ESBD_File_334646_RFB 2023-062 Bid Package.pdf

City of Waco, Texas

Request for Bid RFB No. 2023-062

Flexible Base Material

Issue Date: August 25, 2023 Closing Date & Time: September 20, 2023 at 2:00 p.m.

Opening Date & Time: September 20, 2023 at 2:05 p.m.

RFB Opening Location:

Purchasing Services Office, 1415 N. 4th Street, Waco, Texas

For Information Contact:

Daryle Bullard, Purchasing Services, 254-750-6616 or daryleb@wacotx.gov

Zoom Meeting Information:

See Page 3

Purchasing Services Post Office Box 2570

Waco, Texas 76702-2570 Telephone 254 / 750-8060

Fax 254 / 750-8063 www.waco-texas.com

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BONFIRE ELECTRONIC BIDDING

The City of Waco is transitioning to Electronic Bidding, Proposals and Qualification (RFB/RFP & RFQ) submissions. These requests will be managed through the new City’s Data base system, Bonfire.

We ask vendors to register with Bonfire to access and respond to any advertisement for bids and services required by the City. Registration is secure and user friendly. Vendors can register at the link below. Once registered, vendors will be able to:

• Register with the City of Waco.

• Receive notifications for bids and services requests from the City.

• Stay updated on changes, addendums, open solicitations.

• Submit bids and proposals electronically.

• Vendors can inquire about the details and requirements of various bidding opportunities.

The City will still accept bids and proposals by mail or drop off. Notifications of changes, addendums and updates will also be available on the City’s website as well as other media outlets the City uses for solicitations.

The City appreciates your participation. If you have questions during the electronic bid/proposal process, please contact the issuing buyer, whose contact information can be found in the solicitation document. You can also contact Bonfire with registration or customer support issues.

Website links to assist you: https://waco-texas.bonfirehub.com/login

MINORITY, WOMEN-OWENED BUSINESS ENTERPRISE (MWBE)

The City of Waco is committed to providing fair and equal opportunities for all vendors, especially those who face disadvantages in bidding and providing services to the City. The City collects and reports data on the MWBE status of vendors to the federal government as part of this effort. Vendors are asked to fill out theMWBE form and submit it with their offer when they respond to a bid or proposal solicitation.

The MWBE status helps the City ensure that small and disadvantaged businesses are included in the competitive solicitation process. However, the MWBE status does not determine the award of a contract.

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BID NUMBER:

DATE:

TIME: CENTRAL

QUICK LINK:

MEETING ID:

DIAL IN NUMBER:

PASS CODE:

ADDITONAL

INFORMATION:

BID NUMBER:

DATE:

TIME: CENTRAL

QUICK LINK:

MEETING ID:

DIAL IN NUMBER:

PASS CODE:

ADDITONAL

INFORMATION:

PRE BID/ PROPOSAL

BID/ PROPOSAL OPENING

ZOOM ACCESS INSTRUCTIONS & ADDITIONAL INFORMATION

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TABLE OF CONTENTS

Register Interest form

I. Schedule for Solicitation II. Contact with City of Waco III. Definitions IV. Requested Services / Products V. Request For Bids – Submission and Award Procedures Appendices

A. Services/Products Bid Forms

(1) Pricing Form(s)

B. Contract Requirements

(1) City of Waco General Terms and Conditions

(2) Additional Terms and Conditions for Products & Commodities

(3) Insurance & Indemnification Requirements

(4) Sales Tax Information

(5) HB1295 Information Sheet

(6) Protest Procedure

C. Forms to Complete and Return

(1) Submission of Bid/Proposal and Acknowledgment of Addenda

(2) Business Identification Form

(3) Application for Local Preference Consideration 271.905b

(4) Application for Local Preference Consideration 271.9051b

(5) Conflict of Interest Questionnaire (CIQ form)

(6) Disclosure of Relationships with City Council/Officers (City Charter)

(7) HB 89 (Israel Form)

(8) HB 89 (Firearms Form)

(9) HB 89 (Energy Form)

(10) Minority/Women Owned Business

(11) Litigation Disclosure

(12) Certification Regarding Debarment

(13) Non-collusion Affidavit

(14) Resident Certification

(15) Texas Public Information Act

(16) Drug Free Workplace

D. City of Waco Specifications

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City of Waco, Texas

RFB No. 2023-062 Flexible Base Material

REGISTER INTEREST

You have received a copy of the above described Request document. If you would like to register your interest in this project so that you will receive any future notices or addenda concerning the project, please fill in the information requested below and fax this page to 254-750-8063. You may also scan this page and email to: daryleb@wacotx.gov

Company/Firm:

Name of Contact Person(s):

Email(s):

Telephone: _________________________________________ Fax:_________________________________

Mailing Address:

It is your responsibility to complete and return this form to the City. Failure to do so will result in your not receiving notices and addenda related to this project from the City of Waco.

Notices and addenda are posted on the City’s website and can be accessed at:

http://www.waco-texas.com/purchasing-rules.asp.

City of Waco Purchasing Services Post Office Box 2570

Waco, Texas 76702-2570 Telephone 254 / 750-8060

Fax 254 / 750-8063 www.waco-texas.com

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I. Schedule for Solicitation The proposed schedule of events is tentative and may be modified throughout the selection process at the discretion of the City of Waco.

Issuance of the RFB Deadline for questions is 5:00 P.M.

Bids due by 2:00 p.m.

Tentatively, the final selection decision will be made and submitters will be notified of award by . This schedule is subject to change by the City.

II. Contact with City of Waco The contact person for this solicitation process is: Daryle Bullard, Purchasing Agent who can be reached at:

Email: @wacotx.gov Telephone: (254) 750- Fax: (254) 750-8063

Questions concerning the solicitation can be submitted through the City of Waco’s Bonfire portal at https://waco-texas.bonfirehub.com/login (preferred) or by email to the contact person listed above.

Via U.S. Mail:

City of Waco Purchasing Services Attn: Purchasing Agent P.O. Box 2570 Waco, Texas 76702-2570

Via Delivery Services/Personal Delivery :

City of Waco Purchasing Services Attn: , Purchasing Agent 1415 North 4th Street Waco, Texas 76707 NOTE: US Mail does NOT deliver to street address

Contact with someone other than the Purchasing Agent listed above, or his/her designated representative, at the City of Waco concerning this solicitation may be grounds for removal from consideration.

Interpretation, modification, corrections, or changes to the solicitation documents will be made by addenda issued by the City of Waco. Addenda will also be made available through the City of Waco’s Bonfire portal at https://waco-texas.bonfirehub.com/login or the City of Waco Website at http://www.waco-texas.com/bids.asp. Interested professional service providers are encouraged to return the Register Interest form on the previous page.

A complete copy of this RFB, including information for bidders, bid forms, contract forms, plans, specifications, bid bond forms, performance and payment bond forms and all other contract documents related to this project are available at https://www.waco-texas.com/bids.asp.

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III. Definitions The following definitions apply to this document and the transaction between the City and the selected submitter unless otherwise designated in the context. Terms, which are singular, may include multiple, where applicable and when in the best interests of the City:

(1) “City” means and refers to the City of Waco, Texas.

(2) “Company” or “Firm” means and refers to any submitter, whether such submitter be a sole proprietor, corporation, company, partnership, company, or any other entity legally defined or recognized under the laws of the State of Texas.

(3) “Bid” or “Submission” refers to a response submitted to an RFB.

(4) “RFB” means and refers to a Request For Bid that will be awarded based on lowest responsible bid or best value to City of Waco.

(5) “Selected submission” means and refers to the submission sent to the City of Waco by the Selected Firm.

(6) “Selected Firm” means the firm who is selected by the City and to whom the City Council/City Manager awards a contract for the services or commodities requested in this solicitation.

(7) “Solicitation” means an RFB issued by the City Waco seeking products or services described in the document.

(8) “Submitter” or “Vendor” or “Bidder” or “Contractor” means a firm that submits a response to a solicitation.

(9) “Contract documents” includes the RFB and all of the Appendices attached to the

RFB.

(10) “Day” means a calendar day unless otherwise specifically defined.

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IV. REQUESTED SERVICES/PRODUCTS

A. Scope of Services / Specifications

(1) The City of Waco has issued this solicitation for Utilities Department for the supply of those materials used for road maintenance, general construction, and fill requirements.

(a) Vendors must meet and provide testing requirement with certification.

(2) The specification includes the furnishing of all plant, labor, materials, and equipment and the performance of all operations required to furnish various road materials used by the City of Waco. Materials to be furnished are listed in Appendix A – Pricing Form.

(3) Purchases made during the contract period will be on an “as needed” basis. The bidder shall assume no guarantees as to the locations, number or frequency of purchases, or the amount of payments under the terms of this contract.

(4) A digital version of this document can be obtained from the City of Waco’s Bonfire portal at https://waco-texas.bonfirehub.com/login or the City of Waco Website at http://www.waco-texas.com/bids.asp.

(5) Gravel Material Requirements. See Appendix E.

B. Terms, Conditions, and Requirements

1) Term of Contract: Contract will commence on acceptance and approval of the

City Council and shall remain in effect for twelve (12) months. The contract can be extended for three (3) additional twelve (12) month periods at the discretion of the City.

2) The City, at its option, may terminate the contract in whole or part by the giving the successful bidder a written thirty (30) day notice if at any time the City determines that such termination is in its best interest and it agrees to pay the successful bidder for the items actually furnished. The successful bidder will not be entitled to lost or anticipated profits should the City choose to terminate the contract.

C. Rate Adjustments Note: State law prohibits increasing the original contract by more than 25%. Increases requested beyond 25% will be rejected and the supplier may be considered in breach of contract.

a. Bidder agrees to furnish all required quantities at the bid price during the first twelve

(12) months of the contract.

b. Pricing and performance review will be made every twelve (12) months.

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c. The pricing method and/or percentage markup proposed by the bidder shall remain fixed and firm during the first twelve (12) months of the contract; however, the bidder may offer incentive discounts from the fixed price to the City of Waco anytime during the contractual term.

d. The City will review requests for rate adjustments after service has been provided for a one (1) year (12 month) period.

e. Documentation must be provided to justify price adjustments, which may be allowed for pass through price decreases or increases provided by the manufacturer.

f. The City will determine whether any requested rate adjustment is in the best interest of the City and the City reserves the right to accept or reject all price adjustments.

g. The City Purchasing Office must acknowledge and agree to price requests in writing, before becoming effective. If not acknowledged within 30 days, it is the contractor’s responsibility to contact the Purchasing Office to ensure the price increase was received.

h. Any rate adjustment will be a factor in the extension/renewal review process and must be fully justified in writing.

i. The City, at its option, may terminate this contract by the giving a thirty (30) days written notice to the successful bidder. All purchases will cease upon the day specified in such notice.

j. The successful bidder will not be entitled to lost or anticipated profits should the City choose to terminate the contract.

D. Quantities The successful bidder(s) agrees to furnish all requirements of the City during the contract period. The quantity listed is an “estimate” only. Orders placed during the contract period will be on an “as needed” basis. The actual quantity ordered will be determined by the need and the availability of funds. The bidder shall assume no guarantees as to the number or frequency of orders.

E. Specifications

a. All materials, unless otherwise stated under this specification, shall be in accordance with the requirements of the “City of Waco Standard Specification for Construction”, and as amended. Copies of the relevant specifications are available upon request.

b. “Flexible Base Type A Grade 1-2 (TxDOT Specification Item 247 Flexible Base).”

c. A copy of the “City of Waco Standard Specification for Construction” and the City of Waco Standard Details may be obtained by accessing the City of Waco website at https://www.waco-texas.com/engineering-specifications.asp

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c. FLEXIBLE BASE TYPE A Grade 1-2 , GRAVEL

1. Specifications for the City of Waco will be in accordance with Texas Department of

Transportation.

2. Purchasing Requirement – Gravel shall meet TxDOT Specifications as noted in Appendix E.

F. DELIVERY:

The City of Waco will Contract with Independent Haulers for pickup and delivery to the City of Waco various job sites or designated stock yard(s).

G. PRICE QUOTES:

a. Bidder is to quote its lowest and best price. Bids must be firm, unless a bidder believes it necessary to base its price on price adjustment, which then such bid can only be considered as an alternate bid. Pricing is to be submitted on units of quantity specified with extended totals; however, in the event of a discrepancy in any extension total, the unit process shall govern and be binding for purposes of the RFB.

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b. Materials: the bidder certifies all materials, parts, and equipment supplied or represented in response to this RFB shall be new and unused unless noted elsewhere in the RFB.

c. Bids shall show the number of calendar days required to place the materials on order under normal conditions. Failure to specify availability date or to state unrealistically short or long availability dates may be the cause for the bid to be disregarded.

d. The Vendor must keep the Contract Administrator advised as to the status of the ordered material(s), including when a status is requested by the City. When availabilty delay can be foreseen, the Vendor shall give prior notice to the Contract Administrator.

e. Default in promised availability without acceptable reasons, or failure to meet specifications without remedy shall cause the City to purchase the goods elsewhere, or charge any increase in cost and handling to the defaulting vendor.

f. This does not limit any other remedies to the City for damage entitled under the Uniform Commercial Code.

H. AVAILABILITY

Bidders are required to quote materials that will meet or exceed the minimum specifications herein. Default in promised availability without acceptable reasons, or failure to meet the specifications without remedy, shall cause the City at its option to purchase the service elsewhere, including the next lowest and best responsible bidder, in order, or alternate bidder, and if such next or alternate bidder meets the specifications required. The purpose of this provision is to provide the most advantageous bid to the City, based on the contractual terms that the City will also consider factors other than the price when awarding contracts and may, under the terms of this contract, consider and accept an alternate bid as provided herein as most advantageous to the City. In any event, the City shall have the right to cancel for default all or any part hereof, including warranties of vendor, or if the vendor becomes insolvent, or commits acts of bankruptcy.

In addition, the City in accordance with provisions of this contract may terminate the performance of work under this order, in whole, or in part.

I. RESERVATION BY THE CITY:

The City of Waco reserves the right to reject any and all submittals. This issuance of this solicitation does not obligate the City to contract for expressed or implied services. The City of Waco will not reimburse vendors for any costs incurred during the preparation or submittal of responses to this solicitation.

(1) Furthermore, the City expressly reserves the right to:

(a) Waive any defect, irregularity, or informality in any submittal or procedure;

(b) Extend the solicitation closing time and date;

(c) Reissue this solicitation in a different form or context;

(d) Procure any item by other allowable means;

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(e) Waive minor deviations from specifications, conditions, terms, or provisions of the solicitation, if it is determined that waiver of the minor deviations improves or enhances the City’s business interests under the solicitation;

and/or

(f) Extend any contract when most advantageous to the City, as set forth in this solicitation.

(g) Retain all bids submitted and to use any ideas in a bid regardless of whether or not that bid is selected.

(h) Increase or decrease the quantity specified, unless the bidder specifies otherwise

(i) Consider and accept an alternate bid as provided herein when most advantageous to the City

(j) Award any contract to multiple parties, if it is in the best interest of the City.

V. REQUEST FOR BIDS – SUBMISSION AND AWARD PROCEDURES

A. Requirements

(1) Qualified vendors should submit one (1) original and (2) copies of the Pricing Forms along with (1) PDF version on a flash drive.

(2) Pricing Forms

(a) Pricing Forms.

1. Bids are to be submitted with a response on each item and the total extended. More than one (1) bid may be submitted on items that meet the specifications and the other RFB requirements.

2. Pricing is to be submitted on units of quantity specified on the Pricing Form with extended totals. In the event of a discrepancy in any extension total, the unit prices shall govern and be binding for purposes of this RFB.

3. All prices included are to be submitted less Federal Excise and State of Texas Sales Taxes. A tax exemption certificate will be executed upon request. The City’s federal tax identification number is 1-74-6002468- 4.

B. Completeness of Submission

(1) Vendors are responsible for examining and being familiar with all specifications, drawings, standard provisions, instructions, and terms and conditions of the solicitation and their responses.

(2) The vendor must attach all required forms with each submission copy. Forms must be signed by a representative of the vendor authorized to bind the vendor

RFB 2023-062 Page 12 contractually. The vendor must include a statement identifying any exceptions to this RFB or declare that there are no exceptions taken to the RFB.

C. Bid Response Date and Location:

Bids must be received at the office of Purchasing Department by 2:00 p.m.

(Central Time) on September 20, 2023.

Interested parties may submit their bids Via Delivery Services or Personal Delivery to:

Interested parties may also submit their bids through U.S. Mail delivered to:

City of Waco Purchasing Services Attn: Daryle Bullard, Purchasing Agent P.O. Box 2570 Waco, Texas 76702-2570

If using U.S. Mail, note that U.S. Mail is initially received at Waco City Hall and then delivered to the office of Purchasing Services by a City courier. That delivery may occur a day or more after being received at Waco City Hall. Allow additional time in advance of the bid due date for U.S. Mail delivery. If the Purchasing Office has not received the bids by the stated deadline, the bid will be returned unopened.

All submittals shall be sent to the attention of the Purchasing Agent in a sealed envelope that is clearly marked on the outside as follows:

“RFB 2023-062”

Bid Opening: 2:05 p.m. (Central Time) on September 20, 2023.

Vendors accept all risk of late delivery bids regardless of instance or fault. A bid received after the submission deadline will not be considered and will be returned unopened to the submitter. Vendors accept all risks of delivery.

The City will NOT accept a response submitted by facsimile transmission (fax) or by electronic mail (email).

All submissions and accompanying documentation will become the property of the City.

D. Modification to or Withdrawal of Submission

Submissions cannot be altered or amended after the submission deadline passes.

Submissions may be modified prior to the deadline by providing a written notice to the Purchasing contact person at the address previously stated. To modify a submission prior to the submission deadline:

City of Waco Purchasing Services Attn: Daryle Bullard, Purchasing Agent 1415 N. 4th St., Waco, Texas 76706

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PCampos Highlight

PCampos Highlight

PCampos Highlight

(1) Submit a written notice of the modification WITHOUT revealing the bid price. The modification should provide the addition, subtraction, or other modifications so that the final prices or terms will not be revealed to the City until the sealed bid is opened.

(2) The written modification may be submitted by electronic transmission (fax or email or personal delivery to Purchasing Agent identified earlier in this document. The written modification must be received by the City prior to the closing time.

(3) If the modification is submitted through an electronic transmission (fax or email), the City must receive an original of the modification document signed by the bidder and submitted to a delivery company (UPS, FedEx, etc.) prior to the bid closing time. If the original of the modification was not submitted to a delivery company prior to the closing time or is not received within three (3) days after the closing time of the bid, consideration will not be given to the modifications provided in the electronic transmission.

A submission may also be withdrawn by providing the notice in person by a representative of the vendor who can provide proof of his authority to act for the vendor. The representative will be required to execute a receipt reflecting the submission is being withdrawn. If a submission is withdrawn before the submission deadline stated herein, the vendor may submit a new sealed bid provided the new bid is received prior to the closing date and time deadline stated on the cover page and in the Schedule for the Solicitation.

This provision does not change the common law right of a submitter to withdraw a submission due to a material mistake in the submission.

E. Submission Validity Period A submission responding to this RFB signifies the vendor’s agreement that the submission and the content thereof, are valid for ninety (90) days following the submission deadline unless otherwise agreed to in writing by all parties. The submission may become part of the contract that is negotiated between the City and the successful vendor.

F. Vendor’s Cost to Develop Submission Costs for developing and assembling submissions in response to this solicitation are entirely the responsibility and obligation of the vendor and shall not be reimbursed in any manner by the City.

G. References The City reserves the right to request that a vendor provide references, upon request if the contractor is the winning bid.

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H. Method of Award and Evaluation of Factors [x in box shows applicable]

(1) For this solicitation, the City will award the contract to the:

Lowest responsible bidder Bidder who provides goods or services at the best value for the City.

(2) Lowest Responsible Bidder:

(a) The contract will be awarded to the lowest responsible bidder based on the base bid plus any selected alternatives provided the amount does not exceed the funds then estimated by the City as available to finance the contract.

(b) If the contract is bid with alternatives, the City reserves the right to select any combination of alternatives and will then compare all bids using the selected alternatives. If the amount of the bids exceeds the funds available to finance the contract, the City may (i) reject all bids or (ii) may award the contract based on the base bid with such deductions as produces a net total which is available within the available funds.

(3) Best Value:

(a) In determining best value for the City, the City may consider:

1. the purchase price;

2. the reputation of the bidder and of the bidder’s goods or services;

3. the quality of the bidder’s goods or services;

4. the extent to which the goods or services meet the municipality’s needs;

5. the bidder’s past relationship with the municipality;

6. the impact on the ability of the municipality to comply with laws and rules relating to contracting with historically underutilized businesses and non-profit organizations employing persons with disabilities;

7. the total long-term cost to the municipality to acquire the bidder’s good or services; and

(b) Compliance with all bid requirements, delivery and needs of the City are considerations in evaluating bids. The City of Waco reserves the right to contact any offer or, at any time, to clarify, verify or request information with regard to any bid.

(4) During the evaluation process, the City reserves the right, where it may serve the City’s best interest, to request additional information or clarifications from bidders.

I. Contract Award and Execution The final contract must be awarded and approved by the Waco City Council if the amount of the contract will exceed $50,000.00. If the contract is for less than that amount, depending on the amount, the contract may be executed by the City Manager, an Assistant City Manager, department head or director.

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APPENDIX A

Services/Products Bid Forms

(1) Pricing Form(s)

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CITY OF WACO

OFFICIAL BID SHEET

BID INVITATION NO: 2023-062

FLEXIBLE BASE MATERIAL

DATE: ________________

BIDDER: _____________________________________________________________________

AUTHORIZED

SIGNATURE: _________________________________________________________________

I. Refer to "Instructions to Bidders" before completing Bid Sheet.

II. a. Price: quote your best price on each item.

b. Availability Date: Promised availability time in days after receipt of order is to be column (4) or date if indicated.

III. In submitting this bid, I certify:

a. Items bid are in exact accordance with specifications, unless noted in bid.

b. That prices in this bid have been arrived at independently, without consultation or agreement with any competitor for the purpose of restricting competition.

PRICING MUST BE ENTERED ON THE BID SHEET IN INK OR TYPEWRITTEN.

WRITE IN “NO BID” ON UNAVAILABLE OR NOT A BID ITEM.

PRICING INFORMATION

Item No. Description Est. Qty Unit Price TOTAL

SAND AND GRAVEL MATERIALS

1.0 $ _____ / Ton $ ________ FLEXIBLE BASE MATERIAL 11,600 TONS

GRAVEL

Payment Terms: Thirty (30) DAYS after acceptance of order and receipt of an original invoice unless a [______] percent early payment discount is offered in fifteen (15) days.

IMPORTANT NOTE

Any and all exceptions to the specifications should be duly noted and attached to your proposal. The City reserves the right to reject any and all alternative bids.

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APPENDIX B

Contract Requirements

(1) City of Waco General Terms and Conditions

(2) Additional Terms and Conditions for Products & Commodities

(3) Insurance & Indemnification Requirements

(4) Sales Tax Information

(5) HB1295 Information Sheet

(6) Protest Procedure

(7) W-9 Form

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APPENDIX B. (1)

General Waco Terms and Conditions

(a) Applicable Law and Venue. This solicitation and any resulting contract will be governed and construed according to the laws of the State of Texas. The terms and conditions of the contract awarded pursuant to the solicitation are fully performable in McLennan County, Texas and venue for any dispute regarding contract shall be in McLennan County, Texas.

(b) Arbitration / Mediation. The City of Waco will not agree to binding or mandatory arbitration or mediation.

(c) Conflict of Interest. Vendor agrees to comply with the conflict of interest provisions of the Waco City Charter, Waco Code of Ordinances, and/or state law.

Vendor agrees to maintain current, updated disclosure of information on file with the Purchasing Services Division throughout the term of the contract.

(d) Gratuities. The City may, by written notice to the Vendor, cancel this contract without liability to the City, if it is determined by the City that gratuities have been offered to any officer or employee of the City with a view toward securing a contract, securing favorable treatment with respect to the awarding, amending, or the making of any determinations in respect to the performance of such a contract. In the event this contract is canceled by City as set forth in this paragraph, the City shall be entitled to recover from Vendor all additional costs incurred by City as a result of the cancellation.

(e) Unfunded Liability. City's obligation is payable only and solely from funds available for the purpose of this purchase. Lack of funds shall render this contract null and void to the extent funds are not available and any delivered but unpaid for goods will be returned to Vendor by City. The City will not incur a debt or obligation to pay selected bidder any amounts the City does not have the current funds available to pay, unless the contract includes a provision for the City to appropriate funding for the debt or obligation.

(f) Advance Payments. The City will not make advance payments to a selected firm or any third party pursuant to this solicitation or resulting contract.

(g) Gift of Public Property. The City will not agree to any terms or conditions that cause the City to lend its credit or grant public money or anything of value to the selected firm.

(h) Procurement Laws. The City will not agree to any terms or conditions that cause the City to violate any federal, Texas, or local procurement laws, including its own charter.

(i) Limitation of Liability. The City of Waco will not agree to an artificial limitation of liability (e.g. liability limited to contract price or liability capped at an amount actually paid in previous 3 months, etc.) or an artificial statute of limitations (e.g. any lawsuit must be commenced within one year of the event).

(j) Waiver. No claim or right arising out of a breach of the contract resulting from this solicitation can be discharged in whole or in part by a waiver or renunciation of the

RFB 2023-062 Page 19 claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party.

(k) Right To Assurance. Whenever one party to this contract in good faith has reason to question the other party's intent to perform, that party may request that the other party give written assurance of his intent to perform. In the event that a request is made and no assurance is given within five (5) days, the requesting party may treat this failure as an anticipatory repudiation of the contract.

(l) Attorney’s fees; Legal Costs. The City will not agree to pay the selected firm’s attorney’s fees or other legal costs under any circumstances.

(m) Advertising. Vendor shall not advertise or publish, without City's prior consent, the fact that City has entered into this contract, except to the extent necessary to comply with proper requests for information from an authorized representative of the federal, state or local government.

(n) Arrears In Taxes. Article VII. Taxation, Section 8, of the City of Waco Home Rule Charter states: The City shall be entitled to counterclaim and offset against any debt, claim, demand or account owed by the City to any person, firm or corporation who is in arrears to the City of Waco for taxes, in the amount of taxes so in arrears, and no assignment or transfer of such debt, claim, demand or account after the said taxes are due, shall affect the right of the City to offset the said taxes against the same.

(o) Tax Certification; Offset of Other Debts Against City. Selected bidder hereby certifies that it is not delinquent in the payment of taxes owed to the City and will pay any taxes owed to the City so that such taxes will not become delinquent. If this certification is subsequently determined to be false, such false certification shall constitute grounds for termination of the contract awarded under this SOLICITATION, at the option of City. Furthermore, Selected bidder agrees the City is entitled to counterclaim and offset against any debt, claim, demand, or account owed by the City to the selected bidder, pursuant to the awarded contract, for any debt, claim, demand, or account owed to the City, including other than the taxes mentioned above. The City may withhold from payment under the awarded contract an amount equal to the total amount of debts, claims, accounts, or demands including taxes owed to the City by the selected bidder. The City may apply the amount withheld to the debts and taxes owed to the City by the selected bidder until said debts are paid in full. No assignment or transfer of such debt, claim, demand or account after the said taxes or debts are due shall affect the right of the City to offset the taxes and the debt against the same.

(p) Independent Contractor. The selected bidder will be an independent contractor under the contract. Professional services provided by the selected bidder shall be by the employees or authorized subcontractors of the selected bidder and subject to supervision by the selected bidder, and not as officers, employees or agents of the City. Selected bidder will be required and agrees to comply with all state and federal employment laws as well as all other federal, state and local laws, rules and regulations affecting the performance of all obligations taken herein.

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(q) No Joint Enterprise/Joint Venture. It is not the intent of this solicitation or the contract to be awarded to create a joint enterprise or joint venture.

(r) Subcontracting Bid. If subcontracting with another company or individual is proposed, that fact, along with providing the same information for the subcontractor that is required to be provided by the bidder under this solicitation, must be provided and clearly identified in the bid. Following the award of the contract, no additional subcontracting will be permitted without the express prior written consent of the City.

(s) Assignment-Delegation. No right or interest in the contract shall be assigned or delegation of any obligation made by Vendor without the written permission of the City. Any attempted assignment or delegation by Vendor shall be wholly void and totally ineffective for all purposes unless made in conformity with this paragraph.

(t) Modifications: This contract can be modified or rescinded only by a written instrument signed by both of the parties or their duly authorized agents.

(u) Interpretation-Parol Evidence: This writing is intended by the parties as a final expression of their agreement and is intended also as a complete agreement for 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.

(v) Equal Employment Opportunity: Vendor agrees that during the performance of its contract it will:

1. Treat all applicants and employees without discrimination as to race, color, religion, sex, national origin, marital status, age, or handicap.

2. Identify itself as an "Equal Opportunity Employer" in all help wanted advertising or request. The Vendor shall be advised of any complaints filed with the City alleging that Vendor is not an Equal Opportunity Employer. The City reserves the right to consider its reports from its human relations administrator in response to such complaints in determining whether or not to terminate any portion of this contract for which purchase orders or authorities to deliver have not been included, however, the Vendor is specifically advised that no Equal Opportunity Employment complaint will be the basis for cancellation of this contract for which a purchase order has been issued or authority to deliver granted.

(w) Israel: Vendor acknowledges that effective September 1, 2017, the City is required to comply with Section 2270.001 of the Texas Government Code, enacted by House Bill 89 (85th (R) Texas Legislature), which requires that a governmental entity may not enter into a contract with a company for goods or services unless the contract contains a written verification from the company that it does not boycott Israel and will not boycott Israel during the term of the contract. By executing this Agreement, Vendor verifies that it does not boycott Israel and will not boycott Israel during the term of this Agreement.

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APPENDIX B.(2)

Additional Terms and Conditions for Commodities and Products

(a) Recycled Products: Bidders are encouraged to offer products that are produced with recycled materials, where appropriate, unless otherwise requested in the specifications.

(b) Prices Quoted: Bidder is to quote its lowest and best price F.O.B. Destination on each item to shipping locations in Waco, Texas, unless otherwise specified in the RFB.

Pricing shall include packaging, transportation, unloading, and any trade and cash discounts, which may be taken if earned. Bids must be firm, unless a bidder believes it necessary to base its price on price adjustment, then such a bid may be considered but only as an alternate bid. Pricing is to be submitted on units of quantity specified with extended totals. In the event of a discrepancy in any extension total, the unit prices shall govern and be binding for purposes of this RFB. Pricing must be entered on the bid sheet in ink or typewritten.

(c) Price Discrepancy. In the case of a discrepancy between the unit price and the extended total for a bid item, the unit price will prevail. The unit prices of bids that have been opened may not be changed for the purpose of correcting an error in the bid price.

Bidders will be allowed to withdraw bids that contain substantial mathematical errors in extension.

(d) Title & Risk of Loss; Delivery & Transportation Charges: The title and risk of loss of the goods shall not pass to City until City actually receives and takes possession of the goods at the point or points of delivery. City shall have the right to designate what method of transportation shall be used to ship the goods.

(e) Shipment Under Reservation Prohibited: Vendor is not authorized to release the goods under reservation without authorized Purchase Order release from The City of Waco.

(f) Vendor Responsible For Packaging Goods: The vendor will package goods in accordance with good commercial practice. Vendor shall bear cost of packaging unless otherwise provided. Goods shall be suitably packed to secure lowest transportation costs and to conform with requirements of common carriers and any applicable specifications.

City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. Each shipping container shall be clearly and permanently marked as follows:

1. Vendor's name and address;

The City of Waco, applicable department, address and purchase order or purchase release number and the supply agreement number (if applicable);

2.

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3. Container number and total number of containers, e.g., box 1 of 4 boxes; and

4. The number of the container bearing the packing slip.

Right of Inspection: The City shall have the right to inspect the goods on vendor's site(s), at any time. Certifications and Test Reports (see Appendix E) shall be provided to the The City's - Order Placement Organization prior to purchase and dispatch of goods for review and acceptance prior to release for pickup.

(i) No Replacement of Defective Tender: Every tender or acceptance of goods must fully comply with all provisions of this contract as to the method and place of delivery, quality and the like. If a tender is made which does not fully conform, this will constitute a breach and Vendor will not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Vendor may reasonably notify City of his intention to cure and may then make a conforming tender within the contract time but not afterward.

(j) Special Tools & Test Equipment: If the price stated on the face hereof includes the cost of any special tooling or special test equipment fabricated or required by Vendor for the purpose of filling this order, such special tooling equipment and any drawings or related documents thereto shall become the property of the City and to the extent feasible shall be identified by the Vendor as such.

(k) Warranty-Price: The price to be paid by the City shall be that contained in Vendor's bid which Vendor warrants to be no higher than vendor's current prices on orders by others for products of the kind and specification covered by this agreement for similar quantities under similar or like conditions and methods of purchase. In the event Vendor breaches this warranty, the prices of the items shall be reduced to the Vendor's current prices on orders by others, or in the alternative, reduced to the Vendor's current prices on orders by others, or in the alternative, City may cancel this contract without liability to Vendor for breach or Vendor's actual expense.

(l) Warranty for Product: The Vendor shall not limit or exclude any implied warranties, and any attempt to do so shall render this contract voidable at the option of the City.

(m) Safety Warranty: Vendor warrants that the product sold to City shall conform to the standards promulgated by the U.S. Department of Labor under the Occupational Safety and Health Act (OSHA). In the event the product does not conform to OSHA standards, City may return the product for correction or replacement at the Vendor's expense. In the event Vendor fails to make the appropriate correction within a reasonable time, correction made by City will be at Vendor's expense.

Invoicing & Payments: Vendor shall submit separate invoices, in duplicate, on each purchase order or purchase release, after each acceptance of material. Invoices shall indicate the purchase or purchase release number and the supply agreement number if applicable. Invoices shall be itemized.

(h)

(n)

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Mail to Fiscal Services Department, P.O. Box 2570, Waco, TX. 76702-2570. Payment shall not be due until the above instruments are submitted after acceptance.

(o) Force Majeure: In the event performance by Vendor of its obligations under this Agreement shall be interrupted or delayed by or as a consequence of a fire, flood, severe weather, or other act of God, war, insurrection, civil disturbance, or act of state, the Vendor shall be excused from such performance for the period of time such occurrence shall have lasted or such period as is reasonably necessary to rebuild or take other action necessary to resume performance. The period of time reasonably necessary to rebuild or take other action necessary to resume performance shall be as determined by the agreement of the parties, which agreement shall be negotiated and arrived at in good faith.

Vendor shall notify the Contact Person or Contract Administrator of any matter covered above, the occurrence of which interferes or threatens to interfere with the performance of any of its obligations under the bid. Upon such notice, the Vendor and the City shall consult and cooperate as to measures which may be taken to overcome the interference or as to alternative measures which may be undertaken by the parties with a view to the continued performance of the bid agreement.

(p) Cancellation: City shall have the right to cancel for default all or any part of the undelivered portion of the contract if Vendor breaches any of the terms hereof including warranties of Vendor. Such right of cancellation is in addition to and not in lieu of any other remedies that City may have in law or equity.

(q) Termination: City may terminate the contract for convenience for any reason.

Termination of work hereunder shall be effected by the availablity to the Vendor of a "Notice of Termination" specifying the extent to which performance of work under the contract is terminated and the date upon which such termination becomes effective. Vendor shall be paid for completed work/deliveries that satisfy all of the requirements of contract documents. Such right of termination is in addition to and not in lieu of the rights of City set forth elsewhere in the contract documents.

(r) Sustained Damages: In the event the City terminates the awarded contract for breach or any other reason, the Vendor shall not be relieved of liability to the City for damages sustained by the City by reason of any breach of the contract by the Vendor or otherwise, and the City may withhold any payments to the Vendor for the purpose of an offset until such time as the amount of damages due the City from the Vendor can be determined.

(s) Modifications and/or Alternate Submission

1. Definitions:

i. Modifications. A Modification shall mean a limited change to the specifications or part(s) of the solicitation. Example: an item is specified in the color blue;

however, blue is not available but gray or white can be supplied. The basic

RFB 2023-062 Page 24 function of the item is unchanged by accepting a different color and as such will be considered as a Modification.

ii. Alternate Submission. An Alternate Submission shall mean a major or complete change to a Specification or provisions of the solicitation that substitute for the item or terms as specified. Example: A 3\4 ton 2 wheel drive vehicle is specified, but a submission is made suggesting that a one-ton 4x4 vehicle will be an equal.

Such a large variance from the original specification will be considered an Alternate Submission.

2. The purpose of this solicitation is for the City of Waco to purchase equipment and/or services as specified and controlled by this solicitation. Any Modifications and/or Alternate submissions to the specifications stated in this solicitation must be in writing, attached to, and submitted with the submission documents. Absence of noted Modifications and/or Alternate submission will be interpreted to mean that the item/service quoted is in exact accordance with all of the solicitation provisions.

3. If a Modification to a specification or term is submitted, the submitter should clearly state that and identify the specification or term that the submitter seeks to modify. Failure to clearly state the Modification shall be interpreted to mean the item/service quoted is in exact accordance with all solicitation provisions.

4. If a submitter makes an Alternate submission to the solicitation, the submitter should be very clear in stating whether the intent is to comply with the City’s specification if the Alternate submission is not accepted. In the Alternate submission, the submitter shall clearly state the difference between the Alternate submission and the City’s specification or terms. Failure to clearly state the difference in the Alternate submission shall be interpreted to mean the item/service quoted is in exact accordance with all solicitation provisions.

5. A submitter which is NOT making a submission based on the exact specified equipment, or services, is required to furnish with the submission a complete detailed description and specifications of each item upon which being submitted, supported by the manufacturer's catalog, photographs, guarantee, complete name, and/or any other pertinent information.

6. An Alternate submission item must reflect the general appearance, design, dimensions, or color of the item specified, and must be of equivalent materials, function, quality, construction, performance and suitability of the item(s) specified within the solicitation documents.

7. Approval of an Alternate submission item and/or service remains with the City and the City’s decision in all cases is final.

8. A submission that has been opened may not be changed for the purpose of correcting an error in the price nor to submit Modifications and/or Alternate submission.

9. Samples of specified items or Alternate submission items, if required, shall be furnished free of expense to the City, and if not used or destroyed in examination and testing, will be returned to the submitter, if requested, at the submitter's expense. High value or high cost items will not be required for submittal and/or testing. However, information will be required that will allow the City to perform an adequate evaluation of a proposed product.

This may include supplying references (names, phone numbers, etc.) of current owners of

RFB 2023-062 Page 25 the Alternate submission items. Each sample submitted must be marked with submitter's name and address and solicitation…