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21-414
ORDINANCE NO. 21-4 14 AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME-RULE MUNICPAL CORPORATION, AUTHORIZING THE CITY MANAGER, OR THEIR DESIGNEE. TO EXECUTE A CONTRACT WITH WARTSILA NORTH AMERICA, INC., FOR THE SUPPLY OF ROUTINE MAINTENANCE SUPPLIES AND SERVICES FOR THE DENTON ENERGY CENTER; PROVDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVDING AN EFFECTIVE DATE (IFB 7544 – AWARDED TO WARTSILA NORTH AMERICA, INC., FOR THREE (3) YEARS, WITH THE OPTION FOR TWO (2) ADDITIONAL ONE (1) YEAR EXTENSIONS, IN THE TOTAL FIVE (5) YEAR NOT-TO- EXCEED AMOUNT OF $3,448,184.00). WHEREAS, the City has solicited, received, and tabulated competitive bids for the purchase of necessary materials, equipment, supplies, or services in accordance with the procedures of state law and City ordinances; and WHEREAS, the City Manager, or a designated employee, has reviewed and recommended that the herein described bids are the lowest responsible bids for the materials, equipment, supplies, or services as shown in the “Bid Proposals” submitted therefore; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies, or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following competitive bids for the materials, equipment, supplies, or services, as described in the “Bid Invitations”, “Bid Proposals” or plans and specifications on file in the Office of the City’s Purchasing Agent filed according to the bid number assigned hereto, are hereby accepted and approved as being the lowest responsible bids: BID NUMBER VENDOR AMOUNT 7544 wartsila North America, Inc. $3,448, 184.00 SECTION 2. That the acceptance and approval of the above competitive bids shall not constitute a contract between the City and the person submitting the bid for such items and agrees to purchase the materials, equipment, supplies, or services in accordance with the terms, specifications, standards, quantities, and for the specified sums contained in the Bid Invitations, Bid Proposals, and related documents. SECTION 3. Should the City and the winning bidder(s) wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the bids, the City Manager, or their designated representative, is hereby authorized to execute a written contract, which shall be attached hereto, in accordance with the terms, conditions, specifications, standards, quantities, and specified sums contained in the Bid Proposal and related documents and to extend that contract as determined to be advantageous to the City of Denton. SECTION 4. The City Council of the City of Denton, hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under this ordinance to the City Manager of the City of Denton, or their 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. This ordinance shall become effective immediately upon its passage and approval. second=hEy'"oiT'KX/{di"a"'e was "%hda:: the following vote k - L : Aye Nay Abstain Absent Mayor Gerard Hudspeth: Birdia Johnson, District 1 : Connie Baker, District 2: Jesse Davis, District 3 : John Ryan, District 4: Deb Armintor, At Large Place 5 : Paul Meltzer, At Large Place 6: \/ \r \/ \/ \/ \/ PASSED AND APPROVED this the asaw day of 202 1 mmA tH MAYOR ATTEST: ROSA RIOS, CITY SECRETARY b\tIll III/f/ h, _CaE.,apII=n APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY Digitally signed by Marcella Lunn DN: dc=com, dc=cityofdenton, dc=codad, ou=Department Users and Groups, ou=General Government, ou=Legal, cn=Marcella Lunn, TRmNTTFa61T:ttTnT@=TvTTmRTr[caIn Date: 2021.04.08 1 1 :2 1 :52 45'00' ,„ \XiwaKe DocuSign Envelope ID: 819014BA-F528-48B6-B67B-FIAE5CEFE498 DENTON Docusign City Council Transmittal Coversheet 7544I FB File Name 1 DEC MaIntenance Parts Purchasing Contact ch'lsta Chrlstlan City Council Target Date Apr11 20' 2021 Piggy Back Option Contract Expiration Ordinance NO Apr11 20 , 2026 21-414 DocuSign Envelope ID: 819014BA-F52848B6-B67B-FIAE5CEFE498 Master Service Agreement v 2.2 – May 2015 MSA No. 7544 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND WARTSILA NORTH AMERICA (Contract # 7544 ) THIS CONTRACT is made and entered into this date u4/zt;/zuz1 , 2021, by and between wARTSILA NORTH AMERICA, INC. a MARYLAND corporation, whose address is 1 1710 North Gessner Road, Suite A Houston, Texas 77064, hereinafter referred to as "Contractor," and the CITY OF DENTON, TEXAS, a Texas 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 Contractor shall provide products in accordance with the City’s IFB 7544 Denton Energy Center Equipment Maintenance Parts and Services a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written agreement and the following items which are attached hereto, or on file, and incorporated herein by reference: (a) (b) (C) (d) (e) (f) Special Terms and Conditions (Exhibit “A”); City of Denton’s IFB 7544 (Exhibit “B” on file at the office of the Purchasing Agent); Master Services Agreement (Exhibit “C”); Contractor’s Quotation (Exhibit “D”); Certificate of Interested Parties Electronic Filing (Exhibit “E”); Form CIQ – Conflict of Interest Questionnaire (Exhibit t'F") These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to the written agreement then to the contract documents in the order in which they are listed above. These documents shall be referred to collectively as “Contract Documents.” Prohibition on Contracts with Companies Boycotting Israel Contractor acknowledges that in accordance with Chapter 2270 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms “boycott Israel” and “company” shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this agreement, Contractor certiftes that Contractor’s signature provides written verifIcation to the City that Contractor: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the agreement. Failure to meet or maintain the requirements under this provision will be considered a material breach. Prohibition On Contracts With Companies Doing Business with Iran, Sudan, or a Foreign Terrorist Organization Section 2252 of the Texas Government Code restricts CITY from contracting with companies that do business with Iran, Sudan, or a foreign terrorist organization. By signing M is agreement, Contractor certifres that Contractor’s signature provides written verifIcation to the City that Contractor, pursuant to Chapter 2252, is not ineligible to enter into this agreement and will not become ineligible to receive payments under this agreement by doing business with Iran, Sudan, or a foreign terrorist organization . Failure to meet or maintain the requirements under this provision will be considered a material breach. 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. DocuSign Envelope ID: 819014BA-F528-48B6-B67B-FIAE5CEFE498 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written WARTSILA NORTH AMERICA, INC THIS AGREEMENT HAS BEEN BOTH REVIEWED AND APPROVED as to financial and operational obligations and business terms.AUTHORIZED SIGNATURE Antonlo Puente PRINTED NAME Printed Name: BYron J ' Gu1 drY Exec Mgr of ut11itles Title: Account Manager-Energy Serv1 ces TITLE E1 ect rI c DEPARTMENT +15046150808 PHONE NUMBER byron .guldry(@warts1 1 a . com EMAIL ADDRESS byron . gui dry@wartsl 1 a . com =R}IFICl{ETH£YI ION 2021-727691 ATTEST: ROSA RIOS, CITY SECRETARY CITY OF DENTON, TEXAS DocuSlgned by: BY: IRa# R&% DocuSigned by: SA,K A%q£9BY Sara Hensley SARA HENSLEY APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY CITY MANAGER DocuSign Envelope ID: 819014BA-F528-48B6-B67B-FIAE5CEFE498 Exhibit A Special Terms and Conditions 1. Total Contract Amount The contract total for products shall not exceed $3,448,184.00. Pricing shall be per Exhibit D attached. 2. Contract Terms The contract term will be three (3) year, effective from date of award. The City and the Contractor shall have the option to renew this contract for an additional two (2) one-year periods on mutual written-agreement. The Contract shall commence upon the issuance of a Notice of Award by the City of Denton and shall automatically renew each year, from the date of award by City Council. The Contractor’s request to not renew the contract must be submitted in writing to the Purchasing Manager at least 60 days prior to the contract renewal date for each year. At the sole option of the City of Denton, the Contract may be further extended as needed, not to exceed a total of six (6) months. Prices quoted do not include shipping/freight and duties/customs fees. These fees will be included in the Final Invoices and are payable by Purchaser. 3. Price Adjustment Prices quoted for the commodities or services described in Exhibit D attached hereto must be firm for a period of one (1) year from date of contract award. Any request for price adjustment must be based on the, U.S. department of Labor, Bureau of Labor Statistics, Producer Price Index (PPI) or the manufacturer published list price. The maximum escalation will not exceed +/- 8% for any individual year. The escalation will be determined annually at the renewal date. The price will be increased or decreased based upon the annual percentage change in the PPI or the percentage change in the manufacturers published price list. Should the PPI or manufacturers published price list change exceed a minimum threshold value of +/- 1%, then the stated eligible bid prices shall be adjusted in accordance with the percent change not to exceed the 8% limit per year. The supplier should provide documentation as percentage of each cost associated with the unit prices quoted for consideration. Request must be submitted in writing with supporting evidence for need of such increase to the Purchasing Manager at least sixty (60) days prior to Contract expiration of each year. Respondent must also provide supporting documentation as justification for the request. If no request is made, then it will be assumed that the current contract pricing will be in effect. The request can be sent by email to: purchasing@cityofdenton.com noting the solicitation number. 4. SHIPPING. DELIVERY. AND PACKAGING Identification of Shipments: In addition to the complete destination address, each delivery must be clearly marked with the purchase order number. Each shipment must be accompanied by a packing slip. Packaging and Labeling: All items shipped must be properly labeled, with weather resistant labeling, showing the brand name, package quantity, lot number (if applicable) and any other necessary identifying information. Special Delivery Requirements: City Department representatives may have specific, internal delivery rules and policies. These will be provided on each purchase order issued. The contractor(s) will be required to adhere to those requirements. Hours of Delivery: Delivery shall be made during the hours of 8:00 am to 3:00 pm (CST) unless prior approval for after-hours delivery has been obtained from the City. In the event of any approval by the City for after-hours delivery, Contractor may 3 DocuSign Envelope ID: 819014BA-F528-48B6-B67B-FIAE5CEFE498 not invoice any additional charges for that delivery. Contractor is encouraged to obtain City's hours of operation at time of order. Delivery Delays: If delay is foreseen, Contractor shall give written notice to the City and must keep CIty advised at all times of the status of order. All shipping dates provided by Contractor are estimates only, subject to availability of the applicable materials at the time of Purchase Order receipt. Restocking Fee: The city may request that a Contractor accept return of merchandise already delivered or that a Contractor cancel an order prior to delivery. If the return is required through no fault of the Contractor, the Contractor may request a reasonable restocking charge.. As a guideline, such charges shall not exceed 10%. DocuSign Envelope ID: 819014BA-F52848B6-B67B-FIAE5CEFE498 EXHIBIT C MASTER SERVICE AGREEMENT BETWEEN CITY OF DENTON AND WARTSILA NORTH AMERICA INC. MASTER SERVICES AGREEMENT THIS04[VWTH SERVICES A(?REEMENT (“Agreemenf’) is m.ade and entered into effective ?s .q --1 '-1 '-“ (“Effective Date”), by and between the City of Denton. (“Purchaser”), and wartsila North America Inc. (“Contractor") and, together with Purchaser, each a “Party” and together the “Parties”. Capitalized terms not otherwise defined have the meaning set forth in Exhibit A. COMMERCIAL TERMS AND CONDITIONS 1 SCOPE OF AGREEMENT/PURCHASE ORDERS FOR SERVICES A. Purchase Orders 1.Contractor shall provide Services to Purchaser during the Term of this Agreement, as agreed upon in each Purchase Order. Subject to Section 1.A.ii below, each request for Services shall be made by Purchaser in writing pursuant to a Purchase Order substantially similar to the form attached hereto as Exhibit B (“Purchase Order”). Contractor shall provide the Services set forth in the Purchase Order on such terms as shall be mutually agreed upon therein. Contractor’s acceptance of a Purchase Order shall be accomplished by Contractor’s written acknowledgment of such Purchase Order. All Purchase Orders, and Contractor’s performance of Services thereunder, are subject to the terms and conditions of this Agreement, including the General Terms and Conditions set forth in Exhibit A, which form an integral part of this Agreement. This Agreement shall control in the event of any ambiguity, conflict or inconsistency between this Agreement and the Purchase Order. 11.In the event of an emergency causing an immediate or imminent threat to Purchaser’s Facility, operations, or personnel, Purchaser may issue a verbal Purchase Order to Contractor if Contractor is willing or able to accept such an order. In such event, Purchaser shall promptly submit a written Purchase Order following the issuance of any such verbal Purchase Order. B. No Minimum Commitment. Nothing herein shall obligate Purchaser to request Services from Contractor and Contractor shall be compensated only for such Services as Contractor actually performs at the request of Purchaser via a Purchase Order. 2 COMPENSATION, PAYMENTS AND INVOICING Compensation. As compensation for the performance of the Services, Purchaser shall pay Contractor in accordance with the method of payment set forth in the applicable Purchase Order, which shall be either a lump sum method (“Lump Sum”), a time and materials method (“Time and Materials”) or an alternative mutually agreed upon method of payment set forth in the applicable Purchase Order as confirmed by the Contractor; provided that, in the event the Parties do not agree on the Lump Sum or alternative payment method, the Time and Materials method shall be used. Additionally, the Contractor may require certain portions or all of the compensation applicable for a particular Purchase Order to be paid in advance. Lump-Sum. If the compensation to Contractor is based on a Lump Sum payment method, then such Lump Sum amount shall be set forth in the applicable Purchase Order, as expressly confirmed in writing by the Contractor, describing the Services to be performed. 5 DocuSign Envelope ID: 819014BA-F52848B6-B67B-FIAE5CEFE498 Time and Materials. i. If the compensation to Contractor is based on a Time and Materials payment method, then Purchaser shall reimburse Contractor for the costs, fees and expenses incurred (collectively, “Fees and Expenses”), including but not limited to: a. The number of hours worked by Contractor, its employees and/or Subcontractors performing the Services multiplied by the applicable hourly rates; and b. Contractor’s reasonable expenses related to or attributable to the Services, such as reasonable travel and lodging expenses, supplies, reproduction and equipment rental, if necessary, for performance of the Services, mileage, Materials or such other charges as documented by the Contractor. ii. In the event the Parties have agreed to specific rates which apply to a Time and Materials payment method, such rates shall be set forth in the Rate Schedule attached as Exhibit D, which shall be updated by Contractor from time to time, at a minimum, once per calendar year. 3.INVOICING AND PAYMENT Invoicing. Contractor shall use reasonable efforts to submit invoices to Purchaser for Services performed on a monthly basis for all Services performed by Contractor during the prior month. Each invoice (i) shall identify the Purchase Order number and shall include sufficient line item detail for Purchaser to reasonably verify the basis of the charges, including the Services performed and applicable quantities and pricing of Materials, if separately priced and (ii) shall be accompanied by any supporting information or documentation reasonably requested by Purchaser. Invoices submitted for Fees and Expenses charged on an hourly basis shall be supported by documents, time sheets or such other reasonable documentation showing description, date and location of Services performed. Invoices submitted for Fees and Expenses charged as allowable expenses shall be supported by copies of the actual receipts forming the basis of reimbursement. Furthermore, Applicable Taxes or similar fees paid by Contractor on behalf of Purchaser shall be invoiced and supported by reasonable documentation. Payment. Payment terms are net thirty (30) days from Purchaser’s receipt of an invoice unless otherwise specified in the Purchase Order. In the event of a dispute regarding any invoice submitted by Contractor: (i) all amounts not disputed shall be paid by Purchaser as required by this Section 3, (ii) Purchaser shall promptly (but in any event within ten (10) days) notify Contractor in writing of any such dispute, and (iii) payment of any withheld and disputed amount shall be made within ten (10) days following resolution of the dispute. 4.INSURANCE During the Term of this Agreement, each of Contractor and Purchaser, at its sole cost and expense, shall procure and maintain insurance coverage with the coverages and conditions set forth in Exhibit C 5 TERM OF AGREEMENTrrERM OF PURCHASE ORDERS 6 DocuSign Envelope ID: 819014BA-F528-48B6-B67B-FIAE5CEFE498 During the Term of this Agreement, each contractor and Purchaser, at its sole cost and expense, shall procure and maintain insurance coverage with the coverages and conditions set forth in Exhibit C. 6 NOTICES Statements and reports required of Contractor hereunder shall be addressed to the individual designated on the particular Purchase Order. Invoices and Notices required of the Parties herein shall be addressed to the address set forth below or as otherwise provided in writing by one Party to the other Contractor wartsila North America Inc Attention: Scott Hannen 11710 N. Gessner Rd, Suite A, Houston, TX 77064 Facsimile No.: 281-233-6233 Phone No.: 281-233-6200 Purchaser Denton Energy Center Attention: Jason Brown 8161 Jim Christal Road Denton. TX 76207 Phone No.: 806-786-5572 7.ENTIRE AGREEMENT This Agreement, together with all Exhibits referenced herein and Purchase Orders executed by the Parties, constitutes the entire agreement between the Parties in relation to the Services and supersedes all prior agreements, understandings and commitments, whether oral or in writing, between the Parties. This Agreement may not be amended or modified in any manner except by a written document signed by both Parties that expressly amends this Agreement. All additional and/or conflicting terms and conditions that may appear on written documents including Purchase Orders, service order tickets, or invoices shall be null and void. 8. COUNTERPARTS This Agreement may be executed in counterparts, each of which shall constitute an original and together which shall constitute one and the same agreement. [REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK] DocuSign Envelope ID: 819014BA-F52848B6-B67B-FIAE5CEFE498 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized Representatives as of the date first written above. Accepted and Agreed to: Accepted and Agreed to: wartsila North America, Inc. City of Denton b7roh J. AlIII\t Printed Name: BYron 3 - GuldrY Title' Account Manager-Energy Serv1 ces Printed Name: Sara HensleY TItIe: INTERIM CITY MANAGER DocuSign Envelope ID: 819014BA-F52848B6-B67B-FIAE5CEFE498 EXHIBIT A – MASTER SERVICES AGREEMENT GENERAL TERMS AND CONDITIONS A. 1 .DEFINITIONS As used in this Agreement, the following terms and expressions shall have the following meanings: A "Affiliate" means any Person that directly or indirectly, through one or more intermediaries, controls or is controlled by or is under common control with the specified Person. For purposes of this definition, "control" shall mean ownership, directly or indirectly, of either the outstanding voting stock of the controlled Person or any other ownership interest in the controlled Person if such interest has, directly or indirectly, the power to direct or cause the direction of the management and policies of such relevant Person. B.“Applicable Law” means all applicable laws, regulations, ordinances, statutes, codes, regulations and other rules, as amended, of any international, federal, state, municipality, territory, parish, county, local government or political subdivision thereof or any other duly constituted public authority having jurisdiction over the Parties, the Facilities or the performance of the Services. C D E F. “Applicable Taxes” shall have the meaning set forth in Section A. 17.B of this Agreement. “Arbitration Rules” shall have the meaning set forth in Section A.20 of this Agreement. “Change Order” means a written authorization agreed to and/or signed by Purchaser and Contractor, regarding a deletion or modification to a Purchase Order. “Change of Law” means the coming into force or enacting after the Effective Date of (i) any new Applicable Law, (ii) any reform, modification or revocation of any Applicable Law or official interpretation of such Applicable Law, (iii) the adoption of a new official interpretation of any Applicable Law, or (iv) the issuance of resolutions or other administrative acts by a competent Governmental Authority which changes the nature, application or interpretation of the ApplicableLaw in force as of the Effective Date. G. "Claims" means all liabilities, judgments, costs (including court costs, reasonable attorneys’ fees and costs of investigation), losses, fines, penalties, expenses, damages, claims, suits, disputes and demands. H “Confidential Information” shall have the meaning set forth in Section A.15.A of this Agreement. I “Effective Date” shall have the meaning set forth in the first paragraph of this Agreement. J “Event of Default” shall have the meaning set forth in Section A. 11.A of Exhibit A. K.“External Cybersecurity Threat” means any threat, act, attack or other incident which negatively affects the reliable workings of the Contractor Provided Equipment, which originated outside of the physical site housing the Contractor Provided Equipment. L “Facilities” means the facilities, site and/or location where the Services are performed. M. “Fees and Expenses” shall have the meaning set forth in Section 2.C.i of this Agreement. A-1 DocuSign Envelope ID: 819014BA-F52848B6-B67B-FIAE5CEFE498 N.“Force Majeure” means any event or circumstance or combination of events and circumstances that is beyond the reasonable control of a Party and not due to its fault or negligence and could not have been avoided by the exercise of reasonable due diligence by the Party claiming to be excused; such events or circumstances include but are not limited to: drought, fire, severe storms, floods, tsunami, lightning, explosions, tornadoes, hurricanes, earthquakes, landslides and other acts of God or catastrophic natural events, war, riots, civil disturbances, terrorist attacks, revolts, insurrections, sabotage, strikes and other labor disputes, commercial embargoes, epidemics or quarantine restrictions, failure of a subcontractor to provide manpower, materials or goods caused by an event that qualifies as Force Majeure, Changes in Law, expropriation or confiscation, or action, inaction, or restraint of a Governmental Authority, including but not limited to denial or failure to grant required permits, licenses or authorizations. O. “Governmental Authority” means any international, federal, state or local government or other political subdivision thereof, or any governmental, quasi-governmental, judicial, public or statutory instrumentality, administrative agency, authority, body or other entity thereof having proper jurisdiction over the Facility or the Parties. P. “lndemnified Party” and “lndemnifvinq Party” shall have the respective meanings set forth in Section 9.C Q “Initial Term” shall have the meaning set forth in Section 5 of this Agreement. R.“Insolvency Event” means the Party (i) makes a general assignment for the benefit of its creditors; (ii) commences a proceeding under applicable bankruptcy law or other Applicable Law for the relief of debtors; (iii) files a petition seeking to take advantage of any other law relating to bankruptcy insolvency, reorganization, winding-up, or composition or readjustment of debts; (iv) the appointment of a trustee, custodian, conservator, receiver or similar official for it, or for a substantial part of its property; (v) becomes insolvent or is unable to pay its debts as they become due; or (vi) has instituted against it any involuntary bankruptcy, reorganization, debt arrangement, or other proceeding under any applicable bankruptcy, insolvency or other similar law for the relief of debtors or any dissolution or liquidation proceeding, which is not dismissed or stayed within forty-five (45) days after it is commenced. S.“Internal Cvbersecuritv Threat” means any threat, act, attack or other incident which negatively affects the reliable workings of the Contractor-Provided Equipment, which originated inside of the physical site housing the Contractor-Provided Equipment. T.“Improper Service Work” means any act or failure to act which contradicts the OEM-recommended maintenance, configuration and advisable operations resulting in detrimental reliability or increased possibility of failure. U V “Lump Sum” shall have the meaning set forth in Section 2.A of this Agreement. “Materials” means all materIals, parts and/or goods provided to Purchaser or incorporated into the Facility as part of the Services. W. “Notice” means all notices, consents, approvals, certifications, requests, demands and authorizations. X “Person” means an individual, corporation, limited liability company, partnership, joint venture, unincorporated organization or any other legal entity. A-2 DocuSign Envelope ID: 819014BA-F528-48B6-B67B-FIAE5CEFE498 Y “Purchase Order" shall have the meaning set forth in Section 1.A of this Agreement. Z “Renewal Term” shall have the meaning set forth in Section 5 of this Agreement. AA. “Representatives” shall mean a Party’s directors, officers, employees and agents. BB. “Services” means the service work to be performed by Contractor for Purchaser pursuant to a Purchase Order accepted by Contractor pursuant to this Agreement. CC. “Subcontractors” means a Person of any tier (including vendors and suppliers) who (i) performs any part of the Services and who is not a direct employee of Contractor or (ii) performs any services for Purchaser at the Facility (other than Contractor or its Subcontractors) and who is not a direct, full-time employee of Purchaser. DD. “Term” shall mean the Initial Term and any and all Renewal Terms. EE. “Time and Materials” shall have the meaning set forth in Section 2.A of this Agreement. A.2. CONTRACTOR’S GENERAL OBLIGATIONS A. General. Contractor shall furnish the Materials and/or Services pursuant to a Purchase Order if and when agreed to and acknowledged by Contractor. B.Schedulinq. Any agreed upon schedules or delivery or completion date(s) under this Agreement shall be considered estimates only unless Contractor and Purchaser otherwise agree to a firm date for completion or delivery and such date is specified in a Purchase Order agreed to by Contractor. Contractor shall use commercially reasonable efforts to perform the Services in accordance with the estimated completion date(s) set forth in the applicable Purchase Order, subject to the applicable provisions set forth in any Change Order. Contractor shall promptly notify Purchaser of events or circumstances that may, immediately or in the future, materially impede the proper and timely execution of any Services so that remedial action, as is appropriate under the circumstances, may be taken. C.Monitoring of Services. Contractor shall provide Purchaser and its representatives the right to inspect and monitor, upon reasonable Notice to Contractor and during regular business hours, Contractor’s on-site operations and facilities including tools, equipment, Materials, Services and inventory thereof. Such inspection and monitoring shall be at the cost of Purchaser, and Purchaser shall be responsible for any risks, liabilities incurred by Purchaser’s personnel during such inspection and monitoring. A.3.SHIPMENT AND DELIVERY OF MATERIALS A. Packaging, shipment and delivery of all Materials shall be in accordance with this Agreement, including the applicable Purchase Order(s). B All shipments of Materials shall be made All shipments of Materials shall be made DDP as defined under Incoterms® 2020 or as designated in the applicable Purchase Order and written acknowledgement by Contractor. All shipping dates provided by Contractor are estimates only subject to availability of the applicable Materials at the time of the Purchase Order. as defined under Incoterms® 2010 or as designated in the applicable Purchase Order and written acknowledgement by Contractor. All shipping dates provided by Contractor are estimates only subject to availability of the applicable Materials at the time of the Purchase Order. A-3 DocuSign Envelope ID: 819014BA-F52848B6-B67B-FIAE5CEFE498 C.Purchaser reserves the right (payment notwithstanding) to reject and return that portion of any shipment of Materials that may be defective or otherwise fail to comply with an applicable Purchase Order; provided that Notice of such rejection (describing in detail the reason for rejection) is provided to Contractor in writing within seventy-two (72) hours after delivery to Purchaser of such Materials. Purchaser shall be deemed to have accepted the Materials if no rejection Notice is provided to Contractor within such seventy-two (72) hour period. A.4.USE AND CONDITION OF THE FACILITIES AND EQUIPMENT Purchaser shall provide when necessary for Contractor, at no cost to Contractor, ancillary manpower equipped with appropriate tools (such as drills and hand lamps), heavy duty hoisting and transport facilities along with the necessary fuel, lubricants, water, electricity, compressed air and cleaning facilities for Contractor’s performance of the Services. Additionally, Purchaser shall advise Contractor of information concerning (i) the local laws and regulations applicable to the Services and (ii) any dangerous conditions or unusual risks that may be encountered in Purchaser’s Facility or in the use of any equipment or tools provided by Purchaser. A.5.SAFETY AND WORKPLACE POLICIES Purchaser shall be responsible for providing a healthy and safe work place and working environment for Contractor’s Representatives during performance of Services at any Facility controlled by Purchaser. The Parties shall comply with all safety requirements imposed by Applicable Law for the safety of Persons or property. To the extent Services are performed at a Facility controlled by Purchaser, Contractor shall comply with Purchaser’s applicable policies and procedures. A.6.WARRANTIES A General Warranties. Should the Services performed by Contractor be inadequate due to defective workmanship, Contractor shall re-perform such Services at no additional cost to Purchaser. Contractor shall also repair or, at its discretion, replace any defect in material or manufacturing in the Materials supplied by Contractor under this Agreement, provided that Purchaser notifies Contractor of such defect during the warranty period. When required by Contractor, such Material(s) shall be returned to Contractor, at Contractor’s cost, to the location provided by Contractor. Purchaser shall immediately take appropriate steps to prevent any defect from becoming more serious and to enable Contractor to repair such defect at no additional cost to Purchaser. Any warranty claims or requests must be made by Purchaser within fourteen (14) days from discovery during the warranty period. B.Replaced Materials. Contractor shall bear only the costs of repairing or replacing the defective Materials at the location designated by Contractor, as well as the cost to transport defective and repaired or replaced Materials between the location designated by Contractor and the Purchaser destination indicated on the applicable Purchase Order for such Materials. Materials that have been replaced shall become Contractor’s property. C Warranty Period. The warranty period for Services performed is limited to defects which appear within six (6) months from the performance of Services. The warranty period in respect of Services which have been re-performed under the warranty shall expire six (6) months following the last day on which the Services were re-performed under the warranty. The warranty period for the Materials begins at delivery and ends either (i) twelve (12) months upon installation or (ii) eighteen (18) months from the date of delivery to Purchaser, whichever occurs earlier. The warranty period for repaired or replaced Materials shall be six (6) months from the date of repair or replacement, or until the expiration date of the original warranty period, whichever occurs earlier, under the same Ad DocuSign Envelope ID: 819014BA-F52848B6-B67B-FIAE5CEFE498 terms, conditions and limitations of liability. Under no circumstances shall the warranty period for Services of Materials exceed thirty-six (36) months from the commencement of the original warranty period. D.Limits on Warranty. This warranty does not cover any defect due to or connected with: (i) any materials or components or design provided by Purchaser or on behalf of Purchaser; (ii) negligence or other improper acts or omissions of Purchaser, its employees or agents or other third parties; (iii) spare parts not supplied by Contractor; (iv) improper installation or alterations carried out without Contractor’s consent in writing; (v) parts, accessories or attachments that are not sold, supplied or expressly approved in writing by Contractor; or (vi) parts provided by Contractor that are warranted directly to Purchaser by another manufacturer. This warranty does not cover any defects that are caused by or connected with the design, normal wear and tear, the use of unsuitable material or consumables by Purchaser, fluctuation in the grid or with any use, maintenance, service or operation of the equipment or the spare parts or any part thereof which is not in conformity with Contractor’s or any of its Subcontractors’ manuals, instructions or specifications or that is otherwise not in accordance with normal industry practice. Contractor’s warranty obligation does not include any cranage, electricity, scaffolding, assisting work, docking, towage, underwater or diving work, demounting, mounting nor any travel and boarding costs of Contractor’s personnel or Representatives. If after Contractor’s warranty investigation it is found that Purchaser does not have a warranty claim within the scope of this Agreement, then Purchaser shall be responsible for all applicable costs and expenses for such inspection, repaired or replaced components or other services. E.THE WARRANTIES SET FORTH IN THIS SECTION ARE THE ONLY WARRANTIES BY CONTRACTOR APPLICABLE TO THE MATERIALS AND SERVICES PROVIDED HEREUNDER AND ARE EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTY EXPRESSED OR IMPLIED AGAINST DEFECTS, LATENT OR OTHERWISE. CONTRACTOR NEITHER ASSUMES, NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT, ANY OTHER WARRANTY OBLIGATION IN CONNECTION WITH THE MATERIALS OR SERVICES PROVIDED HEREUNDER OR ANY PART THEREOF. A.7. MECHANICS’ LIENS To the extent that Purchaser has paid all amounts due and owing to Contractor for the Services, Contractor shall keep the Facility and the Services free of all mechanic’s and materialmen’s liens and encumbrances with respect to Services provided under this Agreement. Title to any part, material, equipment, supplies, consumables or replacement and any other items furnished , provided or supplied by Contractor in performance of the Services shall pass to Purchaser only when payment in full has been received by Contractor. If such a lien or encumbrance is filed on the Facility or the Services despite Purchaser's payment of the applicable amounts due, Contractor will take whatever steps are necessary to have the lien or encumbrance satisfied, removed or otherwise discharged, and the Purchaser shall provide assistance as may be reasonably requested by Contractor. If Contractor fails to satisfy or remove the lien or encumbrance, Purchaser may satisfy, remove or discharge, by bond or otherwise, the lien or encumbrance, and Contractor shall be liable to Purchaser for all reasonable costs and expenses in connection with such satisfaction, removal or discharge. A.8.HAZARDOUS SUBSTANCE DISPOSITION Purchaser shall be responsible for all costs and expenses associated with any clean-up, removal, response or remediation of any and all hazardous substances or waste material required by any governmental authority or environmental law, except to the extent that the existence of such A-5 DocuSign Envelope ID: 819014BA-F52848B6-B67B-FIAE5CEFE498 contamination directly arises out of the gross negligence or willful misconduct of Contractor in the performance of the Services. Unless otherwise prohibited under Texas law, Purchaser shall indemnify and hold harmless Contractor from and against any and all Claims arising out of or resulting from any matter for which Purchaser is responsible pursuant to this Section A.8. A.9.INDEMNIFICATION A. Indemnification bv Contractor. Contractor shall indemnify and hold harmless Purchaser, its Representatives from and against any and all third party Claims of any kind or nature whatever to or in respect of Persons or property arising out of, resulting from or relating to the willful misconduct or gross negligence of Contractor in performing its obligations under this Agreement. B. Indemnification by Purchaser. Unless otherwise prohibited under Texas law, Purchaser shall indemnify and hold harmless Contractor, its Representatives, contractors, and suppliers, from and against any and all third party Claims of any kind or nature whatever to or in respect of Persons or property arising out of, resulting from, or relating to the performance by Contractor obligations under this Agreement and not resulting from or relating to the willful misconduct or gross negligence of Contractor. C. Notices. If any Party entitled to indemnification hereunder (the "lndemnified Party") intends to seek indemnification under this Section 9 from the other Party (the "lndemnifvinq Party") with respect to any Claim, the Indemnified Party shall give the Indemnifying Party Notice of such Claim upon the receipt of actual knowledge or information by the Indemnified Party of any possible Claim or of the commencement of such Claim, which period shall in no event be later than the lesser of (a) fifteen (15) business Days prior to the last Day for responding to such Claim or (b) one half of the period allowed for responding to such Claim. The Indemnifying Party shall have no liability under this Section 9 for any Claim for which such Notice is not provided, unless the failure to give such Notice does not prejudice the Indemnifying Party. The Indemnifying Party shall have the right to assume the defense of any such Claim with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided, however, that if the defendants in any such action include both the Indemnified Party and the Indemnifying Party and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the Indemnifying Party, the Indemnified Party shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Party. Should any Indemnified Party be entitled to indemnification under this Section 9 as a result of a Claim by a third Party, and should the Indemnifying Party fail to assume the defense of such Claim, the Indemnified Party may, at the expense of the Indemnifying Party, contest (or, with the prior consent of the Indemnifying Party, settle) such Claim. Except to the extent expressly provided herein, no Indemnified Party shall settle any Claim with respect to which it has sought or intends to seek indemnification pursuant to this Section 9 without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. D. Cybersecuritv Indemnification. Unless otherwise prohibited under Texas law, Purchaser shall defend, indemnify and hold harmless Contractor and Contractor’s parent and subsidiaries, affiliates, and their respective officers, directors, employees, agents, successors and permitted assigns (each, a “Contractor Indemnitee'’) from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees, the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, arising out of or resulting from any cybersecurity breach arising out of or resulting from Purchaser’s failure to comply with any of its obligations under this provision. For the A-6 DocuSign Envelope ID: 819014BA-F52848B6-B67B-FIAE5CEFE498 absence of doubt, Purchaser shall not be obligated to indemnify Contractor for Contractor’s actions or inactions with respect to Contractor’s cybersecurity obligations. A.10 LIMITATIONOFLIABILITY A. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL CONTRACTOR BE LIABLE, WHETHER IT BE IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT, TO THE PURCHASER FOR ANY AMOUNTS IN EXCESS OF FIFTY PERCENT (50%) OF THE AMOUNTS PAID BY PURCHASER TO CONTRACTOR UNDER THIS AGREEMENT DURING THE CONTRACT YEAR GIVING RISE TO THE LIABILITY OR INCIDENT GIVING RISE TO THE LIABILITY EXCEPT FOR CLAIMS COVERED BY CONTRACTOR’S POLICY OF INSURANCE SPECIFIED IN EXHIBIT C TO THIS AGREEMENT TO THE EXTENT OF THE LIMITS SO SPECIFIED. B. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS OR LOST REVENUES, TOWAGE CHARGES, POLLUTION REMEDIATION COSTS, COSTS FOR DOCKING, DIVING OR UNDERWATER WORK, COSTS FOR ADDITIONAL TESTS) ARISING OUT OF THE PERFORMANCE OR FAILURE TO PERFORM UNDER THISAGREEMENT OR THE SERVICES. A.11 CYBERSECURITY LIMITATION OF LIABILITY Contractor shall not be liable for any harm, injury or damages due to or arising in connection with: (1 ) software provided by Purchaser; (2) systems other than those provided by Contractor except if such other systems are modified by Contactor to interface or communicate with Contractor’s proprietary software; or (3) Improper Service Work, installation or alterations carried out by Purchaser. A.12. TERMINATION FOR DEFAULT A. Event of Default. Each of the following shall constitute an event of default under this Agreement (“Event of Default”): i. Either Party shall fail in any material respect to comply with, observe, or perform, or shall default in any material respect, in the performance of the Services or any of the terms and conditions of this Agreement or any Purchase Order, as applicable; 11.Either Party shall fail to make any payment when due hereunder; or iii. The occurrence of an Insolvency Event with respect to either Party. B Notice and Cure for Default. If an Event of Default as defined in Section A.11.A.i or Section A.11 .A.ii occurs, the non-defaulting Party shall provide the defaulting Party with Notice of the Event of Default. The defaulting Party shall have sixty (60) days following receipt of such Notice to cure the Event of Default, provided that if such Event of Default (other than a payment default) is not capable of being cured within such sixty (60) day period with the exercise of reasonable diligence, then such cure period shall be extended for an additional reasonable period of time, not to exceed A-7 DocuSign Envelope ID: 819014BA-F52848B6-B67B-FIAE5CEFE498 ninety (90) days, so long as the defaulting Party is exercising reasonable diligence to cure the default. C Remedies for Default. If the Notice was given by the non-defaulting Party as provided for in Section A.11.B and the Event of Default is not cured by the expiration of the corresponding period for cure or if an Event of Default as defined in Section A. 11.A.iii occurs, the non-defaulting Party, by Notice in writing to the defaulting Party may, in addition to any other rights and remedies available to it under this Agreement or at law or in equity, suspend or terminate this Agreement and/or any Purchase Order. In such event, the non-defaulting Party shall have no further obligation to the defaulting Party with respect to this Agreement or Purchase Order except with respect to Services already performed by Contractor in accordance with this Agreement. The defaulting Party shall remain liable to the non-defaulting Party for any and all Claims that the non-defaulting Party may have against the defaulting Party under this Agreement or the applicable Purchase Order. Further Contractor shall have the right to suspend any Services until the default is cured if Notice was given by Contractor to Purchaser as provided for in Section A. 11.B. A.13. TERMINATION FOR CONVENIENCE A.Termination for Convenience by Purchaser. Purchaser may terminate this Agreement and/or any Purchase Order at any time for its sole convenience by giving Contractor at least thirty (30) days prior written Notice to such effect. In the event of any such termination, Contractor shall promptly stop all terminated Services for such Purchase Order and/or for the Agreement unless notified by Purchaser in writing to the contrary. In the event of such termination for convenience, Purchaser shall pay Contractor that portion of the total consideration specified in the Purchase Order equal to the portion of the Services performed in accordance with this Agreement prior to the effective date of termination, less any payments made prior to such termination plus an amount equal to any and all applicable dernobilization costs incurred by Contractor. B.Termination for Convenience by Contractor. Contractor may terminate this Agreement in the event of a material change in Contractor’s business operations without cause effective thirty (30) days upon providing written Notice to Purchaser to such effect. Purchaser shall pay Contractor that portion of the total consideration specified in the Purchase Order equal to the portion of the Services performed in accordance with this Agreement prior to the effective date of termination, less any payments made prior to such termination. A.14. RIGHT TO AUDIT The Purchaser shall have the right to audit the Contractor’s invoices, work sheets, and time sheets related to work performed under this Agreement and/or the applicable Order(s). Contractor agrees to maintain such records for a period of two (2) years from the date such work was performed and to make the foregoing available to the Purchaser or Purchaser’s representatives at the Purchaser’s cost during normal business hours. Nothing herein shall oblige Contractor to disclose documents that will reveal neither the Contractor’s commercial costs nor information that is confidential or proprietary. A.15. FORCE MAJEURE A Neither Contractor nor Purchaser shall be liable for any failure or delay in performing its obligations hereunder, or for any loss or damage resulting therefrom, caused by or arising from an event of Force Majeure. B If the Services are interrupted by Force Majeure or for other reasons not attributable to Contractor, the costs for maintaining personnel at or near the Facility (including, without limitation, wages and A-8 DocuSign Envelope ID: 819014BA-F52848B6-B67B-FIAE5CEFE498 lodging) will be borne by Purchaser. Upon the occurrence of an even of Force Majeure, one Party shall notify the other Party of such occurrence and the anticipated delays in writing. If the interruption continues for more than one week, Contractor’s personnel may be returned to Contractor’s country. All expenses in relation to such withdrawal and/or subsequent return shall be borne by Purchaser. If the period of suspension exceeds one (1) month, either party may terminate the Agreement by three (3) days Notice in writing to the other party without prejudice to the rights of either Party up to the date of termination. In the case of such a termination, Purchaser’s payment of the applicable consideration and demobilization costs of Contractor shall be handled as a termination for convenience by Purchaser in accordance with Section A. 12.A, All reasonable additional costs incurred by Contractor as a consequence of the suspension and any subsequent resumption or completion of the Services shall be reimbursed by Purchaser. A.16. CONFIDENTIALITY A.Subject to the Texas Public Information Act, court order, or other law, each Party agrees, for itself and its Affiliates and their Representatives, to keep confidential and not make any unauthorized use of any confidential or proprietary information of the other Party disclosed to such Party in and during the performance of this Agreement, including documents, specifications, formulae, evaluations, methods, processes, technical descriptions, reports and other data, records and information (hereinafter the “Confidential Information”). B. Confidential Information shall be identified in writing by the disclosing Party, or if it is orally disclosed, the confidentiality thereof shall be confirmed in writing by the disclosing Party promptly after such oral disclosure. In any event, no disclosure shall be deemed to be Confidential Information if such information: (i)was known on a non-confidential basis by the recipient prior to the disclosure thereof by the disclosing Party; (ii)is, or shall become, other than by an act of the recipient, generally available to the public; (iii)is lawfully made available on a non-confidential basis to the recipient by a third Party in good faith; or (iv)was developed by the recipient without reference to or reliance upon Confidential Information received from the disclosing Party. C Each Party agrees that it will make available the other Party's Confidential Information only on a "need to know" basis to such Party's personnel and that all Persons to whom such Confidential Information is made available will be made aware of the strictly confidential nature of such Confidential Information. If either Party deems it necessary to disclose Confidential Information to any third party, such Party must receive written authorization from the other Party. D. The Confidential Information will remain the property of disclosing party. Nothing contained in this Agreement shall be construed as a right or license, express or implied, under any patent, copyright, trademark or intellectual property right, or application therefore, that is now or hereafter owned, applied for, or controlled by a disclosing party or any of its partners or Affiliates. A-9 DocuSign Envelope ID: 819014BA-F52848B6-B67B-FIAE5CEFE498 A.17. CLAIMS FORINFRINGEMENT A Contractor warrants that the Services will not infringe on any copyright, patent, trade secret or other proprietary interest of any third party. Contractor shall indemnify, defend and hold harmless the Purchaser Indemnified Parties against all Claims for any copyright, patent or other proprietary right infringement or misappropriation of a trade secret, arising out of or resulting from the performance of the Services delivered by Contractor under this Agreement. In the event Purchaser’s use of any Services is interrupted as a result of such a Claim, then Contractor shall, at its sole cost and expense and Purchaser’s option, either (i) procure for Purchaser the right to continue using the infringing Services as though it were non-infringing, or (ii) replace or modify the infringing portion of the Services to make such Services non-infringing without materially impairing their usefulness or performance. B.Intellectual property rights associated with the Services or any document or data provided by Contractor in connection therewith shall remain Contractor’s property. Unless otherwise prohibited under Texas law, Purchaser shall defend, indemnify and hold harmless Contractor against all Claims arising out of or resulting from any reuse, modification, reproduction or publication of Contractor’s intellectual property documents or data by Purchaser or one of its Subcontractors. A.18. TAXES A. General. Unless otherwise expressly set forth in the applicable Purchase Order, Contractor shall be fully responsible for all state and federal income taxes, pension benefits, social security taxes, employment, disability and for any other taxes (except sales, use, excise and gross receipts taxes addressed below) which may be due and owing by Contractor. B Applicable Taxes. Except for Contractor’s obligations under Section A.17.A, Purchaser will be responsible for all applicable taxes that arise in any jurisdiction, including, without limitation, value added, sales, use, gross receipts, excise or other taxes, fees, customs fees, duties, however designated, imposed on, incident to, or based upon the Services (collectively “Applicable Taxes”). If Purchaser is entitled to an exemption from any Applicable Taxes, Purchaser is responsible for presenting Contractor with a valid exemption certificate (in a form reasonably acceptable to Contractor). Unless otherwise prohibited under Texas law, Purchaser shall indemnify and hold Contractor harmless for any determination by a Government Authority (i) that Contractor be held liable for such taxes or (ii) regarding the validity or applicability of Purchaser’s tax exemptions. A.19. CHANGE ORDERS A Requests by Purchaser for any modifications or changes to Contractor’s Services, including but not limited to, additions, deletions or other revisions, must be issued in writing by an authorized representative of Purchaser. All such Change Order requests are subject to Contractor’s written acceptance, and may result in adjustments to fees, expenses and delivery schedules as mutually agreed in writing. B. The Parties acknowledged that Purchaser’s inability to fully comply with its responsibilities under this Agreement may impact the Contractor’s Services. Therefore, Purchaser’s failure to adhere to its obligations or interference with the Services shall entitle Contractor to a Change Order under this Section A.18 C. If Purchaser initiates any modifications to the Facilities not disclosed and reviewed with the Contractor prior to the Effective Date or if Contractor requests changes to this Agreement as made necessary by the happening of an event of Force Majeure or a Change of Law, Contractor shall be entitled to a Change Order. A-10 DocuSign Envelope ID: 819014BA-F528-48B6-B67B-FIAE5CEFE498 D. Contractor shall be entitled to suspend its performance for the particular Purchase Order pending the agreement of the Parties as to the relevant adjustments in scope, compensation and scheduling for any given Change Order. A.20. GOVERNING LAW This Agreement shall be governed and construed in accordance with the laws of the State of Texas without regard to its conflicts of law principles. A.21. ARBITRATION The Parties shall attempt to resolve any Claim arising out of or relating to this Agreement or the breach thereof by amicable negotiations. If the Parties are unable to resolve the Claim through such negotiations, then the issue shall be submitted to binding arbitration under the arbitration rules of the International Chamber of Commerce (the “Arbitration Rules”) then in effect. The arbitration shall be held in Houston, TX, and the proceedings shall be in the English language. If the amount of any asserted Claim or counterclaim does not exceed One Million Dollars ($1,000,000), the arbitration shall be conducted before a single arbitrator selected in accordance with the Arbitration Rules. Otherwise, the arbitration shall be conducted in accordance with the procedures of the Arbitration Rules before a panel of three (3) arbitrators, with each Party selecting one arbitrator and the third arbitrator, who shall be the chairman of the panel, being selected by the two Party-appointed arbitrators. The award rendered by the arbitration shall be final and judgment thereon may be entered by any court having jurisdiction thereof. A.22.COMPLIANCE WITH APPLICABLE LAW AND CHANGE OF LAW A.Purchaser and Contractor respectively agree to comply with all Applicable Laws which are now or may become applicable to Services performed under this Agreement or any applicable Purchase Order(s). In the event a Change of Law relating to this Agreement causes an increase of the fees for Services or other compensation due to the Contractor or other adjustments to Contractor’s Services, the Parties shall consult in good faith to reach an agreement as to either (i) the adjustment in compensation that should apply and/or (ii) the appropriate scope of Change Order associated with the Change of Law. B.Either Party shall provide prompt Notice to the other Party of the occurrence of a Change of Law. Such Notice shall include the notifying Party’s opinion as to the impact on its performance of its obligations under the Agreement. In case of disagreement between the Parties concerning the implication and consequences of the increase in the expenditures and/or costs because of a Change of Law, and an agreement cannot be reached between the Parties after thirty (30) days, either Party may terminate this Agreement with three (3) days prior written Notice. C. In the event any provision of this Agreement is inconsistent with or contrary to any Applicable Law, said provision shall be deemed to be modified to the extent required to comply with said law, and this Agreement as so modified, shall remain in full force and effect. A.23. RELATIONSHIP OF THE PARTIES Nothing contained in this Agreement shall be construed to constitute either Party as the partner, employee or agent of the other, and neither Party shall have the authority to bind the other in any respect, it being intended that each shall remain responsible for its own actions. Contractor is retained A-1 1 DocuSign Envelope ID: 819014BA-F52848B6-B67B-FIAE5CEFE498 only for the purposes and to the extent set forth in this Agreement and applicable Purchase Order(s), and Contractor’s relationship to Purchaser shall be that of an independent contractor. Contractor may retain any Subcontractor necessary to assist Contractor in the performance of the Services that is qualified and capable of performing its portion of the Services in accordance with this Agreement and its subcontract. The creation of any Subcontractor relationship by either Party shall not relieve either Party of any of its obligations under this Agreement and such Party who has the Subcontractor shall be responsible for the acts of such. A.24. MISCELLANEOUS A. Assiqnment. Neither Party shall assign this Agreement nor any of its rights or obligations under this Agreement without the prior written approval of the other Party and any attempt to make such an assignment shall be void. B No Waiver. No waiver by either Party of the performance of any provision, condition or requirement of this Agreement shall be deemed to be a waiver of, or in any manner release the other Party from, performance of any other provision, condition or requirement of this Agreement; nor shall it be deemed to be a waiver of, or in any manner release the other Party from future performance of the same provision, condition, or requirement; nor shall any delay or omission of a Party in exercising any right hereunder in any manner impair the exercise of any such right or any like right accruing to it thereafter. No waiver shall be effective unless expressly made in writing and signed by the Party to be charged with such waiver. C.Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable (i) such provision will be fully severable, (ii) this Agreement will be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part of this Agreement, and (iii) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid, or unenforceable provision or by its severance from this Agreement. D. No Publicity. Neither Party shall reveal any information concerning details of this Agreement to the press or a news-disseminating agency or use the details of this Agreement within any advertising, promotional material, publicity or other printed material without the other Party’s prior written approval in each instance. E Construction. The Parties acknowledge that this Agreement was the subject of fair negotiation between the Parties, and that neither Party shall be considered the “drafter'’ of this Agreement for the purpose of construing any of its terms and conditions. Article and Section headings and numbers are provided for convenience only, and shall not affect the construction or interpretation of this Agreement. References to “days'’ or a “day” shall mean a calendar day, unless otherwise stated F Notices. Any Notice provided for in this Agreement shall be duly given if delivered by (i) hand, (ii) registered or certified mail, return receipt requested, (iii) facsimile or (iv)by electronic mail, with acknowledged receipt by the other Party. The Parties may change their respective addresses for receipt of Notices upon reasonable advance notice to the other. Any Notice given by hand delivery or registered mail shall be deemed given at the time of delivery and facsimile transmission or electronic mail shall be deemed to be given, respectively, at the time of transmission or when electronic delivery has been confirmed. A.25. EQUIPMENT TECHNICAL DATA A-12 DocuSign Envelope ID: 819014BA-F52848B6-B67B-FIAE5CEFE498 Purchaser consents to the collection and use of information and to the ownership of the derived or incorporating works as set forth herein. Purchaser shall be responsible for providing equipment technical data through any reasonable means requested by Contractor, including internet-connected devices. The term "Equipment Technical Data" refers to all data relating to the technical operating parameters of any equipment delivered, including without limitation, all information that Contractor shall gather from sensors, instruments, monitors, or other industrial control or SCADA devices located at Purchaser’s sites or on the equipment delivered. Equipment Technical Data shall be transmitted to Contractor for purposes including, but not limited to, developing its products, solutions and services. Contractor, Contractor’s parent, subsidiaries and/or affiliates shall own all works, products, reports and improvements each may develop based upon, derived from, or incorporating Equipment Technical Data. Equipment Technical Data may be transferred (a) to Contractor’s parent, subsidiaries and/or affiliates and (b) to third parties who act for or on Contractor’s behalf for processing in accordance with the non-exclusive purpose(s) listed above or as may otherwise be lawfully processed. Equipment Technical Data may also be disclosed to a third party if Contractor is required to do so due to an applicable law, court order or governmental regulation, or if such disclosure is otherwise necessary in support of any criminal or other legal investigation. Contractor’s rights to use Equipment Technical Data shall survive the termination or expiration of this Agreement, any applicable warranty period and any other commercial contract between the Contractor and Purchaser. A.26. CYBERSECURITY PROTECTION Contractor shall deliver Contractor Provided Equipment together with its logic-bearing system components (e.g., hardware, firmware, and software hereafter referred to collectively as the “Critical Components”) free of any software virus and malware detectable by current standard industry best practices. Unless otherwise agreed, upon delivery of Contractor Provided Equipment, the Purchaser shall be solely responsible for any non-Contractor Provided Equipment system integrations and/or system security engineering. It is Purchaser’s sole responsibility to protect Critical Components from any External Cybersecurity Threat or Internal Cybersecurity Threat, including against hardware and software vulnerabilities. In recognition of the foregoing, Purchaser agrees and covenants that it shall use the degree of care appropriate to prevent unauthorized access, use, or hacking of the Critical Components provided in connection with Contractor Provided Equipment and shall do so in a manner that is no less rigorous than any recommendations provided by Contractor and accepted industry practices A-13 DocuSign Envelope ID: 819014BA-F528-48B6-B67B-FIAE5CEFE498 EXHIBIT B – MASTER SERVICES AGREEMENT SAMPLE PURCHASE ORDER FORM MSA No. [XXXI Purchase Order Purchaser: [Address] DUPLICATE via Print Purchase Order No. [XXXX] Date Payment Terms: Net 30 Dispatch Page: 1 Ship ViaFreight Terms Buyer Phone Currency: USD Contractor: [Address]Ship To: Ordering Purchaser Location <address> <city, state, zip> <country> Bill To: <address> <city, state, zip> <country>> Description : Line- Sch Item/Description Quantity UOM PO Price Extended Amt Estimated Due Date Total PO Amount This Purchase Order shall be governed by and incorporate by reference the Master Service Agreement No. [XXX]. All shipments, shipping papers, invoices, and correspondence shall identify the applicable Purchase Order number and MSA No. [XXX]. B-1 DocuSign Envelope ID: 819014BA-F528-48B6-B67B-FIAE5CEFE498 EXHIBIT C - MASTER SERVICES AGREEMENT INSURANCE REQUIREMENTS The Parties shall carry insurance (with reliable insurance companies) in the amounts set forth below. In each such policy, each such Party shall cause (i) all of its deductibles to be for its own account, (ii) the insurer to waive all rights of subrogation against the other Party and its Affiliates, (iii) the other Party to be listed as additional insured, and (iv) all such policies to be primary as to any other existing valid and collectible insurance of the other. If requested, each Party shall furnish the other Party with an executed Certificate of Insurance and/or such other reasonable assurances evidencing such insurance. 1. 2. Workers* Compensation insurance, disability benefit and any other similar employee benefit to the extent required by the Applicable Law in any jurisdiction in which the Services are to be performed. Commercial General Liability insurance for incidents or series of incidents covering the operations, premises and completed operations of a Party in the performance of the Agreement, with a combined single limit of $1,000,000 for bodily injury and property damage per occurrence and a limit of $1,000,000 in the general aggregate. 3. 4 Automobile Liability insurance extending to owned, non-owned and hired automobiles used by a Party in the performance of this Agreement, with a combined single limit of $1,000,000 per occurrence. Such other insurance as may from time to time be required by Applicable Law. D-1 DocuSign Envelope ID: 819014BA-F528-48B6-B67B-FIAE5CEFE498 EXHIBIT C – MASTER SERVICES AGREEMENT RATE SCHEDULE US Field Service Rates 2019C wAQTSILA W4rtsrb North Amen&a trIC SERVICE CHARGES . EnBbus, Propub im, EIeetrie31 & Autornzti I, Chnnt}sew Ihaitu .gl Hearty CharBes tn USD exetudirto VAT WeekdaY I Weekday/Performed by Overtirw A Qveltirne B OvertIme C Ho us Technidan 00 130 18t 221 IOtSean EnOheer 2t O 312 WORKBIG TaIE & OTHER RATES & FEES • Normal tx>urs Weekdays (Nbrtday - FrIday) up to eight {8) halls/day between 07:tH and 17:(X) Weekday I On+tian A• Overtine txnrs:Mattlay to Friday. all tx>un erceedrnB 8 hours Of hours between 17'CX) and 07:ex) Saturday and Sunday all hours All hours wtAed on Wirtsdi Ncxth Anlenca trIO. 2010 Qb=wed US PubIc Hci+days Weekend I Overt&ne 8 Honlay I Overtime C DaIly alkwann Invoud at the RYbuing raBes WOun USA: nwnty (870,C)o} USD per day C>ut9de USA' based on Fndgn Per Diem Rates per Lonbon aw>Nme to U.S. Department al State. Rd&r b th• hllawuW brIt naps./.i&apr3ls.st31e.mv.\#9p82FPper dIem,asp Irlwind as erBht (8) normal WOrkIng hours per day Four (4) Una at nwnnl rate ex jobs up to seven (7} days Othnwi%. eight lavo€ed at the max#num or HoN (8) normal wwt,no hours Wirt5la nhides we &woioed at one (SI,tX)} USD per mle lwoio:d at num31 rate br HtraI hours trwefInQ Expenses inwmd plus aId@naI adm+rus&abve fee aflen (10} pernm bwoices charged plus additiornl admtnistntive fee Of BReen {t 5} peroent S£Ajocl to munby of origin hx expenses and datty utes Standard wb are indrxJed in the above rates Spe,cut@d ux$s rwoeed ac€uxline Be 3ddrtbml tees de6ned n the pnpa6,at (8) 1 e e e • • • WaRIng / Stand.by Repc#tIng Papa36o05: H#eage cllarge- Trwelne hours: TravelnO easES. Extemal tnvoiaes: FaCIJOry Penulnel UtHa8bon be' D18tntutkn warts in Intl#let D He IS tit lois r From IS. 201 S. tIntS hztInt notS w&bai Born AneIa 1171D Hrh Ges6rH RaH. Sl& A FHtBHQ TX 77061 Tel U:1 281.23242eD /Fallo 28t.23b6233sue wxtbr3 aon SeNt>e WI-. 954-28s5892 ParR 24f7- 9slagbins (Eaal 20baB&0655 Hut) D-2 DocuSign Envelope ID: 819014BA-F528-48B6-B67B-FIAE5CEFE498 US Field Service Rates 2019 & WARTSILA W3rtsrla North AmerIca Inc wARTSILA NORTH AMERICA wc. 2019 OBSERVED PUBL+C HOLIDAYS SCHEDULE January t . February 18. Apd 18. May 27. Jay 4 - 5. September 2. November 28 . 28. Choemt>er 2+25 CANCELLATION POLICY Shoutd a ulstom+ find it neess&ry to mmR}eUly e3nael a job. bss than twenty+ur {24) haIrs prior to the schedu}ed dIspatch. and is not in a position to rn schedule the engineer withIn a one (t) week bme frame. W3rtsla reserves the right to invoiee a trip n3neenzt}on lee tH one thousand Bye hundred {$1500) USD. tf the engineer b en mute to jobsite. the ais Iam er WII also be invoiced kv all trawl ehUd expenses inwrred as a result of the job c3rne41atbn. RESERVATION OF ENGINEER Ttrls he will be applied when the customer specKbully requests to put an en8haer on -Reserved Status- {unavailable for other jobs or service assignments} awaang travel hstnrctions b aust£Imers work SIte A maximum of five {5} days is permISsible for reserving an engineer. When fwe (5) days have elapsed W£rtnla reserves the right to reassign the engineer for other sewiae assignments The fee for resewing an engineer will be invoiced at five hundred ($500) USD per day. LIABILITY NO LtABILrrY WHETHER DIRECT. INDIRECT. SPECIAL INCIDENTAL OR CONSEQUENTIAL. IS ASSUMED wrrH RESPECT TO THE INFORMATION CONTAINED HEREIN. THIS PUBLICATION IS CONF6DENTIAL AND IKTEHDED FOR INFORMATION PURPOSES ONLY. DIelrIDutIon wartBlla Intranet Dae 15,012tiIS, VI [ Fronr 1 S. 2019. untII hIttIteI noaH W&b88 Karai AmeBa t1710 Mirth G+$6ner RMI, SIXte A Hot6bn. TX TroN Tel. NO 231.23242tXI / Fax A. 281.23+6233 wa+ wat813 corn cr6tamersumor! &v;!re#$£bw31B 3,oars servbe 24,7: g34-28b58$2 PaM 24fT: SSh39 b1795 {E3a L 20bOB&0655 (West) D-3 DocuSign Envelope ID: 819014BA-F52848B6-B67B-FIAE5CEFE498 Contractor’s Proposal Exhibit D Wartsila North America, Inc. Total Price UnitLine # Description 1 IProduct Proposal Pricing CITY UOM 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Spark Plug O-Ring coil on plug extension O-Ring coil on plug extension Filter Element Filter Cartridge Filter 2376 2160 1080 120 120 1800 120 60 48 60 60 60 60 20 20 20 120 120 36 72 144 36 36 120 72 12 24 12 12 D-4 ea ea ea $185.66 $2.98 $3.69 $24.40 $16.66 $153.52 $1,451.92 $1,451.92 $259.44 $74.98 $749.76 $90.45 $296.33 $29.16 $42.84 $19.04 $ 1,053.24 $288.00 $78.55 $186.85 $963.98 $166.61 $ 1,987.47 $2,963.35 §601.00 $4,379.57 $3,951.13 $351.08 $642.65 ea ea ea eaGas Sensor Gas Sensor Filter Element Filter jcondensate Pump Tube with connector ea bx ea ea ea eaPump Filter Cartridge Gasket Gasket ea ea ea ea kt ea Nox Sensor Solenoid Valve Maintenance Kit Filter Element Filter Element Filter Element jselaing Kit Pilot Valve, Complete Peak Pressure Sensor Sealing Kit Frequency Converter Rotor Kit ea ea kt ay ea kt ea kt kt ea jspare Parts Set Ball DocuSign Envelope ID: 819014BA-F52848B6-B67B-FIAE5CEFE498 31 IStem 12 ea $246.35 Gas Admission Valve - This Gas Admission Valve also requires:1. New cable resistors - qty of 48 at $72.60 each = $3,484.802. Fixing Screws - qty of 96 at $2.98 each = 286.08 Electronic Unit ESM Main Control Unit Power Distrobution Module Gasket Exhaust Gas Bellow Exhaust Gas Bellow Exhaust Gas Bellow Gasket kit $7,818.96 $2,725.33 $4,331.96 $2,106.48 $115.44 $1,451.92 $2,177.88 $4,629.49 $324.90 12 12 1364 24 24 24 24 ea ea ea ea ea ea kt 36 SECTION A - SERVICE WORK HOURLY RATE: Regular Working Hours (7:00 AM - 5:00 PM / MONDAY THROUGH FRIDAY): SECTION B -EMERGENCY WORK HOURS 7544 - Pag 1 HR 1 HR $191.00 $234.00 D-5 DocuSign Envelope ID: 819014BA-F52848B6-B67B-FIAE5CEFE498 Exhibit E Certificate of Interested Parties Electronic Filing In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the Government Code. The law states that the City may not enter into this contract unless the Contractor submits a disclosure of interested parties (Form 1295) to the City at the time the Contractor submits the signed contract. The Texas Ethics Commission has adopted rules requiring the business entity to file Form 1295 electronically with the Commission. Contractor will be required to furnish a Certificate of Interest Parties before the contract is awarded, in accordance with Government Code 2252.908. The contractor shall : 1. 2 3 4 5 6. Log onto the State Ethics Commission https://www.ethics.state.tx.us/whatsnew/el£_info form 1295 .htm Register utilizing the tutorial provided by the State Print a copy of the completed Form 1295 Enter the Certificate Number on page 2 of this contract. Complete and sign the Form 1295 Email the form to pumhasing@cityofdenton.com with the contract number in the subject line. Contract 1234 – Form 1295) Website at (EX : The City must acknowledge the receipt of the filed Form 1295 not later than the 30th day after Council award. Once a Form 1295 is acknowledged, it will be posted to the Texas Ethics Commission’s website within seven business days. D-6 DocuSign Envelope ID: 819014BA-F528-48B6-B67B-FIAE5CEFE498 EXHIBIT F CONFLICT OF INTEREST QUESTIONNAIRE tiFv–idkilimHir–laabnImiibUBbamaiIEcTBRenTenTHIntx This questionnaire reflects changes made to the law by H.B, 23, 84th Leg., Regular Session FORM CIQ This questionnaire is being filed in accordance with Chapter 176, Local Government Code, by a vendor who has a business relationship as By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after akMaIFvmmr eIIIT eT B7 stadi17HM(tqDmBFv–ditnent Code, mmr]hiibMfaTiNHimradmrkiMmWToRe fill UeRr lira t )roc.a Fovmr nrirTtlTold E–6Hi–ieliM€ilfiifsection is a wartsila North America, Inc. a LJ Ch„k th, b,, if y,u ,„ filing ,„ „pd,t, t, , p,,Hou,ly fil,d questionnaire. (The law requires that you file an UFxlated completed questionnaire with the appropriate filing authority not later than the 7111 busines day after the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate g Name ofloca1 government omar about whom the information in tmd section is being disclosed. N/A Name of Officer This section1 (item 3 including subparts A, B, C & D), must be completed for each officer with whom the vendor has an employment or other business relationship A KUfe16= E ,., noeTaBit–6mtilnr3dTn E )\1 o lilaa6inRtTvlt©b–mFeTyITmwfvam kTrTc–6tB:bHiir1 Nr aviannrTri6Tme.Trim–0i61tra6r B Is the vendor receiving or likely to receive taxable income, other than investment income. from or at the direction of the local government officer named in this section AND the taxable income is not received from the local govemmental entity? LJ Yes 1 X IND i, th, fi1„ ,f thi, qu,sti„„„i„ „„p1,y,d by , „,po„ti,„ „ ,th„ b„,i.„, „,tity with „,W,t t, whi,h th, 1,cal government officer serves as an baicer or director, or holds an ownership of one percent or more? C D.Describe each employment or business and family relationship with the local government officer named in this section 4 5 have no Cur£lict of Interest to disclose.E] SH_& Sam Straka (Nov 25, 2020 14:22 EST Sam Straka 25/11/2020 Signature of vendor doing business with the governmental entity Date