ receipt ofuninvoice.
B. Failure W comply with the provisions of this oeudou shall he u material hruxoh of the Contract and ohu||
constitute, in the City's uo|c discretion, &moudu for termination thereof. Each of the terms "books", ^^reonndo",
^d000monW^ and "other evidence", as used above, ohuU hc construed m include drafts and electronic files, even if
such drafts or electronic files are subsequently used to generate or prepare a final printed document.
18. SUBCONTRACTORS:
A. If the Supplier identified Subcontractors iuuDBE/MBE/WBE agreed to Plan, the Supplier shall comply with all
requirements approved by the City. The Supplier shall not initially employ any Subcontractor except axprovided in
the Supplier's Plan. The Supplier shall not substitute any Subcontractor identified in the Plan, unless the substitute
has been accepted 6y the City inwriting. No acceptance hy the City oy any Subcontractor shall constitute u waiver of
any rights or remedies of the City with respect to defective deliverables provided by u Subcontractor. /faPlan has
been approved, the Supplier is additionally required N submit a monthly Oohuouiruu/ &vvanio and Expenditures
Report to the Procurement Manager, no later than the tenth calendar day of each month.
B. Work performed for the Supplier by u Subcontractor ohu|| bo pursuant to up«ittcn contract between the Supplier
and Subcontractor. The terms of the subcontract may not conflict with the terms o[the
Con{mot, and xboU contain provisions that:
i. require that all deliverables to be provided by the Subcontractor bmprovided 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 ofthe City and the Supplier. The City may require, as a condition to such further subcontracting,
that the Subcontractor post a payment bond in /brm, 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 tn 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 forth* Supplier, with the City being auumud insured an its interest shall appear; and
v. require that the Subcontractor indemnify and hold the City harmless tothe oumm extent uethe Supplier is
�����
required mindemnify the City.
C. The Supplier shall hc fully responsible iothe City for all acts and omissions of the Subcontractors just uothe
Supplier is n:opunoih|c for the Supplier's own acts and omissions. Nothing in the Contract ohx|| create for the benefit
of any such Subcontractor any contractual »c|u(iooxhip between the City and any such Sohoontrmctor, nor shall it
u»cutc any obligation on the part of the City to pay or to see to the payment of any moneys due any such
Subcontractor except ay may otherwise bo required hylaw.
D. The Supplier shall pay each Subcontractor its appropriate share of payments made to the Supplier not later than
ten (|O) calendar days after receipt of payment from the City.
19. :
A. The Supplier warrants the prices quoted iothe Offer are no higher than the Supplier's current prices 000rders by
others for like deliverables under similar terms ofpurchase.
B. The Supplier certifies that the prices in the Offer have been arrived at independently without consultation,
communication, oragreement for the purpose ofrestricting uomputbion, as to any matter relating to such fees with
any other firm o, with any competitor.
C. In addition to any other remedy ovui|uh|c, the City may deduct from any amounts owed tothe Supplier, or
otherwise recover, any amounts paid for items in excess o[ the Supplier's current prices on orders hy others for like
deliverables under similar terms ofpurchase.
20. WARRANTY — TITLE: The Supplier warrants that it has good and indefeasible th|o to all deliverables
furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and
000umb,unucx. The Supplier shall indemnify and hold the City horm|cwo from and against all adverse title claims m
the deliverables.
21. WARRANTY —DELKVDRABLD& 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 yump|oo furnished by the
Supplier, N the tonno, covenants and conditions of the Contract, and to all opp|iuuh|o S{ate. Pcdond or |omd laws,
,u|ou, and rcgu|u1ionu, and industry codes and standards. Un)cau otherwise o{otod in the Solicitation, the du|ivemh|oy
shall bo new o, recycled merchandise, and not used orreconditioned.
/\. Recycled deliverables shall hu clearly identified aosuch.
B. The Supplier may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any
attempt todoou shall ho without force oreffect.
C. Un|oao otherwise specified in the Conkuot, the vmmmty period ohu|| be at |cum( one year from the dmLo of
acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty
period, one or more ofthe above warranties are breached, the Supplier shall promptly upon receipt nfdemand either
repair the non-conforming deliverables, or rcp\uuc the non-conforming do|ivcm6|oo with fully conforming
do|ivc,ab|oy, at the City's option and at no additional cost to the City. All onuto incidental N such repair or
replacement, including but not limited W. any packaging and shipping costs yhu|| be borne exclusively by the
Supplier. The City ohu|| endeavor to give the Supplier x«iUeu notice of the hmucb ofwarranty within thirty (30)
ou|oodur days of discovery of the hrouoh of warranty, but failure 10 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 W any other available remedy, the City may reduce the quantity ofdeliverables it may be
required to purchase under the Contract from the Supplier, and purchase conforming do|ivcmh|co from other
auoruos. ln such event, the Supplier shall pay m the City upon demand the increased uovt, if any, incurred by the
City tv procure such Jalivurah\co from another source.
E. If the Supplier is not the munufactorur, and the deliverables are covered by u separate manufacturer's warranty,
the Supplier shall transfer and assign such manufacturer's warranty to the City. |f for any reason the manufacturer's
`*onouty cannot be fully transferred (othe City. the Supplier shall assist and cooperate with the City tothe thl\uxt
extent N enforce such manufacturer's warranty for the benefit of the City.
2%. WARRANTY —SERVICES: The Supplier warrants and represents that all services tohnprovided the City
under the Contract will be fully and timely performed inu good and workmanlike manner ioaccordance with
@enoud|y accepted industry standards and pruuiocs, the terms, conditions, and covenants of the Contrac, and all
applicable Federal, State and local laws, rules urregulations.
A. The Supplier may not limit, exclude ordisclaim the foregoing warranty orany warranty implied by law, and any
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attempt to do so shall be without force or effect.
B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance
Date. If during the warranty period, one or more of the above warranties are breached, the 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 City's rights under this section.
C. If the Supplier is unable or unwilling to perform its services in accordance with the above standard as required by
the City, then in addition to any other available remedy, the City may reduce the amount of services it may be
required to purchase under the Contract from the Supplier, and purchase conforming services from other sources. In
such event, the Supplier shall pay to the City upon demand the increased cost, if any, incurred by the City to procure
such services from another source.
23. ACCEPTANCE OF INCOMPLETE OR NON- CONFORMING DELIVERABLES: If, instead of requiring
immediate correction or removal and replacement of defective or non - conforming deliverables, the City prefers to
accept it, the City may do so. The Supplier shall pay all claims, costs, losses and damages attributable to the City's
evaluation of and determination to accept such defective or non - conforming deliverables. If any such acceptance
occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the
diminished value of the defective or non - conforming deliverables. If the acceptance occurs after final payment, such
amount will be refunded to the City by the Supplier.
24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other
party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In
the event that no assurance is given within the time specified after demand is made, the demanding party may treat
this failure as an anticipatory repudiation of the Contract.
25. STOP WORK NOTICE: The City may issue an immediate Stop 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 or (d) makes a material misrepresentation in Supplier's Offer, or in any report or deliverable required to be
submitted by the Supplier to the City.
27. TERMINATION FOR CAUSE: In the event of a default by the Supplier, the City shall have the right to
terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after
the date of such notice, unless the Supplier, within such ten (10) day period, cures such default, or provides evidence
sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, exist. In addition to any
other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses
and expenses, incurred by the City as a result of the Supplier's default, including, without limitation, cost of cover,
reasonable attorneys' fees, court costs, and prejudgment and post judgment interest at the maximum lawful rate.
Additionally, in the event of a default by the Supplier, the City may remove the Supplier from the City's vendor list
for three (3) years and any Offer submitted by the Supplier may be disqualified for up to three (3) years. All rights
and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law.
28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in
part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of
termination, the Supplier shall promptly cease all further work pursuant to the Contract, with such exceptions, if any,
specified in the notice of termination. The City shall pay the Supplier, to the extent of funds Appropriated or
otherwise legally available for such purposes, for all goods delivered and services performed and obligations
incurred prior to the date of termination in accordance with the terms hereof.
29. FRAUD: Fraudulent statements by the Supplier on any Offer or in any report or deliverable required to be
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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.
30. DELAYS:
A. The City may delay scheduled delivery or other duo dates by written notice mthe Supplier ifthe City deems it is
in its host interest. If such delay cuu000 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 tothe Contract. The Supplier must uoourt its right to an adjustment within thirty (30) calendar days
from the du1c of receipt of the oo6uo of delay. Failure to agree on any adjusted p6uc shall be handled oodu, the
Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the Supplier
from delaying the delivery aonotified.
B. Neither party shall be liable for any default or delay in the performance of its obligations under this Contract if,
while and tothe extent such default ordelay is caused by acts ofGod, 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
he extended; provided, hovvuvcr, in such an event, o conference will be bu|d within three (2) business days to
establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform.
31. INDEMNITY: A. Definitions:
i "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and
liability of every character, type or description, including all reasonable costs and expenses of litigation,
mediation or other alternate dispute mao|uhnn mcchouiom, including attorney and other professional fees
for: (I) 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 injory, i\|ocso, diucuou, 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 oy the City, the Supplier, the Supplier's auhuontra000m, and third parties), ii. "Fault" uho||
include the sale of defective or non-conforming deliverables, negligence, willful misconduct or a breach of
any legally imposed strict liability standard.
B. THE SUPPLIER SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS
SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS 14ARMLESS FROM AND AGAINST ALL
INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT
OF THE SUPPLIER, OR THE SUPPLIER'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE
PERFORMANCE nv THE SUPP&KE&k^s OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL ou
DEEMED ro LIMIT THE RIGHTS oxTHE CITY nn THE SUPPLIER (zwrcoo/wo,BUT NOT LIMITED TO, THE
RIGHT Tn SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY exu cc�z� �mcnrnu��/wonmn/r/mo .
32. INSURANCE: The following insurance requirements are npp|iuuh|u, in addition to the specific inuunmuo
requirements detailed in the solicitation document. The yooucooib| firm shall procure and maintain insurance of the
types and iu the minimum amounts acceptable 0othe City ofDenton. The inoumuuu shall be written hyucompany
licensed to do business in the State of Texas and satisfactory to the City of Denton.
&. General Requirements.
i. The Supplier shall at u minimum curry insurance in the types and amounts indicated and ugn:ud m, as
submitted to the City and approved by the City within the procurement pnoucos, for the duration of the
Contract, including extension options and hold over periods, and during any warranty period.
ii. The Supplier nhu|| provide Certificates of Insurance with the oovcxugc'o and undomumoNa required to
the City ao verification of coverage prior m contract execution and within fourteen (|4) 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 upreviously identified policy period has expired, or an extension option or hold over
period is exercised, as verification of continuing coverage.
iii. The Supplier shall not commence work until the required insurance is obtained and until such insurance
has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability
of the Supplier hereunder and ohu|| not be construed to be u limitation of liability on the part of the
Supplier.
iv. The Supplier must submit certificates of insurance to the City for all subcontractors prior to the
subcontractors commencing work on the project.
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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.
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
901 B Texas Street
Denton, Texas 76209
vii. The "other" insurance clause shall not apply to the City where the City is an additional insured shown
on any policy. It is intended that policies required in the Contract, covering both the City and the Supplier,
shall be considered primary coverage as applicable.
viii. If insurance policies are not written for amounts agreed to with the City, the Supplier shall carry
Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability
Insurance is provided, it shall follow the form of the primary coverage.
ix. The City shall be entitled, upon request, at an agreed upon location, and without expense, to review
certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or
revision or modification of particular policy terms, conditions, limitations, or exclusions except where
policy provisions are established by law or regulations binding upon either of the parties hereto or the
underwriter on any such policies.
x. The City reserves the right to review the insurance requirements set forth during the effective period of
the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when
deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims
history of the industry or financial condition of the insurance company as well as the Supplier.
A. The Supplier shall not cause any insurance to be canceled nor permit any insurance to lapse during the
term of the Contract or as required in the Contract.
xii. The Supplier shall be responsible for premiums, deductibles and self - insured retentions, if any, stated in
policies. All deductibles or self - insured retentions shall be disclosed on the Certificate of Insurance.
xiii. The Supplier shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of
the aggregate limits below occurrence limits for all applicable coverage's indicated within the Contract.
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. CLAIMS: If any claim, demand, suit, or other action is asserted against the Supplier which arises under or
concerns the Contract, or which could have a material adverse affect on the Supplier's ability to perform thereunder,
the Supplier shall give written notice thereof to the City within ten (10) calendar days after receipt of notice by the
Supplier. Such notice to the City shall state the date of notification of any such claim, demand, suit, or other action;
the names and addresses of the claimant(s); the basis thereof and the name of each person against whom such claim
is being asserted. Such notice shall be delivered personally or by mail and shall be sent to the City and to the Denton
City Attorney. Personal delivery to the City Attorney shall be to City Hall, 215 East McKinney Street, Denton,
Texas 76201.
34. NOTICES: Unless otherwise specified, all notices, requests, or other communications required or appropriate to
be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after
postmarked if sent by U.S. Postal Service Certified or Registered Mail, Return Receipt Requested. Notices delivered
by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by
first class mail, telefax, or other commercially accepted means. Notices to the Supplier shall be sent to the address
specified in the Supplier's Offer, or at such other address as a party may notify the other in writing. Notices to the
City shall be addressed to the City at 901 B Texas Street, Denton, Texas 76209 and marked to the attention of the
Purchasing Manager.
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35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the
Supplier to the City shall become property of the City upon receipt. Any portions of such material claimed by the
Supplier to be proprietary must be clearly marked as such. Determination of the public nature of the material is
subject to the Texas Public Information Act, Chapter 552, and Texas Government Code.
36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Supplier represents and warrants to the
City that: (i) the Supplier shall provide the City good and indefeasible title to the deliverables and (ii) the
deliverables supplied by the Supplier in accordance with the specifications in the Contract will not infringe, directly
or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind
of any third party; that no claims have been made by any person or entity with respect to the ownership or operation
of the deliverables and the Supplier does not 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 City's exercise anywhere in the world of the rights associated with the City's' ownership, and if
applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party;
or (ii) the Supplier's breach of any of Supplier's representations or warranties stated in this Contract. In the event of
any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to
act as co- counsel on the City's behalf. Further, Supplier agrees that the City's specifications regarding the
deliverables shall in no way diminish Supplier's warranties or obligations under this paragraph and the City makes
no warranty that the production, development, or delivery of such deliverables will not impact such warranties of
Supplier.
37. CONFIDENTIALITY: In order to provide the deliverables to the City, Supplier may require access to certain
of the City's and /or its licensors' confidential information (including inventions, employee information, trade
secrets, confidential know -how, confidential business information, and other information which the City or its
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 unauthorized use,
disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and /or its
licensors. The Supplier (including its employees, subcontractors, agents, or representatives) agrees that it will
maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge,
recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner
not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law
or an order of any court or other governmental authority with proper jurisdiction, provided the Supplier promptly
notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate
protective order. The Supplier agrees to use protective measures no less stringent than the Supplier uses within its
own business to protect its own most valuable information, which protective measures shall under all circumstances
be at least reasonable measures to ensure the continued confidentiality of the Confidential Information.
38. OWNERSHIP AND USE OF DELIVERABLES: The City, by entering into this Contract, receives the right to
use the deliverables — UPLAN models, database and related documentation — during the contract period, but does
not become the owner of the deliverables in any manner whatsoever. The City shall not copy, modify, duplicate,
reproduce, license, sublicense, assign, or otherwise transfer or convey in any manner the deliverables or any right in
the deliverables, in whole or in part, to any other entity without the prior written consent of Supplier. The
deliverables are protected by copyright, trade secrets, and trademark law. The City acknowledges that the
deliverables - UPLAN models, database and related documentation — are the property of Supplier and contain
valuable confidential, unpublished information developed by Supplier at great expense, including data processing
algorithms, innovations, and concepts. The City agrees to use all reasonable efforts to protect the deliverables -
UPLAN models, database and related documentation — from any unauthorized reproduction, distribution, disclosure,
use, or publication. Upon expiration or termination of the Contract, the City shall discontinue its use of the
deliverables and all user - accessible copies of the deliverables shall be immediately removed from the City's network
and /or stand -alone computers.
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
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City has entered into the Contract, except to the extent required by law.
41. NO CONTINGENT FEES: The Supplier warrants that no person or selling agency has been employed or
retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage,
brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies
maintained by the Supplier for the purpose of securing business. For breach or violation of this warranty, the City
shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct
from any amounts owed to the Supplier, or otherwise recover, the full amount of such commission, percentage,
brokerage or contingent fee.
42. GRATUITIES: The City may, by written notice to the Supplier, cancel the 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. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer, employee, independent
consultant, or elected official of the City who is involved in the development, evaluation, or decision - making
process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract
resulting from that solicitation. Any willful violation of this section shall constitute impropriety in office, and any
officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation
of this provision, with the knowledge, 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 ).
44. INDEPENDENT SUPPLIER: The Contract shall not be construed as creating an employer /employee
relationship, a partnership, or a joint venture. The Supplier's services shall be those of an independent supplier. The
Supplier agrees and understands that the Contract does not grant any rights or privileges established for employees
of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave
benefits, worker's compensation, or any other City employee benefit. The City shall not have supervision and control of
the Supplier or any employee of the Supplier, and it is expressly understood that Supplier shall perform the services
hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton,
Texas, or his designee under this agreement.
45. ASSIGNMENT - DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and
the Supplier and their respective successors and assigns, provided however, that no right or interest in the Contract
shall be assigned and no obligation shall be delegated by the Supplier without the prior written consent of the City.
Any attempted assignment or delegation by the Supplier shall be void unless made in conformity with this
paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it
being the intention of the parties that there are no third party beneficiaries to the Contract.
46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a
waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in
writing signed by the aggrieved party. No waiver by either the Supplier or the City of any one or more events of
default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations
under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of
a similar or different character.
47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No
pre - printed or similar terms on any the Supplier invoice, order or other document shall have any force or effect to
change the terms, covenants, and conditions of the Contract.
48. INTERPRETATION: The Contract is intended by the parties as a final, complete and exclusive statement of
the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the
trade shall be relevant to supplement or explain any term used in the Contract. Although the Contract may have been
substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair
to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the
Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall
control, unless otherwise defined in the Contract.
49. DISPUTE RESOLUTION:
A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to
prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a
statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between
representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as
agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision- making
authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to
negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not
succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below.
Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed
directly to mediation as described below.
B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the
parties may select, within thirty (30) calendar days, a mediator trained in mediation 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 expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation
of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution
Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from
the date of the first mediation session. The City and the Supplier will share the mediator's fees equally and the
parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to
represent them or otherwise assist them in the mediation.
50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of
Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm.
Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or
jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, 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 unenforceability of any provision of the Contract shall in no way
affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be
deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract
did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to
replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken
provision. The provisions of this section shall not prevent this entire Contract from being void should a provision
which is the essence of the Contract be determined to be void.
52. HOLIDAYS: The following holidays are observed by the City
New Year's Day (observed)
MLK Day
Memorial Day
4th of July
Labor Day
Thanksgiving Day
Day After Thanksgiving
Christmas Eve (observed)
Christmas Day (observed)
New Year's Day (observed)
If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday,
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it will be observed on the following Monday. Normal hours of operation shall be between 8:00 am and 4:00 pm,
Monday through Friday, excluding City of Denton Holidays. Any scheduled deliveries or work performance not
within the normal hours of operation must be approved by the City Manager of Denton, Texas or his authorized
designee.
53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on
the parties, including but not limited to the warranty, indemnity, and confidentiality obligations of the parties, shall
survive the expiration or termination of the Contract.
54. NON - SUSPENSION OR DEBARMENT CERTIFICATION:
The City of Denton is prohibited from contracting with or making prime or sub - awards to parties that are suspended
or debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By
accepting a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or
debarred from doing business with the Federal Government, as indicated by the General Services Administration
List of Parties Excluded from Federal Procurement and Non - Procurement Programs, the State of Texas, or the City
of Denton.
55. EQUAL OPPORTUNITY
A. Equal Employment Opportunity: No Offeror, or Offeror's agent, shall engage in any discriminatory
employment practice. No person shall, on the grounds of race, sex, age, disability, creed, color, genetic testing, or
national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from
this RFQ.
B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall
engage in any discriminatory employment practice against individuals with disabilities as defined
in the ADA.
56. BUY AMERICAN ACT - SUPPLIES (Applicable to certain federally funded requirements)
The following federally funded requirements are applicable, in addition to the specific federally funded
requirements.
A. Definitions. As used in this paragraph —
i. "Component" means an article, material, or supply incorporated directly into an end product.
ii. "Cost of components" means -
(1) For components purchased by the Supplier, the acquisition cost, including transportation costs to the place of
incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty
(whether or not a duty -free entry certificate is issued); or
(2) For components manufactured by the Supplier, all costs associated with the manufacture of the component,
including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but
excluding profit. Cost of components does not include any costs associated with the manufacture of the end product.
iii. "Domestic end product" means -
(1) An unmanufactured end product mined or produced in the United States; or
(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. IOa - IOd) provides a preference for domestic end products for supplies
acquired for use in the United States.
C. The City does not maintain a list of foreign articles that will be treated as domestic for this Contract;
but will consider for approval foreign articles as domestic for this product if the articles are on a list
approved by another Governmental Agency. The Offeror shall submit documentation with their Offer
demonstrating that the article is on an approved Governmental list.
D. The Supplier shall deliver only domestic end products except to the extent that it specified delivery of foreign end
products in the provision of the Solicitation entitled "Buy American Act Certificate ".
57. RIGHT TO INFORMATION: The City of Denton reserves the right to use any and all information presented in
any response to this solicitation, whether amended or not, except as prohibited by law. Selection of rejection of the
submittal does not affect this right.
58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded supplier or supplier to be licensed by
the State of Texas, any and all fees and taxes are the responsibility of the supplier.
59. PREVAILING WAGE TES: 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; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public
servants. The Supplier shall give all notices and comply with all laws and regulations applicable to furnishing and
performance of the Contract.
61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Supplier shall demonstrate on -site compliance with
the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing
with issuance of Form W -2's to common law employees. Supplier is responsible for both federal and State
unemployment insurance coverage and standard Worker's Compensation insurance coverage. Supplier shall ensure
compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable
to Supplier or its employees for any Unemployment or Workers' Compensation coverage, or federal or State
withholding requirements. Supplier shall indemnify the City of Denton and shall pay all costs, penalties, or losses
resulting from Supplier's omission or breach of this Section.
62. DRUG FREE WORKPLACE: The supplier shall comply with the applicable provisions of the Drug -Free
Work Place Act of 1988 (Public Law 100 -690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug -
free work environment; and the final rule, government -wide requirements for drug -free work place (grants), issued
by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to
implement the provisions of the Drug -Free Work Place Act of 1988 is incorporated by reference and the supplier
shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be
issued.
63. SUPPLIER LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Supplier shall be liable
for all damages to government - awned, 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.
64. FORCE AJEUE: 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 or observance whenever and to whatever extent possible without
delay. The Supplier shall immediately notify the City of Denton Procurement Manager by telephone (to be
confirmed in writing within five (5) calendar days of the inception of such occurrence) and describe at a reasonable
level of detail the circumstances causing the non - performance or delay in performance.
65. NON - WAIVER OF RIGHTS: Failure of a Party to require performance by another Party 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
It] aM&Y9Z1 A
. 0 1
66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract
the City of Denton may have by operation of law.
EXHIBIT C
CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ
For vendor or other person doing business with local governmental entity
This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. OFFICE
USE ONLY
This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a Date
person who has a business relationship as defined by Section 176.001(1 -a) with a local governmental Received
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 overnmental entit
1 g y'
LCG CONSULTING
2
❑ Check this box if you are filing an update to a previously filed questionnaire.
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not
later than the 7'h business day after the date the originally filed questionnaire becomes incomplete or
inaccurate.)
3
Name of local government officer with whom filer has an employment or business relationship.
None
Name of Officer
This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an
employment or other business relationship as defined by Section 176.001(1 -a), Local Government Code. Attach
additional pages to this Form CIQ as necessary.
A. Is the local government officer named in this section receiving or likely to receive taxable income, other than
investment income, from the filer of the questionnaire?
..� Yes 1 ' I No
B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income,
from or at the direction of the local government officer named in this section AND the taxable income is not
received from the local governmental entity?
0 Yes 1 No
C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the
local government officer serves as an' officer or director, or holds an ownership of 10 percent or more?
Yes 1=1 No
D. Describe each affiliation or business relationship.
Ilk Deb, President of LCG Consulting January 17, 2014
- - -- — — - - - -- -.
Signature of person doing business with the governmental Date
entity
[Rimini
Exhibit D
RFP 5424 - Forward Market Modeling Software for the Energy Management
Organization
LCG Consulting
Product
Item #
EST. QTY
U010
Product Description
Unit Price
Section
1: Cost of Required Services as listed in the RFP
........
1
_.._ .. _............�,
3
AN
........_.._�_........... ... ....._...........,,..
System Licenses (TWO Concurrent users)
S 80.000.00 $
2
3
AN
One -Year Warranty (Lump Sum)
Included in the
3
3
AN
Support (One year concurrent with warranty)
annual license
4
3
AN
Software Upgrade at end of Warranty
5
3
AN
...._ ..... -. _ ............................ ................ _
Application Programming Interface
...........
$ 8,000.00 $
OPT 1
3
AN
2014 ERGOT Database (Generation, Loads, Transmission, Contingencies, Fuel
$ 10,000.00 $
Forecast)
...5,000.00
OPT 21
3
AN
ERGOT market tool - for transmission outages and 11 references to generators
$ i $
$
Payment Term Discounts
Payment terms for the City of Denton are typically 30 days. Please indicate the additional discount extended
to each monthly invoice that is paid within the time period indicated below.
Estimated
Delivery ARO
Extended Price (Days)
24,000.00 5 days
30,000.00
15,000.00 5 days
309,000.00