Contract - Pathmark Traffic Products of Texas, Inc. - 7/13/2017 CITY OF ROUND ROCK AGREEMENT
FOR PURCHASE OF SIGN BLANKS
AND MATERIALS FOR STREET NAME SIGNS
WITH
PATHMARK TRAFFIC PRODUCTS OF TEXAS, INC.
THE STATE OF TEXAS §
CITY OF ROUND ROCK § KNOW ALL BY THESE PRESENTS:
COUNTY OF WILLIAMSON §
COUNTY OF TRAVIS §
THIS AGREEMENT (referred to herein as the "Agreement"), is for purchase of
aluminum sign blanks of varying lengths, caps, and brackets for use as street name signs, and
related services, and is made on the �day of the month of u wj.- - , 20175 by and
between the CITY OF ROUND ROCK, a Texas home-rule municipality, whose offices are
located at 221 East Main Street, Round Rock, Texas 78664-5299 (referred to herein as "City"),
and PATHMARK TRAFFIC PRODUCTS OF TEXAS, INC., whose offices are located at 4435
Hunter Road, San Marcos, Texas 78667 (referred to herein as "Pathmark" or "Vendor"). This
Agreement supersedes and replaces any previous agreements between the named parties, whether
oral or written, and whether or not established by custom and practice.
RECITALS:
WHEREAS, City has determined that there is a need for the delineated goods and
services; and
WHEREAS, City desires to contract for the provision of such goods and services, and
City desires to purchase same from Pathmark; and
WHEREAS, City has issued its "Invitation for Bid" for the provision of said goods and
services, and City has selected the bid submitted by Pathmark; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties and obligations hereunder;
NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is
mutually agreed between the parties as follows:
00378595/ss2 ,
1.01 DEFINITIONS
A. Agreement means the binding legal contract between City and Pathmark whereby
City is obligated to buy specified goods and Pathmark is obligated to sell same. The Agreement
includes the following: (a) City's Invitation for Bid designated IFB 17-009 dated March 2017;.
(b) Pathmark's Response to IFB; (c) contract award; and (d) any exhibits, addenda, and/or
amendments thereto. Any inconsistencies or conflicts in the contract documents shall be
resolved by giving preference in the following order:
(1) This Agreement;
(2) Pathmark's Response to IFB;
(3) City's Invitation for Bids, exhibits, and attachments.
B. City means the City of Round Rock, Williamson and Travis Counties, Texas.
C. Effective Date means the date upon which the binding signatures of both parties
to this Agreement are affixed.
D. Force Majeure means acts of God, strikes, lockouts, or other industrial
disturbances, acts of the public enemy, orders of any kind from the government of the United
States or the State of Texas or any civil or military authority, insurrections, riots, epidemics,
landslides, lightning, earthquakes, fires, hurricanes, storms, floods, restraint of the government
and the people, civil disturbances, explosions, or other causes not reasonably within the control
of the party claiming such inability.
E. Goods mean the specified supplies, materials, commodities, or equipment.
F. Services mean work performed to meet a demand or effort by Vendor to comply
with promised delivery dates, specifications, and technical assistance specified.
G. Pathmark or Vendor means Pathmark Traffic Products, or any of its corporate
structures, successors or assigns.
2.01 EFFECTIVE DATE, TERM,ALLOWABLE RENEWALS, PRICES FIRM
A. This Agreement shall be effective on the date this Agreement has been signed by
each party hereto, and shall remain in full force and effect unless and until it expires by operation
of the term indicated herein, or is terminated or extended as provided herein.
B. The term of this Agreement shall be for sixty (60) months from the effective date
hereof.
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C. Prices shall be firm for the duration of this Agreement. No separate line item
charges shall be permitted for invoicing purposes, including but not limited to equipment rental,
demurrage, costs associated with obtaining permits, or any other extraneous charges.
D. City reserves the right to review the relationship at any time, and may elect to
terminate with or without cause or may elect to continue.
3.01 CONTRACT DOCUMENTS AND EXHIBITS
City selected Pathmark to supply the goods as outlined in IFB 17-009 dated March 2017,
and Response to IFB submitted by Pathmark, all as specified in Exhibit "A" attached hereto and
made a part hereof for all purposes. The intent of these documents is to formulate an Agreement
listing the responsibilities of both parties as outlined in the IFB and as offered by Pathmark in its
Response to the IFB.
The goods and services which are the subject matter of this Agreement are described in
Exhibit"A" and, together with this Agreement, comprise the total Agreement and they are fully a
part of this Agreement as if repeated herein in full.
4.01 ITEMS AWARDED; COSTS
A. All bid items set forth in "Attachment A: Bid Form" of Exhibit "A" (page 8) are
awarded to Vendor.
B. Pathmark specifically acknowledges and agrees that City is not obligated to use or
purchase any estimated annual quantity of goods. Only if, as, and when needed by City, the bid
costs listed on Exhibit"A" shall be the basis of any charges collected by Pathmark.
5.01 INVOICES
All invoices shall include, at a minimum, the following information:
A. Name and address of Pathmark;
B. Purchase Order Number;
C. Description and quantity of items received; and
D. Delivery dates.
6.01 INTERLOCAL COOPERATIVE CONTRACTING/PURCHASING
Authority for local governments to contract with one another to perform certain
governmental functions and services, including but not limited to purchasing functions, is
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granted under Government Code, Title 7, Chapter 791, Interlocal Cooperation Contracts,
Subchapter B and Subchapter C, and Local Government Code, Title 8, Chapter 271, Subchapter
F, Section 271.101 and Section 271.1.02.
Other governmental entities within the State of Texas may be extended the opportunity to
purchase off of the City of Round Rock's bid, with the consent and agreement of the successful
vendor(s) and Round Rock. Such agreement shall be conclusively inferred for the vendor from
lack of exception to this clause in the vendor's response. However, all parties hereby expressly
agree that the City of Round Rock is not an agent of, partner to, or representative of those outside
agencies or entities and that the City of Round Rock is not obligated or liable for any action or
debts that may arise out of such independently-negotiated "piggyback"procurements.
7.01 NON-APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of City's current revenues only. It is understood and
agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year
if the governing body of City does not appropriate funds sufficient to purchase the services as
determined by City's budget for the fiscal year in question. City may affect such termination by
giving Vendor a written notice of termination at the end of its then-current fiscal year.
8.01 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, any payment to be
made by City to Vendor will be made within thirty (30) days of the date City receives goods
under this Agreement, the date the performance of the services under this Agreement are
completed, or the date City receives a correct invoice for the goods or services, whichever is
later. Vendor may charge interest on an overdue payment at the "rate in effect" on September 1
of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas
Government Code, Section 2251.025(b). This Prompt Payment Policy does not apply to
payments made by City if:
A. There is a bona fide dispute between City and Vendor, a contractor, subcontractor,
or supplier about goods delivered or the service performed that causes the payment to be late; or
B. There is a bona fide dispute between Vendor and a subcontractor or between a
subcontractor and its supplier about the goods delivered or the service performed that causes the
payment to be late; or
C. The terms of a federal contract, grant, regulation, or statute prevent City from
making a timely payment with federal funds; or
D. The invoice is not mailed to City in strict accordance with any instruction on the
purchase order relating to the payment.
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9.01 GRATUITIES AND BRIBES
City may, by written notice to Vendor, cancel this Agreement without incurring any
liability to Vendor if it is determined by City that gratuities or bribes in the form of
entertainment, gifts, or otherwise were offered or given by Vendor or its agents or representatives
to any City officer, employee or elected representative with respect to the performance of this
Agreement. In addition, Vendor may be subject to penalties stated in Title 8 of the Texas Penal
Code.
10.01 TAXES
City is exempt from Federal Excise and State Sales Tax; therefore, tax shall not be
included in Vendor's charges.
11.01 ORDERS PLACED WITH ALTERNATE VENDORS
If Vendor cannot provide the goods as specified, City reserves the right and option to
obtain same from another source or supplier(s).
12.01 INSURANCE
Vendor shall meet all requirements as stated in the attached Invitation for Bid IFB 17-009
(including all attachments and exhibits), and its bid response; and as set forth at
http://www.roundrocktexas. ov/wp-content/uploads/2014/12/cors insurance 07 201 12 pdf
13.01 CITY'S REPRESENTATIVE
City hereby designates the following representative(s) authorized to act in its behalf with
regard to this Agreement:
Bobby Mercer, Transportation Superintendent
City of Round Transportation Department
2008 Enterprise Drive
Round Rock, TX 78664
512-341-3309
bmercerL&roundrocktexas.gov
14.01 RIGHT TO ASSURANCE
Whenever either party to this Agreement, in good faith, has reason to question the other
party's intent to perform hereunder, then demand may be made to the other party for written
assurance of the intent to perform. In the event that no written assurance is given within the
reasonable time specified when demand is made, then and in that event the demanding party may
treat such failure as an anticipatory repudiation of this Agreement.
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15.01 DEFAULT
If Vendor abandons or defaults hereunder and is a cause of City purchasing the specified
services elsewhere, Vendor agrees that it will not be considered in the re-advertisement of the
service and that it may not be considered in future bids for the same type of work unless the
scope of work is significantly changed. Vendor shall be declared in default of this Agreement if
it does any of the following:
A. Fails to make any payment in full when due;
B. Fails to fully, timely and faithfully perform any of its material obligations
hereunder;
C. Fails to provide adequate assurance of performance under the "Right to
Assurance" section herein; or
D. Becomes insolvent or seeks relief under the bankruptcy laws of the United States.
16.01 TERMINATION AND SUSPENSION
A. City has the right to terminate this Agreement, in whole or in part, for
convenience and without cause, at any time upon thirty (30) days' written notice to Vendor.
B. In the event of any default by Vendor, City has the right to terminate this
Agreement for cause, upon ten (10) days' written notice to Vendor.
C. Vendor has the right to terminate this Agreement only for cause, in the event of
material and substantial breach by City, or by written mutual agreement to terminate.
E. In the event City terminates under subsections (A) or (B) of this section, the
following shall apply: Upon City's delivery of the referenced notice to Vendor,
Vendor shall discontinue all services in connection with the performance of this
Agreement and shall proceed to cancel promptly all existing orders and contracts
insofar as such orders and contracts are chargeable to this Agreement. Within
thirty (30) days after notice of termination, Vendor shall submit a statement
detailing the goods and/or services satisfactorily performed under this Agreement
to the date of termination. City shall then pay Vendor that portion of the charges,
if undisputed. The parties agree that Vendor is not entitled to compensation for
services it would have performed under the remaining term of the Agreement
except as provided herein.
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17.01 INDEMNIFICATION
Vendor shall defend (at the option of City), indemnify, and hold City, its successors,
assigns, officers, employees and elected officials harmless from and against all suits, actions,
legal proceedings, claims, demands, damages, costs, expenses, attorney's fees, and any and all
other costs or fees arising out of, or incident to, concerning or resulting from the fault of Vendor,
or Vendor's agents, employees or subcontractors, in the performance of Vendor's obligations
under this Agreement, no matter how, or to whom, such loss may occur. Nothing herein shall be
deemed to limit the rights of City or Vendor (including, but not limited to the right to seek
contribution) against any third party who may be liable for an indemnified claim.
18.01 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
A. Vendor, its agents, employees and subcontractors shall use best efforts to comply
with all federal and state laws, City's Charter and Ordinances, as amended, and with all
applicable rules and regulations promulgated by local, state and national boards, bureaus and
agencies.
B. Vendor acknowledges and understands that City has adopted a Storm Water
Management Program (SWMP) and an Illicit Discharge Ordinance, Sections 14-139 through 14-
152 of the City's Code of Ordinances, to manage the quality of the discharges from its Municipal
Separate Storm Sewer System (MS4) and to be in compliance with the requirements of the Texas
Commission on Environmental Quality (TCEQ) and the Texas Pollutant Discharge Elimination
System (TPDES). The Services Provider agrees to perform all operations on City-owned
facilities in compliance with the City's Illicit Discharge Ordinance to minimize the release of
pollutants into the MS4. The Services Provider agrees to comply with of the City's stormwater
control measures, good housekeeping practices and any facility specific stormwater management
operating procedures specific to a certain City facility. In addition, the Services Provider agrees
to comply with any applicable TCEQ Total Maximum Daily Load (TMDL) Requirements and/or
I-Plan requirements.
19.01 ASSIGNMENT AND DELEGATION
The parties hereby bind themselves, their successors, assigns and legal representatives to
each other with respect to the terms of this Agreement. Neither party shall assign, sublet or
transfer any interest in this Agreement without prior written authorization of the other party.
20.01 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
A. When delivered personally to recipient's address as stated in this Agreement; or
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B. Three (3) days after being deposited in the United States mail, with postage
prepaid to the recipient's address as stated in this Agreement.
Notice to Vendor:
Pathmark Traffic Products of Texas, Inc.
4435 Hunter Road
San Marcos, TX 78667
Notice to City:
City Manager Stephen L. Sheets, City Attorney
221 East Main Street AND TO: 309 East Main Street
Round Rock, TX 78664 Round Rock, TX 78664
Nothing contained herein shall be construed to restrict the transmission of routine
communications between representatives of City and Vendor.
21.01 APPLICABLE LAW; ENFORCEMENT AND VENUE
This Agreement shall be enforceable in Round Rock, Texas, and if legal action is
necessary by either party with respect to the enforcement of any or all of the terms or conditions
herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be
governed by and construed in accordance with the laws and court decisions of the State of Texas.
22.01 EXCLUSIVE AGREEMENT
This document, and all appended documents, constitutes the entire Agreement between
City and Vendor. This Agreement may only be amended or supplemented by mutual agreement
of the parties hereto in writing, duly authorized by action of the City Manager or City Council.
23.01 DISPUTE RESOLUTION
City and Vendor hereby expressly agree that no claims or disputes between the parties
arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration
proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9
USC Section 1-14) or any applicable state arbitration statute.
24.01 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion or provision of this Agreement void shall in no
way affect the validity or enforceability of any other portion or provision of this Agreement. Any
such void provision shall be deemed severed from this Agreement, and the balance of this
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Agreement shall be construed and enforced as if this Agreement did not contain the particular
portion or provision held to be void. The parties further agree to amend this Agreement to replace
any stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision. The provisions hereof shall not prevent this entire Agreement from being void
should a provision that is of the essence of this Agreement be determined to be void.
25.01 MISCELLANEOUS PROVISIONS
Standard of Care. Vendor represents that it employs trained, experienced and
competent persons to perform all of the services, responsibilities and duties specified herein and
that such services, responsibilities and duties shall be performed in a manner according to
generally accepted industry practices.
Time is of the Essence. Vendor understands and agrees that time is of the essence and
that any failure of Vendor to fulfill obligations for each portion of this Agreement within the
agreed timeframes will constitute a material breach of this Agreement. Vendor shall be fully
responsible for its delays or for failures to use best efforts in accordance with the terms of this
Agreement. Where damage is caused to City due to Vendor's failure to perform in these
circumstances, City may pursue any remedy available without waiver of any of City's additional
legal rights or remedies.
Force Majeure. Neither City nor Vendor shall be deemed in violation of this Agreement
if it is prevented from performing any of its obligations hereunder by reasons for which it is not
responsible as defined herein. However, notice of such impediment or delay in performance must
be timely given, and all reasonable efforts undertaken to mitigate its effects.
Multiple Counterparts. This Agreement maybe executed in multiple counterparts, any
one of which shall be considered an original of this document; and all of which, when taken
together, shall constitute one and the same instrument.
[Signatures on the following page.]
00378595/ss2
IN WITNESS WHEREOF, City and Pathmark have executed this Agreement on the
dates indicated.
City of Round Rock, Texas Pathmark Traffic Products of Texas,Inc.
By: By: S P L51C J- 4/v
Printed Name: 6TZA 6114 Printed Name: Eddie Blakley
Title: MAA 612. Title: VP Sales
Date Signed: I-•M•[9-- Date Signed: Z�
For City,Attest:
By:
Sara L. White, City Clerk
eg(t7
For City, proved as to orm:
By: f
Stephan . Sheets, City Attorney
00378595/ss2
CERTIFICATE OF INTERESTED PARTIES
FORM 1295
10f1
Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY
Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING
1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number:
of business. 2017-211689
PathMark Traffic Products of Texas, Inc.
San Marcos,TX United States Date Filed:
2 Name of governmental entity or state agency that is a party to the contract for which the form is 05/22/2017
being filed.
City of Round Rock Date Acknowledged:
3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a
description of the services,goods,or other property to be provided under the contract.
17-009
Aluminum Sign Blanks, Caps, and Brackets
4 Nature of interest
Name of Interested Party City,State,Country(place of business) (check applicable)
Controlling I Intermediary
5 Check only if there is NO Interested Party.
X
6 AFFIDAVIT I swear,or affirm,under penalty of perjury,that the above disclosure is true and correct.
LINDA M. ANDERSON
'0 State
.osNotary Public,State of Texas
Nom: Comm.Expires 04-28-2020 "
Notary ID 130641368
Signature of authori agent contracting business entity
AFFIX NOTARY STAMP/SEAL ABOVE
rA
Sworn to and subscribed before me,by the said I to �`'�P this the �•J day of 1 " 'Py
20��,to certify which,witness my hand and seal of office.
UKDA- e (fl,rll CV
'NiQc
gnature of offic administering oath Printed name of officer administering oath Title of officer administering oa
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.883
CERTIFICATE OF INTERESTED PARTIES FORM 1295
1 of 1
Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY
Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING
1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number:
of business. 2017-211689
PathMark Traffic Products of Texas, Inc.
San Marcos,TX United States Date Filed:
2 Name of governmental entity or state agency that is a party to the contract for which the form is 05/22/2017
being filed.
City of Round Rock Date Acknowledged:
05/23/2017
3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a
description of the services,goods,or other property to be provided under the contract.
17-009
Aluminum Sign Blanks,Caps, and Brackets
4
Nature of interest
Name of Interested Party City,State,Country(place of business) (check applicable)
Controlling I Intermediary
5 Check only if there is NO Interested Party. ❑
X
6 AFFIDAVIT I swear,or affirm,under penalty of perjury,that the above disclosure is true and correct.
Signature of authorized agent of contracting business entity
AFFIX NOTARY STAMP/SEAL ABOVE
Sworn to and subscribed before me,by the said this the day of
20 ,to certify which,witness my hand and seal of office.
Signature of officer administering oath Printed name of officer administering oath Title of officer administering oath
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.883