Contract - Freightliner of Austin - 5/23/2019CITY OF ROUND ROCK
AGREEMENT FOR PURCHASE OF
OPTIONAL EQUIPMENT, REPAIR PARTS AND REPAIR SERVICES
WITH
FREIGHTLINER OF AUSTIN
THE STATE OF TEXAS §
CITY OF ROUND ROCK §
COUNTY OF WILLIAMSON §
COUNTY OF TRAVIS §
KNOW ALL BY THESE PRESENTS:
THAT THIS AGREEMENT for the purchase of optional equipment, repair parts and
repair services for City vehicles, and for related goods and service (referred to herein as the
"Agreement"), is made and entered into on this the _ day of the month of
2019 by and between the CITY OF ROUND ROCK, a Texas home -rule
municipa ity, whose offices are located at 221 East Main Street, Round Rock, Texas 78664-5299
(referred to herein as the "City"), and FREIGHTLINER OF AUSTIN, whose offices are located
at 1701 Smith Road, Austin, Texas 78721 (referred to herein as "Vendor").
RECITALS:
WHEREAS, City desires to purchase certain goods and services, optional equipment,
repair parts and repair services for City vehicles, and City desires to procure same from Vendor;
and
WHEREAS, City is a member of Buy Board Cooperative Purchasing Program ("Buy
Board") and Vendor is an approved Buy Board vendor through Buy Board Contract #521-16; and
WHEREAS, City desires to purchase said goods and services from Vendor through Buy
Board as set forth herein; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties, and obligations;
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 follow:
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1.01 DEFINITIONS
A. Agreement means the binding legal contract between City and Vendor whereby
City agrees to buy specified goods and services and Vendor is obligated to provide said goods
and services.
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, fres, 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.
2.01 EFFECTIVE DATE, TERM, 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 from the effective date hereof through
November 30, 2019.
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 with Vendor at any time, and
may elect to terminate this Agreement with or without cause or may elect to continue.
3.01 CONTRACT DOCUMENTS AND EXHIBITS
The goods and services which are the subject matter of this Agreement are described in
Exhibit "A," attached hereto and incorporated herein for all purposes, and, together with this
Agreement, comprise the Contract Documents.
2
4.01 ITEMS
A. The goods and services which are the subject matter of this Agreement are
described generally in the attached Exhibit "A."
B. This Agreement shall evidence the entire understanding and agreement between
the parties and shall supersede any prior proposals, correspondence or discussions.
C. Vendor shall satisfactorily provide all deliverables and services described in
Exhibit "A" within the contract term specified. A change in the Scope of Services or any term of
this Agreement, including bonding requirements, must be negotiated and agreed to in all relevant
details, and must be embodied in a valid Supplemental Agreement as described herein.
5.01 COSTS
A. City agrees to pay for supplies during the term of this Agreement at the pricing set
forth in Exhibit "A."
B. The City shall be authorized to pay the Services Provider an amount not -to -
exceed One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) for the term of this
Agreement.
6.01 INVOICES
All invoices shall include, at a minimum, the following information:
A. Name and address of Vendor;
B. Purchase Order Number;
C. Description and quantity of items received or services provided; and
D. Delivery or performance dates.
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 effect 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, payment to
Vendor will be made within thirty (30) days of the day on which City receives the performance,
supplies, materials, equipment, and/or deliverables, or within thirty (30) days of the day on which
the performance of services was complete, or within thirty (30) days of the day on which City
receives a correct invoice for the performance and/or deliverables 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); however, this Policy does not apply to payments made
by City in the event:
A. There is a bona fide dispute between City and Vendor, a contractor, subcontractor
or supplier about the goods delivered or the service performed that cause the
payment to be late; or
B. The terms of a federal contract, grant, regulation, or statute prevent City from
making a timely payment with federal funds; or
C. 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
D. Invoices are not mailed to City in strict accordance with instructions, if any, on the
purchase order or the Agreement or other such contractual agreement.
9.01 GRATUITIES AND BRIBES
City may, by written notice to Vendor, cancel this Agreement without 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 SERVICES PROVIDERS
If Vendor cannot provide the goods as specified, City reserves the right and option to
obtain the products from another supplier or suppliers
4
12.01 CITY'S REPRESENTATIVE
City hereby designates the following representative authorized to act in its behalf with
regard to this Agreement:
Chad McDowell
General Services Director
212 Commerce Cove
Round Rock, Texas 78664
(512)341-3191
cmcdowell@roundrocktexas.gov
13.01 INSURANCE
Vendor shall meet all City of Round Rock Insurance Requirements as set forth at:
http://www.roundrocktexas. og v/wp-content/uploads/2014/12/corr insurance 07 20112 pdf.
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.
15.01 DEFAULT
If Vendor abandons or defaults under this Agreement and is a cause of City purchasing
the specified goods elsewhere, Vendor agrees that it may be charged the difference in cost, if any,
and 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 fully, timely and faithfully perform any of its material obligations under
this Agreement;
B. Fails to provide adequate assurance of performance under the "Right to
Assurance" section herein; or
C. Becomes insolvent or seeks relief under the bankruptcy laws of the United States.
5
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, that being in the
event of a material and substantial breach by City, or by mutual agreement to terminate
evidenced in writing by and between the parties.
D. 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 such notice of termination, Vendor
shall submit a statement showing in detail 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.
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 applicable federal and state laws, the Charter and Ordinances of the City of Round Rock,
as amended, and with all applicable rules and regulations promulgated by local, state and national
boards, bureaus and agencies.
B. In accordance with Chapter 2270, Texas Government Code, a governmental entity
may not enter into a contract with a company for goods or services unless the contract contains
written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott
C
Israel and will not boycott Israel during the term of this contract. The signatory executing this
Agreement on behalf of Vendor verifies Vendor does not boycott Israel and will not boycott
Israel during the term of this Agreement.
19.01 ASSIGNMENT AND DELEGATION
The parties each 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:
1. When delivered personally to the recipient's address as stated in this Agreement;
or
2. 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:
Freightliner of Austin
1701 Smith Road
Austin, Texas 78721
Notice to City:
City Manager Stephan 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.
7
22.01 EXCLUSIVE AGREEMENT
This document, and all appended documents, constitutes the entire Agreement between
Vendor and City. 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
void provision shall be deemed severed from this Agreement, and the balance of this 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 of this section shall not prevent this entire Agreement from
being void should a provision which is of the essence of this Agreement be determined 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
8
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 may be 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.
IN WITNESS WHEREOF, City and Vendor have executed this Agreement on the dates
indicated.
City of Rouiffi Rocky Texas / Freightliner of Austin
By: V
Printed Name:
Title:
Date Signed: _
Attest: ' n
By:
Sara L. White, City Clerk
For City, roved as to Fo fIn:
By: al A'Oir� -
Stepl;af L. Sheets, City Attorney
0
rrimea ivame: _
Title: I/t ce,
Date Signed: 4//Z
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CERTIFICATE OF INTERESTED PARTIES
FORM 1295
1of1
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
Certificate Number:
2019-473405
1 Name of business entity filing form, and the city, state and country of the business entity's place
of business.
Freightliner of Austin
Austin, TX United States
Date Filed:
04/08/2019
Name of governmental entity or state agency that is a parry tot the contract for which the form is
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.
000000
000000
4
Name of Interested Parry
City, State, Country (place of business)
Nature of interest
(check applicable)
Controlling
Intermediary
Hempel, Carlton
Austin, TX United States
X
5 Check only if there is NO Interested Party. ❑
6 UNSWORN DECLARATION
My name is s-! p
and m date of birth is 2 5�
v / � �67
My address is_ /�%n l 5 �-t—L? �
A �-��� � �J7�%Z � t)S&
ice'
(street)
(city) (state) (zip code) (country)
I declare under penalty of perjury that the foregoing is true and correct.
a
Executed in / i�`� t 3 County,
j
State of %e.}.L'13 on the day of 20A-
0 —(month)
(month)(year)
nature of authori d agent of contracting business entity
(Declarant)
r-orms provlaeo oy I exas tmlcs Lommisslon -VvWw.etmcs.state.tx.us Version V1.1.392039c
Forms provided by Texas Ethics Commission www. ethics. state.tx. us Version V1.1.39f8039c
CERTIFICATE OF INTERESTED PARTIES
FORM 1295
1of1
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
Certificate Number:
1
Name of business entity filing form, and the city, state and country of the business entity's place
of business.
2019-473405
Freightliner of Austin
Austin, TX United States
Date Filed:
04/08/2019
2
Name of governmental entity or state agency that is a party to the contract for which the form is
being filed.
City of Round Rock
Date Acknowledged:
04/11/2019
3
Provide the identification number used by the governmental entity or state agency to track or identity the contract, and provide a
description of the services, goods, or other property to be provided under the contract.
000000
000000
4
Name of Interested Party
City, State, Country (place of business)
Nature of interest
(check applicable)
Controlling
Intermediary
Hempel, Carlton
Austin, TX United States
X
5
Check only if there is NO Interested Party. El
6
UNSWORN DECLARATION
My name is and my date of birth is
My address is
(street) (city) (state) (zip code) (country)
I declare under penalty of perjury that the foregoing is true and correct.
Executed in County, State of on the day of , 20
(month) (year)
Signature of authorized agent of contracting business entity
(Declarant)
Forms provided by Texas Ethics Commission www. ethics. state.tx. us Version V1.1.39f8039c