8173 - Contract Executed
Docusign City Council Transmittal Coversheet
File Name
Purchasing Contact
City Council Target Date
Piggy Back Option
Contract Expiration
Ordinance
DocuSign Envelope ID: 1E5B3E2C-8CB8-41EC-965C-F5FAE4C006F9
IFB 8173
No
METER TEST BENCH & MOBILE TESTER
Crystal Westbrook
MAY 2, 2028
MAY 2, 2023
23-885
Contract # 8173
CONTRACT BY AND BETWEEN
CITY OF DENTON, TEXAS AND OW INVESTORS, LLC dba MARS COMPANY
(CONTRACT 8173)
THIS CONTRACT is made and entered into this date ______________________, by
and between OW INVESTORS, LLC dba MARS COMPANY a limited liability company,
whose address is 3925 SW 13th Street, Ocala, FL 34474 hereinafter referred to as "Contractor,"
and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to
as "City," to be effective upon approval of the Denton City Council and subsequent execution of
this Contract by the Denton City Manager or their duly authorized designee.
For and in consideration of the covenants and agreements contained herein, and for the
mutual benefits to be obtained hereby, the parties agree as follows:
SCOPE OF SERVICES
Contractor shall provide products and/or services in accordance with the City’s document
IFB #8173 – Meter Test Bench & Mobile Tester, a copy of which is on file at the office of
Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written
agreement and the following items which are attached hereto and incorporated herein by reference:
(a) Special Terms and Conditions (Exhibit “A”);
(b) City of Denton’s IFB #8173 (Exhibit “B” on File at the Office of the Purchasing
Agent);
(c) City of Denton Standard Terms and Conditions (Exhibit “C”);
(d) Insurance Requirements (Exhibit “D”);
(e) Certificate of Interested Parties Electronic Filing (Exhibit "E");
(f) Contractor’s Proposal (Exhibit "F");
(g) Form CIQ – Conflict of Interest Questionnaire (Exhibit "G");
(h) MARS Company Warranty, General Terms and Conditions (Exhibit “H”);
These documents make up the Contract documents and what is called for by one shall be
as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions
of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence
first to the written agreement then to the contract documents in the order in which they are listed
above. These documents shall be referred to collectively as “Contract Documents.”
Prohibition on Contracts with Companies Boycotting Israel
Contractor acknowledges that in accordance with Chapter 2271 of the Texas Government Code, 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 agreement, Contractor
certifies that Contractor’s signature provides written verification to the City that Contractor: (1) does not
boycott Israel; and (2) will not boycott Israel during the term of the agreement. Failure to meet or
maintain the requirements under this provision will be considered a material breach.
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05/02/2023
Contract # 8173
Prohibition on Contracts with Companies Boycotting Certain Energy Companies
Contractor acknowledges that in accordance with Chapter 2274 of the Texas Government Code, City is
prohibited from entering 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 energy companies; and (2) will not boycott
energy companies during the term of the contract. The terms “boycott energy company” and “company”
shall have the meanings ascribed to those terms in Section 809.001 of the Texas Government Code. By
signing this agreement, Contractor certifies that Contractor’s signature provides written verification to
the City that Contractor: (1) does not boycott energy companies; and (2) will not boycott energy
companies during the term of the agreement. Failure to meet or maintain the requirements under this
provision will be considered a material breach.
Prohibition on Contracts with Companies Boycotting Certain Firearm Entities and Firearm Trade
Associations
Contractor acknowledges that in accordance with Chapter 2274 of the Texas Government Code, City is
prohibited from entering into a contract with a company for goods or services unless the contract contains
written verification from the company that it (1) does not have a practice, policy, guidance, or directive that
discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the
term of the contract against a firearm entity or firearm trade association. The terms “discriminate against a
firearm entity or firearm trade association,” “firearm entity” and “firearm trade association” shall have the
meanings ascribed to those terms in Chapter 2274 of the Texas Government Code. By signing this
agreement, Contractor certifies that Contractor’s signature provides written verification to the City that
Contractor: (1) does not have a practice, policy, guidance, or directive that discriminates against a
firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract
against a firearm entity or firearm trade association. Failure to meet or maintain the requirements under
this provision will be considered a material breach.
Prohibition on Contracts with Companies Doing Business with Iran, Sudan, or a Foreign Terrorist
Organization
Sections 2252 and 2270 of the Texas Government Code restricts CITY from contracting with companies
that do business with Iran, Sudan, or a foreign terrorist organization. By signing this agreement,
Contractor certifies that Contractor’s signature provides written verification to the City that Contractor,
pursuant to Chapters 2252 and 2270, is not ineligible to enter into this agreement and will not become
ineligible to receive payments under this agreement by doing business with Iran, Sudan, or a foreign
terrorist organization. Failure to meet or maintain the requirements under this provision will be considered
a material breach.
Termination Right for Contracts with Companies Doing Business with Certain Foreign-Owned
Companies
The City of Denton may terminate this Contract immediately without any further liability if the City of
Denton determines, in its sole judgment, that this Contract meets the requirements under Chapter 2274, and
Contractor is, or will be in the future, (i) owned by or the majority of stock or other ownership interest of
the company is held or controlled by individuals who are citizens of China, Iran, North Korea, Russia, or
other designated country (ii) directly controlled by the Government of China, Iran, North Korea, Russia, or
other designated country, or (iii) is headquartered in China, Iran, North Korea, Russia, or other designated
country.
The parties agree to transact business electronically. Any statutory requirements that certain terms
be in writing will be satisfied using electronic documents and signing. Electronic signing of this
document will be deemed an original for all legal purposes.
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Contract # 8173
IN WITNESS WHEREOF, the parties of these presents have executed this agreement in
the year and day first above written.
CONTRACTOR
BY: ______________________________
AUTHORIZED SIGNATURE
Printed Name: ______________________
Title: _____________________________
__________________________________
PHONE NUMBER
__________________________________
EMAIL ADDRESS
___________________________________
TEXAS ETHICS COMMISSION
1295 CERTIFICATE NUMBER
CITY OF DENTON, TEXAS
BY: _______________________________
SARA HENSLEY, CITY MANAGER
ATTEST:
ROSA RIOS, CITY SECRETARY
BY: _______________________________
APPROVED AS TO LEGAL FORM:
MACK REINWAND, CITY ATTORNEY
BY: _______________________________
THIS AGREEMENT HAS BEEN
BOTH REVIEWED AND APPROVED
as to financial and operational obligations
and business terms.
_______________ ________________
SIGNATURE PRINTED NAME
__________________________________
TITLE
__________________________________
DEPARTMENT
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Vice President Operations
jbutt@marswater.com
jbutt@marswater.com
813-414-7710
Jeff Butt
Warer Utilities
Stephen D. Gay
Director,
2023-978775
Contract # 8173
Exhibit A
Special Terms and Conditions
1. Total Contract Amount
The contract total for services shall not exceed $796,435. Pricing shall be per Exhibit F attached.
2. The Quantities
The quantities indicated on Exhibit F are estimates based upon the best available information.
Individual purchase orders will be issued on an as needed basis.
3. Contract Terms
The contract term will be three (3) year, effective from date of award. The City and the Supplier
shall have the option to renew this contract for an additional two (2) one-year periods.
The Contract shall commence upon the issuance of a Notice of Award by the City of Denton and shall
automatically renew each year, from the date of award by City Council. The Supplier’s request to
not renew the contract must be submitted in writing to the Purchasing Manager at least 60 days prior
to the contract renewal date for each year. At the sole option of the City of Denton, the Contract may
be further extended as needed, not to exceed a total of six (6) months.
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Exhibit C
Standard Purchase Terms and Conditions
These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings
and other requirements included in the City of Denton’s contract are applicable to
contracts/purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer
and the Seller or respondent herein after referred to as Contractor or Supplier. Any deviations must
be in writing and signed by a representative of the City’s Procurement Department and the
Supplier. No Terms and Conditions contained in the seller’s proposal response, invoice or
statement shall serve to modify the terms set forth herein. If there is a conflict between the
provisions on the face of the contract/purchase order these written provisions will take precedence.
The Contractor agrees that the contract shall be governed by the following terms and conditions,
unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract,
Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and
sections 9, 10, 11, 22 and 32 shall apply only to a solicitation to purchase services to be performed
principally at the City’s premises or on public rights-of-way.
1. CONTRACTOR’S OBLIGATIONS. The Contractor shall fully and timely provide all
deliverables described in the Solicitation and in the Contractor’s Offer in strict accordance with
the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local
laws, rules, and regulations.
2. EFFECTIVE DATE/TERM. Unless otherwise specified in the Solicitation, this Contract shall
be effective as of the date the contract is signed by the City, and shall continue in effect until all
obligations are performed in accordance with the Contract.
3. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor will package
deliverables in accordance with good commercial practice and shall include a packing list showing
the description of each item, the quantity and unit price unless otherwise provided in the
Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly
and permanently marked as follows: (a) The Contractor's name and address, (b) the City’s name,
address and purchase order or purchase release number and the price agreement number if
applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the
number of the container bearing the packing list. The Contractor shall bear cost of packaging.
Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all
the requirements of common carriers and any applicable specification. The City's count or weight
shall be final and conclusive on shipments not accompanied by packing lists.
4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to
ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of
deliverables.
5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City
only when the City actually receives and accepts the deliverables as per Contractor’s statement of
work, close-out procedure. The City shall have accepted the Test Bench Solution (“Accepted”) the
earlier of (i) Completion of Acceptance Testing constituting City’s / Licensee’s full acceptance of
the Test Bench Solution; (ii) IF, THROUGH NO FAULT OF Contractor, SITE ACCEPTANCE
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TESTING IS NOT COMPLETED WITHIN THIRTY (30) DAYS AFTER ARRIVAL OF THE
EQUIPMENT AT THE DESIGNATED SITE OR IN THE CASE OF SOFTWARE, AFTER TEN
(10) DAYS AFTER SOFTWARE INSTALLATION, THE SITE ACCEPTANCE TESTING
SHALL BE DEEMED COMPLETED AND THE EQUIPMENT OR SOFTWARE SHALL BE
DEEMED ACCEPTED BY PURCHASER. “Acceptance Date” means the date the Equipment
and Software was Accepted.
6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be
shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and
Conditions. Unless otherwise stated in the Offer, the Contractor’s price shall be deemed to include
all delivery and transportation charges. The City shall have the right to designate what method of
transportation shall be used to ship the deliverables. The place of delivery shall be that set forth
the purchase order.
7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under
law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at
delivery before accepting them, and to reject defective or non-conforming deliverables. If the City
has the right to inspect the Contractor’s, or the Contractor’s Subcontractor’s, facilities, or the
deliverables at the Contractor’s, or the Contractor’s Subcontractor’s, premises, the Contractor shall
furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance
to the City to facilitate such inspection.
8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables
must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity.
Any non-complying tender shall constitute a breach and the Contractor shall not have the right to
substitute a conforming tender; provided, where the time for performance has not yet expired, the
Contractor may notify the City of the intention to cure and may then make a conforming tender
within the time allotted in the contract.
9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the
sites where the Contractor is to perform the services as required in order for the Contractor to
perform the services in a timely and efficient manner, in accordance with and subject to the
applicable security laws, rules, and regulations. The Contractor acknowledges that it has satisfied
itself as to the nature of the City’s service requirements and specifications, the location and
essential characteristics of the work sites, the quality and quantity of materials, equipment, labor
and facilities necessary to perform the services, and any other condition or state of fact which could
in any way affect performance of the Contractor’s obligations under the contract. The Contractor
hereby releases and holds the City harmless from and against any liability or claim for damages of
any kind or nature if the actual site or service conditions differ from expected conditions.
The contractor shall, at all times, exercise reasonable precautions for the safety of their employees,
City Staff, participants and others on or near the City’s facilities.
10. WORKFORCE
A. The Contractor shall employ only orderly and competent workers, skilled in the performance
of the services which they will perform under the Contract.
B. The Contractor, its employees, subcontractors, and subcontractor's employees may not while
engaged in participating or responding to a solicitation or while in the course and scope of
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delivering goods or services under a City of Denton contract or on the City's property .
i. use or possess a firearm, including a concealed handgun that is licensed under state law,
except as required by the terms of the contract; or
ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled
substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on
the job.
C. If the City or the City's representative notifies the Contractor that any worker is incompetent,
disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed
any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the
Contractor shall immediately remove such worker from Contract services, and may not employ
such worker again on Contract services without the City's prior written consent.
Immigration: The Contractor represents and warrants that it shall comply with the requirements
of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification
and retention of verification forms for any individuals hired on or after November 6, 1986, who
will perform any labor or services under the Contract and the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA) enacted on September 30, 1996.
11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL
REGULATIONS: The Contractor, it’s Subcontractors, and their respective employees, shall
comply fully with all applicable federal, state, and local health, safety, and environmental laws,
ordinances, rules and regulations in the performance of the services, including but not limited to
those promulgated by the City and by the Occupational Safety and Health Administration (OSHA).
In case of conflict, the most stringent safety requirement shall govern. The Contractor shall
indemnify and hold the City harmless from and against all claims, demands, suits, actions,
judgments, fines, penalties and liability of every kind arising from the breach of the Contractor’s
obligations under this paragraph.
Environmental Protection: The Respondent shall be in compliance with all applicable standards,
orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et
seq.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. §1251 et seq.).
12. INVOICES:
A. The Contractor shall submit separate invoices in duplicate on each purchase order or purchase
release after each delivery. If partial shipments or deliveries are authorized by the City, a separate
invoice must be sent for each shipment or delivery made.
B. Proper Invoices must include a unique invoice number, the purchase order or delivery
order number and the master agreement number if applicable, the Department’s Name, and
the name of the point of contact for the Department. Invoices shall be A copy of the bill of
lading and the freight waybill, when applicable, shall be attached to the invoice. The Contractor’s
name, remittance address and, if applicable, the tax identification number on the invoice must
exactly match the information in the Vendor’s registration with the City. Unless otherwise
instructed in writing, the City may rely on the remittance address specified on the Contractor’s
invoice.
D. Unless otherwise expressly authorized in the Contract, the Contractor shall pass through all
Subcontract and other authorized expenses at actual cost without markup.
E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced
amount.
The City will furnish a tax exemption certificate upon request.
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13. PAYMENT:
A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within
thirty (30) calendar days of the City’s receipt of the deliverables or of the invoice being received
in Accounts Payable, whichever is later.
B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid
balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the
maximum lawful rate; except, if payment is not timely made for a reason for which the City
may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after
the grounds for withholding payment have been resolved.
C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the
partial shipment or delivery, as stated above, provided that the invoice matches the shipment or
delivery.
D. The City may withhold or set off the entire payment or part of any payment otherwise due the
Contractor to such extent as may be necessary on account of:
i. delivery of defective or non-conforming deliverables by the Contractor;
ii. third party claims, which are not covered by the insurance which the Contractor is
required to provide, are filed or reasonable evidence indicating probable filing of such
claims;
iii. failure of the Contractor to pay Subcontractors, or for labor, materials or equipment;
iv. damage to the property of the City or the City’s agents, employees or contractors,
which is not covered by insurance required to be provided by the Contractor;
v. reasonable evidence that the Contractor’s obligations will not be completed within the
time specified in the Contract, and that the unpaid balance would not be adequate to
cover actual or damages for the anticipated delay;
vi. failure of the Contractor to submit proper invoices with purchase order number, with all
required attachments and supporting documentation; or
vii. failure of the Contractor to comply with any material provision of the Contract
Documents.
E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for
delinquent taxes, the City may offset indebtedness owed the City through payment withholding.
F. Payment will be made by check unless the parties mutually agree to payment by credit card or
electronic transfer of funds. The Contractor agrees that there shall be no additional charges,
surcharges, or penalties to the City for payments made by credit card or electronic funds transfer.
G. The awarding or continuation of this contract is dependent upon the availability of funding. The
City’s payment obligations are payable only and solely from funds Appropriated and available for
this contract. The absence of Appropriated or other lawfully available funds shall render the
Contract null and void to the extent funds are not Appropriated or available and any deliverables
delivered but unpaid shall be returned to the Contractor. The City shall provide the Contractor
written notice of the failure of the City to make an adequate Appropriation for any fiscal year to
pay the amounts due under the Contract, or the reduction of any Appropriation to an amount
insufficient to permit the City to pay its obligations under the Contract. In the event of none or
inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City.
14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the
Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. During the
term of this contract, the contractor shall bill and the City shall reimburse contractor for all
reasonable and approved out of pocket expenses which are incurred in the connection with the
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performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by
the contractor in traveling to and from City facilities shall not be reimbursed, unless otherwise
negotiated.
15. FINAL PAYMENT AND CLOSE-OUT:
A. If a DBE/MBE/WBE Program Plan is agreed to and the Contractor has identified
Subcontractors, the Contractor is required to submit a Contract Close-Out MBE/WBE Compliance
Report to the Purchasing Manager no later than the 15th calendar day after completion of all work
under the contract. Final payment, retainage, or both may be withheld if the Contractor is not in
compliance with the requirements as accepted by the City.
B. The making and acceptance of final payment will constitute:
i. a waiver of all claims by the City against the Contractor, except claims (1) which have
been previously asserted in writing and not yet settled, (2) arising from defective work appearing
after final inspection, (3) arising from failure of the Contractor to comply with the Contract or the
terms of any warranty specified herein, (4) arising from the Contractor’s continuing obligations
under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising
under the City’s right to audit; and ii. a waiver of all claims by the Contractor against the City
other than those previously asserted in writing and not yet settled.
16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost
of any special tooling or special test equipment fabricated or required by the Contractor for the
purpose of filling this order, such special tooling equipment and any process sheets related thereto
shall become the property of the City and shall be identified by the Contractor as such.
17. RIGHT TO AUDIT:
A. Subject to reasonable security and confidentiality procedures, the City shall have the right to
audit and make copies of the documents limited to the Contract, invoices, and time sheets from the
Contractor solely pertaining to the Contract. Contractor confidential employee and/or customer
records will not be made available. The Contractor shall retain such documents limited to the
Contract, invoices, and time sheets for a period of three years thereafter, except if an audit is in
progress or audit findings are yet unresolved, in which case records shall be kept until all audit
tasks are completed and resolved. These limited Contract documents, invoices, and time sheets
shall be available, within ten (15) business days of written request. The audit cost will be solely
borne by the City and at no expense to the contractor.
B. Failure to comply with the provisions of this section shall be a material breach of the Contract
and shall constitute, in the City’s sole discretion, grounds for termination thereof.
18. SUBCONTRACTORS:
A. If the Contractor identified Subcontractors in a DBE/MBE/WBE agreed to Plan, the Contractor
shall comply with all requirements approved by the City. The Contractor shall not initially employ
any Subcontractor except as provided in the Contractor’s Plan. The Contractor shall not substitute
any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in
writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or
remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan
has been approved, the Contractor is additionally required to submit a monthly Subcontract
Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day
of each month.
B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract
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between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the
terms of the
Contract, and shall contain provisions that:
i. require that all deliverables to be provided by the Subcontractor be provided in strict
accordance with the provisions, specifications and terms of the Contract;
ii. prohibit the Subcontractor from further subcontracting any portion of the Contract
without the prior written consent of the City and the Contractor. The City may require, as
a condition to such further subcontracting, that the Subcontractor post a payment bond in
form, substance and amount acceptable to the City;
iii. require Subcontractors to submit all invoices and applications for payments, including
any claims for additional payments, damages or otherwise, to the Contractor in sufficient
time to enable the Contractor to include same with its invoice or application for payment
to the City in accordance with the terms of the Contract;
iv. require that all Subcontractors obtain and maintain, throughout the term of their
contract, insurance in the type and amounts specified for the Contractor, with the City
being a named insured as its interest shall appear; and
v. require that the Subcontractor indemnify and hold the City harmless to the same extent
as the Contractor is required to indemnify the City.
C. The Contractor shall be fully responsible to the City for all acts and omissions of the
Subcontractors just as the Contractor is responsible for the Contractor's own acts and omissions.
Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual
relationship between the City and any such Subcontractor, nor shall it create any obligation on the
part of the City to pay or to see to the payment of any moneys due any such Subcontractor except
as may otherwise be required by law.
D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the
Contractor not later than ten (10) calendar days after receipt of payment from the City.
19. WARRANTY-PRICE:
A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's
current prices on orders by others for like deliverables under similar terms of purchase.
B. The Contractor certifies that the prices in the Offer have been arrived at independently without
consultation, communication, or agreement for the purpose of restricting competition, as to any
matter relating to such fees with any other firm or with any competitor.
C. In addition to any other remedy available, the City may deduct from any amounts owed to the
Contractor, or otherwise recover, any amounts paid for items in excess of the Contractor's current
prices on orders by others for like deliverables under similar terms of purchase.
20. WARRANTY – TITLE: The Contractor warrants that it has good and indefeasible title to all
deliverables furnished under the Contract, and that the deliverables are free and clear of all liens,
claims, security interests and encumbrances. The Contractor shall indemnify and hold the City
harmless from and against all adverse title claims to the deliverables.
21. WARRANTY – DELIVERABLES: The Contractor warrants and represents that all
deliverables sold the City under the Contract shall be free from defects in design, workmanship or
manufacture, and conform in all material respects to the specifications, drawings, and descriptions
in the Solicitation, to any samples furnished by the Contractor, to the terms, covenants and
conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations,
and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall
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be new or recycled merchandise, and not used or reconditioned.
A. Recycled deliverables shall be clearly identified as such.
B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty
implied by law; and any attempt to do so shall be without force or effect.
C. Unless otherwise specified in the Contract, the warranty period shall be at least one year from
the date of acceptance of the deliverables or from the date of acceptance of any replacement
deliverables. If during the warranty period, one or more of the above warranties are breached, the
Contractor shall promptly upon receipt of demand either repair the non-conforming deliverables,
or replace the non-conforming deliverables with fully conforming deliverables, at the City’s option
and at no additional cost to the City. All costs incidental to such repair or replacement, including
but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor.
The City shall endeavor to give the Contractor written notice of the breach of warranty within
thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice
shall not impair the City’s rights under this section.
D. If the Contractor is unable or unwilling to repair or replace defective or non-conforming
deliverables as required by the City, then in addition to any other available remedy, the City may
reduce the quantity of deliverables it may be required to purchase under the Contract from the
Contractor, and purchase conforming deliverables from other sources. In such event, the
Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to
procure such deliverables from another source.
E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate
manufacturer’s warranty, the Contractor shall transfer and assign such manufacturer’s warranty to
the City. If for any reason the manufacturer’s warranty cannot be fully transferred to the City, the
Contractor shall assist and cooperate with the City to the fullest extent to enforce such
manufacturer’s warranty for the benefit of the City.
22. WARRANTY – SERVICES: The Contractor warrants and represents that all services to be
provided the City under the Contract will be fully and timely performed in a good and workmanlike
manner in accordance with generally accepted industry standards and practices, the terms,
conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules
or regulations.
A. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty
implied by law, and any attempt to do so shall be without force or effect.
a) B. Unless otherwise specified in the Contract, the warranty period shall be at least one year
from the Acceptance Date. The City shall have accepted the Test Bench Solution (“Accepted”)
the earlier of (i) Completion of Acceptance Testing constituting City’s / Licensee’s full
acceptance of the Test Bench Solution; (ii) IF, THROUGH NO FAULT OF Contractor, SITE
ACCEPTANCE TESTING IS NOT COMPLETED WITHIN THIRTY (30) DAYS AFTER
ARRIVAL OF THE EQUIPMENT AT THE DESIGNATED SITE OR IN THE CASE OF
SOFTWARE, AFTER TEN (10) DAYS AFTER SOFTWARE INSTALLATION, THE SITE
ACCEPTANCE TESTING SHALL BE DEEMED COMPLETED AND THE EQUIPMENT
OR SOFTWARE SHALL BE DEEMED ACCEPTED BY PURCHASER. “Acceptance Date”
means the date the Equipment and Software was Accepted.
If during the warranty period, one or more of the above warranties are breached, the Contractor
shall promptly upon receipt of demand perform the services again in accordance with above
standard at no additional cost to the City. All costs incidental to such additional performance shall
be borne by the Contractor. The City shall give the Contractor written notice of the breach of
warranty within thirty (30) calendar days of discovery of the breach warranty.
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C. If the Contractor is unable or unwilling to perform its services in accordance with the above
standard as required by the City, then in addition to any other available remedy, the City may
reduce the amount of services it may be required to purchase under the Contract from the
Contractor, and purchase conforming services from other sources. In such event, the Contractor
shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such
services from another source.
23. ACCEPTANCE OF INCOMPLETE OR NON-CONFORMING DELIVERABLES: If,
instead of requiring immediate correction or removal and replacement of defective or non-
conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay
all claims, costs, losses and damages attributable to the City’s evaluation of and determination to
accept such defective or non-conforming deliverables. If any such acceptance occurs prior to final
payment, the City may deduct such amounts as are necessary to compensate the City for the
diminished value of the defective or non-conforming deliverables. If the acceptance occurs after
final payment, such amount will be refunded to the City by the Contractor.
24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to
question the other party’s intent to perform, demand may be made to the other party for written
assurance of the intent to perform. In the event that no assurance is given within the time specified
after demand is made, the demanding party may treat this failure as an anticipatory repudiation of
the Contract.
25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event
the Contractor is observed performing in a manner that is in violation of Federal, State, or local
guidelines, or in a manner that is determined by the City to be unsafe to either life or property.
Upon notification, the Contractor will cease all work until notified by the City that the violation or
unsafe condition has been corrected. The Contractor shall be liable for all costs incurred by the
City as a result of the issuance of such Stop Work Notice.
26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to
fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to
provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks
relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in
Contractor’s Offer, or in any report or deliverable required to be submitted by the Contractor to
the City.
27. TERMINATION FOR CAUSE:In the event of a default by the Contractor, the City and
Contractor shall have the right to terminate the Contract for cause, by written notice effective ten
(10) calendar days, unless otherwise specified, after the date of such notice, unless the Contractor
or City , within such ten (10) day period, cures such default, or provides evidence sufficient to
prove reasonable satisfaction that such default does not, in fact, exist. In addition to any other
remedy available under law or in equity, the City or Contractor shall be entitled to recover all
actual damages, costs, losses and expenses, incurred as a result of the opposing parties default,
including, without limitation, cost of cover, reasonable attorneys’ fees, court costs, and
prejudgment and post-judgment interest at the maximum lawful rate. Additionally, in the event of
a default by the Contractor, the City may remove the Contractor from the City’s vendor list for
three (3) years and any Offer submitted by the Contractor may be disqualified for up to three (3)
years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right
or remedy provided by law.
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28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the
Contract, in whole or in part, without cause any time upon thirty (30) calendar days’ prior written
notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work
pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The
City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available
for such purposes, for all goods delivered and services performed and obligations incurred prior to
the date of termination in accordance with the terms hereof. In the event the Contract spans
multiple fiscal years, the City’s continuing performance under the Contract is contingent upon the
appropriation of funds to fulfill the requirements of the Contract by the City Council of the City
of Denton. If the City Council of the City of Denton fails to appropriate or allot the necessary
funds, City shall issue written notice to Contractor that City may terminate the Contract without
penalty, further duty, or obligation.
29. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable
required to be submitted by the Contractor to the City shall be grounds for the termination of the
Contract for cause by the City and may result in legal action.
30. DELAYS:
A. The City may delay scheduled delivery or other due dates by written notice to the Contractor if
the City deems it is in its best interest. If such delay causes an increase in the cost of the work
under the Contract, the City and the Contractor shall negotiate an equitable adjustment for costs
incurred by the Contractor in the Contract price and execute an amendment to the Contract. The
Contractor must assert its right to an adjustment within thirty (30) calendar days from the date of
receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the
Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall
excuse the Contractor from delaying the delivery as notified.
B. Neither party shall be liable for any default or delay in the performance of its obligations under
this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots,
civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the
reasonable control of such Party. In the event of default or delay in contract performance due to
any of the foregoing causes, then the time for completion of the services will be extended;
provided, however, in such an event, a conference will be held within three (3) business days to
establish a mutually agreeable period of time reasonably necessary to overcome the effect of such
failure to perform.
31. INDEMNITY:
A. Definitions:
i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action,
judgments and liability of every character, type or description, including all reasonable
costs and expenses of litigation, mediation or other alternate dispute resolution mechanism,
including attorney and other professional fees for: (1) damage to or loss of the property of
any person (including, but not limited to the City, the Contractor, their respective agents,
officers, employees and subcontractors; the officers, agents, and employees of such
subcontractors; and third parties); and/or (2) death, bodily injury, illness, disease, worker's
compensation, loss of services, or loss of income or wages to any person (including but not
limited to the agents, officers and employees of the City, the Contractor, the Contractor’s
subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non-
conforming deliverables, negligence, willful misconduct or a breach of any legally imposed
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strict liability standard.
B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY),
INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS,
EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL
INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO,
CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, OR
THE CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE
PERFORMANCE OF THE CONTRACTOR’S OBLIGATIONS UNDER THE
CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF
THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE
RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE
LIABLE FOR AN INDEMNIFIED CLAIM.
32. INSURANCE: The following insurance requirements are applicable, in addition to the specific
insurance requirements detailed in Appendix A for services only. The successful firm shall procure
and maintain insurance of the types and in the minimum amounts acceptable to the City of Denton.
The insurance shall be written by a company licensed to do business in the State of Texas and
satisfactory to the City of Denton.
A. General Requirements:
i. The Contractor shall at a minimum carry insurance in the types and amounts indicated
and agreed to, as submitted to the City and approved by the City within the procurement
process, for the duration of the Contract, including extension options and hold over periods,
and during any warranty period.
ii. The Contractor shall provide Certificates of Insurance with the coverage’s and
endorsements required to the City as verification of coverage prior to contract execution
and within fourteen (14) calendar days after written request from the City. Failure to
provide the required Certificate of Insurance may subject the Offer to disqualification from
consideration for award. The Contractor must also forward a Certificate of Insurance to the
City whenever a previously identified policy period has expired, or an extension option or
hold over period is exercised, as verification of continuing coverage.
iii. The Contractor shall not commence work until the required insurance is obtained and
until such insurance has been reviewed by the City. Approval of insurance by the City shall
not relieve or decrease the liability of the Contractor hereunder and shall not be construed
to be a limitation of liability on the part of the Contractor.
iv. The Contractor must submit certificates of insurance to the City for all subcontractors
prior to the subcontractors commencing work on the project.
v. The Contractor’s and all subcontractors’ insurance coverage shall be written by
companies licensed to do business in the State of Texas at the time the policies are issued
and shall be written by companies with A.M. Best ratings of A- VII or better. The City
will accept workers’ compensation coverage written by the Texas Workers’ Compensation
Insurance Fund.
vi. All endorsements naming the City as additional insured, waivers, and notices of
cancellation endorsements as well as the Certificate of Insurance shall contain the
solicitation number and the following information:
City of Denton
Materials Management Department
901B Texas Street
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Denton, Texas 76209
vii. The “other” insurance clause shall not apply to the City where the City is an additional
insured shown on any policy. It is intended that policies required in the Contract, covering
both the City and the Contractor, shall be considered primary coverage as applicable.
viii. If insurance policies are not written for amounts agreed to with the City, the Contractor
shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified.
If Excess Liability Insurance is provided, it shall follow the form of the primary coverage.
ix. The City shall be entitled, upon request, at an agreed upon location, and without
expense, to review certified copies of policies and endorsements thereto and may make any
reasonable requests for deletion or revision or modification of particular policy terms,
conditions, limitations, or exclusions except where policy provisions are established by law
or regulations binding upon either of the parties hereto or the underwriter on any such
policies.
x. The City reserves the right to review the insurance requirements set forth during the
effective period of the Contract and to make reasonable adjustments to insurance coverage,
limits, and exclusions when deemed necessary and prudent by the City based upon changes
in statutory law, court decisions, the claims history of the industry or financial condition
of the insurance company as well as the Contractor.
xi. The Contractor shall not cause any insurance to be canceled nor permit any insurance
to lapse during the term of the Contract or as required in the Contract.
xii. The Contractor shall be responsible for premiums, deductibles and self-insured
retentions, if any, stated in policies. All deductibles or self-insured retentions shall be
disclosed on the Certificate of Insurance.
xiii. The Contractor shall endeavor to provide the City thirty (30) calendar days’ written
notice of erosion of the aggregate limits below occurrence limits for all applicable
coverage’s indicated within the Contract.
xiv. The insurance coverage’s specified in within the solicitation and requirements are
required minimums and are not intended to limit the responsibility or liability of the
Contractor.
B. Specific Coverage Requirements: Specific insurance requirements are contained in the
solicitation instrument.
33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which
arises under or concerns the Contract, or which could have a material adverse effect on the
Contractor’s ability to perform thereunder, the Contractor shall give written notice thereof to the
City within ten (10) calendar days after receipt of notice by the Contractor. Such notice to the City
shall state the date of notification of any such claim, demand, suit, or other action; the names and
addresses of the claimant(s); the basis thereof; and the name of each person against whom such
claim is being asserted. Such notice shall be delivered personally or by mail and shall be sent to
the City and to the Denton City Attorney. Personal delivery to the City Attorney shall be to City
Hall, 215 East McKinney Street, Denton, Texas 76201.
34. NOTICES: Unless otherwise specified, all notices, requests, or other communications required
or appropriate to be given under the Contract shall be in writing and shall be deemed delivered
three (3) business days after postmarked if sent by U.S. Postal Service Certified or Registered
Mail, Return Receipt Requested. Notices delivered by other means shall be deemed delivered upon
receipt by the addressee. Routine communications may be made by first class mail, telefax, or
other commercially accepted means. Notices to the Contractor shall be sent to the address specified
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in the Contractor’s Offer, or at such other address as a party may notify the other in writing. Notices
to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked
to the attention of the Purchasing Manager.
35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material
submitted by the Contractor to the City shall become property of the City upon receipt. Any
portions of such material claimed by the Contractor to be proprietary must be clearly marked as
such. Determination of the public nature of the material is subject to the Texas Public Information
Act, Chapter 552, and Texas Government Code.
36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents
and warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title
to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the
specifications in the Contract will not infringe, directly or contributorily, any patent, trademark,
copyright, trade secret, or any other intellectual property right of any kind of any third party; that
no claims have been made by any person or entity with respect to the ownership or operation of
the deliverables and the Contractor does not know of any valid basis for any such claims. The
Contractor shall, at its sole expense, defend, indemnify, and hold the City harmless from and
against all liability, damages, and costs (including court costs and reasonable fees of attorneys and
other professionals) arising out of or resulting from: (i) any claim that the City’s exercise anywhere
in the world of the rights associated with the City’s’ ownership, and if applicable, license rights,
and its use of the deliverables infringes the intellectual property rights of any third party; or (ii)
the Contractor’s breach of any of Contractor’s representations or warranties stated in this Contract.
In the event of any such claim, the City shall have the right to monitor such claim or at its option
engage its own separate counsel to act as co-counsel on the City’s behalf. Further, Contractor
agrees that the City’s specifications regarding the deliverables shall in no way diminish
Contractor’s warranties or obligations under this paragraph and the City makes no warranty that
the production, development, or delivery of such deliverables will not impact such warranties of
Contractor.
37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may
require access to certain of the City’s and/or its licensors’ confidential information (including
inventions, employee information, trade secrets, confidential know-how, confidential business
information, and other information which the City or its licensors consider confidential)
(collectively, “Confidential Information”). Contractor acknowledges and agrees that the
Confidential Information is the valuable property of the City and/or its licensors and any
unauthorized use, disclosure, dissemination, or other release of the Confidential Information will
substantially injure the City and/or its licensors. The Contractor (including its employees,
subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information
in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use
the Confidential Information without the prior written consent of the City or in a manner not
expressly permitted under this Agreement, unless the Confidential Information is required to be
disclosed by law or an order of any court or other governmental authority with proper jurisdiction,
provided the Contractor promptly notifies the City before disclosing such information so as to
permit the City reasonable time to seek an appropriate protective order. The Contractor agrees to
use protective measures no less stringent than the Contractor uses within its own business to protect
its own most valuable information, which protective measures shall under all circumstances be at
least reasonable measures to ensure the continued confidentiality of the Confidential Information.
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38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, title, and
interests in and to the City data recorded via the Mars test bench and any other deliverables
contemplated hereby, except for software (including firmware) which is licensed to the City. The
City shall not challenge the validity of any of the Contractor’s intellectual property, including
without limitation any trademarks, service marks, trade dress, patents, copyrights, trade secrets, or
licenses. The City acknowledges that the Contractor’s intellectual property is the sole property of
the Contractor. By sale of deliverables and services to City, the Contractor does not transfer any
of the Contractor’s intellectual property rights (including without limitation rights to designs or
other work product). The City shall not remove or alter any trademarks, service marks, or trade
dress that identify the Contractor, nor use any trademarks, service marks, trade dress, or any other
intellectual property that, in the sole discretion of the Contractor, is confusingly similar to those of
the Contractor. Any software (including firmware) included with deliverables or services is owned
by the Contractor (or its licensors) and is licensed, not sold, to the City. The City may use such
software only as intended by the Contractor.
39. PUBLICATIONS: All published material and written reports submitted under the Contract
must be originally developed material unless otherwise specifically provided in the Contract.
When material not originally developed is included in a report in any form, the source shall be
identified.
40. ADVERTISING: The Contractor shall not advertise or publish, without the City’s prior
consent, the fact that the City has entered into the Contract, except to the extent required by law.
41. NO CONTINGENT FEES: The Contractor warrants that no person or selling agency has
been employed or retained to solicit or secure the Contract upon any agreement or understanding
for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona
fide established commercial or selling agencies maintained by the Contractor for the purpose of
securing business. For breach or violation of this warranty, the City shall have the right, in addition
to any other remedy available, to cancel the Contract without liability and to deduct from any
amounts owed to the Contractor, or otherwise recover, the full amount of such commission,
percentage, brokerage or contingent fee.
42. GRATUITIES: The City may, by written notice to the Contractor, cancel the Contract without
liability if it is determined by the City that gratuities were offered or given by the Contractor or
any agent or representative of the Contractor to any officer or employee of the City of Denton with
a view toward securing the Contract or securing favorable treatment with respect to the awarding
or amending or the making of any determinations with respect to the performing of such contract.
In the event the Contract is canceled by the City pursuant to this provision, the City shall be
entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost
incurred by the Contractor in providing such gratuities.
43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer,
employee, independent consultant, or elected official of the City who is involved in the
development, evaluation, or decision-making process of the performance of any solicitation shall
have a financial interest, direct or indirect, in the Contract resulting from that solicitation as defined
in the City’s Ethic Ordinance 18-757 and in the City Charter chapter 2 article XI(Ethics). Any
willful violation of this section shall constitute impropriety in office, and any officer or employee
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guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation
of this provision, with the knowledge, expressed or implied, of the Contractor shall render the
Contract voidable by the City. The Contractor shall complete and submit the City’s Conflict of
Interest Questionnaire.
44. INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an
employer/employee relationship, a partnership, or a joint venture. The Contractor’s services shall
be those of an independent contractor. The Contractor agrees and understands that the Contract
does not grant any rights or privileges established for employees of the City of Denton, Texas for
the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits,
worker’s compensation, or any other City employee benefit. The City shall not have supervision and
control of the Contractor or any employee of the Contractor, and it is expressly understood that
Contractor shall perform the services hereunder according to the attached specifications at the general
direction of the City Manager of the City of Denton, Texas, or their designee under this agreement.
The contractor is expressly free to advertise and perform services for other parties while performing
services for the City.
45. ASSIGNMENT-DELEGATION: The Contract shall be binding upon and ensure to the
benefit of the City and the Contractor and their respective successors and assigns, provided
however, that no right or interest in the Contract shall be assigned and no obligation shall be
delegated by the Contractor without the prior written consent of the City. Any attempted
assignment or delegation by the Contractor shall be void unless made in conformity with this
paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity
not a party hereto; it being the intention of the parties that there are no third party beneficiaries to
the Contract.
The Vendor shall notify the City’s Purchasing Manager, in writing, of a company name,
ownership, or address change for the purpose of maintaining updated City records. The
president of the company or authorized official must sign the letter. A letter indicating
changes in a company name or ownership must be accompanied with supporting legal
documentation such as an updated W-9, documents filed with the state indicating such
change, copy of the board of director’s resolution approving the action, or an executed
merger or acquisition agreement. Failure to do so may adversely impact future invoice
payments.
46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole
or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is
supported by consideration and is in writing signed by the aggrieved party. No waiver by either
the Contractor or the City of any one or more events of default by the other party shall operate as,
or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an
express or implied acceptance of any other existing or future default or defaults, whether of a
similar or different character.
47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by
both parties. No pre-printed or similar terms on any the Contractor invoice, order or other
document shall have any force or effect to change the terms, covenants, and conditions of the
Contract.
48. INTERPRETATION: The Contract is intended by the parties as a final, complete and
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exclusive statement of the terms of their agreement. No course of prior dealing between the parties
or course of performance or usage of the trade shall be relevant to supplement or explain any term
used in the Contract. Although the Contract may have been substantially drafted by one party, it
is the intent of the parties that all provisions be construed in a manner to be fair to both parties,
reading no provisions more strictly against one party or the other. Whenever a term defined by the
Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC
definition shall control, unless otherwise defined in the Contract.
49. DISPUTE RESOLUTION:
A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to
negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing
of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party
may make a written request for a meeting between representatives of each party within fourteen
(14) calendar days after receipt of the request or such later period as agreed by the parties. Each
party shall include, at a minimum, one (1) senior level individual with decision-making authority
regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith
to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the
parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to
mediation as described below. Negotiation may be waived by a written agreement signed by both
parties, in which event the parties may proceed directly to mediation as described below.
B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation
process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation
skills to assist with resolution of the dispute. Should they choose this option; the City and the
Contractor agree to act in good faith in the selection of the mediator and to give consideration to
qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties
from relying on the skills of a person who is trained in the subject matter of the dispute or a contract
interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of
initiation of the mediation process, the mediator shall be selected by the Denton County Alternative
Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith
for up to thirty (30) calendar days from the date of the first mediation session. The City and the
Contractor will share the mediator’s fees equally and the parties will bear their own costs of
participation such as fees for any consultants or attorneys they may utilize to represent them or
otherwise assist them in the mediation.
50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the
laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted
in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would
refer to and apply the substantive law of another state or jurisdiction. All issues arising from this
Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit
to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be
construed or interpreted to limit or restrict the right or ability of the City to seek and secure
injunctive relief from any competent authority as contemplated herein.
51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract
shall in no way affect the validity or enforceability of any other portion or provision of the
Contract. Any void provision shall be deemed severed from the Contract and the balance of the
Contract shall be construed and enforced as if the Contract did not contain the particular portion
or provision held to be void. The parties further agree to reform the Contract to replace any stricken
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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 Contract from being void
should a provision which is the essence of the Contract be determined to be void.
52. HOLIDAYS: The following holidays are observed by the City:
New Year’s Day (observed)
Martin Luther King, Jr. Day
Memorial Day
Juneteenth
Independence Day
Labor Day
Veterans Day
Thanksgiving
Friday After Thanksgiving
Christmas Eve (observed)
Christmas Day (observed)
If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday
falls on Sunday, it will be observed on the following Monday. Normal hours of operation shall be
between 8:00 am and 4:00 pm, Monday through Friday, excluding City of Denton Holidays. Any
scheduled deliveries or work performance not within the normal hours of operation must be
approved by the City Manager of Denton, Texas or their authorized designee.
53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose
continuing obligations on the parties, including but not limited to the warranty, indemnity, and
confidentiality obligations of the parties, shall survive the expiration or termination of the Contract.
54. NON-SUSPENSION OR DEBARMENT CERTIFICATION:
The City of Denton is prohibited from contracting with or making prime or sub-awards to parties
that are suspended or debarred or whose principals are suspended or debarred from Federal, State,
or City of Denton Contracts. By accepting a Contract with the City, the Vendor certifies that its
firm and its principals are not currently suspended or debarred from doing business with the
Federal Government, as indicated by the General Services Administration List of Parties Excluded
from Federal Procurement and Non-Procurement Programs, the State of Texas, or the City of
Denton.
55. EQUAL OPPORTUNITY
A. Equal Employment Opportunity: No Offeror, or Offeror’s agent, shall engage in any
discriminatory employment practice. No person shall, on the grounds of race, sex, sexual
orientation, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of,
or be otherwise subjected to discrimination under any activities resulting from this RFQ.
B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror’s agent, shall
engage in any discriminatory employment practice against individuals with disabilities as defined
in the ADA.
56. BUY AMERICAN ACT-SUPPLIES (Applicable to certain federally funded
requirements)
The following federally funded requirements are applicable. A. Definitions. As used in this
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paragraph –
i. "Component" means an article, material, or supply incorporated directly into an end product.
ii. "Cost of components" means -
(1) For components purchased by the Contractor, the acquisition cost, including transportation
costs to the place of incorporation into the end product (whether or not such costs are paid to a
domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or
(2) For components manufactured by the Contractor, all costs associated with the manufacture of
the component, including transportation costs as described in paragraph (1) of this definition, plus
allocable overhead costs, but excluding profit. Cost of components does not include any costs
associated with the manufacture of the end product.
iii. "Domestic end product" means-
(1) An unmanufactured end product mined or produced in the United States; or
(2) An end product manufactured in the United States, if the cost of its components mined,
produced, or manufactured in the United States exceeds 50 percent of the cost of all its
components. Components of foreign origin of the same class or kind as those that the agency
determines are not mined, produced, or manufactured in sufficient and reasonably available
commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected,
and prepared for processing in the United States is considered domestic.
iv. "End product" means those articles, materials, and supplies to be acquired under the contract
for public use.
v. "Foreign end product" means an end product other than a domestic end product.
vi. "United States" means the 50 States, the District of Columbia, and outlying areas.
B. The Buy American Act (41 U.S.C. 10a - 10d) provides a preference for domestic end products
for supplies acquired for use in the United States.
C. The City does not maintain a list of foreign articles that will be treated as domestic for this
Contract; but will consider for approval foreign articles as domestic for this product if the articles
are on a list approved by another Governmental Agency. The Offeror shall submit documentation
with their Offer demonstrating that the article is on an approved Governmental list.
D. The Contractor shall deliver only domestic end products except to the extent that it specified
delivery of foreign end products in the provision of the Solicitation entitled "Buy American Act
Certificate".
57. RIGHT TO INFORMATION: The City of Denton reserves the right to use any and all
information presented in any response to this contract, whether amended or not, except as
prohibited by law. Selection of rejection of the submittal does not affect this right.
59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as
defined by the United States Department of Labor Davis-Bacon Wage Determination at
http://www.dol.gov/whd/contracts/dbra.htm and at the Wage Determinations website www.wdol.gov
for Denton County, Texas (WD-2509).
60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: City and
Contractor shall comply with all applicable laws in performance of its obligations under this
Agreement. Contractor does not assume any responsibility for compliance with any laws and
regulations relating to the operation or use of the Equipment, which is the sole responsibility of
the City. All laws and regulations referenced herein shall be those in effect as of the Acceptance
Date. If Purchaser desires a modification as a result of any such change or revision, it shall be
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treated as a change. Nothing contained herein shall be construed as imposing responsibility or
liability upon Contractor for obtaining any permits, licenses or approvals from any agency required
in connection with the supply, erection or operation of the Equipment.
61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on-
site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530
of the Revenue Act of 1978, dealing with issuance of Form W-2's to common law employees.
Respondent is responsible for both federal and State unemployment insurance coverage and
standard Workers’ Compensation insurance coverage. Respondent shall ensure compliance with
all federal and State tax laws and withholding requirements. The City of Denton shall not be liable
to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or
federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall
pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section.
62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions
of the Drug-Free Work Place Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701
ET SEQ.) and maintain a drug-free work environment; and the final rule, government-wide
requirements for drug-free work place (grants), issued by the Office of Management and Budget
and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the
Drug-Free Work Place Act of 1988 is incorporated by reference and the contractor shall comply
with the relevant provisions thereof, including any amendments to the final rule that may hereafter
be issued.
63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The
Respondent shall be liable for all damages to government-owned, leased, or occupied property and
equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers,
including any delivery or cartage company, in connection with any performance pursuant to the
Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any
such damage within one (1) calendar day.
64. FORCE MAJEURE: The City of Denton, any Customer, and the Respondent shall not be
responsible for performance under the Contract should it be prevented from performance by an act
of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault
or negligence of the City of Denton. In the event of an occurrence under this Section, the
Respondent will be excused from any further performance or observance of the requirements so
affected for as long as such circumstances prevail and the Respondent continues to use
commercially reasonable efforts to recommence performance or observance whenever and to
whatever extent possible without delay. The Respondent shall immediately notify the City of
Denton Procurement Manager by telephone (to be confirmed in writing within five (5) calendar
days of the inception of such occurrence) and describe at a reasonable level of detail the
circumstances causing the non-performance or delay in performance.
65. NON-WAIVER OF RIGHTS: Failure of a Party to require performance by another Party
under the Contract will not affect the right of such Party to require performance in the future. No
delay, failure, or waiver of either Party’s exercise or partial exercise of any right or remedy under
the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right
or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as
a waiver of any continuing or succeeding breach.
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66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision
of the Contract is in any way intended to constitute a waiver by the City of Denton of any
immunities from suit or from liability that the City of Denton may have by operation of law.
67. RECORDS RETENTION: The Respondent shall retain all financial records, supporting
documents, statistical records, and any other records or books relating to the performances called
for in the Contract. The Respondent shall retain all such records for a period of four (4) years after
the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit
and litigation matters are resolved, whichever period is longer. The Respondent shall grant access
to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of
Texas, and any federal governmental entity that has authority to review records due to federal
funds being spent under the Contract.
Should a conflict arise between any of the contract documents, it shall be resolved with the
following order of precedence (if applicable). In any event, the final negotiated contract shall
take precedence over any and all contract documents to the extent of such conflict.
1. Final negotiated contract
2. RFP/Bid documents
3. City’s standard terms and conditions
4. Purchase order
5. Supplier terms and conditions
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Exhibit D
INSURANCE REQUIREMENTS AND
WORKERS’ COMPENSATION REQUIREMENTS
Upon contract execution, all insurance requirements shall become contractual obligations, which
the successful contractor shall have a duty to maintain throughout the course of this contract.
STANDARD PROVISIONS:
Without limiting any of the other obligations or liabilities of the Contractor, the Contractor
shall provide and maintain until the contracted work has been completed and accepted by
the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter.
Contractor shall file with the Purchasing Department satisfactory certificates of insurance
including any applicable addendum or endorsements, containing the contract number and
title of the project. Contractor may, upon written request to the Purchasing Department,
ask for clarification of any insurance requirements at any time; however, Contractor shall
not commence any work or deliver any material until he or she receives notification that
the contract has been accepted, approved, and signed by the City of Denton.
All insurance policies proposed or obtained in satisfaction of these requirements shall
comply with the following general specifications, and shall be maintained in compliance
with these general specifications throughout the duration of the Contract, or longer, if so
noted:
Each policy shall be issued by a company authorized to do business in the State of Texas
with an A.M. Best Company rating of at least A or better.
Any deductibles or self-insured retentions shall be declared in the proposal. If requested
by the City, the insurer shall reduce or eliminate such deductibles or self-insured retentions
with respect to the City, its officials, agents, employees and volunteers; or, the contractor
shall procure a bond guaranteeing payment of losses and related investigations, claim
administration and defense expenses.
Liability policies shall be endorsed to provide the following:
Name as Additional Insured the City of Denton, its Officials, Agents, Employees
and volunteers.
That such insurance is primary to any other insurance available to the Additional
Insured with respect to claims covered under the policy and that this insurance
applies separately to each insured against whom claim is made or suit is brought.
The inclusion of more than one insured shall not operate to increase the insurer's
limit of liability.
Provide a Waiver of Subrogation in favor of the City of Denton, its officials, agents,
employees, and volunteers.
Cancellation: City requires 30 day written notice should any of the policies
described on the certificate be cancelled or materially changed before the
expiration date.
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Should any of the required insurance be provided under a claims made form, Contractor
shall maintain such coverage continuously throughout the term of this contract and,
without lapse, for a period of three years beyond the contract expiration, such that
occurrences arising during the contract term which give rise to claims made after
expiration of the contract shall be covered.
Should any of the required insurance be provided under a form of coverage that includes
a general annual aggregate limit providing for claims investigation or legal defense costs
to be included in the general annual aggregate limit, the Contractor shall either double the
occurrence limits or obtain Owners and Contractors Protective Liability Insurance.
Should any required insurance lapse during the contract term, requests for payments
originating after such lapse shall not be processed until the City receives satisfactory
evidence of reinstated coverage as required by this contract, effective as of the lapse date.
If insurance is not reinstated, City may, at its sole option, terminate this agreement
effective on the date of the lapse.
SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS:
All insurance policies proposed or obtained in satisfaction of this Contract shall
additionally comply with the following marked specifications, and shall be maintained in
compliance with these additional specifications throughout the duration of the Contract,
or longer, if so noted:
[X] A. General Liability Insurance:
General Liability insurance with combined single limits of not less than $1,000,000.00
shall be provided and maintained by the Contractor. The policy shall be written on an
occurrence basis either in a single policy or in a combination of underlying and
umbrella or excess policies.
If the Commercial General Liability form (ISO Form CG 0001 current edition) is used:
Coverage A shall include premises, operations, products, and completed
operations, independent contractors, contractual liability covering this
contract and broad form property damage coverage.
Coverage B shall include personal injury.
Coverage C, medical payments, is not required.
If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition
and ISO Form GL 0404) is used, it shall include at least:
Bodily injury and Property Damage Liability for premises, operations, products
and completed operations, independent contractors and property damage
resulting from explosion, collapse or underground (XCU) exposures.
Broad form contractual liability (preferably by endorsement) covering this
contract, personal injury liability and broad form property damage liability.
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[X] Automobile Liability Insurance:
Contractor shall provide Commercial Automobile Liability insurance with Combined Single
Limits (CSL) of not less than $500,000 either in a single policy or in a combination of basic
and umbrella or excess policies. The policy will include bodily injury and property damage
liability arising out of the operation, maintenance and use of all automobiles and mobile
equipment used in conjunction with this contract.
Satisfaction of the above requirement shall be in the form of a policy endorsement for:
any auto, or
all owned hired and non-owned autos.
[X] Workers’ Compensation Insurance
Contractor shall purchase and maintain Workers’ Compensation insurance which, in
addition to meeting the minimum statutory requirements for issuance of such insurance,
has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each
employee, and a $500,000 policy limit for occupational disease. The City need not be
named as an "Additional Insured" but the insurer shall agree to waive all rights of
subrogation against the City, its officials, agents, employees and volunteers for any work
performed for the City by the Named Insured. For building or construction projects, the
Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096
of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers’ Compensation
Commission (TWCC).
[ ] Owner's and Contractor's Protective Liability Insurance
The Contractor shall obtain, pay for and maintain at all times during the prosecution of the
work under this contract, an Owner's and Contractor's Protective Liability insurance policy
naming the City as insured for property damage and bodily injury which may arise in the
prosecution of the work or Contractor's operations under this contract. Coverage shall be
on an “occurrence" basis and the policy shall be issued by the same insurance company
that carries the Contractor's liability insurance. Policy limits will be at least $500,000.00
combined bodily injury and property damage per occurrence with a $1,000,000.00
aggregate.
[ ] Fire Damage Legal Liability Insurance
Coverage is required if Broad form General Liability is not provided or is unavailable to the
contractor or if a contractor leases or rents a portion of a City building. Limits of not less
than each occurrence are required.
[ ] Professional Liability Insurance
Professional liability insurance with limits not less than $1,000,000.00 per claim with
respect to negligent acts, errors or omissions in connection with professional services is
required under this Agreement.
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[ ] Builders' Risk Insurance
Builders' Risk Insurance, on an All-Risk form for 100% of the completed value shall be
provided. Such policy shall include as "Named Insured" the City of Denton and all
subcontractors as their interests may appear.
[ ] Environmental Liability Insurance
Environmental liability insurance for $1,000,000 to cover all hazards contemplated by this
contract.
[ ] Riggers Insurance
The Contractor shall provide coverage for Rigger’s Liability. Said coverage may be
provided by a Rigger’s Liability endorsement on the existing CGL coverage; through and
Installation Floater covering rigging contractors; or through ISO form IH 00 91 12 11,
Rigger’s Liability Coverage form. Said coverage shall mirror the limits provided by the
CGL coverage
[ ] Commercial Crime
Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside
the premises, burglary of the premises, and employee fidelity. The employee fidelity
portion of this coverage should be written on a “blanket” basis to cover all employees,
including new hires. This type insurance should be required if the contractor has access
to City funds. Limits of not less than $ each occurrence are required.
[ ] Additional Insurance
Other insurance may be required on an individual basis for extra hazardous contracts and
specific service agreements. If such additional insurance is required for a specific
contract, that requirement will be described in the "Specific Conditions" of the contract
specifications.
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ATTACHMENT 1
[ ] Workers’ Compensation Coverage for Building or Construction Projects for
Governmental Entities
A. Definitions:
Certificate of coverage ("certificate")-A copy of a certificate of insurance, a
certificate of authority to self-insure issued by the commission, or a coverage
agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing statutory
workers' compensation insurance coverage for the person's or entity's
employees providing services on a project, for the duration of the project.
Duration of the project - includes the time from the beginning of the work on
the project until the contractor's/person's work on the project has been
completed and accepted by the governmental entity.
Persons providing services on the project ("subcontractor" in §406.096) -
includes all persons or entities performing all or part of the services the
contractor has undertaken to perform on the project, regardless of whether
that person contracted directly with the contractor and regardless of whether
that person has employees. This includes, without limitation, independent
contractors, subcontractors, leasing companies, motor carriers, owner-
operators, employees of any such entity, or employees of any entity which
furnishes persons to provide services on the project. "Services" include,
without limitation, providing, hauling, or delivering equipment or materials, or
providing labor, transportation, or other service related to a project. "Services"
does not include activities unrelated to the project, such as food/beverage
vendors, office supply deliveries, and delivery of portable toilets.
B. The contractor shall provide coverage, based on proper reporting of
classification codes and payroll amounts and filing of any overage
agreements, which meets the statutory requirements of Texas Labor Code,
Section 401.011(44) for all employees of the Contractor providing services on
the project, for the duration of the project.
C. The Contractor must provide a certificate of coverage to the governmental
entity prior to being awarded the contract.
D. If the coverage period shown on the contractor's current certificate of coverage
ends during the duration of the project, the contractor must, prior to the end of
the coverage period, file a new certificate of coverage with the governmental
entity showing that coverage has been extended.
E. The contractor shall obtain from each person providing services on a project,
and provide to the governmental entity:
1. a certificate of coverage, prior to that person beginning work on the
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project, so the governmental entity will have on file certificates of
coverage showing coverage for all persons providing services on the
project; and
2. no later than seven days after receipt by the contractor, a new certificate
of coverage showing extension of coverage, if the coverage period
shown on the current certificate of coverage ends during the duration of
the project.
F. The contractor shall retain all required certificates of coverage for the duration
of the project and for one year thereafter.
G. The contractor shall notify the governmental entity in writing by certified mail
or personal delivery, within 10 days after the contractor knew or should have
known, of any change that materially affects the provision of coverage of any
person providing services on the project.
H. The contractor shall post on each project site a notice, in the text, form and
manner prescribed by the Texas Workers' Compensation Commission,
informing all persons providing services on the project that they are required
to be covered, and stating how a person may verify coverage and report lack
of coverage.
I. The contractor shall contractually require each person with whom it contracts
to provide services on a project, to:
1. provide coverage, based on proper reporting of classification codes and
payroll amounts and filing of any coverage agreements, which meets the
statutory requirements of Texas Labor Code, Section 401.011(44) for all of
its employees providing services on the project, for the duration of the
project;
2. provide to the contractor, prior to that person beginning work on the project,
a certificate of coverage showing that coverage is being provided for all
employees of the person providing services on the project, for the duration
of the project;
3. provide the contractor, prior to the end of the coverage period, a new
certificate of coverage showing extension of coverage, if the coverage
period shown on the current certificate of coverage ends during the duration
of the project;
4. obtain from each other person with whom it contracts, and provide to the
contractor:
a. a certificate of coverage, prior to the other person beginning work on the
project; and
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b. a new certificate of coverage showing extension of coverage, prior to the
end of the coverage period, if the coverage period shown on the current
certificate of coverage ends during the duration of the project;
5. retain all required certificates of coverage on file for the duration of the
project and for one year thereafter;
6. notify the governmental entity in writing by certified mail or personal
delivery, within 10 days after the person knew or should have known, of any
change that materially affects the provision of coverage of any person
providing services on the project; and
7. Contractually require each person with whom it contracts, to perform as
required by paragraphs (1) - (7), with the certificates of coverage to be
provided to the person for whom they are providing services.
J. By signing this contract or providing or causing to be provided a certificate of
coverage, the contractor is representing to the governmental entity that all
employees of the contractor who will provide services on the project will be
covered by workers' compensation coverage for the duration of the project,
that the coverage will be based on proper reporting of classification codes and
payroll amounts, and that all coverage agreements will be filed with the
appropriate insurance carrier or, in the case of a self-insured, with the
commission's Division of Self-Insurance Regulation. Providing false or
misleading information may subject the contractor to administrative penalties,
criminal penalties, civil penalties, or other civil actions.
K. The contractor’s failure to comply with any of these provisions is a breach of
contract by the contractor which entitles the governmental entity to declare the
contract void if the contractor does not remedy the breach within ten days after
receipt of notice of breach from the governmental entity.
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Exhibit E
Certificate of Interested Parties Electronic Filing
In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the
Government Code. The law states that the City may not enter into this contract unless the
Contractor submits a disclosure of interested parties (Form 1295) to the City at the time the
Contractor submits the signed contract. The Texas Ethics Commission has adopted rules requiring
the business entity to file Form 1295 electronically with the Commission.
Contractor will be required to furnish a Certificate of Interest Parties before the contract is
awarded, in accordance with Government Code 2252.908.
The contractor shall:
1. Log onto the State Ethics Commission Website at :
https://www.ethics.state.tx.us/filinginfo/1295/
2. Register utilizing the tutorial provided by the State
3. Print a copy of the completed Form 1295
4. Enter the Certificate Number on page 2 of this contract.
5. Complete and sign the Form 1295
6. Email the form to purchasing@cityofdenton.com with the contract number in the subject line.
(EX: Contract 1234 – Form 1295)
The City must acknowledge the receipt of the filed Form 1295 not later than the 30th day after
Council award. Once a Form 1295 is acknowledged, it will be posted to the Texas Ethics
Commission’s website within seven business days.
DocuSign Envelope ID: 1E5B3E2C-8CB8-41EC-965C-F5FAE4C006F9
OW INVESTORS, LLC dba MARS COMPANYLine # DescriptionQTY UOMUNIT PRICE1Truck‐Mounted Mobile Meter Test System‐*PRICING ALSO INCLUDES ALL THE COMPONENTS NEEDED FOR A RECIRCULATION SYSTEM. 1 EA$83,121.002Test Bench System1 EA$228,390.003Software Suite1 EA$262,560.004Installation Training1 EA$86,988.005Maintenance‐*1ST YR UNDER WARRANTY NO COST, MAINTENANCE FEE IS ONLY ON YR 2‐5‐‐PRE‐PAID$85,376.006Software LicenceNO COST7Repair1 Per Hour $250.008Replacement Parts1 EA 20.0%8173 ‐ Page 1EXHIBIT FDocuSign Envelope ID: 1E5B3E2C-8CB8-41EC-965C-F5FAE4C006F9
CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ
For vendor or other person doing business with local governmental entity
This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., Regular Session.
This questionnaire is being filed in accordance with Chapter 176, Local Government Code, by a vendor who has a business relationship as defined
by Section 176.001(1-a) with a local governmental entity and the vendor meets requirements under Section 176.006(a) and by City of Denton
Ethics Code, Ordinance 18-757.
By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the
date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Government Code.
A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code. An offense under this section is a
misdemeanor.
1 Name of vendor who has a business relationship with local governmental entity.
2
Check this box if you are filing an update to a previously filed questionnaire.
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th business day
after the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate.)
3 Name of local government officer about whom the information in this section is being disclosed.
Name of Officer
Describe each employment or other business relationship with the local government officer, or a family member of the officer, as described by Section
176.003(a)(2)(A). Also describe any family relations hip with the local government officer. This section, (item 3 including subparts A, B, C & D), must be
completed for each officer with whom the vendor has an employment or other business relationship as defined by Section 176.00 1(1-a), Local Government Code.
Attach additional pages to this Form CIQ as necessary.
A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the vendor?
Yes No
B. Is the vendor receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in
this section AND the taxable income is not received from the local governmental entity?
Yes No
C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer
or director, or holds an ownership of one percent or more?
Yes No
D. Describe each employment or business and family relationship with the local government officer named in this section.
4
I have no Conflict of Interest to disclose.
5
Signature of vendor doing business with the governmental entity Date
DocuSign Envelope ID: 1E5B3E2C-8CB8-41EC-965C-F5FAE4C006F9
OW INVESTORS, LLC DBA MARS COMPANY
EXHIBIT G
3/31/2023
X
CONFLICT OF INTEREST QUESTIONNAIRE
For vendor doing business with local governmental entity
A complete copy of Chapter 176 of the Local Government Code may be found at http://www.statutes.legis.state.tx.us/ Docs/LG/htm/LG.176.htm. For easy
reference, below are some of the sections cited on this form.
Local Government Code § 176.001(1-a): "Business relationship" means a connection between two or more parties based on commercial activity of one of the
parties. The term does not include a connection based on:
(A) a transaction that is subject to rate or fee regulation by a federal, state, or local governmental entity or an agency of a federal, state, or local
governmental entity;
(B) a transaction conducted at a price and subject to terms available to the public; or
(C) a purchase or lease of goods or services from a person that is chartered by a state or federal agency and that is subject to regular examination by,
and reporting to, that agency.
Local Government Code § 176.003(a)(2)(A) and (B):
(A) A local government officer shall file a conflicts disclosure statement with respect to a vendor if:
(2) the vendor:
(A) has an employment or other business relationship with the local government officer or a family member of the officer that
results in the officer or family member receiving taxable income, other than investment income, that exceeds $2,500 during
the 12-month period preceding the date that the officer becomes aware that
(i) a contract between the local governmental entity and vendor has been executed; or
(ii) the local governmental entity is considering entering into a contract with the vendor;
(B) has given to the local government officer or a family member of the officer one or more gifts that have an aggregate value of more
than $100 in the 12-month period preceding the date the officer becomes aware that:
(i) a contract between the local governmental entity and vendor has been executed; or
(ii) the local governmental entity is considering entering into a contract with the vendor.
Local Government Code § 176.006(a) and (a-1)
(a) A vendor shall file a completed conflict of interest questionnaire if the vendor has a business relationship with a local governmental entity and:
(1) has an employment or other business relationship with a local government officer of that local governmental entity, or a family member
of the officer, described by Section 176.003(a)(2)(A);
(2) has given a local government officer of that local governmental entity, or a family member of the officer, one or more gifts with the
aggregate value specified by Section 176.003(a)(2)(B), excluding any gift described by Section 176.003(a-1); or
(3) has a family relationship with a local government officer of that local governmental entity.
(a-1) The completed conflict of interest questionnaire must be filed with the appropriate records administrator not later than the seventh business day
after the later of:
(1) the date that the vendor:
(A) begins discussions or negotiations to enter into a contract with the local governmental entity; or
(B) submits to the local governmental entity an application, response to a request for proposals or bids, correspondence, or another
writing related to a potential contract with the local governmental entity; or
(2) the date the vendor becomes aware:
(A) of an employment or other business relationship with a local government officer, or a family member of the officer,
described by Subsection (a);
(B) that the vendor has given one or more gifts described by Subsection (a); or
(C) of a family relationship with a local government officer.
City of Denton Ethics Code Ordinance Number 18-757
Definitions:
Relative: a family member related to a City Official within the third 3rd degree of affinity (marriage) or consanguinity (blood or adoption)
City Official: for purpose of this article, the term consists of the Council Members, Department Heads, or member of the Board of Ethics, Planning
and zoning Commission Members, Board of Adjustment, Historic Landmark Commission, or Public Utilities Board
Vendor: a person who provides or seeks to provide goods, services, and/or real property to the City in exchange for compensation. This definition
does not include those property owners from whom the City acquires public right-of-way or other real property interests for public use.
Per the City of Denton Ethics Code, Section 2-273. – Prohibitions
(3) It shall be a violation of this Article for a Vendor to offer or give a Gift to City Official exceeding fifty dollars ($50.00) per gift, or multiple gifts
cumulatively valued at more than two hundred dollars ($200.00) per a single fiscal year.
Per the City of Denton Ethics Code, Section 2-282. – Disposition (b), (5) Ineligibility
If the Board of Ethics finds that a Vendor has violated this Article, the Board may recommend to the City Manager that the Vendor be deemed
ineligible to enter into a City contract or other arrangement for goods, services, or real property, for a period of one (1) year.
Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised 11/30/2015
DocuSign Envelope ID: 1E5B3E2C-8CB8-41EC-965C-F5FAE4C006F9
Exhibit H
MARS COMPANY
WARRANTY, GENERAL TERMS AND CONDITIONS
MARS Company Proprietary & Confidential (DENTON) MARS_STD_WTC_5-6-2022 (003) COD
FinalMARS_STD_WTC_3-15-2022.docx Page 1 of 3
1) General. The terms and conditions of the Contract By and Between City of Denton, Texas and OW Investors, LLC dba MARS Company shall take precedence over these terms and conditions (these “Terms”), the Equipment, Software and Services Contract (the “Contract”) and its Schedules, the M3 Enterprise Software End User License Agreement (the “EULA”), MARS Calibration Certification - General Conditions of Service and Maintenance Agreement
(the “MCC”), any proposal from MARS Company received by Purchaser (the “Proposal”),
any purchase order and any change orders attached and incorporated hereto, (collectively,
this “Agreement”) are the only terms that govern Equipment and Services sold or provided
by MARS Company and comprise the entire agreement between the parties regarding the
Equipment and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. “MARS On-Premise Equipment” means computer, software and related equipment including but not limited to (i) computer servers and server operating system software, (ii) test bench computers and operating system software, and (iii) routers, and (iv) mobile test bench laptop computers and operating system software that are owned by MARS and provided to
the Licensee (defined hereafter) to use during the M3 Software subscription or usage term.
"Equipment" means the hardware, parts, iPads, cables, printers, and accessories, excluding
MARS On-Premise Equipment, sold under the purchase order accompanying these Terms.
“Software” means the M3 enterprise software, including any updates, upgrades, versions,
enhancements, and/or any new features (collectively, the “Software” and together with the Equipment and the MARS On-Premise Equipment, the “MARS Test Bench Solution”). "Purchaser" means the entity buying the Equipment or Software pursuant to the Contract or purchase order accompanying these Terms. “Licensee” means the entity identified on the Contract by and between these parties. "Services" means all labor, supervisory, technical and engineering, installation, repair, consulting or other services provided by MARS Company
related to the Equipment. PURCHASER WILL BE DEEMED TO HAVE ACCEPTED THESE
TERMS UNLESS MARS COMPANY RECEIVES WRITTEN NOTICE OF ANY OBJECTION
WITHIN THREE (3) BUSINESS DAYS AFTER PURCHASER’S RECEIPT..
2) Delivery of Equipment and Performance of Services. a) All Equipment to fulfill MARS’ obligations under this Agreement is delivered F.O.B. to destination designated by Purchaser. The date on which the Equipment (which may include pre-loaded Software) is delivered to Purchaser is the “Delivery Date.” b) If the scheduled Delivery Date is delayed by Purchaser or by a force majeure event, MARS Company may move the Equipment to a temporary storage location approved by the Purchaser for the account of and at the risk of Purchaser whereupon it shall be deemed to
be delivered, the date of such deemed delivery shall be the Delivery Date, and payment
for the delivered Equipment and Software shall be due in accordance with Section 5(b). All
expenses for the temporary storage transportation, storage fees, redelivery fees, etc. shall
be the sole responsibility of Purchaser and payable to MARS Company together with payment for Equipment and Software in accordance with Section 5(b). c) Shipping and delivery times are contingent upon Purchaser's timely approvals and delivery by Purchaser of any documentation required for MARS Company's performance hereunder. d) Claims for shortages or other errors in delivery must be made in writing to MARS Company within ten (10) days of the Delivery Date. Claims for damage caused by delivery shall be
made directly by Purchaser with the common carrier.
e) Except as expressly set forth herein, Purchaser may not return any goods without MARS’s
written consent. All returns are subject to a restocking fee/handling charge of 25%, which
may change from time to time. Contact MARS to determine the exact amount. If the goods are specially ordered by the Purchaser, they cannot be returned to MARS, MARS shall have no obligation to accept the return of the goods, and Purchaser shall remain liable for the entire purchase price of the goods. f) MARS Company shall provide, and Purchaser shall pay for MARS Company’s performance of, the Services described in one or more statements of work executed by MARS Company and any person listed as Purchaser’s authorized representative in writing by Purchaser.
With respect to the Services, Purchaser shall (i) cooperate with MARS Company in all
matters relating to the Services and provide such reasonable access to Purchaser's
premises, and such office accommodation and other facilities as may reasonably be
requested by MARS Company, for the purposes of performing the Services; (ii) respond promptly to any MARS Company request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for MARS Company to perform Services in accordance with the requirements of this Agreement; (iii) provide such materials or information as MARS Company may reasonably request to perform the Services in a timely manner; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on
which the Services are to start.
3) Purchase Order and Acceptance.
a) Purchaser shall be deemed to irrevocably accept these Terms, and MARS Company’s
furnishing of Equipment, Software and Services in accordance with these Terms, upon the earlier to occur of the following: (i) Purchaser’s issuance of a purchase order; (ii) Purchaser’s non-rejection of Equipment, Software or Services on the earliest Delivery Date; or (iii) Purchaser’s payment for Equipment, Software or Services, in whole or in part. 4) Purchase Price and Service and Software Fees.
a) The purchase price of the Equipment and the hourly rates for Services are set forth in the
Contract. Unless otherwise agreed by the parties in writing, all Proposals expire thirty (30)
days from the date thereof.
b) Unless otherwise stated in a statement of work, the hourly rates set forth in the Contract is
based on Services performed during normal business hours (8 a.m. to 5 p.m. Monday through Friday). Any Services performed on: (i) a business day outside of normal business hours or on a Saturday will be billed at one and one-half (1 1/2) times the hourly rate; (ii) Sunday will be billed at two (2) times the hourly rate; and (iii) a federal holiday, including any falling on a Saturday or Sunday, will be billed at three (3) times the hourly rate. If a Services rate sheet is attached hereto, the applicable Services rates shall be those set
forth in the rate sheet. Service rates are subject to change without notice.
c) The purchase price of the Equipment does not include any federal, state or local property,
license, permits, privilege, sales, use, excise, gross receipts, manufacturer’s tax,
occupation tax, transfer tax, privilege tax, excise tax, duty, custom, tariff, inspection or
testing fee, or any other tax, fee, interest or charge of any nature whatsoever, whether international, national, state, or local, however designated, which is levied or imposed by any governmental authority, on or measured by the transaction between MARS Company and Purchaser, shall be paid by Purchaser in addition to the prices quoted or invoiced, or in lieu thereof the Purchaser shall supply MARS Company with an appropriate tax exemption certificate. In the event MARS Company is required to pay any such tax, fee,
interest or charge, Purchaser shall reimburse MARS Company therefore. If Purchaser is
exempt from the payment of any tax or holds a direct payment permit, Purchaser shall,
upon submitting a purchase order, provide MARS Company a copy, acceptable to the
relevant governmental authorities of any such certificate or permit. Purchaser agrees that,
in the event of a Significant Cost Increase, MARS may increase the price of the MARS Test Bench Solution in an equitable amount for so long as such Significant Cost Increase is occurring. A “Significant Cost Increase” for purposes of this Agreement and any
purchase order or similar issued hereunder shall be an increase of five percent (5%) or more of the then-prevailing aggregate cost to MARS of raw materials, energy and transportation costs incurred in connection with the manufacture, delivery and/or servicing of any component of the MARS Test Bench Solution. In the event a Significant Cost Increase is no longer occurring, the price of the MARS Test Bench Solution shall revert
back to that of the applicable purchase order.
d) Services fees, including but not limited to MARS calibration certification equipment
maintenance and services (MCC) fees, shall be (i) designated in the manner set forth on
the Proposal or the MCC. and (ii) payable ANNUALLY IN ADVANCE of performance of
Services. e) Software fees shall be (i) designated in the manner set forth on the Proposal or the Contract, and (ii) payable ANNUALLY IN ADVANCE of Software activation, renewal, re-activation, etc.; as appropriate. f) In the event Purchaser prepays Software fees to be applied against future MARS Services projects, Purchaser shall have twelve (12) months from the effective date of the Schedule
of Software and Services to utilize the prepaid Fees towards a Services project. Any Fee
credits shall expire after twelve (12) months and Purchaser shall not be entitled to any
refund.
g) If Licensee purchased an On-Premise Subscription Usage License, then:
(i) Software fees shall be calculated based upon the monthly pro-rated amount of M3 Annual Meter Testing Usage and respective M3 Usage Tier and Usage Tier Discount as follows: the multiplication of each of the amounts: (i) One (1) subtracted by the Usage Tier Discount, and (ii) prevailing annual On-Premise Subscription Term License. (ii) By way of example, if Licensee M3 Annual Meter Testing Usage exceeds Usage Tier I during five months into a 12-month renewal term and does not exceed Usage Tier 2
during the following seven months, then the Software Fee calculation would be: [(1-
Usage Tier I Discount) x (5/12)] + [(1-Usage Tier Discount II) x (7/12)]. Licensee agrees
that Usage Tiers may be increased but not decreased.
h) MARS may increase its license and other fees, not included in this Agreement, at any time
without notice so fees due for new or additional Software license or subscription purchases may be more than a previous purchase. i) If Licensee purchased an On-Premise Subscription License, MARS may not increase the associated license fees more than once in any 12-month period following Licensee’s initial purchase by more than ten percent (10%). MARS will notify Licensee of a price increase at least 90 days before the increase takes effect. j) .
k) You are responsible for providing MARS with the most current contact and billing
information. Purchaser may provide updates to Purchaser’s contact information to MARS
at Sales@MARSwater.com and updates to Purchasers billing information to MARS. You
agree that, so long as the On-Premise Subscription Term License is active, MARS may, on a monthly basis, automatically bill the same credit card or bank account Purchaser provides to MARS. 5) Payment. a) Unless specified to the contrary in writing by MARS Company, payment terms are net cash, payable without offset, in United States Dollars, thirty (30) days from date of invoice by
ACH or wire transfer to the account designated by MARS Company in the Proposal.
b) Notwithstanding Section 5(b) above, payment terms for Equipment and Software are net
cash, payable without offset, in United States Dollars and due on the Delivery Date by ACH
or wire transfer to the account designated by MARS Company to Purchaser in writing (which may be delivered by email). c) If Purchaser fails to pay any reasonably undisputed invoice by the due date, MARS Company may require payment in advance, payment security satisfactory to MARS Company, or may terminate the purchase order, whereupon MARS Company shall be entitled to receive reasonable cancellation charges. If delivery is delayed by Purchaser, payment shall be due on the date MARS Company is prepared to make delivery. Delays
in delivery or nonconformities in any installments delivered shall not relieve Purchaser of
its obligation to accept and pay for remaining installments.
d) Purchaser shall pay, in addition to the overdue payment, a late charge equal to the lesser
of 1 1/2% per month or any part thereof or the highest applicable rate allowed by law on all such overdue amounts plus MARS Company's attorneys' fees and court costs incurred in connection with collection. If Purchaser’s account is overdue (except with respect to amounts subject to a bona fide dispute), in addition to any of its other rights or remedies, MARS reserves the right to (i) suspend any MARS Services to Purchaser, and (ii) terminate Your use of the software and Purchaser shall pay a non-refundable, software reactivation fee (“Software Reactivation Fee”) calculated as follows: (i) twenty-five hundred dollars
($2,500) if reactivation is within 30 days of license expiration, plus (ii) five thousand dollars
($5,000) for each subsequent 30 days, payable in advance of software reactivation, without
liability, until such amounts are paid in full. By way of example, if Licensee reactivates the
software 90 days after license expiration, then Software Reactivation Fee calculation would
be: [($2,500) + (2 x $5,000) = $12,500. 6) Changes. a) Any changes to a statement of work requested by Purchaser must be accepted by MARS Company and resulting adjustments to affected provisions, including price, schedule, and guarantees mutually agreed in writing prior to implementation of the change (the “Change
Order”), and comply with the provisions of Section 27(e)(i).
b) MARS Company may, at its expense, make such changes in the Equipment or Services
as it deems necessary, in its sole discretion, to conform the Equipment or Services to the
applicable specifications agreed upon by the parties. If Purchaser objects to any such
changes, MARS Company shall be relieved of its obligation to conform to the applicable specifications to the extent that conformance may be affected by such objection. c) MARS Company may, at any time while the Equipment is under warranty, make such changes in design and construction of Equipment that it deems, in its sole discretion, to be an improvement. MARS Company may furnish suitable substitutes for materials that are unobtainable because of priorities or regulations established by governmental authority or
non-availability of materials from suppliers.
7) Title & Risk of Loss.
a) Notwithstanding any agreement with respect to delivery terms or payment of transportation
charges, risk of loss or damage shall pass to Purchaser upon delivery. b) Title to the Equipment shall remain with MARS Company until Purchaser has paid MARS Company the full purchase price of the Equipment. 8) Bonding. Any cost related to Payment Bonds, Performance Bonds, Labor and Material Bonds, hereinafter referred to as “BONDS” or any such financially bonding documents and/or
mechanism required by Contract are not included unless specified to the contrary in writing
by MARS Company. BONDS, if applicable, will be provided for either, (i) 12 months from the
issuance / requirement date from Purchaser, or (ii) Contract Completion, whichever occurs
first. Any costs to extend the requirement or to maintain or extend BONDS coverage beyond
12 months will be paid by Purchaser. 9) Inspection, Testing, Installation and Acceptance.
DocuSign Envelope ID: 1E5B3E2C-8CB8-41EC-965C-F5FAE4C006F9
Exhibit H
MARS COMPANY
WARRANTY, GENERAL TERMS AND CONDITIONS
MARS Company Proprietary & Confidential (DENTON) MARS_STD_WTC_5-6-2022 (003) COD
FinalMARS_STD_WTC_3-15-2022.docx Page 2 of 3
a) Any inspection by Purchaser of Equipment on MARS Company's premises shall be scheduled in advance to be performed during normal working hours. b) If the purchase order provides for factory acceptance testing of the Equipment, MARS Company shall notify Purchaser when MARS Company will conduct such testing, which will be prior to shipment. UNLESS PURCHASER PROVIDES MARS COMPANY WITH
WRITTEN NOTICE OF SPECIFIC OBJECTIONS WITHIN TEN (10) DAYS AFTER
COMPLETION OF FACTORY ACCEPTANCE TESTING, COMPLETION OF THE
FACTORY ACCEPTANCE TEST CONSTITUTES PURCHASER'S FULL ACCEPTANCE
OF THE EQUIPMENT AND ITS AUTHORIZATION FOR SHIPMENT.
c) MARS Company agrees to supply and install the MARS Test Bench Solution at a mutually agreeable location on the Purchaser’s facility. For such installation, the Purchaser, at its sole cost and expense, shall: (i) provide a mutually agreeable electrical source and a water source to the MARS Test Bench Solution and (ii) engage a licensed plumber and licensed electrician to connect the MARS Test Bench Solution with such electrical and water sources (collectively, the “Purchaser Installation Responsibilities”).
d) After the Purchaser completes the Purchaser Installation Responsibilities to MARS
Company’s reasonable satisfaction and MARS Company installs the MARS Test Bench
Solution, MARS Company and the Purchaser will perform testing in accordance with the
detailed process and specification in accordance with acceptance test procedure (“ATP”)
addendum at marswater.com/ATP. A summary of the ATP is outlined as follows: (i) phase one - calibrate the MARS Test Bench Solution for accuracy (collectively, “Accuracy Calibration”). MARS shall be responsible for hiring a licensed, independent scale calibration and accuracy company (“Licensed Accuracy Calibration Company”) to provide test bench scale system calibration to confirm that the Test Bench Solution meets NIST traceability and accuracy and adheres to local licensing requirements and industry
standards. MARS and the Licensed Accuracy Calibration Company shall document the
accuracy testing in accordance with scale system calibration & accuracy that is set forth
on ATP Schedule A. If the test results conform to ATP Schedule A, the parties mutually
agree the Test Bench Solution will be deemed to have successfully passed this Accuracy
Calibration phase; (ii) Following the completion of the Accuracy Calibration, MARS shall then perform phase two - Test Bench Solution testing for repeatability based on the Accuracy Calibration data. The repeatability testing (“Repeatability Testing”) shall document the performance of the Test Bench Solution using statistical process control model detailed in the ATP. If the test results conform to ATP Schedule B, the parties mutually agree that the Test Bench Solution will be deemed to have successfully passed this Test Bench Solution Repeatably phase; (iv) MARS Company and Purchaser will jointly
perform phase three - operator training and variable meter size acceptance testing of the
MARS Test Bench Solution to ensure that the MARS Test Bench Solution conforms to the
specifications set forth in the Agreement and per AWWA M6 Manual, Fifth Edition pages
63 & 64, Table 5-3. The data from phase three will be made available to the Purchaser and upon receipt will be deemed accepted in so far as operator training and variable meter testing. Upon successful completion of the ATP of this Section, the parties mutually agree that the MARS Test Bench Solution will be deemed acceptable by the Purchaser (collectively, the “Acceptance Testing”). e) The Purchaser shall have accepted the Test Bench Solution (“Accepted”) the earlier of (i) Completion of Acceptance Testing constituting Purchaser’s / Licensee’s full acceptance of
the Test Bench Solution; (ii) IF, THROUGH NO FAULT OF MARS COMPANY, SITE
ACCEPTANCE TESTING IS NOT COMPLETED WITHIN THIRTY (30) DAYS AFTER
ARRIVAL OF THE EQUIPMENT AT THE DESIGNATED SITE OR IN THE CASE OF
SOFTWARE, AFTER TEN (10) DAYS AFTER SOFTWARE INSTALLATION, THE SITE ACCEPTANCE TESTING SHALL BE DEEMED COMPLETED AND THE EQUIPMENT OR SOFTWARE SHALL BE DEEMED ACCEPTED BY PURCHASER. “Acceptance Date” means the date the Equipment and Software was Accepted. 10) Operational Control. OPERATIONAL CONTROL MEANS THE RIGHT TO CONDUCT ANY AND ALL OPERATIONS AND UTILIZE EQUIPMENT AND SERVICES FOR THE
INTENDED PURPOSE OF CONDUCTING WATER METER TESTING, INCLUDING ANY
AND ALL OPERATIONS OF SOFTWARE (EXCLUDING INSPECTION, TESTING AND
ACCEPTANCE). OPERATIONAL CONTROL SHALL REMAIN WITH MARS COMPANY
UNTIL PURCHASER HAS ACCEPTED THE EQUIPMENT OR SOFTWARE PURSUANT TO SECTION 9). 11) Limited Warranties and Remedies (unless otherwise stated). a) Equipment and Services Warranty. MARS Company warrants that Equipment shall be delivered free of defects in material and workmanship. The Warranty Period for Equipment (excluding, spare parts and refurbished or repaired parts) shall end twelve (12) months
after the Acceptance Date. The Warranty Period for new spare parts shall end twelve (12)
months after date of shipment. The Warranty Period for refurbished or repaired parts shall
end ninety (90) days after date of shipment. The Warranty Period for Services shall end
ninety (90) days after the date of completion of Services or one-hundred and twenty (120)
days after Services are initiated, whichever comes first. b) MARS On-Premise Equipment Warranty. MARS Company warrants that MARS On-Premise Equipment shall be delivered free of defects in material and workmanship. c) Equipment and Services Remedy. If a nonconformity to the foregoing warranty is discovered in the Equipment or Services during the applicable Warranty Period, as specified above, under normal and proper use and provided the Equipment has been
properly stored, installed, operated and maintained and written notice of such
nonconformity is provided to MARS Company promptly after such discovery and within the
applicable Warranty Period, MARS Company shall, at its option, either (i) repair or replace
the nonconforming portion of the Equipment or re-perform the nonconforming Services, (ii)
refund the portion of the purchase price applicable to the nonconforming portion of Equipment or Services, or (iii) refund the full purchase price of the Equipment if any nonconformance with the above warranty causes the Equipment to be inoperable. If any portion of the Equipment or Services so repaired, replaced or re-performed fails to conform to the foregoing warranty, and written notice of such nonconformity is provided to MARS Company promptly after discovery and within the original Warranty Period applicable to
such Equipment or Services or thirty (30) days from completion of such repair, replacement
or re-performance, whichever is later, MARS Company will repair or replace such
nonconforming Equipment or re-perform the nonconforming Services. The original
Warranty Period shall not otherwise be extended.
d) Exceptions. MARS Company shall have no obligation hereunder with respect to any Equipment which (i) has been installed by non-MARS authorized entities; (ii) has been improperly repaired or altered by Purchaser or a third party; (iii) has been subjected to misuse, negligence or accident; (iv) has been used in a manner contrary to MARS Company's instructions; (v) is comprised of materials provided by or a design specified by Purchaser; or (vi) has failed as a result of ordinary wear and tear. Equipment supplied by
MARS Company but manufactured by others is warranted only to the extent of the
manufacturer’s warranty, and only the remedies, if any, provided by the manufacturer will
be allowed.
The Warranty Period is void if the Purchaser does not adhere to storage instructions specifying both storage time and temperature or if MARS Company determines, at its sole discretion, that the AMR Radio equipment is improperly maintained, modified, subjected to
excessive operating conditions, incidental damage, intentional or unintentional destruction, act of God, abuse or physically damaged. If any portion of the AMR Radio so repaired or replaced fails to conform to the foregoing warranty, and written notice of such nonconformity is provided to MARS Company promptly after discovery and within the original Warranty Period applicable to such ARM Radio or thirty (30) days from the
shipment date of such repair or replacement, whichever is later, MARS Company will repair
or replace such nonconforming AMR Radio. The original Warranty Period shall not
otherwise be extended.
e) THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF QUALITY AND PERFORMANCE, WHETHER WRITTEN, ORAL OR IMPLIED, AND ALL OTHER WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USAGE OF TRADE ARE HEREBY DISCLAIMED. THE REMEDIES STATED HEREIN CONSTITUTE
PURCHASER’S EXCLUSIVE REMEDIES AND MARS COMPANY’S ENTIRE LIABILITY
FOR ANY BREACH OF WARRANTY.
12) End User License Agreement. BY CLICKING THE “I ACCEPT THE TERMS...” CHECKBOX
ON THE M3 SOFTWARE LICENSE DIALOG BOX, BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, LICENSEE IS CONSIDERED TO HAVE READ, AND LICENSEE AGREES TO BE BOUND BY THE TERMS OF THE END USER LICENSE AGREEMENT (“EULA”). IF LICENSEE IS NOT WILLING TO BE BOUND BY THE TERMS OF THE EULA, LICENSEE SHALL NOT INSTALL, COPY OR USE THE SOFTWARE. THE SOFTWARE, INCLUDING ANY UPDATES, ENHANCEMENTS, NEW FEATURES, AND/OR
THE ADDITION OF ANY NEW SERVICES, ARE SUBJECT TO THESE TERMS AND
CONDITIONS OF THE EULA.
13) Care and Use of MARS On-Premise Equipment. MARS Company shall maintain and service
the MARS On-Premise Equipment from the Delivery Date until either: a) the expiration of the applicable EULA license Term, or b) the date of earlier termination in accordance with the EULA. In all other respects, except for damage or repairs due to the acts or omissions of MARS Company or its employees, agents, or contractors, Purchaser shall maintain in good operating
condition, repair, and appearance, the MARS On-Premise Equipment at Purchaser’s own cost
and expense, and Purchaser shall protect the MARS On-Premise Equipment from damage
and deterioration, other than that caused by normal wear and tear.
Purchaser shall use the MARS On-Premise Equipment in the regular course of business only, within its normal capacity, without abuse, and in the manner contemplated by the parties as of the date of this Agreement. Purchaser shall comply with all laws, ordinances, regulations, requirements and rules with respect to the use and operation of the MARS On-Premise Equipment, and shall not make any modification, alteration or addition to the MARS On-Premise Equipment without prior written approval by MARS Company. Neither Purchaser nor
its employees, agents or representatives shall tamper with, disassemble, revise, engineer or
otherwise examine the manual workings of the MARS On-Premise Equipment. If through the
negligence of Purchaser or the breach of this Agreement by Purchaser repairs are required of
MARS Company, then Purchaser shall reimburse MARS Company for all reasonable costs incurred by MARS Company to repair, replace, or perform such maintenance to correct any faults. If Purchaser has not corrected such repairs or performed such maintenance to MARS Company’s satisfaction within ten (10) calendar days following MARS Company’s written notice to Purchaser, MARS Company shall have the right during normal business hours, with reasonable prior notice to Purchaser and subject to applicable laws and regulations, to enter the Facility in order to inspect, observe, or upon termination or expiration of Licensee’s EULA,
remove the MARS On-Premise Equipment or otherwise protect MARS Company’s interests,
and Purchaser shall cooperate fully in affording MARS Company the opportunity to do the
same. Purchaser shall permit MARS Company to review all documentary and electronic
information relating to the MARS On-Premise Equipment and the operation of it. In the event of theft or loss of the MARS On-Premise Equipment while in use and control of the Purchaser, Purchaser agrees to reimburse MARS Company for all reasonable costs incurred by MARS Company to replace MARS On-Premise Equipment. In the event the Licensee (i) terminates the license subscription, except if terminated for breach or cause by MARS, or (ii) does not renew the M3 license pursuit to Section 4. Licensee shall
pay an equipment decommissioning fee (“Equipment Decommissioning Fee” or "EDF") for the
expenses related to the return and recovery of MARS owned, MAR On-Premise Equipment.
The EDF includes but is not limited to labor, travel, and expenses associated with the
decommissioning, de-installation, shipping and return of the MARS On-Premise Equipment
from the Licensee location to MARS located at 3925 SW 13th St., Ocala, Florida 34474. Further, Licensee agrees to pay MARS a non-refundable EDF fee in the amount of $5,000 (five-thousand dollars) for each decommissioned Test Bench System within 30 days of the date of equipment decommissioning. By way of example, if Licensee does not renew the M3 annual subscription on two 2400 Series test benches and a single large test bench, the EDF for the three separate system would be: (3 x $5,000) = $15,000.
14) Inventions and Information. Unless otherwise agreed in writing by MARS Company and
Purchaser, all right, title and interest in any inventions, developments, improvements or
modifications of or for Equipment and Services shall remain with MARS Company. Any design,
manufacturing drawings or other information submitted to the Purchaser remains the exclusive property of MARS Company. Purchaser shall not, without MARS Company's prior written consent, copy or disclose such information to a third party. Such information shall be used solely for the operation or maintenance of the Equipment and not for any other purpose, including the duplication thereof in whole or in part. 15) Patent Indemnity.
a) MARS Company shall defend at its own expense, and shall indemnify and hold Purchaser
harmless from, any action brought against Purchaser alleging that the Equipment or the use
of the Equipment to practice any process for which such Equipment is specified by MARS
Company (a “Process”) directly infringes any claim of a patent of the United States of America
and to pay all damages and costs finally awarded in any such action, provided that Purchaser has given MARS Company prompt written notice of such action, all necessary assistance in the defense thereof and the right to control all aspects of the defense thereof including the right to settle or otherwise terminate such action in behalf of Purchaser. b) MARS Company shall have no obligation hereunder and this provision shall not apply to: (i) any other equipment or processes, including Equipment or Processes which have been
modified or combined with other equipment or process not supplied by MARS Company; (ii)
any Equipment or Process supplied according to a design, other than an MARS Company
design, required by Purchaser; (iii) any products manufactured by the Equipment or Process;
(iv) any patent issued after the date hereof; or (v) any action settled or otherwise terminated
without the prior written consent of MARS Company. c) If, in any such action, the Equipment is held to constitute an infringement, or the practice of any
Process using the Equipment is finally enjoined, MARS Company shall, at its option and its own expense, procure for Purchaser the right to continue using said Equipment; or modify or replace it
DocuSign Envelope ID: 1E5B3E2C-8CB8-41EC-965C-F5FAE4C006F9
Exhibit H
MARS COMPANY
WARRANTY, GENERAL TERMS AND CONDITIONS
MARS Company Proprietary & Confidential (DENTON) MARS_STD_WTC_5-6-2022 (003) COD
FinalMARS_STD_WTC_3-15-2022.docx Page 3 of 3
with non-infringing equipment or, with Purchaser's assistance, modify the Process so that it becomes
non-infringing; or remove it and refund the portion of the price allocable to the infringing Equipment. THE FOREGOING PARAGRAPHS STATE THE ENTIRE LIABILITY OF MARS Company AND EQUIPMENT MANUFACTURER FOR ANY PATENT INFRINGEMENT.
d) To the extent that said Equipment or any part thereof is modified by Purchaser, or combined by Purchaser with equipment or processes not furnished hereunder (except to the extent that MARS Company is a contributory infringer) or said Equipment or any part thereof is used by Purchaser to
perform a process not furnished hereunder by MARS Company or to produce an article, and by reason of said modification, combination, performance or production, an action is brought against MARS Company, Purchaser shall defend and indemnify MARS Company in the same manner and
to the same extent that MARS Company would be obligated to indemnify Purchaser under this "Patent Indemnity" provision.
16) Limitation of Liability. a) EXCEPT FOR CLAIMS AGAINST YOU THAT ANY PART OF THE EQUIPMENT OR THE USE OF THE EQUIPMENT TO PRACTICE A PROCESS INFRINGES ANY THIRD PARTY’S INTELLECTUAL
PROPERTY RIGHT, IN NO EVENT SHALL MARS COMPANY, ITS SUPPLIERS OR SUBCONTRACTORS BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY
OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF THE EQUIPMENT OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME COSTS, DELAYS, AND CLAIMS OF CUSTOMERS OF THE PURCHASER OR OTHER THIRD PARTIES FOR ANY
DAMAGES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT MARS COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. EXCEPT FOR CLAIMS AGAINST YOU THAT ANY PART OF THE EQUIPMENT OR THE USE OF THE EQUIPMENT TO PRACTICE A PROCESS INFRINGES ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT, MARS COMPANY'S LIABILITY FOR ANY CLAIM WHETHER
IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, OR FROM THE DESIGN,
MANUFACTURE, SALE, DELIVERY, REPAIR, REPLACEMENT, INSTALLATION, TECHNICAL DIRECTION OF INSTALLATION, INSPECTION, OPERATION OR USE OF ANY EQUIPMENT COVERED BY OR FURNISHED UNDER THIS AGREEMENT, OR FROM ANY SERVICES RENDERED IN CONNECTION THEREWITH, SHALL IN NO CASE (EXCEPT AS PROVIDED IN
THE SECTION ENTITLED "PATENT INDEMNITY") EXCEED ONE-HALF (1/2) OF THE PURCHASE PRICE ALLOCABLE TO THE EQUIPMENT OR PART THEREOF OR SERVICES WHICH GIVES RISE TO THE CLAIM.
b) ALL CAUSES OF ACTION AGAINST MARS COMPANY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PERFORMANCE OR BREACH HEREOF SHALL EXPIRE UNLESS BROUGHT WITHIN ONE YEAR OF THE TIME OF ACCRUAL THEREOF.
17) .
18) OSHA. MARS Company warrants that the Equipment will comply with the relevant standards of the Occupational Safety and Health Act of 1970 ("OSHA") and the regulations promulgated thereunder as of the Proposal Date. Upon prompt written notice from the Purchaser of a breach of this warranty,
MARS Company will replace the affected part or modify it so that it conforms to such standard or regulation. MARS Company's obligation shall be limited to such replacement or modification. IN NO EVENT SHALL MARS COMPANY BE RESPONSIBLE FOR LIABILITY ARISING OUT OF THE
VIOLATION OF ANY OSHA STANDARDS RELATING TO OR CAUSED BY PURCHASER'S DESIGN, LOCATION, OPERATION, OR MAINTENANCE OF THE EQUIPMENT, ITS USE IN ASSOCIATION WITH OTHER EQUIPMENT OF PURCHASER, OR THE ALTERATION OF THE
EQUIPMENT BY ANY PARTY OTHER THAN MARS COMPANY. 19) Force Majeure. MARS Company shall neither be liable for loss, damage, detention or delay nor be
deemed to be in default for failure to perform when prevented from doing so by causes beyond its reasonable control including but not limited to acts of war (declared or undeclared), Acts of God, fire, pandemic, strike, labor difficulties, acts or omissions of any governmental authority or of Purchaser,
compliance with government regulations, insurrection or riot, embargo, delays or shortages in transportation or inability to obtain necessary labor, materials, or manufacturing facilities from usual sources or from defects or delays in the performance of its suppliers or subcontractors due to any of
the foregoing enumerated causes. In the event of delay due to any such cause, the date of delivery will be extended by period equal to the delay plus a reasonable time to resume production, and the purchase price will be adjusted to compensate MARS Company for such delay.
20) Cancellation. Any purchase order may be cancelled by Purchaser only upon prior written notice and payment of termination charges, including but not limited to, all costs identified in the purchase order
incurred prior to the effective date of notice of termination and all expenses incurred by MARS Company attributable to the termination, plus a fixed sum of ten (10) percent of the final total purchase price to compensate for disruption in scheduling, planned production and other indirect costs.
21) Termination. In addition to any remedies that may be provided under these Terms, MARS company may terminate this Agreement with immediate effect upon written notice to Purchaser if Purchaser: (a) fails to pay any reasonably undisputed amount when due under this Agreement; (b) has not
otherwise materially performed or complied with any of these Terms, in whole or in part; or (b) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of
creditors. Purchaser may terminate this Agreement for MARS Company’s material breach if MARS Company fails to cure or begin taking reasonable steps to cure any such material breach within fifteen (15) days after receiving written notice from Purchaser specifying such breach
22) Export Control. a) Purchaser represents and warrants that the Equipment and Services provided hereunder and the
"direct product" thereof are intended for civil use only and will not be used, directly or indirectly, for the production of chemical or biological weapons or of precursor chemicals for such weapons, or for any direct or indirect nuclear end use. Purchaser agrees not to disclose, use, export or re-
export, directly or indirectly, any information provided by MARS Company or the "direct product" thereof as defined in the Export Control Regulations of the United States Department of Commerce, except in compliance with such Regulations.
b) If applicable, MARS Company shall file for a U.S. export license, but only after appropriate documentation for the license application has been provided by Purchaser. Purchaser shall furnish such documentation within a reasonable time after acceptance of the purchase order. Any
delay in obtaining such license shall suspend performance of this Agreement by MARS Company. If an export license is not granted or, if once granted, is thereafter revoked or modified by the appropriate authorities, this Agreement may be canceled by MARS Company without liability for
damages of any kind resulting from such cancellation. At MARS Company's request, Purchaser shall provide to MARS Company a Letter of Assurance and End-User Statement in a form reasonably satisfactory to MARS Company.
23) Assignment. Neither Party shall assign this Agreement or of any rights or obligations under this Agreement without prior written notice of the other Party.
24) Warranty of Capacity to Execute Agreement. Each of the parties warrants and represents on behalf of itself that it has full power and authority to enter into this Agreement and to bind the parties,
that any and all necessary consents and approvals have been obtained, and that no other consent, approval or action is required.
25) Severability. If any provision of this Agreement is held to be unenforceable, the enforceability of the remaining provisions shall in no way be affected or impaired thereby.
26) Entire Agreement. This Contract By and Between City of Denton, Texas and OW Investors, LLC dba MARS Company shall take precedence over these terms and conditions (these “Terms”), the Equipment, Software and Services Contract (the “Contract”) and its Schedules, the M3 Enterprise Software End User License Agreement (the “EULA”), MARS Calibration Certification - General Conditions of Service and Maintenance Agreement (the
“MCC”), any proposal from MARS Company received by Purchaser (the “Proposal”), any
purchase order and any change orders attached and incorporated hereto, (collectively, this
“Agreement”) is a legal agreement and constitutes the complete and exclusive agreement between
Purchaser and MARS Company with respect to the subject matter hereof, and supersedes all prior or contemporaneous oral or written communications, proposals, representations, understandings, or agreements not specifically incorporated herein. This Agreement may not be amended or modified
except in a writing duly signed by the authorized representative of Purchaser and an authorized representative of MARS Company.
27) Miscellaneous. a) Equipment consumables including printer ink, paper, etc. are Purchaser responsibility at all times. b) This Agreement shall not be construed more strongly against either party, regardless of who is more responsible for its preparation.
c) Neither party shall be deemed to have waived any of its rights under this Agreement without specifically agreeing to do so in writing. No waiver of a breach of this Agreement shall constitute a waiver of any prior or subsequent breach of this Agreement.
d) If there is a conflict between a part of this Agreement and any present or future law, the part of this Agreement that is affected shall be curtailed only to the extent necessary to bring it within the requirements of that law.
e) Conflicts. MARS Company and Purchaser agree and acknowledge that due to the nature of the commercial relationship, and the public or quasi-public sector nature of Purchaser, this transaction will be regulated by multiple documents. Occasionally, conflicts will arise between
different documents, or between different versions of the same document. The purpose of this Section 27(e) is to provide simple rules for resolving such conflicts. i) Change Order – A Change Order shall only be effective to prevail over a conflicting term if
such Change Order contains an express statement of the Parties’ intent for the Change Order provision to control over the conflicting provision in the other document. Such statements must be prominently and conspicuously in BOLD CAPITAL LETTERS, must be in a font no smaller
than that of this Section of this Agreement, and must expressly reference the section and page number of the conflicting provision in the other document that the Change Order provision prevails over. Any effective statement shall only be effective as to that provision in
that Change Order; it shall have no force or effect relative to previous or subsequent agreements or addendums thereto. ii) Conflicts Between Different Dated Versions of Same Document – For conflicts between
versions of the same document (i.e., a EULA) that bear different dates, the most recent version will prevail. iii) Conflict Between Different Documents – For conflicts between different documents (i.e., a
term in the EULA and a conflicting term in the Proposal), such conflicts shall be resolved by reference to the chart below. Utilizing the foregoing example, a conflict between a EULA term and a Proposal term would place in conflict “4” with “G” and the chart shows that 4, the EULA,
would prevail.
A B C D E F G
1 - 1 1 1 1 1 1 2 A - 2 2 2 2 2
3 A B - 3 3 3 3
4 A B C - 4 4 4
5 A B C D - 5 5
6 A B C D E - 6
7 A B C D E F -
f) All notices hereunder shall be made by certified or registered airmail, return receipt requested, by recognized overnight courier, by facsimile transmission, answer back requested, but excluding e-
mail, and shall be sent to the parties at the addresses indicated in the purchase order (or at such other address for a party as shall be specified by like notice; provided that notices of a change of address shall be effective only upon receipt thereof). MARS Company’s address is 3925 SW 13th
St, Ocala, Florida 34474. g) During the term of this Agreement and for one (1) year thereafter, neither party shall solicit the other parties’ current employees or full-time consultants for employment, directly or indirectly,
without such other parties’ written consent. For the purposes of this provision, placing a general advertisement for employment shall not be considered solicitation for employment. This provision does not apply in the event of a breach by either party
h) This Agreement may only be modified by written agreement of the parties. i) Separate Execution; Reproduced Signatures. This Agreement may be separately executed in identical counterparts, each of which shall be considered an original and all of which together
shall collectively be considered an effective and binding agreement on the part of each of the undersigned. For the avoidance of doubt, an electronically reproduced signature, such as by facsimile or PDF copy shall have the same force and effect as execution of an original.
1-Change Order 2-Contract 3-Terms
4-EULA 5-MCC 6-Purchase Order
7-Proposal
A-Change Order B-Contract C-Terms
D-EULA E-MCC F-Purchase Order
G-Proposal
DocuSign Envelope ID: 1E5B3E2C-8CB8-41EC-965C-F5FAE4C006F9
Certificate Of Completion
Envelope Id: 1E5B3E2C8CB841EC965CF5FAE4C006F9 Status: Completed
Subject: Please DocuSign: City Council Contract 8173 Meter Test Bench & Mobile Tester
Source Envelope:
Document Pages: 38 Signatures: 6 Envelope Originator:
Certificate Pages: 6 Initials: 1 Crystal Westbrook
AutoNav: Enabled
EnvelopeId Stamping: Enabled
Time Zone: (UTC-06:00) Central Time (US & Canada)
901B Texas Street
Denton, TX 76209
crystal.westbrook@cityofdenton.com
IP Address: 198.49.140.104
Record Tracking
Status: Original
3/28/2023 3:19:24 PM
Holder: Crystal Westbrook
crystal.westbrook@cityofdenton.com
Location: DocuSign
Signer Events Signature Timestamp
Crystal Westbrook
crystal.westbrook@cityofdenton.com
Senior Buyer
City of Denton
Security Level: Email, Account Authentication
(None)
Completed
Using IP Address: 198.49.140.104
Sent: 3/28/2023 3:30:48 PM
Viewed: 3/28/2023 3:30:56 PM
Signed: 3/28/2023 3:32:39 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Lori Hewell
lori.hewell@cityofdenton.com
Purchasing Manager
City of Denton
Security Level: Email, Account Authentication
(None)
Signature Adoption: Pre-selected Style
Using IP Address: 198.49.140.104
Sent: 3/28/2023 3:32:41 PM
Viewed: 3/28/2023 4:24:34 PM
Signed: 3/28/2023 4:25:18 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Marcella Lunn
marcella.lunn@cityofdenton.com
Mack Reinwand City Attorney
City of Denton
Security Level: Email, Account Authentication
(None)
Signature Adoption: Pre-selected Style
Using IP Address: 198.49.140.10
Sent: 3/28/2023 4:25:21 PM
Viewed: 3/31/2023 2:07:25 PM
Signed: 3/31/2023 2:10:42 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Jeff Butt
jbutt@marswater.com
Vice President Operations
Security Level: Email, Account Authentication
(None)Signature Adoption: Uploaded Signature Image
Using IP Address: 47.204.220.120
Sent: 3/31/2023 2:10:44 PM
Viewed: 3/31/2023 2:33:31 PM
Signed: 3/31/2023 6:04:37 PM
Electronic Record and Signature Disclosure:
Accepted: 3/31/2023 2:33:31 PM
ID: 94a7ce82-ca41-4137-b880-94fb6fe66a7b
Signer Events Signature Timestamp
Stephen D. Gay
stephen.gay@cityofdenton.com
Director,
Security Level: Email, Account Authentication
(None)Signature Adoption: Pre-selected Style
Using IP Address: 47.186.197.168
Signed using mobile
Sent: 3/31/2023 6:04:40 PM
Viewed: 3/31/2023 6:43:09 PM
Signed: 3/31/2023 6:44:07 PM
Electronic Record and Signature Disclosure:
Accepted: 3/31/2023 6:43:09 PM
ID: 594fa57b-85f8-476b-8c60-ca2af10cb3b1
Cheyenne Defee
cheyenne.defee@cityofdenton.com
Procurement Administration Supervisor
City of Denton
Security Level: Email, Account Authentication
(None)
Completed
Using IP Address: 198.49.140.10
Sent: 3/31/2023 6:44:10 PM
Viewed: 5/3/2023 8:41:03 AM
Signed: 5/3/2023 8:41:52 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Sara Hensley
sara.hensley@cityofdenton.com
City Manager
City of Denton
Security Level: Email, Account Authentication
(None)
Signature Adoption: Pre-selected Style
Using IP Address: 198.49.140.10
Sent: 5/3/2023 8:41:56 AM
Viewed: 5/3/2023 8:42:20 AM
Signed: 5/3/2023 8:42:28 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Jesus J. Salazar
jesus.salazar@cityofdenton.com
Security Level: Email, Account Authentication
(None)
Signature Adoption: Pre-selected Style
Using IP Address: 198.49.140.10
Sent: 5/3/2023 11:28:27 AM
Viewed: 5/3/2023 12:01:35 PM
Signed: 5/3/2023 12:09:48 PM
Electronic Record and Signature Disclosure:
Accepted: 5/3/2023 12:01:35 PM
ID: 53e8742d-028f-4ace-9f12-e777e23c984c
In Person Signer Events Signature Timestamp
Editor Delivery Events Status Timestamp
Agent Delivery Events Status Timestamp
Intermediary Delivery Events Status Timestamp
Certified Delivery Events Status Timestamp
Carbon Copy Events Status Timestamp
Cheyenne Defee
cheyenne.defee@cityofdenton.com
Procurement Administration Supervisor
City of Denton
Security Level: Email, Account Authentication
(None)
Sent: 3/28/2023 3:32:42 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Carbon Copy Events Status Timestamp
Gretna Jones
gretna.jones@cityofdenton.com
Legal Secretary
City of Denton
Security Level: Email, Account Authentication
(None)
Sent: 3/31/2023 6:44:10 PM
Viewed: 4/3/2023 9:04:43 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Rosa Rios
rosa.rios@cityofdenton.com
City Secretary
Security Level: Email, Account Authentication
(None)
Sent: 5/3/2023 11:28:28 AM
Viewed: 5/3/2023 12:10:44 PM
Electronic Record and Signature Disclosure:
Accepted: 4/19/2023 10:59:51 AM
ID: ebe47ac4-3a9d-42e7-9f81-773a9e967edb
City Secretary Office
citysecretary@cityofdenton.com
Security Level: Email, Account Authentication
(None)
Sent: 5/3/2023 12:09:51 PM
Viewed: 5/3/2023 12:13:55 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Casey Bowles
casey.bowles@cityofdenton.com
Water/Wastewater Field Operations Division
Manager
Security Level: Email, Account Authentication
(None)
Sent: 5/3/2023 12:09:52 PM
Viewed: 5/3/2023 1:53:59 PM
Electronic Record and Signature Disclosure:
Accepted: 4/24/2023 11:03:58 AM
ID: c5ee6177-b9bf-4ac5-899d-f421dc461dac
Witness Events Signature Timestamp
Notary Events Signature Timestamp
Envelope Summary Events Status Timestamps
Envelope Sent Hashed/Encrypted 3/28/2023 3:30:48 PM
Envelope Updated Security Checked 4/3/2023 3:17:11 PM
Certified Delivered Security Checked 5/3/2023 12:01:35 PM
Signing Complete Security Checked 5/3/2023 12:09:48 PM
Completed Security Checked 5/3/2023 12:09:52 PM
Payment Events Status Timestamps
Electronic Record and Signature Disclosure
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Electronic Record and Signature Disclosure created on: 7/21/2017 3:59:03 PM
Parties agreed to: Jeff Butt, Stephen D. Gay, Jesus J. Salazar, Rosa Rios, Casey Bowles
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