13-01 Midland Landfill Tower RFP July 2025 6.30.25.pdf

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Request for Proposals (RFP) Landfill Tower and PD Monopole Removal

Solicitation Date: 07/16/2025 Time: 02:00 p.m.

Respondents must ensure the City of Midland (City) receives proposals by the required date and time. It shall be the respondent’s sole risk to ensure submission by the designated time.

Interested respondents may obtain the solicitation package by downloading the materials from the City’s purchasing website. For assistance resolving issues obtaining a copy of the solicitation documents from the City website, please contact purchasing@midlandtexas.gov.

Interested respondents must submit all questions about the RFP electronically to purchasing@midlandtexas.gov per the communication instructions the RFP outlines.

Communications with other City staff may disqualify respondents from the evaluation process.

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Contents 1 RFP Introduction and Background

1.1 Introduction

1.2 Scope of Work

1.3 Schedule of Events

1.4. Prequalification of Vendors

1.5. Minimum Qualifications

1.6. Questions and Inquiries

1.7. Amendment and Addenda

1.8. Non-Warranty of RFP Information

2.0 Project Scope

2.1. Description of Requested Services

2.2. Requested Qualifications

2.3. Personnel

3. Proposal Evaluation and Award

3.1. Evaluation Process

3.2. Clarification and Discussion of Proposals

3.3. Evaluation Criteria

3.4. No Obligation, Right of Rejection, and Multiple Award

3.5. Offer Held Firm

3.6. Contract Negotiation

3.7. Failure to Negotiate

3.8. Contract Type

3.9. Contract Approval

4. Submittal Response Format

4.1. General Instructions

4.2. Proposal Organization Guidelines

4.3. Content for Proposal Components

4.4. Incurred Expenses

4.5. Authorized Signatures

4.6. Rights to Submitted Material

4.7. Confidential Information

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1 RFP Introduction and Background

1.1 Introduction

The City is initiating this Request for Proposals (“RFP”) to solicit sealed bid proposals from qualified professional firms (“Vendor”) to provide all labor, equipment, materials, and civil work required to dismantle/remove and relocate the City’s Landfill Tower (“Landfill”) and the City’s old PD monopole (“PD”).

Landfill is a 500 ft. guyed-tower, located at N 31-58-13.0, W 101-55-57.3 with

Antenna Structure Registration 1293484. There is a chain-link fenced compound, 12 ft. x 25 ft. communications shelter, and diesel fuel generator that will also be dismantled, removed, and relocated per the details of this RFP.

PD is a 190 ft. monopole structure, located at N 31.998234, W 102.070083.

There is a wooden fenced compound, 10 ft. x 10 ft. communications shelter, and generator that will be dismantled, removed, and relocated per the details of this RFP.

1.2 Scope of Work

Landfill The selected vendor will dismantle a 500 ft. tower, which is located at the City

Landfill facility at the coordinates described in Section 1.1. Neither the tower structure nor items on the tower (guy-wires, antennas, cabling, etc.) will be saved for future use. Therefore, there is no requirement to utilize a crane or gin pole for the dismantling process. The City requests that the steel tower sections and other recyclable scrap metal materials are relocated to a designated recycling center. Non-recyclable materials will be left on-site at a location designated by the Landfill Manager.

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The equipment shelter and backup generator will be reused. The Vendor will be responsible for the orderly removal of these items and relocation to the City storage facility at 3900 N. Lamesa Road. The Vendor shall provide all necessary equipment and resources for removal of these items, safe transport to the storage location, and offloading to designated storage locations.

The concrete foundations for the tower, equipment shelter, generator, and guy-wire anchors will be removed, cut into manageable sizes, and relocated to the designated concrete recycling facility. Shelter compound fencing will be removed and relocated to the designated scrap metal recycling center. Other miscellaneous debris will be left on site at the designated location.

It is noted that there is plugged oil well south the work area and pipelines running SE and W of the tower structure. The Vendor will be responsible for locating all utilities, pipelines, and wells and ensuring that all work is performed safely and in accordance will all regulations and best practices.

PD

No items at the PD location described in Section 1.1 will be retained by the City.

The Vendor will dismantle and remove the monopole structure, equipment shelter, wooden fencing, and generator. The monopole sections and other scrap metal will be relocated to the designated scrap metal recycling center.

Concreate foundations for the monopole, equipment shelter, and fence footings will be removed, cut into manageable sizes, and relocated to the designated concrete recycling facility. The wooden fence sections, equipment shelter, generator, and miscellaneous debris will be relocated to the designated location within the City Landfill.

Section 2.1 provides additional project scope and facility details.

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1.3 Schedule of Events

The following RFP Schedule of Events represents the best estimate of the schedule the City will follow, which is subject to change at the City’s discretion.

Vendors are encouraged to hold the demonstration dates listed. If a component of the schedule is accelerated or delayed, it shall be anticipated that the remaining components may also be adjusted by a similar number of days via

RFP addenda prior to the submittal deadline.

RFP Schedule of Events

No. Event Projected Date 1 RFP Published 07/16/2025

2 Deadline for Questions from Vendors 07/25/2025 at 05:00 p.m. CT

3 Deadline for Proposal Submissions from Vendors 08/20/2025 at

02:00 p.m. CT

4 Reference Checks and Proposal Evaluation:

08/21/2025 – 08/29/2025

5 Notification of Awards – 09/05/2025

1.4. Prequalification of Vendors

The City has not employed a prequalification process. No vendors are either prequalified or precluded from responding to this RFP. The City has not engaged in any formal discussions with vendors leading up to the issuance of this RFP.

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1.5. Minimum Qualifications

For the City to evaluate and consider proposals for award, the City must deem proposals responsive to this RFP as determined at the discretion of the City

Evaluation Committee. To be deemed responsive, the submitted proposal documents must confirm in all material respects to the requirements stated in the RFP, and proposers must document and validate the capability to fully perform all requirements defined by the RFP. Factors to be considered in connection

1.6. Questions and Inquiries

It is the responsibility of the respondents to inquire about any portion of the RFP that is not fully understood or that is susceptible to more than one interpretation prior to the question period closing. All questions concerning the RFP must be submitted via email only to the City’s RFP point of contact

(purchasing@midlandtexas.gov). Questions and answers will be issued in accordance with the RFP requirements regarding amendments and addenda.

The City considers questions and answers the City publishing publicly through addenda as the only binding responses.

Respondents shall not contact other City staff with any questions or inquiries.

Unauthorized contact with any personnel of the City may be cause for rejection of the proposal submission. The decision to reject a proposal is solely that of the City.

1.7. Amendment and Addenda

The City will document all clarifications, corrections, or revisions to this RFP in an addendum, which the City will publish publicly on the City website. The City considers only questions and answers in an addendum part of the RFP. The

City reserves the right to revise the RFP prior to the deadline for proposal submissions.

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The City will attempt to publicly publish periodic addenda on a timely basis between the RFP publishing date and the close of the question period. Vendors own responsibility for monitoring the City website for the periodic posting of addenda prior to the submittal due date.

1.8. Non-Warranty of RFP Information

The City has exercised due care and diligence while preparing this RFP, and the City believes all information herein to be substantially correct. However, the responsibility for determining the full extent of the exposure to risk and verification of all information herein rests solely on the party submitting a proposal. The City, City representatives, and City agents shall not be responsible for any error or omission in this RFP, nor shall they be responsible for failure on the part of any respondents to verify the information herein.

2.0 Project Scope

2.1. Description of Requested Services

The City is soliciting proposals from respondents capable of meeting the City’s requirements for a qualified tower installer / dismantler. The selected Vendor shall provide the Scope of Work outlined in Section 1.2.

As noted in Section 1.2, the Vendor will be responsible for working with the Landfill

Manger to determine an on-site location for the disposal of non-recyclable materials and debris. All recyclable scrap metal will be relocated to CMC Recycling on HWY 158 as determined by the Landfill Manager or City Project Manager. All concrete will be relocated to Versatile Industries V, LLC at 4816 County Road 45.

Any proceeds generated from the recycled materials shall be directed in full to the

City of Midland.

Prior to removal and relocation of the backup generators, the Vendor shall be responsible for draining the fuel tanks and removing any hazardous materials as

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It is noted that FAA lighting at Landfill must be maintained on the tower until such time that dismantling occurs. Therefore, the Vendor will be responsible for working with the Landfill Manager and power utility provider to develop a plan to disconnect power services and safely remove power infrastructure from the site. As noted in

Section 1.2, the Vendor will be responsible for locating all utilities, pipelines, and wells and ensuring that all work is performed safely and in accordance will all regulations and best practices.

The PD location does not require electrical power prior to dismantling efforts.

Therefore, the Vendor will work with the power utility provider to disconnect power services and safely remove power infrastructure from the site. The Vendor will be responsible for locating all utilities and ensuring that all work is performed safely and in accordance will all regulations and best practices.

The following attachments are included to provide background information and assist with the development of proposals:

Attachment 1 – Site Photographs

Attachment 2 – Landfill Tower NEPA Report

Attachment 3 – Landfill Site Design Package

Attachment 4 – Landfill Site As-Built Drawings

2.2. Requested Qualifications

The City requests that the Vendor have prior experience with tower implementation and deconstruction projects. The City values experience with shelter and generator implementation and transport. The City values experience with the associated civil

Page | 9 engineering associated with towers and shelters (grounding, electrical service, etc.).

2.3. Personnel

All the selected respondents’ personnel under the contract shall possess the necessary skills, experience, and knowledge to perform their assigned duties. In the event assigned personnel are providing non-conforming or unsuitable services, the City shall notify the selected respondent and provide the opportunity to rectify the deficiency. If unable to cure the nonconforming services, the selected respondent must remove from the project and replace the personnel that the City deems unsuitable for the project with a resource possessing the necessary skills, experience, and knowledge, to perform their assigned duties in a satisfactory manner.

3. Proposal Evaluation and Award

3.1. Evaluation Process

The following section outlines the City’s proposal evaluation process. The City reserves the right to deviate from this process at its own discretion, to negotiate any and all elements of the RFP, to amend, modify, or withdraw the RFP, to revise any requirements under the RFP, to require supplemental statements of information from any Respondent, to extend the deadline for submission of

Proposals, to cancel, in whole or part, this RFP if the City deems it is in its best interest to do so, to request additional information or clarification of information provided in any Proposal without changing the terms of the RFP, to award this project in whole or in part to a vendor other than the highest scoring vendor based on the determination of the best overall value and/or fit for the City, and/or to waive any portion of the selection process in order to accelerate the selection and negotiation with the top-ranked respondent. The City may exercise the foregoing rights at any time without notice and without liability to any respondent, or any other party, for expenses incurred in the preparation of responses hereto or otherwise.

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3.2. Clarification and Discussion of Proposals

The City may request clarifications and conduct discussions with any Respondent that submits a Proposal, including requesting additional information. The City reserves the right to select the Proposal or Proposals that it believes is the most responsive as determined by the City Evaluation Committee considering the evaluation criteria set forth below. Failure of a respondent to respond to such a request for additional information or clarification may result in rejection of the proposal. The initial evaluation may be adjusted because of a clarification under this section. The City reserves the right to waive irregularities in the Proposal content or to request supplemental information from respondents.

3.3. Evaluation Criteria

The City hereby reserves the right to evaluate, at its sole discretion, the extent to which each proposal received compares to the stated criteria. Vendor proposals should be evaluated in accordance with the following criteria, subject to variation at the sole discretion of the City:

3.4. No Obligation, Right of Rejection, and Multiple Award

The inquiry made through this RFP implies no obligation on the part of the City.

This RFP does not constitute an offer or a contract with any Respondent or other party. The City reserves the right to reject any or all Proposals, in whole or in part, and to waive any informality in proposals received, deemed to be in the best interest of the City or to accept or reject all or any part of any Proposal.

Proposals deemed to be received from debarred or suspended Vendors will be rejected. The City may reject any Proposal that is not responsive to all the material and substantial terms, conditions, and performance requirements of this RFP. The

City further reserves the right to award all, part, or none of the components included in this RFP. In addition, the City reserves the right to make one or more awards to competing Respondents for subsets of services because of this RFP.

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The City also reserves the right to refrain from making an award if it determines it to be in its best interest. The City reserves the right to abandon the Project and/or to re-advertise and solicit other Proposals. The City reserves the right to create a

Project of lesser or greater expense than described in this RFP or the respondent's reply, based on the component prices or scope submitted. The City reserves the right to cancel this solicitation or to change its scope if it is considered to be in the best interest of the City.

3.5. Offer Held Firm

Unless otherwise specified, all proposals submitted shall be valid for a minimum period of 180 calendar days following the date established for receiving proposals.

At the end of the 180 calendar days the proposal may be withdrawn at the written request of the proposer. If the bid/proposal is not withdrawn at that time, it remains in effect until an award is made or the solicitation is cancelled.

3.6. Contract Negotiation

After final evaluation, the City may negotiate with the Respondent(s) of the highest-ranked Proposal. If any Respondent fails to negotiate in good faith, the City may terminate negotiations and negotiate with the Respondent of the next highest-ranked Proposal or terminate negotiations with any or all Respondents. If contract negotiations are commenced, they may be held at City office locations or via teleconference. If contract negotiations are held, the Respondent will be responsible for all of Respondent’s costs including, without limitation, its travel and per diem expenses and its legal fees and costs.

3.7. Failure to Negotiate

If the selected Respondent:

1. Fails to provide the information required to begin negotiations in a timely manner

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2. Fails to negotiate in good faith

3. Indicates it cannot perform the contract within the designated timeframes or within budgeted funds available for the Project

4. If the Respondent and the City, after a good-faith effort, cannot come to terms The City may terminate negotiations with the Respondent initially selected and commence negotiations with the next highest-ranked

Respondent. At any point in the negotiation process, the City may, at is sole discretion, terminate negotiations with any or all Respondents.

3.8. Contract Type

The contract resulting from this RFP shall be in form and content satisfactory to the City and shall include, without limitation, the terms and conditions provided for in this RFP and any sample agreement provided by the City, and such other terms and conditions as the City deems necessary and appropriate. The resulting contract from this RFP shall be a not-to-exceed based contract, subject to the

Payment Terms identified in the RFP attachments for the various cost types. The standard of performance for the contract resulting from this RFP shall be in accordance with the highest applicable standards in the financial information software industry. The initial contract price will be based on prices submitted by the Selected Respondent, subject to contract negotiations with the City, and shall remain firm for the initial term of the contract. Price adjustments may be negotiated at the request of either party in the extension periods with mutual agreement of the parties.

3.9. Contract Approval

The City’s obligation will commence only following the parties’ execution of the

Contract. The City will not be responsible for any work done or expense incurred by the selected respondent or any subcontractor, even such work that was done or such expense that was incurred in good faith, if it occurs prior to the Contract start date set by the City.

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4. Submittal Response Format

4.1. General Instructions

Respondents must follow the instructions in this section when submitting proposals. The City may disqualify offers that do not comply with all instructions contained herein.

• Deadline: The deadline for Proposal submissions is established in Section

1.3. It will be the sole responsibility of the Respondent to submit its Proposal to the City before the closing deadline.

• Offerors must submit proposal via Bonfire or one (1) original, hard copy to the

Office of the City Secretary. Email Proposals: No emails will be accepted for proposal submission.

• Electronic Media Proposal File Formats and Naming: Respondents shall submit along with the hard copy proposals, one (1) electronic version of the proposal on separate removable devices (e.g., thumb drive).

• Amendment of Proposals: Respondents may amend proposals prior to the deadline set for receipt of Proposals. In the event an addendum is issued, and a respondent has previously submitted a proposal in response to this RFP, the respondent must notify the City via email of the need to submit an amendment and clearly outline the reasons in writing. No amendments will be accepted after the deadline unless they are in response to a request of the City.

• Delivery/Mailing Instructions: Sealed proposals must be clearly labeled on the outside of the packaging with the RFP Title and RFP Number. The mailing address for proposals is contained in the following table.

• Except for trade secrets and confidential information that the Respondent identifies as proprietary, all Proposals will be open for public inspection after the contract award.

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4.2. Proposal Organization Guidelines

The City encourages Respondents to organize the proposal according to the following components:

4.3. Content for Proposal Components

1 – Company Introduction

2 – Project Understanding

3 – Project Approach and Description of Service Fulfillment

4 – Qualifications

5 – References

The City requests that Respondents include the following information for each reference:

6 – Pricing The City requests that Respondent provide pricing detail based on the service description. The City has provided below a sample cost template for

Respondents.

4.4. Incurred Expenses

There is no express or implied obligation for the City to reimburse respondents for any costs or expenses incurred in preparing proposals in response to this RFP, and the City will not reimburse respondents for these costs or expenses, nor will the City pay any subsequent costs associated with the provision of any additional information or presentations, or to procure a contract for these services. The City is not responsible for any costs incurred by a respondent in preparing and/or submitting a Proposal in response to this RFP.

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4.5. Authorized Signatures

The vendor or duly authorized partner of the partnership or duly authorized officer of the corporation must personally execute the proposal. If executed by an agent, a power of attorney or other evidence of authority to act on behalf of the vendor shall accompany the proposal to become a valid offer.

4.6. Rights to Submitted Material

It shall be understood that all proposals, responses, inquiries, or correspondence relating to or in reference to this RFP, and all reports, charts, and proposals or referencing information submitted in response to this RFP, shall become the property of the City, and will not be returned. The City will use discretion with regard to disclosure of proprietary information contained in any response but cannot guarantee information will not be made public. As a government entity, the City is subject to making records available for disclosure.

4.7. Confidential Information

Any written, printed, graphic, electronic, or magnetically recorded information furnished by the City for the respondent’s use is the sole property of the City. This proprietary information includes, but is not limited to, customer requirements, customer lists, marketing information, and information concerning City employees, products, services, prices, operations, security measures, and subsidiary.

IMPORTANT NOTICE

Conflict Of Interest Reporting Requirements

Compliance with LOCAL GOVERNMENT CODE TITLE 5. MATTERS

AFFECTING PUBLIC OFFICERS AND EMPLOYEES SUBTITLE C.

MATTERS AFFECTING PUBLIC OFFICERS AND EMPLOYEES OF MORE

THAN ONE TYPE OF LOCAL GOVERNMENT CHAPTER 176. DISCLOSURE

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OF CERTAIN RELATIONSHIPS WITH LOCAL GOVERNMENT OFFICERS;

PROVIDING PUBLIC ACCESS TO CERTAIN INFORMATION.

Form CIQ: This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., Regular Session. This questionnaire shall be filed in accordance with

Chapter 176, Local Government Code, by a vendor who has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the vendor meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local governmental entity not later than the 7th business day after the date 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. An offense under this section is a misdemeanor.

Bidders are responsible for filing Conflict of Interest form “CIQ” in accordance with the above referenced statute. Failure to do so is a class C Misdemeanor.

Contracts or Purchase Orders awarded to a vendor that has violated this law is subject to termination at such time that the violation is discovered with no recourse to the City of Midland. The bidder will be subsequently removed from the bidders list for a minimum of one year.

When there is no known conflict of interest as defined by the statute, it is not necessary to file/submit the Form CIQ. The form must be submitted if a conflict is subsequently discovered.

By submitting a response to this request, vendor represents that it complies with the requirements of Chapter 176 of the Texas Local Government Code.

For a current list of the local government officers go to:

http://www.midlandtexas.gov/

Upon completion of the form, sign and submit with bid or mail to:

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City of Midland Attn: City Secretary PO Box 1152 Midland, Texas 79702

Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised

11/30/2015

Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised

11/30/2015

NOTICE TO BIDDERS

IF THIS PURCHASE REQUIRES A CONTRACT, THE ATTACHED

CONTRACT AND INSURANCE REQUIREMENTS ARE NON¬NEGOTIABLE.

MODIFICATIONS BY BIDDER/COMPANY OF ANY MATERIAL TERM(S) TO

THE CONTRACT DOCUMENTS WILL BE DEEMED A NON-RESPONSIVE

BID. NON-RESPONSIVE BIDS WILL BE REJECTED. BIDDER/COMPANY

MUST BE WILLING TO SIGN THE CONTRACT AS IS AND WITHOUT

MODIFICATIONS, PROVIDE PROPERLY EXECUTED BONDS (IF

APPLICABLE) AND PROVIDE INSURANCE SPECIFICALLY AS REQUIRED

WITHIN THE CONTRACT DOCUMENTS WITHIN 21 DAYS OF THE DATE OF

THE TRANSMITTAL LETTER.

IF THE SELECTED BIDDER/COMPANY CANNOT MEET THE ABOVE

REQUIREMENTS, THEN THE CITY RESERVES THE RIGHT TO AWARD

THIS PURCHASE TO ANOTHER BIDDER.

IMPORTANT NOTICE – IF THE CONTRACT DOCUMENTS REQUIRE

WORKER’S COMPENSATION INSURANCE, BIDDER/COMPANY MUST

CARRY WORKER’S COMPENSATION INSURANCE TO BE ELIGIBLE FOR

THIS CONTRACT. IF YOU CANNOT PROVIDE WORKER’S

COMPENSATION INSURANCE AS REQUIRED BY STATE OF TEXAS

STATUTE, WE RESPECTFULLY REQUEST THAT YOU “NO BID” THIS

WORK.

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COMPLIANCE: Company agrees that it shall comply with the Texas

Government Code Section 2252.908, et seq., as amended. The company agrees that it shall comply with Texas Local Government Code Section

176.006, et seq., as amended. For further instructions on how to comply with

Texas Government Code Section 2252.908 and Texas Local Government Code

Section 176.006, please go to https://www.ethics.state.tx.us/whatsnew/elf_info_form1295.htm and https://www.ethics.state.tx.us/filinginfo/conflict_forms.htm.

ANY VENDOR WHO FAILS TO COMPLY WITH THE TERMS OF THE AWARD

MAY BE DECLARED AN IRRESPONSIBLE VENDOR. BIDS SUBMITTED BY

SAID VENDOR SHALL NOT BE CONSIDERED AGAIN FOR A MINIMUM

PERIOD OF SIX MONTHS AS DETERMINED BY THE CITY MANAGER.

IMPORTANT: READ CAREFULLY BEFORE MAKING BID GENERAL

CONDITIONS OF BIDDING

1. All bids are to be submitted as specified in the procurement document(s).

2. Each Bidder is requested to provide: Descriptive literature clearly marked to show each item on this bid. Any catalog or manufacturer's reference in this proposal is descriptive, but not restrictive, and is used only to indicate type and quality. If, however, the bidder proposes similar but not identical terms, he must furnish all particulars. If no mention is made of any exceptions, it is assumed that he is bidding on the article specified and not on an approved equal and he will be required to deliver exact article specified.

3. Prices should be itemized. (Indicate unit price and extend to show total price.) In case of discrepancy between the unit price and the extension, the unit price shall govern.

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4. Unit price for each item offered shall include all discounts; e.g., trade, seasonal, etc. with net 30 days payment terms. Discounts shall not be shown as such but shall be incorporated in the base bid price. Any bid showing discounts will be considered an alternate bid. The City of Midland will not be responsible for any goods delivered without a purchase order number.

5. If the Contract is awarded, it will be awarded to either the lowest responsible bidder, or to the bidder who provides goods or services at the best value for the

City of Midland. In determining the best value for the City of Midland, the City of Midland may consider the criteria enumerated in Section 252.043 of the

Texas Local Government Code. The City of Midland reserves the right to award by item or by total bid, or to reject any or all bids or parts of bids. Further, the

City of Midland reserves all rights granted by Section 271.027 of the Texas

Local Government Code. The City of Midland reserves the right to award the bid to the lowest responsible bidder.

6. Time of proposed delivery shall be stated in number of calendar days.

7. NOTE: The City of Midland, Texas is exempt from all Federal, State and City tax. Please do not include these taxes in your bid price or invoice. Taxable items must be so designated, and the City will supply vendor with a Tax Exemption

Certificate, properly executed.

8. All items are to be delivered, unloaded and stacked at the location indicated on the Bid Request and Purchase Order.

9. All items are to be delivered F.O.B. to the City of Midland, Texas with freight prepaid and included in the bid.

10. Detailed specifications rule over General specifications (headings, etc.)

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11. The City of Midland reserves the right to remove a company from the bid list for (1) continued failure to respond to request for bids, (2) failure to deliver merchandise within promised time, or (3) delivery of substandard merchandise.

12. No officer or employee of the City shall have a financial interest, direct or indirect, in any contract with the City, or be financially interested, directly or indirectly, in the sale to the City of any lands, materials, supplies or services except as allowed under chapter 176 of the Local Government Code. Form CIQ shall be submitted and placed on file with the City of Midland.

13. The City shall determine the most advantageous bid for the City and accept the proposal of the responsible party submitting the lowest and/or most advantageous bid or reject any and all bids.

14. The City of Midland, Texas may consider as informal any bid not prepared and submitted in accordance with the provisions hereof, and may waive, in its sole discretion, any informalities.

STANDARD PURCHASE TERMS AND CONDITIONS PURCHASING

DIVISION, CITY OF MIDLAND, TEXAS

“Seller”, as used herein, has the same meaning as “Company”. “Buyer”, as used herein, has the same meaning as “City”.

Seller and Buyer agree as follows:

1. SELLER TO PACKAGE GOODS-Seller will package goods in accordance with good commercial practice. Each shipping container shall be clearly and permanently marked as follows; (a) Seller's name and address, (b)Consignee's name, and address, and purchase order number, (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 slip. Seller shall bear cost of packaging unless otherwise provided. Goods shall be suitably packed to secure lowest

Page | 21 transportation costs and to conform with requirements of common carriers and any applicable specifications. Buyer's count or weight shall be final and conclusive on shipments not accompanied by packing lists.

2. SHIPMENT UNDER RESERVATION PROHIBITED-Seller is not authorized to ship the goods under reservation and no tender of a bill of lading will serve as a tender of goods.

3. TITLE & RISK OF LOSS-The title and risk of loss of the goods shall not pass to Buyer until Buyer actually receives and takes possession of the goods at the point or points of delivery in Midland, Texas.

4. NO REPLACEMENT OF DEFECTIVE TENDER-Every tender or delivery of goods must fully comply with all provisions of this contract as to time of delivery, quality and the like. If a tender is made which does not fully conform, this shall constitute a breach and Seller shall not have the right to substitute a conforming tender, provided, where the time for performance has yet expired, the Seller may reasonably notify Buyer of his intention to cure and may then make a conforming tender within the contract time but not afterward.

5. PLACE OF DELIVERY-The place of delivery shall be that set forth in the block of the purchase order entitled "deliver to".

6. INVOICES-Seller shall submit separate ORIGINAL invoices, on each purchase order. Invoices shall indicate the purchase order number. All invoices must be mailed to City of Midland, Accounts Payable, P.O. Box 1152,Midland, TX 79702-1152. Payment will be made within 30 days from the date the invoice and properly executed receiving documents are received by City of Midland, Accounts Payable at the above address. Invoices sent to any other address will delay payment.

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7. GRATUITIES-The buyer may, by written notice to the seller, cancel this contract without liability to Seller, if it is determined by Buyer that gratuities, in the form of entertainment, gifts, or otherwise, were offered or given by the seller, or any agent or representative of the Seller, to any officer or employee of the

City of Midland with a view toward securing a contract or securing favorable treatment with respect to performing of such a contract. In the event this contract is cancelled by Buyer pursuant to this provision, Buyer shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by Seller in providing such gratuities.

8. WARRANTY-PRICE

The price to be paid by the Buyer shall be that contained in Seller's bid which

Seller warrants to be no higher than Seller's current prices on order by others for products of the kind and specifications covered by this agreement for similar quantities under similar or like conditions and methods of purchase. In the event Seller breaches this warranty, the prices of the items shall be reduced to the Seller's current prices on order by others, or in the alternative, Buyer may cancel this contract without liability to Seller for breach or Seller's actual expense.

The Seller warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for commission, percentage, brokerage, or contingent fee excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Seller for the purpose of securing business. For breach or violation of this warranty the Buyer shall have the right or rights to cancel this contract without liability and to deduct from the contract price, or otherwise recover the full amount of such commission, percentage, brokerage or contingent fee.

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9. WARRANTY-PRODUCT-Seller shall not limit or exclude any implied warranties and any attempt to do so shall render this contract voidable at the option of the Buyer. Seller warrants that the goods furnished will conform to the specification, drawings, and description listed in the bid invitation, and to the sample(s) furnished by Seller, if any. In the event of a conflict between the specifications, drawings and descriptions, the specifications shall govern.

10. SAFETY WARRANTY-Seller warrants that the product sold to Buyer shall conform to the standards promulgated by the U.S. Department of Labor under the Occupational Safety and Health Act of 1970. In the event the product does not conform to OSHA standards, Buyer may return the product for correction or replacement at the Seller's expense. In the event Seller fails to make the appropriate correction within a reasonable time, correction made by buyer will be at Seller's expense.

11. RIGHT OF INSPECTION-Buyer shall have the right to inspect the goods at delivery before accepting them.

12. CANCELLATION-Buyer shall have the right to cancel for default all or any part of the undelivered portion of this order if Seller breached any of the terms hereof including warranties of Seller if the Seller becomes insolvent or commits acts of bankruptcy. Such right of cancellation is in addition to and not in lieu of any other remedies which Buyer may have in law or equity.

13. TERMINATION-The performance of work under this order may be terminated in whole, or in part by the Buyer in accordance with this provision.

Termination of work hereunder shall be effected by the delivery to Seller of a

"Notice of Termination" specifying the extent to which performance of work under the order is terminated and the date upon which such termination becomes effective. Such right of termination is in addition to and not in lieu of the rights of Buyer set forth in Clause 13, herein.

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14. FORCE MAJEURE-Neither party shall be held responsible for losses, resulting if the fulfillment of any terms or provisions of this contract is delayed or prevented by any cause not within the control of the party whose performance is interfered with, and which by the exercise of reasonable diligence said party is unable to prevent.

15. ASSIGNMENT-DELEGATION-No right or interest in this contract shall be assigned or delegation of any obligation made by Seller without the written permission of the Buyer. Any attempted assignment or delegation by the Seller shall be wholly void and totally ineffective for all purposes unless made in conformity with this paragraph.

16. MODIFICATIONS-This contract can be modified or rescinded only by a writing signed by both of the parties or their duly authorized agents.

17. INTERPRETATION-PAROL EVIDENCE-This writing, plus any specifications for bids and performance provided by Buyer in its advertisement for bids, is intended by the parties as a final expression of this agreement. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any term used in this agreement. Acceptance or acquiescence in a course of performance rendered under this agreement shall not be relevant to determine the meaning of this agreement even though the accepting or acquiescing party has knowledge of the performance and opportunity for objection. Whenever a term defined by the Uniform Commercial

Code is used in this agreement, the definition contained in the Code is to control.

18. ADVERTISING-Seller shall not advertise or publish without Buyer's prior consent the fact that Buyer has entered into the contract, except to the extent necessary to comply with proper requests for information from an authorized representative of the federal, state or local government.

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19. RIGHT TO ASSURANCE-Whenever one party to the contract in good faith has reason to question the other party's intent to perform, he may demand that the other party give written assurance of this intent to perform. In the event that a demand is made, and no assurance is given within five (5) days, the demanding party may treat this failure as an anticipatory repudiation of the contract.

20. PROTECTION AGAINST ROYALTIES OR PATENT INFRINGEMENT-The

Seller shall pay all royalties and license fees, and shall provide for the use of any design, device, material or process covered by letters patent or copyright by suitable legal agreement with Patentee or Owner thereof. The Seller shall defend all suits or claims for infringement of any patent or copyrights and shall indemnify and save the Buyer harmless from any loss on account thereof, except that Buyer shall defend all such suits and claims and shall be responsible for all such loss when a particular design, device, material or process is allowed to the Seller, the Seller shall indemnify and save Buyer harmless from any loss on account thereof. If the material or process specified or required by Buyer is an infringement, the Seller shall be responsible for such loss unless he promptly gives written notice to the buyer of such infringement.

21. TIME-It is hereby expressly agreed and understood that time is of the essence for the performance of this contract, and any failure by contract to meet the time specifications of this agreement will cause Seller to be in default of this agreement.

22. TAX-The City of Midland is exempt from all Federal, State and City tax.

Please do not include these taxes in your bid price or invoice. Taxable items must be so designated, and the City will supply vendor with a Tax Exemption

Certificate, properly executed.

23. INSURANCE –

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The following provisions apply unless the agreement is for the supply of goods only:

Seller shall always during the term of this agreement maintain and keep in full force and effect insurance in the following types and minimum amounts with companies authorized to do business in the State of Texas:

Commercial General Liability (including Contractual liability):

-Personal Injury: $1,000,000.00 per person

$1,000,000.00 per occurrence

-Property Damage: $500,000.00 per occurrence

Business Automobile Liability: $250,000.00 combined single limit ¬

Personal Injury and Property Damage

Worker’s Compensation: Statutory limits

Employers’ Liability: $500,000.00 per accident or occurrence

The Commercial General Liability shall be on a per project or policy aggregate, including completed operations, and shall be on an occurrence basis.

The Workers’ Compensation coverage provided by Seller shall inure to the benefit of employees injured during the course and scope of their employment by Seller pursuant to this agreement.

The Business Automobile Liability insurance provided by Seller shall cover any auto for bodily injury and property damage, including owned vehicles, hired and non-owner vehicles, and employee non-ownership, and the amount of such policy shall be a minimum of $250,000.00 covering any vehicle used for the execution of the work that is the subject of this agreement.

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All insurance required pursuant to this agreement, except for Worker’s

Compensation Insurance, shall name the Buyer as an additional insured on a claim occurred basis. All insurance required pursuant to this agreement, including Worker’s Compensation Insurance, shall provide for a waiver of subrogation as to the Buyer.

The parties agree that, prior to the execution of the agreement, Seller shall provide one or more certificates of insurance showing that the requirements of this article have been met, and specifically containing, without limitations, the following endorsement:

“The City of Midland is included as an additional insured, on a claim occurred basis, on all policies except for Worker’s Compensation. The Seller and Insurer hereby waive all rights of subrogation with respect to claims against the City of

Midland, its agents, employees and officers, on all policies of insurance.

Buyer shall be provided the notice by Seller’s insurance provider not later than thirty (30) days prior to any reduction or termination of such coverage. Buyer shall not be required to provide any insurance whatsoever pursuant to this agreement.

Seller shall contractually require all contractors, subcontractors, and sub-subcontractors that work on any portion of the work that is the subject of this agreement to obtain insurance coverage that meets or exceeds the policy requirements and minimum amounts specified herein. All contractors, subcontractors, and sub-subcontractors shall obtain insurance policies that provide blanket waivers of subrogation in favor of the City of Midland and policies that name the City of Midland as an additional insured on a claim occurred basis (except workers compensation).

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24. ASSIGNMENT-Seller shall not, either directly or indirectly, assign all or any part of this agreement or any interest, right or privilege herein, without the prior written consent of the Buyer. The issue on whether or not to grant consent to an assignment is in the sole discretion of the Buyer.

25. RELEASE-NOTWITHSTANDING ANY OTHER PROVISIONS, SELLER

HEREBY RELEASES, ACQUITS, RELINQUISHES AND FOREVER

DISCHARGES BUYER, BUYER’S EMPLOYEES AND OFFICERS, FROM

ANY AND ALL DEMANDS, CLAIMS, DAMAGES, OR CAUSES OF ACTION

OF ANY KIND WHATSOEVER WHICH SELLER HAS OR MIGHT HAVE IN

THE FUTURE, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT,

QUANTUM MERUIT, CLAIMS UNDER THE DUE PROCESS AND TAKINGS

CLAUSES OF THE TEXAS AND UNITED STATES CONSTITUTIONS, TORT

CLAIMS, OR BUYER’S NEGLIGENCE.

26. GOVERNING LAW AND VENUE-This agreement shall be governed by the laws of the State of Texas. All performance and payment made pursuant to this agreement shall be deemed to have occurred in Midland County, Texas. An exclusive venue for any claims, suits or any other action arising from or connected in any way to this agreement, or the performance of this agreement shall be in Midland County, Texas. The obligations and undertakings of each of the parties to this agreement shall be deemed to have occurred in Midland

County, Texas.

27. INDEPENDENT CONTRACTOR-It is expressly understood and agreed that Seller shall perform all work and services described herein as an independent contractor and not as an officer, agent, servant or employee of the

Buyer; that Seller shall have exclusive control of and the exclusive right to control the details of the services and work performed hereunder, and all persons performing the same; and shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors;

that the doctrine of respondent superior shall not apply as between Buyer and

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Seller, its officers, agents, employees, contractors and subcontractors; and that nothing herein shall be construed as creating a partnership or joint enterprise between Buyer and Seller. No person performing any of the work and services described hereunder by Seller shall be considered an officer, agent, servant or employee of the Buyer. Further, it is specifically understood and agreed that nothing in this agreement is intended or shall be construed as creating a

“Community of Pecuniary Interest” or “An Equal Right of Control” which would give rise to vicarious liability. Seller shall be an independent contractor under this agreement and shall assume all the rights, obligations and liabilities applicable to it as such an independent contractor hereunder. The Buyer does not have the power to direct the order in which the work is done. The Buyer shall not have the right to control the means, methods or details of the Seller’s work. Seller shall assume exclusive responsibility for the work. The seller is entirely free to do the work in its own way.

28. NOTICE OF ALLEGED BREACH; STATUTORY PREREQUISITES-As a condition precedent to filing suit for alleged damages incurred by an alleged breach of an express or implied provision of this agreement, Seller or his legal representative, shall give the City Manager, or any other reasonable official of the Buyer, notice in writing (consisting of one original and seven copies of notice attached to a copy of this agreement) of such damages, duly verified, within one-hundred-twenty (120) days after the same has been sustained. The discovery rule does not apply to the giving of this notice. The notice shall include when, where and how the damages occurred, the apparent extent thereof, the amount of damages sustained, the amount for which the Seller will settle, the physical and mailing addresses of Seller at the time and date the claim was presented and the physical and mailing addresses of Seller for the six months immediately preceding the occurrence of such damages, and the names and addresses of the witnesses upon whom the Seller relies to establish its claim; and a failure to so notify the City Manager within the time and manner provided herein shall exonerate, excuse and except the Buyer from any liability

Page | 30 whatsoever. The Buyer is under no obligation to provide notice to Seller that

Seller’s notice is insufficient. The buyer reserves the right to request reasonable additional information regarding the claim. Said, additional information shall be supplied within thirty (30) days after receipt of notice.

The statutory prerequisites outlined herein constitute jurisdictional requirements pursuant to Section

271.154 of the Texas Local Government Code and Section 311.034 of the

Texas Government Code. Notwithstanding any other provision, Seller’s failure to comply with the requirements herein shall perpetually bar Seller’s claim for damages under Chapter 271 of the Texas Local Government Code, and

Section 311.034 of the Texas Government Code, regardless of if Buyer has actual or constructive notice or knowledge of said claim or alleged damages.

The seller agrees that the requirements of this entire agreement are reasonable.

29. INDEMNITY (NOT APPLICABLE TO PURCHASE AGREEMENTS)-

SELLER WILL INDEMNIFY AND HOLD HARMLESS AND DEFEND BUYER

AND ALL OF BUYER’S OFFICERS, AGENTS AND EMPLOYEES FROM ALL

SUITS, ACTIONS, CLAIMS, DAMAGES, PERSONAL INJURIES, LOSSES,

PROPERTY DAMAGE AND EXPENSES OF ANY CHARACTER

WHATSOEVER, INCLUDING REASONABLE ATTORNEY’S FEES,

BROUGHT FOR OR ON ACCOUNT OF ANY INJURIES OR DAMAGES

RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS OR

PROPERTY, ON ACCOUNT OF ANY NEGLIGENT ACT OF SELLER, its agents or employees, or any subcontractor, arising out of, or resulting from, Seller’s use of, or activities on, the agreement premises, and Seller will be required to pay any judgment with costs which may be obtained against Buyer or any of its officers, agents or employees, including reasonable attorney’s fees.

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SELLER SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND BUYER

AND ALL OF BUYER’S OFFICERS, AGENTS AND EMPLOYEES FROM ALL

SUITS, ACTIONS, CLAIMS, DAMAGES, ACCIDENTAL DEATH, PERSONAL

INJURIES, PROPERTY DAMAGE, LOSSES, AND EXPENSE OF ANY

CHARACTER WHATSOEVER INCLUDING REASONABLE ATTORNEY’S

FEES, BROUGHT FOR OR ON ACCOUNT OF ANY INJURIES OR DAMAGES

RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS OR

PROPERTY, ON ACCOUNT OF ANY NEGLIGENT ACT OF…