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2015-001•.� . • 1 11 AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR MOWERS AND TRACTORS FOR THE CITY OF DENTON; AND PROVIDING AN EFFECTIVE DATE (RFP 5699-AWARDED TO AG-POWER INC. 1N THE THREE (3) YEAR NOT-TO-EXCEED AMOLTNT OF $1,211,622). WHEREAS, the City has salicited, received and evaluated competitive sealed proposals for the annual supply of mowers and tractars to various City departments 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 � WHER.EAS, 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, THER.EFORE, 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 praposals. RFP NUMBER CONTRACTOR AMOUNT 5699 Ag-Power Inc. $1,211,622 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. SECTTON 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 5699 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 proposals. SEC"l'➢ON 6. This ordinance shall become effective immediately upon its passage and approval. �� PASSED AND APPROVED this the S°Zf'(, day of ��;�� ,�w� 2015. r � � +'�� °� � � �.�� .� � � , � 6 I ��.. � �r t Ipli. �. � �°� � � � .�.,��. � ....n.n.. .......�._,,,.. .��,m ( "I �°�� x�� WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY I: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY � �.,e � � ..�� BY• � � ,�� . �y . ,� ,� CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND AG-POWER, INC. (RFP 5699) THIS CONTRACT is made and entered into this � day of �� "�� '�'��;,� �� ' 3501 N„ � ��3�r•��1 A.D., 2015, by and between AG-Power, Inc., a corporation, whose �acicNr°�:.°,.� �s IT�___ . Expressway, McKinney, TX 75071, hereinafter referred to as "Supplier," and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. For and in consideration of the covenants and agreements contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Supplier shall provide products in accordance with the City's RFP # 5699 The Annual Contract for Mowers and Tractors, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written agreement and the following items which are attached hereto, or on file, and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A") (b) City of Denton's RFP 5699 (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 Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to the written agreement then to the contract documents in the order in which they are listed above. These documents shall be referred to collectively as "Contract Documents." RFP 5699 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: � � �� `�,� RFP 5699 SUPPLIER ' BY: � �� a� �, AUTHORIZED SIGNATURE Date: �� . � � �...� � �� "�� Name; � ��" � � „ Title; '�� - � �� ...��__� PHONE NUMBER �,,,,�� ;�� .� FAX NUMBER CITY OF DENTON, "C�±�� w.,� � �„,�� `' �, .�� ",�� "„�� .�� . � ,.� � ...�� BY. wn.. � �� ,�.a.. , �,��:��I�� :; C. CAMPBELL, C1 I'�'' MANAGER .�.� Date: � �� 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 bid price. Individual purchase orders will be issued on an as needed basis. Product Changes Durin� Contract Term The supplier shall not change specifcations 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(a�cityofdenton.com, with the above file number in the subject line, for review. Products found to have changed specifications without notiiication, 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 Prices for the commodities or services must be firm for a period of one year from date of contract award. Any request for price adjustment must be based on published price changes from the John Deere Manufacturing Company. The escalation will be determined annually at the renewal date. The supplier should provide documentation as percentage of each cost associated with the unit prices for consideration. Request must be submitted in writing with supporting evidence for need of such increase to the Purchasing Manager at least 60 days prior to contract expiration of each year. Supplier must also provide supporting documentation as justification for the request. Upon receipt of such request, the City reserves the right to either: accept the escalation as competitive with the general market price at the time, and become effective upon the renewal date of the contract award or reject the increases within 30 calendar davs after receipt of a properly submitted request. If a properly submitted increase is rejected, the Supplier may request cancellation of such items from the Contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar davs after a determination has been issued. RFP 5699 Pre-price increase prices must be honored on orders dated up to the offcial date of the City of Denton approval and/or cancellation. The request can be sent by e-mail to: purchasin�(cr�,cityofdenton.com noting the solicitation number. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. Total Contract Amount The contract total shall not exceed $1,211,622. Pricing shall be per Exhibit D attached, Deliverv 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 5699 i .�� i• � - - !, � ': � � � � These standard Terms and Canditions 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, Invaice or Statement shall serve to modify the terms set forth herein. If there is a conflict between the pravisions on the face of the Contract/Purchase Order these written pravisions 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 exceptians are duly noted and fully negatiated. Unless otherwise specified in the cantract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only ta a Solicitatian to purchase Goods, and Sections 9, 10, 11 and 22 shall apply anly to a Solicitation to purchase Services to be performed principally at the City's premises ar on public rights-of-way. ]. SUPPLIER'S OBLIGAT[ONS. The Supplier shall fully and timely provide all deliverables described in the Solicitation and in the Supplier's Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE/TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all ohligations 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 pravided 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 (owest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Supplier is not authorized to ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: 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 shal( furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. RFP 5699 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non-complying tender shall constitute a breach and the Supplier shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Supplier may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Supplier access to ttre sites where the Supplier is to perform the services as required in order for the Supplier to perform the services in a timely and eff'icient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Supplier acknowledges that it has satisfied itself as ta the nature of the City's service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Supplier's obligations under the cantract. 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. ] 0. WORKFORCE A. The Supplier shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Supplier, its employees, subcontractors, and subcontractor's employees may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract or on the City's property . i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the contract; or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. C. If the City or the City's representative notifies the Supplier that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Supplier shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City's prior written consent. Immigratian: The Supplier represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Supplier, it's Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Supplier shall indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fnes, penalties and liability of every kind arising from the breach of the Supplier's obligations under this paragraph. Environmental Protection: The supplier shall be in compliance with all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seq.) and the Federal Water Pollution Cantrol Act, as amended, (33 U.S.C. §1251 et seq.). 12. INVOICES: A. The Supplier shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department's Name, and the name of the point of contact far the Department. Invoices shall be itemized and transportation RFP 5699 charges, if any, shall be listed separately. A copy of the bill of lading and the freigtrt 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 identifed. 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. l3. 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 %r a reason far which the City may withhald 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 auttrorized by the City, the Supplier will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Supplier to such extent as may be necessary on account of: i. delivery of defective or non-conforming deliverables by the Supplier; ii. third party claims, which are not covered by the insurance which the Supplier is required to provide, are filed or reasonable evidence indicating probable filing of such claims; iii. failure of the Supplier to pay Subcontractors, or for labor, materials or equipment; iv. damage to the property of the City or the City's agents, employees or suppliers, which is not covered by insurance required to be provided by the Supplier; v. reasonable evidence that the Supplier's obligations will not be completed within the time speciiied 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 wittr purchase order number, with all required attachments and supporting documentation; or vii. failure of the Supplier to comply with any material provision of the Contract Documents. E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City may offset indebtedness owed the City through payment withholding. F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer of funds. The Supplier agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuation of this contract is dependent upon the availability of funding. The City's payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverahles delivered but unpaid shall be returned to the Supplier. The City shall provide the Supplier written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City. 14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Supplier, unless otherwise stated in the contract terms. i, 1 ;� �', �r . : �� 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 comp(etion of aIl work under the contract. Final payment, retainage, or both may be withheld ifthe Supplier is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: i. a waiver of all claims by the City against the Supplier, except claims (1) which have been previausly asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Supplier ta camply with the Contract or the terms of any warranty specified herein, (4) arising from the Supplier's continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City's right to audit; and ii. a waiver of all claims by the Supplier against the City other than those previously asserted in writing and not yet settled. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special taaling or special test equipment fahricated 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 strall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Supplier shall also require all Subcontractars, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City simi(ar 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% or greater occurs, the reasonable cost of the audit, including any trave( 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» 66CPiCOYUS99y "documents" and "other evidence", as used above, 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. SUBCONTRACTORS: A. If the Supplier identified Subcontractors in a DBE/MBE/WBE agreed to Plan, the Supplier shall comply with alI requirements approved by the City. The Supplier shall not initially employ any Suhcontractor except as pravided in the Supplier's Plan. The Supp(ier shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance hy the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Supplier is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Supplier by a Subcontractor shall be pursuant to a written contract between the Supplier and Subcontractar. 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 suhcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. require Subcantractors ta 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 speciiied for the Supplier, wittr 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 required to indemnify the City. RFP 5699 C. The Supplier shall be fu(ly responsihle to the City for all acts and omissions of the Subcontractors just as the Supplier is responsible far the Supplier's own acts and omissians. Nothing in the Contract shall create for the benefit af any such Subcontractor any contractual relationship between the City and any such Subcontractor, nar shall it create any obligation on the part of the City to pay ar 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 5ubcontractor its appropriate share of payments made ta the Supplier not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY-PRICE: A. The Supplier warrants the prices quoted in the Offer are no higher than the Supplier's current prices an 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 consultatian, communication, or agreement for the purpase of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. C. In addition ta any other remedy availahle, the City may deduct from any amounts awed to the Supplier, or otherwise recover, any amounts paid for items in excess of the Supplier's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTY — TITLE: The Supplier warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumhrances. 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 ar manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, ta any samples furnished by the Supplier, to the terms, covenants and conditians of the Contract, and to all applicable State, Federal or loca( laws, rules, and regulations, and industry codes and standards. Unless atherwise stated in the Salicitatian, 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 do so shall be withaut 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 af any replacement deliverables. If during the warranty periad, one ar more of the above warranties are breached, the Supplier shall promptly upon receipt of demand either repair the non-conforming de(iverab(es, or replace the non-conforming deliverables with fully conforming deliverables, at the City's aption and at no additional cost ta the City. All costs incidental ta such repair or replacement, including but not limited to, any packaging and shipping costs shall be horne exclusively hy the Supplier. The City shall endeavor to give the Supplier written notice of the hreach of warranty within thirty (30) calendar days of discovery of the breach of warranty, hut failure to give timely notice shall not impair the City's rights under this sectian. D. If the Supplier is unable or unwilling to repair or replace defective or non-canforrrring 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 ta the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from anottrer source. E. If the Supplier is not the manufacturer, and the deliverables are cavered 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 cannat he fully transferred to the City, the Supplier shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the beneiit of the City. 22. WARRANTY — SERVICES: The Supplier warrants and represents that all services to be provided the City under the Cantract will be fully and timely perfarmed in a gaod 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 ar regulations. A. The Supplier may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without farce or effect. . . ��; B. Unless otherwise specified in the Contract, ttre 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 perfarm the services again in accordance with above standard at no additional cost ta the City. All costs incidental to such additianal performance sha(l 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 natice 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 Cantract from the Supplier, and purchase canforming services fram ather sources. In such event, the Supplier shall pay to the City upan 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 carrection or removal and replacement of defective or nan-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 priar ta final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non-conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Supplier. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent ta perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Cantract. 25. STOP WORK NOTICE: The City may issue an immediate Stap Wark 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 natification, the Supplier will cease all wark until natified by the City that the violation or unsafe condition has been corrected. The Supplier shall be liable far all costs incurred by the City as a result of the issuance of such Stop Work Natice. 26. DEFAULT: The Supplier shall he in default under the Contract if the Supplier (a} fails to fully, timely and faithfully perfarm any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) hecomes insolvent or seeks relief under the bankruptcy laws af the United States ar (d) makes a material misrepresentation in Supplier's Offer, or in any report or deliverable required to he 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 reasanable satisfaction that such default daes not, in fact, exist. In additian 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 af 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 remave the Supplier fram the City's vendor list for three (3) years and any Offer submitted by the Supplier may be disquali6ed for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' priar written notice. Upon receipt of a natice of terminatian, the Supplier shall promptly cease all further work pursuant to the Cantract, with such exceptions, if any, specifed in the notice of termination. The City shall pay the Supplier, to the extent of funds Apprapriated ar otherwise legally available for such purposes, for all goods delivered and services perfarmed and obligations incurred prior to the date of termination in accardance with the terms hereof. 29. FRAUD: Fraudulent statements by the Supplier on any Offer or in any report or deliverable required ta be submitted by the Supplier to the City shall be graunds for the termination of the Contract for cause by the City and RFP 5699 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 negatiate an eGuitable adjustment for costs incurred by the Supplier in the Contract price and execute an amendroent 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 af delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution process specifred in paragraph 49. However, nothing in this provision shall excuse ttre Supplier fram delaying the delivery as notified. B. Neither party shall be liable for any default or delay in the performance of its obligations under this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commatian, 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 campletion of the services will be extended; provided, however, in suckr 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. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any persan (including, but not limited ta 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 ernplayees of the City, the Supplier, the Supplier's subcantractors, and third parties), ii. "Fault" shall include the sale of defective or non-confarming deliverables, negligence, willful misconduct or a breach of any legally impased strict liability standard. B. THE SUPPLIER SHALL DEFEND (AT THE OPTION OF THE CITY)' INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND EL�CTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT oF THE SUPPLIER, oR'rHE SUPPLIER'S AGCNTS� CMPLOYEES OR SUBCdNTRACTOR5, IN THC PERFORMANCE OF THE SUPPLIER'S OBL[GATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BC DCEMED TO LIMIT THE RICHTS OF THE CITY OR THE SUPPLIER (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SCEK CONTRIBUTION� AGAINST ANY THIRD PARTY WHO MAY BC LIABLE FOR AN INDEMNIFIED CLAIM. 32. INSURANCE: The fo((owing insurance requireroents are applicable, in addition to the specific 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 husiness in the State of Texas and satisfactory to the City of Denton. A. General Requirements. i. The Supplier shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Supplier shall provide Certificates of Insurance with the coverage's and endorsements required ta 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 verificatian af 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 suhmit certificates of insurance to the City for all subcontractors prior to the RFP 5699 subcontractors cammencing work on the project. v. The Supplier's and all subcontractors' insurance coverage shall be written by companies licensed ta do business in the State af 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' Compensatian Insurance Fund. vi. All endorsements naming the City as additiona( insured, waivers, and natices of cancellatian endorsements as we(l as the Certificate of Insurance shall cantain the solicitation number and the following information: City of Denton Materials Management Department 901 B Texas Street Dentan, Texas 76209 vii. The "other" insurance clause shall not apply to the City where the City is an additianal insured shawn on any policy. It is intended that palicies required in the Contract, cavering both the City and the Supplier, shall be cansidered primary coverage as applicahle. viii. If insurance policies are not written for amounts agreed to with the City, the Supplier strall carry Umbrella or Excess Liahility Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it shall follow the form af the primary caverage. ix. The City shall be entitled, upan request, at an agreed upon location, and without expense, to review certified capies af policies and endorsements thereto and may make any reasonable requests for deletian or revision or modification af particular policy terms, conditions, limitations, ar exclusions except where policy provisions are established by law or regulations binding upon either of the parties hereta or the underwriter an any such policies. x. The City reserves the right to review the insurance requirements set farth during the effective period of the Contract and to make reasonahle adjustments to insurance coverage, limits, and exclusions wtren deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims histary of the industry or financial canditian af the insurance company as well as the Supp(ier. xi. The Supplier shal( not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract ar as required in the Contract. xii. The Supplier shall be responsible for premiums, deductibles and self-insured retentions, if any, stated in palicies. All deductibles or self-insured retentions shall be disclosed an the Certificate of Insurance. xiii. The Supplier shall endeavar to provide the City thirty (30) calendar days' written notice af erosion of the aggregate limits helow occurrence limits far all applicable coverage's indicated within the Contract. xiv. The insurance coverage's specified in within the solicitatian and requirements are required minimums and are not intended to limit the responsibility or liability af the Supplier. B. Specific Caverage Requirements: Specific insurance requirements are cantained 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 Cantract, ar 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 natice by the Supplier. Such notice to the City shall state the date of notification of any such claim, demand, suit, or ather action; the names and addresses af the claimant(s}; the basis thereof; and the name of each person against whom such claim is being asserted. Such notice shall be delivered persanally or by mail and shall be sent to the City and to the Denton City Attorney. Personal delivery ta the City Attarney shall be ta City Ha(l, 215 East McKinney Street, Denton, Texas 76201. 34. NOTICES: Unless otherwise specified, all natices, 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 pastmarked if sent by U.S. Pastal Service Certified or Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Supplier shall be sent to the address specified in the Supplier's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Dentan, Texas 76209 and marked ta the attention of the Purchasing Manager. : ' �'' 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Supplier to the City shall become property af 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 puhlic nature of the material is suhject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Supplier represents and warrants to the City that: (i} the Supplier shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Supplier in accardance with the specifications in the Contract will not infringe, directly or contrihutarily, any patent, trademark, copyright, trade secret, or any other intellectual property right af any kind of any third party; that na claims have been made by any person ar entity with respect to the awnership or operation of the deliverables and the Supplier does not know af 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 casts (including court costs and reasonable fees of attorneys and other professionals} arising out of ar resulting from: (i) any claim that the City's exercise anywhere in the world of the rights associated with the City's' ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii} the Supplier's breach of any af Supplier's representations or warranties stated in this Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to act as co-counsel on the City's behalf. Further, Supplier agrees that the City's specifications regarding the deliverables shall in no way diminish Supplier's warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will nat impact such warranties af Suppl ier. 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' canfidential information (including inventions, employee infarmation, trade secrets, canfidential know-haw, confidential business information, and other information which the City or its licensors consider confidential} (collectively, "Confidential Information"). Supplier acknowledges and agrees that the Confidential Information is the valuable property of the City and/or its licensors and any unauthorized use, disclosure, dissemination, or other release af the Confidential Information will substantially injure the City and/or its licensors. The Supplier (including its employees, suhcantractors, agents, or representatives} agrees that it will maintain the Coniidentiai lnformation in strict confidence and shall not disclase, disseminate, capy, divulge, recreate, or otherwise use the Confidential Information withaut the prior written consent of the City or in a manner not expressly permitted under this Agreement, unless the Canfidential Information is required to be disclosed by (aw or an order af any court or other governmental authority with proper jurisdiction, pravided the Supplier pramptly notifies the City before disclasing such infarmatian so as to permit the City reasonable time to seek an appropriate pratective order. The Supplier agrees to use protective measures no less stringent than the Supplier uses within its own business to protect its own most valuable information, which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information. 38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout the wor(d in and ta the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Supplier agrees to disclase such patentable subject matter to the City. Further, if requested by the City, the Supplier agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its emplayees to execute, acknowledge, and deliver an assignment of letters patent, in a form to he reasonably approved by the City, to the City upon request by the City. B. Copyrights. As ta 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 far 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 sale or joint authorship af such deliverables. Should by operation of law, such deliverables not be considered works made-far-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. W ith respect to such work made-far-hire, the Supplier agrees to execute, acknowledge, and deliver and cause each af its employees providing services to the City hereunder to execute, acknowledge, and deliver a work- made-for-hire agreement, in a form to be reasanably approved by the City, to the City upon delivery af such deliverables ta the City ar at such ather time as the City may reyuest. RFP 5699 C. Additional Assignments. The Supplier further agrees ta, 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 similar rights in any and a(1 cauntries and in order to assign and convey to the City, its successors, assigns and naminees, the sole and exclusive right, title, and interest in and to the deliverables. The Supplier's obligatians to execute, acknowledge, and deliver (or cause ta be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., h., and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City should not seek to abtain copyright pratection, mask work registratian or patent protection for any af the deliverables, but should desire to keep the same secret, the Supplier agrees ta treat the same as Confidential Infarmation under the terms of Paragraph 37 above. 39. PUBLICATIONS: All published material and written reparts submitted under the Contract must be originally developed material unless atherwise 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 puhlish, 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 5upplier warrants that na person or selling agency has been employed ar retained to solicit or secure the Contract upon any agreement or understanding for commissian, percentage, brakerage, or contingent fee, excepting bona fide employees of bona fide established cammercial or selling agencies maintained by the Supplier for the purpase of securing business. For breach or vialation 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 awed to the Supplier, or otherwise recover, the full amount of such commissian, 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 affered or given by the 5upplier or any agent or representative of the Supplier to any officer ar emplayee af the City af Denton with a view toward securing the Cantract or securing favorable treatment with respect ta the awarding or amending or the making of any determinations with respect to the performing of such contract. In the event the Contract is canceled by the City pursuant to this provision, the City shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cast incurred by the Supplier in providing such gratuities. 43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: Na officer, employee, independent cansultant, or elected afficial of the City who is invalved in the development, evaluatian, or decision-making process of the performance of any solicitation shall have a iinancial interest, direct or indirect, in the Cantract resulting fram that solicitatian. Any willful violation af this section shall constitute imprapriety in affice, and any offcer or employee guilty thereof shall be suhject to disciplinary action up to and including dismissal. Any violation of this provision, with the knawledge, expressed ar implied, of the Supplier shall render the Contract voidable by the City. The Supplier shall camplete and submit the City's Conflict of Interest Questionnaire (Attachment B}. 44. INDEPENDENT SUPPLIER: The Cantract 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 ar privileges established for employees of the City of Denton, Texas for the purposes of income tax, withhalding, social security taxes, vacation ar 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 sha(1 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 Cantract shall be binding upon and ensure to the henefit of the City and the Supplier and ttreir respective successors and assigns, pravided however, ttrat no right or interest in the Cantract shall be assigned and na abligatian shall be delegated by the Supplier without the prior written consent af 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 nat a party hereto; it RFP 5699 being the intention of the parties that there are no third party beneficiaries ta the Contract. 46. WAIVER: No claim or right arising aut of a breach of the Cantract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Supplier ar the City of any ane or more events of default by the other party shall aperate as, ar be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing ar 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 ather dacument shall have any force or effect to change the terms, cavenants, and canditions of the Contract. 48. INTERPRETATION: The Contract is intended by the parties as a final, camplete 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 ta supplement or explain any term used in the Contract. Althougfr the Contract may have been substantially drafted by one party, it is the intent of the parties that all pravisions be construed in a manner to be fair ta bath parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Cade, 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 aut af ar relates to the Contract, or the breach thereof, the parties agree to negotiate prior ta prosecuting a suit far damages. However, this sectian daes nat prohibit the iiling of a lawsuit to toll the running of a statute of limitations or ta 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 periad as agreed hy the parties. Each party shall include, at a minimum, ane (1) seniar level individual with decisian-making authority regarding the dispute. The purpase of this and any subsequent meeting is to attempt in goad faith to negotiate a resolutian of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negatiating a resolutian of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described belaw. 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. Shauld they choose this option; the City and the Supplier agree ta act in good faith in the selection af the mediator and to give consideratian ta qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a persan who is trained in the subject matter af 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 pracess, the mediator shall be selected by the Denton County Alternative Dispute Resolution Pragram (DCAP}. The parties agree to participate in mediation in good faith far up ta 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 atherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and sha(I be governed by the (aws 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 anather state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Dentan Caunty, Texas and the parties agree to submit to the exclusive personal jurisdiction af 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, i(legality, or unenforceability of any provision af the Contract shall in no way affect the validity or enforceability of any other portian or pravision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Cantract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be vaid. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as passible to the intent af the stricken RFP 5699 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 (observe� MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Ckrristmas Day (observed} New Year's Day (observe If a Legal I-Ialiday falls on Saturday, it will he observed on the preceding Friday. If a Legal Holiday falls on Sunday, it will be observed on the following Manday. Normal hours of operation shall be between 8:00 am and 4:00 pm, Monday through Friday, excluding City of Denton Holidays. Any scheduled deliveries or work performance not within the normal hours of operation must be approved by the City Manager of Denton, Texas or his authorized designee. 53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on the parties, including but not limited to the warranty, indemnity, and coniidentiality 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 suh-awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By accepting a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non-Procurement Programs, the State of Texas, or the City of Denton. 55. EQUAL OPPORTUNITY A. Equal Employment Opportunity: No Offeror, or Offeror's agent, shall engage in any discriminatary emplayment practice. No person shall, on the grounds of race, sex, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, ar 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 inta an end product. ii. "Cost af components" means - (1) For components purchased by the Supplier, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); ar (2) For components manufactured by the Supplier, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, hut excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Damestic end product" means- (1) An unmanufactured end product mined or produced in the United States; or . . �•� (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, callected, 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 autlying 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 Cantract; 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 af the Solicitation entitled "Buy American Act Certificate". 57. RIGHT TO INFO ATION: 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 Iaw. Selection of rejection af the submittal does not affect tkris right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded supplier or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsihility of the supplier. 59. PREVAILINC WAGE RATES: All suppliers will be required to comply with Provision 5159a of "Vernon's Annotated Civil Statutes" of the State of Texas with respect to the payment of prevailing wage rates and prohibiting discrimination in the employment practices. http://www.access.�po.gov/da��isbacoi�/txJit�nl 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 5upplier must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Supplier shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Supplier sha(I 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' Campensation coverage, or federal or State withholding requirements. Supplier shall indemnify the City of Denton and shall pay al( costs, penalties, or losses resulting from Supplier's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The supplier shall comply with the applicable provisions of the Drug-Free Work Place Act of 19$8 (Public Law ] 00-690, Title V, Subtitle D; 4l U.S.C. 701 ET SEQ.) and maintain a drug- free work environment; and the fnal 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 P(ace Act of 1988 is incorporated by reference and the supplier shall comply with the re(evant provisions thereof, including any amendments to the iina( rule that may hereafter be issued. 63. SUPPLIER LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Supplier shall be liable for all damages to government-owned, leased, or occupied property and equipment caused by the Supplier and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any . . ��a perfarmance pursuant to the Contract. The Supplier shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Supplier shall not be respansible for perfarmance under the Contract should it be prevented from performance by an act of war, order of legal autharity, act of God, or ather unavaidable cause nat 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 reasanable effarts ta recommence performance ar abservance whenever and to whatever extent possible without delay. The Supplier shall immediately notify the City of Dentan Procurement Manager by telephone (to be coniirmed in writing within five (5) calendar days af the inception of such occurrence) and describe at a reasonable level of detail the circumstances causing the non-performance or delay in performance. 65. NON-WAIVER OF RIGHTS: Failure of a Party ta require performance by another Party under the Contract will not affect ttre right of such Party to require performance in the future. No delay, failure, ar waiver of either Party's exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach af any term of the Contract will not be canstrued as a waiver af any continuing or succeeding hreach. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that na provisian of the Contract is in any way intended to constitute a waiver by the City of Denton af any immunities from suit or fram liability that the City of Denton may have by operation af law. 67. RECORDS RETENTION: The Supplier shall retain all financial records, supparting documents, statistical records, and any other records or books relating to the perfarmances 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, wtrichever 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 ttrat has authority to review records due to federal funds being spent under the Contract. I:��1.�Z�] Exhibit C City of Denton RFP for Annual Cnntract for Mowers & Tractors ? '' ' I � r � ;� ► ,� ,i i�►,►��_ . ��.. .�.._.._ ��e.._.�m_� �,�� ........�.�� . CONFLICT OF INTEREST t�UESTI4NNAIRE FORM CIQ For vcndor or other erson doin business with local gavernmental entity _ .�.�.._._.�.�..� This questinnnaire reflects changes made to the law by H.B, 1491, 80th L,eg., Ctegular Session. OFFICE US[; ONLY This questionnaire is being filed iit accardance with chapter 176 of the Local Govemment Code by a person r��P� i��;��a wha has a business relationship as defiaed by Section 176.00](1-a) with a lacal govemmental entity and the '' person meets requirements under 5ection 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 lhe ciate the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Covernment Code. A person commits an offense if the person knawingly violates Section J 76.006, Local Government Code. An „ offense under this section is a Class C misdemeanar. � Namc of ptrson who��„� a business rclationship with local governmentel entity, �� ........___....__.._ �,.,.,..�..��.m___ �,_�.�..�._�..��.._� ...... ..�..�.��.._� ... � � Chcck this bax if you are filing an updale to a previoasly filed questionnaire, Ct'lre N�ev aiu:{��far;� th�t you file an updaled completed questionnaire �vith lhe appropriatc 61ing aulhoriry not latcr than the 7�h biuiness day aRer lhe � .. � �rc��r�csvrr�;ma��t�po�uo�a��:�u'�el�.) �4 Name of local overnment officer with whom �� at� (i� rr�i ��z[z9i}r li��c�� uA�eurm��naad�� tl�� g filer Mas an em lo ment or business relations �� .• hip. � �� Name of Ufficer This section, (item 3 including subparts A, B, C& D), must be completed for each officer with whom the fdar has an employment or other business relationship as defined by Section 178,Q01(1-a), Lacal Government Code. Attach additional pages to this Form CIO as necessary. A. Is the local gnvernment officer named in this section receiving or likely to receive taxable income, othe� than investment income, from the filer of the questionnaire? 0 Yes No B, Is the filer of the questionnaire receiving or likely to receive taxable incam�, other than investrnent income, from ar at the direction of the local government offic�r named in this section AND the taxable income is not received from the local governmental entity7 Yes �w� No C. Is the filer of this questionnaire employed by a corporation or okher business entity with respect to which the locai govemment officer serves as an officer or director, or holds 8n ownership of 14 percent or more? � Yes � No D pescribe each afliliation or business relatlonship. 4.�.w� . ,-..... �. ., ��,�—,.�...�.�... __.....�... ..�. ..._.� �r�r... ____� .�_�_..�.� �� _. �� . .._.........mm_�..... �.,� � _. �z,,��"� 2Gf4 Si nature oi�W erson doin business with the avernmenta ��µ � m� �� LL– �`��"".. 9 p 9 9 � Date m �ntNS; RFP 5599 - Main Document Page 18 of 19 � � . . ,.. f�7i1Lw i 3501 N. Central Expressway cKinn y, T 7 71 72- 2- 3 1( ne) 972-542-4321 (fax) ��..}��. �� ,"��r !� � �►; , � � �, i �, �► �, ' � � �� :4. ;t, �- I �' � � u� (i� � � �� ,. �, i�°i° e f��,��,8 i'Y ��e eed�l.l.l �„ m,��, m .. �I��m�"��'��,�"� �� .... � ��'��"��. Exhibit D RFP 5699 - ANNUAL CONTRACT FOR MOWERS & TRACTORS Vendor AG Power, INC BAFO Principal Place of Business McKinney, TX .......� '��. It@m EST ' UOM Product Description Unit Price Est Del. ARQ� , QTY I (�aYs) SECTION A- WIDE AREA MOWERS .�.__ _...... 1 2 EA John Deere Model 1600 $ 47,885.00 30 __�� 2' 2 EA .anopy included in pricing above, 4 post ROPS & Canop INCLUDED SEC .� TION B- MID MOUIYT MOWERS 3 3 EA John Deere Model 997 Diesel 72" Deck $ 13,317.97 30 �� 4 3 EA Canopy $ 350.Q0 5 3 EA Mulch Kit $ 332.03 SECTION C- OPEN CAB TRACTOR i 6 1 EA John Deere 5065E $ 17,940.00 60 d 1 EA 65HP INCLUDED 8 1 EA 9F/3RTransmission INCLUDEU 9 1 EA 2WD INCLUDED � ._..�_� � 10 1 EA Less Mid Valves INCLUDED ___� 11 1 EA 16.9-28 6PR R1 Bias INCLUDED 12 1 EA 7.5-16 6PR F2 Bias INCLUDED SECTION D- ROTARY CUTTE 13 2 EA John Deere MX10 $ 5,950.00 3d __.__._... � 14 2 EA Pull Behind Rotary Cutter INCLUDED _.� .............. 15 2 EA 540 RPM INCLUDED �..��. _� 16 2 EA PTO Driven INCLUDED 17 2 EA Two 21x5.25x9 Puncture ProofTire INCLUDED SECTION E- FLEX WINGS 28 2 EA John Deer CX 15 Flex Win� $ 15,952.Q0 30 29 2 EA "Fat BoV�� Severe Duty A� Tires INCLUDED _. SECTION F- CAB TRACTORS„ 18 2 EA John Deere 6125M Cab Tractor $ 75,180.00 90 19 2 EA Power Quad Plus 16F/16R Transmission with Left Hand Power Reverse INCLUDED 20 ', 2 Esa � Standard Cab Plus INCLUDED � �.. _� ��., �,�, _ � 21 2 EA Third Mechanical SCV INCLUDED � Z2 ' 2 EA � 2 SCV Mechanical fNCLUDED 23 2 EA Tool Box IP�CLUDED — Z4 2 EA Deluxe Radio INCLUDED 25 2 EA Beacon Light INCLUDED 16 2 �EA Multi Power Outlet Strip INCLUDED �� _._.... m ... 27 2 EA Condenser Screen for Cooling Package INCLUDED �-� SECTION G TRACTORS: 30 1 EA I John Deere 6115DTractor $ 54,000.00 90 _..�... 31 1 EA 12F/12RTransmission INCLUDED � _�� 32 1 EA 2WD INCLUDED 33 1 EA Standard Cab INCLUDED 34 1 EA Air Suspension Seat INCLUDED 35 1 EA I Dual Standard SCV with ISO Breakaway Couplers INCLUDED 36 1 EA ' Two Telescopic Draft Links INCLUDED 37 1 EA 18.4-34 8 PR R1 Bias Tire INCLUDED 38 1 EA 10.00-16 8 PR F2 Bias Tire INCLUDED 39 1 EA T001 BOx INCLUDED �. �_____..� 40 1 EA Beacon Light INCLUDED 41 1 EA '' Radio RE321102 INCLUDED � � . .. ,, „ , � - � , �, � , , x , , „ �� ,', , � � ; ��; . ., � , , ,� . � �� 2. s��sda,��y Uf: ,, ,,. Partn�rship 4, 'Tax Payer I #: 5. 17at� �stablislied; �. �:'��ra��t =t Individual -°�..� _..: ___ . + � � '. „ �� L.; 95 Y ' Im��€i�',1 �* 7. L7o�s ��yu� �,��N��z��p�� hav� �t� ��t�blished physic�l pr�s�r�c� ir� ih� Siat� of T'eacas� �� th� City �f Dettton? �o �°��w� a��' I01o, �r� r�vhich? �iP�'iE C9F T�?C�l� �. '- � ., ,�, •� � ��, � � r �. .:. � i .. � � I � � r " b. ri � 6 � ,� 4 � � � � !. � � , r.�� _ � �� i r� � ;� w a r�. � �. ` � j � � „� / . ��' • �i . �/ '�'a � 1 � .� . � i � * iRr �i" " ' � , � .,w � 4 , , � # � . � , i �' �..,�i, ♦........ ;+� i..,. � 10, �v� y�u ev�r d�fa�lte c�� r fail�d tc� c��apl�t� a�o�,tra�i ur� �r ��uc cure��t c��pa�y r��rn� �r a�y c�ther co pany �am�? �.f s�, wrhe�� d why? Giv� n�r�� nd t�l�phran� nu �r �f t��, � 1 t. �-Iave you ever had � contra�t ter inat�d by th� C)r�vner'? If so, vdhere ar�d tuhy? Giv� na e and tel�ptior�e nurnber (s} of° �wn�r (s}, M1l0 l2, I-Ias yaur co par7y irnple enied ar� E ploye� �-iealth and Safety �ragra �otnpliar�t with 29 �FIB. 19I0 "��neral Industry St�rzdards" and/or 29 CF' 1y26 "Cp�r��r�P �onstru�tion �iandards��» ��; �1��.� ��ak�� ,�a �� ero��.��n;y�� ;�� :;C.��i��"��' I�tl��:li__l�%V�%'�'��l�re,;�,rpvr��,��W��r�;1��qr��r�q,a�alr � ��n�I� �a�r�ua��"1i�',....��ri.�_�`�::��. ``�.�.,.z"��fN��N��'r�y.�.�p��„ �let��i--1cY�� I�e��v�Iu��i �26 *� �� , � � : ��. � � � r:��.��*� � 1 ,, � K � "' ♦ �. .. M y i f � . 4�: �, s., � � 1' i i1' �' *' ', � . .. 1�' 4 �� i - 1' f ff ' . . Nr� , . . . . . 11 � . �� ` .; � 4 .:� � � i. . . (�` � i• � f f i M 4, ..,,� . Iw' �:�� f f' `1 i�`1 � �: 1' f,4 " i M` i. � w� ..' �.�,�,�' *........ .., �. . � ...... + . .... / M �#� � �,.. �• f;��. . .f �;. ! f'� '1 �' i -� . . . . .. � . -. � . . � . w � � , � � : �r , r ,:• 1 �,��°�,��s,�� , ��a��wU� �� i��,��'�i� � �� w°��w��u �.y� �� ,��.� r�� K��a�� u��y �� aV�;,�MV�`�°,� � � . .�. � � . .W�r �-��, ,. � -�� i f � � � r ,, � i - ��r � �I- � l •� -� � � t+� � f � r . � � � i. 4 i � i � �. �, � �. � M � ' ' f '+ � r � � � 4 � � � � _ � i � 1 11 .��., *' M ' � � . / ,.... �� . . �.. ,.� 1. f � ,.... � !' f f�, � ... . � � . � �, �� f !� �A . �r f` •,'�, f � � : � ,� .� • � �r , , . * � , ; , . � . � �• r - , � . � � ., * . , „ � . . �. � i:��.�.� � �ity o#�L7�rrtcsn 12FP ivr t4nniaal �ontr�sot %r Cvlovd�rs � i`ractors I �+ � . � �y , �.,. ; . � p�" �'�fl U�,rk'�„� � � ��,,,,� �„�;.: 4.�.,. _ � Si��rr�m�i�au'� f3�'P 5699 4 N��it� Do�tarnent � ��-��w��o i��b �zfo�iza�4 . Go�rpany I�at� Exhibit D �ity ofD�nton }�F`�' for Ann�r�l Cantr�ct Fai° 1t�low�s°s c4c Tr�ctors ' .+ .. ��xce}�tians tak�,n io Yhis s�licitatior� 4including t�e'nts �ead s�nditioats in Exhabit 2, the Caener�l I'r��visi�ns �nd T'�rr�s �n ��nditi�n�) musi be ri�rni��d an the lin�s below. Additional p��s rnay b� add�d �s r��ed�d, If there are no e�c�eptiorts, pl��e si�n �vher� ind►cated at th� battom o#`th� pa�e. Itern # �"J�s�ripiion 7 �rl�irtc� incr��s�s �vill b� subject ta incr�as�s frorrs �ur �uppli�r, John ��r� �omp�ny which �re � its o th�se Incr��s�s and pass al�ng to purchas�r up�n r�c�lpt fr�m John ��re Cor�pany. O�rly _ _ � _..... _, _ .. . _ __ - pubBish�d incr�as�s or d��r�ases will b� p�ss�d �Icang to purchas�r .. __ The �bove exc�ptions (aiid any additioraal pag�s id�ntifi�d} are th� i3IVLY exceptions to the sp�cific;ations, Cien�ral Provisians ar�d Terms �nd Cor�ditions in Exhibit 2, �nd sample contr��t to thAS solicitatinn. I u►tderst�nd that the City rz�ay nat acc;�pt addiiion�I ��e;�^��R��.�� produced af�er #ir�al siibrnissioiti o� this proposal, �� m� � `��-� ��m��w��, i�v�. �2�0��20�4 Si�nat�r� ° Cornpany -_ _, ��t� �, � � ,�, � � �, . R � � M r „ �;, �, � �� ` �Ci��ua�n.au�°�, 'I� 5699 � Main Dmcurn�r�i RFP 5699 _ Carnpany a,,. �� .�