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HomeMy WebLinkAboutContract 53267 0ITY SECRETARY �:ONTRAOT NO. 53afo�l QEG �w0 PROFESSIONAL SERVICES AGREEMENT G SA KPMANALYTICSI UNITY SCIENTIFIC This PROFESSIONAL SERVICES AGREEMENT("Agreement")is made and entered into by and between the CITY OF FORT WORTH("City"),a Texas home rule municipal corporation,acting by and through Dana Burghdoff, its duly authorized Assistant City Manager, and KPM ANALYTICS ("Vendor"), an Incorporation, and acting by and through Greg Israelson, its duly authorized Director Customer Experience, each individually referred to as a "party" and collectively referred to as the "parties." AGREEMENT DOCUMENTS: The Agreement documents shall include the following: 1. This Professional Services Agreement; 2. Exhibit A—Scope of Services 3. Exhibit B —Price Schedule; 4. Exhibit C—Verification of Signature Authority Form 5. Exhibit D—Sole Source Form Exhibits A,B and C,which are attached hereto and incorporated herein,are made a part of this Agreement for all purposes. In the event of any conflict between the terms and conditions of Exhibits A, B or C and the terms and conditions set forth in the body of this Agreement,the terms and conditions of this Agreement shall control. 1. SCOPE OF SERVICES. Vendor hereby agrees to provide the City with preventative maintenance, parts and repair on SmartChem SC200.Exhibit"A,"-Scope of Services more specifically describes the services to be provided hereunder. 2. TERM. d�k� �ecu�-ed This Agreement shall begin on(web ("Effective Date")and shall expire on September 30,2024("Expiration Date"),unless terminated earlier in accordance with this Agreement("Initial Term"). City shall have the option, in its sole discretion, to renew this Agreement under the same terms and conditions,for up to four(4)one-year renewal options, at City's sole discretion. 3. COMPENSATION. City shall pay Vendor in accordance with the fee schedule of Vendor personnel who perform services under this Agreement in accordance with the provisions of this Agreement and Exhibit`B;"—Price Schedule. Total payment made under this Agreement for the first year by City shall not exceed the amount of Ninety-Five Thousand Dollars ($95,000.00). Vendor shall not perform any additional services or bill for expenses incurred for City not specified by this Agreement unless City requests and approves in writing the additional costs for such services. City shall not be liable for any additional expenses of Vendor not specified by this Agreement unless City first approves such expenses in writing. 4. TERMINATION. FOFFOL RE CW SECRETARY Professional Services Agreement 4.1. Written Notice. 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 Non-appropriation of Funds. In the event no funds or insufficient funds are appropriated by City in any fiscal period for any payments due hereunder, 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 City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 4.3 Duties and Obligations of the Parties.In the event that this Agreement is terminated prior to the Expiration Date, City shall pay Vendor for services actually rendered up to the effective date of termination and Vendor shall continue to provide City with services requested by 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 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 City in a machine readable format or other format deemed acceptable to City. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. 5.1 Disclosure of Conflicts. Vendor hereby warrants to 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 City in writing. 5.2 Confidential Information.Vendor,for itself and its officers, agents and employees, agrees that it shall treat-all information provided to it by City("City Information") as confidential and shall not disclose any such information to a third party without the prior written approval of City. 5.3 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 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 City in identifying what information has been accessed by unauthorized means and shall fully cooperate with City to protect such City Information from further unauthorized disclosure. 6. RIGHT TO AUDIT. Vendor agrees that City shall, until the expiration of three(3)years after final payment under this contract,or the final conclusion of any audit commenced during the said three years,have access to and the right to examine at reasonable times any directly pertinent books,documents,papers and records,including, but not limited to, all electronic records, of Vendor involving transactions relating to this Agreement at no additional cost to City. Vendor agrees that 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. City shall give Vendor reasonable advance notice of intended audits. 7. INDEPENDENT VENDOR. Professional Services Agreement Page 2 of 17 It is expressly understood and agreed that Vendor shall operate as an independent Vendor as to all rights and privileges and work performed under this Agreement, and not as agent, representative or employee of 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, consultants and subVendors. Vendor acknowledges that the doctrine of respondeat sirperior shall not apply as between City, its officers, agents, servants and employees, and Vendor, its officers, agents, employees, servants, Vendors and subVendors. 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 City shall in no way be considered a Co-employer or a Joint employer of Vendor or any officers, agents, servants, employees or subVendor of Vendor. Neither Vendor, nor any officers, agents, servants, employees or subVendor of Vendor shall be entitled to any employment benefits from City. Vendor shall be 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 subVendor. 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 GENERAL INDEMNIFICATION- VENDOR HEREBY CO VENANTSAND AGREES TO INDEMNIFY,HOLD HARMLESSAND DEFEND CITY,ITS OFFICERS,AGENTS,SERVANTS AND EMPLOYEES,FROMAND A GAINSTANYAND ALL CLAIMS OR LAWSUITS OFANYKIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO VENDOR'S BUSINESS AND ANY RESUL TING L OST PR OFITS)AND/OR PERSONAL INJURY,INCL UDING DEA TH, TOANYAND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF VENDOR,ITS OFFICERS,AGENTS,SERVANTS OR EMPLOYEES. 8.3 INTELLECTUAL PROPERTY INDEMNIFICATION — Vendor agrees to defend, settle, or pay, at its own cost and expense, any claim or action against City for infringement of any patent, copyright, trade mark, trade secret, or similar property right arising from City's use of the software and/or documentation in accordance with this Agreement, it being understood that this agreement to defend, settle or pay shall not apply if City modifies or misuses the software and/or documentation. So long as Vendor bears the cost and expense of payment for claims or actions against City pursuant to this section,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 claim; however, City shall have the right to fully participate in any and all such settlement, negotiations, or lawsuit as necessary to protect 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 City for infringement arising under this Agreement, 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 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 Professional Services Agreement Page 3 of 17 receive relating thereto. Notwithstanding the foregoing, City's assumption of payment of costs or expenses shall not eliminate Vendor's duty to indemnify City under this Agreement.If the software and/or documentation 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 software and/or documentation;or(b)modify the software and/or documentation to make it non-infringing, provided that such modification does not materially adversely affect City's authorized use of the software and/or documentation; or (c) replace the software and/or documentation with equally suitable, compatible, and functionally equivalent non-infringing software and/or documentation 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 City,subsequent to which termination City may seek any and all remedies available to City under law. 9. ASSIGNMENT AND SUBCONTRACTING. 9.1 Assignment. Vendor shall not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of City. If City grants consent to an assignment,the assignee shall execute a written agreement with City and Vendor under which the assignee agrees to be bound by the duties and obligations of Vendor under this Agreement.Vendor and Assignee shall be jointly liable for all obligations of Vendor under this Agreement prior to the effective date of the assignment. 9.2 Subcontract. If City grants consent to a subcontract, sub Vendor shall execute a written agreement with Vendor referencing this Agreement under which sub Vendor shall agree to be bound by the duties and obligations of Vendor under this Agreement as such duties and obligations may apply. Vendor shall provide City with a fully executed copy of any such subcontract. 10. INSURANCE. Vendor shall provide City with certificate(s) of insurance documenting policies of the following types and minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this Agreement: 10.1 Coverage and Limits (a) Commercial General Liability: $1,000,000- Each Occurrence $2,000,000- Aggregate (b) Automobile Liability: $1,000,000 - Each occurrence on a combined single limit basis Coverage shall be on any vehicle used by Vendor, its employees, agents, representatives in the course of providing services under this Agreement. "Any vehicle"shall be any vehicle owned, hired and non-owned. (c) Worker's Compensation: Professional Services Agreement Page 4 of 17 Statutory limits according to the Texas Workers' Compensation Act or any other state workers' compensation laws where the work is being performed Employers' liability $100,000- Bodily Injury by accident; each accident/occurrence $100,000- Bodily Injury by disease; each employee $500,000- Bodily Injury by disease;policy limit (d) Professional Liability(Errors &Omissions): $1,000,000- Each Claim Limit $1,000,000- Aggregate Limit Professional Liability coverage may be provided through an endorsement to the Commercial General Liability (CGL) policy, or a separate policy specific to Professional E&O. Either is acceptable if coverage meets all other requirements. Coverage shall be claims-made,and maintained for the duration of the contractual agreement and for two (2) years following completion of services provided. An annual certificate of insurance shall be submitted to City to evidence coverage. 10.2 General Requirements (a) The commercial general liability and automobile liability policies shall name 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. (b) The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery)in favor of City. (c) A minimum of Thirty (30) days' notice of cancellation or reduction in limits of coverage shall be provided to 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,200 Texas Street,Fort Worth,Texas 76102,with copies to the Fort Worth City Attorney at the same address. (d) 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-VU 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. (e) Any failure on the part of City to request required insurance documentation shall not constitute a waiver of the insurance requirement. (f) Certificates of Insurance evidencing that Vendor has obtained all required insurance shall be delivered to the City prior to Vendor proceeding with any work pursuant to this Agreement. Professional Services Agreement Page 5 of 17 11. COMPLIANCE WITH LAWS,ORDINANCES,RULES AND REGULATIONS. Vendor agrees that in the performance of its obligations hereunder, it shall comply with all applicable federal, state and local laws, ordinances,rules and regulations and that any work it produces in connection with this Agreement will also comply with all applicable federal, state and local laws, ordinances, rules and regulations. If City notifies Vendor of any violation of such laws, ordinances, rules or regulations,Vendor shall immediately desist from and correct the violation. 12. NON-DISCRINHNATION COVENANT. Vendor, for itself, its personal representatives, assigns, sub-vendors 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-DISCREVHNATION COVENANT BY VENDOR, ITS PERSONAL REPRESENTATIVES,ASSIGNS, SUBVENDORSS OR SUCCESSORS IN INTEREST,VENDOR AGREES TO ASSUME SUCH LIABILITY AND TO INDEMNIFY AND DEFEND CITY AND HOLD 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 CITY: To VENDOR: City of Fort Worth KPM Analytics Attn: Dana Burghdoff,Assistant City Manager Greg Israelson,Director Customer Experience 200 Texas Street 113 Cedar St. S-3 Fort Worth,TX 76102-6314 Milford, MA 01757 Facsimile: (817)392-8654 203-740-2955 With copy to Fort Worth City Attorney's Office at same address 14. SOLICITATION OF EMPLOYEES. Neither 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 Vendor, 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.Notwithstanding the foregoing,this provision shall not apply to an employee of either party who responds to a general solicitation of advertisement of employment by either party. Professional Services Agreement Page 6 of 17 15. GOVERNMENTAL POWERS. It is understood and agreed that by execution of this Agreement, City does not waive or surrender any of its governmental powers or immunities. 16. NO WAIVER. The failure of 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 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/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 pursuant to 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 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, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 20. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only, shall not be deemed a part of this Agreement,and are not intended to define or limit the scope of any provision of this Agreement. 21. REVIEW OF COUNSEL. The parties acknowledge that each party and its counsel have reviewed and revised 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 A,B, and C. 22. AMENDMENTS/MODIFICATIONS/EXTENSIONS. No amendment,modification, or extension of this Agreement shall be binding upon a party hereto unless set forth in a written instrument,which is executed by an authorized representative of each party. Professional Services Agreement Page 7 of 17 23. ENTIRETY OF AGREEMENT. This Agreement, including Exhibits A,B and C, contains the entire understanding and agreement between 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. 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 City to Vendor for the nonconforming services. 26. 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 1-9 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. 27. OWNERSHIP OF WORK PRODUCT. City shall be the sole and exclusive owner of all reports, work papers, procedures, guides, and documentation, created, published, displayed, and/or produced in conjunction with the services provided under this Agreement(collectively, "Work Product"). Further, City shall be the sole and exclusive owner of all copyright, patent, trademark, trade secret and other proprietary rights in and to the Work Product. Ownership of the Work Product shall inure to the benefit of City from the date of conception, creation or fixation of the Work Product in a tangible medium of expression (whichever occurs first). Each copyrightable aspect of the Work Product shall be considered a "work-made-for-hire"within the meaning of the Copyright Act of 1976, as amended. If and to the extent such Work Product, or any part thereof, is not considered a "work-made-for-hire" within the meaning of the Copyright Act of 1976, as amended, Vendor hereby expressly assigns to City all exclusive right, title and interest in and to the Work Product, and all copies thereof,and in and to the copyright,patent,trademark,trade secret,and all other proprietary Professional Services Agreement Page 8 of 17 rights therein, that City may have or obtain, without further consideration, free from any claim, lien for balance due, or rights of retention thereto on the part of City. 28. 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 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"C". Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. 29. CHANGE IN COMPANY NAME OR OWNERSHIP Vendor shall notify City's Purchasing Manager, in writing, of a company name, ownership, or address change for the purpose of maintaining updated City records.The president of Vendor or authorized official must sign the letter. A letter indicating changes in a company name or ownership must be accompanied with supporting legal documentation such as an updated W-9,documents filed with the state indicating such change, copy of the board of director's resolution approving the action, or an executed merger or acquisition agreement. Failure to provide the specified documentation so may adversely impact future invoice payments. 30. PROHIBITION ON CONTRACTING WITH COMPANIES THAT BOYCOTT ISRAEL Vendor acknowledges that in accordance with Chapter 2270 of the Texas Government Code, the 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 contract, Vendor certifies that Vendor's signature provides written verification to the City that Vendor: (1) does not boycott Israel; and (2)will not boycott Israel during the term of the contract. /JOIN WI NESS WHEREOF, the parties hereto have executed this Agreement in multiples this —day of ' , 20J (signature page follows) Professional Services Agreement Page 9 of 17 ACCEPTED AND AGREED: CITY OF FORT WORTH: CONTRACT COMPLIANCE MANAGER: By signing I acknowledge that I am the person responsible for the monitoring and administration of B �64-mlthis contract,including ensuring all perfp ance and Y Name: Dana reporting req r ents. / urghd Title: Assi t City Manager Date: Z By: Narne: Patricia St i y APPROVAL RECOMMENDED: Title: Management Analyst H By: [�L APPROVED AS TO FORM AND LEGALITY: Name: Chris Harder Title: Water Director By: Name: hrista Rey lds ATTEST: Title: Sr.Assistant City Attorn CONTRACT AUTHORIZATION: -M&C: , By. Name: M ay Title: City ecretary .. � VENDOR: KPMANALYTICS ATTEST: By: By: Name: _Greg Israelson Name:B�e • ette arcello Title: Director Customer Experience Title Mead of Human Resoources Date: 1 Professional Services Agreement Page 10 of I7 EXHIBIT A SCOPE OF SERVICES Unity Scientific �'� 113 Codm St.5-3 Mllfard,MA 01757 Uy r nit i l i a TEL(203)740-2999 FAX(203)740-2955 Jamie Dilday Oct 31.20tg City of Forth Worth Quote#1901031-IAG1 2600 SE Loop 82D Fort Worth,TX 76140 SMARTCHEM ELITE SERVICE CONTRACT OPTION 1 Elite Service Contract Coverage Year l: IOVO I/19—9/3(V20 for SC200 s(n W 1105245&W 1205279-$13,400 Year 2: I M 1/20—9PAV21 for SC200 s/n W 1105245&W 1205279-$13,800 Year 3: 1(V01121-9/3(1f22 for SC20D s/n W 1205279-$7,100(W'1105245 switches to P.NI only—see price below) The Elite Service Contract includes the following: • One on-site Preventive Maintenance(PM)visit,by a Factory Trained Service Engineer,to confirm analyzer is performing at an optimum level. The PM visit includes: o All PM parts,labor and travel expenses o All firmware and software updates o Any mechanical updates deemed necessary by the manufacturer o Verification and adjustments of all mechanical alignments o Verification and calibration of all electronic adjustments; o Replacement of all peristaltic pump and transmission tubing o Replacement of halogen lamp and balancing of detectors o Replacement of wash station drying pad o Replacement of a full set of cu%vltes • In addition to onsite service,the Elite option also includes the following consumables.shipped to arrive with the PM visit: o (1)393-5001-600.Halogen tamp(to be used at time of PM visit) o (1)396-5003-IQD,Reaction Cuveltes,Pkg/60(to be used at time of PM visit) o (4)390-1003-800,Drying Pad(I drying pad to be used at time of PM visit) o (2)396-50UM0,Peristaltic Pump Tube,Pkg/3(I Pkg to be used at line of PM visit) o (2)562-6001-001,Cadmium Reduction Pump Tube,Pkg/12(1 Pkg to be used at time of PM visit) o (2)365-0366-900.Wash Solution,Pkgf5 o (2)3AS-RN00-21,Rinse Solution,Each o (4)127-0018-01,Sample Cups,Pkg/1000 o (1)365-0051-601,Tubing Kit(to be used at time of PM visit) • 2 onsite service visits(covering labor and travel),as determined necessary by Unity Scientific Instruments. • 25%off list price for repair parts required for service visits • Unlimited phone support. �ItPM A t:ALYTICS Professional Services Agreement—Exhibit A Page 11 of 17 EXHIBIT A SCOPE OF SERVICES Unity Scientific Unity 113 Cedur St.$•3 i Milford,MA 01757 ei T€L(203)740-2999 FAx(203)740-2955 PM only Visit Coverage Year 3: 1W 1/21-W30122 for SC200 sfn W 1105-745-$3.295 Year 4: 10101/22-W-10123 for SC200 sin W 1105245&W 1205279-$7,100 Year 5: 10t01123-9130124 for SC200 s/n W 1105245 3L W 1205279-$7500 I The.PM only visit includes the following: • One on-site Preventive Maintenance(PM)visit,by a Factory Trained Service 6ngincer,to confirm analyzer is performing at an optimum level. The PM visit includes: o PM parts,labor and travel expenses o All firmware and software updates o Any mechanical updates dccmed necessary by the manufacturer o Verification and adjustments of all mechanical alignments a Verification and calibration of all electronic adjustments n Replacement of all peristaltic pump and transmission tubing • Replacement of halogen lamp and balancing of detectors a Replacement of wash station drying pad J a Replacement of a full set of cuvencs • The PM visit includes the following consumables,shipped to arrive with the PM visit: o (1)393-5001-600,Halogen Lamp(to be used at time of PM visit) a (1)396-5003-100,Reaction Cuvettes,Pkg(60(to be used at time of 1310 visit) o (1)390-1003-800,Drying:Pad(to be used at time of PM visit) o (1)396-5004-000,Peristaltic Pump Tube,Pkg13(to be used at time,of PM visit) o (1)562-6001-001,Cadmium Reduction Pump Tube,Pkg/12(to be used at time of PA1 visit) o (1)365-0051-601,Tubing kit(to be used at time of PM visit) • Unlimited phone support • Unity Scientific is the only authorized service provider for the SmanChem. • NOTE:if customer has not had a PM visit in more than 18 months,the purchase price is$4,795,with PM to be scheduled upon start of contract period.Customer is responsible for the cost of any parts needed to ensure the instrument is in working order at the start of the contract period. If instrument is not in good working condition,additional onsite day will be at$2,0001day. �ICPM AN ALY7I�S Professional Services Agreement Page 12 of 17 f Unity Sciontiflc 113 Coda(S1.Un, MII1ord�MA 01757 Sci*ntiic TEL(203)740-2999 (VMW�— rax(203)740-2955 *Unity Scientific is the only autlior¢ed service provider for the SmartChent. **Service contracts do not include repair or replacement of the compuler.monitor or printer Notes: The SmartChem must be in good working order at the start of the contract. AlicI e-11e-Gctjtu•ski- Quolationvalid through December30.2019 K PTM Professional Services Agreement Page 13 of 17 LUnity 4Unity Sciantifle 113Cedar 01. 57Millard,MA 01757 TEL(203)740-2999 rax(203)740-2055 TERMS AND CONDITIONS FOR SALE L Deliveries and Shortages.All sales are FOB point of manufacture_All freight Cartage and handling charges wall be paid by Buyer. Claims for shortages wflf not be considered unless written notice is received by Seller within 30 days from the date when products leave point of manufacture_ 2. Excusable Delays. If Seller shall be delayed or prevented from delivering ary product on the date promised due to any cause beyond its reasonable control,such May shall be excused during the Continuance of and to the extent of such cause and the date of delivery shall be postponed for such period as may be necessary to enable Seller to deliver after the cause of delay has been removed. 3. Payments and Security Interest. A. The prices specified are in US currency,free of all expenses to Seller for collection charges. If shipment is delayed at Buyer's request,payment shall become duo and payable when Seller notifies Buyer that the products are ready for shipment. his agreed that slarage will beat Buyer's risk with reasonable compensation to Seller for such storage and additional handling charges. B- Payment shall be made in rash price to shipment or,subject in each instance to approval of credit by Sellers credit department, within 30 days from date of invoice.All delinquent amounts will bear interest at the race of 1.5%per month an the unpaid balance. Seller may,in its sole discretiaa,at any time change or withdraw any credit terms previousty extanded to Buyer, fn the event Buyer fails to make any payment when due and Seller places the aoceutntwilh an attorney or edtei.tion agency for collection,Buyer agrees to pay all costs of collection including reasonable anorney's tees. C. In the event that any indebtedness owed by Buyer to Safer shall be past due,Seller may,at its option and In addlion to any other rights it may have,suspend further shipment until all such indebtedness has been paid. After shipment•all products shall be at the risk and expense of Buyer as b loss,destruction damage,taxes and charges of every kind. D. Buyer specifically agrees that Seller shall have,and Buyer hereby grants to Seiler•a security interest under the Uniform Commercial Code In all products covered by this Agreement as soon as each product has been shipped to Buyer. Buyer will pay all costs of fifing any financing conlinuation,or termination statements in all public offixs in which filing is deemed by Seller to be necessary or desirable Seller is hereby appointed Buyers attomay-in-fad to do,at Sellers option and at Buyer's expense,al acts and things which Seller may deem necessary to perfect and continue perfected it*security interest created hereby so that it constitutes a valid and enforceable first priority security interest in and to such product(s). 4- Taxes and Duties. Buyer shall pay,in addition to the purchase price of any product,amounts equal to arty tariff,duties andror safes or use tax or any tax in lieu thereof imposed by any government or governmental agency with respect to the sale of such product(s). 5. Inspection Charges- Prices do not include charges connected with inspection by outside individuals or agents which are performed at the request of Buyer,unless otherwise indicated herein. 6. Evidence of Product's Condition. Upon delivery of any products to a common carrier,a clean bill of lading or express receipt shalt serve as ccnclusive evidence of the good condition of such products. Buyer shall make no claim against Seller for any damage to the products unless such damage was The direct result of Seller's negligence. 7_ Carrier to be Agent of Buyer.Wheria er Seller shall deliver of cause to be delivered to a common carrier any products covered by this Agreement,whether the particular common carrier shall have been designated by Buyer or not,Seller shall be relieved of all responsibility for any delays or damages in shipment,and the common carrier to which Seller shall delver such products is hereby declared to be the agent of the Buyer. Seller shall,horAeAer,retain title and right at possession until the purchase price has been paid in full. 8. Bankruptcy,Eta of Buyer- Buyer agrees to carry sufficient insurance to protect Seller's interest in the products. Prior to full payment of the purchase price,it Buyer should breach any of the terms of this Agreement or file or allow to be filed against it,a petition in bankruptcy or an assignment for the benefit of creditors.Seller may declare the entire balance due and,at its option,may repossess the products. Should Seller Belt the products,Uwe outstanding balance shall be credited by the amount realized on the sale less any expenses incurred to repossess and sell this products and collect the outstanding balance from Buyer. 9. Shipping Delays. Seller shall not be liable for any loss or damage for delay or non delay due to The acts of either civil or military authority,acts cl Buys I.or by reason of force majeure,which shall be deemed to mean all other causes whatsoever not reasonably within the conical of Seller including,but not limited to,Acts of Grid,war,riot or Insurrection,blockades,embargoes,sabotage,epidemics, fires, strikes,look-outs or other industrial disturbances,delays of carriers,and inability to secure materials,labor or manufacturing facilities. Shipping Delays-Continued IN NO EVENT SHALL SELLER BE LIABLE FORANY SPECIAL,INDIRECT,OR CONSEQUENTIAL DAMAGES ARISING FROM DELAY IRRESPECTPJE OF THE REASON THEREFORE,AND RECEIPT CF THE PRODUCT BY BUYER SHALL CONSTITUTE ACCEPTANCE OF DELNERYAND WAPJER OF ANY CLAIMS DUE TO DELAY. KPM A ri ALY Cf. Professional Services Agreement Page 14 of 17 Unity scientific F 113 Cedar 01 f 57MllfnrdJr MN KI1757sc Ir TEL(203)740-2999 FAx(203)740-2955 10_ Returns. No products will be accepted for Credit 4 returned withoutwritlen permission from Seller's home office.AN products accepted for credit are subject to a restocking charge according to a schedule which is available upon request from Seller. No product will be aeoepled for credit after ninety(90)days from date of purchase. 11. Warranty. A. Seller warrants that all of the products manufactured by i shall,at the time of shipment,be free from defects in material and workmanship in fight of the state of the art at the time of manufacture_ Seller's liability for breach of this warranty shall be limited to fide obligation to repair or replace,at Sellers expense,any defective product or part manufactured by Seller which is redetn9red to Sellers plant,shipping charges prepaid,provided Buyer gives prourptwril len notice of such defects. No allowance will be given for repairs or alterations made by Buyer unless made with Seller a prior written consent. Seller shall have no obligation or liability with respect to any claim made more than one year after shipment All claims must be in writing and must specify the particular defect on which such claim is based. B. Seller shall have no responsibility for damages caused by ordinary wear and tear,unintended use,misuse,abuse or improper handling,operation,or storage of any product by Buyer or any third party. Extendad Warranty is available upon request C. THE WARRANTY OF SELLER AND SELLER'S OBLIGATIONS AND LIABILITIES FOR BREACH THEREOF AS SPECIFIED IN THIS AGREEMENT ARE IN LIEU OF,AND SELLER HEREBY EXPRESSLY DISCLAIMSAND BUYER HEREBY WANES,(I)ALL OTHER WARRANTIES OF SELLER,EXPRESSED OR IMPLIED,WITH RESPECT TO THE PRODUCTS INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR OR INTENDED USES,AND(y)ALL OTHER OBLIGATIONS AND LIABILITIES OF SELLER FOR THE BREACH OF THE WARRANTY INCLUDING WITHOUT LIMITATION, ANY LIABILITY FOR CONSEQUENTIAL OR OTHER DAMAGES,WHETHER OR NOT FORESEEABLE,TO BUYER ANY USER OF THE PRODUCT.OR ANY OTHER PERSON. 12- Compliance with Laws. In performing hereunder,Seller shall comply fully with all applicable laws,ordinances,rules and regulations. Seller warrants that all products tumished to Buyer shall be produoad in compliance with the Fair Labor Standards Act of 1938 as amended. 13. Changes. Seller reserves the right to make reasonable changes to the products.Seller shag notify buyer as soon as practical if such changes affect delivery cr pnoe. 14. Cancellation. This Agreement may be cancelled only upon mutual agreement of Breyer and Seller after written request by Buyer. If such cancellation is agreed upon,Buyer assumes responsibility for the immediate payment of all cancellation charges. 16. Assignment- Seller may not assign this Agreement or any rights or obligations arising hereunder without the consent of Buyer and Buyer may not assign this Agreement at arry rights or obligations hareurxier without Seller's written approval,which Seller may withhold in its absolute discretion. 16. Waiver Alteration or Modification. Nowaiver,alteration or mockllcation of arry of the provisions hereof shall be binding on Seller unless made in wriling and agreed to by a duly authorized officer of Seger.Waiver by either parry of any default by the other hereunder shall not be deemed a waiver by such party of any default by the otherwhich may thereafter occur. General. The terms hereof,including thosewrittenwithin the body of this document shall constitute the entire agreement between Buyer and Seller. This Agreement shall be construed in accordance with the laws of the State of Colorado,United States of America.Any litigation under this Agreement,if commenced by Buyer,shall be brought in a court of competent jurisdiction in the State of Colorado. in the event that any of the printed terms or conditions set forth(herein are in conflict with or inconsistent with other terms,t)Wwritlen or handwritten,within this document,then the typewritten or handwritten terms shall govern to the extent necessary to remedy the conflict or inconsistency,but the printed terms shall govern all offer respects. I ;I< PM Art ALY71C5 Professional Services Agreement Page 15 of 17 EXHIBIT B PRICE SCHEDULE Elite Service Contract Coverage • Year 1: 10/01/19—09/30/20 for SC200 s/n W1105245&W1205279-$13,400 • Year 2: 10/01/20—09/30/21 for SC200 On W1105245&W1205279-$13,800 • Year 3: 10/01/21 —09/30/22 for SC200 s/n W 1205279-$7,100 • W 1105245 switches to PM only—see price below) PM only Visit Coverage Year 3: 10/01/21—09/30/22 for SC200 s/n W1105245-$3,295 Year 4: 10/01/22—09/30/23 for SC200 s/n W1105245&W1205279-$7,100 Year 5: 10/01/23—09/30/24 for SC200 s/n W 1105245&W1205279-$7,500 $47,805 will be utilized for any consumables,parts and repairs not covered under the preventative maintenance schedule. Professional Services Agreement—Exhibit C Page 16 of 17 EXHIBIT C VERIFICATION OF SIGNATURE AUTHORITY KPM ANALYTICS UNITY SCIENTIFIC 113 CEDAR ST S-3 MILFORD,MA 01757 Vendor hereby agrees to provide City with independent audit basic financial statements, but also the fair presentation of the financial statements of individual funds. Execution of this Signature Verification Form ("Form") hereby certifies that the following individuals and/or positions have the authority to legally bind 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 Vendor.City is fully entitled to rely on the warranty and representation set forth in this Forn 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. City is entitled to rely on any current executed Form until it receives a revised Form that has been properly executed by Vendor. 1. Name: Greg Israelson Position: Director Customer Experience Signature 2. Name: Position: Signature 3. Name: Position: Signature Name: Signature o et—s-i ent/ E Other Title: Date: Professional Services Agreement—Exhibit C Page 17 of 17