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R �: � �... ., � . � � � � � #� l` "� �l� • �� ' • ' • ` ' E!', - *, . 1 . •'� ' � �!! � :, � ` ` ! ' ' �,, ' �� a . . � . �� f'�� • '!''� • � ��# �� ! �• s' �' w ' � � �# � s�� `� 1 • ' � � ` + ' �' � �'�� ! ♦ �'�� . '�� #� • �� ' 4 � � � 1 � # ' ! ' � � . I # !' w�# � RFP NUM ER CONT CTOR AMO T 6704 SigmaFlaw, LLC $311,250 ! , r -. - . -. w.r♦,� . � -.�* ` •--+ - �' - • •• • �� , . -� - w - • - •- � � � - • w�• . � . . • �. .. �� ♦ , - .�'��- . -� �; - �♦ .� � . . . �A •. ��- - -, �- . � . •. � . - . � • - •- -• � .• - ' w w . . � I' w�# . � -', -• •� • � • • . • • � � + .�• � -� . � . -� -•' - � - � �• ��# . •- �- ��. � - ,,� .. . . .��- � -s -•.� . ��l��1 . �1 � � r • � # ' # �►�.;� - � � ,. � �. ,w � .�;, '� ` �' � .�` � '�,, authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents herein approved and accepted. This will be an initial one (1) year contract with options to extend the contract for four (4) additional one (1) year periods. 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 the RFP 6704 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. � ��-�' �...��........ made bY ��. ...��"��,� ---- and seconded by �� p his ordmance was w the ordinance was passed and approved by the following T e motion to a prove t ......... .....,�� ..��.. �r�c>t� d �;� - �`�� I'� Aye Nay Abstain Absent Mayor Chris Watts: � Gerard Hudspeth, District 1: '� Keely G. Briggs, District 2: � Don Duff, District 3: m""� John Ryan, District 4: � Deb Armintor, At Large Place 5. � Paul Meltzer, At Large Place 6: PASSED AND APPROVED this the ��" r day of ��'��°��°��^� ��'�� µ, 2018. R � ,,, �, � . � � �� ... t." # 1 � � �a•.—��ATTS, MAYOR ... ____ _ ATTEST: JENNIFER WALTERS, CITY SECRETARY BY��`� �" � � �� M� � �' ��'. � �� ----- �� --��=° ��°�--- -------... � � � APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY ,� BY: ------ .. �'�""_�.... _ ��°�..n. .. � .. DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 5ƚĭǒƭźŭƓ /źƷǤ /ƚǒƓĭźƌ ƩğƓƭƒźƷƷğƌ /ƚǝĻƩƭŷĻĻƷ CźƌĻ bğƒĻ tǒƩĭŷğƭźƓŭ /ƚƓƷğĭƷ /źƷǤ /ƚǒƓĭźƌ ğƩŭĻƷ 5ğƷĻ tźŭŭǤ .ğĭƉ hƦƷźƚƓ /ƚƓƷƩğĭƷ 9ǣƦźƩğƷźƚƓ hƩķźƓğƓĭĻ DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND (CONTRACT 6704) THIS CONTRACT is made and entered into this date ______________________, by and between SigmaFlow, LLC a Delaware Limited Liability Company, whose address is 2600 N. Dallas Parkway, Suite 260, Frisco, Texas 75034, hereinafter referred to as "Contractor," and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and subsequent execution of this Contract by the Denton City Manager or 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 and/or services in document RFP 6704-Digital NERC Compliance Solution, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written agreement and the following items which are attached hereto and incorporated herein by reference: (a) Special Terms and Conditions (b) RFP 6704 (on File at the Office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions C; (d) Master Software Subscription and Services Agreement D (e) Insurance Requirements (Exhibit "E"); (f) Certificate of Interested Parties Electronic Filing (Exhibit "F"); (g) Proposal (G (h) House Bill 89 Verification H (i) Senate Bill 252 Certification (Exhibit "I"); 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 The parties agree to transact business electronically. Any statutory requirements that certain terms be in writing will be satisfied using electronic documents and signing. Electronic signing of this document will be deemed an original for all legal purposes. 1 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. CONTRACTOR BY: ______________________________ THIS AGREEMENT HAS BEEN AUTHORIZED SIGNATURE BOTH REVIEWED AND APPROVED as to financial and operational Date: _______________________________ obligations and business terms. Name:______________________________ _______________ ________________ Title: _______________________________ SIGNATURE PRINTED NAME ___________________________________ __________________________________ PHONE NUMBER TITLE ___________________________________ __________________________________ EMAIL ADDRESS DEPARTMENT ___________________________________ 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: __________________________________ 2 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 Exhibit A Special Terms and Conditions 1. Total Contract Amount The contract total for services shall not exceed $311,250. Pricing shall be per Exhibit F attached. 2. Contract Terms The contract term will be one (1) year, effective from date of award. The City and the Supplier shall have the option to renew this contract for an additional four (4) one-year periods. The contract shall commence upon the issuance of a Notice of Award by the City of Denton and shall automatically renew each year, from the date of award by City Council, unless either party notifies the other prior to the scheduled renewal date. At the sole option of the City of Denton, the contract may be further extended as needed, not to exceed a total of six (6) months. 3. Price Escalation and De-escalation Pricing and discounts submitted are firm for the initial one-year period specified in the solicitation. Price decreases are allowed at any time. Price increases shall only be considered as stipulated below: Request must be submitted in writing with supporting evidence for need of such increase to the Purchasing Manager at least 60 days prior to contract expiration of each year. Respondent must also provide supporting documentation as justification for the request. Upon receipt of such request, the City of Denton reserves the right to either: 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 reject the increases within 30 calendar days after receipt of a properly submitted request. If a properly submitted increase is rejected, the Contractor 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. Pre- price increase prices 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. 3 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 Exhibit C 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. 4 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 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, 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, 5 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 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 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 6 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 nvoice 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 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. 7 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 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 an under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising 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 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 8 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 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. 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 9 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 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 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 10 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 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, 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 ffer, 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 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, without - judgment interest at the maximum lawful rate. Additionally, in the event of a default by the 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. 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 11 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 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, 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 DER THE 12 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 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 Certifica 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 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 13 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 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 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 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 14 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 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 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- 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 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, 15 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 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 rship 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 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 16 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 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 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, 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 17 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 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 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 18 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 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 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) 19 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 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 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 20 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 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 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 Work all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug-Free Work Place Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug-free work environment; and the final rule, government-wide requirements for drug-free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the Drug-Free Work Place Act of 1988 is incorporated by reference and the contractor shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be issued. 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government-owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Respondent shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Respondent will be excused from any further performance or observance of the requirements so affected for as long as such circumstances prevail and the Respondent continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay. The Respondent shall immediately notify the City of Denton Procurement Manager by telephone (to be confirmed in writing within five (5) calendar days of the inception of such occurrence) and describe at a reasonable level of detail the circumstances causing the non-performance or delay in performance. 65. NON-WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right 21 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 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 22 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 Exhibit D Master Software Subscription and Services Agreement SIGMAFLOW LLC MASTER SOFTWARE SUBSCRIPTION AND SERVICES AGREEMENT This Master Software Subscription and Services Agreement Agreement is made and entered into as of ________________, 2018 Effective DateParties , a ____________ corporation with its principal office at Customer and SigmaFlow LLC, a Delaware limited liability company with its principal office at 2600 North Dallas Parkway, Frisco, Texas 75034 SigmaFlow. In consideration of the mutual promises and agreements contained herein, the parties hereto also agree as follows: 1. Definitions. 1.1. "Agreement" means this Master Software Subscription and Services Agreement, and includes any Exhibit and Order attached hereto, each of which is incorporated by reference herein, and all amendments, modifications, supplements and alterations effected in accordance with the terms of this Agreement. 1.2. Ancillary Services means services other than Maintenance Services purchased by Customer in respect of the Licensed Material, if any, and includes but is not limited to implementation services, training services and professional services. 1.3. "Confidential Information" means all non-public or proprietary information treated as confidential by a Party, including all: (a) information concerning a Party's past, present and future business affairs including finances, products, services, organizational structure, internal practices, forecasts and sales; (b) unpatented inventions, ideas, methods and discoveries, trade secrets, know-how and other confidential intellectual property; (c) designs, specifications, documentation, components, Licensed Material, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, protocols, processes, and other visual depictions, in whole or in part, of any of the foregoing; (d) any third-party confidential information included with, or incorporated in, any information provided by a Party; (e) customer information and pricing; (f) the terms of this Agreement; (g) results derived from or methodology employed by Customer in conducting any benchmark testing of the Licensed Material; and (h) all notes prepared by a Party or its representatives that contain, reflect or are derived from, in whole or in part, any of the foregoing. Except as required by applicable federal, state or local law or regulation, Confidential Information shall not include information that, at the time of disclosure: (i) is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Agreement by the receiving Party or any of its representatives; ii) is, or thereafter becomes, available to the receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; iii) was known by or in the possession of the receiving Party or its representatives, as established by documentary evidence, prior to being disclosed by or on behalf of the disclosing Party; or (iv) was or is independently developed by the receiving Party, as established by documentary evidence, without reference to or use of, in whole or in part, any of the disclosing Party's Confidential Information. 1.4. means the documentation provided by SigmaFlow with the Licensed Material that describes the functionality and the specifications of the Licensed Material. 1.5. "Error" means any error, defect or omission that (i) is discovered in the Licensed Material, (ii) is reproducible and (iii) prevents its operation substantially in accordance with the Documentation. 1.6. means the machine-readable object code version of (i) the software specified on each Order, whether embedded on disc, tape, internet download site or other media; (ii) all Updates for the Licensed Material that Customer is entitled to receive in connection with its receipt of Maintenance Services pursuant to Section 4 of this Agreement; (iii) the standard user manuals, technical 23 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 descriptions and other Documentation that SigmaFlow makes generally available to its licensees as part of the Licensed Material; (iv) other material and documentation delivered by SigmaFlow to Customer as work product with Ancillary Services to the extent that it is agreed in the applicable order to be included as Licensed Material hereunder; and (v) all copies of such Licensed Material as permitted to be made by Customer under this Agreement. 1.7. License Term Order pursuant to which Customer agreed to subscribe for the Licensed Material commencing on the effective date of the Order, together with all subsequent renewals and extensions thereof effected in accordance with the terms of this Agreement. 1.8. Maintenance Services means the technical support services provided by SigmaFlow pursuant to Section 4 hereof. 1.9. means Customer's purchase order hereunder, including all terms and conditions of this acceptance, including but not limited to the Order included as Exhibit 1 hereto and incorporated by reference herein. 1.10. Statement of Work or SOW means a written document that (a) specifically refers to this Agreement; (b) defines additional rights and obligations of the parties with respect to Ancillary Services, and (c) is signed by both parties. 1.11. Update means any revision, enhancement, improvement or modification to or programming fix for the Licensed Material which SigmaFlow makes generally available, incorporates into and makes a part of the Licensed Material and does not separately price or market. 2. License. 2.1. Grant. Subject to the terms and conditions of this Agreement and full compliance herewith SigmaFlow hereby grants Customer and Customer hereby accepts from SigmaFlow, a limited, non-exclusive and non-transferable right and license during the License Term to install the Licensed Material on computer hardware that is owned or operated by or on behalf of Customer, to access and use the Licensed Material for the benefit of Customer in the ordinary course of its internal business operations Permitted Use internally solely for the Permitted Use and within the scope of Section 2.2 below. and distribute copies of the Licensed Material shall extend to use by and distribution to third parties under written contract with Customer solely to provide outsourcing services to Customer for the Permitted Use, provided such third parties have agreed to abide by the terms of this Agreement, including the confidentiality provisions contained herein. Upon expiration of the License Term under an Order, all rights and licenses granted under this Agreement in respect of such Order shall terminate. 2.2. Enterprise License; Exception for Change In Control. Pursuant to the license grant in Section 2.1 above, Customer may install, operate and use the Licensed Material on any number of instances, physical servers or virtual servers physically located at any building or computing facilities owned or operated by Customer and may do so with any number of users (an ), but subject to the limitations and conditions stated in Section 14 below. 2.3. Use Restrictions, General. Licensee shall not, and shall not permit any representatives or third parties to, in any manner: (a) modify, alter, amend, fix, translate, enhance or otherwise create derivative works of the Licensed Material; (b) reverse engineer, disassemble, decompile, decode or adapt the Licensed Material, or otherwise attempt to derive or gain access to the source code of the Licensed Material, in whole or in part, except as and only to the extent this restriction is prohibited by law; (c) remove, disable, or otherwise create or implement any workaround to, any security features contained in the Licensed Material; (d) remove, delete or alter any trademarks, copyright notices or other Intellectual Property Rights notices of SigmaFlow or its licensors, if any, from the Licensed Material; (e) copy the Licensed Material, in whole or in part, except as expressly permitted above; (f) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make the Licensed Material available to any third party for any reason except as expressly permitted above; (g) use the Licensed Material in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, (h) use the Licensed Material in violation of any federal, state or local law, regulation or rule; (i) use the Licensed Material for purposes of competitive analysis of the Licensed Material, the development of a competing 24 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 software product or service or any other purpose that is to Licensor's commercial disadvantage; (j) use the Licensed Material for the internal business operations, internal use or benefit of a person other than Customer; (k) use the Licensed Material in any other manner or for any other purpose or application not expressly permitted by this Agreement. 2.4. Requirements for Copies. Customer shall reproduce all confidentiality and proprietary notices on each of the copies permitted hereunder and maintain an accurate record of the location of each of the copies. 2.5. Renewal of License. Unless otherwise set forth on the applicable Order, upon expiration of the License Term for the Licensed Material subscribed to under the applicable Order, all licenses for such Licensed Material granted under such Order shall automatically renew for an additional 12-month License Term and SigmaFlow will invoice Customer at the then-current subscription-based list price for such additional License Term, unless SigmaFlow or its authorized representatives are notified by Customer in writing at least sixty (60) days prior to the expiration of the current License Term that Customer will not renew the licenses for such Licensed Material for another License Term. 2.6. Other Services. All Maintenance Services and Ancillary Services purchased by Customer in respect of the Licensed Material shall be governed by this Agreement, together with the applicable Orders and SOWs delivered hereunder. Unless otherwise agreed by the parties in writing, acceptance of the Licensed Material shall not Services. 3. Ordering, Delivery and Payment Terms. 3.1. Ordering. All Licensed Material and Ancillary Services shall be ordered by an Order that may include the following information if applicable: (a) a detailed description of Licensed Material and any Services to be provided thereunder; (b) a commencement date and License Term for any license thereunder; (c) fees to be paid to SigmaFlow by Customer under the Order; (d) with respect to Ancillary Services, to the extent they apply, an implementation plan, timetable, project milestones, payment schedules, completion criteria, testing and acceptance procedures and criteria; and any other terms and conditions agreed upon by the parties in connection with such Licensed Material Ancillary Services. Each Order shall be governed by the terms of this Agreement and shall be binding upon the parties and shall be deemed to constitute a part of this Agreement as if fully set forth herein and all rights and obligations of the parties shall be deemed to apply to such Order as if fully set forth therein. 3.2. Delivery of Licensed Material. All Licensed Material shall be delivered by SigmaFlow to Customer via electronic delivery using a secure internet download site. Ownership of all licenses purchased hereunder and risk of loss for the related Licensed Material shall be deemed to have passed to Customer once SigmaFlow has made the Licensed Material available for download by Customer, notified Customer of the availability of the Licensed Material for download and provided Customer with all license keys necessary for the installation and operation of the Licensed Material. 3.3. Payment. Upon execution of this Agreement and, if applicable, of each Order by both parties, SigmaFlow shall deliver an invoice to Customer specifying the applicable license fees payable for the first year of the License Term, and any fees for Ancillary Services invoiceable under the Order. Each year thereafter during the License Term SigmaFlow shall invoice Customer for the amount payable for each remaining year of the License Term and for the renewal of the License Term. Customer shall pay all license fees and Ancillary Services fees specified therein invoice. All fees payable by Customer in respect of any Ancillary Services may be separately invoiced. provision of Ancillary Services, whether or not such Ancillary Services are separately invoiced. Fees are due upon receipt of invoice, and past due if not paid within 30 days of receipt of invoice. Any past due amount owing hereunder shall accrue interest at a rate equal to the lesser of (i) 15% per annum and (ii) the maximum rate permitted by law. 3.4. Suspension of the Services. In addition to any other rights and remedies granted to SigmaFlow herein or available at law or in equity, SigmaFlow may suspend performance of Maintenance Services and Ancillary Services if Customer is delinquent in payment of any amount. 3.5. Taxes. All payments referred to in this Agreement are exclusive of value added tax, sales tax and any other applicable taxes, duties or imposts which (with th income) shall also be payable by Customer in accordance with applicable law. 25 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 4. Maintenance Agreement. SigmaFlow does not warrant that the Licensed Material will operate error- free or may be used error-Licensed Material, SigmaFlow shall provide Maintenance Services for such Licensed Material during the License Term, in accordance with this Section 4 and the additional Maintenance Services terms and conditions contained in Exhibit 2 hereto. SigmaFlow or its authorized representative will provide Maintenance Services for the Licensed Material during each License Term. Maintenance Services are limited to the current major release of the Licensed Materials and the most recent prior major release, as indicated by the numbering of each release to the left of the decimal point of the release number. Maintenance Services includes problem determinations, reasonable problem resolutions, provisioning of software program temporary fixes and new releases, and Updates. Maintenance Services shall also include the additional Maintenance Services terms and conditions contained in Exhibit 2 hereto and any additional Maintenance Services terms set forth in writing in each applicable SOW, which are hereby incorporated herein by reference. 5. Proprietary Rights. Customer acknowledges and agrees that, as between Customer and SigmaFlow, SigmaFlow owns and shall continue to own all right, title, and interest in and to the Licensed Material, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. This Agreement does not grant Customer any ownership interest in or to the Licensed Material, but only a limited right and license to use the Licensed Material in accordance with the terms of this Agreement. Customer further acknowledges and agrees that the licenses granted hereunder shall expire upon expiration or termination of the License Term under the applicable Order and the restrictions applicable to Licensed Material will vary according to the type of license for Licensed Material purchased by Customer, as specified in the applicable Order. Customer shall not acquire, by virtue of this Agreement, any right or license other than as expressly provided herein. Customer shall not reproduce the Licensed Material or other confidential or proprietary information of SigmaFlow, except as provided in this Agreement. All proprietary rights in and to the Licensed Material, Updates, and derivatives, translations, modifications, adaptations, improvements, enhancements or developments thereof and all confidential or proprietary information of SigmaFlow, including without limitation, all rights under and with respect to patents, copyrights, trademarks and rights under the trade secret laws of any jurisdiction shall remain the sole property of SigmaFlow and/or its applicable licensors, whether recognized by or perfected under applicable local law. Customer shall promptly notify SigmaFlow of an becomes aware. 6. Limited Warranties. 6.1. Warranty. SigmaFlow warrants to Customer that it will provide Maintenance Services and Ancillary Services in a professional and workmanlike manner, and that it will devote resources adequate to meet its obligations to do so. SigmaFlow warrants to Customer that during the first thirty (30) days after delivery of each item of Licensed Material subscribed to by Customer under an Order or SOW (the ), such Licensed Material shall perform substantially as described in the Documentation. SigmaFlow does not warrant that (i) the Licensed Material will satisfy or may be customized to satisfy any of Customer's requirements or any other particular use or (ii) the use of the Licensed Material will be uninterrupted or error-free. Laws from time to time in force may imply warranties that cannot be excluded or can only be excluded to a limited extent. This Agreement shall be read and construed subject to any such statutory provisions. 6.2. Remedies. If (i) at any time during a License Term, the Licensed Material contains Errors which make the Licensed Material unable to perform substantially as described in the Documentation or (ii) during the Warranty Period, SigmaFlow breaches the warranty set forth in Section 6.1 above, then Customer shall promptly notify SigmaFlow of such Error or breach and SigmaFlow shall, in accordance with the Maintenance Service policies and procedures described in Exhibit 2, (A) use its commercially reasonable efforts to correct such Error or breach within thirty (30) days of notification or (B) provide Customer within thirty (30) days of notification with a plan acceptable to Customer for correcting such Error or breach. If such Error or breach is not corrected or if an acceptable plan for correcting such Error or breach is not established within such thirty (30) day period, SigmaFlow shall replace the defective Licensed Material or, 26 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 if not practicable, accept the return of the defective Licensed Material and refund to Customer the pro rata portion of the amount previously pre- obligations under this Section 6.2 shall be waived in the event such Error or breach is due to (I) any defect in or misconfiguration of the computer hardware upon which the Licensed Material is installed, (II) improper handling or use of the software media by Customer, or (III) an unauthorized alteration, revision or Customer acknowledges that this Section 6.2 sets forth Customer's sole and exclusive remedy, and SigmaFlow's and its authorized representati Error or failure of the Licensed Material to function properly. 6.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL WARRANTIES, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE LICENSED MATERIAL, MAINTENANCE SERVICES, AND ANCILLARY SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY SIGMAFLOW OR ITS AUTHORIZED REPRESENTATIVES, OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE) ARE HEREBY OVERRIDDEN AND DISCLAIMED. 7. Indemnification. 7.1. Indemnity. Subject to this Section 7 and Section 8 below, SigmaFlow agrees to indemnify, defend and hold Customer harmless from and against all claims, damages, losses, liabilities and expenses ird party's patent, copyright or trademark; provided, that (i) Customer promptly notifies SigmaFlow in writing no later than compromise or settle the claim, and provided further that no settlement intended to bind Customer shall be information, reasonable assistance, and authority to enable SigmaFlow to do so. 7.2. Alternative Remedy. If a claim described in Section 7.1 above may or has been asserted, Customer will permit SigmaFlow, at SigmaFlow's option and expense, to (i) procure the right to continue using the Licensed Material, (ii) replace or modify the Licensed Material to eliminate the infringement while providing functionally equivalent performance or (iii) accept the return of the Licensed Material and refund to Customer a pro rata portion of the amount actually paid to SigmaFlow or its authorized representative for such Licensed Material, for the unexpired portion of the License Term. 7.3. Limitation. SigmaFlow shall have no indemnity obligation to Customer hereunder if the violation or infringement claim results from (i) a correction or modification of the Licensed Material not provided by SigmaFlow or its authorized representative, (ii) the failure to promptly install an Update, (iii) the combination of the Licensed Material with other non-SigmaFlow software and (iv) continuing the allegedly infringing activity after receiving written notice of such infringement claim from SigmaFlow. 8. Liability Limitations. UNDER NO CIRCUMSTANCES WILL SIGMAFLOW OR ITS AUTHORIZED REPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS BY CUSTOMER OR ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, BREACH OF ANY INTELLECTUAL PROPERTY RIGHT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY INCURRED IN ANY ACTION OR PROCEEDING BY SIGMAFLOW OR ITS AUTHORIZED REPRESENTATIVE EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SPECIFIC LICENSED MATERIAL THAT DIRECTLY CAUSED THE DAMAGE. 9. Confidentiality. 27 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 9.1. Confidentiality. Each Party acknowledges and agrees that they each may gain access to or become familiar with the other Party's Confidential Information. Except as set forth in Section 9.2, each Party, as the receiving Party of the other Party's Confidential Information, shall (a) protect and safeguard the confidentiality of the disclosing Party's Confidential Information with at least the same degree of care as the receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to perform its obligations under this Agreement, or otherwise in any manner to the Disclosing Party's detriment; (c) not disclose any such Confidential Information to any person or entity, except to the receiving Party's Representatives who (i) need to know the Confidential Information to assist the receiving Party, or act on its behalf, in relation to the Purpose or to exercise its rights under the Agreement; (ii) are informed by the receiving Party of the confidential nature of the Confidential Information; and (iii) are subject to confidentiality duties or obligations to the receiving Party that are no less restrictive than the terms and conditions of this Agreement; and (d) be responsible for any breach of this Agreement caused by any of its Representatives. 9.2. Required Disclosure. The receiving Party may disclose the disclosing Party's Confidential Information pursuant to applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction (a "Legal Order"), provided that the receiving Party shall first provide the disclosing Party with: (a) prompt written notice of such requirement so that the disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (b) reasonable assistance, at the disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. 9.3. Disclosure. If an unauthorized use or disclosure of the dis ble to recover such Confidential Information and to prevent its subsequent unauthorized use or dissemination. 10. Termination. 10.1. For Convenience. Upon thirty (30) days prior written notice to SigmaFlow, Customer may terminate this Agreement without any right to refund (except as otherwise expressly set forth in Section 6.3 and 7.2) of any amounts paid, nor any release from or cancellation, waiver or novation of any amount payable, and all such amounts payable or promised to be paid through the License Term shall automatically accelerate and be immediately due and payable and shall survive such termination of this Agreement. 10.2. Breach. In the event a party breaches a material term of this Agreement, then the non-breaching party may terminate this Agreement upon thirty (30) days written notice of the breach to the breaching party, unless such breach has been cured prior to the end of the applicable notice period. 10.3. Insolvency, Etc. This Agreement will terminate automatically if Customer ceases to do business, becomes insolvent, goes or is put into receivership or liquidation, passes a resolution for its winding up (other than for the purpose of reconstruction or amalgamation) or for any of the foregoing, makes an arrangement for the benefit of its creditors, enters into bankruptcy, suspension of payments, moratorium, or suffers any similar action in consequence of debt. 10.4. On Termination. Upon the termination of this Agreement for any reason, all rights granted to Customer hereunder will cease, and Customer will promptly (i) purge the Licensed Material and any related e Licensed Material and all copies thereof and (iii) deliver to SigmaFlow an affidavit certifying that Customer has complied with these termination obligations. The provisions of Sections 5 and 7 through 12 shall survive the termination of this Agreement. Termination of this Agreement shall not give rise to any right of refund. 11. U.S. Export Restrictions. Customer acknowledges that the Licensed Material and all related technical information, documents and materials are subject to export controls under the U.S. Export Administration Regulations. Customer covenants and agrees to comply with all import and export control regulations of the United States with respect to the Licensed Material. Customer acknowledges that it may not re-export or divert the Licensed Material or any related technical information, document or material, or direct -5 countries 28 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 (currently, Cuba, Iran, North Korea, Sudan and Syria), including any list of T-5 countries. 12. Equitable Relief. The parties recognize that Sections 5, 9 and 11 are necessary for the protection of the business and goodwill of the parties and are considered by the parties to be reasonable for such purpose. The parties agree that any breach of such Sections would cause the other party substantial and irreparable damage and therefore, in the event of any such breach, in addition to other remedies which may be available, the non-breaching party shall have the right to seek specific performance and other injunctive and equitable relief in a court of law. 13. Upgrades. -current subscription-based list price at the time of purchase. Copies of subscription-based price list are available to the Customer upon request. If Customer adds additional Control Centers or Facilities, as defined by NERC to be covered by this agreement above the maximum number prescribed in the applicable Order, then Customer will immediately notify SigmaFlow and deliver an SOW to SigmaFlow specifying the number of additional Control Centers or Facilities, as defined by NERC as the case may be, and will pay SigmaFlow subscription-based price list in effect at such time. 14. Enforceability. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, void, invalid or illegal, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. 15. Entire Agreement. Customer acknowledges that it has read this Agreement, understands it and agrees to be bound by its terms. Customer and SigmaFlow further agree that this Agreement, together with all Orders and SOWs delivered in connection herewith, is the complete and exclusive statement of the agreement between Customer and SigmaFlow and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of this Agreement, including any shrink- wrap agreements, click-wrap agreements or demo or trial agreements which may accompany the Licensed Material or which may have been previously in force between the parties. This Agreement may not be amended, modified, supplemented or altered except by a written agreement that is signed by both parties. 16. Miscellaneous. 16.1. Assignment. Customer may not assign, delegate or otherwise transfer this Agreement or any ; provided, however, that in the event of any merger of Customer in which Customer is not the surviving entity, any sale of all or substantially all of the assets of Customer to an acquirer, or any assignment by operation of law (each, a ), Customer may assign or transfer this Agreement and all licenses granted under this Agreement to the applicable entity surviving the merger, acquiring substantially only if Customer notifies SigmaFlow in writing of such Change in Control within ten (10) business days of its consummation of such Change in Control. This Agreement shall be binding upon the parties hereto and shall inure to the benefit of the parties hereto and their respective permitted successors and assigns. 16.2. Force Majeure. Excepting only payment obligations under this Agreement, neither Party shall be in default hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to any cause beyond its reasonable control, including strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Customer equipment, loss and destruction of property or any other circumstances or causes beyond such Party's reasonable control. 16.3. Notices. All notices or approvals required or permitted under this Agreement must be given in writing and delivered to the appropriate party at the address set forth above in this Agreement or in any Order or SOW delivered in connection with this Agreement. 16.4. Waiver. The waiver of compliance with or breach of any term or condition of this Agreement or the failure of a party to exercise any right under this Agreement shall in no event constitute a waiver as to any other failure to comply or breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement. Unless otherwise specified herein, the rights and remedies of SigmaFlow set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to 29 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 it at law or in equity. 16.5. Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW RULES. SIGMAFLOW AND CUSTOMER HEREBY IRREVOCABLY AGREE ON BEHALF OF THEMSELVES THAT THE SOLE AND EXCLUSIVE JURISDICTION AND VENUE FOR ANY LITIGATION ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF SHALL BE IN AN APPROPRIATE FEDERAL COURT IN DALLAS COUNTY OR COLLIN COUNTY, TEXAS, OR AN APPROPRIATE STATE COURT LOCATED IN COLLIN COUNTY, TEXAS. 16.6. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby. 16.7. Rights and Remedies. Unless otherwise specified herein, the rights and remedies of SigmaFlow set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity. 16.8. Entire Agreement. This Agreement, together with all exhibits attached hereto, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each Party hereto. In the event of a conflict between the terms, provisions and conditions contained in the body of this Agreement and the terms, provisions and conditions contained in the Exhibits to this Agreement, the term, provisions and conditions contained in the body of this Agreement shall prevail. In no event shall the provisions of any purchase order or any associated documentation used by Customer, constitute a binding agreement between the Parties or serve to modify the provisions of this Agreement, regardless of any failure of SigmaFlow to object to any purchase order or associated documentation 16.9. Relationship. The Parties are independent contractors. This Agreement is not intended to be nor shall it be construed as a joint venture, association, partnership or other form of business organization or agency relationship. 16.10. Headings. Headings used in this Agreement are for reference purposes only and shall not be used to modify the meaning of the terms and conditions of this Agreement. 16.11. Counterpart. This Agreement may be executed in counterparts, all of which shall constitute one single agreement between the parties hereto. 16.12. Employee Solicitation. In consideration of the mutual covenants contained herein, including the rights and licenses granted to Customer herein, the parties hereto do hereby agree that for a period of two ySigmaFlow or its authorized representative, Customer shall not solicit, induce, hire, engage, or attempt to hire or engage any employee of SigmaFlow, or in any other way interfere with SigmaFlow with any of its employees, nor will Customer hire or engage or attempt to hire or engage any individual who was an employee of SigmaFlow at any time during such two-year period. \[Signature Page Follows\] 30 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 I N W ITNESS W HEREOF, SigmaFlow and Customer have caused this Agreement to be executed by their duly authorized representatives identified below. S IGMAFLOW LLC \[CUSTOMER NAME\] Authorized Signature Authorized Signature Printed Name Printed Name Title Title Date Date 31 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT Exhibit 1 Subscription Order for Enterprise License This Order Software Subscription and Services Agreement Agreement to which it is attached and is made and entered into as of the Effective Date by and between the Customer and SigmaFlow. 1. Definitions. Capitalized terms shall have the meanings given them in the Agreement, except if specifically defined in this Order they shall have the meaning given them in this Order. 2. Order of Enterprise License. Customer hereby purchases and agrees to pay for an Enterprise License to the Licensed Material described in the next paragraph. 3. Licensed Material Specification. SigmaFlow NERC CIP Compliance Manager The above Licensed Material covers: One (1) Medium Impact Utility *Facility Impact Rating as defined by NERC 4. License Term. One calendar year, commencing upon the Effective Date. 5. Price. The price for both the Enterprise Subscription License and the Maintenance Services during the License Term are included in the following license fees, which Customer shall pay in accordance with the Agreement. The license fee is $ 60,000.00 of which all is invoiceable upon the Effective Date and the same amount invoiceable thereafter on each subsequent anniversary of the Effective Date for the first four renewal years after which the renewal price will increase 5% per year. This price does not include fees for any Ancillary Services, which (if any) are covered in separate Statement of Work. 6. Incorporation by Reference. The terms and conditions of the Agreement are incorporated by reference into this Order, and fully made a part hereof. 7. Professional Services. Services included are 50 hours at $225/hour. The scope of the project includes initial system setup and loading basic documents and data, providing: 32 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 Exhibit E INSURANCE REQUIREMENTS AND Upon contract execution, all insurance requirements shall become contractual obligations, which the successful contractor shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. Contractor shall file with the Purchasing Department satisfactory certificates of insurance including any applicable addendum or endorsements, containing the contract number and title of the project. Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time; however, Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted: Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A or better. Any deductibles or self-insured retentions shall be declared in the proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Liability policies shall be endorsed to provide the following: Name as Additional Insured the City of Denton, its Officials, Agents, Employees and volunteers. That such insurance is primary to any other insurance available to the Additional Insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. Provide a Waiver of Subrogation in favor of the City of Denton, its officials, agents, employees, and volunteers. Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. 33 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted: \[X\] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. Coverage B shall include personal injury. Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. 34 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 \[X\] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: any auto, or all owned hired and non-owned autos. \[X\] Workers Compensation Insurance Contractor shall purchase and maintain Workers Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers Compensation Commission (TWCC). \[ \] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be that carries the Contractor's liability insurance. Policy limits will be at least $500,000.00 combined bodily injury and property damage per occurrence with a $1,000,000.00 aggregate. \[ \] Fire Damage Legal Liability Insurance Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building. Limits of not less than each occurrence are required. \[ \] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. 35 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 \[ \] Builders' Risk Insurance Builders' Risk Insurance, on an All-Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. \[ \] Environmental Liability Insurance Environmental liability insurance for $1,000,000 to cover all hazards contemplated by this contract. \[ \] Riggers Insurance Said coverage may be d Installation Floater covering rigging contractors; or through ISO form IH 00 91 12 11, Said coverage shall mirror the limits provided by the CGL coverage \[ \] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside the premises, burglary of the premises, and employee fidelity. The employee fidelity including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than $ each occurrence are required. \[ \] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. 36 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 ATTACHMENT 1 \[X\] Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ("certificate")-A copy of a certificate of insurance, a certificate of authority to self-insure issued by the commission, or a coverage agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's/person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ("subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner- operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: 1. a certificate of coverage, prior to that person beginning work on the 37 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and 2. no later than seven days after receipt by the contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project. F. The contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. G. The contractor shall notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project. H. The contractor shall post on each project site a notice, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. I. The contractor shall contractually require each person with whom it contracts to provide services on a project, to: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on the project; and 38 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 b. a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 5. retain all required certificates of coverage on file for the duration of the project and for one year thereafter; 6. notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and 7. Contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self-insured, with the commission's Division of Self-Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. Th contract by the contractor which entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. 39 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 Exhibit F Certificate of Interested Parties Electronic Filing In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the Government Code. The law states that the City may not enter into this contract unless the Contractor submits a disclosure of interested parties (Form 1295) to the City at the time the Contractor submits the signed contract. The Texas Ethics Commission has adopted rules requiring the business entity to file Form 1295 electronically with the Commission. Contractor will be required to furnish a Certificate of Interest Parties before the contract is awarded, in accordance with Government Code 2252.908. The contractor shall: 1. Log onto the State Ethics Commission Website at : https://www.ethics.state.tx.us/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. Complete and sign the Form 1295 6. Email the form to purchasing@cityofdenton.com with the contract number in the subject line. (EX: Contract 1234 Form 1295) The City must acknowledge the receipt of the filed Form 1295 not later than the 30th day after Council award. Once a Form 1295 is acknowledged, it will be posted to the Texas Ethics 40 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 Exhibit G RFP 6704 - Pricing Sheet for SUPPLY of DIGITAL NERC COMPLIANCE SOLUTION SigmaFlow, LLC CƩźƭĭƚͲ Proposal Pricing: EST. ANNUAL QTY UOMUnit Price Extended Price Item # Product Description SECTION A- Year 1 Annual *includes initial fee for 1EA/ƚƒƦƌźğƓĭĻ {ƚŅƷǞğƩĻ ğƭ {ĻƩǝźĭĻ υ ЏЉͲЉЉЉ͵ЉЉυ ЏЉͲЉЉЉ͵ЉЉ SECTION B- Year 2-5 Annual/Monthly recurring fees YR21EA/ƚƒƦƌźğƓĭĻ {ƚŅƷǞğƩĻ ğƭ {ĻƩǝźĭĻ υ ЏЉͲЉЉЉ͵ЉЉυ ЏЉͲЉЉЉ͵ЉЉ YR31EA/ƚƒƦƌźğƓĭĻ {ƚŅƷǞğƩĻ ğƭ {ĻƩǝźĭĻ υ ЏЉͲЉЉЉ͵ЉЉυ ЏЉͲЉЉЉ͵ЉЉ YR41EA/ƚƒƦƌźğƓĭĻ {ƚŅƷǞğƩĻ ğƭ {ĻƩǝźĭĻ υ ЏЉͲЉЉЉ͵ЉЉυ ЏЉͲЉЉЉ͵ЉЉ YR51EA/ƚƒƦƌźğƓĭĻ {ƚŅƷǞğƩĻ ğƭ {ĻƩǝźĭĻ υ ЏЉͲЉЉЉ͵ЉЉυ ЏЉͲЉЉЉ͵ЉЉ SECTION C- Initial Fee for Users Ϋ{źŭƒğCƌƚǞ ƌźĭĻƓƭĻ źƭ ŅƚƩ ǒƓƌźƒźƷĻķ ǒƭĻƩƭ SECTION D- Implementation Services 1EA IƚǒƩƌǤ ŅĻĻƭ ŅƚƩ źƒƦƌĻƒĻƓƷğƷźƚƓ υ ЊЊͲЋЎЉ͵ЉЉυ ЊЊͲЋЎЉ͵ЉЉ ΫwĻŅĻƩ Ʒƚ {ĭƚƦĻ ƚŅ ƚƩƉ ŅƚƩ 5ĻƭĭƩźƦƷźƚƓ ƚŅ tŷğƭĻ Њ tƩƚƆĻĭƷ SECTION E- Optional Consulting Service 1EA IƚǒƩƌǤ ŅĻĻƭ ŅƚƩ ƚƦƷźƚƓğƌ ƩĻƌğƷĻķ ĭƚƓƭǒƌğƷźƚƓ υЋЋЎΉŷƩ Total Five Year Cost υ ЌЊЊͲЋЎЉ͵ЉЉ Contract Total$311,250.00 DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 Exhibit House Bill 89 - Government Code 2270 VERIFICATION I, _______________________________________________, the undersigned representative of ______________________________Company or Business name (hereafter referred to as company), being an adult over the age of eighteen (18) years of age, verify that the company named-above, under the provisions of Subtitle F, Title 10, Government Code Chapter 2270: 1. Does not boycott Israel currently; and 2. Will not boycott Israel during the term of the contract the above-named Company, business or individual with City of Denton. Pursuant to Section 2270.001, Texas Government Code: 1. with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory, but does not include an action made for ordinary business purposes; and 2. -profit sole proprietorship, organization, association, corporation, partnership, joint venture, limited partnership, limited liability partnership, or any limited liability company, including a wholly owned subsidiary, majority-owned subsidiary, parent company or affiliate of those entities or business associations that exist to make a profit. ___________________________________ Name of Company Representative (Print) ________________________________ Signature of Company Representative _________________________________ Date DocuSign Envelope ID: 68DA9D5F-17F1-4291-88E1-D07A3F88E9C4 Exhibit Senate Bill 252 -Government Code 2252 CERTIFICATION I, ______________________________________________, the undersigned representative of ________________________________________________ (Company or business name) being an adult over the age of eighteen (18) years of age, pursuant to Texas Government Code, Chapter 2252, Section 2252.152 and Section 2252.153, certify that the company named above is not listed on the website of the Comptroller of the State of Texas concerning the listing of companies that are identified under Section 806.051, Section 807.051 or Section 2253.153. I further certify that should the above-named company enter into a contract that is on said listing of companies on the website of the Comptroller of the State of Texas which do business with Iran, Sudan or any Foreign Terrorist Management Department. ___________________________________ Name of Company Representative (Print) ________________________________ Signature of Company Representative _________________________________ Date Certificate Of Completion Envelope Id: 68DA9D5F17F1429188E1D07A3F88E9C4Status: Completed Subject: City Council Docusign Item - 6704 NERC Compliance Software Solution Source Envelope: Document Pages: 44Signatures: 9Envelope Originator: Certificate Pages: 6Initials: 0Jamie Cogdell AutoNav: Enabled901B Texas Street EnvelopeId Stamping: EnabledDenton, TX 76209 Time Zone: (UTC-06:00) Central Time (US & Canada)Jamie.Cogdell@cityofdenton.com IP Address: 129.120.6.150 Record Tracking Status: OriginalHolder: Jamie CogdellLocation: DocuSign 8/27/2018 12:45:21 PM Jamie.Cogdell@cityofdenton.com Signer EventsSignatureTimestamp Jamie CogdellSent: 8/27/2018 12:50:43 PM Completed jamie.cogdell@cityofdenton.comViewed: 8/27/2018 12:50:51 PM Senior BuyerSigned: 8/27/2018 12:51:44 PM Using IP Address: 129.120.6.150 City Of Denton Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jim JanickiSent: 8/27/2018 12:51:46 PM jjanicki@sigmaflow.comViewed: 8/27/2018 12:53:54 PM CEOSigned: 8/27/2018 12:55:27 PM SigmaFlow LLC Signature Adoption: Pre-selected Style Security Level: Email, Account Authentication Using IP Address: 65.36.36.76 (None) Electronic Record and Signature Disclosure: Accepted: 8/27/2018 12:53:54 PM ID: 293bdad9-665e-4342-96e0-f117c948b573 George MorrowSent: 8/27/2018 12:55:31 PM george.morrow@cityofdenton.comViewed: 8/27/2018 1:57:11 PM DME General ManagerSigned: 8/27/2018 1:57:28 PM Security Level: Email, Account Authentication Signature Adoption: Pre-selected Style (None) Using IP Address: 129.120.6.150 Electronic Record and Signature Disclosure: Accepted: 8/27/2018 1:57:11 PM ID: 891b43dc-392d-4dfe-9ca6-8738c34d774e Mack ReinwandSent: 8/27/2018 1:57:31 PM mack.reinwand@cityofdenton.comViewed: 8/31/2018 3:12:26 PM City of DentonSigned: 8/31/2018 3:14:04 PM Security Level: Email, Account Authentication Signature Adoption: Pre-selected Style (None) Using IP Address: 129.120.6.150 Electronic Record and Signature Disclosure: Not Offered via DocuSign Signer EventsSignatureTimestamp Tabitha MillsopSent: 8/31/2018 3:14:08 PM Completed tabitha.millsop@cityofdenton.comViewed: 9/19/2018 8:49:15 AM City of DentonSigned: 9/19/2018 8:52:41 AM Using IP Address: 129.120.6.150 Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Todd HilemanSent: 9/19/2018 8:52:46 AM todd.hileman@cityofdenton.comViewed: 9/19/2018 8:55:43 AM City ManagerSigned: 9/19/2018 8:55:53 AM City of Denton Signature Adoption: Pre-selected Style Security Level: Email, Account Authentication Using IP Address: 129.120.6.150 (None) Electronic Record and Signature Disclosure: Accepted: 7/25/2017 11:02:14 AM ID: 57619fbf-2aec-4b1f-805d-6bd7d9966f21 Jennifer WaltersSent: 9/19/2018 8:55:58 AM jennifer.walters@cityofdenton.comViewed: 9/20/2018 9:26:59 AM City SecretarySigned: 9/20/2018 9:27:48 AM City of Denton Signature Adoption: Pre-selected Style Security Level: Email, Account Authentication Using IP Address: 129.120.6.150 (None) 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 Betsy WilliamsSent: 8/27/2018 12:51:46 PM bwilliams@sigmaflow.com Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Sherri ThurmanSent: 8/27/2018 1:57:31 PM sherri.thurman@cityofdenton.comViewed: 9/5/2018 1:01:29 PM City of Denton Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Carbon Copy EventsStatusTimestamp Jane RichardsonSent: 9/19/2018 8:52:45 AM jane.richardson@cityofdenton.comViewed: 9/20/2018 8:51:05 AM Assistant City Secretary City of Denton Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jennifer BridgesSent: 9/20/2018 9:27:52 AM jennifer.bridges@cityofdenton.comViewed: 9/25/2018 11:29:11 AM Procurement Assistant City of Denton Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jane RichardsonSent: 9/20/2018 9:27:53 AM jane.richardson@cityofdenton.comViewed: 10/25/2018 12:45:42 PM Assistant City Secretary City of Denton Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Smith DaySent: 9/20/2018 9:27:55 AM smith.day@cityofdenton.comViewed: 9/20/2018 9:58:35 AM Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary EventsSignatureTimestamp Envelope Summary EventsStatusTimestamps Envelope SentHashed/Encrypted9/20/2018 9:27:55 AM Certified DeliveredSecurity Checked9/20/2018 9:27:55 AM Signing CompleteSecurity Checked9/20/2018 9:27:55 AM CompletedSecurity Checked9/20/2018 9:27:55 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.