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Contract 58385
City Secretary Contract No. 58385 FOR*TWORTH. VENDOR SERVICES AGREEMENT (Information Technology) This Vendor Services Agreement("Agreement")is made and entered into by and between the City of Fort Worth, a Texas home-rule municipal corporation(the"City" or"Client") and EMS Bruel &Kjaer Inc.dba Envirosuite Inc,a Canadian corporation("Vendor").City and Vendor are each individually referred to herein as a"party"and collectively referred to as the"parties."The term"Vendor"shall include Vendor, its officers,agents,employees,representatives,contractors or subcontractors.The term"City"shall include its officers,employees,agents,and representatives. CONTRACT DOCUMENTS: The Contract documents shall include the following: 1. This for Vendor Services Agreement; 2. Exhibit A—Statement Of Work Plus Any Amendments To The Statement Of Work; 3. Exhibit B—Payment Schedule; 4. Exhibit C—Network Access Agreement; and 5. Exhibit D—Signature Verification Form All Exhibits attached hereto are incorporated herein and made a part of this Agreement for all purposes. In the event of any conflict between the documents,the terms and conditions of this Agreement shall control. The term "Vendor" or "Contractor" shall include the Vendor or Contractor, and its officers, agents, employees,representatives, servants,contractors or subcontractors. The term"City"shall include its officers,employees,agents,and representatives. 1. Scope of Services. Vendor hereby agrees, with good faith and due diligence, to provide the City with an odor control monitoring platform. Specifically,Vendor will perform all duties outlined and described in the Statement Of Work, which is attached hereto as Exhibit "A" and incorporated herein for all purposes, and further referred to herein as the "Services." Vendor shall perform the Services in accordance with standards in the industry for the same or similar services.In addition,Vendor shall perform the Services in accordance with all applicable federal, state, and local laws,rules,and regulations. If there is any conflict between this Agreement and Exhibit A, the terms and conditions of this Agreement shall control. 2. Term. This Agreement shall commence on February 12,2022("Effective Date")and shall not expire unless terminated earlier in accordance with the provisions of this Agreement or otherwise extended by the parties. This Agreement shall auto-renew annually at the City's option, each a"Renewal Term." OFFICIAL RECORD CITY SECRETARY Vendor Services Agreement—Technology(Rev. 8/19) FT.WORTH, TX Page 1 of 19 City Secretary Contract No. 3. Compensation. The City shall pay Vendor an amount not to exceed Sixty-seven thousand Eight hundred Ninety-four dollars and zero cents($67,894.00)annually in accordance with the provisions of this Agreement and Exhibit `B," Payment Schedule, which is attached hereto and incorporated herein for all purposes. Vendor shall not perform any additional services for the City not specified by this Agreement unless the City requests and approves in writing the additional costs for such services.The City shall not be liable for any additional expenses of Vendor not specified by this Agreement unless the City first approves such expenses in writing. City agrees to pay all invoices of Vendor within thirty(30)days of receipt of such invoice.Vendor may charge interest on late payments not to exceed one percent(1%). 4. Termination. 4.1. Convenience.Either the City or Vendor may terminate this Agreement at any time and for any reason by providing the other party with 30 days written notice of termination. 4.2. Breach. If either party commits a material breach of this Agreement, the non- breaching Party must give written notice to the breaching party that describes the breach in reasonable detail. The breaching party must cure the breach ten(10)calendar days after receipt of notice from the non-breaching party,or other time frame as agreed to by the parties.If the breaching party fails to cure the breach within the stated period of time, the non-breaching party may, in its sole discretion, and without prejudice to any other right under this Agreement, law, or equity, immediately terminate this Agreement by giving written notice to the breaching party. 4.3. Fiscal Funding Out.In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder,the City will notify Vendor of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever,except as to the portions of the payments herein agreed upon for which funds have been appropriated. 4.4. Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the Expiration Date,the City shall pay Vendor for services actually rendered up to the effective date of termination and Vendor shall continue to provide the City with services requested by the City and in accordance with this Agreement up to the effective date of termination. Upon termination of this Agreement for any reason,Vendor shall provide the City with copies of all completed or partially completed documents prepared under this Agreement.In the event Vendor has received access to City information or data as a requirement to perform services hereunder, Vendor shall return all City provided data to the City in a machine readable format or other format deemed acceptable to the City. 5. Disclosure of Conflicts and Confidential Information. 5.1. Disclosure of Conflicts.Vendor hereby warrants to the City that Vendor has made full disclosure in writing of any existing or potential conflicts of interest related to Vendor's services under this Agreement.In the event that any conflicts of interest arise after the Effective Date of this Agreement,Vendor hereby agrees immediately to make full disclosure to the City in writing. 5.2. Confidential Information. The City acknowledges that Vendor may use products, materials, or methodologies proprietary to Vendor. The City agrees that Vendor's provision of services under this Agreement shall not be grounds for the City to have or obtain any rights in such proprietary products, materials, or methodologies unless the parties have executed a separate written agreement with respect thereto. Vendor, for itself and its officers, agents and employees, agrees that it shall treat all information provided to it by the City ("City Information") as Vendor Services Agreement—Technology(Rev. 8/19) Page 2 of 19 City Secretary Contract No. confidential and shall not disclose any such information to a third party without the prior written approval of the City. 5.3. Public Information Act. City is a government entity under the laws of the State of Texas and all documents held or maintained by City are subject to disclosure under the Texas Public Information Act.In the event there is a request for information marked Confidential or Proprietary, City shall promptly notify Seller. It will be the responsibility of Seller to submit reasons objecting to disclosure.A determination on whether such reasons are sufficient will not be decided by City, but by the Office of the Attorney General of the State of Texas or by a court of competent jurisdiction. 5.4. Unauthorized Access.Vendor shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way.Vendor shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised,in which event, Vendor shall, in good faith, use all commercially reasonable efforts to cooperate with the City in identifying what information has been accessed by unauthorized means and shall fully cooperate with the City to protect such information from further unauthorized disclosure. 6. Right to Audit. 6.1. Vendor agrees that the City shall, until the expiration of three(3)years after final payment under this Agreement, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the Vendor involving transactions relating to this Agreement at no additional cost to the City.Vendor agrees that the City shall have access during normal working hours to all necessary Vendor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Vendor not less than 10 days written notice of any intended audits. 6.2. Vendor further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall,until expiration of three(3) years after final payment of the subcontract,have access to and the right to examine at reasonable times any directly pertinent books,documents,papers and records of such subcontractor involving transactions related to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph.City shall give subcontractor not less than 10 days written notice of any intended audits. 7. Independent Contractor. It is expressly understood and agreed that Vendor shall operate as an independent contractor as to all rights and privileges granted herein, and not as agent,representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Vendor shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors and subcontractors.Vendor acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers,agents, servants and employees, and Vendor,its officers,agents,employees, servants, contractors and subcontractors. Vendor further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Vendor. It is further understood that the City shall in no way be considered a Co-employer or a Joint employer of Vendor or any officers, agents, servants, employees or subcontractors of Vendor. Neither Vendor, nor any officers, agents, servants, employees or subcontractors of Vendor shall be entitled to any employment benefits from the City. Vendor shall be Vendor Services Agreement—Technology(Rev. 8/19) Page 3 of 19 City Secretary Contract No. responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants, employees or subcontractors. 8. LIABILITY AND INDEMNIFICATION. 8.1. LIABILITY - VENDOR SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER,WHETHER REAL OR ASSERTED,TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF VENDOR,ITS OFFICERS,AGENTS, SERVANTS OR EMPLOYEES. 8.2. INDEMNIFICATION - VENDOR HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO VENDOR'S BUSINESS, AND ANY RESULTING LOST PROFITS) PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, AND DAMAGES FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT,TO THE EXTENT CAUSED BY THE ACTS OR OMISSIONS OF VENDOR, ITS OFFICERS, AGENTS, SUBCONTRACTORS, SERVANTS OR EMPLOYEES. 8.3. INTELLECTUAL PROPERTY INFRINGEMENT. 8.3.1. The Vendor warrants that all Deliverables, or any part thereof, furnished hereunder, including but not limited to: programs, documentation, software,analyses,applications,methods,ways,and processes(in this Section 8C each individually referred to as a"Deliverable" and collectively as the"Deliverables,")do not infringe upon or violate any patent,copyrights,trademarks,service marks,trade secrets, or any intellectual property rights or other third party proprietary rights,in the performance of services under this Agreement. 8.3.2. Vendor shall be liable and responsible for any and all claims made against the City for infringement of any patent,copyright,trademark,service mark, trade secret, or other intellectual property rights by the use of or supplying of any Deliverable(s)in the course of performance or completion of,or in any way connected with providing the services, or the City's continued use of the Deliverable(s) hereunder. 8.3.3. Vendor agrees to indemnify,defend,settle,or pay, at its own cost and expense, including the payment of attorney's fees, any claim or action against the City for infringement of any patent, copyright, trade mark, service mark, trade secret, or other intellectual property right arising from City's use of the Deliverable(s), or any part thereof, in accordance with this Agreement, it being understood that this agreement to indemnify, defend, settle or pay shall not apply if the City modifies or misuses the Deliverable(s). So long as Vendor bears the cost and expense of payment for claims or actions against the City pursuant to this section 8, Vendor shall have the right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such Vendor Services Agreement—Technology(Rev. 8/19) Page 4 of 19 City Secretary Contract No. claim; however, City shall have the right to fully participate in any and all such settlement, negotiations, or lawsuit as necessary to protect the City's interest, and City agrees to cooperate with Vendor in doing so. In the event City, for whatever reason, assumes the responsibility for payment of costs and expenses for any claim or action brought against the City for infringement arising under this Agreement, the City shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however,Vendor shall fully participate and cooperate with the City in defense of such claim or action. City agrees to give Vendor timely written notice of any such claim or action, with copies of all papers City may receive relating thereto. Notwithstanding the foregoing,the City's assumption of payment of costs or expenses shall not eliminate Vendor's duty to indemnify the City under this Agreement.If the Deliverable(s), or any part thereof,is held to infringe and the use thereof is enjoined or restrained or, if as a result of a settlement or compromise, such use is materially adversely restricted, Vendor shall, at its own expense and as City's sole remedy, either: (a) procure for City the right to continue to use the Deliverable(s); or (b) modify the Deliverable(s) to make them/it non-infringing, provided that such modification does not materially adversely affect City's authorized use of the Deliverable(s);or(c)replace the Deliverable(s)with equally suitable,compatible,and functionally equivalent non-infringing Deliverable(s)at no additional charge to City; or(d)if none of the foregoing alternatives is reasonably available to Vendor,terminate this Agreement, and refund all amounts paid to Vendor by the City, subsequent to which termination City may seek any and all remedies available to City under law. VENDOR'S OBLIGATIONS HEREUNDER SHALL BE SECURED BY THE REQUISITE INSURANCE COVERAGE AND AMOUNTS SET FORTH IN SECTION 10 OF THIS AGREEMENT. 9. Assignment and Subcontracting. 9.1. Vendor shall not assign or subcontract any of its duties,obligations or rights under this Agreement without the prior written consent of the City. If the City grants consent to an assignment, the assignee shall execute a written agreement with the City and the Vendor under which the assignee agrees to be bound by the duties and obligations of Vendor under this Agreement.The Vendor and assignee shall be jointly liable for all obligations under this Agreement prior to the assignment. If the City grants consent to a subcontract,the subcontractor shall execute a written agreement with the Vendor referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Vendor under this Agreement as such duties and obligations may apply. The Vendor shall provide the City with a fully executed copy of any such subcontract. 10. Insurance. 10.1. The Vendor shall carry the following insurance coverage with a company that is licensed to do business in Texas or otherwise approved by the City: 10.1.1. Commercial General Liability: 10.1.1.1. Combined limit of not less than $2,000,000 per occurrence; $4,000,000 aggregate; or 10.1.1.2. Combined limit of not less than $1,000,000 per Vendor Services Agreement—Technology(Rev. 8/19) Page 5 of 19 City Secretary Contract No. occurrence; $2,000,000 aggregate and Umbrella Coverage in the amount of $4,000,000. Umbrella policy shall contain a follow-form provision and shall include coverage for personal and advertising injury. 10.1.1.3. Defense costs shall be outside the limits of liability. 10.1.2. Automobile Liability Insurance covering any vehicle used in providing services under this Agreement, including owned, non-owned, or hired vehicles, with a combined limit of not less than $1,000,000 per occurrence. 10.1.3. Professional Liability(Errors & Omissions) in the amount of$1,000,000 per claim and$1,000,000 aggregate limit. 10.1.4. Statutory Workers' Compensation and Employers' Liability Insurance requirements per the amount required by statute. 10.1.5. Technology Liability(Errors&Omissions) 10.1.5.1. Combined limit of not less than $2,000,000 per occurrence; $4million aggregate or 10.1.5.2. Combined limit of not less than $1,000,000 per occurrence; $2,000,000 aggregate and Umbrella Coverage in the amount of $4,000,000. Umbrella policy shall contain a follow-form provision and shall include coverage for personal and advertising injury. The umbrella policy shall cover amounts for any claims not covered by the primary Technology Liability policy. Defense costs shall be outside the limits of liability. 10.1.5.3. Coverage shall include, but not be limited to, the following: 10.1.5.3.1. Failure to prevent unauthorized access; 10.1.5.3.2. Unauthorized disclosure of information; 10.1.5.3.3. Implantation of malicious code or computer virus; 10.1.5.3.4. Fraud, Dishonest or Intentional Acts with final adjudication language; 10.1.5.3.5. Intellectual Property Infringement coverage, specifically including coverage for intellectual property infringement claims and for indemnification and legal defense of any claims of intellectual property infringement, including infringement of patent, copyright, trade mark or trade secret, brought against the City for use of Deliverables, Software or Services provided by Vendor under this Agreement; 10.1.5.3.6. Technology coverage may be provided through an endorsement to the Commercial General Liability (CGL) policy, a Vendor Services Agreement—Technology(Rev. 8/19) Page 6 of 19 City Secretary Contract No. separate policy specific to Technology E&O, or an umbrella policy that picks up coverage after primary coverage is exhausted. Either is acceptable if coverage meets all other requirements. Technology coverage shall be written to indicate that legal costs and fees are considered outside of the policy limits and shall not erode limits of liability. Any deductible will be the sole responsibility of the Vendor and may not exceed$50,000 without the written approval of the City. Coverage shall be claims-made, with a retroactive or prior acts date that is on or before the effective date of this Agreement. Coverage shall be maintained for the duration of the contractual agreement and for two (2) years following completion of services provided. An annual certificate of insurance,or a full copy of the policy if requested, shall be submitted to the City to evidence coverage; and 10.1.5.3.7. Any other insurance as reasonably requested by City. 10.2. General Insurance Requirements: 10.2.1. All applicable policies shall name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents, and volunteers in respect to the contracted services. 10.2.2. The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery)in favor of the City of Fort Worth. 10.2.3. A minimum of Thirty (30) days' notice of cancellation or reduction in limits of coverage shall be provided to the City. Ten(10) days' notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. 10.2.4. The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A-VII in the current A.M.Best Key Rating Guide,or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. 10.2.5. Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. 10.2.6. Certificates of Insurance evidencing that the Vendor has obtained all required insurance shall be delivered to and approved by the City's Risk Management Division prior to execution of this Agreement. 11. Compliance with Laws,Ordinances,Rules and Regulations. Vendor agrees to comply with all applicable federal,state and local laws,ordinances,rules and regulations. If the City notifies Vendor of any violation of such laws, ordinances, rules or regulations, Vendor shall immediately desist from and correct the violation. 12. Non-Discrimination Covenant. Vendor, for itself, its personal representatives, assigns, Vendor Services Agreement—Technology(Rev. 8/19) Page 7 of 19 City Secretary Contract No. subcontractors and successors in interest,as part of the consideration herein,agrees that in the performance of Vendor's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non-discrimination covenant by Vendor, its personal representatives, assigns, subcontractors or successors in interest,Vendor agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim. 13. Notices. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand-delivered to the other party, its agents, employees, servants or representatives, (2) delivered by facsimile with electronic confirmation of the transmission, or(3)received by the other party by United States Mail,registered,return receipt requested, addressed as follows: TO THE CITY: TO VENDOR: City of Fort Worth Envirosuite,Inc. Attn: Dana Burgdoff,Assistant City Manager Attn: Greg Bracci,Vice President-Americas 200 Texas Street 2330 East Bidwell, Suite 210 Fort Worth TX 76102 Folsom, California 95630 With Copy to the City Attorney at same address 14. Solicitation of Employees. Neither the City nor Vendor shall, during the term of this Agreement and additionally for a period of one year after its termination,solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by the other during the term of this Agreement,without the prior written consent of the person's employer.This provision shall not apply to an employee who responds to a general solicitation or advertisement of employment by either party. 15. Governmental Powers. It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers. 16. No Waiver. The failure of the City or Vendor to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Vendor's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 17. Governing Law and Venue. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought on the basis of this Agreement,venue for such action shall lie in state courts located in Tarrant County,Texas or the United States District Court for the Northern District of Texas,Fort Worth Division. 18. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable,the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 19. Force Majeure. City and Vendor shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement,but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including, but not Vendor Services Agreement—Technology(Rev. 8/19) Page 8 of 19 City Secretary Contract No. limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, epidemics or pandemics, material or labor restrictions by any governmental authority,transportation problems,restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any States, civil disturbances, other national or regional emergencies,and/or any other similar cause not enumerated herein but which is beyond the reasonable control of the Party whose performance is affected (collectively "Force Majeure Event"). The performance of any such obligation is suspended during the period of, and only to the extent of, such prevention or hindrance, provided the affected Party provides notice of the Force Majeure Event, and an explanation as to how it hinders the party's performance, as soon as reasonably possible, as determined in the City's discretion, after the occurrence of the Force Majeure Event. The form of notice required by this section shall be the same as section 13 above. 20. Headings Not Controlling. Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 21. Review of Counsel. The parties acknowledge that each party and its counsel have reviewed this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto. 22. Amendments. No amendment of this Agreement shall be binding upon a party hereto unless such amendment is set forth in a written instrument, and duly executed by an authorized representative of each party. 23. Entirety of Agreement. This Agreement, including any exhibits attached hereto and any documents incorporated herein by reference,contains the entire understanding and agreement between the City and Vendor, their assigns and successors in interest, as to the matters contained herein.Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 24. Counterparts. This Agreement may be executed in one or more counterparts and each counterpart shall,for all purposes,be deemed an original,but all such counterparts shall together constitute one and the same instrument.An executed Agreement,modification,amendment,or separate signature page shall constitute a duplicate if it is transmitted through electronic means, such as fax or e-mail, and reflects the signing of the document by any party. Duplicates are valid and binding even if an original paper document bearing each party's original signature is not delivered. 25. Warranty of Services. Vendor warrants that its services will be of a professional quality and conform to generally prevailing industry standards. City must give written notice of any breach of this warranty within thirty(30) days from the date that the services are completed. In such event, at Vendor's option,Vendor shall either(a)use commercially reasonable efforts to re-perform the services in a manner that conforms with the warranty, or(b)refund the fees paid by the City to Vendor for the nonconforming services. OMITTED Vendor Services Agreement—Technology(Rev. 8/19) Page 9 of 19 City Secretary Contract No. 27. Network Access. 27.1. City Network Access. If Vendor, and/or any of its employees, officers, agents, servants or subcontractors(for purposes of this section"Vendor Personnel"),requires access to the City's computer network in order to provide the services herein,Vendor shall execute and comply with the Network Access Agreement which is attached hereto as Exhibit "D" and incorporated herein for all purposes. 27.2. Federal Law Enforcement Database Access. If Vendor, or any Vendor Personnel, requires access to any federal law enforcement database or any federal criminal history record information system, including but not limited to Fingerprint Identification Records System ("FIRS"),Interstate Identification Index System("III System"),National Crime Information Center ("NCIC") or National Fingerprint File ("NFF"), or Texas Law Enforcement Telecommunications Systems ("TLETS"),that is governed by and/or defined in Title 28, Code of Federal Regulations Part 20 ("CFR Part 20"), for the purpose of providing services for the administration of criminal justice as defined therein on behalf of the City or the Fort Worth Police Department, under this Agreement, Vendor shall comply with the Criminal Justice Information Services Security Policy and CFR Part 20, as amended, and shall separately execute the Federal Bureau of Investigation Criminal Justice Information Services Security Addendum.No changes,modifications,alterations, or amendments shall be made to the Security Addendum. The document must be executed as is, and as approved by the Texas Department of Public Safety and the United States Attorney General. 28. Immigration Nationality Act. Vendor shall verify the identity and employment eligibility of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form(I-9). Upon request by City,Vendor shall provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Vendor shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any Vendor employee who is not legally eligible to perform such services. VENDOR SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY VENDOR, VENDOR'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice to Vendor, shall have the right to immediately terminate this Agreement for violations of this provision by Vendor. 29. Informal Dispute Resolution. Except in the event of termination pursuant to Section 4.2,if either City or Vendor has a claim,dispute,or other matter in question for breach of duty,obligations, services rendered or any warranty that arises under this Agreement,the parties shall first attempt to resolve the matter through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim,dispute,or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten(10)business days of receipt of the notice,both parties shall commence the resolution process and make a good faith effort,either through email,mail,phone conference,in person meetings,or other reasonable means to resolve any claim,dispute,breach or other matter in question that may arise out of,or in connection with this Agreement. If the parties fail to resolve the dispute within sixty(60)days of the date of receipt of the notice of the dispute,then the parties may submit the matter to non-binding mediation in Tarrant County,Texas,upon written consent of authorized representatives of both parties in accordance with the Industry Arbitration Rules of the American Arbitration Association or other applicable rules governing mediation then in effect.The mediator shall be agreed to by the parties.Each party shall be liable for its own expenses, including attorney's fees; however, the parties shall share equally in the costs of the mediation. If the parties cannot resolve the dispute through mediation,then either party shall have the right to exercise any and all remedies available under law regarding the dispute. Notwithstanding the Vendor Services Agreement—Technology(Rev. 8/19) Page 10 of 19 City Secretary Contract No. fact that the parties may be attempting to resolve a dispute in accordance with this informal dispute resolution process,the parties agree to continue without delay all of their respective duties and obligations under this Agreement not affected by the dispute. Either party may, before or during the exercise of the informal dispute resolution process set forth herein, apply to a court having jurisdiction for a temporary restraining order or preliminary injunction where such relief is necessary to protect its interests. 30. No Boycott of Israel. If Vendor has fewer than 10 employees or the Agreement is for less than$100,000,this section does not apply.Vendor 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 Addendum, Vendor certifies that Vendor's signature provides written verification to City that Vendor: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the Agreement. 31. Reporting Requirements. 31.1. For purposes of this section,the words below shall have the following meaning: 31.1.1. Child shall mean a person under the age of 18 years of age. 31.1.2. Child pornography means an image of a child engaging in sexual conduct or sexual performance as defined by Section 43.25 of the Texas Penal Code. 31.1.3. Computer means an electronic, magnetic, optical, electrochemical, or other high-speed data processing device that performs logical, arithmetic, or memory functions by the manipulations of electronic or magnetic impulses and includes all input, output,processing,storage,or communication facilities that are connected or related to the device. 31.1.4. Computer technician means an individual who,in the course and scope of employment or business, installs,repairs, or otherwise services a computer for a fee. This shall include installation of software,hardware, and maintenance services. 31.2. Reporting Requirement.If Vendor meets the definition of Computer Technician as defined herein, and while providing services pursuant to this Agreement, views an image on a computer that is or appears to be child pornography,Vendor shall immediately report the discovery of the image to the City and to a local or state law enforcement agency or the Cyber Tip Line at the National Center for Missing and Exploited Children.The report must include the name and address of the owner or person claiming a right to possession of the computer, if known, and as permitted by law. Failure by Vendor to make the report required herein may result in criminal and/or civil penalties. 32. Signature Authority_. The person signing this agreement hereby warrants that he/she has the legal authority to execute this agreement on behalf of the respective party, and that such binding authority has been granted by proper order,resolution, ordinance or other authorization of the entity. This Agreement, and any amendment(s) hereto, may be executed by any authorized representative of Vendor whose name, title and signature is affixed on the Verification of Signature Authority Form, which is attached hereto as Exhibit"E" and incorporate herein by reference. Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. Vendor Services Agreement—Technology(Rev. 8/19) Page 11 of 19 City Secretary Contract No. 33. Survival of Provisions. The parties'duties and obligations pursuant to Section 4.4(Duties and Obligations),5 (Disclosure of Conflicts and Confidential Information), Section 6(Right to Audit),and Section 8 (Liability and Indemnification) shall survive termination of this Agreement. 34. Prohibition on Boycotting Energy Companies. Vendor acknowledges that in ac- cordance with Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2, the City is prohibited from entering into a contract for goods or services that has a value of$100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verifi- cation from the company that it: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the contract. The terms "boycott energy company" and "company" have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement,by signing this Agreement,Vendor certifies that Contractor's signature provides written verification to the City that Contractor: (1) does not boy- cott energy companies; and (2) will not boycott energy companies during the term of this Agree- ment. 35. Prohibition on Discrimination Against Firearm and Ammunition Industries.Vendor acknowledges that except as otherwise provided by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1, the City is prohibited from entering into a contract for goods or services that has a value of$100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the company that it: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade associa- tion; and(2)will not discriminate during the term of the contract against a firearm entity or firearm trade association. The terms"discriminate,""firearm entity" and"firearm trade association"have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg.,R.S., S.B. 19, § 1. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement,by signing this Agreement,Vendor certifies that Contractor's sig- nature provides written verification to the City that Contractor: (1)does not have a practice,policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade association during the term of this Agreement. (signature page follows) Vendor Services Agreement—Technology(Rev. 8/19) Page 12 of 19 City Secretary Contract No. ACCEPTED AND AGREED: CITY- CITY OF FORT WORTH CONTRACT COMPLIANCE MANAGER: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all By: Dana Burghdoff(N 4,2022 1:29CDT) performance and reporting requirements. Name: Dana Burghdoff Title: Assistant City Manager Date: By: Richard Lisenb a(Oct 21,2022 11:09 CDT) APPROVAL RECOMMENDED: Name: Richard Lisenbee Title: Senior IT Manager,Water Department „/„ APPROVED AS TO FORM AND LEGALITY: By: Christopher Hard (Nov 2,202215:34 CDT) Name: Christopher Harder Title: Director,Water Department ,p4vopn /2riY '§pO06 Rt° as By ATTEST: °�,0d Name: Taylor Paris v�o oo o i; Title: Assistant City Attorney o ol dQn�n�65ggo Tgnnel-fe S. Gaadall By: oodall(Nov4,202215:53CDT) Name: Jannette Goodall Title: City Secretary VENDOR: OFFICIAL RECORD ENVIROSUITE INC CITY SECRETARY By: Greg Bra i(Oct 21,2022 12:32 EDT) FT. WORTH, T Name: Greg Bracci Title: Vice President-Americas Date: Vendor Services Agreement—Technology(Rev. 8/19) Page 13 of 19 City Secretary Contract No. EXHIBIT A STATEMENT OF WORK ENVIROSUITE PROPOSAL Vendor Services Agreement—Technology—Exhibit A Page 14 of 19 City of Fort Worth Annual Subscription & Maintenance Agreement Date: 31 August 2022 19 envirosu 'ite Sarah Neamatallah Customer Success Manager I North America E:Sarah.neamatallah@envirosuite.com Proposal No:202211277 Issued: August 31,2022 Valid until:September 30,2022 www.envirosuite.com City of Fort Worth Subscription&Maintenance Agreement Project name: Annual Subscription&Maintenance Agreement Document control number: 202211277 Prepared by: Sarah Neamatallah Disclaimer&Copyright: This Commercial Proposal is subject to the copyright statement located at www.envirosuite.com©Envirosuite Limited ABN 42 122 919 948 Q envirosuite Document Control Number:202211277 ii City of Fort Worth-EVS Subscription&Maintenance Agreement-202211277 Proprietary information for City of Fort Worth only City of Fort Worth Subscription&Maintenance Agreement Table of contents 1 Introduction.............................................................................................................................. 1 2 Scope of Work......................................................................................................................... 1 3 Commercial Terms...................................................................................................................4 3.1 Fees................................................................................................................................................................4 3.2 Payment terms...............................................................................................................................................4 3.3 Terms and conditions.....................................................................................................................................4 SigningPage ..............................................................................................................................5 AppendixA- Equipment.............................................................................................................6 AppendixB - Terms & Conditions.......................................................................................................7 Q envirosuite Document Control Number:202211277 iii City of Fort Worth-EVS Subscription&Maintenance Agreement-202211277 Proprietary information for City of Fort Worth only City of Fort Worth Subscription&Maintenance Agreement 1 Introduction This Subscription &Maintenance Agreement("Agreement")defines the scope and deliverables for the software subscription and equipment maintenance services to be provided by Envirosuite Inc.to The City of Fort Worth,for the Village Creek Water Reclamation Facility. This Agreement is entered into between: Envirosuite Inc. 2330 East Bidwell Suite 210 Folsom California 95630 US Contact: Greg Bracci ("Supplier") and City of Fort Worth Village Creek Water Reclamation Facility 4500 Wilma Lane Arlington,TX 76012 Contact: Migdalia Orozco Jackson ("Customer") 2 Scope of Work 2.1 Envirosuite Software Subscription An annual subscription to Envirosuite's Environmental Suite software platform. This includes access to the following software modules: MODULE DESCRIPTION Environmental Compliance Basic module—user interface, monitoring data management, arcs of influence, reporting capabilities Impact Modelling Dispersion model plume to assess the impact in real-time and review historical off-site impacts. Discrete receptors can be set-up for alerts and emission source contribution analysis. Incident Intelligence Complaint data management system, including reverse trajectories for identifying the likely airborne pathway that an odour or air pollutant has travelled. Q e nv i ro s u i to Document Control Number:202211277 1 City of Fort Worth-EVS Subscription&Maintenance Agreement-202211277 Proprietary information for City of Fort Worth only City of Fort Worth Subscription&Maintenance Agreement 2.1.1 Envirosuite Software Services The Supplier will also provide the following services related to the transition and support of the Environmental Suite software: • Web-based training; • Ongoing support(by telephone and email)for the use of the software. 2.2 Equipment Maintenance Services 2.2.1 Supplier Obligations The Supplier's obligations regarding Equipment Maintenance Services are limited to the list of installed "Equipment"as defined in Appendix A.Any service requested by the Customer on any other equipment,that the Supplier agrees to perform,shall be a separately billable activity.With respect to the Equipment,the Supplier shall: Assist the Customer in keeping its Equipment operating economically and as per specification by providing skilled labour, and materials, including the replacement of defective parts with new or refurbished parts, as well as instruments and tools required for the performance of Verification,Testing, and Preventive Maintenance, and Technical Assistance to keep the detection system(s)referenced herein operational during the term of this agreement. These services are limited to the following: In-Scope Services: • 1 inspection visit for the site and 1 inspection report • Automatic access to Envirosuite software upgrades for subscribed solutions • Remote equipment checks • The 3G modems will be replaced with 4G modems • Recommission the eNose classic • Calibration of 2 eNose Classics • If an Electronic Nose fails beyond repair, it may need to be replaced with an alternative solution, quoted separately In-Scope Parts: • 1 set of Ammonia sensor per Ammonia Monitor • Up to 1 set of pumps per eNose per year • Up to 1 exterior fan per eNose per year • Up to 1 set of gas sensors per eNose per year • Up to 2 SIM cards per year per eNose • Up to 1 IO card per year per eNose • If other parts are required,they will be quoted separately 2.2.2 Customer Obligations The Customer agrees to give the Supplier's employees safe and reasonable access to the work site.The Customer shall provide scaffoldings and if required, equipment permitting access to the site as required by health and safety laws and shall bear the cost thereof. The Customer agrees to give the Supplier's employees Internet access to the output ports. Q e nv i ro s u i to Document Control Number:202211277 2 City of Fort Worth-EVS Subscription&Maintenance Agreement-202211277 Proprietary information for City of Fort Worth only City of Fort Worth Subscription&Maintenance Agreement 2.2.3 Out of Scope Services provided by the Supplier as referred to in this Agreement shall be restricted to the normal use of the system(s).Technological improvements and upgrades to the Equipment are not part of this Agreement. The Customer shall bear the costs of services and materials that are the result of inappropriate use, modifications or alterations effected by The Customer, acts of vandalism, damages caused by fire,water, accidents,catastrophes and other Acts of God. The Supplier shall notify the Customer of all service calls that do not come under its responsibility in accordance with this Agreement.The parties may negotiate the price of such service calls, in advance,over and above the costs pertaining to this Agreement. 2.2.4 Inspection Visit The Supplier shall carry out an annual site visit for a physical check of the equipment. During the visit,the Supplier shall perform a complete inspection of the equipment to make sure it is functional and in good condition. Should upgrades to the Equipment or any other service be necessary to make it functional, neither this service nor any required parts beyond those listed as in-scope will be covered by this Agreement and the parties may negotiate the price of such repairs or services prior to the start of the work. After the inspection visit, an inspection report shall be written and submitted to the Customer. The Supplier shall issue a certificate testifying that the system(s)was functioning properly at the time of the inspection or subsequent to any repairs required and effected. 2.2.5 Online Support The Customer will have access to The Operations Centre which is available from Monday to Friday in North America except local public holidays.The client's staff can also email any support queries to helpdesk@envirosuite.com and will have access to the online support site at https:Hsupport.envirosuite.com/. This site is a rich source of information for training and doubles as a tool to lodge support tickets to the Envirosuite support team. 2.2.6 Service Levels Envirosuite has included our Silver-level Support SLA in the proposed service fees. This includes the following service levels: . . Total System Failure Response Time 1 day Total System Failure Rectification 3 days* Partial System Failure Issue(monitor non-operational) Response Time 2 days* Partial System Failure(monitor non-operational) 10 days* Rectification Partial System Bug with a work around. 2 days* Response time Partial System Bug with a work around. 60 days Resolution *Business days Q e nv i ro s u i to Document Control Number:202211277 3 City of Fort Worth-EVS Subscription&Maintenance Agreement-202211277 Proprietary information for City of Fort Worth only City of Fort Worth Subscription&Maintenance Agreement 3 Commercial Terms 3.1 Fees Description Per Annum Environmental Suite Annual Software Subscription • Access to the Envirosuite platform • Automatic access to Envirosuite software upgrades for subscribed $18,540 solutions • Web-based training • Phone and email support for the use of the software Equipment Maintenance Services • 1 Inspection visit for the site • 1 Inspection report • Remote equipment checks $32,854 • 3G modems swap with 4G modems • Recommission the eNose classic • Calibration of 2 eNose Classics($15,340) Professional Services to be used on an ad-hoc basis $16,500 • 60 hours TOTAL $67,894 All pricing excludes taxes. Commencement Date: 5 September 2022 Initial Term: 12 months 3.2 Payment terms Fees are payable quarterly in advance. Invoices will be payable 30 days from date of issue. 3.3 Terms and conditions This agreement is made under our standard terms and conditions that are provided at Appendix B. Q e nv i ro s u i to Document Control Number:202211277 4 City of Fort Worth-EVS Subscription&Maintenance Agreement-202211277 Proprietary information for City of Fort Worth only City of Fort Worth Subscription&Maintenance Agreement Signing page By signing below, both parties agree to the terms and conditions of this Agreement and acknowledge they have the authority to enter into this agreement. Signed for and on behalf of the City of Fort Worth Name of Signatory Signature Title of Signatory Date Signed for and on behalf of Envirosuite Inc. Name of Signatory Signature Title of Signatory Date Q e nv i ro s u i to Document Control Number:202211277 5 City of Fort Worth-EVS Subscription&Maintenance Agreement-202211277 Proprietary information for City of Fort Worth only City of Fort Worth Subscription&Maintenance Agreement Appendix A - Equipment The supported "Equipment' is listed below: 2 x Electronic Noses 1 x Ammonia Monitor 1 x Weather Station Address of the facility: Village Creek Water Reclamation Facility 4500 Wilma Lane Arlington,TX 76012 Q e nv i ro s u i to Document Control Number:202211277 6 City of Fort Worth-EVS Subscription&Maintenance Agreement-202211277 Proprietary information for City of Fort Worth only City of Fort Worth Subscription&Maintenance Agreement Appendix B Standard Terms and Conditions ........................................................................................................................................................................ Q e nv i ro s u i to Document Control Number:202211277 7 City of Fort Worth-EVS Subscription&Maintenance Agreement-202211277 Proprietary information for City of Fort Worth only City of Fort Worth Subscription&Maintenance Agreement Standard Terms and rights of a third party or breach any privacy laws; Conditions ("Agreement") (�) not use the Services to store or transmit any viruses or other malicious code; (d) provide industry standard virus 1 Service protection mechanisms for its 1.1 Parties applications; Envirosuite("the Supplier")will provide the (e) keep all account identification and Services to the Customer,as defined in the log-in information,including Scope of Services, in a diligent and passwords,secure and confidential to professional manner on the terms of this prevent unauthorised access to or Agreement. use of the Services and promptly notify Supplier of any unauthorised 1.2 Acceptance access or use; Any use or access of the Services by the (f) use the Services only for its internal Customer constitutes acceptance of this business purposes and not purport to Agreement. re-sell or licence the Services; 1.3 Right to Use (g) comply with all reasonable and lawful The Supplier grants to the Customer a world- directions of Supplier;and wide, non-exclusive, non-transferable right to (h) ensure that any Authorised Users are use the Services and the Documentation for its properly trained in the use of the internal business purposes. Services. 2 Term 3.2 Suspension 2.1 Initial Term The Supplier will have the right to suspend the Customer's access to the Services to prevent or This Agreement commences on the mitigate damage to the Services or the systems Commencement Date and continues for the of the Supplier. Initial Term unless otherwise terminated earlier in accordance with the Agreement. 4 Intellectual Property Rights 2.2 Extension 4.1 Ownership and use of Intellectual Property This Term will automatically extend for a Rights further period of 12 months upon each The parties agree that other than as provided anniversary of the Commencement Date in this clause 4(Intellectual Property Rights), unless either party provides notice of nothing in this Agreement transfers ownership termination at least 30 days prior to the in,or otherwise grants any rights in,any anniversary of the Commencement Date. The Intellectual Property Rights of a party. Supplier will provide the Customer with reasonable notice of any changes to the 4.2 Ownership in Services pricing for the Services. In using the Services the Customer does not 2.3 Change to Services obtain any ownership or interest in the Services and the Customer acknowledges that The Customer may request a change to the the Supplier holds all Intellectual Property modules and scope of Services. In the event rights in the Services, including in any that pricing and scope of Services is agreed upgrade,enhancement or modification of the between the parties in writing,this Agreement Services under this Agreement. will automatically apply to any such changes. 4.3 Data 3 Use of Subscription Services The Supplier acknowledges that the Customer 3.1 Customer Obligations is the owner of the Intellectual Property Rights The Customer must: in the Customer Data. The Customer provides the Supplier with a license to use the (a) comply with all applicable laws, Customer Data to provide the Services. regulations,licences, in relation to the 4.4 Related Services Services; (b) ensure that the Customer Data that The Supplier will irrevocably and resides that on,and is transmitted and unconditionally assign to the Customer on received via the Services does not Payment,any Customer Specific New Material. infringe any Intellectual Property 8 City of Fort Worth Subscription&Maintenance Agreement 5 Warranties 6.3 Disclosure of Confidential Information 5.1 Compliance with Specifications A Recipient may not disclose Confidential Information of the Discloser to any person The Supplier warrants that the Services will except: materially comply with the Specifications and the Documentation when used in accordance (a) Representatives of the Recipient who with this Agreement. require it for the purposes of the Recipient performing its obligations or 5.2 Changes to the Services exercising its rights under this The Supplier may make changes, Agreement or as part of any internal modifications or enhancements to the Services review processes and then only on a and the Documentation upon reasonable need to know basis; notice to the Customer. In the event that in the (b) with the prior written consent of the reasonable opinion of the Customer the Discloser; Services are not an enhancement and are not acceptable to the customer for legitimate (c) if the Recipient is required to do so by business reasons,the Customer may law or a stock exchange;or terminate the Services. (d) if the Recipient is required to do so in 5.3 Implied Warranties connection with legal proceedings If the Supplier is in breach of any non- relating to this Agreement. excludable condition or warranty implied by 6.4 Disclosure by Recipient any statute or law,the Supplier's liability is A Recipient disclosing information under limited to: clause 6.3(a)or clause 6.3(b)(Disclosure of (a)where Supplier has supplied Services,the Confidential Information)must ensure that cost of having the Services supplied again; persons receiving Confidential Information and from it are aware it is the other party's Confidential Information and do not disclose (b)where the Supplier supplied Equipment,the the information except in the circumstances repair or replacement of the Equipment or the permitted in clause 6.3(Disclosure of supply of equivalent Equipment. Confidential Information). 5.4 Disclaimer 6.5 Return of Confidential Information Except as expressly provided in the Subject to clause 6.6(Exceptions),on the Agreement, neither the Supplier nor its Discloser's request,the Recipient must, subcontractors make any representation or immediately deliver to the Discloser all warranties,express or implied,statutory or documents or other materials containing or otherwise,regarding any matter, including the referring to the Discloser's Confidential merchantability,suitability,originality,or fitness Information which are: for a particular use or purpose,non- infringement or results to be derived from the (a) in the Recipient's possession,power use of the Services provided under the or control;or Agreement,or that the operation of the (b) in the possession,power or control of Services will be secure, uninterrupted or error persons who have received free. Confidential Information from the 6 Confidentiality Recipient under clause 6.3(a)or clause 6.3(b)(Disclosure of 6.1 Treatment of Confidential Information Confidential Information). Each party acknowledges that the Confidential 6.6 Exceptions Information of the other party is valuable to the The obligation in clause 6.5(Return of other party. Each party undertakes to keep the Confidential Information)does not apply to Confidential Information of the other party Confidential Information of the Discloser that secret and to protect and preserve the the Recipient requires in order to perform its confidential nature and secrecy of the obligations under this Agreement or is Confidential Information of the other party. otherwise entitled to retain. 6.2 Use of Confidential Information 7 Fees&Taxes A Recipient may only use the Confidential Information of the Discloser for the purposes of 7.1 Fees performing the Recipient's obligations or The Supplier must provide the Services for the exercising the Recipient's rights under this applicable Fee. Agreement. 9 City of Fort Worth Subscription&Maintenance Agreement 7.2 Fees inclusive of Taxes (b) the amount specified in the invoice is All Fees exclude Taxes,whether increased, correctly calculated in accordance new or additional amounts and all freight, with this Agreement. insurance,delivery and other expenses which 9 Equipment may be incurred. 9.1 Equipment Supply 7.3 GST,VAT or similar taxes The Supplier will provide the Equipment as set (a) Unless otherwise expressly stated in out in an Order Form or Scope of Services. this Agreement, prices or other sums payable or consideration to be 9.2 Title and risk provided under or in accordance with Title for any Equipment provided as a this Agreement are exclusive of Managed Service will remain with the Supplier. Goods and Services Tax(GST), The risk of loss or damage to the Equipment Value Added Tax(VAT)or other passes to Customers on the date the relevant similar taxes. Equipment is delivered to the delivery address. (b) If a party makes a taxable supply The Customer will ensure that the Equipment under or in connection with this is covered by sufficient insurance to cover the Agreement,the other party must pay full replacement value of the Equipment. The to the supplier at the same time,and Customer will provide to the Supplier evidence in addition to the GSTNAT-exclusive of insurance coverage upon request by the consideration,an amount equal to the Supplier. GSTNAT payable on that supply. 10 Liability and indemnity (c) The supplier must,as a precondition 10.1 Liability to the payment of GSTNAT under clause 7.3(b),give the other party a Subject to clause 10.2(No limitation): tax invoice. (a) neither party will be liable to the other (d) If an adjustment event arises in party under or in respect of this connection with a supply made under Agreement for any Consequential this Agreement,the supplier must Loss arising from negligence or give the other party an adjustment breach of contract; note. (b) the aggregate liability of either party (e) If this Agreement requires one party whether in contract,tort(including to pay for,reimburse or contribute to negligence),statute or any other any expense, loss or outgoing cause of action(other than the suffered or incurred by the other obligation to pay Fees)is limited to party,the amount required to be paid, the amount paid by the Customer to reimbursed or contributed by the first the Supplier in the 12 months prior to party will be reduced by the amount the cause of action arising. of input tax credits(if any)to which 10.2 No limitation the other party is entitled in respect of the reimbursable Nothing in this Agreement operates to limit or exclude: 8 Invoicing and payment (a) liability that cannot be limited or 8.1 Payment excluded by law; (a) Customer will pay each invoice within (b) Either party's liability in respect of the thirty(30)days. indemnity in clause 10.3 or 10.6;and (b) If Customer considers that an invoice (c) Either party's liability resulting from its is not correctly rendered,then fraudulent or unlawful act or Customer will notify the Supplier in omission. writing setting out the reasons why Customer considers that the invoice 10.3 Indemnity is not correctly rendered and (a) Supplier will defend Customer identifying any amounts which are in against claims brought against dispute. Customer by any third party alleging 8.2 Invoice that Customer use of the Services infringes or misappropriates any For the purposes of this Agreement,an invoice Intellectual Property Rights.The is not correctly rendered unless: Supplier will indemnify Customer (a) the amount claimed in the invoice is against all damages finally awarded due for payment; against Customer(or the amount of 10 City of Fort Worth Subscription&Maintenance Agreement any settlement the Supplier enters 11.2 Termination for Convenience into)with respect to these claims. After the Initial Term,the Customer may (b) The Supplier's obligations under terminate this Agreement on 30 days'notice Clause 10.3(a)will not apply to the without cause. extent the claim results from 11.3 No other right of either party to terminate. (i)Customer's breach of the Other than as set out in this Agreement neither Agreement;or party may terminate any Order Form or this (ii)use of the Services in conjunction Agreement. with any product or service not provided or recommended by the 12 Consequences of termination Supplier. 12.1 Payments and obligations on expiry or (c) In the event a claim is made or likely termination to be made,the Supplier may: Upon termination of this Agreement or an (i)procure for Customer the right to Order Form by Customer under clause 11.1, continue using the Services under the the Supplier will reimburse the Customer for terms of the Agreement,or the unused portion of any Fees paid in advance by Customer. To avoid doubt,the (ii)replace or modify the Services to Customer will have no right to be reimbursed be non-infringing without material the unused portion of any Fees paid in decrease in functionality. advance by Customer upon termination of this 10.4 Notification of a Claim Agreement or an Order Form by Customer Customer will notify the Supplier in writing under clause 11.2. promptly after becoming aware of any Claim 12.2 Preservation of rights which might give rise to an indemnity by (a) Termination of this Agreement for any Supplier under clause 10.3(Indemnity). reason does not extinguish or 10.5 Customer obligations otherwise affect any rights or remedies of either party which arose In respect of any Claim notified under clause prior to the time of termination,or the 10.3(a)(Notification of a Claim),Customer will provisions of this Agreement which at the Supplier's expense, provide the Supplier by their nature survive termination. with reasonable assistance in conducting the defence of the Claim. (b) Without limiting the above,clause 4 10.6 Contribution (Intellectual Property Rights),6 (Confidentiality),8(Invoicing and Any amount claimed by either party pursuant payment), 10(Liability and indemnity), to the indemnities in clause 10.3 or 10.6 will be 12(Consequences of termination), 15 reduced proportionally to the extent the loss, (Assignment), 16(Governing law), 17 damage,liability,claim or expense is directly (General)and 18(Interpretation) caused by the negligence of the other party or survive termination of this its Representatives. Agreement. 11 Termination 11.1 Termination for cause 13 Force majeure Either party may terminate in whole or in part 13.1 Effects of Event this Agreement immediately by giving notice in A party does not breach this Agreement and is writing to the other party if: not liable to the other party for a delay or (a) the other party commits a breach of failure to perform an obligation to the extent it this Agreement and the breach is results from a Force Majeure Event. incapable of remedy; 13.2 Obligation of affected party (b) the other party commits a breach of The party affected by the Force Majeure Event this Agreement that is capable of must notify the other party of the Force remedy and does not rectify that Majeure Event as soon as reasonably breach within 7 Business Days of first practicable and must take all reasonable steps party issuing a notice of the breach; to limit the effects of Force Majeure Event or 13.3 Termination (c) a party is Insolvent, If a Force Majeure Event occurs and its effect continues for a period of 20 Business Days, the Services affected by the Force Majeure 11 City of Fort Worth Subscription&Maintenance Agreement Event may be terminated at any time thereafter no effect and is a material breach of this by either party giving written notice to the other Agreement. party. 16 Governing law 14 Notices This Agreement is governed by the law in force 14.1 Form in California, United States of America. Each Unless expressly stated otherwise in this party submits to the non-exclusive jurisdiction Agreement,all notices,certificates,consents, of the courts of that place. approvals,waivers and other communications 17 General in connection with this Agreement must be in writing,signed by the sender(if an individual) 17.1 Discretion in exercising rights or a person appointed as an authorised officer A party may exercise a right or remedy or give of the sender and marked for the attention of or refuse its consent in any way it considers the person identified by the other party as the appropriate(including by imposing conditions), contact person or, if the recipient has notified unless this Agreement expressly states otherwise,then marked for attention in the way otherwise. last notified. 14.2 Delivery 17.2 Partial exercising of rights If a party does not exercise a right or remedy A communication must be: fully or at a given time,the party may still (a) Left or mailed to the address notified exercise it later. by the recipient; 17.3 No liability for loss (b) sent by fax to the fax number notified A party is not liable for loss caused by the by the recipient; exercise or attempted exercise of,failure to (c) sent by email to the email address exercise,or delay in exercising a right or notified by the recipient;or remedy under this Agreement. (d) given in any other way permitted by 17.4 Approvals and consents law. By giving its approval or consent a party does 14.3 When effective not make or give any warranty or representation as to any circumstance relating (a) A communication will take effect from to the subject matter of the consent or the time it is received unless a later approval. time is specified. 17.5 Remedies cumulative (b) If sent by post,a communication is taken to be received three days after The rights and remedies provided in this posting(or 14 days after posting if Agreement are in addition to other rights and sent to or from a place outside remedies given by law independently of this Australia). Agreement. (c) If sent by fax,a communication is 17.6 Rights and obligations are unaffected taken to be received at the time Rights given to the parties under this shown in the transmission report as Agreement and the parties'liabilities under it the time that the whole fax was sent. are not affected by anything which might 15 Assignment otherwise affect them by law. 15.1 Consent 17.7 Variation and waiver Subject to clause 15.2,a party must not A provision of this Agreement or a right assign,transfer,novate,encumber or created under it,may not be waived or varied otherwise deal with all or part of its rights or except in writing,signed by the party or parties obligations under this Agreement without the to be bound. other parry's prior written consent. 17.8 Indemnities 15.2 Any purported assignment,transfer, The indemnities in this Agreement are novation or other dealing with the rights continuing obligations, independent from the under this Agreement that does not comply other obligations of the Supplier under this with clause 15.1 (Consent)is void and has Agreement and continue after this Agreement ends. It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity under this Agreement. 12 City of Fort Worth Subscription&Maintenance Agreement 17.9 Further steps declares that he or she is not aware of any fact Each party agrees,at its own expense,to do or circumstance that might affect his or her anything the other party asks(such as authority to do so under that power of attorney. obtaining consents,signing and producing 17.17 No relationship documents and getting documents completed Nothing in this agreement will be taken to and signed): constitute the Supplier as an employee,agent, (a) to bind the party and any other partner or joint venturer of Customer nor is the person intended to be bound under Supplier authorised to represent itself as this Agreement; acting,or to incur any obligation,on behalf of (b) to enable the party to exercise its Customer. rights;and 18 Interpretation (c) to show whether the party is 18.1 Definitions complying with this Agreement. Authorised Users means the employees or 17.10 Prompt performance contractors of the Customer who are entitled to If this Agreement specifies when the party use the Subscription Services. agrees to perform an obligation,the party Business Day means a day other than a agrees to perform it by the time specified. Saturday,Sunday or public holiday in: Each party agrees to perform all other obligations promptly. (a) the place of the Governing law;or 17.11 Construction (b) where an obligation under this agreement is required to be performed No rule of construction applies to the in a particular place,that place. disadvantage of a party because that party was responsible for the preparation of,or Claim means any allegation,debt,cause of seeks to rely on,this Agreement or any part of action,liability,claim, proceeding,suit or it. demand of any nature whatsoever arising and whether present or future,fixed or 17.12 Costs unascertained,actual or contingent whether at The parties agree to pay their own legal and law,in equity,under statute or otherwise. other costs and expenses in connection with Commencement Date means the date the preparation,execution and completion of specified under that heading in the Details. If this Agreement and other related there is no Commencement Date specified, documentation except for stamp duty. then the Commencement Date is the date on 17.13 Counterparts which the last party executes this Agreement. This Agreement may consist of a number of Confidential Information means: copies,each signed by one or more parties to (a) all confidential,non-public or this Agreement. If so,the signed copies are proprietary information, regardless of treated as making up the one document. how the information is stored or 17.14 Entire agreement delivered,exchanged between the This Agreement constitutes the entire parties or their Representatives before,on or after the agreement of the parties about its subject Commencement Date relating to the matter and supersedes all previous agreements,understandings and negotiations business,technology or other affairs of the Discloser of the information, on that subject matter. including the details of the Services; 17.15 Severability and If the whole or any part of a provision of this (b) in the case of Customer,all Customer Agreement is void,unenforceable or illegal in a Data; jurisdiction it is severed for that jurisdiction. but does not include information: The remainder of this Agreement has full force and effect and the validity or enforceability of (a) which is in or becomes part of the that provision in any other jurisdiction is not public domain other than through affected. This clause has no effect if the breach of this Agreement or an severance alters the basic nature of this obligation of confidence owed to the agreement or is contrary to public policy. Discloser; 17.16 Attorney (b) which the Recipient can prove by Each person who executes this document on contemporaneous written documentation was: behalf of a party under a power of attorney 13 City of Fort Worth Subscription&Maintenance Agreement (i) already known to it at the time of hostilities between nations,civil disclosure by the Discloser insurrection or militarily usurped (unless such knowledge arose power; from disclosure of information in (c) act of public enemy,sabotage, confidentiality);or breach of a obligation of malicious damage,terrorism or civil unrest; (ii) independently developed by the (d) confiscation,nationalisation, Recipient without reference to the requisition,expropriation,prohibition, Confidential Information of the embargo,restraint or damage to Discloser;or property by or under the order of any (c) which the Recipient acquires from a government or government authority. source other than the Discloser or Government Agency means any any of its representatives where such governmental,semi-governmental, source is entitled to disclose it on a administrative,fiscal,judicial or quasi-judicial non-confidential basis. body,department,commission,authority, Consequential Loss means any indirect or tribunal,agency or entity. consequential loss or damage which,although GST means any goods and services or value in the contemplation of the parties at the time added tax. they entered into this Agreement, is not a loss or damage which may fairly and reasonably be A person is Insolvent if: considered to arise naturally(that is, in the (a) it is(or states that it is)an insolvent usual course of things)from the breach under administration or insolvent; including,but not limited to,loss of profits, loss of data, loss of revenue,loss of opportunity or (b) it is subject to any arrangement, loss of goodwill. assignment, moratorium or Contract Representative means a person composition, protected from creditors appointed by each party to be their under any statute or dissolved(in representative for the purpose of managing each case,other than to carry out a this Agreement and any disputes arising under reconstruction or amalgamation while it. solvent on terms approved by the other parties to this Agreement);or Customer Data means all data, information, (c) an application or order has been text,drawing or other material which is made(and in the case of an provided to the Supplier,or inputted into the application,it is not stayed, Services,by the Customer. withdrawn or dismissed within 30 Customer Specific New Material means any days), resolution passed, proposal material created by the Supplier in the course put forward,or any other action of providing the Related Services that is based taken,in each case in connection on or is a modification or enhancement of,the with that person,which is preparatory Customer Data. to or could result in any of(a),(b)or Discloser means the party disclosing (c)above;or Confidential Information. (d) it is otherwise unable to pay its debts Documentation means any documentation when they fall due;or provided by the Supplier which sets out the (e) something having a substantially details of the Services. similar effect to(a)to(d)happens in Fee means the fee for the Services and any connection with that person under the Equipment calculated in accordance with the law of any jurisdiction. Order Form. Initial Term means,unless stated otherwise in Force Majeure Event means any of the the Order Form, 12 months. following causes provided that they are outside Intellectual Property Rights means all the reasonable control of the affected party intellectual property rights including current and could not have been prevented or avoided and future registered and unregistered rights in by that party taking all reasonable steps respect of copyright,designs,circuit layouts, including: trade marks,trade secrets, know-how, (a) act of God,earthquake,cyclone,fire, confidential information, patents,invention and explosion,flood, landslide,lightning, discoveries and all other intellectual property storm,tempest,drought or meteor; as defined in article 2 of the convention establishing the World Intellectual Property (b) war(declared or undeclared), Organisation 1967. invasion,act of a foreign enemy, 14 City of Fort Worth Subscription&Maintenance Agreement Moral Rights means any moral rights (c) (references to statutes)a statute, including the rights described in Article 6b is of ordinance,code or other law includes the Berne Convention for Protection of Literary regulations and other instruments and Artistic Works 1886(as amended and under it and consolidations, revised from time to time), being"droit moral" amendments, re-enactments or or other analogous rights arising under any replacements of any of them; statute that exist or that may come to exist, anywhere in the world. (d) (law)law includes common law, principles of equity,and laws made Order Form means an order or proposal by parliament(and laws made by provided by the Supplier or the Reseller which parliament include State,Territory sets out the details of the order to which this and Commonwealth laws and Agreement applies. regulations and other instruments Receiver includes a receiver or receiver and under them,and consolidations, manager. amendments, re-enactments or replacements of any of them); Recipient means the party receiving (e) (singular includes plural)the Confidential Information. singular includes the plural and vice Related Services means the professional versa; services agreed in an Order Form. (f) (person)the word"person"includes Representative of a party includes an an individual,a firm,a body employee,agent,officer,director,auditor, corporate,a partnership,joint advisor, partner,consultant,contractor or sub- venture,an unincorporated body or contractor of that party. association,or any Government Reseller means an authorised reseller of the Agency; Supplier who has the direct relationship with (g) (executors,administrators, the Customer. successors)a particular person Service Levels mean the Service Levels set includes a reference to the person's out in the Documentation. executors.administrators,successors and substitutes(including, persons Services means all Subscription Services and taking by novation)and assigns; Related Services required to be provided by the Supplier under this Agreement. (h) (reference group of persons)a group of persons s or things is a Subscription Services means the Software reference to any two or more of them as a Service modules provided by the Supplier jointly and to each of them to the Customer as set out in the Order Form. individually; (i) (calculation of time)a period of time Taxes means taxes,levies, imposts,charges that dates from a given day or the and duties(including stamp and transaction day of an act or event is to be duties)imposed by any authority together with calculated exclusive of that day; any related interest, penalties,fines and expenses in connection with them except if G) (reference to a day)a day is to a imposed on,or calculated having regard to,the calendar day and is to be interpreted net income of Supplier. as the period of time commencing at midnight and ending 24 hours later; Term means the Initial Term as extended if and applicable. (k) (meaning not limited)the words 18.2 References to certain general terms "include","including","for example"or Unless the contrary intention appears,a "such as"are not to be interpreted as reference in this Agreement to: words of limitation,and when such words introduce an example,they do (a) (variation or replacement)a not limit the meaning of the words to document(including this Agreement) which the example relates,or to includes any variation or replacement examples of a similar kind; of it; 18.3 Headings (b) (clauses,annexures and schedules)a clause,Schedule, Headings are included for convenience only Annexure,Attachment or Exhibit is a and are not to affect the interpretation of this reference to a clause in,or a Agreement. Schedule,Annexure,Attachment or Exhibit to,this Agreement; 15 City Secretary Contract No. EXHIBIT B PAYMENT SCHEDULE Fees are payable quarterly, in advance. Invoices will be payable 30 days from date of issue. Vendor Services Agreement—Technology—Exhibit B Page 15 of 19 City Secretary Contract No. EXHIBIT C NETWORK ACCESS AGREEMENT 1. The Network. The City owns and operates a computing environment and network (collectively the "Network").Vendor wishes to access the City's network in order to provide description of services. In order to provide the necessary support, Vendor needs access to description of specific Network systems to which Vendor requires access,i.e.Internet,Intranet,email,HEAT System, etc. 2. Grant of Limited Access.Vendor is hereby granted a limited right of access to the City's Network for the sole purpose of providing description of services. Such access is granted subject to the terms and conditions forth in this Agreement and applicable provisions of the City's Administrative Regulation D-7 (Electronic Communications Resource Use Policy), of which such applicable provisions are hereby incorporated by reference and made a part of this Agreement for all purposes herein and are available upon request. 3. Network Credentials.The City will provide Vendor with Network Credentials consisting of user IDs and passwords unique to each individual requiring Network access on behalf of the Contractor. Access rights will automatically expire one(1)year from the date of this Agreement.If this access is being granted for purposes of completing services for the City pursuant to a separate contract,then this Agreement will expire at the completion of the contracted services, or upon termination of the contracted services, whichever occurs first. This Agreement will be associated with the Services designated below. 3.1. Services are being provided in accordance with City Secretary Contract No. Contract No.; 3.2. Services are being provided in accordance with City of Fort Worth Purchase Order No.PO No.; 3.3. Services are being provided in accordance with the Agreement to which this Access Agreement is attached. 3.4. No services are being provided pursuant to this Agreement. 4. Renewal. At the end of the first year and each year thereafter, this Agreement may be renewed annually if the following conditions are met: 4.1. Contracted services have not been completed; 4.2. Contracted services have not been terminated; and 4.3. Within the thirty (30) days prior to the scheduled annual expiration of this Agreement, the Vendor has provided the City with a current list of its officers, agents, servants, employees or representatives requiring Network credentials. Notwithstanding the scheduled contract expiration or the status of completion of services, Vendor shall provide the City with a current list of officers, agents, servants, employees or representatives that require Network credentials on an annual basis.Failure to adhere to this requirement may result in denial of access to the Network and/or termination of this Agreement. 5. Network Restrictions. Contractor officers,agents,servants,employees or representatives may not share the City-assigned user IDs and passwords. Vendor acknowledges, agrees and hereby gives its authorization to the City to monitor Contractor's use of the City's Network in order to ensure Contractor's compliance with this Agreement. A breach by Contractor, its officers, agents, servants, employees or representatives,of this Agreement and any other written instructions or guidelines that the City provides to Vendor pursuant to this Agreement shall be grounds for the City immediately to deny Vendor access to the Vendor Services Agreement—Technology—Exhibit D Page 16 of 19 City Secretary Contract No. Network and Contractor's Data,terminate the Agreement,and pursue any other remedies that the City may have under this Agreement or at law or in equity. 5.1. Notice to Vendor Personnel—For purposes of this section,Vendor Personnel shall include all officers, agents, servants, employees, or representatives of Contractor.Vendor shall be responsible for specifically notifying all Vendor Personnel who will provide services to the City under this agreement of the following City requirements and restrictions regarding access to the City's Network: 5.1.1. Contractor shall be responsible for any City-owned equipment assigned to Vendor Personnel, and will immediately report the loss or theft of such equipment to the City; 5.1.2. Contractor, and/or Vendor Personnel, shall be prohibited from connecting personally-owned computer equipment to the City's Network; 5.1.3. Contractor Personnel shall protect City-issued passwords and shall not allow any third party to utilize their password and/or user ID to gain access to the City's Network; 5.1.4. Contractor Personnel shall not engage in prohibited or inappropriate use of Electronic Communications Resources as described in the City's Administrative Regulation D7; 5.1.5. Any document created by Vendor Personnel in accordance with this Agreement is considered the property of the City and is subject to applicable state regulations regarding public information; 5.1.6. Contractor Personnel shall not copy or duplicate electronic information for use on any non-City computer except as necessary to provide services pursuant to this Agreement; 5.1.7. All network activity may be monitored for any reason deemed necessary by the City; and 5.1.8. A Network user ID may be deactivated when the responsibilities of the Vendor Personnel no longer require Network access 6. Termination. In addition to the other rights of termination set forth herein, the City may terminate this Agreement at any time and for any reason with or without notice,and without penalty to the City.Upon termination of this Agreement,Vendor agrees to remove entirely any client or communications software provided by the City from all computing equipment used and owned by the Contractor,its officers, agents, servants,employees and/or representatives to access the City's Network. 7. Information Security.Vendor agrees to make every reasonable effort in accordance with accepted security practices to protect the Network credentials and access methods provided by the City from unauthorized disclosure and use. Vendor agrees to notify the City immediately upon discovery of a breach or threat of breach which could compromise the integrity of the City's Network, including but not limited to,theft of Contractor-owned equipment that contains City-provided access software, termination or resignation of officers, agents, servants, employees or representatives with access to City-provided Network credentials,and unauthorized use or sharing of Network credentials. (signature page follows) Vendor Services Agreement—Technology—Exhibit D Page 17 of 19 City Secretary Contract No. ACCEPTED AND AGREED: CITY OF FORT WORTH: VENDOR NAME: ,/nwq auLde Q- By: Dana Burghdoff(N 4,2022 1:29 CDT) By: Greg Bra &(Oct 21,202212:32 EDT) Dana Burghdoff Name: Assistant City Manager Title: Date: Date: APPROVAL RECOMMENDED: By: Christopher Hard (Nov2,202215:34 CDT) Name: Christopher Harder Title: Director,Water Department APPROVED AS TO FORM AND LEGALITY: By: 5� Attorney Name Assistant City Attorney ��avnnn� pao!.FORrad �° °�9dD ATTEST: 0_o o�C �vo -11 0 O 0 oo - Tdnne fe Sr. Gaaddll nexx By: Jannette S.Goodall(Nov 4,202215:53 CDT) Secretary Name City Secretary OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Vendor Services Agreement—Technology—Exhibit D Page 18 of 19 City Secretary Contract No. EXHIBIT D VERIFICATION OF SIGNATURE AUTHORITY Services to be provided: Odor control monitoring platform and services for the Water Department Vendor Services Agreement—Technology—Exhibit E Page 19 of 19 VERIFICATION OF SIGNATURE AUTHORITY Envirosuite Inc 2330 East Bidwell, Suite 210 Folsom, California 95630 Services to be provided: Odor control monitoring platform and services for the Water Department Execution of this Signature Verification Form ("Form") hereby certifies that the following individuals and/or positions have the authority to legally bind the Vendor and to execute any agreement, amendment or change order on behalf of Vendor. Such binding authority has been granted by proper order, resolution, ordinance or other authorization of Company. The City is fully entitled to rely on the warranty and representation set forth in this Form in entering into any agreement or amendment with Vendor.Vendor will submit an updated Form within ten (10) business days if there are any changes to the signatory authority. The City is entitled to rely on any current executed Form until it receives a revised Form that has been properly executed by the Vendor. 1. Name: Gfe�a� C. 13ra e.c.'' Position: V;c { oa$', d¢ K+ Signature 2. Name: Position: Signature 3. Name: Position: Signature Name: Signature of President/CEO Other Title: Date: August 19, 2022 Vendor Servicco Agreement—Technology—Exhibit E Page 1 of 1 FORT WORTH CITY OF FORT WORTH CHAPTER 252 EXEMPTION FORM Instructions:Fill out the entire form with detailed information.Once you have completed this form, provide it to the Purchasing attorney for review. The attorney will review the information you have provided to determine whether an exemption to Chapter 252's biding requirements is defensible. If you are printing this form to provide to Legal,please do not provide the Primer portion. Failure to provide sufficient information may result in follow up questions and cause a delay in the attorney's determination. Section 1: General Information Requesting Department: Water Department Name of Contract Manager: Charmaine Baylor Department's Attorney: Taylor Paris Item or Service sought: Goods: Service: Anticipated Amount: $67,894.00 Vendor: Envirosuite Current/Prior Agreement for item/service: Yes ® No ❑ CSC or Purchase Order#: CSC 54866 Amount: $13 8,000.00 Projected M&C Date: n/a How will this item or service be used? Water seeks to set up a new sole source agreement for an Odor Control Monitoring Platform. The previous agreement expired. Has your department started a requisition or otherwise contacted the Purchasing Division related to obtaining this good/service? Yes ❑ No If yes,please provide requisition number or brief explanation of contact with Purchasing Division: (DETAILED DESCRIPTION] Page 1 of 4 Section 2: Claimed Exemption and Justification (Other than sole source) NOTE - For a claimed sole-source exemption, complete Section 3. Please indicate the non-sole-source exemption you believe applies to the purchase and provide information to support its applicability. Please refer to the Exemption Primer for detailed information about common exemptions: A procurement necessary to preserve or protect the public health or safety of the City of Fort Worth's residents; n A procurement necessary because of unforeseen damage to public machinery, equipment, or other property; n A procurement for personal,professional, or planning services; n A procurement for work that is performed and paid for by the day as the work progresses; n A purchase of land or a right-of-way; Paving drainage, street widening, and other public improvements, or related matters, if at least one-third of the cost is to be paid by or through special assessments levied on property that will benefit from the improvements; n A public improvement project, already in progress, authorized by the voters of the municipality, for which there is a deficiency of funds for completing the project in accordance with the plans and purposes authorized by the voters; n A payment under a contract by which a developer participates in the construction of a public improvement as provided by Subchapter C, Chapter 212; n Personal property sold: • at an auction by a state licensed auctioneer; • at a going out of business sale held in compliance with Subchapter F, Chapter 17, Business & Commerce Code; • by a political subdivision of this state, a state agency of this state, or an entity of the federal government; or • under an interlocal contract for cooperative purchasing administered by a regional planning commission established under Chapter 391; n Services performed by blind or severely disabled persons; n Goods purchased by a municipality for subsequent retail sale by the municipality; n Electricity; or Page 2 of 4 n Advertising, other than legal notices. Please provide details and facts to explain why you believe the exemption applies to the purchase. You may also attach documentation to this form.[INSERT DETAILED EXPLANATION AS TO HOW/WHY CLAIMED EXCEPTION APPLIES TO THIS PURCHASE] Section 3: Claimed Sole-Source Exemption and Justification NOTE - For any non-sole-source exemption, complete Section 2. Please indicate the sole-source exemption you believe applies to the purchase and provide information to support its applicability. Please refer to the Exemption Primer for detailed information about common exemptions *A procurement of items that are available from only one source, including: • items that are available from only one source because of patents,copyrights, secret processes, or natural monopolies; • films, manuscripts, or books; • gas, water, and other utility services; • captive replacement parts or components for equipment; • books, papers, and other library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; and • management services provided by a nonprofit organization to a municipal museum,park, zoo, or other facility to which the organization has provided significant financial or other benefits; How did you determine that the item or service is only available from one source? Maintenance, support, training and professional services for the Odor Control Monitoring System is only provided by one source - Envirosuite. The Water Department has had this proprietary system since 2020. Please see the attached Sole Source letter they provided. Attach screenshots and provide an explanation of any independent research you conducted, through internet searches, searching cooperatives, or discussions with others knowledgeable on the subject matter that corroborate that the item is available only from a single source. Please see the attached Sole Source letter form Envirosuite. Did you attach a sole source justification letter? ® Yes ❑ No Page 3 of 4 Describe the uniqueness of the item or service (e.g. compatibility or patent issues, etc.). This is a proprietary system and Water has utilitzed it since 2020. Please see the attached sole source letter from Envirosuite. Water is requesting that this contract be allowed to auto renew until it is cancelled by either mg�- Section 4: Attorney Determination With the facts provided by the department, is the use of the claimed exemption defensible if the City were to be challenged on this purchase? M Yes n No. Was there anything attached to this form that was relied on in making this determination? Yes n No. If yes,please explain: Attached is a manufacturer provided sole source letter Was there anything not included on this form or attached hereto that was relied on in making this determination? n Yes M No. If yes,please explain:[EXPLAIN OUTSIDE SOURCE OF INFORMATION] Will the standard terms and conditions apply? M Yes n No. Will the contract require special terms? n Yes M No. Will the contract require review by the department attorney? M Yes n No. Approved By: tZ4 Aorki Date: 10/11/2022 Je Anato-Mensah s istant City Attorney Page 4 of 4 19 envirosuite September 15, 2022 Charmaine Baylor Sr. IT Business Planner, Water IT Fort Worth Water Department 200 Texas Street Fort Worth, Texas 76102 Subject: Sole Source Letter- Envirosuite and Products Dear Charmaine, Envirosuite is pleased to provide this letter to the City of Fort Worth to confirm sourcing methods for the Envirosuite software platform and monitoring solutions. The Envirosuite software platform has been exclusively developed and is continually maintained and upgraded by Envirosuite Limited, our parent company based in Brisbane, Australia. Envirosuite Inc. and Envirosuite Canada Inc. are the exclusive licensees of the Envirosuite products in North America. The only way to procure the Envirosuite products in North America is through these Envirosuite subsidiary companies. Please don't hesitate to contact us if you would like any further information about this or about the system and its capabilities. Sincerely, Greg Bracci Vice President- North America T: +1 916 265 7712 1 M: +1 404 432 3080 Greg.Bracci@envirosuite.com Tel:(514)226-2757 Envirosuite Canada Inc. Envirosuite Inc. https:Henvirosuite.com/ 3333 Queen Mary Road 2330 East Bidwell Suite 210 Suite 301,Montreal, Folsom California 95630 Quebec,H3V 1A2,Canada United States of America FORTWORTH p Routing and Transmittal Slip Water Department DOCUMENT TITLE: M&C: CPN: CSO: DOC #: TO: EMAIL INITIALS Rick Lisenbee—Sr. Water IT Manager vendor SN SN Contract compliance manager Jan Hale—Assistant Director 6 'bh Kara Shuror—Deputy Director Chris Harder-Director Taylor Paris—Assistant City Attorney Dana Burghdoff—Assistant City Manager Melissa Brunner—City Secretary's office Jannette Goodall—City Secretary Vania Soto—City Secretary's office Charmaine Baylor—Water IT Needs to be notarized: ❑ YES x NO Action Required: ❑ As Requested ❑ For Your Information X Signature/Routing and/or Recording ❑ Comment ❑ File FOR CMO USE ONLY: Routing to CSO x YES ❑ NO EXPLANATION Attached is a new agreement replacing an expired contract with EMS Bruel &Kjaer Inc. dba Envirosuite Inc. Envirosuite provides the City with an odor control monitoring platform for the Village Creek Water Reclamation Facility. Please sign or approve these items. If you have any questions or concerns, feel free to call or email me. Thank you, Rick Lisenbee Sr. Water IT Manager Fort Worth Water Department 200 Texas Street Fort Worth, Texas 76102 Phone: (817) 392-2515 Email: Richard.Lisenbee@fortworthtexas.gov City of Fort Worth— Working together to build a strong community. FORT WORTH,