ESBD_File_341167_RFP 2024-001- Concession Services for the City of Forney - Parks and Recreation.pdf

REQUEST FOR PROPOSAL

CITY OF FORNEY

CONCESSION SERVICES FOR FORNEY

PARKS AND RECREATION

RFP Number: 2024-001

RFP Release Date: Thursday, November 2, 2023

RFP Due Date: Tuesday, December 5, 2023, at 2:00 pm

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TABLE OF CONTENTS

Table of Contents ................................................................................................................... Page 2

Request for Proposal

(1) Introduction ................................................................................................................ Page 3

(2) General Information ................................................................................................... Page 4

(3) RFP Withdrawals and/or Amendments ...................................................................... Page 4

(4) Proposal Submittal Requirements .............................................................................. Page 5

(5) Proposal Evaluation and Contract Award .................................................................. Page 5

Appendix A – Scope of Services

(1) Project Title ................................................................................................................ Page 7

(2) Scope of Services Contact .......................................................................................... Page 7

(3) Special Conditions ..................................................................................................... Page 7

(4) Proposal Evaluation Factors...................................................................................... Page 7

(5) Brand Manufacture Reference ................................................................................... Page 7

(6) Key Events Schedule ................................................................................................. Page 7

(7) Scope of Services ....................................................................................................... Page 8

(8) Baseball and Softball Complex Operations ............................................................... Page 9

Appendix B – Proposal

I Required Proposal Information

(1) Submittal Checklist .................................................................................................. Page 14

(2) Proposed Products and/or Services .......................................................................... Page 15

(3) Term of Contract and Option to Extend .................................................................... Page 15

(4) Proposer(s)’s Experience / Staff............................................................................... Page 15

(5) References ................................................................................................................ Page 16

(6) Trade Secrets and/or Confidential Information ........................................................ Page 17

(7) Federal, State and/or Local Identification Information ............................................ Page 17

(8) Emergency Business Services Contact Notice ......................................................... Page 17

II Contract Terms and Conditions

(1) Delivery of Products and/or Services ...................................................................... Page 18

(2) Miscellaneous ......................................................................................................... Page 18

(3) Financial Responsibility Provisions ........................................................................ Page 19

(4) Governmental Contract and Purchasing Rider........................................................ Page 20

Appendix C – Vendor Forms ............................................................................................. Page 23 Appendix D – Certificate of No Boycott of Israel Form ................................................. Page 29 Appendix E – No Intent to Submit Form ......................................................................... Page 31

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City of Forney, Texas Request for Proposal 2024-001

Concession Services for Parks and Recreation

It is the policy of the City to involve small businesses and qualified minority/woman owned businesses to the greatest extent possible in the procurement of goods, equipment, services, and construction projects.

PROPOSALS MUST BE RECEIVED BY MAIL OR IN PERSON BY THURSDAY, NOVERMBER 9, ON OR

BEFORE 2:00 PM CST TO THE PURCHASING MANAGER’S OFFICE AT CITY HALL (101 E. MAIN

STREET, FORNEY, TX, 75126). NO PROPOSAL WILL BE ACCEPTED AFTER THAT DATE AND TIME.

ALL PROPOSALS RECEIVED AFTER THIS DATE AND TIME WILL BE CONSIDERED NONRESPONSIVE.

Proposals will be publicly opened and names of those that submitted read aloud at Forney City Hall located at 101 E. Main Street, Forney, TX 75126 at 2:30 pm. Write the request for proposal number, 2024-001, and name of proposal, CONCESSION SERVICES, and the name of your organization on the outer envelope.

Proposals are to be submitted in accordance with the attached City specifications and the “General Conditions of Submitting Proposals” attached hereto. Each proposer is required to fill in every blank; failure to do so may be used as a basis for rejection of a proposal. The City reserves the right to reject any or all proposals, to waive formalities, or to proceed otherwise when in the best interest of the City.

The City will have the right and option to terminate the contract upon thirty (30) days written notice.

The successful proposer may be required to execute a written contract.

1. Introduction

A. Project Overview: The City of Forney is requesting Proposals with the intent of awarding a contract for the purchase of goods and services contained in Appendix A – Scope of Services.

B. Contract parties: The City of Forney, may herein be referred to as “the City.” The person or company responding to the solicitation may herein be referred to as the “Proposer(s).”

C. Questions: Following are contacts for questions as identified.

i. RFP Clarifications: All questions related to requirements or processes of this RFP should be submitted in writing to the Purchasing Manager identified in section 2 below.

ii. Scope of Service Questions: All questions related to the scope of services should be submitted in writing to the contact person(s) noted in Appendix A – Scope of Services.

iii. Replies: Responses to inquiries which directly affect an interpretation or effect a change to this RFP will be issued in writing by addendum posted to City website. All such addenda issued by City prior to the submittal deadline shall be considered part of the RFP. The City shall not be bound by any reply to an inquiry unless such reply is made by such formal written addendum.

D. Notification of Errors or Omissions: Proposer(s)s shall promptly notify the City of any omissions, ambiguity, inconsistency, or error that they may discover upon examination of this RFP. The City shall not be responsible or liable for any errors and/or misrepresentation that result from the solicitations which are inadvertently incomplete, ambiguous, inconsistent, or obviously erroneous.

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E. Conflict of Interest Questionnaire (Form CIQ): A person or business, and their agents, who seek to contract or enter into an agreement with the City, are required by Texas Local Government Code, Chapter 176, to file a conflict-of-interest questionnaire (FORM CIQ) which is found in Appendix C. The form must be filed with the City Secretary no later than seven (7) days after the date the person or business begins contract discussions or negotiations with the City, or submits an application, response to a request for proposals or bids, correspondence, or other writing related to any potential agreement with the City.

F. Form 1295 Certificate of Interested Parties: In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the Government Code. The law states that a governmental entity or state agency may not enter into certain contracts with a business entity unless the business entity submits a disclosure of interested parties to the governmental entity or state agency at the time the business entity submits the signed contract to the governmental entity or state agency. The law applies only to a contract of a governmental entity or state agency that either (1) requires an action or vote by the governing body of the entity or agency before the contract may be signed or (2) has a value of at least $1 million. The disclosure requirement applies to a contract entered into on or after January 1, 2016. Please go to the Texas Ethics Commission webpage (www.ethics.state.tx.us) for full instructions and to complete the required steps for creation of Form 1295. Once the form is completed online, printed, and notarized please return the form with your proposal submission.

2. General Information

A. Tax Exempt Status: City purchases are exempt from State Sales Tax and Federal Excise Tax. Do not include tax in the Proposal. City will furnish Excise Tax Exemption Certificate upon request.

B. Public Inspection of Proposals: The City strictly adheres to the Texas Public Information Act (Texas Government Code Chapter 552.001, et seq.) and all other governing statutes, regulations, and laws regarding the disclosure of RFP information. Proposals are not available for public inspection until after the contract award. If the Proposer(s) has notified the City, in writing, that the Proposal contains trade secrets or confidential information, the City will generally take reasonable steps to prevent disclosure of such information, in accordance with the Public Information Act. This is a statement of general policy only, and in no event shall the City be liable for disclosure of such information by the City in response to a request, regardless of the City’s failure to take any such reasonable steps, even if the City is negligent in failing to do so.

3. RFP Withdrawals and/or Amendments

A. RFP Withdrawal: The City reserves the right to withdraw this RFP for any reason.

B. RFP Amendments: The City reserves the right to amend any aspect of this RFP by formal written Addendum prior to the Proposal submittal deadline and will endeavor to notify all potential Proposer(s)s that have registered with the City, but failure to notify shall impose no obligation or liability on the City.

4. Proposal Submittal Requirements

A. Submittal Packet – Required Content: All proposals must be physically submitted.

B. Submittal Deadline: The deadline for submittal of Proposals shall be as identified in Appendix B-Proposal. It is the Proposer(s)’s responsibility to have the Proposal Documents correctly physically submitted by the submittal deadline. No extensions will be granted, and no late submissions will be accepted.

C. Proposals Received Late: Proposer(s)s are encouraged to submit their proposals as soon as possible. The time and date of receipt as recorded with Purchasing Manager or designated receiver shall be the official time of receipt. The city is not responsible for late submission regardless of the reason. Late Proposals will not be considered under any circumstances.

http://www.ethics.state.tx.us/

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D. Alterations or Withdrawals of Proposal Document: Any submitted Proposal may be withdrawn, or a revised proposal substituted prior to the submittal deadline. Proposal Documents cannot be altered, amended, or withdrawn by the Proposer(s) after the submittal deadline, unless such alteration, amendment or withdrawal notice is approved in writing by the Purchasing Manager.

E. Proposal Document Format: All Proposal Documents must be prepared in single-space type, on standard 8-

1/2” x 11” vertically oriented pages, numbered at the bottom. The City only accepts physical submissions. Any other format (via telephone, fax, email, etc.) will be rejected by the City at its discretion.

F. Validity Period: Once the submittal deadline has passed, any Proposal Document shall constitute an irrevocable bid to provide the commodities and/or services set forth in the Scope of Services at the price(s) shown in the Proposal Document. Such proposal shall be irrevocable until the earlier of the expiration of ninety (90) days from the submittal deadline, or until a contract has been awarded by the City.

5. Proposal Evaluation and Contract Award

A. Proposal Evaluation and Contract Award Process: An award of a contract to provide the goods or services specified herein will be made using competitive sealed proposals, in accordance with Chapter 252 of the Texas Local Government Code and with the City’s purchasing policy. The City will evaluate all proposals to determine which Proposer(s)s provide the goods or services at the best value for the municipality. In determining best value, the municipality may weigh and consider the purchase price, the reputation of the Proposer(s) and of the Proposer(s)’s goods or services; the quality of the Proposer(s)’s goods or service, the extent to which the goods and service meet the municipality’s needs; the past relationship with the municipality, the total long-term cost to the municipality to acquire the Proposer(s)’s goods or services, and in addition, each additional factor identified in the Scope of Services for this contract, if any. The City may, at its option, conduct discussions with or accept proposal revisions from any reasonably qualified Proposer(s). Should the City award this contract, it shall award it to the responsible Proposer(s) whose proposal is determined to be the most advantageous to the municipality considering the relative importance of price and the other evaluation factors included in the request for proposals.

B. Completeness: If the Proposal is incomplete or otherwise fails to conform to the requirements of the RFP, City alone will determine whether the variance is so significant as to render the Proposal non-responsive, or whether the variance may be cured by the Proposer(s) or waived by the City, such that the Proposal may be considered for award.

C. Ambiguity: Any ambiguity in the Proposal as a result of omission, error, lack of clarity or non-compliance by the Proposer(s) with specifications, instructions and all conditions shall be construed in the favor of the City. In the event of a conflict between these standard RFP requirements and details provided in Appendix A – Scope of Services or Appendix B – Proposal, the Appendices shall prevail.

D. Unit Prices and Extensions: If unit prices and their extensions do not coincide, the City may accept the price most beneficial to the City, and the Proposer(s) will be bound thereby.

E. Additional Information: City may request any other information necessary to determine Proposer(s)’s ability to meet the minimum standards required by this RFP.

F. Partial Contract Award: City reserves the right to award one contract for some or all the requirements proposed or award multiple contracts for various portions of the requirements to different Proposer(s)s based on the unit prices proposed in response to this request, or to reject any and all Proposals and re-solicit for Proposals, as deemed to be in the best interest of City.

G. Terminate for Cause: The occurrence of any one or more of the following events will justify termination of the contract by the City of Forney for cause:

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i) The successful Proposer(s) fails to perform in accordance with the provisions of these specifications; or

ii) The successful Proposer(s) violates any of the provisions of these specifications; or

iii) The successful Proposer(s) disregards laws or regulations of any public body having jurisdiction; or

iv) The successful Proposer(s) transfers, assigns, or conveys any or all of its obligations or duties under the contract to another without written consent of the City.

v) If one or more of the events identified in Subparagraphs G. i) through iv) occurs, the City of Forney may terminate the contract by giving the successful Proposer(s) seven (7) days written notice. In such case, the successful Proposer(s) shall only be entitled to receive payment for goods and services provided before the effective date of termination. The successful Proposer(s) shall not receive any payment on account of loss of anticipated profits or revenue or other economic loss resulting from such termination.

vi) When the contract has been so terminated by the City of Forney, such termination shall not affect any rights or remedies of the City then existing or which may thereafter accrue.

H. Terminate for Convenience: This contract may be cancelled or terminated at any time by giving the successful Proposer(s) thirty (30) days written notice. The successful Proposer(s) may be entitled to payment for services actually performed; to the extent said services are satisfactory.

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Appendix A – Scope of Services

1. Project Title: Concession Services for the City of Forney - Parks and Recreation

2. Scope of Services Contact

Questions about the technical nature of the Scope of Services, etc. may be directed to Kyle Rouvaldt, Phone: (972) 552-6531, e-mail: krouvaldt@forneytx.gov.

3. Special Conditions

The following special conditions shall prevail over areas of conflict in previous pages:

NONE

4. Proposal Evaluation Factors

Emphasis Factor 40% Concession Experience – Vendor shall give a brief description of its company’s history, explain its company and the employee structure.

25% Business References – Please list at least three references that will support, document, or verify your performance in providing concession services and/or operating a business

25% Menu and Pricing – What products do you intend to offer? Sizes?

Prices? The proposer will submit various samples of menus to include pricing.

10% Past Experience – The proposer(s)’s past relationship with the municipality and demonstrated reliability to meet contractual obligations with current and prior customers.

5. Brand Manufacture Reference

The City has determined that any manufacturer’s brand defined in the Scope of Services meets the City’s product and support need. The manufacturer’s reference is not intended to be restrictive and is only descriptive of the type and quality the City desires to purchase. Quotes for similar manufactured products of like quality will be considered if the Proposal is fully noted with the manufacturer’s brand name and model. The City reserves the right to determine products and support of equal value, and whether other brands or models meet the City’s product and support needs.

6. Key Events Schedule

Proposal Release Date: November 2,2023 Advertising Schedule: Week of November 2, 2023 Week of November 9, 2023

Tour of Park Facilities (Optional)

November 13, 2023 at 10:00 am

241 S FM 548

Forney, TX 75126

Submittal of Written Questions November 17, 2023 Sealed Proposals Due and Opened December 5, 2023 at 2:00 pm Anticipated City Review and Scoring December 6 - December 7, 2023 Anticipated Award Date December 21, 2023 (Or First January Meeting 2024) mailto:krouvaldt@forneytx.gov

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7. Scope of Services

SCOPE AND INTENT

The City ordinance allows Parks and Recreation to authorize the sale of food and beverages, goods, and other articles within City parks. The intent of this RFP is to establish a Concession company (“Concessionaire”) to provide, operate and manage concession services in City-maintained Parks and Recreation locations. This RFP is intended to encourage vendors to clearly show that they are qualified to provide food and beverage services in a consistent manner. Each bidder must clearly identify their knowledge of concession operations, food safety practices, contract relations, and demonstrate financial stability.

The City expects the “Concessionaire” to be responsible for:

A. Developing a menu B. Ordering, stocking, and preparing the food and other supplies used in the operation of the concession stands.

C. Hiring, training, scheduling, and compensating the personnel necessary for efficient operation of the stands D. Managing all financial activities related to the concession stands.

E. Purchasing or leasing any additional equipment necessary for operation of the concession stands F. Immediately notifying the City of any building maintenance necessary to keep building in a safe condition.

G. Thoroughly cleaning the concession area and equipment at the end of each day of operations H. Obtaining and holding all necessary licenses and permits necessary for operation of the stand.

I. Obtaining insurance amounts acceptable to the City and providing proof of the same to the City

The definitive agreement between the City and the selected “concessionaire” will be for an initial term of two (2) years with the expectation of operations of the concession stands from March 1st through November 1st of each year, weather permitting. A rent payment of $150 per operating month will be due at the first of each month. The City will remain responsible for cleaning the bathrooms areas around the concession stands, however not within each concession stand. The City will allow the concession operator to use the existing equipment, but the City will not replace or repair any of the existing equipment. The selected concessionaire may, at their sole cost, elect to have existing equipment repaired in the event of such repairs become necessary.

A tour of both facilities will be held on October 26, 2023, at 10 a.m. Individuals and/or businesses interested in attending this tour are asked to come to Forney Community Park (241 S. FM 548, Forney, TX) at this time to attend the tour of facilities.

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8. Baseball and Softball Complex Concession Operations

Open during tournaments and league play during the months of March through October, the concessionaire will open a minimum of 30 minutes prior to all sporting events. Tournament and league play schedules will be provided to the concessionaire by the City a minimum of two weeks prior to any scheduled sporting event.

1. Forney Community Park Softball Complex (Exhibit A)

• Address: 241 S. FM 548, Forney, TX 75126

• Description: League softball and baseball fields, tournament host, playground, and restrooms

• Hours: Open during schedule league and tournament play

2. Mulberry Park (Exhibit B)

• Address: 811 S. Bois d’ Arc St., Forney, TX 75126

• Description: League baseball fields, tournament host, playground, and restrooms

• Hours: Open during scheduled league and tournament play

Tournaments There are approximately 10-15 tournaments per year at Community and Mulberry Park, with both generally hosting games simultaneously. Tournaments are generally held beginning in March and run through November. Tournament games are generally held on both Saturday and Sunday. The concessionaire will have exclusive food and beverage rights for all tournaments and City staff will provide a minimum of 60 days-notice to the concessionaire before any tournament is hosted.

League Play The league play for both youth baseball and softball consists of two seasons in a calendar year:

• Spring Season – March through May (Games played Monday-Friday, some Saturdays)

• Fall Season – August through October (Games played Monday-Friday, some Satudays)

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Exhibit A – Forney Community Park Concession Location and Photos

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Exhibit B – Mulberry Park Concession Location and Photos

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Appendix B – Proposal Submittal Checklist: (To determine validity of proposal)

Appendix B must be included in the proposal submittal.

Appendix C Vendor Forms - all forms must be included in the proposal submittal.

Appendix D No Intent to Submit Proposal (if applicable)

Form 1295 Certificate of Interested Party must be submitted with the Texas Ethics Commission and included in the proposal submittal.

Confidentiality/Non-Disclosure Agreement

Cooperative Governmental Purchasing Notice

All proposals submitted to the City of Forney shall include this page with the submitted Proposal.

RFP Number:

2024-001

Project Title:

Concession Services for the City of Forney Parks and Recreation

Submittal Deadline: Tuesday, December 5, 2023, 2:00 p.m. CST

Proposer(s)’s Legal Name:

Address:

City, State & Zip

Federal Employers Identification Number #

Phone Number:

Fax Number:

E-Mail Address:

Proposer(s) Authorization

I, the undersigned, have the authority to execute this Proposal in its entirety as submitted and enter into a contract on behalf of the Proposer(s).

Printed Name and Position of Authorized Representative:

Signature of Authorized Representative:

Signed this (day) of (month), (year)

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Appendix B – Proposal (continued)

I. REQUIRED PROPOSAL INFORMATION. IN ORDER FOR A PROPOSAL TO BE CONSIDERED

COMPLETE, AND TO BE EVALUATED FOR A CONTRACT AWARD BY THE CITY, PROPOSER(S) MUST

SUBMIT ALL OF THE FOLLOWING INFORMATION:

1. Proposed Products and/or Services

A. Product or Service Description: Proposer(s) should utilize this section to describe the technical aspects, capabilities, features and options of the product and/or service proposed in accordance with the required Scope of Services as identified in Appendix A. Promotional literature, brochures, or other technical information may be used.

B. Project Schedule/Delivery Date: Proposer(s) must provide a project schedule noting all projected completion dates for segments of the Project, from start-up to completion, and all delivery dates for goods covered by the RFP. The Proposal must show the number of days required to deliver and install the product or equipment after the awarding of the contract.

2. Term of Contract and Option to Extend

Any contract resulting from this RFP shall be effective for two (2) years from date of award. The City anticipates that contract may be renewed pursuant to the availability of funds and at the discretion of the City. The following clauses shall be included in the contract:

A. Option Clause: It is agreed that City will have the option to extend the contract for up to two (2) additional years, in one-year intervals. To exercise this option, the City shall serve notice 30 days prior to contract termination or to the end of any one-year extension.

B. Price Increases Upon Extension: If approved by the City, the Proposer(s) shall modify the rates charged by the Proposer(s) to reflect any changes shown in the comparative statement delivered to the City. The maximum increase allowed under this provision shall be four percent (4%) per year. The City shall have authority, in its reasonable discretion, to determine the validity of any change in Proposer(s)’s rates. City cannot exercise the Option to Extend with any price increases unless the Proposer(s) completes the section of the Quote requesting anticipated percentage of annual escalation.

3. Proposer(s)’s Experience / Staff

A. Project Team: Identify all members of the Proposer(s)’s team (including both team members and management) who will be providing any services proposed and include information which details their experience.

B. Employee Standards: All employees working on this RFP must be able to pass a background to gain entry into secure areas of the facilities and to maintain the integrity of the Surety Bond.

C. Removal or Replacement of Staff: If an assigned staff person must be removed or replaced for any reason, the replacement person must be approved by City prior to joining the project.

D. Business Establishment: State the number of years the Proposer(s)’s business has been established and operating. If Proposer(s)’s business has changed names or if the principals operating the business operate any similar businesses under different names, or have operated any other businesses or changed the legal status or form of the business within the last five (5) years, all names, of predecessor business names, affiliated entities, and previous business entities operated by the principals, if different than present, must be provided.

State the number of years’ experience the business has: ; and the number of employees: .

E. Project Related Experience: All Proposals must include detailed information that details the Proposer(s)’s experience and expertise in providing the requested services that demonstrates the Proposer(s)’s ability to logically plan and complete the requested project.

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F. Confidentiality/Non-Disclosure Agreement: The Proposer(s) shall attach to its proposal, it’s recommended confidentiality and non-disclosure agreement that will apply to the Proposer(s) and all its agents, employees or representatives whatsoever and shall be written to protect the City from the unauthorized release of information maintained in the city in locations where Proposer(s) may have access. A successful Proposer(s) shall be required to modify any such agreements so that they are applicable to Proposer(s)’s business entity and all agents, employees and representatives of the entity servicing the contract. All such proposed agreements shall be subject to approval by the City Attorney’s Office.

4. References

Proposer(s) shall provide four (4) references where Proposer(s) has performed similar to or the same types of services as described herein.

Reference #1:

Client / Company Name:

Contact Name: Contact Title:

Phone: Email:

Date and Scope of Work Provided:

Reference #2:

Client / Company Name:

Contact Name: Contact Title:

Phone: Email:

Date and Scope of Work Provided:

Reference #3:

Client / Company Name:

Contact Name: Contact Title:

Phone: Email:

Date and Scope of Work Provided:

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Reference #4:

Client / Company Name:

Contact Name: Contact Title:

Phone: Email:

Date and Scope of Work Provided:

5. Trade Secrets and/or Confidential Information

Trade Secrets and/or Confidential Information: This proposal (does) (does not) contain trade secrets and/or confidential information. If applicable, describe such trade secrets and confidential information, and the basis for your assertion that such material qualifies for legal protection from disclosure.

6. Federal, State and/or Local Identification Information

A. Centralized Master Proposer(s)s List registration number: .

B. Prime contractor HUB / MWBE registration number: .

C. An individual Proposer(s) acting as a sole proprietor must also enter the Proposer(s)’s Social Security Number:

7. Emergency Business Services Contact Notice

During a natural disaster, or homeland security event, there may be a need for the City of Forney to access your business for products or services after normal business hours and/or holidays. The City may request City employee pick up or vendor delivery of product or services.

For this purpose, a primary and secondary emergency contact name and phone number are required. It is critical the Proposer(s)’s emergency contact information remains current. City shall be provided in writing with any change to a contact name or phone number of these emergency contacts.

All products or services requested during an emergency event are to be supplied as per the established contract prices, terms, and conditions. The Proposer(s) shall provide the fee (pricing) for an after-hours emergency opening of the business, if any. In general, orders will be placed using a City of Forney procurement card (Master Card) or City issued Purchase Order. The billing is to include the emergency opening fee, if applicable.

The Proposer(s) shall provide the names, phone numbers and fee (pricing), if any, for an after-hours emergency opening of the business listed below.

Business Name:

Contract #:

Description:

Primary Contact (Name):

Primary Contact Phone Numbers: Home: Cell:

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Secondary Contact (Name):

Secondary Contact Phone Numbers: Home: Cell:

After Hours emergency opening fee, if applicable: $

II. CONTRACT TERMS AND CONDITIONS. EXCEPT WHERE PROPOSER(S) MAKES SPECIFIC

EXCEPTION IN THE SUBMITTED PROPOSAL, ANY CONTRACT RESULTING FROM THIS RFP WILL

CONTAIN THE FOLLOWING TERMS AND CONDITIONS, WHICH PROPOSER(S) HEREBY

ACKNOWLEDGES, AND TO WHICH PROPOSER(S) AGREES BY SUBMITTING A PROPOSAL:

1. Delivery of Products and/or Services

A. Payment Terms: Unless otherwise specified in the Scope of Services or otherwise agreed to in writing by the City, payment terms for the City are Net 30 days upon receipt of invoice.

B. Warranty of Products and Services: All products furnished under this contract shall be warranted to be merchantable and good quality and fit for the purposes intended as described in this Proposal, to the satisfaction of City and in accordance with the specifications, terms, and conditions of the Scope of Services, and all services performed shall be warranted to be of a good and workmanlike quality, in addition to, and not in lieu of, any other express written warranties provided.

C. Late Delivery or Performance: If Proposer(s) fails to deliver acceptable goods or services within the timeframes established in the Project Schedule, the City shall be authorized to purchase the goods or services from another source and assess any increase in costs to the defaulting Proposer(s), who agrees to pay such costs within ten days of invoice.

D. Title to Goods and Risk of Loss: For goods to be provided by Proposer(s)s hereunder, if any, the title, and risk of loss of the goods shall not pass to City until City actually receives, takes possession, and accepts the goods and the installation of such goods, has tested the system, and determined that it is in good and acceptable working order.

2. Miscellaneous

A. Independent Contractor: Proposer(s) agrees that Proposer(s) and Proposer(s)’s employees and agents have no employer- employee relationship with City. Proposer(s) agrees that if Proposer(s) is selected and awarded a contract, City shall not be responsible for the Federal Insurance Contribution Act (FICA) payments, Federal or State unemployment taxes, income tax withholding, Workers Compensation Insurance payments, or any other insurance payments, nor will City furnish any medical or retirement benefits or any paid vacation or sick leave.

B. Assignments: The rights and duties awarded the successful Proposer(s) shall not be assigned to another without the written consent of the Purchasing Manager. Such consent shall not relieve the assigner of liability in the event of default by the assignee.

C. Liens: Proposer(s) shall indemnify and save harmless the City against any and all liens and encumbrances for all labor, goods, and services which may be provided to the City by Proposer(s) or Proposer(s)’s vendor(s), and if the City requests, a proper release of all liens or satisfactory evidence of freedom from liens shall be delivered to the City.

D. Gratuities / Bribes: Proposer(s) certifies that no bribes in the form of entertainment, gifts, or otherwise, were offered or given by the successful Proposer(s), or its agent or representative, to any City officer, employee or elected representative, with respect to this RFP or any contract with the City, and that if any such bribe is found to have been made this shall be grounds for voiding of the contract

E. Financial Participation: Proposer(s) certifies that it has not received compensation from the City to participate in preparing the specifications or RFP on which the Proposal is based and acknowledges that this contract may be terminated and/or payment withheld if this certification is inaccurate.

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F. Required Licenses: Proposer(s) certifies that he holds all licenses required by the State of Texas for a provider of the goods and/or services described by the Scope of Services herein.

G. Authority to Submit Proposal and Enter Contract: The person signing on behalf of Proposer(s) certifies that the signer has authority to submit the Proposal on behalf of the Proposer(s) and to bind the Proposer(s) to any resulting contract.

H. Compliance with Applicable Law: Proposer(s) agrees that the contract will be subject to, and Proposer(s) will strictly comply with, all applicable federal, state, and local laws, ordinances, rules, and regulations.

3. Financial Responsibility Provisions

A. Insurance: The Proposer(s), consistent with its status as an independent contractor, shall carry, and shall require any of its subcontractors to carry, at least the following insurance in such form, with such companies, and in such amounts (unless otherwise specified) as City may require:

i. Worker’s Compensation and Employer’s Liability insurance, including All States Endorsement, to the extent required by federal law and complying with the laws of the State of Texas;

ii. Commercial General Liability insurance, including Blanket Contractual Liability, Broad Form Property Damage, Personal Injury, Completed Operations/Products Liability, Premises Liability, Medical Payments, Interest of Employees as additional insureds, and Broad Form General Liability Endorsements, for at least One Million Dollars ($1,000,000) Combined Single Limit Bodily Injury and Property Damage on an occurrence basis;

iii. Comprehensive Automobile Liability insurance covering all owned, non-owned or hired automobiles to be used by the Contractor, with coverage for at least One Million Dollars ($1,000,000) Combined Single Limit Bodily Injury and Property Damage.

B. Indemnification: Proposer(s) agrees to defend, indemnify and hold harmless the City, all of its officers, Council members, agents and employees from and against all claims, actions, suits, demands, proceedings, costs, damages and liabilities, including reasonable attorneys’ fees, court costs and related expenses, arising out of, connected with, or resulting from any acts or omissions of Proposer(s) or any agent, employee, subcontractor, or supplier of Proposer(s) in the execution or performance of this contract without regard to whether such persons are under the direction of City agents or employees.

C. Bond Requirements: Prior to the commencement of work on this Project, Proposer(s) shall deliver to the City the following bonds issued by a good and sufficient surety licensed by the State of Texas and satisfactory to the City:

i. A payment bond in the amount of 100% of the total contract amount insuring the full and prompt payment of all persons performing labor and/or furnishing materials in connection with this Project;

ii. A surety bond in the amount of 100% of the total contract amount insuring full, faithful, and prompt performance of the responsibilities contained in this contract within the time parameters provided herein.

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GOVERNMENTAL CONTRACT AND PURCHASING

RIDER FOR CONTRACTS WITH THE CITY OF

FORNEY, TEXAS

By submitting a response to a solicitation or bid, or by entering a contract for goods or services and/or by accepting a purchase order, the proposed contractor, contractor, or vendor, identified below, agrees that the below terms and conditions shall govern all agreements with the City of Forney unless otherwise agreed to by a specifically executed provision within the contract, provided same is permissible by law. Absent a specifically executed provision, the below terms are BINDING and SUPERSEDE all other terms and/or conditions whether oral or written.

1. Application. This Governmental CONTRACT AND PURCHASING Rider (Governmental Rider) applies to, is part of, and takes precedence over any conflicting provision in or attachment to the Response to Solicitation or Bid, Contract or Purchase Order, as applicable, (Contract) (attached hereto) of (Vendor Name), (Vendor). The Contact involved in this Governmental Rider is described as follows:

(Contract Description)

1. Payment Provisions. The City’s payments under the Contract, including the time of payment and the payment of interest on overdue amounts, are subject to Chapter 2251, Texas Government Code. City reserves the right to modify any amount due to Vendor presented by invoice to the City if necessary to conform the amount to the terms of the contract.

2. Multiyear Contracts. If the City Council for the City does not appropriate funds to make any payment for a fiscal year after the City’s fiscal year in which the contract becomes effective and there are no proceeds available for payment from the sale of bonds or other debt instruments, then the Contract automatically terminates at the beginning of the first day of the successive fiscal year. (Section 5, Article XI, Texas Constitution). It is understood and agreed the City shall have the right to terminate the agreement at the end of any City fiscal year if the governing body of the City does not appropriate funds sufficient to continue the contract, as determined by the City’s budget for the fiscal year in question. The City may execute such termination by giving Vendor a written notice of termination at the end of its then current fiscal year.

3. Local Preference. The City Council supports the local preference option for purchasing. In accordance with Chapter 271.9051 of the State of Texas Local Government Code, the City Council may choose to award a competitive bid to a bidder whose principal place of business is in the City limits, provided that this bid is within 5% of the lowest bid price received and would otherwise constitute the best bid. In the exercise of this option, the City hereby determines that any such local bidder offers the City the best combination of contract price and additional economic development opportunities.

4. No Ex-Parte Communications during Competitive Bidding Period. To insure the proper and fair evaluation of a response, the City prohibits ex-parte communication (e.g., unsolicited) initiated by the proposed Vendor to a City official or employee evaluating or considering the responses prior to the time a formal decision has been made. Questions and other communication from vendors will be permissible until 5:00 p.mm on the day specified as the deadline for questions. Any communication between the proposed Vendor and the City after the deadline for questions will be initiated by the appropriate City official or employee in order to obtain information or clarification needed to develop a proper and accurate evaluation of the response. Ex-parte communication may be grounds for disqualifying the offending Vendor from consideration or award of the solicitation then in evaluation, or any future solicitation.

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5. Abandonment or Default. A Vendor who abandons or defaults the work on the contract and causes the City to purchase goods, materials or services elsewhere may be charged for any increased cost of goods, materials and/or services related thereto; may be considered disqualified in any re- advertisement of the service;

and may not be considered in future bids for the same type of work for a period of three years for the same scope of work, goods or services.

6. Disclosure of Litigation. Each prospective Vendor shall include in its proposal a complete disclosure of any civil or criminal litigation or investigation pending which involves the Vendor or which has occurred in the past in which the Vendor has been judged guilty or liable by a competent court regardless of whether the Court Order or Judgment is final or on appeal.

7. Cancellation. The City reserves the right to cancel the contract without penalty by providing 30 days prior written notice to the Vendor. Termination under this paragraph shall not relieve the Vendor of any obligation or liability that has occurred prior to cancellation. NOTE: This contract is subject to cancellation, without penalty, at any time the City deems the vendor to be non-compliant with contractual obligations.

8. Annual Vendor Performance Review. The City reserves the right to review the Vendor’s performance at the end of each twelve-month contract period and to cancel all or part of the agreement (without penalty) or continue the contract through the next period.

9. Compliance with other laws and certification of eligibility to contract. Any offer to contract with the City shall be considered an executed certification that the Vendor will comply with all federal, state, and local laws, statutes, ordinances, rules and regulations, (as amended during the contracting period) and any orders and decrees of any court, administrative bodies or tribunals in any matter affecting the performance of the resulting agreement, including without limitation, immigration laws, workers’ compensation laws, minimum and maximum salary and wage statutes and regulations, and licensing laws and regulations. When requested, the Vendor shall furnish the City with satisfactory proof of compliance within 10 days of the execution of any contract with the City is void.

10. Compliance with all Codes, Permitting and Licensing Requirements. The successful Vendor shall comply with all national, state, and local laws and regulations as well as those of any other authorities that have jurisdiction pertaining to equipment and materials used and their application. None of the terms or provisions of the specification shall be construed as waiving any rules, regulations, or requirements of these authorities. The successful Vendor shall be responsible for obtaining all necessary permits, certificates and/or licenses to fulfill contractual obligations.

11. Liability and Indemnity of City. Any provision of the Contract is void and unenforceable if it (1) limits or releases either party from liability that would exist by law in the absence of the provision, (2) creates liability for either party that would not exist by law in the absence of the provision, or (3) waives or limits either party’s rights, defenses, remedies, or immunities that would exist by law in the absence of the provision.

(Section 5, Article XI, Texas Constitution)

12. Indemnity and Independent Vendor Status of Vendor. Vendor shall indemnify, save harmless and defend the City, its officers, agents, and employees from and against any and all suits, actions, legal proceedings, claims, demands, damages, costs, expenses, attorneys’ fees and any and all other costs or fees (whether grounded in Constitutional law, Tort, Contract, or Property Law, or raised pursuant to local, state or federal statutory provision), arising out of the performance of the resulting agreement and/or arising out of a willful or negligent act or omission of the Vendor, its officers, agents, and employees. It is understood and agreed that the Vendor and any employee or subcontractor of Vendor shall not be considered an employee of

RFP 2024-001 – Concession Services for the City of Forney - Parks and Recreation | 22 the City. The Vendor shall not be within protection or coverage of the City’s workers’ compensation insurance, health insurance, liability insurance or any other insurance that the City from time to time may have in force and effect. City specifically reserves the right to reject any and all Vendor’s employees, representatives or subcontractors and/or their employees for any cause, should the presence of any such person on City property or their interaction with City employees be found not in the best interest of the City or is found to interfere with the effective and efficient operation of the City’s workplace.

13. Liens. Vendor agrees to and shall indemnify and save harmless the City against any and all liens and encumbrances for all labor, goods and services which may be provided under the resulting agreement. At the City’s request the Vendor shall provide and shall cause all subcontractors to provide a proper release of all liens, or satisfactory evidence of freedom from liens shall be delivered to the City.

14. Confidentiality. Any provision in the Contract that attempts to prevent the City’s disclosure of information that is subject to public disclosure under federal or Texas law or regulation, or court or administrative decision or ruling, is invalid. (Chapter 552, Texas Government Code)

15. Tax Exemption. The City is not liable to Vendor for any federal, state, or local taxes for which the City is not liable by law, including state and local sales and use taxes (Section 151.309 and Title 3, Texas Tax Code) and federal excise tax (Subtitle D of the Internal Revenue Code). Accordingly, those taxes may not be added to any item. Texas limited sales tax exemption certificates will be furnished upon request.

Vendors shall not charge for said taxes. If billed, the City will remit payment less sales tax.

16. Contractual Limitations Period. Any provision of the Contract that establishes a limitations period that does not run against the City by law or that is shorter than two years is void. (Sections

16.61 and 16.070, Texas Civil Practice and Remedies Code)

17. Sovereign Immunity. Any provision of the Contract that seeks to waive the City’s immunity from suit and/or immunity from liability is void unless agreed to by specific acknowledgement of the provision within the contract.

18. Governing Law and Venue.