cottonwood trail repair RFB 23-02.docx

CITY OF HUTTO

REQUEST FOR BIDS

Cottonwood Trail Renovation

RFB #: 23-02

Bid Submittal Deadline: November 9, 2022 Bid Submittal Due Time: 3:00 p.m. (Central Time in Hutto, Texas)

Posting Date: October 16 & 23 , 2022

BID SUBMISSION CHECKLIST

IMPORTANT:

BIDDERS MUST ADDRESS ALL INQUIRIES AND COMMUNICATIONS CONCERNING THIS RFB TO THE INDIVIDUAL LISTED IN PARAGRAPH 4 – AUTHORIZED PURCHASING CONTACT.

Please read all instructions, documentation, and requirements contained within this RFB.

Reference Paragraph 6 – RFB Documents provided by the City

The City will disqualify any bid received without the required documentation identified below.

□ Signed Attachment A – Execution of Bid

□ Signed Attachment B – Certification of Compliance with Wage Rate Statute

□ Attachment C – RFB Price Bid Sheet

The City may disqualify any bid received without the required documentation identified below.

□ Initialed copy of addendum/addenda for this RFB (If any)

□ Sample of Contract with redlined exemptions (Track changes) (If any)

□ Identification of claimed proprietary information, as referenced in Paragraph 51 (If any)

PART I: RFB Milestones, Instructions, and Information

1. Definitions

2. PURPOSE

This RFB, of best value, is being issued by the City of Hutto. The City is a home rule municipal government in Williamson County.

1. The City seeks bids of best value from qualified Individual, Firm, or Corporation, to Tear out, haul off, and replace broken concrete along the Cottonwood Creek Trail between Front Street and Carl Stern Drive.

3. Milestones

Instructions

4. Authorized Purchasing Contact. Questions regarding the RFB must be submitted via email to the City of Hutto Contract Administrator listed below by the date indicated in the milestone block above.

5. City shall attempt to answer inquiries concerning the RFB, but shall not be obligated to do so. The City’s Authorized Agent is the sole City point of contact from RFB issuance until contract award. Do not rely on information from any other source. Contact with other City personnel initiated by a Bidder may be grounds for disqualification of its bid at City’s sole discretion.

6. RFB Documents provided by the City. The following documents are included as part of this RFB. Bidder shall follow instructions contained herein or in the document itself for completing and returning these documents to the City.

Attachment B – Prevailing Wage Rate Requirements and Certification of Compliance with Wage Rate Statute

___22__ page of this document

Attachment C – RFB Price Bid Sheet

___26__ page of this document

7. RFB Submission Requirements. Bidder shall prepare its request for bid on forms furnished by the City or as otherwise specified herein. Incomplete bid forms, schedules and information sheets may be grounds for disqualification. A bid item which, in the opinion of the City, is not in exact compliance with the RFB, and which has not been modified or clarified may, at City’s discretion, be considered an exception to the RFB or be rejected as a non-conforming offer. City will not be responsible for any cost or expenses associated with the preparation or submittal of the Bidder’s bid. The following documents shall be returned to the City by the bid deadline:

Attachment C - RFB Price Bid Sheet: The bid response shall be submitted on the itemized, signed Price Bid Sheet provided in the solicitation packet. If there is a conflict between the unit price and extended price, the unit price will take precedence.

8. Submission of Bids. BIDS MUST BE RECEIVED ON THE DATE INDICATED IN THE MILESTONES BLOCK.

Bids cannot be altered or amended after opening.

Bids received after the due date and time shall be considered late and may be rejected. You are solely responsible for ensuring that complete RFB response is sent to and received by the City on or before the bid deadline. City takes no responsibility for bids that are delivered late by either a postal or delivery service. Bids shall be considered valid legal offers for a period of ninety days (90) after bid deadline.

a. Hard Copy Submission: The City currently accepts hard copy bids. Bidder must submit one original signed paper copy and one electronic copy on a flash drive; however, the RFB Price Bid Sheet must always be submitted in the electronic format requested to Procurement@Huttotx.gov. Subject lines must read: “BID SHEET RFB 23-02”

Sealed bids will be accepted at:

City of Hutto Procurement Department Attn: Procurement 500 W. Live Oak Street Hutto, TX 78634

The City will document all Bids that the City receives with a date/time stamp for receipt documentation purposes.

9. Exceptions to Contract. Bidders shall submit exceptions to the City in the Word Document accompanying the bid, if any, with proposed alternative language (redlines). Exceptions will not be allowed after the RFB closing date and time. The amount and nature of exceptions may be grounds for disqualification.

10. SUCCESSFUL BIDDER MUST TAKE THE FOLLOWING ACTION WITHIN 7 DAYS FROM NOTICE OF INTENT TO AWARD:

11. BEST VALUE EVALUATION AND CRITERIA: The City reserves the right to reject any or all responses, or to accept any response deemed most advantageous, or to waive any irregularities or informalities in the response received that best serves the interest and at the sole discretion of the City. All solicitations received may be evaluated based on the best value for the City. In determining best value, the City may consider:

i. Purchase price;

ii. Reputation of Bidder and of Bidder’s goods and services;

iii. Quality of the Bidder’s goods and services;

iv. The extent to which the goods and services meet the City’s needs;

v. Bidder’s past performance with the City;

vi. The total long-term cost to the City to acquire the Bidder’s goods or services;

vii. Any relevant criteria specifically listed in the solicitation.

12. Submission of Questions. All questions regarding the solicitation shall be submitted by November 9, 2022 at 3:00 p.m., CST to the Authorized Purchasing Contact listed in Paragraph 4 above. A copy of all the questions submitted and the City’s response to the questions shall be posted in the form of an addendum at www.bidnetdirect.com/texas.

Questions shall be submitted to the City contact named herein. The City reserves the right to modify these dates. Notice of date change will be posted to the City’s website.

13. City’s Reservation of Rights. City reserves the right to reject any and all bids, and to waive irregularities or informalities in any bid. City may request additional written or oral information from Bidders to obtain clarifications with respect to their bids. City may award contracts from bids without discussions, or may conduct discussions with one or more Bidders. City reserves the right to delay the bid opening, to evaluate alternate bids and to make multiple and/or split awards from this RFB. City engages in business with only responsible Bidders with sound management, quality control, capacity, experience, financial resources, and ethics to perform its contract. City reserves the right to employ a variety of means to determine the responsibility of potential Bidders, including evaluating its past experience with the Bidder.

14. Conflict of Interest – Chapter 176 of the Texas Local Government Code. Effective January 1, 2006, Chapter 176 of the Texas Local Government Code requires that any vendor or person considering doing business with a local government entity disclose in the Conflict of Interest Questionnaire (Form CIQ), the vendor or person's affiliation or business relationship that might cause a conflict of interest with a local government entity. By law, this questionnaire must be filed with the records administrator (City Secretary) for the City no later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. For more information or to obtain Form CIQ, go to the Texas Ethics Commission Web page.

15. Revisions to RFB. Nothing in the instructions shall limit the City’s right to revise the RFB.

16. Deliveries. Preference will be given when prices quoted are F.O.B. delivered with all transportation charges prepaid. Unless otherwise stated, all items shall be considered as F.O.B. delivered.

Deliveries shall be made to 356 County Road 199, Hutto, TX 78634/various locations near Live Oak Street within the City of Hutto.

17. Pricing. Bidder shall submit a price for each item on the basis indicated on the RFB Price Bid Sheet. All pricing must be submitted in US Dollars. In case of conflict between unit prices and extensions, unit prices shall govern. In case of conflict between words and numerals, words shall govern. Bid prices shall not include sales, excise, and use taxes on installed equipment and materials. City of Hutto is exempt from such taxes under the Texas Tax Code § 151.309. An exemption certificate shall be furnished to Bidder, subcontractors and Bidders upon request. It is the Bidder’s responsibility to determine if Bidder may have sales tax liability for materials and supplies used for the project, but for which Bidder is considered the consumer. To obtain possible tax benefits by the separation of materials and labor, Bidders should be familiar with the Comptroller’s Rules 3.291 (Contractors), 3.292 (Repairmen), and 3.347 (Improvements to Realty) of the Title 34 of the Texas Administrative Code, which may be obtained from the Texas Comptroller of Public Accounts.

18. Estimates of Quantities (Unit Price Contracts Only) – Quantities listed in a unit price RFB are to be considered as approximate and will be used only for comparison of bids. Payments to Bidder will be made only for actual quantities of work performed or materials furnished in accordance with the contract documents and it is understood that quantities may be increased or decreased as specified in the terms and conditions.

19. Award and Execution of Contract. City shall evaluate the bids in accordance with the RFB requirements. Contracts shall be neither considered awarded nor binding until such time that both parties have executed the Contract. There is no guarantee that an award or any Contract will result from this solicitation. City shall not be liable for any delays prior to the award or execution of Contract.

20. City Representative: City hereby designates the following representative authorized to act in its behalf with regard to all inspections, re-inspections, and work authorizations as follows:

Jeff White, Parks Superintendent Phone #: 512-759-5967 Email: Jeffrey.White@HuttoTX.gov

21. NON-APPROPRIATION: The resulting Contract is a commitment of the City’s current revenues only. It is understood and agreed the City shall have the right to terminate the Contract at the end of any City fiscal year if the governing body of the City does not appropriate funds sufficient to purchase the estimated yearly quantities, as determined by the City’s budget for the fiscal year in question. The City may affect such termination by giving Vendor a written notice of termination at the end of its then current fiscal year.

22. CONTRACT TERM: Contract shall commence upon the effective date of the contract and automatically expire upon the delivery date agreed upon and final acceptance by the City. The contract shall be effective as of the date the contract is signed by the City.

PART II – GENERAL CONDITIONS AND REQUIREMENTS:

23. RIGHT OF INSPECTION AND REJECTION. The City expressly reserves all rights under law, including, but not limited to the Uniform Commercial Code. 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.

24. PLACE AND CONDITION OF WORK. 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. The Contractor acknowledges that it has satisfied itself as to the nature of 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.

25. WORKFORCE.

a. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract.

b. The Contractor, its employees, subcontractors, and subcontractor's employees may not use or possess any firearms, alcoholic or other intoxicating beverages, illegal drugs or controlled substances while on the job or on City property, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job.

c. If the City or City representative notifies the Contractor that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Contractor shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City’s prior written consent.

26. COMPLIANCE WITH HEALTH, SAFETY AND ENVIRONMENTAL REGULATIONS. The Contractor, its Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Contractor shall indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Contractor’s obligations under this paragraph.

27. REQUESTS FOR PAYMENT.

a. Proper requests for payment must include a non-duplicated invoice number, the purchase order or purchase release number and the supply Contract number if applicable, City name, and the name of the City Representative. Requests for payment shall be itemized.

b. Unless otherwise expressly authorized in the Contract, the Contractor shall pass through all Subcontract and other authorized expenses at actual cost without markup.

c. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request.

28. PAYMENT.

a. All requests for payment received by the City will be paid within 30 calendar days of the City receipt of the Deliverables or of the request for payment, whichever is later.

b. If payment is not timely made (per paragraph 28.A ), interest shall accrue on the unpaid balance at the lesser of one percent per month 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 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 request for payment matches the shipment or delivery.

d. 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 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 such claims; iii. failure of the Contractor to pay Subcontractors, or for labor, materials or equipment; iv. damage to the property of City or the City 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 liquidated damages for the anticipated delay; vi. failure of the Contractor to submit proper requests for payment with all required attachments and supporting documentation; or vii. failure of the Contractor to comply with any material provision of the Contract Documents.

e. City payment obligations are payable only and solely from funds appropriated and available for the purpose of this purchase. 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.

29. FINAL CLOSE-OUT. The making and acceptance of final payment will constitute: i. a waiver of all claims by City against the Contractor, except claims (1) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Contractor to comply with the Contract or the terms of any warranty specified herein, (4) arising from the Contractor’s continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City’s right to audit; and ii. a waiver of all claims by the Contractor against the City other than those previously asserted in writing and not yet settled.

30. RIGHT TO AUDIT.

a. The Contractor agrees that authorized representatives of the City shall have access to, and the right to audit, examine, or reproduce, any and all records of the Contractor related to the performance under this Contract. The Contractor shall retain all such records for a period of three (3) years after final payment on this Contract or until all audit and litigation matters that the City has brought to the attention of the Contractor are resolved, whichever is longer. The Contractor agrees to refund the City any overpayments disclosed by any such audit.

b. The Contractor shall include Paragraph 30.a. above in all subcontractor Contracts entered into in connection with this Contract. Comment by Melissa Secor: 30 (a)?

31. SUBCONTRACTORS.

a. 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 the terms of the Contract, and shall contain provisions that:

i._require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications, and terms of the Contract; ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent of the City and the 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.

b. 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.

c. The Contractor shall pay each Subcontractor its appropriate share of payments made to the Contractor not later than ten (10) days after receipt of payment from the City.

32. 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 contract 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.

33. WARRANTY - SERVICES. The Contractor warrants and represents that all services to be provided to the City under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules or regulations.

a. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without force or effect.

b. Unless otherwise specified in the Contract, the warranty period shall be at least one year from acceptance of the services. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand perform the services again in accordance with above standard at no additional cost to the City. All costs incidental to such additional performance shall be borne by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City rights under this section.

c. If the Contractor is unable or unwilling to perform its services in accordance with the above standard as required by the City, then in addition to any other available remedy, The City may reduce the amount of services it may be required to purchase under the Contract from the Contractor, and purchase conforming services from other sources. In such event, the Contractor shall pay to the City upon demand

34. 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 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.

35. 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 of the Contract.

36. 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.

37. 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 35,

(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.

38. 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) 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 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 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.

39. TERMINATION WITHOUT CAUSE. The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) days’ prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof.

40. FRAUD. Fraudulent statements by the Contractor on any Offer or in any report or Deliverable required to be submitted by the Contractor to the City shall be grounds for the termination of the Contract for cause by the City and may result in legal action.

41. DELAYS. The City may delay scheduled delivery or other due dates by written notice to the Contractor if the City deems it is in its best interest. If such delay causes an increase in the cost of the work under the Contract, the City and the Contractor shall negotiate an equitable adjustment for costs incurred by the Contractor in the Contract price and execute an amendment to the Contract. The Contractor must assert its right to an adjustment within thirty (30) days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution process specified in Paragraphs 44 and 45. However, nothing in this provision shall excuse the Contractor from delaying the delivery as notified. Comment by Melissa Secor: These are incorrect. I think this should be 44 and 45.

42. HOLD HARMLESS AND INDEMNIFY.

a. Definitions:

i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and/or (2) death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person (including but not limited to the agents, officers and employees of the City, the Contractor, the Contractor’s subcontractors, and third parties),

ii. "Fault" shall include the sale of defective or non-conforming Deliverables, negligence, willful misconduct, or a breach of any legally imposed strict liability standard.

b. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, OR THE CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE CONTRACTOR’S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD-PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM.

43. INSURANCE. The following insurance requirement applies (Applicable to Contracts for services that are performed at City facilities or at sites designated by the City and for supplies that are delivered to City facilities by the Contractor personnel):

a. General Requirements.

i. The Contractor shall at a minimum carry insurance in the types and amounts indicated below for the duration of the Contract and during any warranty period.

ii. The Contractor shall forward Certificates of Insurance with the endorsements required below to the City as verification of coverage within 7 calendar days after notification of award, unless otherwise specified.

iii. The Contractor shall not commence work until the required insurance is obtained and 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 B+ or better. The City will accept workers’ compensation coverage written by the Texas Workers’ Compensation Insurance Fund.

vi. All endorsements naming the City and the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information:

Attn: Procurement City of Hutto 500 W. Live Oak Street Hutto, Texas 78634

vii. The “other” insurance clause shall not apply to the City or where the City is an additional insured shown on any policy. It is intended that policies required in the Contract, covering the City, and the Contractor, shall be considered primary coverage as applicable.

viii. If insurance policies are not written for amounts specified below, the Contractor shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it shall follow the form of the primary coverage.

ix. The City shall be entitled, upon request and without expense, to receive certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of the parties hereto or the underwriter on any such policies.

x. The City reserves the right to review the insurance requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Contractor.

xi. The Contractor shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract.

xii. The Contractor shall be responsible for premiums, deductibles and self-insured retentions, if any, stated in policies. All deductibles or self-insured retentions shall be disclosed on the Certificate of Insurance.

xiii. The Contractor shall provide the City thirty (30) days’ written notice of erosion of the aggregate limits below occurrence limits for all applicable coverages indicated within the Contract.

xiv. The insurance coverages specified below are required minimums and are not intended to limit the responsibility or liability of the Contractor.

xv. Actual losses not covered by insurance as required by this section shall be paid by Contractor.

b. Specific Requirements. (Applicable to Contracts for Services that are performed at City facilities or at sites designated by the City and for Deliverables that are delivered to City facilities by Contractor personnel). Contractor will maintain the required insurance during the initial term and any renewal period exercised: Comment by Robert Kay: Note Insurance changes:

Commercial general liab: 1M per occurrence Employer Liab 500K/500K/500K Auto $1,000,000 Combined Single Limit (for each accident) (Hutto RFB #18-08 & State e.g.)

Since this is materials for Streets, I made changes to the insurance limits (increases to General Liability, Employer Liability, and Auto) based on previous Hutto and State RFBs for Asphalt materials. Street-related materials could necessitate more insurance coverage.

Comment by Melissa Secor: Gresham, This is fine, and actually is in accordance with the insurance requirements that we have on our website. I went ahead and changed the Service Agreement Template to match these numbers and those on our website. I’m not sure if it has just been that we didn’t have set insurance requirements before, or if it was just a matter of the person drafting the other RFBs didn’t know our limits, but I can’t say with any certainty whether these insurance requirements will change with each project, or if they should stay the same across the board.

Minimum Required Amounts of Insurance Coverage

Employer’s Liability Bodily Injury by Accident Bodily Injury by Disease Bodily Injury by Disease

$500,000 bodily injury each accident $500,000 bodily injury by disease policy limit $500,000 bodily injury by disease each employee

Commercial General Liability (occurrence based) $1,000,000 for coverages A (Bodily Injury and Property Damage) and B (Personal and Advertising Injuries)

Automobile Liability Insurance All Owned, Non-owned and Hired Vehicles $1,000,000 Combined Single Limit (for each accident)

44. ALTERNATIVE DISPUTE RESOLUTION. The City and Contractor shall submit in good faith to mediation before filing a suit for damages under this Contract.

45. CLAIMS. If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse effect on the Contractor’s ability to perform thereunder, the Contractor shall give written notice thereof to the City within ten (10) days after receipt of notice by the Contractor. Such notice to the City shall state the date of notification of any such claim, demand, suit, or other action; the names and addresses of the claimant(s); the basis thereof; and the name of each person against whom such claim is being asserted. Such notice shall be delivered personally or by mail and shall be sent to the City.

46. DISCLOSURES. If at any time Contractor shall become aware of the existence or occurrence of any financial or economic conditions or natural disasters which might have a material adverse effect, Contractor shall promptly notify the City of the existence or occurrence thereof, unless the City has actual notice thereof, and of Contractor's opinion as to what effect such may have on the property or Contractor. Contractor shall also give prompt notice to the City, unless the City has actual notice thereof, of (i) the serious illness or death of any principal or key employee of Contractor, (ii) any litigation or dispute, threatened or pending against or affecting Contractor or the property which could have a material adverse effect, (iii) any event of default, (iv) any default by Contractor or any acceleration of any indebtedness owed by Contractor under any contract to which Contractor is a party, and (v) any change in the character of Contractor's business as it existed on the date hereof which could have a material adverse effect.

47. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL. All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions 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 of the Texas Government Code. It is the sole responsibility of the Contractor to seek any opinions from the Attorney General to prohibit the production of any proprietary materials or information submitted by the Contractor that are requested through Public Information Requests.

48. NO WARRANTY BY THE CITY AGAINST INFRINGEMENTS. The Contractor represents and 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 option engage 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 of Contractor.

49. CONFIDENTIALITY. Contractor must maintain and protect any information it receives, compiles, or creates as a result of the Contract in accordance with any federal, state, or local laws and regulations that apply. Contractor must establish a method to secure the confidentiality of records and other information relating to Customers in accordance with applicable federal and state laws, rules, and regulations.

The obligations of Contractor under this Confidentiality section will survive this Contract and must be included in all subcontracts.

50. ADVERTISING. The Contractor shall not advertise or publish, without the City’s prior consent, the fact that the City has entered into the Contract, except to the extent required by law.

51. NO CONTINGENT FEES. The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any contract or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Contractor, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee.

52. CERTFICATE OF INTERESTED PARTIES: Section 2252.908 of the Texas Government Code requires the successful bidder to complete a Form 1295 "Certificate of Interested Parties" that is signed and notarized for a contract award requiring council authorization. The “Certificate of Interested Parties" form must be completed on the Texas Ethics Commission website, printed, signed and submitted to the City by the authorized agent of the Business Entity with acknowledgment that disclosure is made under oath and under penalty of perjury prior to final contract execution. Link to Texas Ethics Commission Webpage: https://www.ethics.state.tx.us/filinginfo/1295/

53. DEBARRED CONTRACTORS. In procuring any goods or services related to the Contract, Contractor shall not enter into a contract or remit payment to any contractor that is listed on the Federal Excluded Parties List. Contractor shall screen all contractors and subcontractors by checking the above list which is found at the following web address: https://www.sam.gov/SAM/pages/public/searchRecords/search.jsf

54. ASSIGNMENT-DELEGATION. The Contract shall be binding upon and enure 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 be delegated 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 be no third-party beneficiaries to the Contract.

55. NO WAIVER; REMEDIES CUMULATIVE. No exercise, partial exercise, failure, forbearance or delay on the part of the City in exercising any power or right hereunder, or under the Contract Documents, shall operate as a waiver of the power or right, except as specifically provided herein. No remedy conferred herein, or in the Contract Documents, is intended to be exclusive of any other remedy, and each and every other remedy given hereunder or now or hereafter existing at law or in equity by statute or otherwise, may be sought by the enforcing party.

56. MODIFICATIONS. The Contract can be modified or amended only in writing and signed by both parties. No pre-printed or similar terms on any the Contractor request for payment, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract.

57. INTERPRETATION. The Contract is intended by the parties as a final, complete and exclusive statement of the terms of their Contract, except for the terms laid out herein. No course of prior dealing between the parties (apart from these terms) or course of performance or usage of the trade shall be relevant to supplement or explain any term used in the Contract. Although the Contract may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless otherwise defined in the Contract.

58. FORCE MAJEURE. The parties hereto will be excused from performance of any of their respective obligations hereunder during the existence of any event beyond their respective control (not due to their own fault or actions inconsistent with good faith operations hereunder) which shall include, without limitation, actions of governmental authorities, other than the City; acts of God; strikes or other labor troubles beyond the reasonable anticipation and control of the parties; temporary interruption caused by explosion, fire, vandalism, malicious mischief and other unavoidable interruptions; weather; natural catastrophes and other unavoidable circumstances.

59. GOVERNING LAW. The Contract Documents shall be governed by and interpreted in accordance with the laws of the State of Texas. Although drafted by the City, the Contract Documents shall be fairly construed, neither more strongly for nor against any party.

60. PERFORMANCE; VENUE. This Contract shall be performed in Williamson County, Texas. Venue shall be in Williamson County, Texas.

61. SEVERABILITY. In the event that any provisions of this Contract or any other contract documents executed at closing or the application thereof to any person or circumstances shall be declared to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remainder of such provisions and Contracts shall nevertheless remain in full force and effect and to this end the provisions of all covenants, conditions and Contracts described herein are deemed severable for this purpose. The parties further agree to reform any Contract to replace any stricken provision 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.

62. 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.

Attachment A Execution of Bid

By submitting its bid, Bidder represents and certifies each of the following statements: (a) that it has reviewed the Terms and Conditions as contained in the sample contract, Scope of Work (if applicable), and all other documents herein;…