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Agreement to Sell,Deliver and Maintain
�C((SECREIARYH Recycling and Garbage Carts
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This Agreement to Sell,Deliver and Maintain Recycling and Garbage Cans,dated as of May
1, 2018 (the "Agreement") is entered into by and between the City of Fort Worth, a home-rule
municipality located within Denton, Tarrant, Parker and Wise Counties, Texas ("City") and Toter,
LLC.,a North Carolina limited liability company ("Toter") (the "Parties", and each, a "Party").
WHEREAS, the City of Tucson has entered into Contract No. 171717-01 with Toter on
October 31,2017, as amended from time to time, in accordance with the terms thereof ("Master
Agreement") for the purchase of Toter Refuse and Recycling Container Solutions and Related
Products, Equipment and Services ("Product");
WHEREAS, said Master Agreement provides that any and all public agencies, including
state and local governmental entities, that register with the National Intergovernmental Purchasing
Agency ("National IPA") or otherwise execute a Master Intergovernmental Cooperative Purchasing
Agreement may purchase Product at prices stated in the Master Agreement;
WHEREAS,the City has executed a Master Intergovernmental Cooperative Purchasing
Agreement, and City desires to purchase Product from Toter under the Master Agreement;
WHEREAS, Toter desires to sell Product to the City under the Master Agreement; and
WHEREAS, on April 17,2018,the Fort Worth City Council (M&C P-12191) approved
the execution of a contract with Toter LLC., for the purchase,delivery and maintenance of garbage,
recycling and yard waste carts using the National Intergovernmental Purchasing Alliance
Cooperative Purchasing Agreement No. 171717-01 by M&C C-12191 to begin on May 1, 2018 for
one year and four one-year renewals for the following amounts: up to $ 1,444,444.19, up to
$1,506,463.35 for year two; up to $1,556,100.85 for year three; up to $1,610,702.10 for year four;
and up to $1,670,763.48 for year five.
NOW, THEREFORE, in consideration of the payments made hereunder and the mutual
covenants contained in this Agreement, the Parties hereby agree as follows:
Page 1 of 23 OFFICIAL RECORD
CITY SECRETARY
Ts WORTHI,TX
1. Definitions. Capitalized terms used in this Agreement and not otherwise defined herein shall
have the meanings given to them In the Master Agreement.
2. Terms and Conditions. The Master Agreement is incorporated herein by reference as though
fully set forth herein, and the terms and conditions therein shall apply to this Agreement
except as expressly changed or modified by this Agreement. In the event of a conflict
between the provisions of this Agreement and the Master Agreement, the provisions of the
Master Agreement shall prevail.
3. Duties and Responsibilities of Toter.
3.1. Toter agrees to supply, deliver and maintain Products of varying sizes for the collection
of single stream recycling,garbage and yard waste as directed by the City in accordance
with the City's residential collection program. Products are as specified on Schedule 1
attached hereto.
3.2. Toter shall provide delivery of Products to new households, swap out existing Products
with replacement Products, and provide Repair and Maintenance ("R&M") to existing
City Products (including providing repair parts at no additional charge for such existing
City Products,except that Toter shall not be required to provide repair parts at no charge
for repairs or parts based on abuse, neglect, lack of maintenance or failure to follow
service or operating instructions),as requested by the City through the term of this
Agreement,as specified on Schedule 2 hereto.New parts requested to rebrand the carts,
change colors, and otherwise modify rather than repair the carts or as specifically
excepted above, will be sold to the City based on current National IPA pricing.
3.3. Contractor shall track inventory by cart size and ensure carts are ordered and delivered
to maintain sufficient cart stock for uninterrupted service for residents.
4. Term. The Agreement shall begin on May 1, 2018 and will end on April 30, 2019 ("Term
Expiration Date"). The City shall have the right to renew this agreement for four one-year
periods.
5. Delivery to the City of Fort Worth
5.1. Toter shall be responsible for any assembly of Products from the Toter manufacturing
location and delivery of fully assembled Products to each resident as directed by the
City. Price quoted herein shall include all cost of delivery by Toter (or Toter
subcontractor),using Toter's standard methods for shipping such Products. Toter may,
at its sole discretion, make partial shipments of Products to the City. Title to Products
and Risk of Loss to Products shipped passes to the City upon Toter's tender of the
Products to the City upon delivery to location(s) specified by the City.
5.2. Delivery to residences. Unless otherwise expressly agreed to in writing and approved
by both parties, all Cart deliveries will be made within the city limits of the City of
Fort Worth, Texas, as it may be expanded by annexation at the discretion of the City
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Council. The turn-around time for delivery of Cart(s) shall not exceed two business
days from 8:00 am following the date of request.
5.3. For any delivery of a new Cart (distinguished from the replacement of an existing
City cart) to a household, Toter shall deliver the cart in a place easily serviced by the
City,at City's direction. Title to Products and Risk of Loss to Products shipped passes
to the City upon Toter's tender of the Products from the carrier at the City specified
point of delivery.
5.4. With the delivery of the Cart,Toter will attach,in a waterproof container,in a location
on the Cart as specified by City, an informational packet designed and provided by
City which will give instruction to the resident or other user on the proper use and
placement of the Cart for service on pick-up days.
5.5. For new and replacement Cart deliveries made by Toter (or Toter subcontractor),
serial numbers on Products will be recorded into either the City's data base or, using
an interface that ties directly into the City's system/database showing the Carts
delivered to each address by serial number. All data files will be forwarded to the City
of Fort Worth in a format that is compatible with the City's specified software
(currently HEAVITSM/ISM) and will eventually change to Customer Relations
Management Software (CRM).
5.6. Toter shall use the City's software to track cart serial numbers by address, which will
be input at the time of delivery, and to respond to any open work orders or problems
by address and cart serial number during the term of this Agreement. City will make
software available to Toter at no cost to Toter,and will provide all necessary technical
support.
6. Price and Price Adjustment.
6.1. Price. The City shall purchase the Products from Toter at the prices set forth on
Schedule 2 attached hereto ("Prices").
6.2. No Set-off Right. The City shall not, and acknowledges that it will have no right,
under this Agreement, to withhold, offset, recoup or debit any amounts owed (or to
become due and owing)to Toter,whether under this Agreement or otherwise,against
any other amount owed(or to become due and owing)to it by Toter,whether relating
to Toter's breach or non-performance of this Agreement.
7. Termination.
7.1. Toter shall not be deemed to be in default because of any failure to perform under this
Agreement, if the failure arises from causes beyond its control and without the fault
or negligence of Toter. Such causes shall include acts of God, acts of the public
enemy, acts of Government (in either it's sovereign or contractual capacity), acts of
terrorism, fires, flood, epidemics, quarantine restrictions, strikes, freight embargoes,
and unusually severe weather for the area.
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7.2. If the failure to perform is caused by the failure of a Toter subcontractor to perform,
and if such failure was beyond the control of either Toter or the subcontractor,without
either's fault or negligence, Toter shall not be deemed to be in default unless the
subcontracted supplies or services were reasonably obtainable from other sources.
7.3. If Toter fails to begin work herein provided for within the time specified above, or to
complete such work within the time specified above, City shall give Toter written
notice of such failure. Toter shall respond in writing to such notice within five (5)
business days and, in the event that such response does not resolve the issue,
representatives of the City and Toter shall meet within ten (10) business days of the
original notice from the City to discuss and attempt to resolve the issue. In the event
Toter has not cured the failure within thirty days from the date of the original notice
from the City, the City shall have the right to issue a notice of termination of this
Agreement to take charge of and complete the work in such a manner as it may deem
appropriate. If City exceeds the costs detailed in the attached documents, City may
deliver to Toter a written itemized statement of the total excess costs, and Toter shall
reimburse City for such excess costs without delay.
7.4. If at any time during the term of this Agreement the work of Toter fails to meet the
specifications of the Agreement documents, City may notify Toter of the deficiency
in writing. Failure by Toter to correct such deficiency and complete the work required
under this Agreement to the satisfaction of City within thirty (30) days after written
notification shall result in termination of this Agreement. All costs and attorneys' fees
incurred by City in the enforcement of any provision of this Agreement shall be paid
by Toter.
7.5. Either party may also terminate this Agreement with or without cause upon thirty(30)
days written notice to the other party,provided that such termination shall be without
prejudice to any other remedy the parties may have. In the event of termination, any
work in progress shall continue to completion unless otherwise specified in the notice
of termination. The City shall pay for any such work in progress that is completed by
Toter and accepted by the City.
8. Compliance with Laws.
8.1. Toter shall at its own expense at all times comply with all laws applicable to the
manufacture and operation of its business and to this Agreement.Further,the Products
provided hereunder shall without limiting the generality of the foregoing, Toter shall
(a) at its own expense, maintain all certifications, credentials, licenses and permits
necessary to conduct its business relating to the sale or maintenance of the Products,
and (b) shall not knowingly engage in any activity or transaction involving the
Products by way of resale, lease, shipment, use or otherwise, that violates any
applicable law.
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subcontractors shall be subject to the minimum requirements identified above.
F. EXCEPTIONS: In the event the Contractor or sub-contractor(s) is/are a public entity,
then the Insurance Requirements shall not apply. Such public entity shall provide a
Certificate of Self-Insurance.
G. SPECIAL CONDITIONS:
1. The Comprehensive General Liability and Automotive Insurance will
include the City of Fort Worth as an additional insured with respect to
liability arising out of the performance of this Contract.
2. Policies will not be cancelled or reduced in coverage without ten (10)
days written notice to the City of Fort Worth, Purchasing Department, 200
Texas Street,Fort Worth, TX 76102.Deductibles will be stated on the
certificate of insurance and are subject to the review and approval of the
City.
3. THE CITY RESERVES THE RIGHT TO CHANGE OR MODIFY
LIMITS OF LIABILITY OR COVERAGES FOR CONTRACTS ON AN
UNUSUAL SIZE OR RISK.
4. The City of Fort Worth,their respective officers, directors, agents and
employees are included as additional insured in accordance with the policy
provisions of the general liability and automobile liability policies. Excess
liability policy is to follow form. A waiver of subrogation is granted in
favor of certificate holder in accordance with the policy provisions of the
General Liability policy.
5. ADDITIONAL INSURANCE REQUIREMENTS: Policies shall be
endorsed to include the following provisions:
a) A waiver of subrogation endorsement in favor of the City of Fort Worth for
losses arising from work performed by or on behalf of the Contractor
(including Worker's Compensation).
b) The insurance afforded the contractor shall be primary insurance and that
any insurance carried by the City of Tucson and its agents, officials or
employees shall be excess and not contributory.
c) Coverage provided by the Contractor shall not be limited to the liability
assumed under the indemnification provisions of this Contract.
9. Warranty and Remedy.
9.1. Limited Product Warranty; Exclusive Remedx. Toter's Limited Warranties,
Disclaimers of Warranties, Limitation of Liabilities and Remedies and Limited
Warranty Periods are collectively covered under the Master Agreement, and
incorporated by reference herein. There are no warranties, express or implied, which
extend beyond the separate written warranty referenced herein.
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8.2. The City shall comply with all laws applicable to this Agreement and the City's
performance of its obligations hereunder. Without limiting the generality of the
foregoing,the City shall(a)at its own expense,maintain all certifications,credentials,
licenses and permits necessary to conduct its business relating to the purchase or use
of the Products and (b) shall not knowingly engage in any activity or transaction
involving the Products by way of resale, lease, shipment, use or otherwise, that
violates any applicable law.
8.3 Prohibition on Contracting With Companies that Boycott Israel. Toter acknowledges
that in accordance with Chapter 2270 of the Texas Government Code, the City is
prohibited from entering into a contract with a company for goods or services unless
the contract contains a written verification from the company that it: (1) does not
boycott Israel; and (2) will not boycott Israel during the term of the contract. The
terms"boycott Israel"and"company"shall have the meanings ascribed to those terms
in Section 808.001 of the Texas Government Code. By signing this contract, Toter
certifies that Seller's signature provides written verification to the City that Toter: (1)
does not boycott Israel; and (2)will not boycott Israel during the term of the contract
8.4 Insurance Requirements. In conjunction with any work or services performed for
the City of Fort Worth, Toter must furnish evidence of insurance in limits and
coverage as follows:
COVERAGE LIMITS OF
I. Commercial General Liability:
Policy shall include Bodily Injury, Property Damage, Personal
Iniury and Broad Form Contractual Liability
Each Occurrence $1.000.000
General Aggregate $2,000,000
Products & Completed Operations Aggregate $2,000,000
Personal and Advertising Injury $1,000,000
Blanket Contractual Liability $1,000,000
II. Commercial Automobile Liability
Policy shall include Bodily Injury and Property Damage, for any owned
Hired, and/or Non-owned vehicles used in the operation, installation an
maintenance of facilities under this agreement.
Combined Single Limit
III. Workers' Compensation (applicable to the State of Texas
Per Occurrence Statutory
Employer's Liability $1,000,000
Disease Each Employee $1,000,000
Disease Policy Limit $1,000,000
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A. ADDITIONAL INSURANCE REQUIREMENTS: Policies shall be endorsed to
include the following provisions:
1. A waiver of subrogation endorsement in favor of the City of Fort Worth, for
losses arising from work performed by or on behalf of the Contractor
(including Worker's Compensation).
2. The insurance afforded the contractor shall be primary insurance and that any
insurance carried by the City of Fort Worth and its agents, officials or
employees shall be excess and not contributory.
3. Coverage provided by the Contractor shall not be limited to the liability
assumed under the indemnification provisions of this Contract.
B. NOTICE OF COVERAGE MODIFICATIONS: Any changes material to compliance
with this contract in the insurance policies above shall require 10 days written notice
from the Contractor to the City of Fort Worth. Such notice shall be sent directly to the
Purchasing Department.
C. ACCEPTABILITY OF INSURERS: Contractors insurance shall have an "A.M.
Best" rating of not less than ANII. The City of Fort Worth in no way warrants that
the required minimum insurer rating is sufficient to protect the Contractor from
potential insurer insolvency.
D. VERIFICATION OF COVERAGE: Contractor shall furnish the City of Fort Worth
with certificates of insurance (ACORD form or equivalent approved by the City of
Fort Worth)as required by this Contract. The certificates for each insurance policy are
to be signed by an authorized representative.
All certificates and endorsements are to be received and approved by the City of
Fort Worth before work commences. Each insurance policy required by this Contract
must be in effect at or prior to commencement of work and remain in effect for
the duration of the contract and two (2) years after completion. Failure to maintain
the insurance policies as required by this Contract, or to provide evidence of renewal
upon the City's request, is a material breach of contract.
All certificates required by this Contract shall be sent directly to the Purchasing
Department.
The City of Fort Worth project/contract number and project description shall be
noted on the certificate of insurance. The City of Fort Worth reserves the right to
require complete copies of all insurance policies required by this Contract at any
time.
E. SUBCONTRACTORS: Contractors' certificate(s) shall include all subcontractors as
insureds under its policies or Contractor shall furnish to the City of Fort Worth
separate certificates and endorsements for each subcontractor. All coverages for
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9.2. Inspection. The City shall have the right to inspect Products received under this
Agreement upon receipt of such Products ("Inspection Period"), and either accept or
reject such Products that are Nonconforming Goods.The City shall be deemed to have
accepted Products unless it provides Toter with written notice of any Nonconforming
Goods within 10 days following the Inspection Period, stating with specificity all
defects and nonconformities, and furnishing such other written evidence or other
documentation as may be reasonably required by Toter. If after acceptance the City
notifies Toter of any Nonconforming Goods, Toter shall determine, at its reasonable
discretion, whether the Products are Nonconforming Goods. If Toter determines that
such Products are Nonconforming Goods, Toter shall replace such Nonconforming
Goods with conforming Products.
10. INDEMNIFICATION.
10.1. INDEMNIFICATION. SUBJECT TO THE TERMS AND CONDITIONS OF
THIS AGREEMENT, TOTER SHALL INDEMNIFY, DEFEND AND HOLD
HARMLESS THE CITY AND ITS REPRESENTATIVES, OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS AND
PERMITTED ASSIGNS AGAINST ANY AND ALL LOSSES, DAMAGES,
LIABILITIES, DEFICIENCIES, CLAIMS, ACTIONS, JUDGMENTS,
SETTLEMENTS, INTEREST, AWARDS, PENALTIES, FINES, COSTS, OR
EXPENSES OF WHATEVER KIND, INCLUDING REASONABLE
ATTORNEYS' FEES, FEES AND THE COSTS OF ENFORCING ANY
RIGHT TO INDEMNIFICATION UNDER THIS AGREEMENT, AND THE
COST OF PURSUING ANY INSURANCE PROVIDERS INCURRED
AGAINST THE CITY IN A FINAL NON-APPEALABLE JUDGMENT
(COLLECTIVELY, "LOSSES"), RELATING TO ANY THIRD-PARTY
CLAIM OR ANY DIRECT CLAIM AGAINST TOTER ALLEGING:
10.1.1. material breach or non-fulfillment of any representation, warranty or covenant
under this Agreement by Toter or Toter's personnel;
10.1.2. any negligent or more culpable act or omission of Toter or its personnel
(including any recklessness or willful misconduct) in connection with the
performance of this Agreement;
10.1.3. any bodily injury, death of any Person or damage to real or tangible personal
property caused by the willful or negligent acts or omissions of Toter or its
personnel; or
10.1.4. any failure by Toter or its personnel to materially comply with any applicable
Laws.
10.1.5. Notwithstanding anything to the contrary in this Agreement, this Section does
not apply to any claim(whether direct or indirect)for which a sole or exclusive
remedy is provided for under another section of this Agreement.
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10.2. Exceptions and Limitations on Indemnification. Notwithstanding anything to the
contrary in this Agreement, Toter is not obligated to indemnify or defend (if
applicable)the City against a claim or corresponding Loss if it arises out of or results
from, the City or its personnel:
10.2.1. negligence or more culpable act or omission (including recklessness or willful
misconduct);
10.2.2. bad faith failure to materially comply with any of its obligations set forth in this
Agreement; or
10.2.3. use of the Goods in any manner not otherwise authorized under this Agreement
or that does not materially conform with any usage instructions/
guidelines/specifications provided by Toter.
10.3. Limitation of Liability. NO LIABILITY FOR CONSEOUENTIAL OR
INDIRECT DAMAGES. EXCEPT FOR OBLIGATIONS TO MAKE
PAYMENT UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER
PARTY OR THEIR REPRESENTATIVES BE LIABLE FOR
CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY,
PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES
OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY
BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER
SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT THE
OTHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES AND(C)THE LEGAL OR EQUITABLE THEORY(CONTRACT,
TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND
NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER
REMEDY OF ITS ESSENTIAL PURPOSE.
11. Confidentiality and Restrictions.
11.1. Scope of Confidential Information. From time to time during the Term, either Party
(as the 'Disclosing.Ply") may disclose or make available to the other Party (as the
"Receiving Party_") information about its business affairs, goods and services,
confidential information and materials comprising or relating to intellectual property
rights, trade secrets, third-party confidential information and other sensitive or
proprietary information. Such information,whether oral or written,electronic or other
form or media, shall be marked, designated or otherwise identified as "confidential,"
and is collectively referred to as "Confidential Information" hereunder.
Notwithstanding the foregoing, Confidential Information does not include
information that, at the time of disclosure and as established by documentary
evidence:
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11.1.1. is or becomes generally available to and known by the public other than as a
result of,directly or indirectly,any breach of this Section by the Receiving Party
or any of Its Representatives;
11.1.2. is or becomes available to the Receiving Party on a non-confidential basis from
a third-party source,provided that such third party is not and was not prohibited
from disclosing such Confidential Information;
11.1.3. was known by or in the possession of the Receiving Party or its Representatives
prior to being disclosed by or on behalf of the Disclosing Party;
11.1.4. was or is independently developed by the Receiving Party without reference to
or use of, in whole or in part, any of the Disclosing Party's Confidential
Information; or
11.1.5. is required to be disclosed pursuant to applicable law.
11.2. Protection of Confidential Information. The Receiving Party shall, during the Term
and for three(3) years thereafter:
11.2.1. protect and safeguard the confidentiality of the Disclosing Party's Confidential
Information with at least the same degree of care as the Receiving Party would
protect its own Confidential Information;
11.2.2. not use the Disclosing Party's Confidential Information, or permit it to be
accessed or used,for any purpose other than to exercise its rights or perform its
obligations under this Agreement or unless required by the Texas Public
Information Act; and
11.2.3. not disclose any such Confidential Information to any Person, except to the
Receiving Party's Representatives who need to know the Confidential
Information to assist the Receiving Party, or act on its behalf, to exercise its
rights or perform its obligations under this Agreement or unless required by the
Texas Public Information Act.
11.3. Toter recognizes that the City is subject to Chapter 552 of the Texas Government
Code,the Texas Public information Act. The City agrees to inform Toter of a request
of Confidential Information made under the Act, and Toter shall be responsible for
petitioning the Texas Attorney General for permission not to disclose its proprietary
information.
11.4. On the expiration or earlier termination of this Agreement, at the Disclosing Party's
written request, the Receiving Party and its representatives shall, pursuant herein,
promptly return or destroy (at the discretion of Disclosing Party) all Confidential
Information and copies thereof that it has received under this Agreement .
12. Miscellaneous.
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12.1. Relationship of the Parties. The relationship between Toter and the City is solely that
of vendor and vendee, and are independent contracting parties. Nothing in this
Agreement creates any agency, joint venture, partnership or other form of joint
enterprise, employment or fiduciary relationship between the Parties. Neither Party
has any express or implied right or authority to assume or create any obligations on
behalf of or in the name of the other Party or to bind the other Party to any contract,
agreement or undertaking with any third party.
12.2. Entire Agreement. The Parties intend for the express terms and conditions contained
in this Agreement(including any Schedules hereto)to exclusively govern and control
each of the Parties' respective rights and obligations regarding the subject matter of
this Agreement,and this Agreement is expressly limited to such terms and conditions.
Without limitation of the foregoing, any additional, contrary or different terms
contained in any other request or communication by the City pertaining to the sale of
Products by Toter, and any attempt to modify, supersede, supplement or otherwise
alter this Agreement, will not modify this Agreement or be binding on the Parties
unless such terms have been fully approved in a signed writing by authorized
representatives of both Parties. This Agreement, including and together with any
related exhibits and schedules, constitutes the sole and entire agreement of the Parties
with respect to the subject matter contained herein and therein, and supersedes all
prior and contemporaneous understandings, agreements, representations and
warranties, both written and oral, with respect to such subject matter.
12.3. Survival; Statute of Limitations. Subject to the limitations and other provisions of this
Agreement: (a)the representations and warranties of the Parties contained herein shall
survive the expiration or earlier termination of this Agreement for a period of 12
months after such expiration or termination; and (b) any provision that, in order to
give proper effect to its intent, should survive such expiration or termination, will
survive the expiration or earlier termination of this Agreement for the period specified
therein. All other provisions of this Agreement shall not survive the expiration or
earlier termination of this Agreement.
12.4. Notices. All notices, requests, consents, claims, demands, waivers and other
communications under this Agreement (each, a "Notice") must be in writing and
addressed to the other Party at its address set forth below (or to such other address
that the receiving Party may designate from time to time in accordance with this
section). All Notices must be delivered by personal delivery by a nationally
recognized overnight courier, or certified or registered mail (in each case, return
receipt requested, postage prepaid).
Notice to Toter: 841 Meacham Road,
Statesville,NC 28677
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Attention: Kellie K. Clark,
Sr. Manager, Bids/Contracts
Email: toterbids(a�toter.com
Fax: 704-878-0734
Phone: 800-424-0422 or 704-872-8171,Ext
257
Copy to: Richard T. Sedory, General Counsel
Toter, LLC
6525 Morrison Boulevard, Ste. 300
Charlotte,NC 28211
Email: resedory@wastequip.com
Fax: 855-817-6004
Phone: 704-936-5609
Notice to City of Fort Worth: 4100 Columbus Trail
Fort Worth, TX 76133
Attention: Robert Smouse
Assistant Director, Code Compliance
Department Solid Waste Services Division
Email: Robert.Smouse@fortworthtexas.gov
Fax: 817-392-5170
Phone: 817-392-5153
Copy to: 200 Texas
Fort Worth, Texas 76102
Attention: City Manager
12.5. Headings. The headings in this Agreement are for reference only and do not affect the
interpretation of this Agreement.
12.6. Severability. If any term or provision of this Agreement is invalid, illegal or
unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does
not affect any other term or provision of this Agreement or invalidate or render
unenforceable such term or provision in any other jurisdiction. Upon a determination
that any term or provision is invalid, illegal or unenforceable, the Parties shall
negotiate in good faith to modify this Agreement to effect the original intent of the
Parties as closely as possible in order that the transactions contemplated hereby be
consummated as originally contemplated to the greatest extent possible.
12.7. Amendment and Modification. No amendment to or rescission, termination or
discharge of this Agreement is effective unless it is in writing, identified as an
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amendment to, or rescission,termination or discharge of this Agreement and signed
by an authorized Representative of each Party.
12.8. Waiver.
12.8.1. No waiver under this Agreement is effective unless it is in writing and signed
by the Party waiving its right.
12.8.2. Any waiver authorized on one occasion is effective only in that instance and
only for the purpose stated, and does not operate as a waiver on any future
occasion unless specifically stated.
12.8.3. None of the following constitutes a waiver or estoppel of any right, remedy,
power, privilege or condition arising from this Agreement: (i) any failure or
delay in exercising any right, remedy, power or privilege or in enforcing any
condition under this Agreement; or(ii) any act, omission or course of dealing
between the Parties.
12.9. Cumulative Remedies. All rights and remedies provided in this Agreement are
cumulative and not exclusive, and the exercise by either Party of any right or remedy
does not preclude the exercise of any other rights or remedies that may now or
subsequently be available at law,in equity,by statute,in any other agreement between
the Parties or otherwise.
12.10.Assignment.A Party may not assign any of its rights or delegate any of its obligations
under this Agreement without the prior written consent of the other Party.
Notwithstanding,a Party may assign any of its rights or delegate any of its obligations
under this Agreement, without any prior consent, to (a) an affiliate of the
assigning/delegating Party, (b) a successor of the assigning/delegating Party, by
consolidation,merger or operation of law,(c)any Person acquiring all or substantially
all of assigning/delegating Party's assets; providing, in each instance, the
assigning/delegating Party shall (i) notify the other Party of such instance, within a
reasonable time thereafter, and (ii) notify the permitted successor or assignee of the
respective duties and obligations hereunder. Any purported assignment or delegation
in violation of this Section is null and void.No assignment or delegation relieves the
assigning or delegating Party of any of its obligations under this Agreement.
12.11.Successors and Assigns. This Agreement is binding on and inures to the benefit of the
Parties and their respective permitted successors and permitted assigns.
12.12.No Third-Party Beneficiaries. This Agreement benefits solely the parties to this
Agreement and their respective permitted successors and permitted assigns and
nothing in this Agreement, express or implied, confers on any other Person any legal
or equitable right, benefit or remedy of any nature whatsoever under or by reason of
this Agreement.
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12.13.Dispute Resolution.Any dispute,controversy or claim arising out of or relating to this
Agreement, or the breach, termination or invalidity hereof(each, a "Dispute"), shall
be submitted for negotiation and resolution to the President of the Toter Products
Division (or to such other person of equivalent or superior position designated by
Toter in a written notice to the City) and the City Manager and the City Attorney (or
to such other person of equivalent or superior position designated by city in a written
notice to Toter), by delivery of written Notice (each, a "Dispute Notice") from either
of the Parties to the other Party. Such persons, or their designees shall negotiate in
good faith to resolve the Dispute. If the Parties are unable to resolve any Dispute
within 60 days after delivery of the applicable Dispute Notice, either Party may file
suit in a court of competent jurisdiction in accordance with the provisions herein.
Nothing herein shall require either party to provide more than the time required in
section 6 for termination of the Agreement.
12.14.Governing Law. This Agreement, including all exhibits, schedules, attachments and
appendices attached hereto and thereto, and all matters arising out of or relating to
this Agreement, are governed by, and construed in accordance with, the Laws of the
State of Texas, United States of America, without regard to the conflict of law's
provisions thereof.The Parties agree that the United Nations Convention on Contracts
for the International Sale of Goods does not apply to this Agreement.
12.15.Counterparts. This Agreement may be executed in counterparts, each of which is
deemed an original, but all of which together are deemed to be one and the same
agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other
means of electronic transmission is deemed to have the same legal effect as delivery
of an original signed copy of this Agreement.
12.16.Force Majeure. A Party shall not be liable or responsible to the other Party, nor be
deemed to have defaulted under or breached this Agreement, for any failure or delay
in fulfilling or performing any term of this Agreement, if such failure or delay is
caused by or results from acts beyond such Party's control,including: (a)acts of nature
not normal for the geographical area of: (1) for the City: Fort Worth, Texas, or (2)
for Toter: (i)Toter's manufacturing facilities; (b)flood,fire,earthquake or explosion;
(c) war, invasion,hostilities (whether war is declared or not),terrorist threats or acts,
riot or other civil unrest;(d)requirements of Law;(e)actions,embargoes or blockades
in effect on or after the date of this Agreement; (f) action by any Governmental
Authority (whether or not having the effect of Law); (g) national or regional
emergency;(h)strikes,labor stoppages or slowdowns or other Industrial disturbances;
(i) shortages of or delays in receiving raw materials or components; or 0) shortage of
adequate power or transportation facilities (each, a "Force Majeure Event").
12.17.Interpretations and Definitions.
12.17.1.For purposes of this Agreement: (a) the words "include," "includes" and
"including" are deemed to be followed by the words "without limitation"; (b)
Page 14 of 23
the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby,"
"hereto" and "hereunder" refer to this Agreement as a whole; (d) words
denoting the singular have a comparable meaning when used in the plural, and
vice-versa; and (e) words denoting any gender include all genders. Unless the
context otherwise requires, references in this Agreement: (x) to sections,
exhibits, schedules, attachments and appendices mean the sections of, and
exhibits, schedules, attachments and appendices attached to, this Agreement;
(y) to an agreement, instrument or other document means such agreement,
instrument or other document as amended, supplemented and modified from
time to time to the extent permitted by the provisions thereof;and(z)to a statute
means such statute as amended from time to time and includes any successor
legislation thereto and any regulations promulgated thereunder. The Parties
drafted this Agreement without regard to any presumption or rule requiring
construction or interpretation against the Party drafting an instrument or
causing any instrument to be drafted. The exhibits, schedules, attachments and
appendices referred to herein are an integral part of this Agreement to the same
extent as if they were set forth verbatim herein.
IN WITNESS WHEREOF, in consideration of the mutual covenants, terms and conditions
set forth herein, and for other good and valuable consideration,the receipt and sufficiency of which
are hereby acknowledged, the Parties hereto have executed this Agreement as of the last date first
set forth below("Effective Date").
{Signature Page Follows}
Page 15 of 23
Toter, LLC City of Fort Worth
t l
Nam'. �4F�����.•- , Name: Valerie Washington
Title: -mac - G �— Assistant City Manager
Date: > 7 ' Date:
Approved as to Form and Legality
By:
Christa Lopez-Reynolds
Sr. Assistant City Attorney
�4•FORT�y ATTEST
Mary Kayser
"CXAS' City Secretary
Approved by M&C - 19,A
a nasi s: ► 3�4g5 tom
APPR RE MMENDED
Br n Benne
Director, Code Compliance
CONTRACT COMPLIANCE
MANAGER
By signing,I acknowledge that I am the
person responsible for the monitoring
and administration of this contract,
including ensuring all per performance
and reporting requirements
�0_ �
Name: ic.
Title: (;c
3p
OFFICIAL RECORD page 16 of 23
CITY SECRETARY
11.WORT "�'�
SCHEDULE 1 PRODUCTS
PRODUCT DESCRIPTION
Model 79296—Toter 96 Gallon EVR II Universal/Nestable Cart
• Recycling Cart Body Color-769 Navy
Granite
• Lid Color-715 Hawaiian Blue
• Custom Serial Number hot stamped onto front of cart
body
• Body Hot Stamp on both sides (existing)
• Lid Hot Stamp(existing)
Lid
• 1/3 Assembled with
• Stop Bar and Axle Factory Installed
• Wheels - 10in Sunburst
• Warrant - 12 Yrs; Cart Body, All other components 10 Yrs
Model 79296-Toter 96 Gallon EVR II
Universal/Nestable Cart
• Garbage Cart Body Color-279
Brownstone
• Lid Color-200 Black
• Custom Serial Number hot stamped onto front of cart body in
WhiteBody Hot Stamp on both sides (existing)
• Lid Hot Stamp(existing)
Lid
• 1/3 Assembled with
• Stop Bar and Axle Factory Installed
• Wheels - 10in Sunburst
• Warrant - 12 Yrs; Cart Body, All other components 10 Yrs
Model 79296—Toter 96 Gallon EVR II
Universal/Nestable Cart
• Yard Waste Cart Body Color-940 Kelly
Green
• LidColor-940 Kelly Green
• Custom Serial Number hot stamped onto front of cart body In
WhiteBody Hot Stamp on both sides (existing)
• Lid Hot Stamp(existing) Lid Insert
• 1/3 Assembled with
• Stop Bar and Axle Factory Installed
• Wheels - 10in Sunburst
Page 17 of 23
• Warranty– 12 Yrs; Cart Body, All other components 10 Yrs
Mode179264—Toter 64 Gallon EVR II Universal/Nestable Cart
• RecyclingCart Body Color-769 Navy
Granite
• Lid Color–715 Hawaiian Blue
• Custom Serial Number hot stamped onto front of cart
body
• Body Hot Stamp on both sides (existing)
• Lid Hot Stamp(existing)
Lid
• 1/3 Assembled with
• Stop Bar and Axle Factory Installed
• Wheels - I Oin Sunburst
• Warrant – 12 Yrs; Cart Body, All other components 10 Yrs
Model 79264—Toter 64 Gallon EVR 11 Universal/Nestable Cart
• Garbage Cart Body Color-279
Brownstone
• Lid Color–200 Black
• Custom Serial Number hot stamped onto front of cart body in
WhiteBody Hot Stamp on both sides (existing)
• Lid Hot Stamp(existing)
Lid
• 1/3 Assembled with
• Stop Bar and Axle Factory Installed
• Wheels - IOin Sunburst
• Warrant – 12 Yrs; Cart Body, All other components 10 Yrs
Model 79232—Toter 32 Gallon EVR II Universal/Nestable Cart
• RecyclingCart Body Color-769 Navy
Granite
• LidColor-715 Hawaiian Blue
• Custom Serial Number hot stamped onto front of cart
body
• Body Hot Stamp on both sides (existing)
• Lid Hot Stamp(existing)
Lid
• 1/3 Assembled with
• Stop Bar and Axle Factory Installed
• Wheels - 8in Sunburst
• Warrant – 12 Yrs; Cart Body, All other components 10 Yrs
Page 18 of 23
Model 7923 2—Toter 32 Gallon EVR II Universal/Nestable Cart
Garbage Cart Body Color-279
Brownstone
• LidColor-200Black
• Custom Serial Number hot stamped onto front of cart body in
WhiteBody Hot Stamp on both sides (existing)
• Lid Hot Stamp(existing)
Lid
0 1/3 Assembled with
Stop Bar and Axle Factory Installed
Wheels - 8in Sunburst
• Warrant – 12 Yrs; Cart Body,All other components 10 Yrs
Optional: Op-IML-3 -- Lid Graphic (IML) -3.75" x 11.25" -- IML for 96g and 64g Trash and
Recycling Lids
Cart Specifications
The following specifications represent the minimum standards.Acceptability of
alternative specifications is the sole determination of the City.
• The cart shall be compatible with both standard American semi-automated, bar-locking
lifters (ANSI type B) as well as automated arm lifters (ANSI type G).
• The wheeled carts are designed to contain recycling and solid waste materials
including, but not limited to,pa per, fibers, glass, garbage, rubbish, and yard
waste/clippings.
• The cart is provided with adequate wheels (minimum 10" diameter for 96 and 64
gallon carts, and 8" for 32 gallon carts with 5/8 inch diameter solid axle) and hand
les so that it can be pushed or pulled with little effort.
• The body of the cart is composed of recyclable medium density polyethylene that has
been either injection or rotationally molded with a minim um thickness of 0.130
inches.
• The capacity of the carts is 32, 48, 64 and 96 U.S. gallons.
• The cart is designed to accommodate a load of three hundred thirty five (335)
pounds for a 96 gallon cart, excluding the weight of the cart.
• The cart has wheels and axles that are designed to support the weight of the cart and its
contents up to 335 pounds for a 96 gallon cart.
- The cart is made with plastic material using hot melt compounding that is specifically
prepared to be colorfast so that the carts do not alter appreciably in normal use.
• The carts are Blue, Brown, Green or other color as directed by the City, and are
stabilized against ultraviolet light attack with UV 531 or equivalent.
• The lid of the cart is designed to facilitate water run-off.
• The design of the cart lid shall prevent the lid from being flung open by the wind.
• The lid is held closed by its weight only. No latches are used or required.
• The lid has handles to allow opening without having to touch the bottom edge of the
Page 29 of 23
lid.
• The cart, when empty, will not overturn when the lid is thrown fully open.
• The lid will have a hot stamp informational message educational message, and/or In-
Mold Label (IML)option as needed by the City.
• The cart is designed to prevent being turned over by winds of up to 40 mph in any
direction.
• The cart will be hot stamped with "PROPERTY OF City of Fort Worth", and a Logo
and informational message as designated by the City, on the side of the cart. Stamping
will be done in 1" white block letters. SERIAL NUMBERS shall be hot stamped on the
cart body using a numbering system of the City's choosing.
Page 20 of 23
Schedule
2
REPAIR, MAINTENANCE AND PRICE
COST/RESINADJUSTMENTS MODEL
Purchase Price of Products: Including freight to City staging area:
Price per Cart —32 Gallon $36.39
Price per Cart —64 Gallon $40.14
Price per Cart —96 Gallon $47.08
Assembly and Delivery Charge per Cart No charge
Additional Parts: City may request In Mold Labels(IML)and/or a second Hot Stamp area for
the cart lids which will allow for color imprints and additional educational purposes.
These may or may not be utilized and will be ordered separately by the City.
Price per IML:
Price per Cart-64 Gallon $1.66
Price per Cart-96 Gallon $1.66
Base Cart Pricing will be adjusted semi-annually per the following Cart Rate
Adjustment Model:
1. Total Resin Weight of Products (body and lid only)
Mode179296-96 gallon cart—30.3 pounds resinweight
Model 79264 - 64 gallon cart — 23.3 resin
weight
Mode176532- 32 gallon cart -16.6 pounds resin weight
2. Cost of Resin Per Pound on which Bidder's Contract Is based $0.605 per pound
at date of May 7, 2018 (per Plastic News).
3. Documentation of an independent resin index
Toter will use Plastics News resin index for LLDPE (Butene-1 commoner Extrusion liner film,
Annual volumes greater than 20 million pounds, Average). Please note that Toter reserves the
Toter/Ft.Worth Agreement 21 May 1, 2018
right to use HIS Publication, North America Polyethylene Market Report(LLDPE Resins,
Butene-1,Large Volume, Average Price Per Pound), and/or actual supplier communications to
document price adjustments.
Formula:
Prices will be held firm for 6 months from the Effective Date of the
Agreement. The below example shows the calculations for price
adjustments:
Exam2le for semi-annual Price Adjustments (period= 6 months):
Period 2 Price = (Resin Weight per Cart x Resin Price Change) +Period
One (original contract price) Cart Price
Period 3 Price=(Resin Weight per Cart x Resin Price Change)+
Period Two Cart Price
Repair and Maintenance Cost - Maintenance, repair, replacement and
distribution of City Products for term of Agreement (including all Toter
carts purchased prior to April 30, 2018) price per household will be based
on residents with active sanitation accounts. This fee will cover all cost
associated with picking up damaged Products, warranting as specified,
replacement parts, repairing Products, replacing Products and delivering
repaired, replacement, or new Products to residents. The City will retain
ownership of all Products supplied under this Agreement. The turn-around
time for the maintenance, repair, or replacement of a Cart shall not exceed
two business days from 8:00 am the day after the date a request for service
is received. Maintenance and repair shall not interfere with normal collection
of the Cart.
Repair and Maintenance Cost per household per month at contract start date:
$0.14657. Cost for Repair and Maintenance will escalate at month end one
year after contract is fully executed by $0.0033 per cart per month and
annually by $0.0033 per cart per month at the anniversary date for the term
of this contract.
Cost of each City Requested Cart Change-Out per Order $ 5.00
Cost for cleaning of Products (Products previously used by residents) $ 2.00
Facility Rent-Toter will pay rent to City in the amount of$2,000 per
month for use of City facility and staging area for Products. Rental fee will
Toter/Ft.Worth Agreement 22 May 1,2018
be reflected in monthly invoice as credit to City.
Toter will provide cleaning of Products returned to staging area after swaps.
The City will provide access to a wash bay(s) located near designated staging
area for Toter(or Subcontractor,as defined herein)use. The City agrees that
the wash bay(s)are appropriate for the discharge of the water used to wash the
Products and that it will not cause a violation of U.S.and State of Texas
environmental laws for the discharge of s u c h water. Toter agrees that it shall
not use or cause the use of any chemicals to wash the Products besides Pine
Sol,Dawn Detergent, Bleach,Mean Green Degreaser or a mixture of these
products (or similar products)without the City's written consent. In the event
that a discharge permit for such wastewater becomes necessary,the City and
Toter agree to work together in good faith to develop mutually agreeable
options and alternatives to the wash bay(s).
Toter/Ft.Worth Agreement 23 May 1, 2018
Contract Compliance Manager: Toter, LLC; Purchase, Delivery and Maintenance of Solid
Waste Carts; authorized by M&C P-12191
By signing, I acknowledge that I am the person responsible for the monitoring and
administration of this contract, including ensuring all performance and reporting requirements.
Val Familo
Name fof Employee
C�
ignature
Senior Contract Compliance Specialist_
Title
M&C Review Page I of 2
Official site of the City of Fort Worth,Texas
CITY COUNCIL AGENDA FoR_ i>I
Irl—
COUNCIL ACTION: Approved on 4/17/2018
DATE: 4/17/2018 REFERENCE NO.: ""P-12191 LOG NAME: 13YARD
CARTS
CODE: P TYPE: CONSENT PUBLIC HEARING: NO
SUBJECT: Authorize Purchase Agreement with Toter, LLC for the Purchase, Delivery and
Maintenance of Garbage, Recycling and Yard Waste Carts Using a National
Intergovernmental Purchasing Alliance Cooperative Agreement in an Amount Up to
$1,444,444.19 for the First Year and Authorize Four One-Year Renewals (ALL COUNCIL
DISTRICTS)
RECOMMENDATION:
It is recommended that the City Council authorize a Purchase Agreement with Toter, LLC for the purchase,
delivery and maintenance of garbage, recycling and yard waste carts using National Intergovernmental
Purchasing Alliance Cooperative Agreement No. 171717-01 in an amount up to $1,444,444.19 for the first
year and authorize four one-year renewals for the following amounts: year two amount of$1,506,463.35;
year three amount of$1,556,100.85; year four amount of$1,610,702.10; and year five Amount of
$1,670,763.48.
DISCUSSION:
Since November 2002, the City of Fort Worth has contracted with Toter, LLC (Toter) (now wholly owned by
Wastequip, LLC) for the purchase, delivery, maintenance and replacement of recycling and garbage carts
(and later to include yard carts) for Fort Worth residents. In 2014, in order to maintain consistency in the
cart size and appearance and also to ensure efficient repair and replacement of cart parts,the City
continued its contractual relationship with Toter by entering into a four-year contract with Toter using the
National Intergovernmental Purchasing Alliance Cooperative Agreement No. 12057. The current
Agreement with Toter will expire on April 30, 2018.
The Solid Waste Division of Code Compliance requested that Purchasing staff assist in procuring a new
contract for the purchase, delivery, repair, maintenance and replacement of recycling, garbage and yard
carts. In addition, the new Agreement will require that the selected vendor maintain approximately 480,000
carts already in the City's inventory. Staff anticipates purchasing approximately 12,000 new carts per year.
Purchasing staff solicited quotes from three vendors from three Cooperatives. The quotes are as follows:
Toter, LLC NIPA Contract 171717-01 $1,444,444.19
Box Gang Manufacturing BuyBoard Contract 525-17 Can provide carts, however
cannot maintain, service or
replace carts
Waste ui , LLC NIJPA Contract 41217 $1,555,800.95
Purchasing staff has reviewed the quotes and recommends awarding an Agreement to Toter, LLC, under
National Intergovenmental Purchasing Alliance Cooperative No. 171717-01 which expires on November 1,
2022. Under an Agreement with Toter, LLC, the service levels will remain consistent with current service
levels. Staff recommends awarding a one-year Agreement for$1,444,444.19 with four optional one-year
renewal terms.
RENEWAL OPTIONS -This Agreement may be renewed for up to four additional one-year terms at the
City's option for the following amounts: Year Two $1,506,463.35; Year Three $1,556,100.85, Year Four
$1,610,702.10, and Year Five Amount$1,670,763.48. This action does not require specific City Council
approval provided that the City Council has appropriated sufficient funds to satisfy the City's obligations
during the renewal term.
http://apps.cfwnet.org/council_packet/mc review.asp?ID=25790&councildate=4/17/2018 5/24/2018
M&C Review Page 2 of 2
ADMINISTRATIVE CHANGE ORDER -An administrative change order or increase may be made by the
City Manager in the amount up to$50,000.00 and does not require specific City Council approval as long
as sufficient funds have been appropriated.
M/WBE OFFICE -A waiver of the goal for MBE/SBE subcontracting is not required related to cooperative
purchases.
Upon City Council approval, this Agreement shall begin on May 1, 2018.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that funds are available in the current operating budget, as appropriated
and that prior to an expenditure being made, the participating Department has the responsibility to validate
the availability of funds.
BQN\toter\cg
TO
Fund I Department Account Project Program Activity Budget Reference# I Amount
ID ID Year (Chartfield 2)
FROM
Fund Department Account Project Program Activity Budget Reference# Amount
ID I ID I I Year (Chartfield 2)
Submitted for City Manager's Office by: Valerie Washington (6192)
Originating Department Head: Aaron Bovos (8517)
Additional Information Contact: Cynthia Garcia (8525)
ATTACHMENTS
NIPA No. 171717.pdf
Toter Carts Bid Sheet 4 9 18 1.pdf
Toter LLC - Form 1295 Certificate.pdf
http://apps.cfwnet.org/council_packet/mc review.asp?ID=25790&councildate=4/17/2018 5/24/2018
T- 1atq1
CERTIFICATE OF INTERESTED PARTIES FORM 1295
iofi
Complete Nos.l•4 and 6 if there are interested parties. OFFICE USE ONLY
Complete Nos,1,2,3,5,and 6 it 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. 2018-344565
Toter,LLC
Statesville,NC United States Date Filed:
2 Name of governmental entity or state agency that is a party to the contract for which the form is 04/25/2018
being filed.
City of Fort Worth,TX Daae Ac n wiedged-
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.
P-12191
Purchase,delivery and maintenance of garbage,recycling and yard waste carts
Nature of interest
4
Name of interested Party City,State,Country(place of business) (check applicable)
Controlling intermediary
Wastequip, LLC Charlotte,NC United States X
5 Check only if there Is NO Interested Party. ❑
6 UNSWORN DECLARATION
My name is Laura P.Hubbard and my date of birlh is 4-13-1972
My address is $41 Meacham Road Statesville NC 28677 USA
(street) (city) (state) (zip code) (country)
I declare under penalty of perjury that the foregoing is true and correct.
Executed In Iredell County, State of North Carolina ,on the 27th day of A rill ,yo 18
(month) (Year)
Laura P. ubbard
Director of Municipal Sala
Signature of authorized agent of contracting business entity
(Declarant)
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.5523