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2014-153•`l � • � � � �'. • R '. : ' � �� [ : } �. , . : 1 1 � •�, �� • ♦. � ♦ � ,: [ � � � ,: � � •? � � (' . • �� , ' � �: '. i: � �� : • � 1' � ,': ♦ �� . � ♦ ��.. :��.� � : /� �: I, . � : •� � � �� !� � l� . ,� . : ��• • ��. , � :,� •� : •� . �� ,� ��... � R. •. R. � .. ., � !� •; , �. '� . C.. � : , �. ��. � �. � � �� i: � 1' . :, �� ..... . ♦ �. ��. �� ; � �� . . • � � :, � : � : �� : �1 . • . •. ��. WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of Gang Operated Air Brealc (GOAB) Switches for the City af Denton 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 appraved and accepted herein; NOW, THEREFORE, � �, � � � . ; �. �. SECTION 1. The items in the following numbered request for proposal for materials, equipment, supplies or services, shown in the "Request for Proposals" an file in the office of the Purchasing Agent, are hereby accepted and appraved as being the most advantageous to the City considering the relative importance af price and the other evaluation factors included in the request for proposals. RFP NUMBER CONTRACTOR AMOUNT 5231 Stuart C. Irby Company $187,395 SECTIQN 2. By the acceptance and approval of the above numbered items of the submitted proposals, tl�e City accepts the offer of the persons submitting the propasals for such items and agrees to purchase the materials, equipment, supplies ar services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Proposal Invitations, Prapasals, and related documents. SECTION 3. Should the City and person submitting approved and accepted items and af the submitted propasals wish to enter into a farmal written agreement as a result of the acceptance, appraval, and awarding afthe proposals, the City Manager or his designated representative is hereby autharized to execute the written cantract; provided that the written cantract is in accardance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Propasal 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 File 5231 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. I'f'�.��a�`� t�t�IL� �.I'1�I�C3�ljr� ��zi� tl�c ��".;� c1�y c�{` '.��4�'.��-��"_,,, ,?�J1�. „ � � , � � � � � �.: � �� _ ��.... °� w�� a.� �Ci�i`� WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY : �1'P��V�� 1,��''�C� LEGAL FORM: ANITA BURGESS, CITY ATTORNEY �,. _ :� ,. . � � � � �� BY: �f � ��°��"�—.- , � r� "` � �`' �� _� n�.� • � � �u. r``r � � ' • : 1 ': 1 1 1 1' •' I' C, � 1" � �, � i� s C � � � •, ' !� , , C•' �, � . ,, �i'�� f4![}i�"Ti�.�l�"�' is ra��c3c tx��c� crii�r��c� �a�� t�is ,�� cJ�y �ri"�'C�:�"��`' �.�;�., '�t�l�$ by and between STUART C. IRBY CO. a corporation, whose address is 7125 BELTON STREET, FORT WORTH, TEXAS 76118, 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: �' 1 ' Supplier shall provide products in accordance with the Supplier's proposal in response thereto, a copy of which is attached hereto and incorporated herein for all purposes as Exhibit "D". The Contract consists of this written Exhibit "D" and the following items which are attached hereto and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit G6A99) (b) City of Denton Standard Terms and Conditions (Exhibit 6L�99) (c) Form CIQ — Conflict of Interest Questionnaire (Exhibit "C"). (d) 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 as noted above. These documents shall be referred to collectively as the "Contract Documents." RFP 5231 Page 1 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 � BY �,�� %�� '� �. ��_ �,� � STUART C�",r�lT��' CO. I: A C�?�`�,3 �RIZED ��a �'�1ATURE � . ��.+.� Date: Name: � 7 � ��' I ._,��'-�f�''°��-� � � Title; �� `� _ �/ � � � �! / �'_ �V // .._. _- PHONE NUMBER �� % � � �� 7�� FAX NUMBER CITY OF DENTON, TEXAS �� ;' BY: �,-� �� °� �,.� �.� �.,... GEORGE:. C. CA1�f�'93Ld.,�..,„ C;l"�'i�" MANAGER ,. � ..� ,, � Date: �a� �'� � �� : . �� .� RFP 5231 Page 2 Exhibit A Special Terms and Conditions The Quantities indicated on Exhibit D are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the price. Individual purchase orders will be issued on an as needed basis. Product Changes During Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to dentonpurchasing�n,cityofdenton.com, with the above fle number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be returned at the supplier's expense. Products that have been installed will be replaced at the supplier's expense. Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The distributor shall be authorized to sell to the City of Denton, and make available the manufacturer's representative as needed by the City. Contract Terms The contract term will be one (1) year, effective from date of award. 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 issuance of a Notice of Award by the City of Denton and shall automatically renew each year, from the date of award by City Council, unless either party notifies the other prior to the scheduled renewal date. At the sole option of the City of Denton, the contract may be further extended as needed, not to exceed a total of six (6) months. Price Escalation and De-escalation The City will implement an escalation/de-escalation price adjustment annually. The escalation/de-escalation will be based upon manufacturer published pricing sheets to the vendor. The price will be increased or decreased based upon the annually percentage change in the manufacturer's price list. The price adjustment will be determined quarterly from the award date. Should the change exceed or decrease a minimum threshold value of+/-1%, then the stated eligible bid prices shall be adjusted in accordance with the published price change. It is the supplier or the Cities responsibility to request a price adjustment annually in writing. If no request is made, then it will be assumed that the original contract price will be in effect. The �L��t�l�rc,�• rt�t�:�t aui��ii_ta� r�a�i,�c :a��xi��t�� tl�� i��`.�r%t�r��~� ��•i�iaY s��t tr�� o a��1c��IR�i� the bid proposal, to part�cipate in the escalation/de-escalation clause. Total Contract Amount The contract total shall not exceed $l 87,395. Pricing shall be per Exhibit D attached. Delivery Lead Time Product or services shall be delivered to the City per the days/weeks noted in Exhibit D after receipt of the order. RFP 5231 Page 3 � .'. i 1 � �, n. � ' � � � � 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, l l 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 desceibed 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 eegulations. 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 U1vDER 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. TTTLE & RiSK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City only when the City actually receives and accepts the deliverables. 6. DELIVERY TERMS AND TRANSPORTATiON 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. RFP 5231 Page 4 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 yuantity. 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 CONDiT ION OF WORK : The City shall provide the Suppliee 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 eegulations. The Supplier acknowledges that it has satisfied itself as to the nature of the City's service reyuirements 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 conteact 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, iYs Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most 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 P�•otection: 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 sha(1 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. Propet• Invoices must include a unique invoice number, the purcliase orde'• or delivery ordeo• number and the master agreement nun,Uer if applicable, the Department's Name, and the name of the point of contact for the Departrnent. Invoices shall be itemized and transportation RFP 5231 Page 5 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'nade, (per,�a'•agraph 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 whicl� the City may withhold payment hereundet•, interest shall not accrue until ten (10) calenda,• days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries aee 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 ot: 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 reyuired 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 Appeopriation 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 EXYENSES: 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. RFP 5231 Page 6 15. FINAL PAYMENT AND CLOSE-OUT: A. If a DBE/MBE/WBE Program Plan is agreed to and the Supplier has identified Subcontractors, the Supplier is required to submit a Contract Close-Out MBE/WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld ifthe Supplier is not in compliance with the reyuirements as accepted by the City. B. The making and acceptance of final payment will constitute: i. a waiver of all claims by the City against the Supplier, except claims (1) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Supplier to comply with the Contract or the terms of any warranty specified herein, (4) arising from the Supplier's continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City's right to audit; and ii. a waiver of all claims by the Supplier against the City other than those previously asserted in writing and not yet settled. 16. SPECIAL TOOLS & T EST EQUIPMENT: lf 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 reyuire 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 eeveals an overpayrnent of 1% or greater. 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 subseyuently used to generate or prepare a final printed document. 18. SUSCONTRACTORS: A. Ifthe Supplier identified Subcontractors in a DBE/MBE/WBE agreed to Plan, the Supplier shall comply with all requirements approved by the City. The Supplier shall not initially employ any Subcontractor except as provided in the Supplier's Plan. The Supplier shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables peovided 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 for 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 further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii, require Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Supplier in sufficient time to enable the Supplier to include same with its invoice or application for payment to the City in accordance with the terms of the Contract; iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Supplier, with the City being a named insured as its interest shall appear; and v. require that the Subcontractor indemnify and hold the City harmless to the same extent as the Supplier is RFP 5231 Page 7 required to indemnify the City. 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 ornissions. 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. `�'ARRANTY-PRICE: A. The Supplier warrants the prices quoted in the Offer are no higher than the Supplier's current prices on orders by others for like deliverables under similar terms of purchase. B. The Supplier certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Supplier, or otherwise eecover, 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 all adverse title claims to the deliverables. 21. WARRANTY — DELiVERABLES: The Supplier warrants and represents that all deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Supplier, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. B. The Supplier may not limit, exclude or disclaim the foregoing warranty oe any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the date of acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty period, one or more of the above warranties are breached, the Supplier shall promptly upon receipt of demand either repair the non-conforming deliverables, or replace the non-conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Supplier. The City shall endeavor to give the Supplier written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give 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 anothee source. E. If the Supplier is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Supplier shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Supplier shall assist and cooperate with the City to the fullest extent to enfoece such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: The Supplier warrants and represents that all services to be provided the City under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and 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 RFP 5231 Page 8 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 wili be eefunded to the City by the Suppiier. 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 ofthe 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. Tn 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 oe remedy provided by law. 28. TERMINATION WITHOUT CAtiSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thiriy (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. RFP 5231 Page 9 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. 30. DELAYS: A. The City may delay scheduled delivery or other due dates by written notice to the Supplier if the City deems it is in its best interest. If such delay causes an increase in the cost of the work under the Contract, the City and the Supplier shall negotiate an equitable adjustment for costs incurred by the Supplier in the Contract price and execute an amendment to the Contract. The Supplier must assert its right to an adjustment within thirty (30) calendar days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution process specifed in paragraph 49. ITowever, nothing in this provision shall excuse the Supplier from defaying the delivery as notified. B. Neither party shall be liable for any default or delay in the perforrnance of its obligations under this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event of default or delay in contract performance due to any of the foregoing causes, then the time for completion of the services will be extended; provided, however, in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. 31. INDEMNiTl': 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 deliverahles, negligence, willful misconduct or a breach of any legally imposed strict liability standard. B. TIiE SUPPLIER SHALL DEFEl1'D (AT THE OPTiOn' OF THE CiTY}, iNDEhiWIFI', ANIi HOLD THE CITY, ITS SUCCI:SSORS� ASSIGNS, ON'FICLRS, E119PLOYIi.LS AND LLLC'I'ED OFF7CIAI.S HARh1LIsSS FROM AND AGAINS7' ALL INDEMNIFiED CLAIMS DIRECTLY ARISiNG Oi1T OF, TNCIDENT TO, CONCERNiI�G OR RESiTi,TiNG FROM THE FAiiLT OF THE SUPPLIER, OR THE SUPPLIER'S AGENTS, EMPLOYEES OR SUBCOI�TRACTORS, IN THE PERTORMANCE OF THE SUPPLIER'S OBLIGATIONS UNDER THE COhTRACT. NOTIiING HEREIN SHALL BE DEEN1Lb TO LIMI7' TIIE R1GH1'S OF TIiE CIT1' OR TIiL SUPPLIER (IVCLUDING, BU'I' NOT LIMITCD TO, THE RiGIi7' TO SEF,K CON'fRiBU'f10N) AC:AINS'f ANY 7'IIiRD 1'ARTY WIIO MAY BI!: LiABLE FOR AN INDEMNIrIED CLAIM. 32. INSURANCE: The following insurance requirements are applicable, in addition to the speciitc insurance requirements detailed in the solicitation document. The successful firm shall procure and maintain insurance of the types and in the minimum amounts acceptable to the City of Denton. The insurance shall be written by a company licensed to do business in the State of Texas and satisfactory to the City of Denton. A. General Requirements. i. The Supplier shall at a minimurn 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 reyuired 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 extension option or hold over period is exercised, as verification of continuing coverage. iii. The Supplier shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Supplier hereunder and shall not be construed to be a limitation of liability on the part of the Supplier. iv. The Supplier must submit certificates of insurance to the City for all subcontractors prior to the RFP 5231 Page 10 subcontractors 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. 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. Tf insurance policies are not written for amounts agreed to with the City, the Supplier shall carry Umbrella or Excess Liability lnsurance for any differences in amounts specified. If Excess Liability Insurance is provided, it shaBl 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 rrrake reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Supplier. xi. The Supplier shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as reyuired 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 aggeegate 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, Texas76201. 34. NOTIC�S: 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 specifed in the Supplier's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. RFP 5231 Page 11 35. RiGHTS TO B1D, PROPOSAL AND CONTRACTiIAL 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 TNFRiNGEMENTS: 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 specifcations in the Contract will not infringe, directly or contributorily, any patent, trademark, copyeight, 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 properly 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, Suppliee 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 delivety 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 properly 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 Confdential 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 ofthe Confidential Information. 38. OWNERS}IIP AND tfSE 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 reyuested by the City, the Supplier agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Supplier agrees that upon their creation, such deliverables shall be considered as work made-for-hire by the Supplier for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the City's sole or joint ownership of any such deliverables arising by virtue of the City's sole or joint authorship of such deliverables. Should by operation of law, such deliverables not be considered works made-for-hire, the Supplier hereby assigns to the City (and agrees to cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver an assignment to the City o� all worldwide right, title, and interest in and to such deliverables. With respect to such work made-for-hire, the Supplier agrees to execute, acknowledge, and deliver and cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver a work- made-for-hire agreement, in a form to be reasonably approved by the City, to the City upon deliveey of such deliverables to the City or at such other time as the City may request. RFP 5231 Page 12 C. Additional Assignments. The Supplier fiarther agrees to, and if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work registration, trademark registration and/or protection, letters, patent, or any simiiae rights in any and all countries and in order to assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and interest in and to the deliverables. The Supplier's obligations to execute, acknowledge, and deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City shou]d 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 Conftdential Information under the terms of Paragraph 37 above. 39. PUBLICATiONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Supplier shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. 41. NO CONTINGENT FEES: The Supplier warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Supplier for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Supplier, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The City may, by written notice to the Supplier, cancel the Contract without liability if it is determined by the City that gratuities were offered or given by the Supplier oe 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. ln 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 (Attacl,ment B). 44. INDEPENDENT SUPPLIER: The Contract shall not be construed as creating an employer/employee relationship, a partnership, or a joint venture. The Supplier's services shall be those of an independent supplier. The Supplier agrees and understands that the Contract does not grant any rights or privileges established for employees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker's compensation, or any other City employee benefit. The City shall not have supervision and control of the Supplier or any employee of the Supplier, and it is expressly understood that Supplier shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. 45. ASSIGNMENT-DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Supplier and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Supplier without the prior written consent of the City. Any attempted assignment or delegation by the Supplier shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it RFP 5231 Page 13 being the intention of the parties that there are no third party beneficiaries to the Contract. 46. �VAIVER: 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 pariy. No waiver by either the Supplier or the City of any one oe more events of default by the other party shall operate as, or be consteued 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 puepose 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 paeties 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 RFP 5231 Page 14 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 Dav (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 a ppraved by the City Manager of Denton, Texas or his authorized designee. 53. SURVIVABiLITY OF OBL1GATiONS: 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 currentfy suspended or debarred from doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non-Procurement Programs, the State of Texas, or the City of Denton. 55. EQUAL OPPORTUNITY A. Equal Employment Opportunity: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice. No person shall, on the grounds of race, sex, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERiCAN ACT-SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable, in addition to the specific federally funded requirements. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Supplier, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or (2) For components manufactured by the Supplier, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means- (1) An unmanufactured end product mined or produced in the United States; or RFP 5231 Page 15 (2) An end product manufactured in the United States, if the cost of its cotrrponents rnined, 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 manufactueed 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 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 TAAES: Provided the solicitation requires an awarded supplier or supplier to be licensed by the State of Texas, any and all fees and ta�ces are the responsibility of the supplier. 59. PREVAiLiNG iWAGE RATES: All suppliers will be required to comply with Provision 5]59a of "Vernon's Annotated Civil Statutes" of the State of Texas with respect to the payment of prevailing wage rates and prohibiting discrimination in the employment practices. http://www.access. epo.�ov/davisbacon/tx. html 60. COMPLTANCE WiTH ALL STATE, FEDERAL, AND LOCAL LA�'S: 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. 6l. 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. DRLiG 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 LiABiLiTl' FOR DAMAGE TO GOVERNMENT PROPERTI': 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 RFP 5231 Page 16 of any such damage within one (1) calendar day. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Supplier shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Supplier will be excused from any further performance or observance of the requirements so affected for as long as such 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 RIGI3TS: 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 eight or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOV EREIGN IMM UNITY: 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 governmental entity that has authority to review records due to federal funds being spent under the Contract. RFP 5231 Page 17 EXHIBIT C CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ For vendor or other person doing business with local qovernmental entitv -- 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 pa4e 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 ��d�, An �ft��s� under this section is a Class C rr�isder�a��nar_ _ __ _ � Name of person who has a business r�Rationsh�p with local governmental entity. __ _ _ 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 c�riginally filed questionnaire becomes incomplete or inaccurate.) 3 Name of local government officer with whom filer has an employment or business relationship. Name of Officer This section, (item 3 including subparts A, B, C& D), must be completed for each officer with whom the filer has an 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? 1�9 Yes -��— 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? � Yes No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? � Yes � No D. Describe each affiliation or business relationship. �_.. � - _..._._...��x_ 4 _.�.Mm. _ �..�. 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N H �a d 6$ �.. .._. � � ik .��. ... __ '.,_ E .-1 cV m d' �n �D h a0 W ',, O O O w � � r�'u � v 0 w a _J C4 O H N � W @ � � � � C � Ci � c C V � � 5 U a b b w ( I r� M � � � Ol 0. fU � A �' EXHIBIT D � F` IS T C ) S � I� S - G t t � - J£ "�� S,'- ; � ti s Ii� ft ' �, r ri` t 1', �_. k 'V, ti� 1. �t��iti�� IYb}! �, �d�r�ss ��rirg�i�al �1�� z��° �s�irt��. � ,,� � � t � ; i,, � �� , ; � �. � r� �- � -.5 � � � . ; �, }, ,: �. ca�� y�� Y�p�� st��iiYS�. ph�sic�l p�s�� • ar� �� St�t� �f �L° � �r � �ity c�f �� n? �"�� I�by has � �z°g ��i �c� � ti�� i� 1"��sm ��. artha �t�sif�r� S t�z��a� �. �'��k �a A�, T' �y�r �: 1 �4017902U5 5. �� r�r�ss ��r��a e�t��to I��;�1� J�� n�s�tr��x°�� k�� e d�r�c��t ��r�d i�t� a 6ff �it� .Addr�ss� Lt°b�a�� i� � : �a � : �17�2�4��43 9. (�th�r ��ti�z�so EXHIBIT D RFP 5231 Page 20 ; � Ir ! . � �. �� . s � �� *, �,,. + ;� �• : iRBY-� Branchr plstributlo� CentQr and Project 5erv(ces i.acatians �~ � � � P� wiProMrry � � �. � !� . ��.:�I .r -w � �„ � . �. � ! � � 1 �� ;-Ra;� EXHIBIT D RFP 5231 Page 21 � ! #` � ,� . . : ! Is ' , : � • i � ' i ' . �; , � � �; ,� �� ,�'r � � 5onepar USA Locat6ans (Jan�ary 2011j � �- -� + �6. Principals ar�d Officers: . �� R - f l F .; . . .. ...: +- , • • .,;. .. ,. , �. � • ;. r k ♦ Presideni Cf�iaf Oper�i[ng Officer Chief Financial Ufficer Vice-President - Human Resources and C�rganizational Developmont Vice•Presid�nt - Ir�farmat�an Technology Vice-President - Utilify Business Developmenf Vice-President - Safes, Utility �asC Vice-Prestdent - Sales, Utility CVorih ViCO-President - Sales, Utilify West - Project Services Vice-President - Cc�mrnercial and Contractor Sales Vice-Presideni - lndustrial Sales Vice-President- Oparat�ons, C8�1 Vlce-President - Operations, UEility Vice-President - Utility Suppfy Chain Vice-President- C&I Supply Chain EXHIBIT D RFP 5231 Page 22 r t i ! ! 1 ! .,�. } R .:: l \. ! ,,. � � �� 1 � . !. :A i ! ,,,..* � i,... R � 7 # f 3 I. �. �. R ' � �: . ' ��. ' . �'� � f. . : , . , ,! ' / .'�, � , �� .. � !� - �° • -• ! .�, . ` • .-� r : �, '° - � . � � �� - � * � � � � �,� • � � � �� '-, .�•, • .,� � �- . , .� , ♦ .- . . - _ r- � � r °w � - r. ; � '. � �- �� • � - r � - - �. � . - . , # � - - r . � .�� •�• � _ �� . �e � � :_ � ,,, . , �� r �� - �i � -�;t� � ��' i� ' +�� • ♦ �-u 1 , � ♦ � r � r- . � . � � _ � � r, � � � � �-� � � - • � � �- a. ,; � . � # '.• - .- � R -! m l ' ' � ' ....:. . � _ ' �'. t � l / F .; # � ;. ♦ ! � ' �! M : � ' I� � �,. f Y ! �. �. � I ! ! � � 3 !� i ti . i ,..... i ! ..... � - i - ! ! 1 # EXHIBIT D RFP 5231 Page 23 X. � �` � � � � 22� I�a�� °�� z° f�l�d �p��t� � tatr�� r c��r�� r�y ��r�� c�r �r�� cttl��r p�a�y �� ? 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" + �# . ;.! , . ..�. � � ' � �:.. �,. i �-.. • * ...,� R � .:� ":� , l��.... �� . ! :.� . 1:..... �i � _ � ■�:..... .. _ . ... ........ .. ,.... : � ,.... i ! ! ... _ .. �� t ',, .1 .♦ !` : � ..� ', �' •� a; f�' � a 1 �' � i � r a i ! �' ! i # �'. �' i4 f � i �; !.' # � - , �y� - - :. �� i I � i! � .; � � * ' li s • '�.... � � � / ',.. S M i � '; � ♦ • � ,.� � '.. � � . , � i 9 � , � . i ' E . � , � • 1 � ,��d i k �1i � � �� a. �- N ■ . � �, � � ;� ��; � • � �-; ' � r r :. � a - � . • � • - t -■ � f: � . R,... ' - ��,... R �I', � 1 • .....� ! M ' ( .: M � �. .:� � � i � f � 4 ��, i • i � �.,. � !R ` � i . � .�. � ! � � � s-i i M; . • , . ; i � 1 , ' � M ��, ! R i .,.... � � � � �� a ::. ■ , � l�.. R t ► , � � ',.. � � ,, � �.... a � � � ..� •a •r � �' � • � f !. I � ' i R i ! �, i � . � ........ •� � R . �1 �.:. ' ! �� • � 1.; � 4'. . �, " � i . ; , . . � ., � ' I # ,..... • . ' ;.: ! ' ... . � • i:. 1 C�MPANY NA4ME; EP ES��ITA�'IVE: A ESS: CITY, STATE, ZtP: TELE� QN.� NO. n icate all t at a ly: r�ciurr•: � e i -� : � !: -e : _ � ! ,. :, ' � RFP 5231 Page 25 . � . Tt�rr�� ir� tl1i� document ��c �-�s�r�t �f�� a�if��€� a r��d �� r»s �a��i ��a��3i�iaa�� l�e�r�t�� tl�� Cii� ofDenton and 1�•��y �ti]��i��,. ��1� ��vised secti�n��r��•�pl�� ar�c� ��l�c�� i�� c:c��i��c� form and this cic��t l��c��3�� a�r� of ��i� 1�z�1 �� ea�t�'y �� l��i�c.]�i��t�i�i L� ��° the standard �ity �f I��ca�� Terms and �"c��zt�i�i�� document. � 3. Contract Term (Paragraph 2) Contract shall cammence upon the issuance of a Notice of Award by the City of Denton and shall automatically renew each year, from the date of award by City Council, unless either party notifies the other prior to the scheduled renewal date in accordance with the provision of the section titled "price adjustments", or the section(s) titled "termination". Extension of contract terms will require mutual agreement of the parties. 5. Price Adjustments (Paragraph 1) Prices quoted for the commodities or services described in the RFP must be firm for a period of one year from date of contract award. Requests made for pricing adjustments will be supported by manufacturer or supplier cost justification support, including, but not limited to, applicable industry index data provided by associated manufacturer(s) in accordance with the product represented. 11. Cooperative Purchasing/Piggyback Option �PCLYCigYLdjJli I� The contract resulting from this solicitation will be available for use by all governmental entities within a 75 mile radius of Contractor's base location associated to the specific salicitation, providing there is no conflict with any applicable statutes, rules, policies, or procedures. The governmental entities will have the option to use the pricing as agreed to within the resulting contract (Paragraph 3) After award, and unless noted in the original solicitation response, a service fee in the amount of 2% of the dollar amount of all issued purchase orders generated from use of this contract. The contractor further agrees to remit the service fee by check on a quarterly basis for the previous quarter spent through this contract, to Julia Klinck, Purchasing Coordinator at 901B Texas Street, Denton, TX 76209, on or by the Fifteen day of each month, following the end of the quarter. The Contractor shall also provided quarterly sales reports from the contract awards and Purchase Orders issued from the Cantract, for the purpose of billing and collecting the service fee, and for cornpiling required purchasing history. This report shall be sent to purchasin�(a�citvofdenton.com on or by the tenth day of each month. The Contractor further agrees that the City of Denton shall have the right, upon reasonable written notice, to review the Contractor's records pertaining to purchases under this awarded contract to verify the accuracy of service fees charged to the Contractor. Exhibit D RFP 5231 Page 26 16. Shipping, Delivery and Packaging Deliverv Delavs If delay is foreseen, Contractor shall give written notice to the Customer and must keep Customer advised at all times of status of order. Default in promised delivery (without accepted reasons) or failure to meet specifications authorizes the Customer to purchase goods and associated fulfillment services of this RFP elsewhere and charge any increased costs for the goods, including cost of resoliciting, to the Contractor. Failure to pay a damage assessment is cause for Contract cancellation and/or removal of the Respondent from the City's authorized list of suppliers. Restocking Fee The Customer may request that a Contractor accept return of inerchandise already delivered or that a Contractor cancel an order prior to delivery. If the return is required through no fault of the Contractor, the Contractor may request a reasonable restocking charge. 19. Performance Liquidated Damages (Paragraph 2) The Contractor shall be assessed a one quarter (0.25%) percent fee each week when any one of the performance standards outlined above are not met in full for "normal condition" orders and based on usages in line with estimated annual quantities supplier by the City. At the end of each month, the City will review the monthly reports and deterrnine the percentage of penalty to be assessed to the Contractor's manthly profit rnargin. Total penalty not to exceed five (5%) percent. 20. Warranties The contractor shall provide a warranty that is standard in the industry, which is a"pass through" warranty condition for this agreement. Repair or Maintenance of fleet not performed to industry standards shall be accomplished at the contractor's expense, at the option ofthe City. Section VI - Standard Purchase Terms and Conditions (Opening Paragraph 1) 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 Bidder, Contractor or 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 Sellers Proposal response, Invoice or Statement shall serve to modify the terms set forth herein unless noted as Special Conditions, which have been mutually agreed upon.. If there is a conflict between the provisions on the face of the Contract/Purchase Order these written provisions and attachments will take precedence. 6. DELIVERY TE S AND TR ANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. destination unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Contractor's price shall be deemed to include all delivery and transportation charges. In the event shipping charges are applicable, the City shall have the right to Exhibit D RFP 5231 Page 27 designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. Seller shall be responsible in any event for all goods delivered short or damaged to F.O.B point. Seller agrees to trace lost or delayed shipments. Seller will properly mark and segregate all merchandise. Each loose item will be marked and tagged with the Buyer's Purchase Order number and item number. All shipments must include two (2) legible packing lists, with the description of each item, including serial number of other form of positive identification. All packages, shipments, correspondence, documents, and invoices must show the Buyer's designated company name, order number and item number where applicable. i �. RrGxT To auniT A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor 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. Furthermore, the Contractor, to the best of its ability, also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1°/a or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. 19. WA NTY - PRICE B. The Contractor certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firtn or with any competitor. 20. WA NTY — TITLE The Contractor represents within reasonable expectation 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 Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. 21. WARRANTY — DELIVERABLES The Contractor represents within reasonable expectation 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 Contractor, 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. C. Unless otherwise specified in the Contract, the warranty period shall be one year from the date of delivery of the deliverables, from the date of acceptance of any replacement deliverables, or as a term stated by the corresponding manufacturer. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand either repair the non- Exhibit D RFP 5231 Page 28 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 Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty. 27. TERMINATION FOR CAUSE In the event of a default by either party, the other party 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 defaulting party, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the other party reasonable satisfaction that such default does nat, in fact, exist. In addition to any other remedy available under law or in equity, the non-defaulting party shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the non-defaulting as a result of the defaulting party'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 Contractar, the City may remove the Contractor from the City's vendor list for three (3) years and any Offer submitted by the Contractor may be disquali�ed 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. TE:RMINATION W:ITH:OUT 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 Cantractor shall promptly cease all further work pursuant ta the Contract, with such exceptions, if any, specified in the notice of termination. The City shal) pay the Contractor to the extent 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. 38. OWNERSHCP AND USE OF DELiVERABLES: A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor, to the best of its ability and in working with the corresponding manufacturer(s), disclose such patentable subject matter to the City. Further, if requested by the City, the Contractor 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 Contractor, to the best of its ability and in working with corresponding manufacturer(s), that such deliverables shall be considered as work made-for-hire by the Contractor 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 Contractor, to the best of its ability and with corresponding manufacturer(s), 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 of title, and interest in and to such deliverables. With respect to such work made-for-hire, the Contractor, to the best of its ability and with corresponding manufacturer(s), execute, acknowledge, and deliver and cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver a work-made-for-hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. Exhibit D RFP 5231 Page 29 C. Additional Assignments. Furthermore, the Contractor, to the best of its ability and with corresponding manufacturer(s), if applicable, cause each of its employees to, execute, acknowledge; and deliver ali applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work registration, trademark registration and/or protection, letters patent, or any similar rights in any and all countries and in order to assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and interest in and to the deliverables. The Contractor's obligations to execute, acknowledge, and deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shall continue after the 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 Contractor agrees to treat the same as Confidential Information under the terms of Paragraph 37 above. 67. RECORDS RETENTION The Respondent 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 Respondent shall retain all such records for a period of two (2) 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 Respondent shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of Texas, and any federal governmental entity that has authority to review records due to federal funds being spent under the Contract. � • � ' � : 1 :' 1 � 1 ' � ` � ' '' � ' Supplier shall provide products or services in accordance with the Supplier's proposal in response thereto, a copy of which is attached hereto and incorporated herein for all purposes as Exhibit "D". The Contract consists of this written agreement and the following items which are attached hereto and incorporated herein by reference: (a) Proposal Exceptions (Attachment D) (b) Request for Proposal (RFP # � (c) City of Denton Standard Terms and Conditions (Exhibit "A" as accepted) (d) Special Terms and Conditions (Exhibit 667799} n (e) Form CIQ — Conflict of Interest Questionnaire (Exhibit "C"). ( fl 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 as noted above. Exhibit D RFP 5231 Page 30 1` 1 (Paragraph 9) Should a conflict arise between the PO, supplier terms, or contract; the terms and conditions set forth in this RFP shall prevail, except for Seller's written exceptians given herein. Exhibit D RFP 5231 Page 31