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22-787
22-787ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME-RULE MUNICIPALCORPORATION, AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACTWITH BEN E. KEITH COMPANY, FOR THE SUPPLY OF FOOD AND CONCESSIONS ATTHE WATER WORKS PARK AND CIVIC CENTER POOL CONCESSION STANDS FORTHE PARKS AND RECREATION DEPARTMENT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (IFB 7854 –AWARDED TO BEN E. KEITH COMPANY, FOR ONE (1) YEAR, WITH THE OPTIONFOR TWO (2) ADDITIONAL ONE (1) YEAR EXTENSIONS, IN THE TOTAL THREE (3) YEAR NOT-TO-EXCEED AMOUNT OF $255,000.00). WHEREAS, the City has solicited, received, and tabulated competitive bids for the purchase of necessary materials, equipment, supplies, or services in accordance with theprocedures of state law and city ordinances; and WHEREAS, the City Manager, or a designated employee, has reviewed andrecommended that the herein described bids are the lowest responsible bids for the materials, equipment, supplies, or services as shown in the “Bid Proposals” submitted therefore; 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 andaccepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following competitive bids for the materials, equipment, supplies, or services as described in the “Bid Invitations”, “Bid Proposals”, or plans and specifications on file in the Office of the City’s Purchasing Agent filed according to the bid number assigned hereto, are hereby accepted and approved as being the lowest responsible bids: BIDNUMBER VENDOR AMOUNT 7854 Ben E. Keith Company $255,000.00 SECTION 2. That the acceptance and approval of the above competitive bids shall not constitute a contract between the City and the person submitting the bid 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 Bid Invitations, Bid Proposals, and related documents. SECTION 3. Should the City and the winning bidder(s) wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the bids, the City Manager, or their designated representative, is hereby authorized to execute a written contract, which shall be attached hereto, provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities, and specified sums contained in the Bid Proposal and related documents, and to extend that contract as determined to be advantageous to the City of Denton. SECTION 4. The City Council of the City of Denton, hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under this ordinance to the City Manager of the City of Denton, or their 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. The motion to approve this ordinance was made by ]be hi S and seconded by Br tan . This ordinance was passed and approved bythe following vote a - Z : Aye Nay Abstain Absent Mayor Gerard Hudspeth:Vicki Byrd, District 1 : Brian Beck, District 2: Jesse Davis, District 3 : Alison Maguire, District 4: Deb Armintor, At Large Place 5 : Paul Meltzer, At Large Place 6: ,/’ V+ He P'- 1/ P/ +'‘ PASSED AND APPROVED this the day of 2022 GERARD HUDSPETH, MAYOR ATTEST: ROSA RIOS, CITY SECRETARY $\\ Ict I EII// _£f£h4 _r/Jg)4, +C++;, APPROVED AS TO LEGAL FORM: MACK REINWAND, CITY ATTORNEY Digitally signed by Marcella Lunn DN: cn=Marcella Lunn, o, ou=City \aLl\vb nln;atIa.tunn@cWofd,„ton.com, c=US_\, \xf,LvtMJI DocuSign Envelope ID: 4150D9DE-DD994263-8D3A-1 1 D2C682FAC0 certifres that Contractor’s signature provides written verification to the City that Contractor, pursuant toChapter 2252, is not ineligible to enter into this agreement and will not become ineligible to receive payments under this agreement by doing business with Iran, Sudan, or a foreign terrorist organization . Failure to meet or maintain the requirements under this provision will be considered a material breach. The parties agree to transact business electronically. Any statutory requirements that certain termsbe in writing will be satisfied using electronic documents and signing. Electronic signing of this document will be deemed an original for all legal purposes. IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. #DocuSlgned br CONFmCm+ b„MBY: \9B3BBBD14Ca44EOAUTHORIZED SIGNATURE CITY OP W=QF, TEXAS BY:SNbA Hoqj£? SARA HENSLEY ,CITY MANAGER Printed Name :Courtney Dade Title:Contract & Rebate Associate ATTEST: ROSA RIOS, CITY SECRETARY 8177596000 'DocuSigned by: RmaRinPHONE NUMBER fdfrebate©bene keith . com BY: APPROVED AS TO LEGAL FORM: MACK REINWAND, CITY ATTORNEYEMAIL ADDRESS 2022-864172 TEXAS ETHICS COMMISSION1295 CERTIFICATE NUMBER BY:ALMwLL&tAMh THIS AGREEMENT HAS BEENBOTH REVIEWED AND APPROVED as to financial and operational obligations and business terms. Gary Packan SIGNATURE PRINTED NAME Director of Parks and Recreatlon TITLE Parks & Recreatlon DEPARTMENT Contract 7854 DocuSign Envelope ID: 4150D9DE-DD99-4263-8D3A-1 ID2C682FAC0 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. Respondent must also provide supporting documentation as justification for the request. If no request is made, thenit will be assumed that the current contract price will be in effect. Upon receipt of such request, the City of Denton 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 days after receipt of a properly submitted request. If a properly submitted increase is rejected, the Contractor mayrequest cancellation of such items from the Contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. Pre-price increase prices must be honored on orders dated up to the official date of the City of Denton approval and/or cancellation. The request can be sent by e-mail to: purchasing@cityofdenton.com noting the solicitationnumber. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. 6. Total Contract Amount The contract total shall not exceed $255,000. Pricing shall be per Exhibit E attached. 7. Performance Liquidated Damages The Contractor shall incur contractual payment losses, as initiated by the City for performance thatfalls short of specified performance standards as outlined below: • Delivery beyond contracted lead times • Performance below contracted levels (services only) The Contractor shall be assessed a one (1%) percent fee each month when any one of the performance standards outlined above are not met in full. The Contractor shall be assessed a two (2%) percent profit fee each month when any two (2) or more performance standards outlinedabove are not met in full. At the end of each month, the City will review the monthly reports and determine the percentage of penalty to be assessed to the Contractor’s monthly profit margin. Contract 7854 DocuSign Envelope ID: 4150D9DE-DD99-4263-8D3A-1 1 D2C682FAC0 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 Contractor’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 Contractor’s, or the Contractor’s Subcontractor’s, facilities, or the deliverables at the Contractor’s, or the Contractor’s Subcontractor’s, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 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 Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tenderwithin the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor acknowledges that it has satisfied itself as to the nature of the City’s service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Contractor’s obligations under the contract. The Contractor 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. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City’s facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performanceof the services which they will perform under the Contract. B. The Contractor, its employees, subcontractors, and subcontractor's employees may not whileengaged 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. Contract 7854 DocuSign Envelope ID: 4150D9DE-DD99-4263-8D3A-1 1 D2C682FAC0 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 Contractor 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 Contractor to such extent as may be necessary on account of: i. delivery of defective or non-conforming deliverables by the Contractor; ii. third party claims, which are not covered by the insurance which the Contractor is required to provide, are filed or reasonable evidence indicating probable filing of suchclaims9 iii. failure of the Contractor to pay Subcontractors, or for labor, materials or equipment; iv. damage to the property of the City or the City’s agents, employees or contractors, which is not covered by insurance required to be provided by the Contractor; v. reasonable evidence that the Contractor’s obligations will not be completed within the time specified in the Contract, and that the unpaid balance would not be adequate to cover actual or damages for the anticipated delay; vi. failure of the Contractor to submit proper invoices with purchase order number, with all required attachments and supporting documentation; or vii. failure of the Contractor to comply with any material provision of the ContractDocuments. 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 Contractor agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuation of this contract is dependent upon the availability of funding. The City’s payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Contractor. The City shall provide the Contractor 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 Contractor, unless otherwise stated in the contract terms. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by Contract 7854 DocuStgn Envelope ID: 4150D9DE-DD99-4263-8D3A-1 1 D2C682FAC0 writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar dayof each month. B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with theterms 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 Contractor. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. require Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Contractor in sufficient time to enable the Contractor to include same with its invoice or application for payment to the City in accordance with the terms of the Contract;iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Contractor, with the City being a named insured as its interest shall appear; and v. require that the Subcontractor indemnify and hold the City harmless to the same extent as the Contractor is required to indemnify the City.C. The Contractor shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Contractor is responsible for the Contractor's own acts and omissions. Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the Contractor not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY-PRICE: A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. B. The Contractor certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor.C. In addition to any other remedy available, the City may deduct from any amounts owed to the Contractor, or otherwise recover, any amounts paid for items in excess of the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTY – TITLE : The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. Contract 7854 DocuSign Envelope ID: 4150D9DE-DD99-4263-8D3A-1 1 D2C682FAC0 standard as required by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be required to purchase under the Contract from the Contractor, and purchase conforming services from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure suchservices from another source. 23. ACCEPTANCE OF INCOMPLETE OR NON-CONFORMING DELIVERABLES: if, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City’s evaluation of and determination to accept such defective or non-conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non-conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party’s intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation ofthe Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Contractor will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Contractor shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor’s Offer, or in any report or deliverable required to be submitted by the Contractor to the City 27. TERMINATION FOR CAUSE: in the event of a default by the Contractor, 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 Contractor, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City’s reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Contractor’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 Contractor, the City may remove the Contractor from the City’s vendor list for three (3) years and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. Contract 7854 DocuSign Envelope ID: 4150D9DE-DD994263-8D3A-1 1 D2C682FAC0 EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALLINDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO,CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, ORTHE CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THEPERFORMANCE OF THE CONTRACTOR’S OBLIGATIONS UNDER THECONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OFTHE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THERIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BELIABLE FOR AN INDEMNIFIED CLAIM. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in Appendix A for services only. The successful firm shall procureand maintain insurance of the types and in the minimum amounts acceptable to the City of Denton. The insurance shall be written by a company licensed to do business in the State of Texas and satisfactory to the City of Denton. A. General Requirements: i. The Contractor 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 Contractor shall provide Certificates of Insurance with the coverage’s and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification fromconsideration for award. The Contractor must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Contractor 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 Contractor hereunder and shall not be construed to be a limitation of liability on the part of the Contractor. iv. The Contractor must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. v. The Contractor’s and all subcontractors’ insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers’ compensation coverage written by the Texas Workers’ CompensationInsurance Fund vi. All endorsements naming the City as additional insured, waivers, and notices ofcancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department90 IB Texas Street Denton, Texas 76209 vii. The “other” insurance clause shall not apply to the City where the City is an additionalinsured shown on any policy. It is intended that policies required in the Contract, covering both the City and the Contractor, shall be considered primary coverage as applicable. Contract 7854 DocuSign Envelope ID: 4150D9DE-DD99-4263-8D3A-1 ID2C682FAC0 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Anyportions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor representsand warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind of any third party; that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Contractor does not know of any valid basis for any such claims. The Contractor shall, at its sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i) any claim that the City’s exercise anywhere in the world of the rights associated with the City’s’ ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) the Contractor’s breach of any of Contractor’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 optionengage its own separate counsel to act as co-counsel on the City’s behalf. Further, Contractor agrees that the City’s specifications regarding the deliverables shall in no way diminish Contractor’s warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties ofContractor. 37. CONFIDENTIALITY: in order to provide the deliverables to the City, Contractor may require access to certain of the City’s and/or its licensors’ confidential information (including inventions, employee information, trade secrets, confidential know-how, confidential business information, and other information which the City or its licensors consider confidential)(collectively, “Confidential Information”). Contractor acknowledges and agrees that the Confidential Information is the valuable property of the City and/or its licensors and anyunauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and/or its licensors. The Contractor (including its employees,subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other governmental authority with proper jurisdiction, provided the Contractor promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Contractor agrees to use protective measures no less stringent than the Contractor uses within its own business to protect its own most valuable information, which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information. 38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor agrees Contract 7854 DocuSign Envelope ID: 4150D9DE-DD994263-8D3A-1 1 D2C682FAC0 percentage, brokerage or contingent fee. 42. GRATUITIES: The City may, by written notice to the Contractor, cancel the Contract without liability if it is determined by the City that gratuities were offered or given by the Contractor or any agent or representative of the Contractor to any officer or employee of the City of Denton with a view toward securing the Contract or securing favorable treatment with respect to the awarding or amending or the making of any determinations with respect to the performing of such contract. In the event the Contract is canceled by the City pursuant to this provision, the City shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by the Contractor in providing such gratuities. 43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer,employee, independent consultant, or elected official of the City who is involved in the development, evaluation, or decision-making process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract resulting from that solicitation as defined in the City’s Ethic Ordinance 18-757 and in the City Charter chapter 2 article XI(Ethics). Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City’s Conflict ofInterest Questionnaire. 44. INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an employer/employee relationship, a partnership, or a joint venture. The Contractor’s services shall be those of an independent contractor. The Contractor agrees and understands that the Contractdoes not grant any rights or privileges established for employees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker’s compensation, or any other City employee benefit. The City shall not have supervision andcontrol of the Contractor or any employee of the Contractor, and it is expressly understood that Contractor shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. Thecontractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT-DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall bedelegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries tothe Contract. The Vendor shall notify the City’s Purchasing Manager, in writing, of a company name, ownership, or address change for the purpose of maintaining updated City records. The president of the company or authorized official must sign the letter. A letter indicating changes in a company name or ownership must be accompanied with supporting legal documentation such as an updated W-9, documents filed with the state indicating such change, copy of the board of director’s resolution approving the action, or an executed Contract 7854 DocuSign Envelope ID: 4150D9DE-DD994263-8D3A-1 1 D2C682FAC0 participation such as fees for any consultants or attorneys they may utilize to represent them orotherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V. T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submitto the exclusive personal jurisdiction of such courts. The foregoing, however, shall not beconstrued or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any strickenprovision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 52. HOLIDAYS: The following holidays are observed by the City: New Year’s Day (observed) Martin Luther King, Jr. Day Memorial DayJuneteenth Independence Day Labor Day Veterans Day Thanksgiving Friday After Thanksgiving Christmas Eve (observed)Christmas Day (observed If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, it will be observed on the following Monday. Normal hours of operation shall be between 8:00 am and 4:00 pm, Monday through Friday, excluding City of Denton Holidays. Any scheduled deliveries or work performance not within the normal hours of operation must be approved by the City Manager of Denton, Texas or his authorized designee. 53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on the parties, including but not limited to the warranty, indemnity, and confidentiality obligations of the parties, shall survive the expiration or termination of the Contract. 54. NON-SUSPENSION OR DEBARMENT CERTIFICATION: The City of Denton is prohibited from contracting with or making prime or sub-awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, Contract 7854 DocuSign Envelope ID: 4150D9DE-DD99-4263-8D3A-1 1 D2C682FACO Certificate" . 57. RIGHT TO INFORMATION: The City of Denton reserves the right to use any and all information presented in any response to this contract, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. 59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as defined by the United States Department of Labor Davis-Bacon Wage Determination at http://www.dol.gov/whd/contracts/dbra.htm and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD-2509). 60. COMPLIANCE WITH ALL STATE, FEDERAI,, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent 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 Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance ofthe Contract. 61. FEDERAT J, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on- site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of 1978, dealing with issuance of Form W-2’s to common law employees. Respondent is responsible for both federal and State unemployment insurance coverage and standard Workers’ Compensation insurance coverage. Respondent shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisionsof the Drug-Free Work Place Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C, 701 ET SEQ.) and maintain a drug-free work environment; and the final rule, government-wide requirements for drug-free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the Drug-Free Work Place Act of 1988 is incorporated by reference and the contractor shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafterbe issued 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government-owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. Contract 7854 DocuSign Envelope ID: 4150D9DE-DD994263-8D3A-1 1 D2C682FACO Exhibit D In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of theGovernment Code. The law states that the City may not enter into this contract unless the Contractor submits a disclosure of interested parties (Form 1295) to the City at the time the Contractor submits the signed contract. The Texas Ethics Commission has adopted rules requiring the business entity to file Form 1295 electronically with the Commission. Contractor will be required to furnish a Certificate of Interest Parties before the contract isawarded, in accordance with Government Code 2252.908. The contractor shall: 1. 2 3. 4 5 6. Log onto the State Ethics Commission Website at : https://www.ethics.state.tx.us/whatsnew/elf_info_form 1 295.htm Register utilizing the tutorial provided by the StatePrint a copy of the completed Form 1295 Enter the Certificate Number on page 2 of this contract. Complete and sign the Form 1295 Email the form to purchasing@cityofdenton.com with the contract number in the subject line. (EX: Contract 1234 – Form 1295) The City must acknowledge the receipt of the filed Form 1295 not later than the 30th day afterCouncil award. Once a Form 1295 is acknowledged, it will be posted to the Texas Ethics Commission’s website within seven business days. Contract 7854 all gII ;llsllsllqll gII gII gII 811611 gII ;I1 ;I1 ;I1 ;I1 ;I1 ;I1 811811dIBEIB:lmFE8II NII KIll gII BIllgIE:1811811811811811811 gII gII g gII 811811 NI 811911 all gII nII gII gII 811911811811 Rl gIl'gII #llglldFIBIEgl IIlyII ;iII III iII gII 11181111119 [...l-.IRIRl..,13l8l9l91..,INI-.I-,IuIsI.„18l81#IsInInINIgIRlsIsINIRl.„I.„INlblblblSISl..IRIRIRIsIsIsIsInIsIaIsI.IRIs1..1.„1.„1.„ l88 c5 8C = ae g :!:ggggg ila DE SE ggI'I‘ 8l:!!i l®l I b1 ISI IN 1 all IN 1 1 IBId 1 1 _ 1 jala JO qa a JO iiig313 11 ai 83 !!!qg8 9 f 8ia iI,I=1;1-1'1'1'1'1'1=1=1=1=1=1=1=1=1=1=1=1=1;1;1;1=1;IBl8lbl8l9l8l8l8:IRlgIRl8IEI8lgIgIgIgIgIgIgIgIgIgIgIgIsIsI BIll:jgjBl sIg DocuSign Envelope ID: 4150D9DE-DD994263-8D3A-1 1 D2C682FAC0exrll ul 1: F CONFLICT OF INTEREST QUESTIONNAIRE For vendor or other person doing business with local governmental enti This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., Regular Session. FORM CIQ This questionnaire is being filed in accordance with Chapter 176, Local Government Code, by a vendor who has a business relationship as definedby Section 176.001(1-a) with a local governmental entity and the vendor meets requirements under Section 176.006(a) and by City of DentonEthics Code, Ordinance 18-757 By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after thIdate the vendor becomes aware of facts that require the statement to be filed, See Section 176.006(a-1), Local Government Code. A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code.misdemeanor.a MW. An offense under this section is a Ben E Kelth Company 2 1 1 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 dayafter the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate.) 3 Name of local government officer about whom the information in this section is being disclosed. Name of Officer Describe each employment or other business relationship with the local government officer, or a family member of the officer, as described by Section 176.003(a)(2)(A). Also describe any family relations hip with the local government officer. This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the vendor has an employment or other business relationship as cleaned by Section 176.00 1(1-a), Local Government CodeAttach 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 vendor?E Yes [x] No B. Is the vendor receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named inthis section AND the taxable income is not received from the local governmental entity?H „”m „. 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 one percent or more? El Yes B No D Describe each employment or business and family relationship with the local government officer named in this section 4 5 Ld I have no Conflict of Interest to disclose. 3/23/2022 mr with the governmental entity Date DocuSign Envelope ID: 4150D9DE-DD994263-8D3A-1 1 D2C682FAC0 DocuSign Certificate Of Completion Envelope Id: 58FF932B83134D89A565FFBDIEA860BC Subject: Please DocuSign: City Council Contract 7854 Source Envelope Document Pages: 30 Status: Sent Signatures: 4Initials Envelope Originator:Erica GarciaCertificate Pages: 6 AutoNav: Enabled Envelopeld Stamping: Enabled 901 B Texas Street Denton, TX 76209 erica .garcia@cityofdenton.com IP Address: 198.49.140.10 Time Zone: (UTC-06:00) Central Time (US & Canada) Record Tracking Status: Original 3/22/2022 2:41 :32 PM Holder: Erica Garcia erica.garcia@cityofdenton.com Location: DocuSign Signer Events Erica Garcia erica.garcia@cityofdenton.com Buyer City of Denton Security Level: Email, Account Authentication(None) Electronic Record and Signature Disclosure:Not Offered via DocuSign Signature Timestamp Sent: 3/22/2022 2:46:52 PM Viewed: 3/22/2022 2:47:03 PM Signed: 3/22/2022 2:48:05 PM Completed Using IP Address: 198.49.140.10 Lori Hewell lori .hewell@cityofdenton.com Purchasing Manager City of Denton Security Level: Email, Account Authentication(None) Sent: 3/22/2022 2:48:09 PM Viewed : 3/23/2022 8:18:08 AM Signed: 3/23/2022 8:19:01 AM Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.10 Electronic Record and Signature Disclosure:Not Offered via DocuStgn Marcella Lunn marcella.lunn@cityofdenton.com Deputy City Attorney City of Denton Security Level: Email, Account Authentication(None) •DuuSi9rnd br iMAnLLhtMwb '48070831B4AA438., Sent: 3/23/2022 8:19:05 AM Viewed: 3/23/2022 9:50:23 AM Signed: 3/23/2022 10:04:38 AM Signature Adoption: Pre-selected Style Using IP Address: 198.49,140.10 Electronic Record and Signature Disclosure: Not Offered via DocuSign Courtney Dade fdfrebate@benekeith.com Contract & Rebate Associate Security Level: Email, Account Authentication(None) DoeuSlglled br aDaM,„J b„OL –983BB8D14C944EO Sent: 3/23/2022 10:04:41 AM Viewed : 3/23/2022 10:34:04 AM Signed: 3/23/2022 11 :04:18 AM Signature Adoption: Pre-selected Style Using IP Address: 12.87.156.78 Electronic Record and Signature Disclosure:Accepted: 3/23/2022 10:34:04 AMID: bbe63d2d-elel-4c2 1-a9f4-c5c26a8b7646 DocuSign Envelope ID: 4150D9DE-DD99-4263-8D3A-1 ID2C682FAC0 Carbon Copy Events Gretna Jones gretna.jones@cityofdenton.com Legal Secretary City of Denton Security Level: Email, Account Authentication(None) Electronic Record and Signature Disclosure:Not Offered via DocuSign Status Timestamp Sent: 3/23/2022 1 1 :06:20 AM Viewed : 3/28/2022 10:19:45 AM City Secretary Office citysecretary@cityofdenton.com Security Level: Email, Account Authentication(None) Electronic Record and Signature Disclosure:Not Offered via DocuSign Monica Martin monica.martin@cityofdenton.com Security Level: Email, Account Authentication(None) Electronic Record and Signature Disclosure:Accepted: 3/25/2022 1 1:36:58 AMID: 693a38d7-4741-4f04-94f4-b674fc7baa6c Witness Events Signature Timestamp Notary Events Signature Timestamp Envelope Summary Events Envelope Sent Status Hashed/Encrypted Timestamps 3/22/2022 2:46:53 PM Payment Events Status Timestamps Electronic Record and Signature Disclosure DocuSign Envelope ID: 4150D9DE-DD99-4263-8D3A-1 1 D2C682FAC0 How to contact City of Denton: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: purchasing@cityofdenton.com To advise City of Denton of your new e-mail address To let us know of a change in your e-mail address where we should send notices and disclosures electronically to you, you must send an email message to us at melissa.kraft@cityofdenton.com and in the body of such request you must state: your previous e-mail address, your new e-mail address. We do not require any other information from you to change your email address.. In addition, you must notify DocuSign, Inc to arrange for your new email address to be reflected in your DocuSign account by following the process for changing e-mail in DocuSign. To request paper copies from City of Denton To request delivery from us of paper copies of the notices and disclosures previously provided by us to you electronically, you must send us an e-mail to purchasing@cityofdenton.com and in the body of such request you must state your e-mail address, full name, US Postal address, and telephone number. We will bill you for any fees at that time, if any. To withdraw your consent with City of Denton To inform us that you no longer want to receive future notices and disclosures in electronic format you may: i. decline to sign a document from within your DocuSign account, and on the subsequent page, select the check-box indicating you wish to withdraw your consent, or you may; ii. send us an e-mail to purchasing@cityofdenton.com and in the body of such request you must state your e-mail, full name, IS Postal Address, telephone number, and account number. We do not need any other information from you to withdraw consent.. The consequences of your withdrawing consent for online documents will be that transactions may take a longer time to process.. Required hardware and software Operating Systems Browsers (for SENDERS Browsers (for SIGNERS): Windows2000? or WindowsXP? Internet Explorer 6.0? or above mlet Explorer 6.0?, Mozilla FireFox 1.0NetSca'7.2 (or abovenc essx Email Screen Resolution Enabled Security Settings • Allow per session cookies •Users accessing the internet behind a Proxy Server must enable HTTP 1.1 settings viaroxy connectron ## These minimum requirements are subject to change. If these requirements change, we will provide you with an email message at the email address we have on file for you at that time providing you with the revised hardware and software requirements, at which time you will have the right to withdraw your consent.