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2014-231oxDiNaNCE No. 2014-231 AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR THE SUPPLY OF CONCRETE LIGHT POLES FOR DENTON MUNICIPAL ELECTRIC; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5552-AWARDED TO TECHLINE, 1NC. IN THE THREE (3) YEAR NOT-TO-EXCEED AMOUNT OF $684,675). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of concrete light poles for the City of 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 approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items in the following numbered request for proposal for materials, equipment, supplies or services, shown in the "Request for Proposals" on file in the office of the Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals. RFP NUMBER CONTR.ACTOR AMOUNT 5552 Techline, Inc. $684,675 SECTION 2. By the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Proposal Invitations, Proposals, and related documents. SECTION 3. Should the City and person submitting approved and accepted items and of the submitted proposals wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the proposals, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5552 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. PASSED AND APPROVED this the �'��r day of �'�� -��"� �� , 2014. ,�'' � � WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY ,�, BY: �` � � ,��' �'�a�- -�- �I'��'�� VI�W� �- � I"�J LEGAL FORM: ANITA BURGESS, CITY ATTORNEY r.,�`�," � ,�,,.� _�-��.Y.� � � � ,, .v BY: �� - ��::�� -�� . ., � F` �� R � a2. � ' � � I C 1 1 I 1 , � THIS CONTRACT is made and entered into this A:`�� cl��v ��i� ��,�.D., 2014, by and between TECHLINE, INC. a corporation, whose ad�1��c.�s �� 4�)1 1'�[�� t�•uct Fort Warth, TX 76119, hereinafter referred to as "Supplier," and the CITY OF DENTON, TE S, 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 ta be abtained hereby, the parties agree as follows: � /;� �; • Supplier shall provide products in accordance with the City's RFP #5552 SUPPLY OF CONCRETE 5"lry�tl ;l�Pl" LIGHT POLES, a capy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written agreement and the following items which are attached hereto, or on file, and incorporated herein by reference: (a) Special Terms and Conditians (Exhibrt "A") (b) City of Denton's RFP 5552 (Exhibit "B" on file at the office of the Purchasing Agent) (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 Cantract documents, the inconsistency or conflict shall be resolved by giving precedence first to the written agreement then to the contract documents in the order in which they are listed above. These documents shall be referred to collectively as "Contract Dok+lddddWddLS,99 Rl 1 J✓✓� IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. ATTEST: JENNIFER WALTERS, �'ITY SECRETARY �"' � BY: � �.... , � *�,_. _�.._. ____ -�� .•••� � . � . �• . . ; • . �. � � � �� . ; � B�: � � ,� r � ��r�� .. SUPPLIER BY: ��IPI'1 IOI T7�1.� SIf� 1TURE Date: I k �� __� Name: � �. �� .�� . � T��: �� 4 �. � � ��..�� .r��.�.. �� _� � � �� v� � �r.w�� PxoNE NuMBEx �..�� s�l� �� a Fax NuMBER _ � � , .� � � .M �,,�' �,,, � ° �,. n..... �---w� . �, , �,� � :� r � �m � �� r. BY. � � ; �.,�� _., �y � p GEOliGE C. i ti.�f�1�L:LLy L�.,I 1� MtilVtiGLi1\ Date: .�;° �� ,�� `� ��°� �r�" � � ► � ,• � , i � � 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 bid price. Individual purchase orders will be issued on an as needed basis. Pro_duct Chan�es Durin� Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to dentonpurchasin�(�a,cityofdenton.com, with the above file number in the subject line, for review. Products faund to have changed specifications without notification, and acceptance, will be retumed at the supplier's expense. Products that have been installed will be replaced at the supplier's expense. Authorized istributor 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 Cauncil, unless either party notifies the other prior to the scheduled renewal date. At the sole option of the City af Denton, the contract may be further extended as needed, not to exceed a total of six (6) months. ' � � 1• i 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 City's responsibility to request a price adjustment annually in writing. If no request is made, then it will be assumed that the bid price will be in effect. The supplier must submit or make available the manufacturers pricin� sheet used to calculate the bid nroposal, to participate in the escalation/de-escalation clause. . . Total Contract A ount - � . � . . � - --� `r�:� � . . . r- •- •, 1 . . -� 1 � Product or services shall be delivered to the City per the days/weeks noted in Exhibit D after receipt of the order. r �. •� 1. .�. �. -� �. .�- • _• ', • � , r . . I:��J.Y.7.7►.1 � � 1� y �. + ' �! � � � 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 wr•iting and signed by a representative of the City's Pracurement Department and the Supplier. No Terms and Conditions contained in the Supplier's Proposal response, Invoice or Statement shall serve ta 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 subri�itting an Offer in response to the Solicitation, the Supplier agrees that the coritract 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 Salicitation to purchase Goads, and Sections 9, 10, 11 and 22 sl�all apply only to a Solicitation to purchase Services to be performed principally at the City's prernises or on public rights-of-way. 1. SUPPLIER'S OBLIGATTONS. The Supplier shall fully and timely provide all deliverables described in the Solicitation and in the Supplier's Offer in strict accordance with the tenns, cavenants, and canditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE/TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. SUPPLIER TO PAC GE DELIVERABLES: The Supplier will package deliverables in accordance with good carnrnercial practice and shall include a packing list showing the descriptian of each item, the quantity and unit price unless otherwise provided in the Specificatians or Supplemental Tenns and Conditians, each shipping container shall be clearly and pennanently marked as failows: (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 af containers, e.g. box 1 of 4 baxes, and (d} the number of the container bearing the packing list. The Supplier shall bear cost af packaging. Deliverables shall be suitably packed to secure lowest transportation costs and ta conform ta all the require,nents of common carriers and any applicable specification. The City°s count or weight shall be final and conclusive on shiprnents not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Supplier is not authorized to ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Title to and risk af 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 af delivery unless otherwise specified in the Supplemental Tenns 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 methad of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 7. R1GHT OF INSPECTION AND REJECTION: The City expressly reserves all rights undei° law, including, but not limited to the Unifoi-m 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 RFP 5552 Subcontractor's, facilities, or the deliverables at the Supplier's, or the Supplier's Subcontractor's, prernises, the Supplier shall furnish, ar cause to be furnished, withaut additianal charge, alI reasanable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery af deliverables must fully comply with all pravisions of the Cantract as to time of delivery, quality, and quantity. Any non-complying tender shall constitute a breach and the Supplier shall not have the right to substitute a conforming tender; provided, where the time for perfonnance has not yet expired, the Supplier may natify the City of the intention to cure and may then make a conforming tender within the time allotted in the cantract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Supplier access to the sites where the Supplier is ta perfarm the services as required in order for the Supplier ta perfann the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Supplier acknowledges that it has satisfied itself as to the nature af the City's service rec�uirements and specifcations, the lacation and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary ta perfarm the services, and any other condition or state of fact which could in any way affect perfonnance of the Supplier's abligations 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 canditions differ from expected conditians. ]0. WO KFO CE A. The Supplier shall emplay only orderly and campetent workers, skiiled in the perfarmance of the services which they will perform under the Cantract. B. The Supplier, its employees, subcontractars, and subcontractor's employees may nat while engaged in participating or respanding to a solicitation or while in the course and scope of delivering goods or services under a City af Denton contract ar on the City's praperty . i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms af the cantract; or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nar may such workers be intoxicated, or under the influence of alcohal or drugs, on the job. C. If the City or the City°s representative natifies the Supplier that any worker is incampetent, disorderly or disobedient, has knowingly or repeatedly vialated safety regulatians, 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 warker again on Contract services without the City's prior written cansent. Immigratian: The Suppiier represents and warrants that it shall co'nply with the requirements af the lYmnigration Reform and Cantrol Act of 1986 and 1990 regarding emplayrnent verification and retention of verification forms for any individuals hired an or after Navember 6, 1986, who will perform any labor or services under the Cantract and the Illegal Immigration Reform and Immigrant Responsibitity Act of 1996 ("IiRIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Supplier, it's Subcontractars, and their respective emplayees, shall camply fully with all applicable federal, state, and local health, safety, and enviramnental 1aws, ordinances, rules and regulations in the perfarmance of the services, including but not limited to those pramulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the rnost stringent safety requirement shall gavern. The Supplier shall indemnify and hold the City harmless frorn and against all clairns, demands, suits, actions, judgrnents, fines, penalties and liability of every kind arising fram the breach of the Supplier's abligations under this paragraph. Environmental Protect'ron: 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 e! seq.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. § 1251 et seq.}. 12. INVOICES: A. The Supplier shall submit separate invoices in duplicate on each purchase order or purchase release after• each delivery. [f partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. RFP 5552 B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department's Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached ta the invoice. The Supplier's name, remittance address and, if applicable, the tax identification number on the invoice must exactly match the infonnatian 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 tabulatian of work-haurs 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 upan request. 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30} calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Supplier will be paid for the partial shipment ar delivery, as stated above, provided that the invaice matches the shipment or delivery. D. The City may withhold ar set off the entire payment or part of any payment otherwise due the Supplier ta such extent as may be necessary on account af: i. delivery of defective or non-conforming deliverables by the Supplier; ii. third pariy claims, which are not covered by the insurance which the Supplier is required to pravide, 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 praperiy of the City or the City's agents, employees or suppliers, which is not covered by insurance required to be pravided by the Supplier; v. reasonable evidence that the Supplier's obligations will not be completed within the ti�ne 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 natnber, with all required attachments and supporting documentation; or vii. failure of the Supplier ta comply with any material provision of the Contract Dacuments. 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 awed the City through payment withholding. F. Payment will be made by check unless the parties �nutually 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 af this contract is dependent upon the availability of funding. The City's payroent obligations are payable only and solely from funds Appropriated and available for this contract. The absence af 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 pravide the Supplier written notice of the failure of the City to mal<e an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Apprapriation to an amount insufiicient to permit the City to pay its obligations under tl�e Cantract. ln the event of none or inadequate appropriation of funds, there will be no penalty nor remaval fees charged to the City. 14. TRAVEL CXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid I: ' .� by the Supplier, unless otherwise stated in the contract terms.. 15. FINAL PAYMENT AND CLOSE-0UT: A. If a DBE/MBE/WBE Program Plan is agreed to and the Supplier has identified Subcontractors, the Supplier is required ta submit a Cantract Close-Out MBE/WBE Campliance Report to the Purchasing Manager no later than the 15th caiendar day after completion of all work under the contract. Final payment, retainage, ar both may be withheld if the Supplier is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will canstitute: i. a waiver of all claims by the City against the Suppiier, except claims (1) which have been previously asserted in writing and nat yet settled, (2} arising from defective work appearing after final inspectian, (3} arising fram failure of the Supplier ta comply with the Cantract or the terms of any warranty specified herein, (4} arising from the Supplier's continuing abligations under the Contract, including but not limited ta 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 nat yet settled. 16. SPECIAL TOOLS & TEST E UIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Supplier for the purpase of filling this arder, such special tooling equipment and any process sheets related thereta shall become the property af the City and shall be identified by the Supplier as such. r 7. rcxT To Au rT: A. The City shall have the right ta audit and make copies of the baoks, recards 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 unreso}ved, in which case records shall be kept until all audit tasks are completed and resolved. These boaks, records, documents and other evidence shall be available, within ten (10} business days af written request. Further, the Supplier shall alsa require all Suhcontractors, material suppliers, and other payees to retain atl baal<s, records, docurnents 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 Dentan. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1% ar greater. If an overpayment af 1% or greater accurs, 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 af an invaice. B. Failure to coinply with the provisions af this sectian shall be a material breach of the Contract and shall canstitute, in the City's sole discretian, grounds for terminatian thereof. Each of the terrns 66books", "records", "docu�nents" and "ather evidence", as used abave, shall be construed ta include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18. SUBCOIVTRACTORS: A. If the Supplier identified Subcontractors in a DBE/MBE/WBE agreed to Plan, the Supplier shall camply with all requirements approved by the City. The Supplier sha11 not initially empiay any Subcontractor except as provided in the Supplier's Plan. The Supplier sha11 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 ta defective deliverables pravided 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 af each month. B. Wark performed for the Supplier by a Subcontractor shall be pursuant to a written contract between the Supplier and Subcantractor. The tenns af the subcantract may not canflict with the terins af the Contract, and shall cantain provisions that: i. require that all deliverables to be provided by the Subcantractor be pravided in strict accardance with the provisians, specificatians and ter�ns af the Contract; ii. prohibit the Subcontractor fram further subcontracting any partion of the Contract without the prior written consent of the City and the Supplier. The City may require, as a candition to such further subcontracting, that the Subcontractor post a payment bond in farm, substance and amount acceptabie to the City; iii. require Subcantractors ta submit all invaices and applicatians for payinents, including any claims for additianal payments, darnages or atl7erwise, to the Supplier in sufficient time to enable the Supplier ta include same with its invoice or applicatian for payment ta the City in accordance with the terms of the Contract; iv. require that all Subcontractars obtain and maintain, throughout the term of their contract, insurance in RFP 5552 the type and arnounts 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 hannless to the same extent as the Supplier is required to indemnify the City. C. The Supplier shall be fully responsible to the City for all acts and omissians of the Subcontractars just as the Supplier is responsible far the Supplier's own acts and omissions. Nathing in the Contract shall create far the benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shail it create any obligatian on the part of the City to pay or to see to the payment of any rnoneys due any such Subcantractor except as may otherwise be required by law. D. The Supplier shall pay each Subcantractor its apprapriate share of payrnents made to the Supplier not later than ten (1Q) calendar days after receipt af payment froin the City. 19. WARRANTY-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 Iike deliverables under similar terms of purchase. B. The Supplier certifies that the prices in the Offer have been arrived at independently withaut consultatian, cammunication, or agreement far the purpose of restricting carnpetition, as ta any matter relating to such fees with any ather firm ar with any competitor. C. In addition ta any ather remedy available, the City may deduct from any amounts awed to the Supplier, or otherwise recover, any amaunts paid for items in excess of the Supplier's current prices on orders by others for like deliverables under similar tenns of purchase. 20. WARRANTY — TITLE: The Supplier warrants that it has goad and indefeasible title to all deliverables furnished under the Cantract, and that the deliverables are free and clear of all liens, claims, security interests and encurnbrances. The Supplier shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. 21. WARRA1vTY — DELIVE ABLES: The Supplier warrants and represents that all deliverables sold the City under the Contract shall be free fram defects in design, warkmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the SoIicitation, to any samples furnished by the Suppiier, to the terms, covenants and conditions of the Contract, and ta all applicable State, Federal ar local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitatian, the deliverables shall be new or recycled merchandise, and not used or recanditioned. A. Recycled deliverables shall be clearly identified as such. B. The Supplier may not limit, exclude or disclaim the foregoing warranty ar any warranty implied by law; and any attempt to da so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be at least one year fram the date of acceptance of the deliverables ar from the date af acceptance of any replacement deliverables. If during the warranty period, one or rnare of the above warranties are breached, the Supplier shall promptly upan receipt of demand either repair the nan-conforming deliverables, ar replace the non-canforming deliverables with fully confarming deliverables, at the City's aption and at no additional cost to the City. Ali 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 af warranty, but failure to give timely natice shall not impair the City's rights under this section. D. If the Supplier is unable ar unwilling to repair ar replace defective or non-confonning deliverables as required by the City, then in additian to any other available remedy, the City may reduce the quantity af deliverables it may be required to purchase under the Contract from the Supplier, and purchase conforming deliverables from other saurces. In such event, the Supplier shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Supplier is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Supplier shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Supplier shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty far the benefit of the City. 22. WARRANTY — SERVICES: The Supplier warrants and represents that all services ta be pravided the City under the Contract will be fully and timely perfarmed in a gaad and warkmanlike manner in accordance with generally accepted industry standards and practices, the terms, canditions, and cavenants af the Contract, and all : ` I applicable Federal, State and local laws, rules or regulations. A. The Supplier may nat li�nit, exclude ar disclaim the foregoing warranty or any wa�ranty irnplied by law, and any attempt to da so shall be without farce or effect. B. Unless otherwise specified in the Contract, the warranty periad shaIl be at least one year frorn the Acceptance Date. If during the warranty period, one or more of the abave warranties are breached, the Supplier shalt promptly upan receipt of demand perform the services again in accordance with above standard at no additional cast to the City. All costs incidental to such additionat performance shail be bame by the Suppiier. The City shail endeavor to give the Supplier written natice af the breach af warranty within thirty (30} calendar days of discovery of the breach warranty, but failure to give timely notice shail not impair the City's rights under this section. C. If the Supplier is unable or unwilling to perfann its services in accardance with the abave standard as required by the City, then in addition to any other available remedy, the City may reduce the amaunt of services it may be required ta purchase under the Contract from the Supplier, and purchase confanning services from other saurces. in such event, the Supplier shall pay to the City upon demand the increased cast, if any, incurred by the City ta procure such services fram anather saurce. 23. ACCEPTANCE OF INCOMPLETE OR NON-CONFO MTNG ELIVERA LES: If, instead of requiring immediate correction or remaval and replacement of defective or nan-conforming deliverables, the City prefers ta accept it, the City may do so. The Supplier shall pay all claims, casts, lasses and damages attributable ta the City's evaluation af and determination to accept such defective or non-confanning deliverables. lf any such acceptance accurs prior ta final payment, the City may deduct such amounts as are necessary ta campensate the City for the diminished value af the defective or non-confarming deliverables. If the acceptance occurs after final payment, such amount will be refunded ta the City by the Supplier. 24. RIGHT TO ASSURANCE: Whenever one party to the Cantract in good faith has reason ta question the other party's intent to perform, demand may be made to the other party for written assurance af the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The C1ty may issue an immediate Stop Wark Notice in the event the Supplier is observed performing in a manner that is in violation af Federal, State, ar local guidelines, or in a manner that is detennined by the City to be unsafe to either life or property. Upon notification, the Supplier will cease all work until natifed by the City that the violation or unsafe condition has been carrected. The Supplier shall be liable for a11 costs incurred by the City as a result af the issuance af such Stap Wark Natice. 26. DEFAULT: The Supplier shall be in default under the Contract if the Supplier (a) fails to futly, timely and faithfully perfarm any af its material obligatians 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) rnakes a material misrepresentation in Supplier's Offer, ar in any report or deliverable required to be submitted by the Supplier ta the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Supplier, the City shall have the right ta terminate the Contract for cause, by written natice effective ten (10) calendar days, unless otherwise specified, after the date af such natice, unless the Supplier, within such ten ( I O) day periad, cures such default, ar provides evidence sufficient to prove ta the City's reasonable satisfaction that such default does not, in fact, exist. In addition to any ather remedy available under law ar in equity, the City shall be entitled to recaver alt actual damages, casts, losses and expenses, incurred by the City as a result of the Supplier's default, including, without limitation, cost of caver, reasanable attarneys' fees, court costs, and prejudgment and post judgment interest at the maximum lawful rate. Additianally, in the event of a default by the Supplier, the City may remove the Supplier fram 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 nat exclusive af any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right ta terrninate the Cantract, in whole or in part, without cause any time upon thirty (30} calendar days' prior written natice. Upan receipt of a notice of terminatian, the Supplier shall pramptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the natice of termination. The City shall pay the Supptier, to the extent of funds Appropriated or otherwise lega(ly available for such purposes, for all goods delivered and services performed and abligations incurred prior ta the date of tecminatian in accardance with the terms hereof. RFP 5552 29. F AUD: 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 actian. 30. DELAYS: A. The City rnay delay scheduled delivery or ather 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 cast of the work under the Contract, the City and the Supplier shall negotiate an equitable adjustment for costs incurred by the Supplier in the Contract price and execute an amendment to the Contract. The Supplier must assert its right to an adjustment within thirty (30) calendar days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the Supplier fram delaying the delivery as notified. B. Neither party shall be liable for any default or delay in the performance of its abligations under this Contract if, while and to the extent such default or delay is caused by acts af Gad, fire, riots, civil commotion, labar disruptions, sabotage, sovereign conduct, or any ather cause beyond the reasonable control of such Party. ln the event af default ar delay in cantract perfonnance due to any af the foregaing causes, then the tiine for campletion af 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 af time reasonably necessary to overcome the effect of such failure to perfonn. 31. INDEMNITY: A. Definitians: i. °°lndemnified Claims°° shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type ar description, including all reasonable costs and expenses of Iitigation, mediation or ather 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 li�nited to the City, the Supplier, their respective agents, officers, employees and subcantractors; the offcers, agents, and employees of such subcontractors; and third parties); and/or (2) death, badily injury, illness, disease, worker's compensatian, Ioss of services, or lass af inco�ne or wages to any person (including but not limited to the agents, afficers and employees of the City, the Supplier, the Supplier's subcontractars, and third parties), ii. "Fault" shall include the sale of defective or nan-conforming deliverables, negligence, willful miscanduct or a breach of any legally imposed strict liability standard. B. THE SUPPLIER SHALL DEh'END (AT TFIE OPTION OI' THE CIT7'}, INDEMNIP'Y, AND HOLD TIiG C1TY, ITS SUCCESSORS, ASSIGNS� OP'rICERS� EMPLOYE�S AND ELECTED OTr1C1ALS HARML�SS P'ROM AND ACAINST ALL IND�MNIFICD CLAIMS DIRGCTLY ARISING OUT OF, INCIUENT TO� CONCERNING OR RGSLILTING FROM THC FAULT oF Tt-[c SUPPLIER, OR THG SUPPLIER'S AGENTS, EMl'LOYEES OR SUBCONTRACTORS, IN THC PERFORMANCG OF THE SUPPLIER'S OBLIGATIONS LINDER THE CONTRACT. NOTI-IING HEREIN SIIALL BG DEEMGD TO LIMIT THE RIGI{TS OF THE C1TY OR THE SUPPLIER (TNCLUBING, BUT NOT LIMITED TO� T}IE RIGHT TO SEEK CONTRIBUTION} ACAINST ANY THIRll PARTY WHO MAY I3G L1A[3LE POR AN 1NDEMNIP'IED CLATn4. 32. INSURANCE: The follawing insurance requirements are applicabie, in additian to the specifc insurance requirements detailed in the solicitation dacument. The successful firm shall pracure 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 af Texas and satisfactary to the City of Denton. A. General Requirements. i. The Supplier shall at a mrnimum 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 Certi�cates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior ta cantract execution and within faurteen (14) calendar days after written request from the City. Failure ta provide the required Certificate of Insurance may subject the Offer to disqualificatian from consideratian for award. The Supplier must also forward a Certificate of Insurance to the City whenever a previously identified palicy period has expired, or an extension option or hold over period is exercised, as verificatian of cantinuing coverage. iii. The Supplier shall not commence work until the required insurance is ohtained and until such insurance has been reviewed by the City. Approval of insurance by fl1e City shall not relieve ar decrease the liability RFP 5552 af the Supplier hereunder and shall not be construed to be a limitation of liabitity on the part af the Supplier. iv. The Supplier rnust submit certificates of insurance ta the City for all subcontractors prior to the subcantractars commencing work on the praject. v. The Supplier's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State af Texas at the time the palicies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers' compensatian coverage written by the Texas Workers' Coinpensation lnsurance Fund. vi. All endorsements naming the City as additianal insured, waivers, and notices of cancellation endorsements as well as the Certificate af Insurance shall cantain the solicitation number and the following information: . a- • ,•- l-.. '1 ; , ► R- � , r la; vii. The "other" insurance clause shall nat apply ta the City where the City is an additional insured shown an any policy. It is intended that policies required in the Cantract, cavering both the City and the Supplier, shall be cansidered primary caverage as applicabie. viii. If insurance palicies are not written far aroounts agreed to with the City, the SuppIier shall carry Umbrella or Excess Liability Insurance far any differences in amounts specified. If Excess Liability Insurance is pravided, it shall foliow the farm of the primary coverage. ix. The City shall be entitled, upon request, at an agreed upan location, and without expense, ta review certified copies of po(icies and endarsements thereto and may make any reasanable requests for deletion ar revisian or modification af particular policy tenns, canditians, limitatians, ar exclusions except where policy provisions are established by law or regulations binding upan either of the parties hereto or the underwriter on any such palicies. x. The City reserves the right to review the insurance requirements set forth during the effective period of the Cantract and to make reasanable adjustments ta insurance caverage, limits, and exclusians when deemed necessary and prudent by the City based upon changes in statutory iaw, court decisions, the claims history of the industry ar financial conditian of the insurance campany as well as the Supptier. xi. The Supplier shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract ar as required in the Cantract. xii. The Supplier shall be respansible for premiums, deductibles and self-insured retentions, if any, stated in policies. All deductibtes ar self-insured retentions shall be disclosed on the Certificate of lnsurance. xiii. The Supplier shall endeavor ta provide the City thirty (30} calendar days' written notice of erosion of the aggregate lirnits below occurrence limits for all applicable coverage's indicated within the Contract. xiv. The insurance caverage's specified in within the salicitation and requirements are required minimums and are nat 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, ar other action is asserted against the Supplier which arises under or cancerns the Contract, or which could have a material adverse affect on the Supplier's ability ta perform thereunder, the Supplier shall give written notice thereof to the City within ten (10) calendar days after receipt af notice by the Supplier. Such natice to the City shall state the date of notiiication af any such claim, demand, suit, or ather 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 natice shall be delivered persanally or by rnail and shall be sent to the City and to the Dentan City Attorney. Personal delivery ta the City Attorney shall be ta City Hall, 215 East McKinney Street, Denton, Texas 76201. 34. NOTICES: Unless othe�°wise specified, all notices, requests, or other cammunications 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. Pastal Service Cei�tified or Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deemed delivered upon receipt by the addressee. Routine cammunications may be made by first class mail, telefax, or other commercially accepted mea�is. Notices ta the Supplier shail be sent to the address specified in tiie Supplier's Offer, or at such otl7er address as a party may notify tl7e ather in writing. Notices to the RFp sssz City shall be addressed to the City at 901 B Texas Street, Denton, Texas 76209 and anarked to the attention af the Purchasing Manager. 35. IG TS TO BID, P OPOSAL AND CONT ACTUAL MATE IAL: All material submitted by the Supplier ta the City shall become praperty of the City upan receipt. Any partions of such material claimed by the Supplier to be praprietary must be clearly marked as such. Detennination of the public nature of the material is subject to the Texas Public Infonnation Act, Chapter 552, and Texas Government Cade. 36. NO WARRANTY BY CITY AGAINST INFRINGEMEI�TS: The Supplier represents and warrants to the City that: (i) the Supplier shall pravide the City goad and indefeasibie title to the deliverables and (ii) the deliverables supplied by the Supplier in accordance with the specificatians in the Cantract will not infringe, directly or contributarily, any patent, trademark, copyright, trade secret, or any other intellectual property right af any kind of any third party; that no claims have been made by any persan or entity with respect to the ownership or operation of the deliverables and the Supplier does nat know of any valid basis for any such clairns. The Supplier shall, at its sole expense, defend, indemnify, and hald the City harmless frorn and against all liabiiity, damages, and casts (including court costs and reasonable fees of attorneys and other prafessionals} arising out of or resulting from: (i) any claim that the City's exercise anywhere in the war3d of the rights associated with the City's' ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual properiy rights of any third party; or (ii} the Supplier's breach of any of Supplier's representations or warranties stated in this Cantract. In the event of any such clairn, the City shall have the right to rnanitor such claim or at its option engage its awn separate counsel ta act as co-counsel on the City's behalf. Further, SuppIier agrees that the City's specifications regarding the deliverables shall in na way diminish Supplier's warranties or abligations under this paragraph and the City �nakes na warranty that the production, development, or delivery of such deliverables will not impact such warranties af Supplier. 3i. COIVFIDENTIALITY: In order ta pravide the deliverables ta the City, Supplier may require access to certain of the City's and/or its licensars' canfidential infarmation (including inventions, empIoyee infonnation, trade secrets, canfidential knaw-how, confidential business infarmatian, and ather information which the City or its licensors consider confidential} (collectively, "Confdential lnfannation"). Supplier acknowledges and agrees that the Confidential Infonnation is the valuable property of the City and/or its licensors and any unauthorized use, disclosure, dissemination, ar other release of the Confidential Infor�nation will substantially injure the City and/or its licensors. The Supplier (including its employees, subcantractors, agents, or representatives) agrees that it will maintain the Confidential Infonnatian in strict confidence and shall nat disclase, disseminate, capy, divulge, recreate, or otherwise use the Confidential Information withaut the prior written cansent af the City or in a manner nat expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or an order af any caurt or other governmental aatharity with praper jurisdictian, pravided the Supplier promptly notifies the City befare disclosing such information so as ta permit the City reasonable time to seek an appropriate pratective order. The Supplier agrees ta use protective measures no less stringent than the Supplier uses within its own business to pratect its own mast valuable information, which protective rneasures shall under all circumstances be at least reasonabte measures to ensure the continued confidentiality af the Confidential Information. 3$. OWNERSHIP AND USE OF DELiVERABLES: The City shall own all rights, titles, and interests thraughout the world in and to the deliverables. A. Patents. As to any patentable subject matter cantained in the deliverables, the Suppiier agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Supplier agrees to assign and, if necessary, cause each of its emplayees 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 af its emplayees ta execute, acknowledge, and deliver an assignment of Ietters patent, in a form to be reasanably appraved by the City, to the City upon request by the City. B. Capyrights. As ta any deliverables containing capyrightable subject matter, the Supplier agrees that upon their creatian, such deliverables shall be considered as work made-for-hire by the Supplier for the City and the City shall own all capyrights in and to such deliverables, provided hawever, that nothing in this Paragi-aph 38 shall negate the City's sole or joint ownership of any such deliverables arising by virtue af the City's sole or jaint authorship of such deliverables. Should by aperation of law, such deliverables nat be considered works made-for-hire, tl�e 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 a��d to such deliverables. With respect to such work made-for-l�ire, tl7e Supplier agrees to execute, acknowledge, and deliver and RFP 5552 cause each of its empioyees praviding 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, ta the City upon delivery of such deliverables to the City or at such other time as the City may request. C. Additional Assignments. The Supplier further agrees to, and if applicahle, cause each of its employees ta, execute, acknowledge, and deliver ali applications, specificatians, oaths, assignments, and all ather instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work registration, trademark registration and/ar pratection, 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 naminees, the sale and exclusive right, trtle, and interest in and to the deliverables. The Supplier's abligatians to execute, acknowledge, and deliver (ar cause to be executed, acknawledged, and delivered} instruments ar papers such as those described in this Paragraph 38 a., b., and c. shall continue after the termination af this Contract with respect ta such deliverables. In the event the City should not seek to obtain capyright pratection, mask work registratian or patent protection far any af the deliverables, but should desire to keep the sarne secret, the Supplier agrees to treat the same as Confidential Informatian under the terms of Paragraph 37 above. 39. PUBLICATI NS: All pubfished material and written reports submitted under the Cantract must be ariginally developed material unless otherwise specifically provided in the Cantract. When material not originally developed is included in a repart in any fann, the source shall be identified. 40. ADVERTISING: The Supplier shall nat advertise ar publish, withaut the City's priar consent, the fact that the City has entered inta the Contract, except to the extent required by law. 41. NO CONTINGENT FEES: The Supplier warrants that no person or selling agency has been ernp3oyed or retained to solicit or secure the Cantract upon any agreement ar understanding for commission, percentage, brakerage, or cantingent fee, excepting bana fide employees af bana fide established cornmercial or selling agencies maintained by the Supplier for the purpase of securing business. For breach ar vioIatian of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract withaut liability and to deduct fram any amounts owed to the Supplier, ar atherwise recover, the full amount of such cammission, percentage, brokerage ar cantingent fee. 42. G ATUITIES: The City may, by written natice to the Supplier, cancel the Contract without liability if it is detennined by the City that gratuities were offered or given by the Suppiier ar any agent ar representative af the Supptier to any officer ar employee af the City of Denton with a view toward securing the Contract or securing favarable treatment with respect ta the awarding ar amending ar the �naking of any determinations with respect to the performing of such cantract. In the event the Contract is canceled by the City pursuant to this provision, the City shall be entitled, in additian to any other rights and remedies, ta recaver or withhold the amount of the cost incurred by the Supplier in providing such gratuities. 43. PROHI ITION AGAINST PE SONAL TNTEREST IN CONT ACTS: No officer, e,nplayee, independent consultant, or elected afficial of the City who is invalved in the development, evaluation, or decisionanaking process of the perforrnance of any solicitation shall have a financial interest, direct or indirect, in the Contract resulting frarn that solicitatian. Any wiliful vialation of this section shall constitute imprapriety in office, and any afficer ar emplayee guilty thereof shall be subject to disciplinary action up to and including dismissa(. Any vialation of this pravisian, 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 Canflict of Interest Questionnaire (Attachment B). 44. IiVDEPENDENT SUPPLIER: The Contract shall not be construed as creating an emplayer/employee relatianship, a partnership, or a jaint venture. The Supplier's services shall be thase af an independent supplier. The Supplier agrees and understands that the Contract does nat grant any rights or privileges established for einployees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacatian or sick leave benefits, worker's compensation, or any other City emplayee benefit. The City shall not have supervision and controt af the Supplier or any emplayee of the Supplier, and it is expressiy understoad that Supplier shall perfarm the services hereunder accarding ta the attached specifications at the general directioil of the City Manager of the City of Dentan, Texas, ar his designee under this agreement. 45. ASSIGIVMENT-DELEGATION: The Contract shail be bind`u7g upon and ensure ta the benefit of tlfe City and the Supplier and theii• respective successors ai7d assigils, pr•ovided however, that no i-ight ar ii�terest in the Coiitract RFP 5552 shall be assigned and no obligation shall be delegated by the Supplier witho�t the prior written consent of the City. Any attempted assignment ar delegation by the Supplier shall be void unless made in canfarmity with this paragraph. The Contract is nat intended to canfer rights or benefits on any persan, firm ar entity not a party hereta; it being the intention of the parties that there are no third party beneficiaries to the Contract. 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim ar right unless the waiver or renunciation is supparted by cansideration and is in writing signed by the aggrieved party. No waiver by either the Supplier or the City of any ane or more events af default by the other pariy shall operate as, or be construed to be, a pennanent waiver of any rights or obligations under the Contract, ar an express or implied acceptance of any other existing or future default or defaults, whether af a similar ar different character. 47. MODIFICATI NS: The Contract can be modified or amended only by a writing signed by both parties. Na pre-printed or sirnilar terms an any the Supplier invoice, arder or ather document shall have any force or effect ta change the terms, covenants, and canditions af the Cantract. 48. INTERPRETATION: The Cantract 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 caurse af perfarmance or usage of the trade shall be relevant to supplement or explain any terin used in the Cantract. Although the Contract may have been substantially drafted by one party, it is the intent of the parties that all provisions be constiued in a manner to be fair ta both parties, reading na provisians more strictly against one party or the ather. Whenever a term defrned by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definitian 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 negatiate prior to prasecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to tall the running af a statute of limitations or ta seek injunctive relie£ Either party may make a written request far a rneeting between representatives of each party within fourteen (14} calendar days after receipt af 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-roaking authority regarding the dispute. The purpose af this and any subsequent meeting is ta attempt in good faith ta negatiate a resolutian af the dispute. lf, within thirty (3Q) calendar days after such meeting, the parties have nat succeeded in negotiating a resolutian of the dispute, they will proceed directIy ta mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly ta mediation as described below. B. lf the efforts to resolve the dispute through negotiation fail, ar the parties waive the negatiation process, the parties rnay select, within thirty (30} calendar days, a mediator trained in rnediation skills to assist with resolution of the dispute. Should they choose this aption; the City and the Supplier agree to act in good faith in the selection of the �nediatar and to give consideration ta qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skilis af a person who is trained in the subject matter of the dispute or a contract interpretatian expert. If the parties fail to agree an a mediator within thirty (30} calendar days af initiation af the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree ta participate in mediation in good faith for up to thirty (30) calendar days fram the date of the first mediation session. The City and the Supplier will share the mediatar's fees equalty and the parties will bear their own costs af participation such as fees far any consultants ar attorneys they may utitize to represent them or otherwise assist them in the rnediation. 50. JURISDICTION AND VENUE: The Cantract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Unifarm Coinmercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Cade, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. Atl 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 nat be canstrued or interpreted to limit or restrict the right ar ability of the City ta seek and secui°e injunctive relief fram any competent authority as contemplated herein. 51. 1NVALIDITY: The invalidity, illegality, or unenforceability of any pravision of the Contract shall in no way affect tl�e validity or enforceability af any ather- portion ar provision of the Contract. Any vaid provision shalt be RFP 5552 • " - 1 - ' # t�'�. • � ' � .r . ` � � T' + - • ��. � ��. 1 ' � ��, � � ' � . l ....... � . � * � ��. ��, ' • . � � ��. l�� • � '��. � • • - 1 �' 7 ' f '�, f. - �.. ,. - �. .,. #� �: . f - • . � !� '•'��..s • ��. � w .'�,� � #:.... � �.��. .,1� F• �'.' �.• •�: � ��...... • ' ��. •�.��,� • w.��... t.,,, � " " �. . • ��." + +'�� # w: . •,�•:�. •.��. - ..' # " ; , , !' *...'�' '��.. • i' '.# #:: � � �^ • ' � '. �, � , ��, • ' • �� .. ,- .. �. �� - New Year's Day (abserved} MLK Day Memarial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (abserved} Christmas Day (abserved) New Year's Day (observed} ' � . '�. w •� ... l..:.. '�.. � ' + R� .. �� .,,. ' � ', � 1 , � �' # ..r. ' ! . ! . '�.. 1 . � � �: f r �- a� -� � � • � �. • � � ��- r �- �- _ i 1) � � 1! r • �. • �. � + w �- • t *, _w -� t- - • • •- • • - * � • �i- w �� •r � - .•. • �• a • � -w �- , 53. SURVTVABILITY OF OBLIGATIONS: All provisians of the Contract that impose continuing abligatians on the parties, including but not litnited to the warranty, inde�nnity, and confidentiality abligatians of the parties, shall survive the expiration or termination af the Contract. � , � ' ! �' 1 :. ! • + - �' �- � � • � -� � • + • • � - � � , • • •, �- w-� w �'��.'M• '�� 1 :�.#�� . �. .•...'. •'[ l�... 1'M.��.� '� �.��.' '#.'.. " � ♦ �'- � . . • i�.�. .' � � r • ' ��.. '�, � * 1'��. • '��. � . • ��. � ' .1. �' !�'��. ' f .. ; ' � ��. •' � � . � " ..' * ' .,. • ' * .' * ! " � �,, . *,' �. � . � # � ' # ��. �' " 1. ' +' ,. *� .. � ! . �.... ! � �. _ .. �, ' * " • �'..' * ,,. '. . '..: + .i. , R ■ ,,� ! � '� � 1 1 1� ....., �� 1 1 � �� . ' � •. �,. � , •� . i ' f, '��. . • '��, � �, * ..... *. • ` � ��,, �. w...,,. " +. ,, • � .. !, � �, '. . � '�, �' w �. T . i.. s - .. ..... i !.'��.. . • • + •- - -�, - �- - • � �- � - - � - _• � � . r i-, . ., - - , • . �, : 1 . � / � � � • ' � • • r ,_ - *.�- � . r, r t � .*, � � � .s, �- -w _ #� . 56. BUY AMERICAN ACT-SUPPLIES (Applicable to certain federally funded requirements) The fallowing federally funded requirements are applicable, in additian to the specific federally funded requirements. A. Defnitians. As used in this paragraph — i. "Camponent" rneans an article, material, or supply u�cozparated directly into an end product. ii. "Cost of components" means - (1} For components pui-chased by tl7e Supplier, the acquisition cost, including tg°anspartation costs to the piace af incorporatian 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 casts associated with the manufacture of the component, including transportation casts as described in paragraph (1) af this definition, plus allacable overhead costs, but I�� excluding praft. Cost of components does not include any costs associated with the inanufacture af the end product. iii. °'Domestic end praduct°° means- (1) An unmanufactured end product mined or produced in the United States; or (2} An end praduct manufactured in the United States, if the cost af its camponents ,nined, produced, or manufactured in the United States exceeds SQ percent of the cost af all its components. Camponents of fareign origin of the same class or kind as those that the agency determines are not mined, praduced, or manufactured in sufficient and reasonably available cammercial quantities of a satisfactary quality are treated as domestic. Scrap generated, callected, and prepared far processing in the United States is cansidered domestic. iv. "End product" means those articles, rnaterials, and supplies to be acquired under the contract for public use. v. "Foreign end product" means an end product ather than a domestic end product. vi. "United States" rneans the 50 States, the District of Calu�nbia, and outlying areas. B. The Buy American Act (41 U.S.C. l0a - lOd) provides a preference for do�nestic end products far supplies acquired for use in the United States. C. The City does not maintain a list of foreign articles that will be treated as dornestic far this Contract; but will consider for approval foreign articles as damestic for this product ifthe articles are on a list approved by anather Governmental Agency. The Offeror shall submit dacumentatian with their Offer demonstrating that the article is an an appraved Governmental list. D. The Supplier shall deliver anly domestic end products except ta the extent that it specified delivery af foreign end praducts in the provision of the Salicitation entitled 'Buy American Act Certificate". 57. RIGHT TO INFORMATiON: The City af Dentan reserves the right to use any and all information presented in any response to this solicitation, whether amended or nat, except as prohibited by Iaw. Selectian of rejection of the submittal does nat affect this right. 58. LICENSE FEES OR TAXES: Provided the salicitation requires an awarded supplier or supplier to be licensed by the State af Texas, any and all fees and taxes are the responsibility af the supplier. 59. PREVAILING WAGE RATES: All suppliers will be reguired ta comply with Provision 5159a of "Vernan's Annotated Civil Statutes" af the State of Texas with respect to the payment af prevailing wage rates and prohibiting discriminatian in the employment practices. http://www.access. gpa. eov/davisbacan/tx.html 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Supplier must comply with ail applicable laws at all times, inciuding, without limitatian, the following: (i} �36.02 of the Texas Penal Code, which prohibits bribery; (ii} §36.Q9 of the Texas Penal Cade, which prohibits the offering or conferring of benefits to public servants. The Supplier shall give all notices and comply with all laws and regulatians applicable to furnishing and perfonnance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIRE ENTS: Supplier shall demonstrate on-site compliance with the Federal Tax Refarm Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, deafing with issuance of Form W-2's to comman law emplayees. Supplier is responsible for both federal and State unemployment insurance coverage and standard Worker's Compensatian insurance caverage. Supplier shall ensure compliance with all federal and State tax laws and withholding requirements. The City af Denton shall not be liable to Supplier or its employees for any Uneinployment or Workers' Campensatian coverage, or federal or State withholding reguirements. Supplier shall indemnify the City af Denton and shall pay all costs, penalties, ar losses resulting from Supplier's omissian or breach of this Section. 62. D UG FREE WOR LACE: 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 wark enviramnent; 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 28Q, Subpart F} ta implement the provisions of the Drug-Free Work Place Act of 1988 is incorporated by reference and the supplier shall comply with the relevant provisians thereof, including any amendments ta the final rule that may hereafter be issued. RFP 5552 * � e � . i � " 1 � ! � ; r r • � . � ♦� - �- '' �'' � . �. .�- �, ,w s -• - -� * � •,-# • •�- r -� * -� s r� � r'� .�- � � � •� w , , �- • .+- � r. � � �- '• - � , � - � . . *� - . w . � � • �_ - . ,. � w. - r, +'. .. � � . R - • !- a . � - . � - •� - , r,, �- - � �,- t �- '� . - w- - � . � � •- � _ - -� � •- ♦ , - � . � . � �- ♦ -*, . • � wc � t r w.� - - � M .� - i♦ � +- - � r )- � � � �- � •� r- - -w � •- � - � •� - - � -� � , •� • � + , � - , • r� - a • • - a .�,- � � �' r- � - � ,� - . � - •�, ! ' • •- � -� � • !- � ".� - - r -� � � r- -� � . - w. �. • - -� • � � - - - �- . . -, � • - � �- , � �- w � - • # � � ! ' - � ' � -� �- � r � ' w- � ! _ . w • � � � �- � � - � - � • - - • . � -• �- � •�- - � �. � - �- - � � � -� . � � � � - � - � r- � - � � + � -w + � *• � ' ;! �; ' ' � ,+ w • � w r - +'- � � - � � �- � � w � � � � R- � - � ��- � w s �' 1 '' � r� - . . � w •r� + �,,• - � � • , a' - - • � •; ♦w� ' . +' � - - � . - . -w w + . , �� - , a w w, �- �w � � � r � , � � w '' � < � � ! - -� � . • ; � . - . - - � -�' - - r- w � - . �� - + . - w . r � - w w �� - �- - r - � , � - +, _ - � w • • - � , -w- +� - • � , - - � � � � '-�- r �- • �- � ' �� EXHIBIT C CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ For vendor or other person doing business with local governmental entity This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. OFFICE USE ONLY This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a Date person who has a business relationship as defined by Section 176.001(1-a) with a local governmental Received entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. � Name of person who has a business relationship with local governmental entity. -o C 1 l ►� ' .� C � 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 7th business day after the date the originally filed questionnaire becomes incomplete or inaccurate. ) 3' Name of local government officer with whom filer has an employment or business relationship. 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........� Yes � t�� 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 a 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 �� Nca D. Describe each affiliation or business relationship. ;/� NI � � �. m _._. � � . .w ._� w,...__ � 5��nature c�� person dr�yr�� business with the governmental Date �.�. �n�rlp RFP 5552