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2017-350
MI tECIFICATIMI FOR EACA LI11E ITEITI FOR ATUTAL FOIR (4) "T'EAK 11OT-44-EXCEE'l AMOUNT OF $7,076,000). WHEREAS, the City has solicited, received and tabulated competitive bids for the purchase of necessary materials, equipment, supplies or services in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described bids are the lowest responsible bids for the materials, equipment, supplies or services as shown in the "Bid Proposals" submitted therefor; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, 19 I V81=4161001411 Wei= 0 so 111100 1 li,11311 SECTION 1. The numbered items in the following numbered bids for materials, equipment, supplies, or services, shown in the "Bid Proposals" on file in the office of the City Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: BID ITEM NUMBER NO VENDOR AMOUNT 6530 Section A 1,2,3 DPC Industries Inc. $ 745,000 Section B 1 6530 Section A 4a,b Mosaic Global Sales, LLC $ 121,000 6530 Section A 5a,b TDC, LLC $1,340,000 6530 Section A 6 Brenntag Southwest, Inc. $ 163,000 6530 Section A 7 Cherntrade Chemicals, LLC $ 145,000 6530 Section A 8 Tanner Industries, Inc. $ 137,000 6530 Section A 9a,b Polydyne Inc. $ 900,000 Section B 2 6530 Section A 1 Oa,b Pencco,lnc. $3,200,000 Section B 3 6530 Section A 12a,b Shannon Chemical Corp. $ 325,000 SECTION 2. By the acceptance and approval of the above numbered items of the submitted bids, the City accepts the offer of the persons submitting the bids for such items and agrees to pur- standards, quantities and for the specified sums contained in the Bid Invitations, Bid Proposals, and related documents. SECTION 3. Should the City and the winning bidder(s) wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the bids, the City Manager or his designated representative is hereby authorized to execute a written contract in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Bid Proposal and related documents and to extend that contract as determined to be advantageous to the City of Denton. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under IFB 6530 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 6. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this day of ,+ �, 2017. M, CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY w BY: DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E 5ƚĭǒƭźŭƓ /źƷǤ /ƚǒƓĭźƌ ƩğƓƭƒźƷƷğƌ /ƚǝĻƩƭŷĻĻƷ CźƌĻ bğƒĻ tǒƩĭŷğƭźƓŭ /ƚƓƷğĭƷ /źƷǤ /ƚǒƓĭźƌ ğƩŭĻƷ 5ğƷĻ /ƚƓƷƩğĭƷ ğƌǒĻ tźŭŭǤ .ğĭƉ hƦƷźƚƓ /ƚƓƷƩğĭƷ 9ǣƦźƩğƷźƚƓ hƩķźƓğƓĭĻ DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND DPC INDUSTRIES (FILE #6530) THIS CONTRACT is made and entered into this date _______________________, by and between DPC Industries, Inc., a corporation, whose address 300 Jackson Hill St, Houston, TX 77007, hereinafter referred to as "Supplier," 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 his 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 IFB # 6530 Water and Wastewater Chemicals, 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, or on file, and incorporated herein by reference: (a)Special Terms and Conditions; (b)IFB#6530 (on file at the office of the Purchasing Agent); (c)City of Denton Standard Terms and Conditions ; (d)Certificate of Interested Parties Electronic Filing (e)(Exhibit "E"); (f)Form CIQ Conflict of Interest Questionnaire (Exhibit "F") 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 INDEMNITY THE SUPPLIER REPRESENTS AND WARRANTS TO THE CITY THAT THE INTELLECTUAL PROPERTY SUPPLIED BY 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, AND THAT NO CLAIMS HAVE BEEN MADE BY ANY PERSON OR ENTITY WITH RESPECT TO THE OWNERSHIP OR OPERATION OF THE INTELLECTUAL PROPERTY. MOREOVER, 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 Contract #6530 DPC Industries, Inc.1 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E OTHER PROFESSIONALS) ARISING OUT OF OR RESULTING FROM ANY CLAIM THAT THE CITY'S EXERCISE OF ITS LICENSE RIGHTS, AND ITS USE OF THE INTELLECTUAL PROPERTY, THE SUBJECT OF THIS CONTRACT, INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, OR THE BREACH OF ANY OF REPRESENTATIONS OR WARRANTIES STATED IN THE CONTRACT DOCUMENTS. 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. IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. SUPPLIER BY: ______________________________ AUTHORIZED SIGNATURE Date:_______________________________ Name: ______________________________ Title: _______________________________ ___________________________________ PHONE NUMBER ___________________________________ EMAIL ADDRESS 2017-272124 & 2017-271974_______ TEXAS ETHICS COMMISSION CERTIFICATE NUMBER CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: _____________________________ TODD HILEMAN CITY MANAGER BY: __________________________________ Date: ________________________ Contract #6530 DPC Industries, Inc.2 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY BY:_______________________________ Contract #6530 DPC Industries, Inc.3 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E Exhibit A Special Terms and Conditions 1.The Quantities The quantities indicated on Exhibit E are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the bid price. Individual purchase orders will be issued on an as needed basis. 2.Product Changes During Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to dentonpurchasing@cityofdenton.com, with the above file number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be 3.Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The representative as needed by the City. 4.Contract Terms The contract term will be four (4) years, effective from date of award or notice to proceed as determined by the City of Denton Purchasing Department. The contract term will be one (1) year, effective from the date that the City provides notice of the contract shall automatically renew each year on the month prior to the renewal date that the contract will not be renewed or the contract is otherwise terminated or completed. This contract may only be automatically renewed for an additional three (3) one-year periods, subject to the terms herein, without City Council approval. 5.Price Escalation and De-escalation -escalation price adjustment annually based on these special terms. The escalation/de-escalation will be based on the U.S Department of Labor, Bureau of Labor Statistics, Producer Price Index (PPI) for finished Chemicals (PCU212393212393). The stated eligible bid price will be increased or decreased based upon the annual percentage change in the PPI so long as the change is greater than the minimum threshold value of +/- 1%. The maximum escalation will not exceed +/- 8% for any individual year. The Supplier must submit or make available the manufacturers pricing sheet used to calculate the bid proposal, to participate in the escalation/de-escalation clause. Contract #6530 DPC Industries, Inc.4 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E The Su increase to the Purchasing Manager at least 60 days prior to the contract renewal date for each year. The Supplier should provide documentation as a percentage of each cost associated with the unit prices quoted for consideration.If no request is made, then it will be assumed that the current contract price will be in effect. Upon receipt of such request, the City of Denton, at its sole option, reserves the right to either: (1) accept the escalation as competitive with the general market price at the time, and become effective upon the renewal date of the contract award; or, (2) reject the increase within thirty (30) calendar days after receipt of a properly submitted request. If a properly submitted increase is rejected, the Supplier may request cancellation of such items from the contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. The prices in effect prior to the increase request must be honored on orders dated up to the official date of the City of Denton approval and/or cancellation. The request can be sent by e-mail to: purchasing@cityofdenton.com noting the solicitation number. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. 6.Total Contract Amount The contract total shall not exceed $745,000. Pricing shall be per Exhibit E attached. 7.Delivery Lead Time Product or services shall be delivered to the City per the days/weeks noted in Exhibit E after receipt of the order. Contract #6530 DPC Industries, Inc.5 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E Exhibit C City of Denton Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings 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 Supplier. No Terms and Conditions contained in 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 -of-way. 1.. The Contractor shall fully and timely provide all 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 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. Contract #6530 DPC Industries, Inc.6 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E 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 otherwis 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 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 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 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, 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 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. Contract #6530 DPC Industries, Inc.7 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E 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 11.COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Cont 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, 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 the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight address and, if applicable, the tax identification number on the invoice must exactly match the C. Invoices for labor shall include a copy of all time-sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work-hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. 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. Contract #6530 DPC Industries, Inc.8 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E 13.PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of 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 which is not covered by insurance required to be provided by the Contractor; 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 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 performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by Contract #6530 DPC Industries, Inc.9 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E 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 ations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising 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. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five 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 books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract nation thereof. Each of the include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 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 excep any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in Contract #6530 DPC Industries, Inc.10 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E 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 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. Contract #6530 DPC Industries, Inc.11 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E 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 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- 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 impai 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 the City. If for a Contractor shall assist and cooperate with the City to the fullest extent to enforce such 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. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. 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 endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery this section. C. If the Contractor is unable or unwilling to perform its services in accordance with the above Contract #6530 DPC Industries, Inc.12 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E 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 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 erform, 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 itted by the Contractor to the City. 27.TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City 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, within such reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, fees, court costs, and prejudgment and post- judgment interest at the maximum lawful rate. Additionally, in the event of a default by the 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. Contract #6530 DPC Industries, Inc.13 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E 28.TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the 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. 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 limit 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 strict liability standard. B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, Contract #6530 DPC Industries, Inc.14 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E 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 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. 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. 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 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 Denton, Texas 76209 Contract #6530 DPC Industries, Inc.15 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E 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. notice of erosion of the aggregate limits below occurrence limits for all applicable 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 affect on the 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 to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked Contract #6530 DPC Industries, Inc.16 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E 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 ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) 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- shall in no way diminish 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 inventions, employee information, trade secrets, confidential know-how, confidential business information, and other information which the City or its licensors consider confidential) 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. 38.OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and Contract #6530 DPC Industries, Inc.17 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor agrees that upon their creation, such deliverables shall be considered as work made-for-hire by the Contractor for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shal Should by operation of law, such deliverables not be considered works made-for-hire, the Contractor hereby assigns to the City (and agrees to cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver an assignment to the City of) all worldwide right, title, and interest in and to such deliverables. With respect to such work made- for-hire, the Contractor agrees to execute, acknowledge, and deliver and cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver a work- made-for-hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. C. Additional Assignments. The Contractor further agrees to, and if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work registration, trademark registration and/or protection, letters patent, or any similar rights in any and all countries and in order to assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and tions to execute, acknowledge, and deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City should not seek to obtain copyright protection, mask work registration or patent protection for any of the deliverables, but should desire to keep the same secret, the Contractor agrees to treat the same as Confidential Information under the terms of Paragraph 37 above. 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 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 Contract #6530 DPC Industries, Inc.18 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E 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. Any willful violation of this section shall constitute impropriety in office, and any officer or employee 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 Interest Questionnaire. 44.INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an 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, 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 his 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. 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, Contract #6530 DPC Industries, Inc.19 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E 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 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 wil 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 #6530 DPC Industries, Inc.20 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E 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 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: ay (observed) MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day 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 approvedby the City Manager of Denton, Texas or his 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: Contract #6530 DPC Industries, Inc.21 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E 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: 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 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. 58.LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the Contract #6530 DPC Industries, Inc.22 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E respondent. 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: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 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 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 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 Contract #6530 DPC Industries, Inc.23 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E 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 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. 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. 4.Purchase order 5.Supplier terms and conditions Contract #6530 DPC Industries, Inc.24 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E Exhibit D 10/20/2017 Contract #6530 DPC Industries, Inc.25 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E Exhibit D 10/20/2017 Contract #6530 DPC Industries, Inc.26 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.27 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.29 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.30 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.31 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.32 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.33 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.34 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.35 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.36 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E Contract #6530 DPC Industries, Inc.37 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E Contract #6530 DPC Industries, Inc.38 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.39 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.40 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.41 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.42 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.43 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.44 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.45 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.46 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.47 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.48 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.49 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.50 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.51 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.52 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.53 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.54 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.55 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.56 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.57 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.58 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.59 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.60 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.61 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.62 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.63 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.64 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.65 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.66 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.67 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.68 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.69 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.70 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E EXHIBIT E Contract #6530 DPC Industries, Inc.71 DocuSign Envelope ID: 5DD29B59-7D1B-44C7-9BE1-EDE15D09D13E Contract #6530 DPC Industries, Inc.72 Certificate Of Completion Envelope Id: 5DD29B597D1B44C79BE1EDE15D09D13EStatus: Completed Subject: Please DocuSign: City Council Contract 6530 DPC Industries, Inc. Source Envelope: Document Pages: 73Signatures: 4Envelope Originator: Certificate Pages: 6Initials: 0Robyn Forsyth AutoNav: Enabled901B Texas Street EnvelopeId Stamping: EnabledDenton, TX 76209 Time Zone: (UTC-08:00) Pacific Time (US & Canada)robyn.forsyth@cityofdenton.com IP Address: 129.120.6.150 Record Tracking Status: OriginalHolder: Robyn ForsythLocation: DocuSign 10/20/2017 1:28:21 PM robyn.forsyth@cityofdenton.com Signer EventsSignatureTimestamp Robyn ForsythSent: 10/20/2017 1:32:02 PM Completed robyn.forsyth@cityofdenton.comViewed: 10/20/2017 1:32:24 PM BuyerSigned: 10/20/2017 1:33:40 PM Using IP Address: 129.120.6.150 City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Ryan BrownSent: 10/20/2017 1:33:42 PM rbrown@dxgroup.comViewed: 10/20/2017 1:35:19 PM Territory ManagerSigned: 10/20/2017 1:37:00 PM Security Level: Email, Account Authentication Using IP Address: 107.77.197.14 (Optional) Signed using mobile Electronic Record and Signature Disclosure: Accepted: 10/20/2017 1:35:19 PM ID: 4b2463b4-5359-4f37-80ce-6dd889ba6163 Jennifer DeCurtisSent: 10/20/2017 1:37:05 PM jennifer.decurtis@cityofdenton.comViewed: 10/20/2017 1:47:29 PM Deputy City AttorneySigned: 10/20/2017 1:47:43 PM City of Denton Using IP Address: 172.56.6.178 Security Level: Email, Account Authentication Signed using mobile (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Julia WinkleySent: 10/20/2017 1:47:45 PM Completed julia.winkley@cityofdenton.comViewed: 11/14/2017 1:38:20 PM Contracts Administration SupervisorSigned: 11/14/2017 1:38:45 PM Using IP Address: 129.120.6.150 City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Signer EventsSignatureTimestamp Todd HilemanSent: 11/14/2017 1:38:49 PM Todd.Hileman@cityofdenton.comViewed: 11/14/2017 1:41:43 PM City ManagerSigned: 11/14/2017 1:43:25 PM City of Denton Using IP Address: 47.190.47.120 Security Level: Email, Account Authentication Signed using mobile (Optional) Electronic Record and Signature Disclosure: Accepted: 7/25/2017 9:02:14 AM ID: 57619fbf-2aec-4b1f-805d-6bd7d9966f21 Jennifer WaltersSent: 11/14/2017 1:43:27 PM jennifer.walters@cityofdenton.comViewed: 11/16/2017 6:05:19 AM City SecretarySigned: 11/16/2017 6:05:32 AM City of Denton Using IP Address: 129.120.6.150 Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer EventsSignatureTimestamp Editor Delivery EventsStatusTimestamp Agent Delivery EventsStatusTimestamp Intermediary Delivery EventsStatusTimestamp Certified Delivery EventsStatusTimestamp Carbon Copy EventsStatusTimestamp Sherri ThurmanSent: 10/20/2017 1:37:03 PM sherri.thurman@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Julia WinkleySent: 10/20/2017 1:37:04 PM julia.winkley@cityofdenton.comViewed: 10/26/2017 2:04:19 PM Contracts Administration Supervisor City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane RichardsonSent: 11/14/2017 1:38:47 PM jane.richardson@cityofdenton.com Assistant City Secretary City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Robin FoxSent: 11/14/2017 1:38:48 PM Robin.fox@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Carbon Copy EventsStatusTimestamp Not Offered via DocuSign Jennifer BridgesSent: 11/16/2017 6:05:34 AM jennifer.bridges@cityofdenton.comViewed: 11/17/2017 9:18:03 AM Procurement Assistant City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane RichardsonSent: 11/16/2017 6:05:35 AM jane.richardson@cityofdenton.comViewed: 12/5/2017 9:59:53 AM Assistant City Secretary City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Randy MarkumSent: 11/16/2017 6:05:36 AM randy.markum@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary EventsSignatureTimestamp Envelope Summary EventsStatusTimestamps Envelope SentHashed/Encrypted11/16/2017 6:05:36 AM Certified DeliveredSecurity Checked11/16/2017 6:05:36 AM Signing CompleteSecurity Checked11/16/2017 6:05:36 AM CompletedSecurity Checked11/16/2017 6:05:36 AM Payment EventsStatusTimestamps Electronic Record and Signature Disclosure ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you 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DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 5ƚĭǒƭźŭƓ /źƷǤ /ƚǒƓĭźƌ ƩğƓƭƒźƷƷğƌ /ƚǝĻƩƭŷĻĻƷ CźƌĻ bğƒĻ tǒƩĭŷğƭźƓŭ /ƚƓƷğĭƷ /źƷǤ /ƚǒƓĭźƌ ğƩŭĻƷ 5ğƷĻ /ƚƓƷƩğĭƷ ğƌǒĻ tźŭŭǤ .ğĭƉ hƦƷźƚƓ /ƚƓƷƩğĭƷ 9ǣƦźƩğƷźƚƓ hƩķźƓğƓĭĻ DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND MOSAIC GLOBAL SALES, LLC (FILE #6530) THIS CONTRACT is made and entered into this date _______________________, by and between Mosaic Global Sales, LLC a corporation, whose address is 13830 Circa Crossing Dr, Lithia, FL 33547, hereinafter referred to as "Supplier," 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 his 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 IFB # 6530 Water and Wastewater Chemicals, 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, or on file, and incorporated herein by reference: (a)Special Terms and Conditions; (b)IFB#6530 (on file at the office of the Purchasing Agent); (c)City of Denton Standard Terms and Conditions C; (d)Certificate of Interested Parties Electronic Filing (e)(Exhibit "E"); (f)Form CIQ Conflict of Interest Questionnaire (Exhibit "F") 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 INDEMNITY THE SUPPLIER REPRESENTS AND WARRANTS TO THE CITY THAT THE INTELLECTUAL PROPERTY SUPPLIED BY 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, AND THAT NO CLAIMS HAVE BEEN MADE BY ANY PERSON OR ENTITY WITH RESPECT TO THE OWNERSHIP OR OPERATION OF THE INTELLECTUAL PROPERTY. MOREOVER, 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 Contract #6530 Mosaic Global Sales LLC1 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 OTHER PROFESSIONALS) ARISING OUT OF OR RESULTING FROM ANY CLAIM THAT THE CITY'S EXERCISE OF ITS LICENSE RIGHTS, AND ITS USE OF THE INTELLECTUAL PROPERTY, THE SUBJECT OF THIS CONTRACT, INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, OR THE BREACH OF ANY OF REPRESENTATIONS OR WARRANTIES STATED IN THE CONTRACT DOCUMENTS. 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. IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. SUPPLIER BY: ______________________________ AUTHORIZED SIGNATURE Date:_______________________________ Name: ______________________________ Title: _______________________________ ___________________________________ PHONE NUMBER ___________________________________ EMAIL ADDRESS 2017-271848 __________________________________ TEXAS ETHICS COMMISSION CERTIFICATE NUMBER CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: _____________________________ TODD HILEMAN CITY MANAGER BY: __________________________________ Date: ________________________ Contract #6530 Mosaic Global Sales LLC2 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY BY:_______________________________ Contract #6530 Mosaic Global Sales LLC3 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 Exhibit A Special Terms and Conditions 1.The Quantities The quantities indicated on Exhibit E are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the bid price. Individual purchase orders will be issued on an as needed basis. 2.Product Changes During Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to dentonpurchasing@cityofdenton.com, with the above file number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be 3.Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The representative as needed by the City. 4.Contract Term The contract term will be one (1) year, effective from the date that the City provides notice of the either party notifies the other party in writing prior to the renewal date that the contract will not be renewed or the contract is otherwise terminated or completed. This contract may only be automatically renewed for an additional three (3) one-year periods, subject to the terms herein, without City Council approval. 5.Price Escalation and De-escalation -escalation price adjustment annually based on these special terms. The escalation/de-escalation will be based on the U.S Department of Labor, Bureau of Labor Statistics, Producer Price Index (PPI) for finished Chemicals (PCU212393212393). The stated eligible bid price will be increased or decreased based upon the annual percentage change in the PPI so long as the change is greater than the minimum threshold value of +/- 1%. The maximum escalation will not exceed +/- 8% for any individual year. The Supplier must submit or make available the manufacturers pricing sheet used to calculate the bid proposal, to participate in the escalation/de-escalation clause. Contract #6530 Mosaic Global Sales LLC4 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 increase to the Purchasing Manager at least 60 days prior to the contract renewal date for each year. The Supplier should provide documentation as a percentage of each cost associated with the unit prices quoted for consideration.If no request is made, then it will be assumed that the current contract price will be in effect. Upon receipt of such request, the City of Denton, at its sole option, reserves the right to either: (1) accept the escalation as competitive with the general market price at the time, and become effective upon the renewal date of the contract award; or, (2) reject the increase within thirty (30) calendar days after receipt of a properly submitted request. If a properly submitted increase is rejected, the Supplier may request cancellation of such items from the contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. The prices in effect prior to the increase request must be honored on orders dated up to the official date of the City of Denton approval and/or cancellation. The request can be sent by e-mail to: purchasing@cityofdenton.com noting the solicitation number. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. 6.Total Contract Amount The contract total shall not exceed $121,000.Pricing shall be per Exhibit E attached. 7.Delivery Lead Time Product or services shall be delivered to the City per the days/weeks noted in Exhibit E after receipt of the order. Contract #6530 Mosaic Global Sales LLC5 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 Exhibit C City of Denton Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings 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 Supplier. No Terms and Conditions contained in 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 -of-way. 1.. The Contractor shall fully and timely provide all 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 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. Contract #6530 Mosaic Global Sales LLC6 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 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 state 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 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 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 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, ies. 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 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. Contract #6530 Mosaic Global Sales LLC7 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 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 11.COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Contracto 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, 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 the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight address and, if applicable, the tax identification number on the invoice must exactly match the C. Invoices for labor shall include a copy of all time-sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work-hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. 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. Contract #6530 Mosaic Global Sales LLC8 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 13.PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of 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 which is not covered by insurance required to be provided by the Contractor; 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 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 performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by Contract #6530 Mosaic Global Sales LLC9 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 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 ations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising 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. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five 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 books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 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 identified in the Plan, unless the substitute has been accepted by the City in Contract #6530 Mosaic Global Sales LLC10 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 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 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. Contract #6530 Mosaic Global Sales LLC11 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 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 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- 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 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 Contractor shall assist and cooperate with the City to the fullest extent to enforce such 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. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. 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 endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery this section. C. If the Contractor is unable or unwilling to perform its services in accordance with the above Contract #6530 Mosaic Global Sales LLC12 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 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 cl 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 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 Co the City. 27.TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City 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, within such reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, , including, without - judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Contractor, the City may remove the Contractor fr 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. Contract #6530 Mosaic Global Sales LLC13 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 28.TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the 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. 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 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 strict liability standard. B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, Contract #6530 Mosaic Global Sales LLC14 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 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 GATIONS 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 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. 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 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 Denton, Texas 76209 ity where the City is an additional Contract #6530 Mosaic Global Sales LLC15 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 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 provid notice of erosion of the aggregate limits below occurrence limits for all applicable 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 affect on 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 to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked Contract #6530 Mosaic Global Sales LLC16 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 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 , license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) 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- Con 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 inventions, employee information, trade secrets, confidential know-how, confidential business information, and other information which the City or its licensors consider confidential) 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. 38.OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and Contract #6530 Mosaic Global Sales LLC17 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor agrees that upon their creation, such deliverables shall be considered as work made-for-hire by the Contractor for the City and the City shall own all copyrights in and to such deliverables, provided joint ownership of any Should by operation of law, such deliverables not be considered works made-for-hire, the Contractor hereby assigns to the City (and agrees to cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver an assignment to the City of) all worldwide right, title, and interest in and to such deliverables. With respect to such work made- for-hire, the Contractor agrees to execute, acknowledge, and deliver and cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver a work- made-for-hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. C. Additional Assignments. The Contractor further agrees to, and if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work registration, trademark registration and/or protection, letters patent, or any similar rights in any and all countries and in order to assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and e, and deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City should not seek to obtain copyright protection, mask work registration or patent protection for any of the deliverables, but should desire to keep the same secret, the Contractor agrees to treat the same as Confidential Information under the terms of Paragraph 37 above. 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 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 Contract #6530 Mosaic Global Sales LLC18 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 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. Any willful violation of this section shall constitute impropriety in office, and any officer or employee 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 Interest Questionnaire. 44.INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an 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, 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 his 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. 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, Contract #6530 Mosaic Global Sales LLC19 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 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 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 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 #6530 Mosaic Global Sales LLC20 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 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 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: MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day 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 approvedby the City Manager of Denton, Texas or his 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: Contract #6530 Mosaic Global Sales LLC21 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 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: 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 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. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the Contract #6530 Mosaic Global Sales LLC22 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 respondent. 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: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 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 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 Wor 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 Contract #6530 Mosaic Global Sales LLC23 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 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, fa 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. 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. 4.Purchase order 5.Supplier terms and conditions Contract #6530 Mosaic Global Sales LLC24 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 Exhibit D 10/20/2017 Contract #6530 Mosaic Global Sales LLC25 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E Contract #6530 Mosaic Global Sales LLC26 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E Contract #6530 Mosaic Global Sales LLC28 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E Contract #6530 Mosaic Global Sales LLC29 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E Contract #6530 Mosaic Global Sales LLC30 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E Contract #6530 Mosaic Global Sales LLC31 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E Contract #6530 Mosaic Global Sales LLC32 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E Contract #6530 Mosaic Global Sales LLC33 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E Contract #6530 Mosaic Global Sales LLC34 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E Contract #6530 Mosaic Global Sales LLC35 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E Contract #6530 Mosaic Global Sales LLC36 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E Contract #6530 Mosaic Global Sales LLC37 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E Contract #6530 Mosaic Global Sales LLC38 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E Contract #6530 Mosaic Global Sales LLC39 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E Contract #6530 Mosaic Global Sales LLC40 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E Contract #6530 Mosaic Global Sales LLC41 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E CERTIFIED TO NSF / ANSI 60 SAFETY DATA SHEET SECTION 1 PRODUCT AND COMPANY IDENTIFICATION Trade Name: FLUOROSILICIC ACID Chemical Name: Silicate(2-), hexafluoro-,dihydrogen CAS Number: 16961-83-4 Chemical Family: Inorganic Fluorides Synonyms: Hydrofluosilicic Acid, Fluosilicic Acid, Hexafluosilicic Acid, HFS, FSA Primary Use: Industrial Chemical, Water treatment Company Information: THE MOSAIC COMPANY 3033 Campus Drive Plymouth, MN 55441 www.mosaicco.com (800) 918-8270 or (763) 577-2700 8 AM to 5 PM Central Time US Emergency Phone: 24 Hour Emergency Telephone Number: For Chemical Emergencies: Spill, Leak, Fire or Accident Call CHEMTREC North America: (800) 424-9300 CCN 201871 Others: (703) 527-3887 (collect) SECTION 2 HAZARD IDENTIFICATION GHS Classification Acute Tox Category 4 (Oral) Hazard Statement H302 Skin Corrosion/Irritation: Category 1B Hazard Statement H314 Serious Eye Damage/Eye Irritation: Category 1 Hazard Statement H318 Signal Word: DANGER Hazard Statement(s) H302 Harmful if swallowed H314 Causes severe skin burns and eye damage H318 Causes serious eye damage Label Elements: Precautionary Statements Prevention: P260 Do not breath fumes/gas/mist/vapors/spray P264 Wash skin thoroughly after handling P270 Do not eat, drink or smoke when using this product. P280 Wear protective gloves/protective clothing / Wear eye protection/face protection P284 In case of inadequate ventilation/ wear respiratory protection Status: Revised Page 1 of 7 Issue Date: 03/22/2016 Section(s) Revised: All MSDS #: MOS 200011.01 Revision Date: 03/22/2016 Contract #6530 Mosaic Global Sales LLC42 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E CERTIFIED TO NSF / ANSI 60 Response: P301+ P312 IF SWALLOWED: Call a Poison Center/Doctor if you feel unwell. P301+P330+P331 IF SWALLOWED: Rinse mouth, Do NOT induce vomiting. IF IN EYES: Rinse cautiously with water for several minutes; Remove P305+P351+P338 contact lenses, if present and easy to do. Continue rinsing. IF ON SKIN: Take off immediately all contaminated clothing. Rinse skin P303+P361+P353 with water. IFINHALED: Remove person to fresh air and keep comfortable for P304+P340 breathing P310 Immediately call a doctor P363 Wash contaminated clothing before reuse. P390 Absorb Spillage to prevent material damage. Storage:P405 Store locked up Disposal of content/containers to be in accordance with Disposal: P501 local/regional/national regulations. SECTION 3 COMPOSITION INFORMATION ON INGREDIENTS Formula: HSiF 26 Hazardous Component CAS Number Percentage Composition: Hydrofluosilicic Acid16961-83-4 23-25% SECTION 4 FIRST AID MEASURES First Aid Procedures: Eyes: Immediately flush with plenty of water for at least 15 minutes. Get medical attention immediately. Skin: If on skin, promptly wash the contaminated area with soap and plenty of water. Immediately flush with plenty of water. Discard clothes if contaminated. Get medical attention if irritation occurs Inhalation: Move to fresh air. Administer oxygen. Treat symptomatically. Get medical attention promptly. Observe for possible delayed reaction. Ingestion: Do Notinduce vomiting. Give large quantities of milk or water to patient if conscious. Seek medical attention promptly. Most important symptoms and effects, Refer to Section 11 Î Toxicological Information both acute and delayed Note to Physician: None SECTION 5 FIRE FIGHTING MEASURES Extinguishing Media: Suitable extinguishing media: Small fires: Use water spray, dry chemical or carbon dioxide (CO). 2 Large fires: Use water spray, foam, dry chemical or carbon dioxide (CO). 2 Move containers from fire area if you can do it without risk. Do not get water inside containers. Cool containers with flooding quantities of water until well after fire is out. Unsuitable extinguishing media: None known Status: Revised Page 2 of 7 Issue Date: 03/22/2016 Section(s) Revised: All MSDS #: MOS 200011.01 Revision Date: 03/22/2016 Contract #6530 Mosaic Global Sales LLC43 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E CERTIFIED TO NSF / ANSI 60 Unusual Fire and Flash Point: Not Applicable Explosion Hazards Flammable OSHA Flammability Class: Not applicable Properties LEL/UEL: Not Applicable Auto-Ignition Temperature: Not Applicable. Protection of Fire-fighters Wear self-contained breathing apparatus with full protective clothing. Fluorosilicic Acid is a non-combustible; substance itself does not burn but may decompose upon heating to produce corrosive and/or toxic fumes. SECTION 6 ACCIDENTAL RELEASE MEASURES Advice for non-Prevent further leakage or spillage if safe to do so. Keep away from incompatible materials. emergency personnel: Wear suitable protective clothing, gloves and eye/face protection. Use recommended Advice for emergency respiratory protection. Stop leak if you can do it without risk. Absorb or cover with dry earth, responders: sand or other non-combustible material and transfer to containers. Ventilate area. Environmental Prevent further leakage or spillage if safe to do so. Do not let product get into drains; do not Precautions: flush into surface water or sanitary sewer system. Pick up mechanically. Use neutralizing agent. Absorb with liquid-binding material (dry earth, Response Techniques: sand, vermiculite, acid binders). Ensure adequate ventilation. Dispose spilled/contaminated material as described in Section 13 ÐDisposal ConsiderationsÑ. SECTION 7HANDLING AND STORAGE Handling: Use only in well-ventilated areas. Use only equipment and materials which are compatible with the product. Preferably transfer by pump or gravity. Keep away from incompatible products. For precautions see Section 2. Storage: Do not use packing made of metal. Store only in the original container. Do not store together with strong bases or very alkaline substances. Do not store together with substances which can be oxidized. Do not store together with flammable substances/solutions. Do not store near sources of heat or ignition, or reactive materials. Must be stored in a room with spill collection facilities. Keep containers tightly closed in a cool, well-ventilated place and away from heat. Keep in a contained area. Keep away from Incompatible products. SECTION 8EXPOSURE CONTROLS / PERSONAL PROTECTION Engineering Controls: Assure that ventilation is adequate to control airborne levels. Personal Protective Eye/Face: Splash proof goggles and full-face shield should be worn at all times. Equipment (PPE): Acid proof gloves, headgear, protective shoes and clothing should be Skin: worn to prevent contact. Wear NIOSH approved respiratory protective equipment when vapor or Respiratory: mists may exceed applicable concentration limits. Facilities utilizing or storing this material should be equipped with an Other: eyewash station and a safety shower. General Hygiene Avoid breathing fumes. Avoid ingestion. Wash thoroughly after handling. Avoid contact with Considerations: eyes or skin Use with adequate ventilation Status: Revised Page 3 of 7 Issue Date: 03/22/2016 Section(s) Revised: All MSDS #: MOS 200011.01 Revision Date: 03/22/2016 Contract #6530 Mosaic Global Sales LLC44 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E CERTIFIED TO NSF / ANSI 60 3 Exposure Guidelines: OSHA Permissible Exposure Limits (PEL): 2.5 mg/masFluoride 3 ACGIH Threshold Limit Value (TLV): 2.5 mg/mas Fluoride SECTION 9 PHYSICAL AND CHEMICAL PROPERTIES Note: Unless otherwise stated, values in this section are determined at 20°C (68°F) and 760 mm Hg (1 atm). ağƷĻƩźğƌ 5ĻƭĭƩźƦƷźƚƓ Appearance/Description: Colorless to amber liquid with a pungent odor Color: Colorless to amber Physical State: Liquid Odor: Pungent Odor Threshold: Not data available. DĻƓĻƩğƌ tƩƚƦĻƩƷźĻƭ Boiling Point: 105°C (221°F) @ 23%-25% Freezing/Melting Point: -18° to -20°C (-1° to -4°F) Thermal Decomposition: >105°C (>221°F) @ 23%-25% pH (1 % Solution): 1.2 Specific Gravity: 1.2. Water = 1 Bulk Density: 10.2 lb./gallon Solubility in water: 100% soluble in water Viscosity: 6.5 cps Molecular Weight of Pure Material: 144.11 g/mol ƚƌğƷźƌźƷǤ Volatility: No data available. Vapor Pressure (mm Hg): 22.5 @ 25°C (77°F) Vapor Density (air = 1): No data available. Evaporation Rate: No data available. CƌğƒƒğĬźƌźƷǤ Flash Point: Not applicable. Flammability/Explosive Limits (%): Not applicable. Auto-ignition Temperature: Not applicable. 9ƓǝźƩƚƓƒĻƓƷğƌ Octanol/Water Partition Coefficient No data available. Status: Revised Page 4 of 7 Issue Date: 03/22/2016 Section(s) Revised: All MSDS #: MOS 200011.01 Revision Date: 03/22/2016 Contract #6530 Mosaic Global Sales LLC45 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E CERTIFIED TO NSF / ANSI 60 SECTION 10 STABILITY AND REACTIVITY Reactivity No data available Chemical Stability: Stable under recommended conditions of storage, handling and proper use. Possibility of Hazardous Corrosive in contact with metals, It may give off hydrogen gas by reaction with metals. Reactions Conditions to Avoid: Avoid thermal decomposition, do not overheat. Incompatible Materials: Bases, acids, strong oxidizing agents, metals, stoneware and glass. Hazardous Extreme temperatures such as a fire cause formation of highly toxic and corrosive fumes of Decomposition Products: fluorides such as SiFand HF. 4 Hazardous Will not occur. Polymerization: Corrosiveness: Attacks silica bearing materials, metals, and stoneware SECTION 11 TOXICOLOGICAL INFORMATION GHS Properties Classification Acute Toxicity: Oral 4: ATEmx (oral) = 1,720 mg/Kg Oral : LD (oral, rat) 430 mg/kg 50 Inhalation: No data available. Dermal: No data available Aspiration Hazard No data available. Carcinogenicity: No data available. Germ Cell Mutagenesis No data available. Skin Corrosion Irritation Causes severe skin burns and eye irritation. Acid with extreme pH 2. Serious eye Causes serious eye damage. Acid with extreme pH 2. damage/irritation Skin sensitization No data available. Specific Target Organ Toxicity - Single No data available. Exposure: Specific Target Organ Toxicity - Repeated No data available. Exposure Reproductive Toxicity No data available. Respiratory Sensitization No data available. Additional information: The Registry of Toxic Effects of Chemical Substances (RTECS) VV8225000 Status: Revised Page 5 of 7 Issue Date: 03/22/2016 Section(s) Revised: All MSDS #: MOS 200011.01 Revision Date: 03/22/2016 Contract #6530 Mosaic Global Sales LLC46 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E CERTIFIED TO NSF / ANSI 60 tƚƷĻƓƷźğƌ IĻğƌƷŷ 9ŅŅĻĭƷƭ Eye Acute (immediate): Causes serious eye damage. Chronic (Delayed): Repeated or prolonged exposure to corrosive materials may cause conjunctivitis. Skin Acute (immediate): Causes severe skin burns and eye damage. Chronic (Delayed): Repeated or prolonged exposure to corrosive materials will cause dermatitis. Inhalation Acute (immediate): May cause corrosive burns Chronic (Delayed): Repeated or prolonged exposure to corrosive fume may cause bronchial irritation with chronic cough. Ingestion Acute (immediate): Harmful if swallowed. Chronic (Delayed): Repeated or prolonged exposure to corrosive materials or fumes may cause gastrointestinal disturbances. SECTION 12 ECOLOGICAL INFORMATION Toxicity No data available. Persistence and Not relevant. (Inorganic substance). degradability Bio accumulative Bio accumulative potential Log Pow: Not applicable Log Kow: Not applicable potential low Mobility in soil No data available. Results of PBT and vPvB PBT /vPvB assessment not available as chemical safety assessment not required/not assessment conducted. Other adverse effects No data available. SECTION 13DISPOSAL CONSIDERATIONS Recover or recycle if possible. Keep material in a closed DOT- approved container pending disposal in accordance with all applicable regulations. Disposal should be in accordance with applicable, regional, national, and local laws and regulations. It is the responsibility of the waste generator to determine the toxicity and physical properties of the material generated to determine the proper waste disposal and disposal methods in accordance with applicable regulations. SECTION 14 TRANSPORT INFO Regulatory Status: USDOT Canada TDG IATA IMO/IMDG Proper Shipping Name: Fluorosilicic Acid Fluorosilicic Acid Fluorosilicic Acid Fluorosilicic Acid Hazard Class: Class 8 (Corrosive) 8 8 8 Packing Group II II II II Identification Number: UN 1778 UN 1778 UN 1778 UN 1778 EMS-No: F-A, S-B Emergency Guide No. 154 154 8L US DOT Poison Inhalation Hazard: No Marine Pollutant: No Reportable Quantity: No Status: Revised Page 6 of 7 Issue Date: 03/22/2016 Section(s) Revised: All MSDS #: MOS 200011.01 Revision Date: 03/22/2016 Contract #6530 Mosaic Global Sales LLC47 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E CERTIFIED TO NSF / ANSI 60 SECTION 15REGULATORY INFORMATION CERCLA: Not Regulated. Product is not listed with an RQ (Reportable Quantity) RCRA 261.33: Not Regulated SARA TITLE III: Section 302/304: Not Regulated Reportable Quantity: No TPQ: No Section Acute: Yes Chronic: Yes Fire: No Pressure: No Reactivity: No 311/312: Section 313: Not Regulated TSCA: Listed on TSCA Inventory Canada DSL: Yes NDSL: No WHMIS 1988: Fluorosilicic Acid is listed as Class E (Corrosive) and D1B (Toxic material). This SDS has been prepared according to the hazard criteria of the Controlled Product Regulations (CPR) and the SDS contains all of the information required by the CPR. CA Proposition 65: (Health & Safety Code Section 25249.5) Not listed SECTION 16 OTHER INFORMATION NFPA Health: 3 Flammability: 0 Instability: 1 Special Hazard: None HMIS Health: 3 Flammability: 0 Physical Hazard: 0 PPE: Determined by user. See Section 8 Disclaimer: The information in this document is believed to be correct as of the date issued. HOWEVER, NO WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY OTHER WARRANTY IS EXPRESSED OR IS TO BE IMPLIED REGARDING THE ACCURACY OR COMPLETENESS OF THIS INFORMATION, THE RESULTS TO BE OBTAINED FROM THE USE OF THIS INFORMATION OR THE PRODUCT, THE SAFETY OF THIS PRODUCT, OR THE HAZARDS RELATED TO ITS USE. This information and product are furnished on the condition that the person receiving them shall make their own determination as to suitability of the product for their particular purpose and on the condition that they assume the risk of their use thereof. The conditions and use of this product are beyond the control of Mosaic, and Mosaic disclaims any liability for loss or damage incurred in connection with the use or misuse of this substance. Preparation: The preparation of this SDS was in accordance with ANSI Z400.1-2010. Revision Date: March 22, 2016 Sections Revised: All SDS Number: MOS 200011.01 th Globally Harmonized System of Classification and Labelling of Chemicals (GHS) Î 4 References: Edition 2011 OSHA Hazard Communication Standard, 2012 Status: Revised Page 7 of 7 Issue Date: 03/22/2016 Section(s) Revised: All MSDS #: MOS 200011.01 Revision Date: 03/22/2016 Contract #6530 Mosaic Global Sales LLC48 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E Contract #6530 Mosaic Global Sales LLC49 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E Industrial Fluorosilicic Acid (FSA) CHEMICAL ANALYSIS (TYPICAL) Specifications Range Typical Guarantee (%) HSiF 23 25 % 24 % 23.0 % min 26 F (equivalent total) 18.2 19.8 % 19 % 18.2 % min Free Acid 0.4 % 1.0 % max Product meets AWWA Standard B703 and it is NSF-60 Certified. Maximum Use 6 mg/L Physical Properties (Typical) Description Water white to straw yellow solution Color, APHA color units 200 maximum (APHA) in accordance with method 2120B, visual comparison o Specific Gravity, at 25% & 60 F 1.224 (water = 1) o Bulk Density, at 25% & 60 F 10.2 (Lbs/Gal) Containers Tank Truck 20-25 tons net weight (approximate) Rail Cars 100 tons net weight (approximate) Freight Description DOT Shipping Classification Class 8 (Corrosive) DOT Shipping Name Fluorosilicic Acid Packing Group II Placard Corrosive DOT / UN Number UN1778 Product analyses are typical as tested at shipment. Typical analysis is not guaranteed for any particular shipment. Handling and transportation may affect the analysis of the delivered product Revised 10/15b ©Copyright 2015. The Mosaic Company. All Rights Reserved. Contract #6530 Mosaic Global Sales LLC50 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E Contract #6530 Mosaic Global Sales LLC51 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 Contract #6530 Mosaic Global Sales LLC52 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E CERTIFIED TO NSF / ANSI 60 SAFETY DATA SHEET SECTION 1 PRODUCT AND COMPANY IDENTIFICATION Trade Name: FLUOROSILICIC ACID Chemical Name: Silicate(2-), hexafluoro-,dihydrogen CAS Number: 16961-83-4 Chemical Family: Inorganic Fluorides Synonyms: Hydrofluosilicic Acid, Fluosilicic Acid, Hexafluosilicic Acid, HFS, FSA Primary Use: Industrial Chemical, Water treatment Company Information: THE MOSAIC COMPANY 3033 Campus Drive Plymouth, MN 55441 www.mosaicco.com (800) 918-8270 or (763) 577-2700 8 AM to 5 PM Central Time US Emergency Phone: 24 Hour Emergency Telephone Number: For Chemical Emergencies: Spill, Leak, Fire or Accident Call CHEMTREC North America: (800) 424-9300 CCN 201871 Others: (703) 527-3887 (collect) SECTION 2 HAZARD IDENTIFICATION GHS Classification Acute Tox Category 4 (Oral) Hazard Statement H302 Skin Corrosion/Irritation: Category 1B Hazard Statement H314 Serious Eye Damage/Eye Irritation: Category 1 Hazard Statement H318 Signal Word: DANGER Hazard Statement(s) H302 Harmful if swallowed H314 Causes severe skin burns and eye damage H318 Causes serious eye damage Label Elements: Precautionary Statements Prevention: P260 Do not breath fumes/gas/mist/vapors/spray P264 Wash skin thoroughly after handling P270 Do not eat, drink or smoke when using this product. P280 Wear protective gloves/protective clothing / Wear eye protection/face protection P284 In case of inadequate ventilation/ wear respiratory protection Status: Revised Page 1 of 7 Issue Date: 03/22/2016 Section(s) Revised: All MSDS #: MOS 200011.01 Revision Date: 03/22/2016 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E CERTIFIED TO NSF / ANSI 60 Response: P301+ P312 IF SWALLOWED: Call a Poison Center/Doctor if you feel unwell. P301+P330+P331 IF SWALLOWED: Rinse mouth, Do NOT induce vomiting. IF IN EYES: Rinse cautiously with water for several minutes; Remove P305+P351+P338 contact lenses, if present and easy to do. Continue rinsing. IF ON SKIN: Take off immediately all contaminated clothing. Rinse skin P303+P361+P353 with water. IFINHALED: Remove person to fresh air and keep comfortable for P304+P340 breathing P310 Immediately call a doctor P363 Wash contaminated clothing before reuse. P390 Absorb Spillage to prevent material damage. Storage:P405 Store locked up Disposal of content/containers to be in accordance with Disposal: P501 local/regional/national regulations. SECTION 3 COMPOSITION INFORMATION ON INGREDIENTS Formula: HSiF 26 Hazardous Component CAS Number Percentage Composition: Hydrofluosilicic Acid16961-83-4 23-25% SECTION 4 FIRST AID MEASURES First Aid Procedures: Eyes: Immediately flush with plenty of water for at least 15 minutes. Get medical attention immediately. Skin: If on skin, promptly wash the contaminated area with soap and plenty of water. Immediately flush with plenty of water. Discard clothes if contaminated. Get medical attention if irritation occurs Inhalation: Move to fresh air. Administer oxygen. Treat symptomatically. Get medical attention promptly. Observe for possible delayed reaction. Ingestion: Do Notinduce vomiting. Give large quantities of milk or water to patient if conscious. Seek medical attention promptly. Most important symptoms and effects, Refer to Section 11 Î Toxicological Information both acute and delayed Note to Physician: None SECTION 5 FIRE FIGHTING MEASURES Extinguishing Media: Suitable extinguishing media: Small fires: Use water spray, dry chemical or carbon dioxide (CO). 2 Large fires: Use water spray, foam, dry chemical or carbon dioxide (CO). 2 Move containers from fire area if you can do it without risk. Do not get water inside containers. Cool containers with flooding quantities of water until well after fire is out. Unsuitable extinguishing media: None known Status: Revised Page 2 of 7 Issue Date: 03/22/2016 Section(s) Revised: All MSDS #: MOS 200011.01 Revision Date: 03/22/2016 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E CERTIFIED TO NSF / ANSI 60 Unusual Fire and Flash Point: Not Applicable Explosion Hazards Flammable OSHA Flammability Class: Not applicable Properties LEL/UEL: Not Applicable Auto-Ignition Temperature: Not Applicable. Protection of Fire-fighters Wear self-contained breathing apparatus with full protective clothing. Fluorosilicic Acid is a non-combustible; substance itself does not burn but may decompose upon heating to produce corrosive and/or toxic fumes. SECTION 6 ACCIDENTAL RELEASE MEASURES Advice for non-Prevent further leakage or spillage if safe to do so. Keep away from incompatible materials. emergency personnel: Wear suitable protective clothing, gloves and eye/face protection. Use recommended Advice for emergency respiratory protection. Stop leak if you can do it without risk. Absorb or cover with dry earth, responders: sand or other non-combustible material and transfer to containers. Ventilate area. Environmental Prevent further leakage or spillage if safe to do so. Do not let product get into drains; do not Precautions: flush into surface water or sanitary sewer system. Pick up mechanically. Use neutralizing agent. Absorb with liquid-binding material (dry earth, Response Techniques: sand, vermiculite, acid binders). Ensure adequate ventilation. Dispose spilled/contaminated material as described in Section 13 ÐDisposal ConsiderationsÑ. SECTION 7HANDLING AND STORAGE Handling: Use only in well-ventilated areas. Use only equipment and materials which are compatible with the product. Preferably transfer by pump or gravity. Keep away from incompatible products. For precautions see Section 2. Storage: Do not use packing made of metal. Store only in the original container. Do not store together with strong bases or very alkaline substances. Do not store together with substances which can be oxidized. Do not store together with flammable substances/solutions. Do not store near sources of heat or ignition, or reactive materials. Must be stored in a room with spill collection facilities. Keep containers tightly closed in a cool, well-ventilated place and away from heat. Keep in a contained area. Keep away from Incompatible products. SECTION 8EXPOSURE CONTROLS / PERSONAL PROTECTION Engineering Controls: Assure that ventilation is adequate to control airborne levels. Personal Protective Eye/Face: Splash proof goggles and full-face shield should be worn at all times. Equipment (PPE): Acid proof gloves, headgear, protective shoes and clothing should be Skin: worn to prevent contact. Wear NIOSH approved respiratory protective equipment when vapor or Respiratory: mists may exceed applicable concentration limits. Facilities utilizing or storing this material should be equipped with an Other: eyewash station and a safety shower. General Hygiene Avoid breathing fumes. Avoid ingestion. Wash thoroughly after handling. Avoid contact with Considerations: eyes or skin Use with adequate ventilation Status: Revised Page 3 of 7 Issue Date: 03/22/2016 Section(s) Revised: All MSDS #: MOS 200011.01 Revision Date: 03/22/2016 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E CERTIFIED TO NSF / ANSI 60 3 Exposure Guidelines: OSHA Permissible Exposure Limits (PEL): 2.5 mg/masFluoride 3 ACGIH Threshold Limit Value (TLV): 2.5 mg/mas Fluoride SECTION 9 PHYSICAL AND CHEMICAL PROPERTIES Note: Unless otherwise stated, values in this section are determined at 20°C (68°F) and 760 mm Hg (1 atm). ağƷĻƩźğƌ 5ĻƭĭƩźƦƷźƚƓ Appearance/Description: Colorless to amber liquid with a pungent odor Color: Colorless to amber Physical State: Liquid Odor: Pungent Odor Threshold: Not data available. DĻƓĻƩğƌ tƩƚƦĻƩƷźĻƭ Boiling Point: 105°C (221°F) @ 23%-25% Freezing/Melting Point: -18° to -20°C (-1° to -4°F) Thermal Decomposition: >105°C (>221°F) @ 23%-25% pH (1 % Solution): 1.2 Specific Gravity: 1.2. Water = 1 Bulk Density: 10.2 lb./gallon Solubility in water: 100% soluble in water Viscosity: 6.5 cps Molecular Weight of Pure Material: 144.11 g/mol ƚƌğƷźƌźƷǤ Volatility: No data available. Vapor Pressure (mm Hg): 22.5 @ 25°C (77°F) Vapor Density (air = 1): No data available. Evaporation Rate: No data available. CƌğƒƒğĬźƌźƷǤ Flash Point: Not applicable. Flammability/Explosive Limits (%): Not applicable. Auto-ignition Temperature: Not applicable. 9ƓǝźƩƚƓƒĻƓƷğƌ Octanol/Water Partition Coefficient No data available. Status: Revised Page 4 of 7 Issue Date: 03/22/2016 Section(s) Revised: All MSDS #: MOS 200011.01 Revision Date: 03/22/2016 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E CERTIFIED TO NSF / ANSI 60 SECTION 10 STABILITY AND REACTIVITY Reactivity No data available Chemical Stability: Stable under recommended conditions of storage, handling and proper use. Possibility of Hazardous Corrosive in contact with metals, It may give off hydrogen gas by reaction with metals. Reactions Conditions to Avoid: Avoid thermal decomposition, do not overheat. Incompatible Materials: Bases, acids, strong oxidizing agents, metals, stoneware and glass. Hazardous Extreme temperatures such as a fire cause formation of highly toxic and corrosive fumes of Decomposition Products: fluorides such as SiFand HF. 4 Hazardous Will not occur. Polymerization: Corrosiveness: Attacks silica bearing materials, metals, and stoneware SECTION 11 TOXICOLOGICAL INFORMATION GHS Properties Classification Acute Toxicity: Oral 4: ATEmx (oral) = 1,720 mg/Kg Oral : LD (oral, rat) 430 mg/kg 50 Inhalation: No data available. Dermal: No data available Aspiration Hazard No data available. Carcinogenicity: No data available. Germ Cell Mutagenesis No data available. Skin Corrosion Irritation Causes severe skin burns and eye irritation. Acid with extreme pH 2. Serious eye Causes serious eye damage. Acid with extreme pH 2. damage/irritation Skin sensitization No data available. Specific Target Organ Toxicity - Single No data available. Exposure: Specific Target Organ Toxicity - Repeated No data available. Exposure Reproductive Toxicity No data available. Respiratory Sensitization No data available. Additional information: The Registry of Toxic Effects of Chemical Substances (RTECS) VV8225000 Status: Revised Page 5 of 7 Issue Date: 03/22/2016 Section(s) Revised: All MSDS #: MOS 200011.01 Revision Date: 03/22/2016 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E CERTIFIED TO NSF / ANSI 60 tƚƷĻƓƷźğƌ IĻğƌƷŷ 9ŅŅĻĭƷƭ Eye Acute (immediate): Causes serious eye damage. Chronic (Delayed): Repeated or prolonged exposure to corrosive materials may cause conjunctivitis. Skin Acute (immediate): Causes severe skin burns and eye damage. Chronic (Delayed): Repeated or prolonged exposure to corrosive materials will cause dermatitis. Inhalation Acute (immediate): May cause corrosive burns Chronic (Delayed): Repeated or prolonged exposure to corrosive fume may cause bronchial irritation with chronic cough. Ingestion Acute (immediate): Harmful if swallowed. Chronic (Delayed): Repeated or prolonged exposure to corrosive materials or fumes may cause gastrointestinal disturbances. SECTION 12 ECOLOGICAL INFORMATION Toxicity No data available. Persistence and Not relevant. (Inorganic substance). degradability Bio accumulative Bio accumulative potential Log Pow: Not applicable Log Kow: Not applicable potential low Mobility in soil No data available. Results of PBT and vPvB PBT /vPvB assessment not available as chemical safety assessment not required/not assessment conducted. Other adverse effects No data available. SECTION 13DISPOSAL CONSIDERATIONS Recover or recycle if possible. Keep material in a closed DOT- approved container pending disposal in accordance with all applicable regulations. Disposal should be in accordance with applicable, regional, national, and local laws and regulations. It is the responsibility of the waste generator to determine the toxicity and physical properties of the material generated to determine the proper waste disposal and disposal methods in accordance with applicable regulations. SECTION 14 TRANSPORT INFO Regulatory Status: USDOT Canada TDG IATA IMO/IMDG Proper Shipping Name: Fluorosilicic Acid Fluorosilicic Acid Fluorosilicic Acid Fluorosilicic Acid Hazard Class: Class 8 (Corrosive) 8 8 8 Packing Group II II II II Identification Number: UN 1778 UN 1778 UN 1778 UN 1778 EMS-No: F-A, S-B Emergency Guide No. 154 154 8L US DOT Poison Inhalation Hazard: No Marine Pollutant: No Reportable Quantity: No Status: Revised Page 6 of 7 Issue Date: 03/22/2016 Section(s) Revised: All MSDS #: MOS 200011.01 Revision Date: 03/22/2016 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E CERTIFIED TO NSF / ANSI 60 SECTION 15REGULATORY INFORMATION CERCLA: Not Regulated. Product is not listed with an RQ (Reportable Quantity) RCRA 261.33: Not Regulated SARA TITLE III: Section 302/304: Not Regulated Reportable Quantity: No TPQ: No Section Acute: Yes Chronic: Yes Fire: No Pressure: No Reactivity: No 311/312: Section 313: Not Regulated TSCA: Listed on TSCA Inventory Canada DSL: Yes NDSL: No WHMIS 1988: Fluorosilicic Acid is listed as Class E (Corrosive) and D1B (Toxic material). This SDS has been prepared according to the hazard criteria of the Controlled Product Regulations (CPR) and the SDS contains all of the information required by the CPR. CA Proposition 65: (Health & Safety Code Section 25249.5) Not listed SECTION 16 OTHER INFORMATION NFPA Health: 3 Flammability: 0 Instability: 1 Special Hazard: None HMIS Health: 3 Flammability: 0 Physical Hazard: 0 PPE: Determined by user. See Section 8 Disclaimer: The information in this document is believed to be correct as of the date issued. HOWEVER, NO WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY OTHER WARRANTY IS EXPRESSED OR IS TO BE IMPLIED REGARDING THE ACCURACY OR COMPLETENESS OF THIS INFORMATION, THE RESULTS TO BE OBTAINED FROM THE USE OF THIS INFORMATION OR THE PRODUCT, THE SAFETY OF THIS PRODUCT, OR THE HAZARDS RELATED TO ITS USE. This information and product are furnished on the condition that the person receiving them shall make their own determination as to suitability of the product for their particular purpose and on the condition that they assume the risk of their use thereof. The conditions and use of this product are beyond the control of Mosaic, and Mosaic disclaims any liability for loss or damage incurred in connection with the use or misuse of this substance. Preparation: The preparation of this SDS was in accordance with ANSI Z400.1-2010. Revision Date: March 22, 2016 Sections Revised: All SDS Number: MOS 200011.01 th Globally Harmonized System of Classification and Labelling of Chemicals (GHS) Î 4 References: Edition 2011 OSHA Hazard Communication Standard, 2012 Status: Revised Page 7 of 7 Issue Date: 03/22/2016 Section(s) Revised: All MSDS #: MOS 200011.01 Revision Date: 03/22/2016 DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E Industrial Fluorosilicic Acid (FSA) CHEMICAL ANALYSIS (TYPICAL) Specifications Range Typical Guarantee (%) HSiF 23 25 % 24 % 23.0 % min 26 F (equivalent total) 18.2 19.8 % 19 % 18.2 % min Free Acid 0.4 % 1.0 % max Product meets AWWA Standard B703 and it is NSF-60 Certified. Maximum Use 6 mg/L Physical Properties (Typical) Description Water white to straw yellow solution Color, APHA color units 200 maximum (APHA) in accordance with method 2120B, visual comparison o Specific Gravity, at 25% & 60 F 1.224 (water = 1) o Bulk Density, at 25% & 60 F 10.2 (Lbs/Gal) Containers Tank Truck 20-25 tons net weight (approximate) Rail Cars 100 tons net weight (approximate) Freight Description DOT Shipping Classification Class 8 (Corrosive) DOT Shipping Name Fluorosilicic Acid Packing Group II Placard Corrosive DOT / UN Number UN1778 Product analyses are typical as tested at shipment. Typical analysis is not guaranteed for any particular shipment. Handling and transportation may affect the analysis of the delivered product Revised 10/15b ©Copyright 2015. The Mosaic Company. All Rights Reserved. DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 EXHIBIT E DocuSign Envelope ID: 2C32AD19-DDA9-4987-BFD1-0A15C2584732 Certificate Of Completion Envelope Id: 2C32AD19DDA94987BFD10A15C2584732Status: Completed Subject: City Council Docusign Item - REVISED 6530 W/WW Chemicals - Mosaic Source Envelope: Document Pages: 80Signatures: 4Envelope Originator: Certificate Pages: 6Initials: 0Rebecca Hunter AutoNav: Enabled901B Texas Street EnvelopeId Stamping: EnabledDenton, TX 76209 Time Zone: (UTC-08:00) Pacific Time (US & Canada)rebecca.hunter@cityofdenton.com IP Address: 129.120.6.150 Record Tracking Status: OriginalHolder: Rebecca HunterLocation: DocuSign 11/2/2017 11:21:12 AM rebecca.hunter@cityofdenton.com Signer EventsSignatureTimestamp Rebecca HunterSent: 11/2/2017 11:23:34 AM Completed rebecca.hunter@cityofdenton.comViewed: 11/2/2017 11:23:50 AM Assistant Purchasing ManagerSigned: 11/2/2017 11:25:15 AM Using IP Address: 129.120.6.150 City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Gustavo NavarSent: 11/2/2017 11:25:17 AM FSA.Group@mosaicco.comViewed: 11/2/2017 11:37:33 AM Technical Services ManagerSigned: 11/2/2017 11:39:59 AM Security Level: Email, Account Authentication Using IP Address: 47.204.208.126 (Optional) Signed using mobile Electronic Record and Signature Disclosure: Accepted: 11/2/2017 11:37:33 AM ID: 5c3e8535-2eee-467d-9cb6-ff2111229a69 Jennifer DeCurtisSent: 11/2/2017 11:40:02 AM jennifer.decurtis@cityofdenton.comViewed: 11/2/2017 11:42:09 AM Deputy City AttorneySigned: 11/2/2017 11:42:28 AM City of Denton Using IP Address: 129.120.6.150 Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Julia WinkleySent: 11/2/2017 11:42:30 AM Completed julia.winkley@cityofdenton.comViewed: 11/14/2017 1:37:26 PM Contracts Administration SupervisorSigned: 11/14/2017 1:37:50 PM Using IP Address: 129.120.6.150 City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Signer EventsSignatureTimestamp Todd HilemanSent: 11/14/2017 1:37:53 PM todd.hileman@cityofdenton.comViewed: 11/14/2017 1:43:40 PM City ManagerSigned: 11/14/2017 1:43:46 PM City of Denton Using IP Address: 47.190.47.120 Security Level: Email, Account Authentication Signed using mobile (Optional) Electronic Record and Signature Disclosure: Accepted: 7/25/2017 9:02:14 AM ID: 57619fbf-2aec-4b1f-805d-6bd7d9966f21 Jennifer WaltersSent: 11/14/2017 1:43:48 PM jennifer.walters@cityofdenton.comViewed: 11/16/2017 6:03:51 AM City SecretarySigned: 11/16/2017 6:04:18 AM City of Denton Using IP Address: 129.120.6.150 Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer EventsSignatureTimestamp Editor Delivery EventsStatusTimestamp Agent Delivery EventsStatusTimestamp Intermediary Delivery EventsStatusTimestamp Certified Delivery EventsStatusTimestamp Carbon Copy EventsStatusTimestamp Heidi SchmitzSent: 11/2/2017 11:25:17 AM Heidi.Schmitz@mosaicco.comViewed: 11/16/2017 6:07:51 AM Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Julia WinkleySent: 11/2/2017 11:40:01 AM julia.winkley@cityofdenton.com Contracts Administration Supervisor City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Sherri ThurmanSent: 11/2/2017 11:40:01 AM sherri.thurman@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane RichardsonSent: 11/14/2017 1:37:52 PM jane.richardson@cityofdenton.com Assistant City Secretary City of Denton Security Level: Email, Account Authentication (Optional) Electronic 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DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 5ƚĭǒƭźŭƓ /źƷǤ /ƚǒƓĭźƌ ƩğƓƭƒźƷƷğƌ /ƚǝĻƩƭŷĻĻƷ CźƌĻ bğƒĻ tǒƩĭŷğƭźƓŭ /ƚƓƷğĭƷ /źƷǤ /ƚǒƓĭźƌ ğƩŭĻƷ 5ğƷĻ /ƚƓƷƩğĭƷ ğƌǒĻ tźŭŭǤ .ğĭƉ hƦƷźƚƓ /ƚƓƷƩğĭƷ 9ǣƦźƩğƷźƚƓ hƩķźƓğƓĭĻ DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND TDC, LLC (FILE #6530) THIS CONTRACT CITY OF DENTON, TEXAS SCOPE OF SERVICES ; (on file at the office of the Purchasing Agent C; (Exhibit "E") (Exhibit "F") INDEMNITY THE SUPPLIER REPRESENTS AND WARRANTS TO THE CITY THAT THE INTELLECTUAL PROPERTY SUPPLIED BY 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, AND THAT NO CLAIMS HAVE BEEN MADE BY ANY PERSON OR ENTITY WITH RESPECT TO THE OWNERSHIP OR OPERATION OF THE INTELLECTUAL PROPERTY. MOREOVER, 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 Contract #6530 TDC, LLC1 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 OTHER PROFESSIONALS) ARISING OUT OF OR RESULTING FROM ANY CLAIM THAT THE CITY'S EXERCISE OF ITS LICENSE RIGHTS, AND ITS USE OF THE INTELLECTUAL PROPERTY, THE SUBJECT OF THIS CONTRACT, INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, OR THE BREACH OF ANY OF REPRESENTATIONS OR WARRANTIES STATED IN THE CONTRACT DOCUMENTS. 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. SUPPLIER 2017-273508 CITY OF DENTON, TEXAS _______________________________ Contract #6530 TDC, LLC2 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 Exhibit A Special Terms and Conditions 1.The Quantities 2.Product Changes During Contract Term 3.Authorized Distributor 4.Contract Terms 5.Price Escalation and De-escalation The Supplier must submit or make available the manufacturers pricing sheet used to calculate the bid proposal, to participate in the escalation/de-escalation clause. Contract #6530 TDC, LLC3 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 6.Total Contract Amount 7.Delivery Lead Time Contract #6530 TDC, LLC4 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 Exhibit C City of Denton Standard Purchase Terms and Conditions EFFECTIVE DATE/TERM CONTRACTOR TO PACKAGE DELIVERABLES SHIPMENT UNDER RESERVATION PROHIBITED TITLE & RISK OF LOSS Contract #6530 TDC, LLC5 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 DELIVERY TERMS AND TRANSPORTATION CHARGES RIGHT OF INSPECTION AND REJECTION NO REPLACEMENT OF DEFECTIVE TENDER PLACE AND CONDITION OF WORK WORKFORCE Contract #6530 TDC, LLC6 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 Immigration: COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS Environmental Protection: et seqet seq INVOICES Proper Invoices must include a unique invoice number, the purchase order or delivery order number an the name of the point of contact for the Department Contract #6530 TDC, LLC7 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 PAYMENT 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. TRAVEL EXPENSES Contract #6530 TDC, LLC8 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 FINAL PAYMENT AND CLOSE-OUT SPECIAL TOOLS & TEST EQUIPMENT RIGHT TO AUDIT SUBCONTRACTORS Contract #6530 TDC, LLC9 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 WARRANTY-PRICE WARRANTY TITLE Contract #6530 TDC, LLC10 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 WARRANTY DELIVERABLES WARRANTY SERVICES Contract #6530 TDC, LLC11 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 ACCEPTANCE OF INCOMPLETE OR NON-CONFORMING DELIVERABLES RIGHT TO ASSURANCE STOP WORK NOTICE DEFAULT TERMINATION FOR CAUSE: Contract #6530 TDC, LLC12 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 TERMINATION WITHOUT CAUSE FRAUD DELAYS INDEMNITY THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, Contract #6530 TDC, LLC13 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 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 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. INSURANCE Appendix A . A- VII or better Contract #6530 TDC, LLC14 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 CLAIMS NOTICES Contract #6530 TDC, LLC15 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL NO WARRANTY BY CITY AGAINST INFRINGEMENTS CONFIDENTIALITY OWNERSHIP AND USE OF DELIVERABLES Contract #6530 TDC, LLC16 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 PUBLICATIONS ADVERTISING NO CONTINGENT FEES Contract #6530 TDC, LLC17 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 GRATUITIES PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS INDEPENDENT CONTRACTOR ASSIGNMENT-DELEGATION WAIVER Contract #6530 TDC, LLC18 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 MODIFICATIONS INTERPRETATION DISPUTE RESOLUTION JURISDICTION AND VENUE Contract #6530 TDC, LLC19 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 INVALIDITY HOLIDAYS: must be approved SURVIVABILITY OF OBLIGATIONS: NON-SUSPENSION OR DEBARMENT CERTIFICATION: EQUAL OPPORTUNITY Equal Employment Opportunity: Contract #6530 TDC, LLC20 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 Americans with Disabilities Act (ADA) Compliance: BUY AMERICAN ACT-SUPPLIES (Applicable to certain federally funded requirements) RIGHT TO INFORMATION: LICENSE FEES OR TAXES: Contract #6530 TDC, LLC21 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 PREVAILING WAGE RATES: COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: FEDERAL, STATE, AND LOCAL REQUIREMENTS: DRUG FREE WORKPLACE: RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: FORCE MAJEURE: Contract #6530 TDC, LLC22 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 NON-WAIVER OF RIGHTS: NO WAIVER OF SOVEREIGN IMMUNITY: RECORDS RETENTION: 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. 4.Purchase order 5.Supplier terms and conditions Contract #6530 TDC, LLC23 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 Exhibit D 10/23/2017 Contract #6530 TDC, LLC24 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 EXHIBIT E Contract #6530 TDC, LLC25 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 EXHIBIT E Contract #6530 TDC, LLC27 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 EXHIBIT E Contract #6530 TDC, LLC28 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 EXHIBIT E Contract #6530 TDC, LLC29 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 EXHIBIT E Contract #6530 TDC, LLC30 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 EXHIBIT E Contract #6530 TDC, LLC31 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 EXHIBIT E Contract #6530 TDC, LLC32 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 EXHIBIT E Contract #6530 TDC, LLC33 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 EXHIBIT E Contract #6530 TDC, LLC34 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 EXHIBIT E Contract #6530 TDC, LLC35 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 EXHIBIT E Contract #6530 TDC, LLC36 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 EXHIBIT E Contract #6530 TDC, LLC37 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 EXHIBIT E Contract #6530 TDC, LLC38 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 EXHIBIT E Contract #6530 TDC, LLC39 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 EXHIBIT E Contract #6530 TDC, LLC40 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 EXHIBIT E Contract #6530 TDC, LLC41 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 EXHIBIT E Contract #6530 TDC, LLC42 DocuSign Envelope ID: A896453B-63EE-4D91-9757-E28824CEBCA8 EXHIBIT F Contract #6530 TDC, LLC43 Certificate Of Completion Envelope Id: A896453B63EE4D919757E28824CEBCA8Status: Completed Subject: City Council Docusign Item - 6530 TDC Source Envelope: Document Pages: 44Signatures: 4Envelope Originator: Certificate Pages: 6Initials: 0Karen E. Smith AutoNav: Enabled901B Texas Street EnvelopeId Stamping: EnabledDenton, TX 76209 Time Zone: (UTC-06:00) Central Time (US & Canada)karen.smith@cityofdenton.com IP Address: 129.120.6.150 Record Tracking Status: OriginalHolder: Karen E. SmithLocation: DocuSign 11/2/2017 9:22:07 AM karen.smith@cityofdenton.com Signer EventsSignatureTimestamp Karen E. SmithSent: 11/2/2017 9:28:16 AM Completed karen.smith@cityofdenton.comViewed: 11/2/2017 9:28:31 AM Interim Purchasing ManagerSigned: 11/2/2017 9:29:05 AM Using IP Address: 129.120.6.150 City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jon KirklandSent: 11/2/2017 9:29:07 AM jon.kirkland@genlp.comViewed: 11/2/2017 4:08:22 PM Business ManagerSigned: 11/2/2017 4:13:31 PM Security Level: Email, Account Authentication Using IP Address: 209.163.240.162 (Optional) Electronic Record and Signature Disclosure: Accepted: 11/2/2017 4:08:22 PM ID: 6cbbce5a-be16-4f04-b072-887165071138 Jennifer DeCurtisSent: 11/2/2017 4:13:34 PM jennifer.decurtis@cityofdenton.comViewed: 11/2/2017 4:14:14 PM Deputy City AttorneySigned: 11/2/2017 4:14:20 PM City of Denton Using IP Address: 129.120.6.150 Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Julia WinkleySent: 11/2/2017 4:14:22 PM Completed julia.winkley@cityofdenton.comViewed: 11/3/2017 2:29:56 PM Contracts Administration SupervisorSigned: 11/14/2017 3:37:04 PM Using IP Address: 129.120.6.150 City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Signer EventsSignatureTimestamp Todd HilemanSent: 11/14/2017 3:37:07 PM todd.hileman@cityofdenton.comViewed: 11/14/2017 3:43:53 PM City ManagerSigned: 11/14/2017 3:43:59 PM City of Denton Using IP Address: 47.190.47.120 Security Level: Email, Account Authentication Signed using mobile (Optional) Electronic Record and Signature Disclosure: Accepted: 7/25/2017 11:02:14 AM ID: 57619fbf-2aec-4b1f-805d-6bd7d9966f21 Jennifer WaltersSent: 11/14/2017 3:44:01 PM jennifer.walters@cityofdenton.comViewed: 11/16/2017 8:00:38 AM City SecretarySigned: 11/16/2017 8:03:38 AM City of Denton Using IP Address: 129.120.6.150 Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer EventsSignatureTimestamp Editor Delivery EventsStatusTimestamp Agent Delivery EventsStatusTimestamp Intermediary Delivery EventsStatusTimestamp Certified Delivery EventsStatusTimestamp Carbon Copy EventsStatusTimestamp Julia WinkleySent: 11/2/2017 4:13:33 PM julia.winkley@cityofdenton.com Contracts Administration Supervisor City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Sherri ThurmanSent: 11/2/2017 4:13:33 PM sherri.thurman@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane RichardsonSent: 11/14/2017 3:37:06 PM jane.richardson@cityofdenton.com Assistant City Secretary City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Robin FoxSent: 11/14/2017 3:37:06 PM Robin.fox@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Carbon Copy EventsStatusTimestamp Not Offered via DocuSign Jennifer BridgesSent: 11/16/2017 8:03:40 AM jennifer.bridges@cityofdenton.comViewed: 11/17/2017 11:25:37 AM Procurement Assistant City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane RichardsonSent: 11/16/2017 8:03:41 AM jane.richardson@cityofdenton.comViewed: 12/5/2017 12:07:42 PM Assistant City Secretary City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign randy MarkhamSent: 11/16/2017 8:03:41 AM randy.markham@cityofdenton.comViewed: 11/22/2017 8:47:11 AM Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign robyn ForsythSent: 11/16/2017 8:03:42 AM robyn.forsyth@cityofdenton.com Buyer City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary EventsSignatureTimestamp Envelope Summary EventsStatusTimestamps Envelope SentHashed/Encrypted11/16/2017 8:03:42 AM Certified DeliveredSecurity Checked11/16/2017 8:03:42 AM Signing CompleteSecurity Checked11/16/2017 8:03:42 AM CompletedSecurity Checked11/16/2017 8:03:42 AM Payment EventsStatusTimestamps Electronic Record and Signature Disclosure ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you certain written notices or disclosures. Described below are the terms and conditions for providing to you such notices and disclosures electronically through your DocuSign, Inc. (DocuSign) Express user account. Please read the information below carefully and thoroughly, and if you can access this information electronically to your satisfaction and agree to these terms and conditions, please confirm your agreement by clicking the 'I agree' button at the bottom of this document. Getting paper copies At any time, you may request from us a paper copy of any record provided or made available electronically to you by us. For such copies, as long as you are an authorized user of the DocuSign system you will have the ability to download and print any documents we send to you through your DocuSign user account for a limited period of time (usually 30 days) after such documents are first sent to you. After such time, if you wish for us to send you paper copies of any such documents from our office to you, you will be charged a $0.00 per-page fee. You may request delivery of such paper copies from us by following the procedure described below. Withdrawing your consent If you decide to receive notices and disclosures from us electronically, you may at any time change your mind and tell us that thereafter you want to receive required notices and disclosures only in paper format. How you must inform us of your decision to receive future notices and disclosure in paper format and withdraw your consent to receive notices and disclosures electronically is described below. Consequences of changing your mind If you elect to receive required notices and disclosures only in paper format, it will slow the speed at which we can complete certain steps in transactions with you and delivering services to you because we will need first to send the required notices or disclosures to you in paper format, and then wait until we receive back from you your acknowledgment of your receipt of such paper notices or disclosures. To indicate to us that you are changing your mind, you must withdraw your consent using the DocuSign 'Withdraw Consent' form on the signing page of your DocuSign account. This will indicate to us that you have withdrawn your consent to receive required notices and disclosures electronically from us and you will no longer be able to use your DocuSign Express user account to receive required notices and consents electronically from us or to sign electronically documents from us. All notices and disclosures will be sent to you electronically Unless you tell us otherwise in accordance with the procedures described herein, we will provide electronically to you through your DocuSign user account all required notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you during the course of our relationship with you. To reduce the chance of you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required notices and disclosures to you by the same method and to the same address that you have given us. Thus, you can receive all the disclosures and notices electronically or in paper format through the paper mail delivery system. If you do not agree with this process, please let us know as described below. Please also see the paragraph immediately above that describes the consequences of your electing not to receive delivery of the notices and disclosures electronically from us. How to contact City of Denton: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: purchasing@cityofdenton.com To advise City of Denton of your new e-mail address To let us know of a change in your e-mail address where we should send notices and disclosures electronically to you, you must send an email message to us at melissa.kraft@cityofdenton.com and in the body of such request you must state: your previous e-mail address, your new e-mail address. We do not require any other information from you to change your email address.. In addition, you must notify DocuSign, Inc to arrange for your new email address to be reflected in your DocuSign account by following the process for changing e-mail in DocuSign. To request paper copies from City of Denton To request delivery from us of paper copies of the notices and disclosures previously provided by us to you electronically, you must send us an e-mail to purchasing@cityofdenton.com and in the body of such request you must state your e-mail address, full name, US Postal address, and telephone number. We will bill you for any fees at that time, if any. To withdraw your consent with City of Denton To inform us that you no longer want to receive future notices and disclosures in electronic format you may: i. decline to sign a document from within your DocuSign account, and on the subsequent page, select the check-box indicating you wish to withdraw your consent, or you may; ii. send us an e-mail to purchasing@cityofdenton.com and in the body of such request you must state your e-mail, full name, IS Postal Address, telephone number, and account number. We do not need any other information from you to withdraw consent.. The consequences of your withdrawing consent for online documents will be that transactions may take a longer time to process.. Required hardware and software Operating Systems: Windows2000? or WindowsXP? Browsers (for SENDERS): Internet Explorer 6.0? or above Browsers (for SIGNERS): Internet Explorer 6.0?, Mozilla FireFox 1.0, NetScape 7.2 (or above) Email: Access to a valid email account Screen Resolution: 800 x 600 minimum Enabled Security Settings: Allow per session cookies Users accessing the internet behind a Proxy Server must enable HTTP 1.1 settings via proxy connection ** These minimum requirements are subject to change. If these requirements change, we will provide you with an email message at the email address we have on file for you at that time providing you with the revised hardware and software requirements, at which time you will have the right to withdraw your consent. Acknowledging your access and consent to receive materials electronically To confirm to us that you can access this information electronically, which will be similar to other electronic notices and disclosures that we will provide to you, please verify that you were able to read this electronic disclosure and that you also were able to print on paper or electronically save this page for your future reference and access or that you were able to e-mail this disclosure and consent to an address where you will be able to print on paper or save it for your future reference and access. Further, if you consent to receiving notices and disclosures exclusively in electronic format on the terms and conditions described above, please let us know by clicking the 'I agree' button below. By checking the 'I Agree' box, I confirm that: I can access and read this Electronic CONSENT TO ELECTRONIC RECEIPT OF ELECTRONIC RECORD AND SIGNATURE DISCLOSURES document; and I can print on paper the disclosure or save or send the disclosure to a place where I can print it, for future reference and access; and Until or unless I notify City of Denton as described above, I consent to receive from exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to me by City of Denton during the course of my relationship with you. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 5ƚĭǒƭźŭƓ /źƷǤ /ƚǒƓĭźƌ ƩğƓƭƒźƷƷğƌ /ƚǝĻƩƭŷĻĻƷ CźƌĻ bğƒĻ tǒƩĭŷğƭźƓŭ /ƚƓƷğĭƷ /źƷǤ /ƚǒƓĭźƌ ğƩŭĻƷ 5ğƷĻ /ƚƓƷƩğĭƷ ğƌǒĻ tźŭŭǤ .ğĭƉ hƦƷźƚƓ /ƚƓƷƩğĭƷ 9ǣƦźƩğƷźƚƓ hƩķźƓğƓĭĻ DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND BRENNTAG SOUTHWEST INC. (Contract #6530) THIS CONTRACT is made and entered into this date _______________________, by and between Brenntag Southwest Inc., a corporation, whose address is 610 Fisher Rd, Longview, TX 75604, hereinafter referred to as "Supplier," 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 his 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 IFB # 6530 Water and Wastewater Chemicals, 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, or on file, and incorporated herein by reference: (a) Special Terms and Conditions ; (b) IFB#6530 (on file at the office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions ; (d) Certificate of Interested Parties Electronic Filing (e) (Exhibit "E"); 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 INDEMNITY THE SUPPLIER REPRESENTS AND WARRANTS TO THE CITY THAT THE INTELLECTUAL PROPERTY SUPPLIED BY 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, AND THAT NO CLAIMS HAVE BEEN MADE BY ANY PERSON OR ENTITY WITH RESPECT TO THE OWNERSHIP OR OPERATION OF THE INTELLECTUAL PROPERTY. MOREOVER, 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 Contract# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 OTHER PROFESSIONALS) ARISING OUT OF OR RESULTING FROM ANY CLAIM THAT THE CITY'S EXERCISE OF ITS LICENSE RIGHTS, AND ITS USE OF THE INTELLECTUAL PROPERTY, THE SUBJECT OF THIS CONTRACT, INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, OR THE BREACH OF ANY OF REPRESENTATIONS OR WARRANTIES STATED IN THE CONTRACT DOCUMENTS. 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. IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. SUPPLIER BY: ______________________________ AUTHORIZED SIGNATURE Name: ______________________________ Title: _______________________________ ___________________________________ PHONE NUMBER ___________________________________ EMAIL ADDRESS ___________________________________ TEXAS ETHICS COMMISSION CERTIFICATE NUMBER CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: _____________________________ TODD HILEMAN CITY MANAGER BY: __________________________________ APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY BY: _______________________________ Contract# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 Exhibit A Special Terms and Conditions 1. The Quantities The quantities indicated on Exhibit E are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the bid price. Individual purchase orders will be issued on an as needed basis. 2. Product Changes During Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to dentonpurchasing@cityofdenton.com, with the above file number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be 3. Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The representative as needed by the City. 4. Contract Terms The contract term will be one (1) year, effective from the date that the City provides notice of the either party notifies the other party in writing prior to the renewal date that the contract will not be renewed or the contract is otherwise terminated or completed. This contract may only be automatically renewed for an additional three (3) one-year periods, subject to the terms herein, without City Council approval. 5. Price Escalation and De-escalation -escalation price adjustment annually based on these special terms. The escalation/de-escalation will be based on the U.S Department of Labor, Bureau of Labor Statistics, Producer Price Index (PPI) for finished Chemicals (PCU212393212393). The stated eligible bid price will be increased or decreased based upon the annual percentage change in the PPI so long as the change is greater than the minimum threshold value of +/- 1%. The maximum escalation will not exceed +/- 8% for any individual year. The Supplier must submit or make available the manufacturers pricing sheet used to calculate the bid proposal, to participate in the escalation/de-escalation clause. increase to the Purchasing Manager at least 60 days prior to the contract renewal date for each Contract# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 year. The Supplier should provide documentation as a percentage of each cost associated with the unit prices quoted for consideration. If no request is made, then it will be assumed that the current contract price will be in effect. Upon receipt of such request, the City of Denton, at its sole option, reserves the right to either: (1) accept the escalation as competitive with the general market price at the time, and become effective upon the renewal date of the contract award; or, (2) reject the increase within thirty (30) calendar days after receipt of a properly submitted request. If a properly submitted increase is rejected, the Supplier may request cancellation of such items from the contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. The prices in effect prior to the increase request must be honored on orders dated up to the official date of the City of Denton approval and/or cancellation. The request can be sent by e-mail to: purchasing@cityofdenton.com noting the solicitation number. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. 6. Total Contract Amount The contract total shall not exceed $163,000. Pricing shall be per Exhibit E attached. 7. Delivery Lead Time Product or services shall be delivered to the City per the days/weeks noted in Exhibit E after receipt of the order. Contract# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 Exhibit C City of Denton Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings 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 Supplier. No Terms and Conditions contained in 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 -of-way. 1. . The Contractor shall fully and timely provide all 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 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 Contract# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 only when the City actually receives and accepts the deliverables. 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 otherwis 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 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 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 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, 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 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 Contract# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 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 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The 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, 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 the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight address and, if applicable, the tax identification number on the invoice must exactly match the C. Invoices for labor shall include a copy of all time-sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work-hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. 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. Contract# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 The City will furnish a tax exemption certificate upon request. 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of 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 which is not covered by insurance required to be provided by the Contractor; 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 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# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 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 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 ations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising 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. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five 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 books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. Contract# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 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 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 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. Contract# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 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 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- 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 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 Contractor shall assist and cooperate with the City to the fullest extent to enforce such 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. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. If during the warranty period, one or more of the above warranties are Contract# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 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 endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery this section. 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 cl 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 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 Co the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City 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, within such reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy Contract# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 available under law or in equity, the City shall be entitled to recover all actual damages, costs, , including, without - judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Contractor, the City may remove the Contractor fr 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. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the 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. 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 Contract# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 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 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 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 GATIONS 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 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. 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 Insurance Fund. Contract# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 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 Denton, Texas 76209 ity 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 provid notice of erosion of the aggregate limits below occurrence limits for all applicable 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 affect on the 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 Contract# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 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 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 ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) 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- shall in no way diminish 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 inventions, employee information, trade secrets, confidential know-how, confidential business information, and other information which the City or its licensors consider confidential) 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, Contract# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 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. 38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor agrees that upon their creation, such deliverables shall be considered as work made-for-hire by the Contractor for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shal Should by operation of law, such deliverables not be considered works made-for-hire, the Contractor hereby assigns to the City (and agrees to cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver an assignment to the City of) all worldwide right, title, and interest in and to such deliverables. With respect to such work made- for-hire, the Contractor agrees to execute, acknowledge, and deliver and cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver a work- made-for-hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. C. Additional Assignments. The Contractor further agrees to, and if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work registration, trademark registration and/or protection, letters patent, or any similar rights in any and all countries and in order to assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and tions to execute, acknowledge, and deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City should not seek to obtain copyright protection, mask work registration or patent protection for any of the deliverables, but should desire to keep the same secret, the Contractor agrees to treat the same as Confidential Information under the terms of Paragraph 37 above. Contract# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 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 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. Any willful violation of this section shall constitute impropriety in office, and any officer or employee 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 Interest Questionnaire. 44. INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an 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, nd 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 his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. Contract# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 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. 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 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 Contract# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 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 Contra 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 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 MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day 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 his authorized designee. Contract# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 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: 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: 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 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. Contract# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 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. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. 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: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 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 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 Wor 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 Contract# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 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 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. 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. Contract# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 1. Final negotiated contract 2. RFP/Bid documents 3. 4. Purchase order 5. Supplier terms and conditions Contract# 6530 Brenntag Southwest Inc. DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 Exhibit D 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 an original notarized 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/whatsnew/elf_info_form1295.htm 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. Sign and notarize the Form 1295 6. Email the notarized 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 Contract# 6530 Brenntag Southwest Inc. 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67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E DocuSign Envelope ID: 67DAFC15-F4E4-4796-8EF6-F82EFD6A2B03 EXHIBIT E Certificate Of Completion Envelope Id: 67DAFC15F4E447968EF6F82EFD6A2B03Status: Completed Subject: City Council Docusign Item - 6530 brenntag Source Envelope: Document Pages: 107Signatures: 4Envelope Originator: Certificate Pages: 6Initials: 0Karen E. Smith AutoNav: Enabled901B Texas Street EnvelopeId Stamping: EnabledDenton, TX 76209 Time Zone: (UTC-06:00) Central Time (US & Canada)karen.smith@cityofdenton.com IP Address: 129.120.6.150 Record Tracking Status: OriginalHolder: Karen E. SmithLocation: DocuSign 11/2/2017 9:38:29 AM karen.smith@cityofdenton.com Signer EventsSignatureTimestamp Karen E. SmithSent: 11/2/2017 9:43:15 AM Completed karen.smith@cityofdenton.comViewed: 11/2/2017 9:43:25 AM Interim Purchasing ManagerSigned: 11/2/2017 9:43:59 AM Using IP Address: 129.120.6.150 City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign W. Thomas Crain, JRSent: 11/2/2017 9:44:01 AM gtollefsen@brenntag.comResent: 11/3/2017 8:44:25 AM PresidentResent: 11/6/2017 9:45:29 AM Brenntag SouthwestResent: 11/7/2017 10:14:04 AM Using IP Address: 12.191.64.71 Security Level: Email, Account Authentication Viewed: 11/7/2017 1:52:57 PM (Optional) Signed: 11/7/2017 2:55:37 PM Electronic Record and Signature Disclosure: Accepted: 11/7/2017 1:52:57 PM ID: f9e94b33-fa5d-477c-8316-050493835d43 Jennifer DeCurtisSent: 11/7/2017 2:55:40 PM jennifer.decurtis@cityofdenton.comViewed: 11/7/2017 3:42:41 PM Deputy City AttorneySigned: 11/7/2017 3:42:54 PM City of Denton Using IP Address: 47.190.47.120 Security Level: Email, Account Authentication Signed using mobile (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Julia WinkleySent: 11/7/2017 3:42:56 PM Completed julia.winkley@cityofdenton.comViewed: 11/8/2017 9:59:59 AM Contracts Administration SupervisorSigned: 11/14/2017 3:35:33 PM Using IP Address: 129.120.6.150 City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Signer EventsSignatureTimestamp Todd HilemanSent: 11/14/2017 3:35:37 PM todd.hileman@cityofdenton.comViewed: 11/14/2017 3:44:18 PM City ManagerSigned: 11/14/2017 3:44:29 PM City of Denton Using IP Address: 47.190.47.120 Security Level: Email, Account Authentication Signed using mobile (Optional) Electronic Record and Signature Disclosure: Accepted: 7/25/2017 11:02:14 AM ID: 57619fbf-2aec-4b1f-805d-6bd7d9966f21 Jennifer WaltersSent: 11/14/2017 3:44:32 PM jennifer.walters@cityofdenton.comViewed: 11/16/2017 7:54:42 AM City SecretarySigned: 11/16/2017 7:55:04 AM City of Denton Using IP Address: 129.120.6.150 Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer EventsSignatureTimestamp Editor Delivery EventsStatusTimestamp Agent Delivery EventsStatusTimestamp Intermediary Delivery EventsStatusTimestamp Certified Delivery EventsStatusTimestamp Carbon Copy EventsStatusTimestamp Julia WinkleySent: 11/7/2017 2:55:39 PM julia.winkley@cityofdenton.comViewed: 11/7/2017 3:18:50 PM Contracts Administration Supervisor City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Sherri ThurmanSent: 11/7/2017 2:55:39 PM sherri.thurman@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane RichardsonSent: 11/14/2017 3:35:36 PM jane.richardson@cityofdenton.comViewed: 11/15/2017 8:36:11 AM Assistant City Secretary City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Robin FoxSent: 11/14/2017 3:35:36 PM Robin.fox@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Carbon Copy EventsStatusTimestamp Not Offered via DocuSign Jennifer BridgesSent: 11/16/2017 7:55:05 AM jennifer.bridges@cityofdenton.comViewed: 11/17/2017 11:30:01 AM Procurement Assistant City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane RichardsonSent: 11/16/2017 7:55:06 AM jane.richardson@cityofdenton.comViewed: 12/5/2017 12:20:02 PM Assistant City Secretary City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign randy MarkhamSent: 11/16/2017 7:55:07 AM randy.markham@cityofdenton.comViewed: 11/22/2017 8:44:10 AM Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign robyn ForsythSent: 11/16/2017 7:55:08 AM robyn.forsyth@cityofdenton.com Buyer City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary EventsSignatureTimestamp Envelope Summary EventsStatusTimestamps Envelope SentHashed/Encrypted11/16/2017 7:55:08 AM Certified DeliveredSecurity Checked11/16/2017 7:55:08 AM Signing CompleteSecurity Checked11/16/2017 7:55:08 AM CompletedSecurity Checked11/16/2017 7:55:08 AM Payment EventsStatusTimestamps Electronic Record and Signature Disclosure ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you certain written notices or disclosures. Described below are the terms and conditions for providing to you such notices and disclosures electronically through your DocuSign, Inc. (DocuSign) Express user account. Please read the information below carefully and thoroughly, and if you can access this information electronically to your satisfaction and agree to these terms and conditions, please confirm your agreement by clicking the 'I agree' button at the bottom of this document. Getting paper copies At any time, you may request from us a paper copy of any record provided or made available electronically to you by us. For such copies, as long as you are an authorized user of the DocuSign system you will have the ability to download and print any documents we send to you through your DocuSign user account for a limited period of time (usually 30 days) after such documents are first sent to you. After such time, if you wish for us to send you paper copies of any such documents from our office to you, you will be charged a $0.00 per-page fee. You may request delivery of such paper copies from us by following the procedure described below. Withdrawing your consent If you decide to receive notices and disclosures from us electronically, you may at any time change your mind and tell us that thereafter you want to receive required notices and disclosures only in paper format. How you must inform us of your decision to receive future notices and disclosure in paper format and withdraw your consent to receive notices and disclosures electronically is described below. Consequences of changing your mind If you elect to receive required notices and disclosures only in paper format, it will slow the speed at which we can complete certain steps in transactions with you and delivering services to you because we will need first to send the required notices or disclosures to you in paper format, and then wait until we receive back from you your acknowledgment of your receipt of such paper notices or disclosures. To indicate to us that you are changing your mind, you must withdraw your consent using the DocuSign 'Withdraw Consent' form on the signing page of your DocuSign account. This will indicate to us that you have withdrawn your consent to receive required notices and disclosures electronically from us and you will no longer be able to use your DocuSign Express user account to receive required notices and consents electronically from us or to sign electronically documents from us. All notices and disclosures will be sent to you electronically Unless you tell us otherwise in accordance with the procedures described herein, we will provide electronically to you through your DocuSign user account all required notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you during the course of our relationship with you. To reduce the chance of you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required notices and disclosures to you by the same method and to the same address that you have given us. Thus, you can receive all the disclosures and notices electronically or in paper format through the paper mail delivery system. If you do not agree with this process, please let us know as described below. Please also see the paragraph immediately above that describes the consequences of your electing not to receive delivery of the notices and disclosures electronically from us. How to contact City of Denton: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: purchasing@cityofdenton.com To advise City of Denton of your new e-mail address To let us know of a change in your e-mail address where we should send notices and disclosures electronically to you, you must send an email message to us at melissa.kraft@cityofdenton.com and in the body of such request you must state: your previous e-mail address, your new e-mail address. We do not require any other information from you to change your email address.. In addition, you must notify DocuSign, Inc to arrange for your new email address to be reflected in your DocuSign account by following the process for changing e-mail in DocuSign. To request paper copies from City of Denton To request delivery from us of paper copies of the notices and disclosures previously provided by us to you electronically, you must send us an e-mail to purchasing@cityofdenton.com and in the body of such request you must state your e-mail address, full name, US Postal address, and telephone number. We will bill you for any fees at that time, if any. To withdraw your consent with City of Denton To inform us that you no longer want to receive future notices and disclosures in electronic format you may: i. decline to sign a document from within your DocuSign account, and on the subsequent page, select the check-box indicating you wish to withdraw your consent, or you may; ii. send us an e-mail to purchasing@cityofdenton.com and in the body of such request you must state your e-mail, full name, IS Postal Address, telephone number, and account number. We do not need any other information from you to withdraw consent.. The consequences of your withdrawing consent for online documents will be that transactions may take a longer time to process.. Required hardware and software Operating Systems: Windows2000? or WindowsXP? Browsers (for SENDERS): Internet Explorer 6.0? or above Browsers (for SIGNERS): Internet Explorer 6.0?, Mozilla FireFox 1.0, NetScape 7.2 (or above) Email: Access to a valid email account Screen Resolution: 800 x 600 minimum Enabled Security Settings: Allow per session cookies Users accessing the internet behind a Proxy Server must enable HTTP 1.1 settings via proxy connection ** These minimum requirements are subject to change. If these requirements change, we will provide you with an email message at the email address we have on file for you at that time providing you with the revised hardware and software requirements, at which time you will have the right to withdraw your consent. Acknowledging your access and consent to receive materials electronically To confirm to us that you can access this information electronically, which will be similar to other electronic notices and disclosures that we will provide to you, please verify that you were able to read this electronic disclosure and that you also were able to print on paper or electronically save this page for your future reference and access or that you were able to e-mail this disclosure and consent to an address where you will be able to print on paper or save it for your future reference and access. Further, if you consent to receiving notices and disclosures exclusively in electronic format on the terms and conditions described above, please let us know by clicking the 'I agree' button below. By checking the 'I Agree' box, I confirm that: I can access and read this Electronic CONSENT TO ELECTRONIC RECEIPT OF ELECTRONIC RECORD AND SIGNATURE DISCLOSURES document; and I can print on paper the disclosure or save or send the disclosure to a place where I can print it, for future reference and access; and Until or unless I notify City of Denton as described above, I consent to receive from exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to me by City of Denton during the course of my relationship with you. DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 5ƚĭǒƭźŭƓ /źƷǤ /ƚǒƓĭźƌ ƩğƓƭƒźƷƷğƌ /ƚǝĻƩƭŷĻĻƷ CźƌĻ bğƒĻ tǒƩĭŷğƭźƓŭ /ƚƓƷğĭƷ /źƷǤ /ƚǒƓĭźƌ ğƩŭĻƷ 5ğƷĻ /ƚƓƷƩğĭƷ ğƌǒĻ tźŭŭǤ .ğĭƉ hƦƷźƚƓ /ƚƓƷƩğĭƷ 9ǣƦźƩğƷźƚƓ hƩķźƓğƓĭĻ DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND CHEMTRADE CHEMICALS US LLC, (FILE #6530) THIS CONTRACT is made and entered into this date _______________________, by and between Chemtrade Chemicals US LLC, a corporation, whose address is 90 East Halsey Road, Parsippany, NJ 07054, hereinafter referred to as "Supplier," 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 his 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 Supplier shall provide products in accordance with the City’s IFB # 6530 Water and Wastewater Chemicals, 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, or on file, and incorporated herein by reference: (a)Special Terms and Conditions (Exhibit “A”); (b)City of Denton’s IFB#6530 (Exhibit “B” on file at the office of the Purchasing Agent); (c)City of Denton Standard Terms and Conditions (Exhibit “C”); (d)Certificate of Interested Parties Electronic Filing (Exhibit “D”); (e)Supplier’s Proposal. (Exhibit "E"); (f)Form CIQ – Conflict of Interest Questionnaire (Exhibit "F") 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.” INDEMNITY THE SUPPLIER REPRESENTS AND WARRANTS TO THE CITY THAT THE INTELLECTUAL PROPERTY SUPPLIED BY 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, AND THAT NO CLAIMS HAVE BEEN MADE BY ANY PERSON OR ENTITY WITH RESPECT TO THE OWNERSHIP OR OPERATION OF THE INTELLECTUAL PROPERTY. MOREOVER, 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 Contract #6530 Chemtrade Chemicals US LLC1 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 OTHER PROFESSIONALS) ARISING OUT OF OR RESULTING FROM ANY CLAIM THAT THE CITY'S EXERCISE OF ITS LICENSE RIGHTS, AND ITS USE OF THE INTELLECTUAL PROPERTY, THE SUBJECT OF THIS CONTRACT, INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, OR THE BREACH OF ANY OF REPRESENTATIONS OR WARRANTIES STATED IN THE CONTRACT DOCUMENTS. 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. IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. SUPPLIER BY: ______________________________ AUTHORIZED SIGNATURE Date: _______________________________ Name: ______________________________ Title: _______________________________ ___________________________________ PHONE NUMBER ___________________________________ EMAIL ADDRESS ____2017-273044___________________ TEXAS ETHICS COMMISSION CERTIFICATE NUMBER CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: _____________________________ TODD HILEMAN CITY MANAGER BY: __________________________________ Date: ________________________ Contract #6530 Chemtrade Chemicals US LLC2 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY BY:_______________________________ Contract #6530 Chemtrade Chemicals US LLC3 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 Exhibit A Special Terms and Conditions 1.The Quantities The quantities indicated on Exhibit E are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the bid price. Individual purchase orders will be issued on an as needed basis. 2.Product Changes During Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to dentonpurchasing@cityofdenton.com, with the above file number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be returned at the supplier’s expense. Products that have been installed will be replaced at the supplier’s expense. 3.Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The distributor shall be authorized to sell to the City of Denton, and make available the manufacturer’s representative as needed by the City. 4.Contract Terms The contract term will be four (4) years, effective from date of award or notice to proceed as determined by the City of Denton Purchasing Department. The contract term will be one (1) year, effective from the date that the City provides notice of the award to supplier (“effective date”). The contract shall automatically renew each year on the month and day of the effective date (“renewal date”), unless either party notifies the other party in writing prior to the renewal date that the contract will not be renewed or the contract is otherwise terminated or completed. This contract may only be automatically renewed for an additional three (3) one-year periods, subject to the terms herein, without City Council approval. 5.Price Escalation and De-escalation On Supplier’s request in the form stated herein, the City will implement an escalation/de-escalation price adjustment annually based on these special terms. The escalation/de-escalation will be based on the U.S Department of Labor, Bureau of Labor Statistics, Producer Price Index (PPI) for finished Chemicals (PCU212393212393). The stated eligible bid price will be increased or decreased based upon the annual percentage change in the PPI so long as the change is greater than the minimum threshold value of +/- 1%. The maximum escalation will not exceed +/- 8% for any individual year.The Supplier must submit or make available the manufacturers pricing sheet used to calculate the bid proposal, to participate in the escalation/de-escalation clause. Contract #6530 Chemtrade Chemicals US LLC4 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 The Supplier’s request must be submitted in writing with supporting evidence for need of such increase to the Purchasing Manager at least 60 days prior to the contract renewal date for each year. The Supplier should provide documentation as a percentage of each cost associated with the unit prices quoted for consideration. If no request is made, then it will be assumed that the current contract price will be in effect. Upon receipt of such request, the City of Denton, at its sole option, reserves the right to either: (1) accept the escalation as competitive with the general market price at the time, and become effective upon the renewal date of the contract award; or, (2) reject the increase within thirty (30) calendar days after receipt of a properly submitted request. If a properly submitted increase is rejected, the Supplier may request cancellation of such items from the contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. The prices in effect prior to the increase request must be honored on orders dated up to the official date of the City of Denton approval and/or cancellation. The request can be sent by e-mail to: purchasing@cityofdenton.com noting the solicitation number. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. 6.Total Contract Amount The contract total shall not exceed $145,000. Pricing shall be per Exhibit E attached. 7.Delivery Lead Time Product or services shall be delivered to the City per the days/weeks noted in Exhibit E after receipt of the order. Contract #6530 Chemtrade Chemicals US LLC5 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 Exhibit C City of Denton 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. Contract #6530 Chemtrade Chemicals US LLC6 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 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 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. Contract #6530 Chemtrade Chemicals US LLC7 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 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 itemized and transportation charges, if any, shall be listed separately. 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. C. Invoices for labor shall include a copy of all time-sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work-hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. 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. Contract #6530 Chemtrade Chemicals US LLC8 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 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 performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by Contract #6530 Chemtrade Chemicals US LLC9 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 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. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five 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 books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. 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. Each of the terms “books”, “records”, “documents” and “other evidence”, as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 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 Contract #6530 Chemtrade Chemicals US LLC10 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 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 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. Contract #6530 Chemtrade Chemicals US LLC11 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 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 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. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. 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 endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City’s rights under this section. C. If the Contractor is unable or unwilling to perform its services in accordance with the above Contract #6530 Chemtrade Chemicals US LLC12 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 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 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, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City’s reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Contractor’s 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. Contract #6530 Chemtrade Chemicals US LLC13 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 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. 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 strict liability standard. B.THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, Contract #6530 Chemtrade Chemicals US LLC14 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 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 Denton, Texas 76209 vii. The “other” insurance clause shall not apply to the City where the City is an additional Contract #6530 Chemtrade Chemicals US LLC15 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 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 affect 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 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 Contract #6530 Chemtrade Chemicals US LLC16 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 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. 38.OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and Contract #6530 Chemtrade Chemicals US LLC17 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor agrees that upon their creation, such deliverables shall be considered as work made-for-hire by the Contractor for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the City’s sole or joint ownership of any such deliverables arising by virtue of the City’s sole or joint authorship of such deliverables. Should by operation of law, such deliverables not be considered works made-for-hire, the Contractor hereby assigns to the City (and agrees to cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver an assignment to the City of) all worldwide right, title, and interest in and to such deliverables. With respect to such work made- for-hire, the Contractor agrees to execute, acknowledge, and deliver and cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver a work- made-for-hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. C. Additional Assignments. The Contractor further agrees to, and if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work registration, trademark registration and/or protection, letters patent, or any similar rights in any and all countries and in order to assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and interest in and to the deliverables. The Contractor’s obligations to execute, acknowledge, and deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City should not seek to obtain copyright protection, mask work registration or patent protection for any of the deliverables, but should desire to keep the same secret, the Contractor agrees to treat the same as Confidential Information under the terms of Paragraph 37 above. 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 Contract #6530 Chemtrade Chemicals US LLC18 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 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. Any willful violation of this section shall constitute impropriety in office, and any officer or employee 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 his 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. 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, Contract #6530 Chemtrade Chemicals US LLC19 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 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 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 #6530 Chemtrade Chemicals US LLC20 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 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 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) MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christmas Day (observed) New Year’s 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 his 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 Contract #6530 Chemtrade Chemicals US LLC21 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 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 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. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the Contract #6530 Chemtrade Chemicals US LLC22 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 respondent. 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: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 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 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 Contract #6530 Chemtrade Chemicals US LLC23 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 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. 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 Contract #6530 Chemtrade Chemicals US LLC24 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 Exhibit D 10/20/2017 Contract #6530 Chemtrade Chemicals US LLC25 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC26 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC28 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC29 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC30 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC31 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 Contract #6530 Chemtrade Chemicals US LLC32 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC33 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC34 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC35 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC36 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC37 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC38 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC39 DocuSign 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12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC75 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC76 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC77 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC78 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC79 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC80 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC81 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC82 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC83 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC84 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC85 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT E Contract #6530 Chemtrade Chemicals US LLC86 DocuSign Envelope ID: 12DCFFEE-B374-4983-A4BD-A1E42F469DA0 EXHIBIT F Contract #6530 Chemtrade Chemicals US LLC87 Certificate Of Completion Envelope Id: 12DCFFEEB3744983A4BDA1E42F469DA0Status: Completed Subject: Please DocuSign: City Council Contract 6530 Chemtrade Chemical US LLC Source Envelope: Document Pages: 88Signatures: 4Envelope Originator: Certificate Pages: 6Initials: 0Robyn Forsyth AutoNav: Enabled901B Texas Street EnvelopeId Stamping: EnabledDenton, TX 76209 Time Zone: (UTC-08:00) Pacific Time (US & Canada)robyn.forsyth@cityofdenton.com IP Address: 129.120.6.150 Record Tracking Status: OriginalHolder: Robyn ForsythLocation: DocuSign 10/20/2017 12:23:01 PM robyn.forsyth@cityofdenton.com Signer EventsSignatureTimestamp Robyn ForsythSent: 10/20/2017 12:28:18 PM Completed robyn.forsyth@cityofdenton.comViewed: 10/20/2017 12:28:38 PM BuyerSigned: 10/20/2017 12:29:29 PM Using IP Address: 129.120.6.150 City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Parul Kachhia-PatelSent: 10/20/2017 12:29:33 PM PNPatel@chemtradelogistics.comViewed: 10/24/2017 10:29:30 AM Marketing SpecialistSigned: 10/24/2017 10:30:43 AM Security Level: Email, Account Authentication Using IP Address: 66.212.171.18 (Optional) Electronic Record and Signature Disclosure: Accepted: 10/24/2017 10:29:30 AM ID: ac87c99d-6250-4b74-88ae-bd9c30017dee Jennifer DeCurtisSent: 10/24/2017 10:30:48 AM jennifer.decurtis@cityofdenton.comViewed: 10/24/2017 11:30:04 AM Deputy City AttorneySigned: 10/24/2017 11:30:22 AM City of Denton Using IP Address: 47.190.47.120 Security Level: Email, Account Authentication Signed using mobile (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Julia WinkleySent: 10/24/2017 11:30:25 AM Completed julia.winkley@cityofdenton.comViewed: 11/14/2017 1:41:28 PM Contracts Administration SupervisorSigned: 11/14/2017 1:42:02 PM Using IP Address: 129.120.6.150 City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Signer EventsSignatureTimestamp Todd HilemanSent: 11/14/2017 1:42:07 PM Todd.Hileman@cityofdenton.comViewed: 11/14/2017 1:43:31 PM City ManagerSigned: 11/14/2017 1:43:35 PM City of Denton Using IP Address: 47.190.47.120 Security Level: Email, Account Authentication Signed using mobile (Optional) Electronic Record and Signature Disclosure: Accepted: 7/25/2017 9:02:14 AM ID: 57619fbf-2aec-4b1f-805d-6bd7d9966f21 Jennifer WaltersSent: 11/14/2017 1:43:38 PM jennifer.walters@cityofdenton.comViewed: 11/16/2017 6:04:29 AM City SecretarySigned: 11/16/2017 6:04:53 AM City of Denton Using IP Address: 129.120.6.150 Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer EventsSignatureTimestamp Editor Delivery EventsStatusTimestamp Agent Delivery EventsStatusTimestamp Intermediary Delivery EventsStatusTimestamp Certified Delivery EventsStatusTimestamp Carbon Copy EventsStatusTimestamp Sherri ThurmanSent: 10/24/2017 10:30:46 AM sherri.thurman@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Julia WinkleySent: 10/24/2017 10:30:47 AM julia.winkley@cityofdenton.comViewed: 10/24/2017 10:59:05 AM Contracts Administration Supervisor City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane RichardsonSent: 11/14/2017 1:42:05 PM jane.richardson@cityofdenton.comViewed: 11/15/2017 6:34:34 AM Assistant City Secretary City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Robin FoxSent: 11/14/2017 1:42:06 PM Robin.fox@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Carbon Copy EventsStatusTimestamp Not Offered via DocuSign Jennifer BridgesSent: 11/16/2017 6:04:56 AM jennifer.bridges@cityofdenton.comViewed: 11/17/2017 9:20:19 AM Procurement Assistant City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane RichardsonSent: 11/16/2017 6:04:56 AM jane.richardson@cityofdenton.comViewed: 12/5/2017 10:01:16 AM Assistant City Secretary City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Randy MarkumSent: 11/16/2017 6:04:58 AM randy.markum@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary EventsSignatureTimestamp Envelope Summary EventsStatusTimestamps Envelope SentHashed/Encrypted11/16/2017 6:04:58 AM Certified DeliveredSecurity Checked11/16/2017 6:04:58 AM Signing CompleteSecurity Checked11/16/2017 6:04:58 AM CompletedSecurity Checked11/16/2017 6:04:58 AM Payment EventsStatusTimestamps Electronic Record and Signature Disclosure ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you certain written notices or disclosures. Described below are the terms and conditions for providing to you such notices and disclosures electronically through your DocuSign, Inc. (DocuSign) Express user account. Please read the information below carefully and thoroughly, and if you can access this information electronically to your satisfaction and agree to these terms and conditions, please confirm your agreement by clicking the 'I agree' button at the bottom of this document. Getting paper copies At any time, you may request from us a paper copy of any record provided or made available electronically to you by us. For such copies, as long as you are an authorized user of the DocuSign system you will have the ability to download and print any documents we send to you through your DocuSign user account for a limited period of time (usually 30 days) after such documents are first sent to you. After such time, if you wish for us to send you paper copies of any such documents from our office to you, you will be charged a $0.00 per-page fee. You may request delivery of such paper copies from us by following the procedure described below. Withdrawing your consent If you decide to receive notices and disclosures from us electronically, you may at any time change your mind and tell us that thereafter you want to receive required notices and disclosures only in paper format. How you must inform us of your decision to receive future notices and disclosure in paper format and withdraw your consent to receive notices and disclosures electronically is described below. Consequences of changing your mind If you elect to receive required notices and disclosures only in paper format, it will slow the speed at which we can complete certain steps in transactions with you and delivering services to you because we will need first to send the required notices or disclosures to you in paper format, and then wait until we receive back from you your acknowledgment of your receipt of such paper notices or disclosures. To indicate to us that you are changing your mind, you must withdraw your consent using the DocuSign 'Withdraw Consent' form on the signing page of your DocuSign account. This will indicate to us that you have withdrawn your consent to receive required notices and disclosures electronically from us and you will no longer be able to use your DocuSign Express user account to receive required notices and consents electronically from us or to sign electronically documents from us. All notices and disclosures will be sent to you electronically Unless you tell us otherwise in accordance with the procedures described herein, we will provide electronically to you through your DocuSign user account all required notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you during the course of our relationship with you. To reduce the chance of you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required notices and disclosures to you by the same method and to the same address that you have given us. Thus, you can receive all the disclosures and notices electronically or in paper format through the paper mail delivery system. If you do not agree with this process, please let us know as described below. Please also see the paragraph immediately above that describes the consequences of your electing not to receive delivery of the notices and disclosures electronically from us. How to contact City of Denton: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: purchasing@cityofdenton.com To advise City of Denton of your new e-mail address To let us know of a change in your e-mail address where we should send notices and disclosures electronically to you, you must send an email message to us at melissa.kraft@cityofdenton.com and in the body of such request you must state: your previous e-mail address, your new e-mail address. We do not require any other information from you to change your email address.. In addition, you must notify DocuSign, Inc to arrange for your new email address to be reflected in your DocuSign account by following the process for changing e-mail in DocuSign. To request paper copies from City of Denton To request delivery from us of paper copies of the notices and disclosures previously provided by us to you electronically, you must send us an e-mail to purchasing@cityofdenton.com and in the body of such request you must state your e-mail address, full name, US Postal address, and telephone number. We will bill you for any fees at that time, if any. To withdraw your consent with City of Denton To inform us that you no longer want to receive future notices and disclosures in electronic format you may: i. decline to sign a document from within your DocuSign account, and on the subsequent page, select the check-box indicating you wish to withdraw your consent, or you may; ii. send us an e-mail to purchasing@cityofdenton.com and in the body of such request you must state your e-mail, full name, IS Postal Address, telephone number, and account number. We do not need any other information from you to withdraw consent.. The consequences of your withdrawing consent for online documents will be that transactions may take a longer time to process.. Required hardware and software Operating Systems: Windows2000? or WindowsXP? Browsers (for SENDERS): Internet Explorer 6.0? or above Browsers (for SIGNERS): Internet Explorer 6.0?, Mozilla FireFox 1.0, NetScape 7.2 (or above) Email: Access to a valid email account Screen Resolution: 800 x 600 minimum Enabled Security Settings: Allow per session cookies Users accessing the internet behind a Proxy Server must enable HTTP 1.1 settings via proxy connection ** These minimum requirements are subject to change. If these requirements change, we will provide you with an email message at the email address we have on file for you at that time providing you with the revised hardware and software requirements, at which time you will have the right to withdraw your consent. Acknowledging your access and consent to receive materials electronically To confirm to us that you can access this information electronically, which will be similar to other electronic notices and disclosures that we will provide to you, please verify that you were able to read this electronic disclosure and that you also were able to print on paper or electronically save this page for your future reference and access or that you were able to e-mail this disclosure and consent to an address where you will be able to print on paper or save it for your future reference and access. Further, if you consent to receiving notices and disclosures exclusively in electronic format on the terms and conditions described above, please let us know by clicking the 'I agree' button below. By checking the 'I Agree' box, I confirm that: I can access and read this Electronic CONSENT TO ELECTRONIC RECEIPT OF ELECTRONIC RECORD AND SIGNATURE DISCLOSURES document; and I can print on paper the disclosure or save or send the disclosure to a place where I can print it, for future reference and access; and Until or unless I notify City of Denton as described above, I consent to receive from exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to me by City of Denton during the course of my relationship with you. DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 5ƚĭǒƭźŭƓ /źƷǤ /ƚǒƓĭźƌ ƩğƓƭƒźƷƷğƌ /ƚǝĻƩƭŷĻĻƷ CźƌĻ bğƒĻ tǒƩĭŷğƭźƓŭ /ƚƓƷğĭƷ /źƷǤ /ƚǒƓĭźƌ ğƩŭĻƷ 5ğƷĻ /ƚƓƷƩğĭƷ ğƌǒĻ tźŭŭǤ .ğĭƉ hƦƷźƚƓ /ƚƓƷƩğĭƷ 9ǣƦźƩğƷźƚƓ hƩķźƓğƓĭĻ DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND TANNER INDUSTRIES, INC. (FILE #6530) THIS CONTRACT is made and entered into this date _______________________, by and between Tanner Industries, Inc., a corporation, whose address is 735 Davisville Rd, Southampton, PA, 18966, hereinafter referred to as "Supplier," 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 his 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 Supplier shIFB # 6530 Water and Wastewater Chemicals, 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, or on file, and incorporated herein by reference: (a) Special Terms and Conditions (b) n file at the office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions C; (d) Certificate of Interested Parties Electronic Filing (e) (Exhibit "E"); 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 INDEMNITY THE SUPPLIER REPRESENTS AND WARRANTS TO THE CITY THAT THE INTELLECTUAL PROPERTY SUPPLIED BY 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, AND THAT NO CLAIMS HAVE BEEN MADE BY ANY PERSON OR ENTITY WITH RESPECT TO THE OWNERSHIP OR OPERATION OF THE INTELLECTUAL PROPERTY. MOREOVER, 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 Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 (INCLUDING COURT COSTS AND REASONABLE FEES OF ATTORNEYS AND OTHER PROFESSIONALS) ARISING OUT OF OR RESULTING FROM ANY CLAIM THAT THE CITY'S EXERCISE OF ITS LICENSE RIGHTS, AND ITS USE OF THE INTELLECTUAL PROPERTY, THE SUBJECT OF THIS CONTRACT, INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, OR THE BREACH OF ANY OF REPRESENTATIONS OR WARRANTIES STATED IN THE CONTRACT DOCUMENTS. 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. IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. SUPPLIER BY: ______________________________ AUTHORIZED SIGNATURE Name: ______________________________ Title: _______________________________ ___________________________________ PHONE NUMBER ___________________________________ EMAIL ADDRESS ___________________________________ TEXAS ETHICS COMMISSION CERTIFICATE NUMBER CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: _____________________________ TODD HILEMAN CITY MANAGER BY: __________________________________ Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY BY: _______________________________ Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 Exhibit A Special Terms and Conditions 1. The Quantities The quantities indicated on Exhibit E are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the bid price. Individual purchase orders will be issued on an as needed basis. 2. Product Changes During Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to dentonpurchasing@cityofdenton.com, with the above file number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be replaced at the 3. Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The distributor shall be authorized to sell to the City of Denton, and make available the manufacture representative as needed by the City. 4. Contract Terms The contract term will be one (1) year, effective from the date that the City provides notice of the month prior to the renewal date that the contract will not be renewed or the contract is otherwise terminated or completed. This contract may only be automatically renewed for an additional three (3) one-year periods, subject to the terms herein, without City Council approval. 5. Price Escalation and De-escalation -escalation price adjustment annually based on these special terms. The escalation/de-escalation will be based on the U.S Department of Labor, Bureau of Labor Statistics, Producer Price Index (PPI) for finished Chemicals (PCU212393212393). The stated eligible bid price will be increased or decreased based upon the annual percentage change in the PPI so long as the change is greater than the minimum threshold value of +/- 1%. The maximum escalation will not exceed +/- 8% for any individual year. The Supplier must submit or make available the manufacturers pricing sheet used to calculate the bid proposal, to participate in the escalation/de-escalation clause. Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 increase to the Purchasing Manager at least 60 days prior to the contract renewal date for each year. The Supplier should provide documentation as a percentage of each cost associated with the unit prices quoted for consideration. If no request is made, then it will be assumed that the current contract price will be in effect. Upon receipt of such request, the City of Denton, at its sole option, reserves the right to either: (1) accept the escalation as competitive with the general market price at the time, and become effective upon the renewal date of the contract award; or, (2) reject the increase within thirty (30) calendar days after receipt of a properly submitted request. If a properly submitted increase is rejected, the Supplier may request cancellation of such items from the contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. The prices in effect prior to the increase request must be honored on orders dated up to the official date of the City of Denton approval and/or cancellation. The request can be sent by e-mail to: purchasing@cityofdenton.com noting the solicitation number. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. 6. Total Contract Amount The contract total shall not exceed $137,000. Pricing shall be per Exhibit E attached. 7. Delivery Lead Time Product or services shall be delivered to the City per the days/weeks noted in Exhibit E after receipt of the order. Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 Exhibit C City of Denton Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings 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 Supplier. No Terms and Conditions contained in 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 -of-way. 1. . The Contractor shall fully and timely provide all 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 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. Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 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. 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 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 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 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 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, es. 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 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, Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 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 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Contractor, 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, 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 the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight address and, if applicable, the tax identification number on the invoice must exactly match the information i C. Invoices for labor shall include a copy of all time-sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work-hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Contractor shall pass through all Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 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. 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within 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; ees or contractors, which is not covered by insurance required to be provided by the Contractor; 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 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 Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 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 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 a under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising e 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. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five 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 books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract thereof. Each of the Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 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 pr 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 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: 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. Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 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 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 years 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- 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. 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 Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer 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. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. 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 Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 additional performance shall be borne 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 this section. 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. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to 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 the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City 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, within such reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, default, including, without - judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Contractor, the City may remove the Contra any Offer submitted by the Contractor may be disqualified for up to three (3) years. All rights and Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the 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. 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, 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 ii. "Fault" shall mean the sale of defective or non-conforming deliverables, negligence, or willful misconduct Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 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 TO THE EXTENT 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 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. 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. rance 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 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 Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 Materials Management Department 901B Texas Street Denton, Texas 76209 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. notice of erosion of the aggregate limits below occurrence limits for all applicable 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 affect on 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 Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 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 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 and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) 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- is 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 acc inventions, employee information, trade secrets, confidential know-how, confidential business information, and other information which the City or its licensors consider confidential) 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 Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 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. 38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor agrees that upon their creation, such deliverables shall be considered as work made-for-hire by the Contractor for the City and the City shall own all copyrights in and to such deliverables, provided such deliverables ari Should by operation of law, such deliverables not be considered works made-for-hire, the Contractor hereby assigns to the City (and agrees to cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver an assignment to the City of) all worldwide right, title, and interest in and to such deliverables. With respect to such work made- for-hire, the Contractor agrees to execute, acknowledge, and deliver and cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver a work- made-for-hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. C. Additional Assignments. The Contractor further agrees to, and if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work registration, trademark registration and/or protection, letters patent, or any similar rights in any and all countries and in order to assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City should not seek to obtain copyright protection, mask work registration or patent protection for any of the deliverables, but should desire to keep the same secret, the Contractor agrees to treat the same as Confidential Information under the terms of Paragraph 37 above. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING 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. Any willful violation of this section shall constitute impropriety in office, and any officer or employee 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 Interest Questionnaire. 44. INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an employer/employee relationship, a partnership, or 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, 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 his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 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. 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 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 Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 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 wn 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 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: MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day 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 Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 approved by the City Manager of Denton, Texas or his 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: 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: 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 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 Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 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. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. 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: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 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 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 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 Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 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 nder 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. 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. Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 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. 4. Purchase order 5. Supplier terms and conditions Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 Exhibit D 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 an original notarized 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/whatsnew/elf_info_form1295.htm 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. Sign and notarize the Form 1295 6. Email the notarized 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 Contract# 6530 Tanner Industries Inc DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E DocuSign Envelope ID: 3DCD9993-5725-4748-BE50-54404B0FD026 EXHIBIT E Certificate Of Completion Envelope Id: 3DCD999357254748BE5054404B0FD026Status: Completed Subject: City Council Docusign Item - 6530 Tanner Source Envelope: Document Pages: 58Signatures: 4Envelope Originator: Certificate Pages: 6Initials: 0Karen E. Smith AutoNav: Enabled901B Texas Street EnvelopeId Stamping: EnabledDenton, TX 76209 Time Zone: (UTC-06:00) Central Time (US & Canada)karen.smith@cityofdenton.com IP Address: 129.120.6.150 Record Tracking Status: OriginalHolder: Karen E. SmithLocation: DocuSign 11/7/2017 1:17:24 PM karen.smith@cityofdenton.com Signer EventsSignatureTimestamp robyn ForsythSent: 11/7/2017 1:21:04 PM Completed robyn.forsyth@cityofdenton.comViewed: 11/7/2017 2:31:50 PM BuyerSigned: 11/7/2017 2:33:17 PM Using IP Address: 129.120.6.150 City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Thomas HearnSent: 11/7/2017 2:33:18 PM sales@tannerind.comViewed: 11/7/2017 2:44:24 PM Director of SalesSigned: 11/7/2017 2:48:37 PM Tanner Industries, Inc. Using IP Address: 50.251.34.217 Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Accepted: 11/7/2017 2:44:24 PM ID: 3df8908d-2a08-407c-9c79-7f5231890824 Jennifer DeCurtisSent: 11/7/2017 2:48:40 PM jennifer.decurtis@cityofdenton.comViewed: 11/7/2017 3:42:25 PM Deputy City AttorneySigned: 11/7/2017 3:42:34 PM City of Denton Using IP Address: 47.190.47.120 Security Level: Email, Account Authentication Signed using mobile (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Julia WinkleySent: 11/7/2017 3:42:36 PM Completed julia.winkley@cityofdenton.comViewed: 11/7/2017 3:59:32 PM Contracts Administration SupervisorSigned: 11/14/2017 3:36:18 PM Using IP Address: 129.120.6.150 City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Signer EventsSignatureTimestamp Todd HilemanSent: 11/14/2017 3:36:22 PM todd.hileman@cityofdenton.comViewed: 11/14/2017 3:44:05 PM City ManagerSigned: 11/14/2017 3:44:13 PM City of Denton Using IP Address: 47.190.47.120 Security Level: Email, Account Authentication Signed using mobile (Optional) Electronic Record and Signature Disclosure: Accepted: 7/25/2017 11:02:14 AM ID: 57619fbf-2aec-4b1f-805d-6bd7d9966f21 Jennifer WaltersSent: 11/14/2017 3:44:15 PM jennifer.walters@cityofdenton.comViewed: 11/16/2017 7:55:24 AM City SecretarySigned: 11/16/2017 8:00:27 AM City of Denton Using IP Address: 129.120.6.150 Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer EventsSignatureTimestamp Editor Delivery EventsStatusTimestamp Agent Delivery EventsStatusTimestamp Intermediary Delivery EventsStatusTimestamp Certified Delivery EventsStatusTimestamp Carbon Copy EventsStatusTimestamp Matt TannerSent: 11/7/2017 2:33:19 PM MattTanner@tannerind.comViewed: 11/7/2017 2:45:15 PM Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Julia WinkleySent: 11/7/2017 2:48:38 PM julia.winkley@cityofdenton.com Contracts Administration Supervisor City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Sherri ThurmanSent: 11/7/2017 2:48:39 PM sherri.thurman@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane RichardsonSent: 11/14/2017 3:36:20 PM jane.richardson@cityofdenton.com Assistant City Secretary City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Carbon Copy EventsStatusTimestamp Not Offered via DocuSign Robin FoxSent: 11/14/2017 3:36:21 PM Robin.fox@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jennifer BridgesSent: 11/16/2017 8:00:28 AM jennifer.bridges@cityofdenton.comViewed: 11/17/2017 11:28:07 AM Procurement Assistant City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane RichardsonSent: 11/16/2017 8:00:29 AM jane.richardson@cityofdenton.comViewed: 12/5/2017 12:09:09 PM Assistant City Secretary City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign randy MarkhamSent: 11/16/2017 8:00:30 AM randy.markham@cityofdenton.comViewed: 11/22/2017 8:46:29 AM Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary EventsSignatureTimestamp Envelope Summary EventsStatusTimestamps Envelope SentHashed/Encrypted11/16/2017 8:00:30 AM Certified DeliveredSecurity Checked11/16/2017 8:00:30 AM Signing CompleteSecurity Checked11/16/2017 8:00:30 AM CompletedSecurity Checked11/16/2017 8:00:30 AM Payment EventsStatusTimestamps Electronic Record and Signature Disclosure ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you certain written notices or disclosures. Described below are the terms and conditions for providing to you such notices and disclosures electronically through your DocuSign, Inc. (DocuSign) Express user account. Please read the information below carefully and thoroughly, and if you can access this information electronically to your satisfaction and agree to these terms and conditions, please confirm your agreement by clicking the 'I agree' button at the bottom of this document. Getting paper copies At any time, you may request from us a paper copy of any record provided or made available electronically to you by us. For such copies, as long as you are an authorized user of the DocuSign system you will have the ability to download and print any documents we send to you through your DocuSign user account for a limited period of time (usually 30 days) after such documents are first sent to you. After such time, if you wish for us to send you paper copies of any such documents from our office to you, you will be charged a $0.00 per-page fee. You may request delivery of such paper copies from us by following the procedure described below. Withdrawing your consent If you decide to receive notices and disclosures from us electronically, you may at any time change your mind and tell us that thereafter you want to receive required notices and disclosures only in paper format. How you must inform us of your decision to receive future notices and disclosure in paper format and withdraw your consent to receive notices and disclosures electronically is described below. Consequences of changing your mind If you elect to receive required notices and disclosures only in paper format, it will slow the speed at which we can complete certain steps in transactions with you and delivering services to you because we will need first to send the required notices or disclosures to you in paper format, and then wait until we receive back from you your acknowledgment of your receipt of such paper notices or disclosures. To indicate to us that you are changing your mind, you must withdraw your consent using the DocuSign 'Withdraw Consent' form on the signing page of your DocuSign account. This will indicate to us that you have withdrawn your consent to receive required notices and disclosures electronically from us and you will no longer be able to use your DocuSign Express user account to receive required notices and consents electronically from us or to sign electronically documents from us. All notices and disclosures will be sent to you electronically Unless you tell us otherwise in accordance with the procedures described herein, we will provide electronically to you through your DocuSign user account all required notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you during the course of our relationship with you. To reduce the chance of you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required notices and disclosures to you by the same method and to the same address that you have given us. Thus, you can receive all the disclosures and notices electronically or in paper format through the paper mail delivery system. If you do not agree with this process, please let us know as described below. Please also see the paragraph immediately above that describes the consequences of your electing not to receive delivery of the notices and disclosures electronically from us. How to contact City of Denton: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: purchasing@cityofdenton.com To advise City of Denton of your new e-mail address To let us know of a change in your e-mail address where we should send notices and disclosures electronically to you, you must send an email message to us at melissa.kraft@cityofdenton.com and in the body of such request you must state: your previous e-mail address, your new e-mail address. We do not require any other information from you to change your email address.. In addition, you must notify DocuSign, Inc to arrange for your new email address to be reflected in your DocuSign account by following the process for changing e-mail in DocuSign. To request paper copies from City of Denton To request delivery from us of paper copies of the notices and disclosures previously provided by us to you electronically, you must send us an e-mail to purchasing@cityofdenton.com and in the body of such request you must state your e-mail address, full name, US Postal address, and telephone number. We will bill you for any fees at that time, if any. To withdraw your consent with City of Denton To inform us that you no longer want to receive future notices and disclosures in electronic format you may: i. decline to sign a document from within your DocuSign account, and on the subsequent page, select the check-box indicating you wish to withdraw your consent, or you may; ii. send us an e-mail to purchasing@cityofdenton.com and in the body of such request you must state your e-mail, full name, IS Postal Address, telephone number, and account number. We do not need any other information from you to withdraw consent.. The consequences of your withdrawing consent for online documents will be that transactions may take a longer time to process.. Required hardware and software Operating Systems: Windows2000? or WindowsXP? Browsers (for SENDERS): Internet Explorer 6.0? or above Browsers (for SIGNERS): Internet Explorer 6.0?, Mozilla FireFox 1.0, NetScape 7.2 (or above) Email: Access to a valid email account Screen Resolution: 800 x 600 minimum Enabled Security Settings: Allow per session cookies Users accessing the internet behind a Proxy Server must enable HTTP 1.1 settings via proxy connection ** These minimum requirements are subject to change. If these requirements change, we will provide you with an email message at the email address we have on file for you at that time providing you with the revised hardware and software requirements, at which time you will have the right to withdraw your consent. Acknowledging your access and consent to receive materials electronically To confirm to us that you can access this information electronically, which will be similar to other electronic notices and disclosures that we will provide to you, please verify that you were able to read this electronic disclosure and that you also were able to print on paper or electronically save this page for your future reference and access or that you were able to e-mail this disclosure and consent to an address where you will be able to print on paper or save it for your future reference and access. Further, if you consent to receiving notices and disclosures exclusively in electronic format on the terms and conditions described above, please let us know by clicking the 'I agree' button below. By checking the 'I Agree' box, I confirm that: I can access and read this Electronic CONSENT TO ELECTRONIC RECEIPT OF ELECTRONIC RECORD AND SIGNATURE DISCLOSURES document; and I can print on paper the disclosure or save or send the disclosure to a place where I can print it, for future reference and access; and Until or unless I notify City of Denton as described above, I consent to receive from exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to me by City of Denton during the course of my relationship with you. DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 5ƚĭǒƭźŭƓ /źƷǤ /ƚǒƓĭźƌ ƩğƓƭƒźƷƷğƌ /ƚǝĻƩƭŷĻĻƷ CźƌĻ bğƒĻ tǒƩĭŷğƭźƓŭ /ƚƓƷğĭƷ /źƷǤ /ƚǒƓĭźƌ ğƩŭĻƷ 5ğƷĻ /ƚƓƷƩğĭƷ ğƌǒĻ tźŭŭǤ .ğĭƉ hƦƷźƚƓ /ƚƓƷƩğĭƷ 9ǣƦźƩğƷźƚƓ hƩķźƓğƓĭĻ DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND POLYDYNE INC, (FILE #6530) THIS CONTRACT is made and entered into this date _______________________, by and between Polydyne Inc., a corporation, whose address is One Chemical Plant Rd, Riceboro, GA 31323, hereinafter referred to as "Supplier," 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 his 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 IFB # 6530 Water and Wastewater Chemicals, 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, or on file, and incorporated herein by reference: (a)Special Terms and Conditions; (b)IFB#6530 (on file at the office of the Purchasing Agent); (c)City of Denton Standard Terms and Conditions ; (d)Certificate of Interested Parties Electronic Filing (e)(Exhibit "E"); (f)Form CIQ Conflict of Interest Questionnaire (Exhibit "F") 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 INDEMNITY THE SUPPLIER REPRESENTS AND WARRANTS TO THE CITY THAT THE INTELLECTUAL PROPERTY SUPPLIED BY 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, AND THAT NO CLAIMS HAVE BEEN MADE BY ANY PERSON OR ENTITY WITH RESPECT TO THE OWNERSHIP OR OPERATION OF THE INTELLECTUAL PROPERTY. MOREOVER, 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 ANY CLAIM THAT THE CITY'S EXERCISE OF ITS LICENSE RIGHTS, AND ITS USE OF THE Contract #6530 Polydyne, Inc.1 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 INTELLECTUAL PROPERTY, THE SUBJECT OF THIS CONTRACT, INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, OR THE BREACH OF ANY OF REPRESENTATIONS OR WARRANTIES STATED IN THE CONTRACT DOCUMENTS. 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. IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. SUPPLIER BY: ______________________________ AUTHORIZED SIGNATURE Date:_______________________________ Name: ______________________________ Title: _______________________________ ___________________________________ PHONE NUMBER ___________________________________ EMAIL ADDRESS __2017-272443________ ______ TEXAS ETHICS COMMISSION CERTIFICATE NUMBER CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: _____________________________ TODD HILEMAN CITY MANAGER BY: __________________________________ Date: ________________________ Contract #6530 Polydyne, Inc.2 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY BY:_______________________________ Contract #6530 Polydyne, Inc.3 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 Exhibit A Special Terms and Conditions 1.The Quantities The quantities indicated on Exhibit E are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the bid price. Individual purchase orders will be issued on an as needed basis. 2.Product Changes During Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to dentonpurchasing@cityofdenton.com, with the above file number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be 3.Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The representative as needed by the City. 4.Contract Terms The contract term will be four (4) years, effective from date of award or notice to proceed as determined by the City of Denton Purchasing Department. The contract term will be one (1) year, effective from the date that the City provides notice of the either party notifies the other party in writing prior to the renewal date that the contract will not be renewed or the contract is otherwise terminated or completed. This contract may only be automatically renewed for an additional three (3) one-year periods, subject to the terms herein, without City Council approval. 5.Price Escalation and De-escalation -escalation price adjustment annually based on these special terms. The escalation/de-escalation will be based on the U.S Department of Labor, Bureau of Labor Statistics, Producer Price Index (PPI) for finished Chemicals (PCU212393212393). The stated eligible bid price will be increased or decreased based upon the annual percentage change in the PPI so long as the change is greater than the minimum threshold value of +/- 1%. The maximum escalation will not exceed +/- 8% for any individual year. The Supplier must submit or make available the manufacturers pricing sheet used to calculate the bid proposal, to participate in the escalation/de-escalation clause. increase to the Purchasing Manager at least 60 days prior to the contract renewal date for each Contract #6530 Polydyne, Inc.4 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 year. The Supplier should provide documentation as a percentage of each cost associated with the unit prices quoted for consideration.If no request is made, then it will be assumed that the current contract price will be in effect. Upon receipt of such request, the City of Denton, at its sole option, reserves the right to either: (1) accept the escalation as competitive with the general market price at the time, and become effective upon the renewal date of the contract award; or, (2) reject the increase within thirty (30) calendar days after receipt of a properly submitted request. If a properly submitted increase is rejected, the Supplier may request cancellation of such items from the contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. The prices in effect prior to the increase request must be honored on orders dated up to the official date of the City of Denton approval and/or cancellation. The request can be sent by e-mail to: purchasing@cityofdenton.com noting the solicitation number. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. 6.Total Contract Amount The contract total shall not exceed $900,000. Pricing shall be per Exhibit E attached. 7.Delivery Lead Time Product or services shall be delivered to the City per the days/weeks noted in Exhibit E after receipt of the order. Contract #6530 Polydyne, Inc.5 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 Exhibit C City of Denton Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings 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 Supplier. No Terms and Conditions contained in 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 -of-way. 1.. The Contractor shall fully and timely provide all 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 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. 6.DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be Contract #6530 Polydyne, Inc.6 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise state 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 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 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 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, ies. 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 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 Contract #6530 Polydyne, Inc.7 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 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 11.COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Contracto 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, 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 the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight address and, if applicable, the tax identification number on the invoice must exactly match the C. Invoices for labor shall include a copy of all time-sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work-hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. 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. 13.PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of 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 Contract #6530 Polydyne, Inc.8 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 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 which is not covered by insurance required to be provided by the Contractor; 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 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 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 Contract #6530 Polydyne, Inc.9 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 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 ations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising 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. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five 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 books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 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 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 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 Contract #6530 Polydyne, Inc.10 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 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 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 Contract #6530 Polydyne, Inc.11 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 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- 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 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 Contractor shall assist and cooperate with the City to the fullest extent to enforce such 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. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. 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 endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery this section. 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 cl 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. Contract #6530 Polydyne, Inc.12 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 24.RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to 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 Co the City. 27.TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City 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, within such reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, , including, without - judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Contractor, the City may remove the Contractor fr 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. 28.TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the 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. 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 Contract #6530 Polydyne, Inc.13 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 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 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 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 GATIONS 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 Contract #6530 Polydyne, Inc.14 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Contractor shall provide 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. 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 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 Denton, Texas 76209 ity 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 Contract #6530 Polydyne, Inc.15 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 disclosed on the Certificate of Insurance. xiii. The Contractor shall endeavor to provid notice of erosion of the aggregate limits below occurrence limits for all applicable 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 affect on 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 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 , license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) In the event of any such claim, the City shall have the right to monitor such claim or at its option Contract #6530 Polydyne, Inc.16 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 engage its own separate counsel to act as co- Con 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 inventions, employee information, trade secrets, confidential know-how, confidential business information, and other information which the City or its licensors consider confidential) 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. 38.OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor agrees that upon their creation, such deliverables shall be considered as work made-for-hire by the Contractor for the City and the City shall own all copyrights in and to such deliverables, provided joint ownership of any Should by operation of law, such deliverables not be considered works made-for-hire, the Contractor hereby assigns to the City (and agrees to cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver an assignment to the City of) all worldwide right, title, and interest in and to such deliverables. With respect to such work made- for-hire, the Contractor agrees to execute, acknowledge, and deliver and cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver a work- made-for-hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. C. Additional Assignments. The Contractor further agrees to, and if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order Contract #6530 Polydyne, Inc.17 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 to apply for and obtain copyright protection, mask work registration, trademark registration and/or protection, letters patent, or any similar rights in any and all countries and in order to assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and e, and deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City should not seek to obtain copyright protection, mask work registration or patent protection for any of the deliverables, but should desire to keep the same secret, the Contractor agrees to treat the same as Confidential Information under the terms of Paragraph 37 above. 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 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. Any willful violation of this section shall constitute impropriety in office, and any officer or employee 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 Interest Questionnaire. 44.INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an be those of an independent contractor. The Contractor agrees and understands that the Contract Contract #6530 Polydyne, Inc.18 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 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, 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 his 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. 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 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 Contract #6530 Polydyne, Inc.19 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 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 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 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: MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day 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 Contract #6530 Polydyne, Inc.20 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 scheduled deliveries or work performance not within the normal hours of operation must be approvedby the City Manager of Denton, Texas or his 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: 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: 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 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. Contract #6530 Polydyne, Inc.21 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 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. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. 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: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 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 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 Wor 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. Contract #6530 Polydyne, Inc.22 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 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, fa 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. 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. 4.Purchase order 5.Supplier terms and conditions Contract #6530 Polydyne, Inc.23 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 Exhibit D 10/20/2017 Contract #6530 Polydyne, Inc.24 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.25 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.27 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.28 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.29 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.30 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.31 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.32 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.33 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.34 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.35 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.36 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.37 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.38 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.39 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.40 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.41 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.42 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.43 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.44 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.45 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.46 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.47 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.48 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.49 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.50 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.51 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.52 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.53 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.54 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.55 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.56 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.57 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.58 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.59 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.60 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.61 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.62 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.63 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.64 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.65 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.66 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.67 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.68 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.69 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.70 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.71 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.72 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.73 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.74 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.75 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.76 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT E Contract #6530 Polydyne, Inc.77 DocuSign Envelope ID: 99D93C07-EFE4-460F-9C78-008E2DBCEC54 EXHIBIT F Contract #6530 Polydyne, Inc.78 Certificate Of Completion Envelope Id: 99D93C07EFE4460F9C78008E2DBCEC54Status: Completed Subject: Please DocuSign: City Council Contract 6530 Polydyne Inc Source Envelope: Document Pages: 79Signatures: 4Envelope Originator: Certificate Pages: 6Initials: 0Robyn Forsyth AutoNav: Enabled901B Texas Street EnvelopeId Stamping: EnabledDenton, TX 76209 Time Zone: (UTC-08:00) Pacific Time (US & Canada)robyn.forsyth@cityofdenton.com IP Address: 129.120.6.150 Record Tracking Status: OriginalHolder: Robyn ForsythLocation: DocuSign 10/20/2017 1:58:56 PM robyn.forsyth@cityofdenton.com Signer EventsSignatureTimestamp Robyn ForsythSent: 10/20/2017 2:06:02 PM Completed robyn.forsyth@cityofdenton.comViewed: 10/20/2017 2:06:08 PM BuyerSigned: 10/20/2017 2:07:04 PM Using IP Address: 129.120.6.150 City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Boyd StanleySent: 10/20/2017 2:07:06 PM PolyBidDpt@snfhc.comViewed: 10/26/2017 8:59:17 AM Vice PresidentSigned: 10/26/2017 8:59:44 AM Security Level: Email, Account Authentication Using IP Address: 63.128.95.125 (Optional) Electronic Record and Signature Disclosure: Accepted: 10/26/2017 8:59:17 AM ID: ab57431b-581f-4aa2-ad5b-48b0f24f702e Jennifer DeCurtisSent: 10/26/2017 8:59:48 AM jennifer.decurtis@cityofdenton.comViewed: 10/26/2017 9:19:57 AM Deputy City AttorneySigned: 10/26/2017 9:20:08 AM City of Denton Using IP Address: 129.120.6.150 Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Julia WinkleySent: 10/26/2017 9:20:10 AM Completed julia.winkley@cityofdenton.comViewed: 10/26/2017 9:20:46 AM Contracts Administration SupervisorSigned: 11/14/2017 1:39:42 PM Using IP Address: 129.120.6.150 City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Signer EventsSignatureTimestamp Todd HilemanSent: 11/14/2017 1:39:46 PM Todd.Hileman@cityofdenton.comViewed: 11/14/2017 1:41:32 PM City ManagerSigned: 11/14/2017 1:41:37 PM City of Denton Using IP Address: 47.190.47.120 Security Level: Email, Account Authentication Signed using mobile (Optional) Electronic Record and Signature Disclosure: Accepted: 7/25/2017 9:02:14 AM ID: 57619fbf-2aec-4b1f-805d-6bd7d9966f21 Jennifer WaltersSent: 11/14/2017 1:41:40 PM jennifer.walters@cityofdenton.comViewed: 11/16/2017 6:05:46 AM City SecretarySigned: 11/16/2017 6:05:59 AM City of Denton Using IP Address: 129.120.6.150 Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer EventsSignatureTimestamp Editor Delivery EventsStatusTimestamp Agent Delivery EventsStatusTimestamp Intermediary Delivery EventsStatusTimestamp Certified Delivery EventsStatusTimestamp Carbon Copy EventsStatusTimestamp Sherri ThurmanSent: 10/26/2017 8:59:47 AM sherri.thurman@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Julia WinkleySent: 10/26/2017 8:59:47 AM julia.winkley@cityofdenton.com Contracts Administration Supervisor City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane RichardsonSent: 11/14/2017 1:39:44 PM jane.richardson@cityofdenton.com Assistant City Secretary City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Robin FoxSent: 11/14/2017 1:39:45 PM Robin.fox@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Carbon Copy EventsStatusTimestamp Not Offered via DocuSign Jennifer BridgesSent: 11/16/2017 6:06:01 AM jennifer.bridges@cityofdenton.comViewed: 11/17/2017 9:14:33 AM Procurement Assistant City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane RichardsonSent: 11/16/2017 6:06:02 AM jane.richardson@cityofdenton.comViewed: 12/5/2017 9:58:13 AM Assistant City Secretary City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Randy MarkumSent: 11/16/2017 6:06:03 AM randy.markum@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Sandy WellsSent: 11/16/2017 6:06:03 AM swells@snfhc.comViewed: 11/29/2017 12:51:14 PM Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary EventsSignatureTimestamp Envelope Summary EventsStatusTimestamps Envelope SentHashed/Encrypted11/16/2017 6:06:03 AM Certified DeliveredSecurity Checked11/16/2017 6:06:03 AM Signing CompleteSecurity Checked11/16/2017 6:06:03 AM CompletedSecurity Checked11/16/2017 6:06:03 AM Payment EventsStatusTimestamps Electronic Record and Signature Disclosure ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you certain written notices or disclosures. Described below are the terms and conditions for providing to you such notices and disclosures electronically through your DocuSign, Inc. (DocuSign) Express user account. Please read the information below carefully and thoroughly, and if you can access this information electronically to your satisfaction and agree to these terms and conditions, please confirm your agreement by clicking the 'I agree' button at the bottom of this document. Getting paper copies At any time, you may request from us a paper copy of any record provided or made available electronically to you by us. For such copies, as long as you are an authorized user of the DocuSign system you will have the ability to download and print any documents we send to you through your DocuSign user account for a limited period of time (usually 30 days) after such documents are first sent to you. 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Consequences of changing your mind If you elect to receive required notices and disclosures only in paper format, it will slow the speed at which we can complete certain steps in transactions with you and delivering services to you because we will need first to send the required notices or disclosures to you in paper format, and then wait until we receive back from you your acknowledgment of your receipt of such paper notices or disclosures. To indicate to us that you are changing your mind, you must withdraw your consent using the DocuSign 'Withdraw Consent' form on the signing page of your DocuSign account. This will indicate to us that you have withdrawn your consent to receive required notices and disclosures electronically from us and you will no longer be able to use your DocuSign Express user account to receive required notices and consents electronically from us or to sign electronically documents from us. All notices and disclosures will be sent to you electronically Unless you tell us otherwise in accordance with the procedures described herein, we will provide electronically to you through your DocuSign user account all required notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you during the course of our relationship with you. To reduce the chance of you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required notices and disclosures to you by the same method and to the same address that you have given us. Thus, you can receive all the disclosures and notices electronically or in paper format through the paper mail delivery system. If you do not agree with this process, please let us know as described below. Please also see the paragraph immediately above that describes the consequences of your electing not to receive delivery of the notices and disclosures electronically from us. How to contact City of Denton: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: purchasing@cityofdenton.com To advise City of Denton of your new e-mail address To let us know of a change in your e-mail address where we should send notices and disclosures electronically to you, you must send an email message to us at melissa.kraft@cityofdenton.com and in the body of such request you must state: your previous e-mail address, your new e-mail address. We do not require any other information from you to change your email address.. In addition, you must notify DocuSign, Inc to arrange for your new email address to be reflected in your DocuSign account by following the process for changing e-mail in DocuSign. To request paper copies from City of Denton To request delivery from us of paper copies of the notices and disclosures previously provided by us to you electronically, you must send us an e-mail to purchasing@cityofdenton.com and in the body of such request you must state your e-mail address, full name, US Postal address, and telephone number. We will bill you for any fees at that time, if any. To withdraw your consent with City of Denton To inform us that you no longer want to receive future notices and disclosures in electronic format you may: i. decline to sign a document from within your DocuSign account, and on the subsequent page, select the check-box indicating you wish to withdraw your consent, or you may; ii. send us an e-mail to purchasing@cityofdenton.com and in the body of such request you must state your e-mail, full name, IS Postal Address, telephone number, and account number. We do not need any other information from you to withdraw consent.. The consequences of your withdrawing consent for online documents will be that transactions may take a longer time to process.. Required hardware and software Operating Systems: Windows2000? or WindowsXP? Browsers (for SENDERS): Internet Explorer 6.0? or above Browsers (for SIGNERS): Internet Explorer 6.0?, Mozilla FireFox 1.0, NetScape 7.2 (or above) Email: Access to a valid email account Screen Resolution: 800 x 600 minimum Enabled Security Settings: Allow per session cookies Users accessing the internet behind a Proxy Server must enable HTTP 1.1 settings via proxy connection ** These minimum requirements are subject to change. If these requirements change, we will provide you with an email message at the email address we have on file for you at that time providing you with the revised hardware and software requirements, at which time you will have the right to withdraw your consent. Acknowledging your access and consent to receive materials electronically To confirm to us that you can access this information electronically, which will be similar to other electronic notices and disclosures that we will provide to you, please verify that you were able to read this electronic disclosure and that you also were able to print on paper or electronically save this page for your future reference and access or that you were able to e-mail this disclosure and consent to an address where you will be able to print on paper or save it for your future reference and access. Further, if you consent to receiving notices and disclosures exclusively in electronic format on the terms and conditions described above, please let us know by clicking the 'I agree' button below. By checking the 'I Agree' box, I confirm that: I can access and read this Electronic CONSENT TO ELECTRONIC RECEIPT OF ELECTRONIC RECORD AND SIGNATURE DISCLOSURES document; and I can print on paper the disclosure or save or send the disclosure to a place where I can print it, for future reference and access; and Until or unless I notify City of Denton as described above, I consent to receive from exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to me by City of Denton during the course of my relationship with you. DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 5ƚĭǒƭźŭƓ /źƷǤ /ƚǒƓĭźƌ ƩğƓƭƒźƷƷğƌ /ƚǝĻƩƭŷĻĻƷ CźƌĻ bğƒĻ tǒƩĭŷğƭźƓŭ /ƚƓƷğĭƷ /źƷǤ /ƚǒƓĭźƌ ğƩŭĻƷ 5ğƷĻ /ƚƓƷƩğĭƷ ğƌǒĻ tźŭŭǤ .ğĭƉ hƦƷźƚƓ /ƚƓƷƩğĭƷ 9ǣƦźƩğƷźƚƓ hƩķźƓğƓĭĻ DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND PENCCO, INC. (FILE #6530) THIS CONTRACT is made and entered into this date _______________________, by and between Pencco, Inc., a corporation, whose address is 831 Bartlett Road, Sealy, TX 77474, hereinafter referred to as "Supplier," 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 his 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 Supplier shall provide products in accordance with the City’s IFB # 6530 Water and Wastewater Chemicals, 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, or on file, and incorporated herein by reference: (a)Special Terms and Conditions (Exhibit “A”); (b)City of Denton’s IFB#6530 (Exhibit “B” on file at the office of the Purchasing Agent); (c)City of Denton Standard Terms and Conditions (Exhibit “C”); (d)Certificate of Interested Parties Electronic Filing (Exhibit “D”); (e)Supplier’s Proposal. (Exhibit "E"); (f)Form CIQ – Conflict of Interest Questionnaire (Exhibit "F") 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.” INDEMNITY THE SUPPLIER REPRESENTS AND WARRANTS TO THE CITY THAT THE INTELLECTUAL PROPERTY SUPPLIED BY 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, AND THAT NO CLAIMS HAVE BEEN MADE BY ANY PERSON OR ENTITY WITH RESPECT TO THE OWNERSHIP OR OPERATION OF THE INTELLECTUAL PROPERTY. MOREOVER, 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 Contract #6530- Pencco Inc.1 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 OTHER PROFESSIONALS) ARISING OUT OF OR RESULTING FROM ANY CLAIM THAT THE CITY'S EXERCISE OF ITS LICENSE RIGHTS, AND ITS USE OF THE INTELLECTUAL PROPERTY, THE SUBJECT OF THIS CONTRACT, INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, OR THE BREACH OF ANY OF REPRESENTATIONS OR WARRANTIES STATED IN THE CONTRACT DOCUMENTS. 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. IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. SUPPLIER BY: ______________________________ AUTHORIZED SIGNATURE Date: _______________________________ Name: ______________________________ Title: _______________________________ ___________________________________ PHONE NUMBER ___________________________________ EMAIL ADDRESS _______2017-271722_________________ TEXAS ETHICS COMMISSION CERTIFICATE NUMBER CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: _____________________________ TODD HILEMAN CITY MANAGER BY: __________________________________ Date: ________________________ APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY BY:_______________________________ Contract #6530- Pencco Inc.2 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 Exhibit A Special Terms and Conditions 1.The Quantities The quantities indicated on Exhibit E are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the bid price. Individual purchase orders will be issued on an as needed basis. 2.Product Changes During Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to dentonpurchasing@cityofdenton.com, with the above file number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be returned at the supplier’s expense. Products that have been installed will be replaced at the supplier’s expense. 3.Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The distributor shall be authorized to sell to the City of Denton, and make available the manufacturer’s representative as needed by the City. 4.Contract Terms The contract term will be four (4) years, effective from date of award or notice to proceed as determined by the City of Denton Purchasing Department. The contract term will be one (1) year, effective from the date that the City provides notice of the award to supplier (“effective date”). The contract shall automatically renew each year on the month and day of the effective date (“renewal date”), unless either party notifies the other party in writing prior to the renewal date that the contract will not be renewed or the contract is otherwise terminated or completed. This contract may only be automatically renewed for an additional three (3) one-year periods, subject to the terms herein, without City Council approval. 5.Price Escalation and De-escalation On Supplier’s request in the form stated herein, the City will implement an escalation/de-escalation price adjustment annually based on these special terms. The escalation/de-escalation will be based on the U.S Department of Labor, Bureau of Labor Statistics, Producer Price Index (PPI) for finished Chemicals (PCU212393212393). The stated eligible bid price will be increased or decreased based upon the annual percentage change in the PPI so long as the change is greater than the minimum threshold value of +/- 1%. The maximum escalation will not exceed +/- 8% for any individual year.The Supplier must submit or make available the manufacturers pricing sheet used to calculate the bid proposal, to participate in the escalation/de-escalation clause. Contract #6530- Pencco Inc.3 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 The Supplier’s request must be submitted in writing with supporting evidence for need of such increase to the Purchasing Manager at least 60 days prior to the contract renewal date for each year. The Supplier should provide documentation as a percentage of each cost associated with the unit prices quoted for consideration. If no request is made, then it will be assumed that the current contract price will be in effect. Upon receipt of such request, the City of Denton, at its sole option, reserves the right to either: (1) accept the escalation as competitive with the general market price at the time, and become effective upon the renewal date of the contract award; or, (2) reject the increase within thirty (30) calendar days after receipt of a properly submitted request. If a properly submitted increase is rejected, the Supplier may request cancellation of such items from the contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. The prices in effect prior to the increase request must be honored on orders dated up to the official date of the City of Denton approval and/or cancellation. The request can be sent by e-mail to: purchasing@cityofdenton.com noting the solicitation number. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. 6.Total Contract Amount The contract total shall not exceed $3,200,000. Pricing shall be per Exhibit E attached. 7.Delivery Lead Time Product or services shall be delivered to the City per the days/weeks noted in Exhibit E after receipt of the order. Contract #6530- Pencco Inc.4 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 Exhibit C City of Denton 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. Contract #6530- Pencco Inc.5 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 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 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. Contract #6530- Pencco Inc.6 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 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 itemized and transportation charges, if any, shall be listed separately. 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. C. Invoices for labor shall include a copy of all time-sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work-hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. 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. Contract #6530- Pencco Inc.7 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 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 performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by Contract #6530- Pencco Inc.8 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 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. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five 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 books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. 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. Each of the terms “books”, “records”, “documents” and “other evidence”, as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 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 Contract #6530- Pencco Inc.9 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 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 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. Contract #6530- Pencco Inc.10 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 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 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. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. 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 endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City’s rights under this section. C. If the Contractor is unable or unwilling to perform its services in accordance with the above Contract #6530- Pencco Inc.11 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 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 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, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City’s reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Contractor’s 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. Contract #6530- Pencco Inc.12 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 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. 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 strict liability standard. B.THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, Contract #6530- Pencco Inc.13 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 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 Denton, Texas 76209 vii. The “other” insurance clause shall not apply to the City where the City is an additional Contract #6530- Pencco Inc.14 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 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 affect 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 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 Contract #6530- Pencco Inc.15 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 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. 38.OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and Contract #6530- Pencco Inc.16 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor agrees that upon their creation, such deliverables shall be considered as work made-for-hire by the Contractor for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the City’s sole or joint ownership of any such deliverables arising by virtue of the City’s sole or joint authorship of such deliverables. Should by operation of law, such deliverables not be considered works made-for-hire, the Contractor hereby assigns to the City (and agrees to cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver an assignment to the City of) all worldwide right, title, and interest in and to such deliverables. With respect to such work made- for-hire, the Contractor agrees to execute, acknowledge, and deliver and cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver a work- made-for-hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. C. Additional Assignments. The Contractor further agrees to, and if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work registration, trademark registration and/or protection, letters patent, or any similar rights in any and all countries and in order to assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and interest in and to the deliverables. The Contractor’s obligations to execute, acknowledge, and deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City should not seek to obtain copyright protection, mask work registration or patent protection for any of the deliverables, but should desire to keep the same secret, the Contractor agrees to treat the same as Confidential Information under the terms of Paragraph 37 above. 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 Contract #6530- Pencco Inc.17 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 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. Any willful violation of this section shall constitute impropriety in office, and any officer or employee 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 his 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. 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, Contract #6530- Pencco Inc.18 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 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 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 #6530- Pencco Inc.19 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 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 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) MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christmas Day (observed) New Year’s 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 his 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 Contract #6530- Pencco Inc.20 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 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 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. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the Contract #6530- Pencco Inc.21 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 respondent. 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: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 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 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 Contract #6530- Pencco Inc.22 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 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. 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 Contract #6530- Pencco Inc.23 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 Exhibit D 10/23/2017 Contract #6530- Pencco Inc.24 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.25 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.27 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.28 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.29 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.30 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.31 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.32 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.33 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.34 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.35 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.36 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.37 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.38 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.39 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.40 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.41 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.42 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.43 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.44 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.45 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.46 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.47 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.48 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.49 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.50 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.51 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.52 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.53 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.54 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.55 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.56 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.57 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.58 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.59 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.60 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.61 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.62 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.63 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.64 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.65 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.66 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.67 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.68 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.69 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.70 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.71 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.72 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT E Contract #6530- Pencco Inc.73 DocuSign Envelope ID: 8F8DF1CB-6F70-4C68-AF19-54C2D74D3A00 EXHIBIT F Contract #6530- Pencco Inc.74 Certificate Of Completion Envelope Id: 8F8DF1CB6F704C68AF1954C2D74D3A00Status: Completed Subject: Please DocuSign: City Council Contract 6530- Pencco Inc Source Envelope: Document Pages: 75Signatures: 4Envelope Originator: Certificate Pages: 6Initials: 0Robyn Forsyth AutoNav: Enabled901B Texas Street EnvelopeId Stamping: EnabledDenton, TX 76209 Time Zone: (UTC-08:00) Pacific Time (US & Canada)robyn.forsyth@cityofdenton.com IP Address: 129.120.6.150 Record Tracking Status: OriginalHolder: Robyn ForsythLocation: DocuSign 10/23/2017 1:41:15 PM robyn.forsyth@cityofdenton.com Signer EventsSignatureTimestamp Robyn ForsythSent: 10/23/2017 1:45:49 PM Completed robyn.forsyth@cityofdenton.comViewed: 10/23/2017 1:46:07 PM BuyerSigned: 10/23/2017 1:47:04 PM Using IP Address: 129.120.6.150 City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Sarah DuffySent: 10/23/2017 1:47:07 PM sarah@pencco.comViewed: 10/23/2017 1:52:11 PM Bid Sec.Signed: 10/23/2017 1:53:54 PM Security Level: Email, Account Authentication Using IP Address: 209.34.30.88 (Optional) Electronic Record and Signature Disclosure: Accepted: 10/23/2017 1:52:11 PM ID: 93c041b5-6a53-4a81-8570-80b2e0cd8e45 Jennifer DeCurtisSent: 10/23/2017 1:53:59 PM jennifer.decurtis@cityofdenton.comViewed: 10/23/2017 3:18:46 PM Deputy City AttorneySigned: 10/23/2017 3:19:01 PM City of Denton Using IP Address: 129.120.6.150 Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Julia WinkleySent: 10/23/2017 3:19:04 PM Completed julia.winkley@cityofdenton.comViewed: 11/14/2017 1:42:32 PM Contracts Administration SupervisorSigned: 11/14/2017 1:44:13 PM Using IP Address: 129.120.6.150 City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Signer EventsSignatureTimestamp Todd HilemanSent: 11/14/2017 1:44:18 PM Todd.Hileman@cityofdenton.comViewed: 11/14/2017 1:44:35 PM City ManagerSigned: 11/14/2017 1:44:38 PM City of Denton Using IP Address: 47.190.47.120 Security Level: Email, Account Authentication Signed using mobile (Optional) Electronic Record and Signature Disclosure: Accepted: 7/25/2017 9:02:14 AM ID: 57619fbf-2aec-4b1f-805d-6bd7d9966f21 Jennifer WaltersSent: 11/14/2017 1:44:41 PM jennifer.walters@cityofdenton.comViewed: 11/16/2017 5:53:48 AM City SecretarySigned: 11/16/2017 5:54:09 AM City of Denton Using IP Address: 129.120.6.150 Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer EventsSignatureTimestamp Editor Delivery EventsStatusTimestamp Agent Delivery EventsStatusTimestamp Intermediary Delivery EventsStatusTimestamp Certified Delivery EventsStatusTimestamp Carbon Copy EventsStatusTimestamp Sherri ThurmanSent: 10/23/2017 1:53:57 PM sherri.thurman@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Julia WinkleySent: 10/23/2017 1:53:58 PM julia.winkley@cityofdenton.com Contracts Administration Supervisor City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane RichardsonSent: 11/14/2017 1:44:16 PM jane.richardson@cityofdenton.comViewed: 11/15/2017 6:33:59 AM Assistant City Secretary City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Robin FoxSent: 11/14/2017 1:44:17 PM Robin.fox@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Carbon Copy EventsStatusTimestamp Not Offered via DocuSign Jennifer BridgesSent: 11/16/2017 5:54:12 AM jennifer.bridges@cityofdenton.comViewed: 11/17/2017 9:32:36 AM Procurement Assistant City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane RichardsonSent: 11/16/2017 5:54:13 AM jane.richardson@cityofdenton.comViewed: 12/5/2017 10:46:44 AM Assistant City Secretary City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Randy MarkumSent: 11/16/2017 5:54:14 AM randy.markum@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Rusty WillardSent: 11/16/2017 5:54:15 AM rusty.willard@cityofdenton.comViewed: 11/16/2017 6:40:57 AM Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Ronnie HammonsSent: 11/16/2017 5:54:16 AM rhammons@pencco.comViewed: 11/16/2017 6:09:04 AM Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary EventsSignatureTimestamp Envelope Summary EventsStatusTimestamps Envelope SentHashed/Encrypted11/16/2017 5:54:16 AM Certified DeliveredSecurity Checked11/16/2017 5:54:16 AM Signing CompleteSecurity Checked11/16/2017 5:54:16 AM CompletedSecurity Checked11/16/2017 5:54:16 AM Payment EventsStatusTimestamps Electronic Record and Signature Disclosure ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you certain written notices or disclosures. 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DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C 5ƚĭǒƭźŭƓ /źƷǤ /ƚǒƓĭźƌ ƩğƓƭƒźƷƷğƌ /ƚǝĻƩƭŷĻĻƷ CźƌĻ bğƒĻ tǒƩĭŷğƭźƓŭ /ƚƓƷğĭƷ /źƷǤ /ƚǒƓĭźƌ ğƩŭĻƷ 5ğƷĻ /ƚƓƷƩğĭƷ ğƌǒĻ tźŭŭǤ .ğĭƉ hƦƷźƚƓ /ƚƓƷƩğĭƷ 9ǣƦźƩğƷźƚƓ hƩķźƓğƓĭĻ DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND SHANNON CHEMICAL CORPORATION (FILE #6530) THIS CONTRACT is made and entered into this date _______________________, by and between Shannon Chemical, a corporation, whose address is 602 Jeffers Circle, Exton, PA 19341 hereinafter referred to as "Supplier," 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 his 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 IFB # 6530 Water and Wastewater Chemicals, 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, or on file, and incorporated herein by reference: (a)Special Terms and Conditions; (b)IFB#6530 (on file at the office of the Purchasing Agent); (c)City of Denton Standard Terms and Conditions ; (d)Certificate of Interested Parties Electronic Filing (e)(Exhibit "E"); (f)Form CIQ Conflict of Interest Questionnaire (Exhibit "F") 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 INDEMNITY THE SUPPLIER REPRESENTS AND WARRANTS TO THE CITY THAT THE INTELLECTUAL PROPERTY SUPPLIED BY 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, AND THAT NO CLAIMS HAVE BEEN MADE BY ANY PERSON OR ENTITY WITH RESPECT TO THE OWNERSHIP OR OPERATION OF THE INTELLECTUAL PROPERTY. MOREOVER, 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 Contract #6530 Shannon Chemical Corp1 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C OTHER PROFESSIONALS) ARISING OUT OF OR RESULTING FROM ANY CLAIM THAT THE CITY'S EXERCISE OF ITS LICENSE RIGHTS, AND ITS USE OF THE INTELLECTUAL PROPERTY, THE SUBJECT OF THIS CONTRACT, INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, OR THE BREACH OF ANY OF REPRESENTATIONS OR WARRANTIES STATED IN THE CONTRACT DOCUMENTS. 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. IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. SUPPLIER BY: ______________________________ AUTHORIZED SIGNATURE Date:_______________________________ Name: ______________________________ Title: _______________________________ ___________________________________ PHONE NUMBER ___________________________________ EMAIL ADDRESS 2017-272006____________________ TEXAS ETHICS COMMISSION CERTIFICATE NUMBER CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: _____________________________ TODD HILEMAN CITY MANAGER BY: __________________________________ Date: ________________________ APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY BY:_______________________________ Contract #6530 Shannon Chemical Corp2 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C Exhibit A Special Terms and Conditions 1.The Quantities The quantities indicated on Exhibit E are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the bid price. Individual purchase orders will be issued on an as needed basis. 2.Product Changes During Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to dentonpurchasing@cityofdenton.com, with the above file number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be 3.Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The representative as needed by the City. 4.Contract Terms The contract term will be four (4) years, effective from date of award or notice to proceed as determined by the City of Denton Purchasing Department. The contract term will be one (1) year, effective from the date that the City provides notice of the renew each year on the month prior to the renewal date that the contract will not be renewed or the contract is otherwise terminated or completed. This contract may only be automatically renewed for an additional three (3) one-year periods, subject to the terms herein, without City Council approval. 5.Price Escalation and De-escalation -escalation price adjustment annually based on these special terms. The escalation/de-escalation will be based on the U.S Department of Labor, Bureau of Labor Statistics, Producer Price Index (PPI) for finished Chemicals (PCU212393212393). The stated eligible bid price will be increased or decreased based upon the annual percentage change in the PPI so long as the change is greater than the minimum threshold value of +/- 1%. The maximum escalation will not exceed +/- 8% for any individual year. The Supplier must submit or make available the manufacturers pricing sheet used to calculate the bid proposal, to participate in the escalation/de-escalation clause. Contract #6530 Shannon Chemical Corp3 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C increase to the Purchasing Manager at least 60 days prior to the contract renewal date for each year. The Supplier should provide documentation as a percentage of each cost associated with the unit prices quoted for consideration.If no request is made, then it will be assumed that the current contract price will be in effect. Upon receipt of such request, the City of Denton, at its sole option, reserves the right to either: (1) accept the escalation as competitive with the general market price at the time, and become effective upon the renewal date of the contract award; or, (2) reject the increase within thirty (30) calendar days after receipt of a properly submitted request. If a properly submitted increase is rejected, the Supplier may request cancellation of such items from the contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. The prices in effect prior to the increase request must be honored on orders dated up to the official date of the City of Denton approval and/or cancellation. The request can be sent by e-mail to: purchasing@cityofdenton.com noting the solicitation number. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. 6.Total Contract Amount The contract total shall not exceed $325,000. Pricing shall be per Exhibit E attached. 7.Delivery Lead Time Product or services shall be delivered to the City per the days/weeks noted in Exhibit E after receipt of the order. Contract #6530 Shannon Chemical Corp4 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C Exhibit C City of Denton Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings 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 Department and the 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 -of-way. 1.. The Contractor shall fully and timely provide all 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 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. Contract #6530 Shannon Chemical Corp5 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C 6.DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and 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 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 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 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, 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 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. Contract #6530 Shannon Chemical Corp6 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C 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 11.COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS 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, 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 the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight address and, if applicable, the tax identification number on the invoice must exactly match the C. Invoices for labor shall include a copy of all time-sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work-hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. 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. Contract #6530 Shannon Chemical Corp7 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C 13.PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty 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. d which is not covered by insurance required to be provided by the Contractor; 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 priated 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 performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by Contract #6530 Shannon Chemical Corp8 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C 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 under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising unde 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. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five 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 books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract e construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 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 identified in the Plan, unless the substitute has been accepted by the City in Contract #6530 Shannon Chemical Corp9 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C 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 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. Contract #6530 Shannon Chemical Corp10 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C 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 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- 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 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 Contractor shall assist and cooperate with the City to the fullest extent to enforce such 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. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. 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 endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shal this section. C. If the Contractor is unable or unwilling to perform its services in accordance with the above Contract #6530 Shannon Chemical Corp11 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C 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 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 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 the City. 27.TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City 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, within such ten (10) day period, cures such default, or provides evidence suffic reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred - judgment interest at the maximum lawful rate. Additionally, in the event of a default by the 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. Contract #6530 Shannon Chemical Corp12 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C 28.TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the 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. 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 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 strict liability standard. B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, Contract #6530 Shannon Chemical Corp13 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C 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 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. 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. 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 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 Denton, Texas 76209 vii. T Contract #6530 Shannon Chemical Corp14 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C 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. notice of erosion of the aggregate limits below occurrence limits for all applicable pecified 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 affect on the actor 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 to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked Contract #6530 Shannon Chemical Corp15 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C 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 in the world of the rights asso and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) 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- arding the deliverables shall in no way diminish 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 inventions, employee information, trade secrets, confidential know-how, confidential business information, and other information which the City or its licensors consider confidential) 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. 38.OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and Contract #6530 Shannon Chemical Corp16 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor agrees that upon their creation, such deliverables shall be considered as work made-for-hire by the Contractor for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing Should by operation of law, such deliverables not be considered works made-for-hire, the Contractor hereby assigns to the City (and agrees to cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver an assignment to the City of) all worldwide right, title, and interest in and to such deliverables. With respect to such work made- for-hire, the Contractor agrees to execute, acknowledge, and deliver and cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver a work- made-for-hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. C. Additional Assignments. The Contractor further agrees to, and if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work registration, trademark registration and/or protection, letters patent, or any similar rights in any and all countries and in order to assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and interest in and to the deliverables deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City should not seek to obtain copyright protection, mask work registration or patent protection for any of the deliverables, but should desire to keep the same secret, the Contractor agrees to treat the same as Confidential Information under the terms of Paragraph 37 above. 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 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 Contract #6530 Shannon Chemical Corp17 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C 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. Any willful violation of this section shall constitute impropriety in office, and any officer or employee 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 Interest Questionnaire. 44.INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an 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, ot 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 his 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. 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, Contract #6530 Shannon Chemical Corp18 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C 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 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 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 #6530 Shannon Chemical Corp19 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C 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 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: MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day 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 approvedby the City Manager of Denton, Texas or his 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: Contract #6530 Shannon Chemical Corp20 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C 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: 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 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. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the Contract #6530 Shannon Chemical Corp21 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C respondent. 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: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 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 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 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 Contract #6530 Shannon Chemical Corp22 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C 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 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. 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. 4.Purchase order 5.Supplier terms and conditions Contract #6530 Shannon Chemical Corp23 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C Exhibit D 10/25/2017 Contract #6530 Shannon Chemical Corp24 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp25 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp27 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp28 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp29 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp30 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp31 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp32 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp33 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp34 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp35 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp36 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp37 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp38 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp39 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp40 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp41 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp42 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp43 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp44 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp45 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp46 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp47 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp48 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp49 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp50 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp51 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp52 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp53 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp54 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp55 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp56 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp57 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp58 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp59 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp60 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp61 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp62 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp63 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT E Contract #6530 Shannon Chemical Corp64 DocuSign Envelope ID: 4865B735-AB09-40E5-B31B-F187474BCF0C EXHIBIT F Contract #6530 Shannon Chemical Corp65 Certificate Of Completion Envelope Id: 4865B735AB0940E5B31BF187474BCF0CStatus: Completed Subject: Please DocuSign: City Council Contract 6530 Source Envelope: Document Pages: 66Signatures: 4Envelope Originator: Certificate Pages: 6Initials: 0Robyn Forsyth AutoNav: Enabled901B Texas Street EnvelopeId Stamping: EnabledDenton, TX 76209 Time Zone: (UTC-08:00) Pacific Time (US & Canada)robyn.forsyth@cityofdenton.com IP Address: 129.120.6.150 Record Tracking Status: OriginalHolder: Robyn ForsythLocation: DocuSign 10/25/2017 2:16:26 PM robyn.forsyth@cityofdenton.com Signer EventsSignatureTimestamp Robyn ForsythSent: 10/25/2017 2:20:53 PM Completed robyn.forsyth@cityofdenton.comViewed: 10/25/2017 2:21:02 PM BuyerSigned: 10/25/2017 2:22:15 PM Using IP Address: 129.120.6.150 City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Daniel FlynnSent: 10/25/2017 2:22:18 PM dcflynn@shannonchem.comResent: 10/25/2017 2:23:26 PM PresidentViewed: 10/26/2017 5:12:12 AM Security Level: Email, Account Authentication Signed: 10/26/2017 5:16:01 AM Using IP Address: 75.146.251.245 (Optional) Electronic Record and Signature Disclosure: Accepted: 10/26/2017 5:12:12 AM ID: 7bcf1848-afeb-4384-8078-bb527feef36b Jennifer DeCurtisSent: 10/26/2017 5:16:06 AM jennifer.decurtis@cityofdenton.comViewed: 10/26/2017 7:02:42 AM Deputy City AttorneySigned: 10/26/2017 7:03:00 AM City of Denton Using IP Address: 172.56.7.172 Security Level: Email, Account Authentication Signed using mobile (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Julia WinkleySent: 10/26/2017 7:03:03 AM Completed julia.winkley@cityofdenton.comViewed: 10/26/2017 8:14:21 AM Contracts Administration SupervisorSigned: 11/14/2017 1:40:42 PM Using IP Address: 129.120.6.150 City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Signer EventsSignatureTimestamp Todd HilemanSent: 11/14/2017 1:40:46 PM Todd.Hileman@cityofdenton.comViewed: 11/14/2017 1:41:17 PM City ManagerSigned: 11/14/2017 1:41:24 PM City of Denton Using IP Address: 47.190.47.120 Security Level: Email, Account Authentication Signed using mobile (Optional) Electronic Record and Signature Disclosure: Accepted: 7/25/2017 9:02:14 AM ID: 57619fbf-2aec-4b1f-805d-6bd7d9966f21 Jennifer WaltersSent: 11/14/2017 1:41:27 PM jennifer.walters@cityofdenton.comViewed: 11/16/2017 6:06:18 AM City SecretarySigned: 11/16/2017 6:06:33 AM City of Denton Using IP Address: 129.120.6.150 Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer EventsSignatureTimestamp Editor Delivery EventsStatusTimestamp Agent Delivery EventsStatusTimestamp Intermediary Delivery EventsStatusTimestamp Certified Delivery EventsStatusTimestamp Carbon Copy EventsStatusTimestamp Sherri ThurmanSent: 10/26/2017 5:16:04 AM sherri.thurman@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Julia WinkleySent: 10/26/2017 5:16:05 AM julia.winkley@cityofdenton.com Contracts Administration Supervisor City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane RichardsonSent: 11/14/2017 1:40:44 PM jane.richardson@cityofdenton.com Assistant City Secretary City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Robin FoxSent: 11/14/2017 1:40:45 PM Robin.fox@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Carbon Copy EventsStatusTimestamp Not Offered via DocuSign Jennifer BridgesSent: 11/16/2017 6:06:35 AM jennifer.bridges@cityofdenton.comViewed: 11/17/2017 8:49:01 AM Procurement Assistant City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane RichardsonSent: 11/16/2017 6:06:36 AM jane.richardson@cityofdenton.comViewed: 12/5/2017 9:56:00 AM Assistant City Secretary City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Randy MarkumSent: 11/16/2017 6:06:37 AM randy.markum@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Ann ArrellSent: 11/16/2017 6:06:38 AM ann@shannonchem.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary EventsSignatureTimestamp Envelope Summary EventsStatusTimestamps Envelope SentHashed/Encrypted11/16/2017 6:06:38 AM Certified DeliveredSecurity Checked11/16/2017 6:06:38 AM Signing CompleteSecurity Checked11/16/2017 6:06:38 AM CompletedSecurity Checked11/16/2017 6:06:38 AM Payment EventsStatusTimestamps Electronic Record and Signature Disclosure 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