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HomeMy WebLinkAboutContract 59510CSC No. 59510 FORT WORTH CITY OF FORT WORTH SOLE SOURCE PURCHASE AGREEMENT This Sole Source Purchase Agreement ("Agreement") is entered into by and between. Cherry Engineering, INC. ("Seller") and the City of Fort Worth, ("Buyer"), a Texas home rule municipal corporation. The Sole Source Purchase Agreement includes the following documents which shall be construed in the order of precedence in which they are listed: 1. This Sole Source Purchase Agreement; 2. Exhibit A: Terms and Conditions; 3. Exhibit B: Conflict of Interest Questionnaire. 4. Exhibit C: Seller Contact Information 5. Exhibit D: Verification of Signature Authority 6. Exhibit E: Seller's Sole Source Justification Letter and 7. Exhibit F: Seller's Proposal Exhibits A, B, C, D, E, and F, which are attached hereto and incorporated herein, are made a part of this Agreement for all purposes. The Amount of this contract shall not exceed $50,000.00 (Fifty Thousand Dollars). The undersigned represents and warrants that he or she has the power and authority to execute this Agreement and bind the respective Seller. Seller and Buyer have caused this Agreement to be executed by their duly authorized representatives to be effective as of the date signed below. [SIGNATURE PAGE FOLLOWS] OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Revised 3.11.20tp ACCEPTED AND AGREED: CITY OF FORT WORTH ��� By: Name: Fernando Costa Title: Assistant City Manager Date: May 25, 2023 APPROVAL RECOMMENDED: B,7 • Robe A len A dredee Jr. (MaV 25, 202316:48 CDT) Name: Robert A. Alldredge, Jr. Title: Executive Assistant Chief ATTEST: 4 FORT �a �o Pvo o=d CdQ� nE�pSao By: Name: Jannette Goodall Title: City Secretary CHERRY ENGINEERING, INC BY- f� - 1 Name: Eliz eth Cherry Title: Vice President CONTRACT COMPLIANCE MANAGER: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Name: Loraine Coleman Title: Administrative Services Manager APPROVED AS TO FORM AND LEGALITY: By: ��- Name: Taylor Paris Title: Assistant City Attorney CONTRACT AUTHORIZATION: M&,C: NIA Date Approved: NIA Form 1295 Certification No.: NIA OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX 2 Revised 3.11.20tp Exhibit A CITY OF FORT WORTH, TEXAS STANDARD PURCHASING TERMS AND CONDITIONS 1.0 DEFINITION OF BUYER The City of Fort Worth, its officers, agents, servants, authorized employees, vendors and subcontractors who act on behalf of various City departments, bodies or agencies. 2.0 DEFINITION OF SELLER The Vendor(s), consultant, supplier, its officers, agents, servants, employees, vendors and subcontractors, or other provider of goods and/or services who act on behalf of the entity under a contract with the City of Fort Worth. 3.0 TERM This Agreement shall begin on the date signed by the Buyer's signatory ("Effective Date") and shall expire on January 31, 2025 ("Expiration Date"), unless terminated earlier in accordance with this Agreement ("Initial Term"). Buyer shall have the option to increase the price in January each year. City shall be able to renew this Agreement under the same terms and conditions, with the exception of pricing, for up to four (1) one-year renewal options by written agreement of the parties. 4.0 PUBLIC INFORMATION Buyer is a government entity under the laws of the State of Texas and all documents held or maintained by Buyer are subject to disclosure under the Texas Public Information Act. In the event there is a request for information marked Confidential or Proprietary, Buyer 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 Buyer, but by the Office of the Attorney General of the State of Texas or by a court of competent jurisdiction. The Parties agree that nothing contained within this Agreement is considered proprietary or trade secret information and this agreement may be released in the event that it is requested. Manuals provided with Cherry Engineering, INC tools contain proprietary and law enforcement sensitive information. 5.0 PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS No officer or employee of Buyer shall have a financial interest, direct or indirect, in any contract with Buyer or be financially interested, directly or indirectly, in the sale to Buyer Revised 3.11.20tp of any land, materials, supplies or services, except on behalf of Buyer as an officer or employee. Any willful violation of this section shall constitute malfeasance in office, and any officer or employee found guilty thereof shall thereby forfeit his office or position Any violation of this section with the knowledge, expressed or implied, of the person or corporation contracting with the City Council shall render the contract invalid by the City Manager or the City Council. (Chapter XXVII, Section 16, City of Fort Worth Charter). 6.0 ORDERS 6.1 No employees of the Buyer or its officers, agents, servants, vendors or sub vendors who act on behalf of various City departments, bodies or agencies are authorized to place orders for goods and/or services without providing approved contract numbers, purchase order numbers, or release numbers issued by the Buyer. The only exceptions are Purchasing Card orders and emergencies pursuant to Texas Local Government Code Section 252,022(a)(1), (2), or (3). In the case of emergencies, the Buyer's Purchasing Division will place such orders. 6.2 Acceptance of an order and delivery on the part of the Seller without an approved contract number, purchase order number, or release number issued by the Buyer may result in rejection of delivery, return of goods at the Seller's cost and/or non- payment. 7.0 SELLER TO PACKAGE GOODS Seller will package goods in accordance with good commercial practice. Each shipping container shall be clearly and permanently marked as follows: (a) Seller's name and address: (b) Consignee's name, address and purchase order or purchase change order number; (e) Container number and total number of containers, e.g., box 1 of 4 boxes; and (d) Number of the container bearing the packing slip. Seller will pass on the cost of specialty custom packaging needed for shipping fragile items within shipping cost. Goods shall be suitably packed to secure lowest transportation costs and to conform to requirements of common carriers and any applicable specifications. Buyer's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 8.0 SHIPMENT UNDER RESERVATION PROHIBITED Seller is not authorized to ship the goods under reservation, and no tender of a bill of lading will operate as a tender of goods. 9.0 TITLE AND RISK OF LOSS The title and risk of loss of the goods shall not pass to Buyer until Buyer actually receives and takes possession of the goods at the point or points of delivery after inspection and acceptance of the goods. 4 Revised 3.11.20tp 10.0 DELIVERY TERMS AND TRANSPORTATION CHARGES Freight terms shall be F.O.B. Destination, Freight Prepaid and Add. 11.0 PLACE OF DELIVERY The place of delivery shall be set forth in the "Ship to" block of the purchase order, purchase change order, or release order. 12.0 RIGHT OF INSPECTION Buyer shall have the right to inspect the goods upon delivery before accepting them. Seller shall be responsible for all charges for the return to Seller of any goods rejected as being nonconforming under the specifications. 13.0 INVOICES 13.1 Seller shall submit separate invoices in duplicate, on each purchase order or purchase change order after each delivery. invoices shall indicate the purchase order or purchase change order number. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, should be attached to the invoice. Seller shall mail or deliver invoices to Buyer's Department and address as set forth in the block of the purchase order, purchase change order or release order entitled "Ship to." Payment shall not be made until the above instruments have been submitted after delivery and acceptance of the goods and/or services. 13.2 Seller shall not include Federal Excise, State or City Sales Tax in its invoices. The Buyer shall fitrnish a tax exemption certificate upon Seller's request. 13.3 Payment. All payment terms shall be "Net 30 Days" unless otherwise agreed to in writing. Before the 1 st payment is due to Seller, Seller shall register for direct deposit payments prior to providing goods and/or services using the forms posted on the City's website". 14.0 PRICE WARRANTY 14.1 The price to be paid by Buyer shall be that contained in Seller's proposals which Seller warrants to be no higher than Seller's current prices on orders by others for products and services of the kind and specification covered by this agreement for similar quantities under like conditions and methods of purchase. In the event Seller breaches this warranty, the prices of the items shall be reduced to the prices contained in Seller's proposals, or in the alternative upon Buyer's option, Buyer shall have the right to cancel this contract without any liability to Seller for breach Revised 3.11.20tp or for Seller's actual expense. Such remedies are in addition to and not in lieu of any other remedies which Buyer may have in law or equity. 14.2 Seller warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for commission; percentage, brokerage or contingent fee, excepting employees of an established commercial or selling agency that is maintained by Seller for the purpose of securing business. For breach or violation of this warranty, Buyer shall have the right, in addition to any other right or rights arising pursuant to said purchase(s), to cancel this contract without liability and to deduct from the contract price such commission percentage, brokerage or contingent fee, or otherwise to recover the full amount thereof. 15.0 PRODUCT WARRANTY Seller shall not limit or exclude any express or implied warranties and any attempt to do so shall render this contract voidable at the option of Buyer. Seller warrants that the goods furnished will conform to Buyer's specifications, drawings and descriptions listed in the proposal invitation, and the samples) furnished by Seller, if any. In the event of a conflict between Buyer's specifications, drawings, and descriptions, Buyer's specifications shall govern. 16.0 SAFETY WARRANTY Seller warrants that the product sold to Buyer shall conform to the standards promulgated by the U.S. Department of Labor under the Occupational Safety and Health Act (OSHA) of 1970, as amended. In the event the product does not conform to OSHA standards, Buyer may return the product for correction or replacement at Seller's expense. In the event Seller fails to make appropriate correction within a reasonable time, any correction made by Buyer will be at Seller's expense. Where no correction is or can be made, Seller shall refund all monies received for such goods within thirty (30) days after request is made by Buyer in writing and received by Seller. Notice is considered to have been received upon hand delivery, or otherwise in accordance with Section 29.0 of these terms and conditions. Failure to mare such refund shall constitute breach and cause this contract to terminate immediately 17.0 WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY. 17.1 The SELLER warrants that all Deliverables, or any part thereof, furnished hereunder, including but not limited to: manuals, programs, documentation, software, analyses, applications, methods, ways, and processes (in this Section 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 Revised 3.11.20tp or other third party proprietary rights, in the performance of services under this Agreement. 17.2 SELLER shall be liable and responsible for any and all claims made against the Buyer 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 Buyer's continued use of the Deliverable(s) hereunder; 17.3 SELLER agrees to defend, settle, or pay, at its own cost and expense, any claim or action against Buyer for infringement of any patent, copyright, trade mark, trade secret, or similar property right arising from Buyer'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 Buyer modifies or misuses the software and/or documentation. So long as SELLER bears the cost and expense of payment for claims or actions against Buyer pursuant to this section, SELLER 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, Buyer shall have the right to fully participate in any and all such settlement, negotiations, or lawsuit as necessary to protect Buyer's interest, and Buyer agrees to cooperate with SELLER in doing so. In the event Buyer, for whatever reason, assumes the responsibility for payment of costs and expenses for any claim or action brought against Buyer for infringement arising under this Agreement, Buyer 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, SELLER shall fully participate and cooperate with Buyer in defense of such claim or action. Buyer agrees to give SELLER timely written notice of any such claim or action, with copies of all papers Buyer may receive relating thereto. Notwithstanding the foregoing, Buyer's assumption of payment of costs or expenses shall not eliminate SELLER's duty to indemnify Buyer 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, SELLER shall, at its own expense and as Buyer's sole remedy, either: (a) procure for Buyer 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 Buyer'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 Buyer; or (d) if none of the foregoing alternatives is reasonably available to SELLER terminate this Agreement, and refund all amounts paid to SELLER by Buyer, subsequent to 7 Revised 3.11.20tp which termination Buyer may seek any and all remedies available to Buyer under law; and 17.4 The representations, warranties, and covenants of the parties contained in section 13 through 17 of this Agreement will survive the termination and/or expiration of this Agreement. 18.0 CANCELLATION Buyer shall have the right to cancel this contract immediately for default on all or any part of the undelivered portion of this order if Seller breaches any of the terms hereof, including warranties of Seller. Such right of cancellation is in addition to and not in lieu of any other remedies, which Buyer may have in law or equity. 19.0 TERMINATION 19.1 Written Notice. The purchase of goods under this order may be terminated in whole or in part by Buyer, with or without cause, at any time upon the delivery to Seller of a written "Notice of Termination" specifying the extent to which the goods to be purchased under the order is terminated and the date upon which such termination becomes effective. Such right of termination is in addition to and not in lieu of any other termination rights of Buyer as set forth herein. 19.2 Non -appropriation of Funds. In the event no funds or insufficient funds are appropriated by Buyer in any fiscal period for any payments due- hereunder, Buyer will notify Seller 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 Buyer of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 19.3 Duties and Obligations of the Parties. Upon termination of this Agreement for any reason, Seller shall only be compensated for items requested by the Buyer and delivered prior to the effective date of termination, and Buyer shall not be liable for any other costs, including any claims for lost profits or incidental damages. Seller shall provide Buyer with copies of all completed or partially completed documents prepared under this Agreement. In the event Seller has received access to Buyer Information or data as a requirement to perform services hereunder, Seller shall return all Buyer provided data to Buyer in a machine readable format or other format deemed acceptable to Buyer. 20.0 ASSIGNMENT / DELEGATION No interest, obligation or right of Seller, including the right to receive payment, under this contract shall be assigned or delegated to another entity without the express written consent of Buyer. Any attempted assignment or delegation of Seller shall be wholly void and totally 8 Revised 3.11.20tp ineffective for all purposes unless made in conformity with this paragraph. Prior to Buyer giving its consent, Seller agrees that Seller shall provide, at no additional cost to Buyer, all documents, as determined by Buyer, that are reasonable and necessary to verify Seller's legal status and transfer of rights, interests, or obligations to another entity. The documents that may be requested include, but are not limited to, Articles of Incorporation and related amendments, Certificate of Merger, IRS Form W-9 to verify tax identification number, etc. Buyer reserves the right to withhold all payments to any entity other than Seller, if Seller is not in compliance with this provision. If Seller fails to provide necessary information in accordance with this section, Buyer shall not be liable for any penalties, fees or interest resulting therefrom.. 21.0 WAIVER No claim or right arising out of a breach of this contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration in writing and is signed by the aggrieved party. 22.0 MODIFICATIONS This contract can be modified or rescinded only by a written agreement signed by both parties. 23.0 THE AGREEMENT In the absence of an otherwise negotiated contract, or unless stated otherwise, the Agreement between Buyer and Seller shall consist of these Standard Terms and Conditions together with any attachments and exhibits. This Agreement is intended by the parties as a final expression of their agreement and is intended also as a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any term used in this Agreement. Acceptance of or acquiescence in a course of performance under this Agreement shall not be relevant to determine the meaning of this Agreement even though the accepting or acquiescing party has knowledge of the performance and opportunity for objection. Whenever a term defined by the Uniform Commercial Code (UCC) is used in this Agreement, the definition contained in the UCC shall control. In the event of a conflict between the contract documents, the order of precedence shall be these Standard Terms and Conditions, and the Seller's Quote. 24.0 APPLICABLE LAW / VENUE This agreement shall be governed by the Uniform Commercial Code wherever the term "Uniform Commercial Code" or "UCC" is used. It shall be construed as meaning the Uniform. Commercial Code as adopted and amended in the State of Texas. Both parties agree that venue for any litigation arising from this contract shall be in Fort Worth, Tarrant Revised 3.11.20tp County, Texas. This contract shall be governed, construed and enforced under the laws of the State of Texas. 25.0 INDEPENDENT CONTRACTOR(S) Seller shall operate hereunder as an independent contractor and not as an officer, agent, servant or employee of Buyer. Seller shall have exclusive control of, and the exclusive right to control, the details of its operations hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, employees, vendors and subcontractors. The doctrine of respondent superior shall not apply as between Buyer and Seller, its officers, agents, employees, vendors and subcontractors. Nothing herein shall be construed as creating a partnership or joint enterprise between Buyer and Seller, its officers, agents, employees, vendors and subcontractors. 26.0 LIABILITY AND INDEMNIFICATION. 26.1 LIABILITY - SELLER SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE ANDIOR 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 SELLER, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. 26.2 GENERAL INDEMNIFICATION - SELLER HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND BUYER, 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 SELLER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF SELLER, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. 26.3 INTELLECTUAL PROPER TYINDEMNIFICA TION— Seller agrees to defend, settle, or pay, at its own cost and expense, any claim or action against Buyer for infringement of any patent, copyright, trade mark, trade secret, or similar property right arising from Buyer's use of the software, manuals, and/or documentation in accordance with this Agreement, it being understood that this agreement to defend, settle or pay shall not apply if Buyer modifies or misuses the software and/or documentation. So long as Seller bears the cost and expense of payment for claims or actions against Buyer pursuant to this 10 Revised 3.11.20tp section, Seller 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, Buyer shall have the right to fully participate in any and all such settlement, negotiations, or lawsuit as necessary to protect Buyer's interest, and Buyer agrees to cooperate with Seller in doing so. In the event Buyer, for whatever reason, assumes the responsibility for payment of costs and expenses for any claim or action brought against Buyer for infringement arising under this Agreement, Buyer 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, Seller shall fully participate and cooperate with Buyer in defense of such claim or action. Buyer agrees to give Seller timely written notice of any such claim or action, with copies of all papers Buyer may receive relating thereto. Notwithstanding the foregoing, Buyer's assumption of payment of costs or expenses shall not eliminate Seller's duty to indemnify Buyer 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, Seller shall, at its own expense and as Buyer's sole remedy, either: (a) procure for Buyer 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 Buyer'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 Buyer; or (d) if none of the foregoing alternatives is reasonably available to Seller terminate this Agreement, and refund all amounts paid to Seller by Buyer, subsequent to which termination Buyer may seek any and all remedies available to Buyer under law. 27 SEVERABILITY In case any one or more of the provisions contained in this agreement shall for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this agreement, which agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 28 FISCAL FUNDING LIMITATION In the event no funds or insufficient funds are appropriated and budgeted in any fiscal period for payments due under this contract, then Buyer will immediately notify Seller of such occurrence and this contract shall be terminated on the last day of the fiscal period for which funds have been appropriated without penalty or expense to Buyer of any kind 11 Revised 3.11.20tp whatsoever, except to the portions of annual payments herein agreed upon for which funds shall have been appropriated and budgeted or are otherwise available. 29 NOTICES TO PARTIES 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 BUYER: City of Fort Worth Attn: Purchasing Manager 200 Texas Street Fort Worth, TX 76102-6314 Facsimile: (817) 392-8654 With copy to Fort Worth City Attorney's Office at same address 30 NON-DISCRIMINATION TO SELLER Cherry Engineering, INC Attn: Elizabeth Cherry 8805 Scarlet Knight ST NE Albuquerque, NM 87122 TEL: 505-292-3879 FAX.: 505-292-3855 Seller, for itself, its personal representatives, assigns, subVendors and successors in interest, as part of the consideration herein, agrees that in the performance of Seller'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 SELLER, ITS PERSONAL REPRESENTATIVES, ASSIGNS, SUBVENDORS OR SUCCESSORS IN INTEREST, SELLER AGREES TO ASSUME SUCH LIABILITY AND TO INDEMNIFY AND DEFEND BUYER AND HOLD BUYER HARMLESS FROM SUCH CLAIM. 31 IMMIGRATION NATIONALITY ACT Seller 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 Buyer, Seller shall provide Buyer with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Seller 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 Seller employee who is not legally eligible to perform such services. SELLER SHALL INDEMNIFY BUYER 12 Revised 3.11.20tp AND HOLD BUYER HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY SELLER, SELLER'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. Buyer, upon written notice to Seller, shall have the right to immediately terminate this Agreement for violations of this provision by Seller. 32 HEALTH, SAFETY, AND ENVIRONMENTAL REOUIREMENTS Services, products, materials, and supplies provided by the Seller must meet or exceed all applicable health, safety, and the environmental laws, requirements, and standards. In addition, Seller agrees to obtain and pay, at its own expense, for all licenses, permits, certificates, and inspections necessary to provide the products or to perform the services hereunder. Seller shall indemnify Buyer from any penalties or liabilities due to violations of this provision. Buyer shall have the right to immediately tenninate this Agreement for violations of this provision by Seller. 33 RIGHT TO AUDIT Seller agrees that Buyer 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 Seller involving transactions relating to this Agreement at no additional cost to Buyer. Seller agrees that Buyer shall have access during normal working hours to all necessary Seller facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. Buyer shall give Seller reasonable advance notice of intended audits. The Buyer's right to audit, as described herein, shall survive the termination and/or expiration of this Agreement. 34 DISABILITY In accordance with the provisions of the Americans With Disabilities Act of 1990 (ADA), Seller warrants that it and any and all of its subcontractors will not unlawfully discriminate on the basis of disability in the provision of services to general public, nor in the availability, terms and/or conditions of employment for applicants for employment with, or employees of Seller or any of its subcontractors. Seller warrants it will fully comply with ADA's provisions and any other applicable federal, state and local laws concerning disability and will defend, indemnify and hold Buyer harmless against any claims or allegations asserted by third parties or subcontractors against Buyer arising out of Seller's and/or its subcontractor's alleged failure to comply with the above -referenced laws concerning disability discrimination in the performance of this agreement. 13 Revised 3.11.20tp 35 DISPUTE RESOLUTION If either Buyer or Seller 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 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 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. If the parties submit the dispute to non- binding mediation and 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. 36 PROHIBITION ON CONTRACTING WITH COMPANIES THAT BOYCOTT ISRAEL If Seller has fewer than 10 employees or this Agreement is for less than $100,000, this section does not apply. Seller acknowledges that in accordance with Chapter 2270 of the Texas Government Code, the Buyer 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, Seller certifies that Seller's signature provides written verification to the Buyer that Seller: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. 37 INSURANCE REOUIREMENTS 37.1 Coveraize and Limits (a) Commercial General Liability: $1,000,000 - Each Occurrence $2,000,000 - Aggregate (b) Worker's Compensation: 14 Revised 3.11.20tp 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 (c) 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 Buyer to evidence coverage. 37.2 General Reurrements (a) Seller carries Professional and General Liability insurance. (b) A minimum of Thirty (30) days' notice of cancellation or reduction in limits of coverage shall be provided to Buyer. Ten (10) days' notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the Risk Manager, Buyer of Fort Worth, 200 Texas Street, Fort Worth, Texas 76102, with copies to the Fort Worth City Attorney at the same address. (c) Any failure on the part of Buyer to request required insurance documentation shall not constitute a waiver of the insurance requirement. (d) Certificates of Insurance evidencing that Vendor has obtained all required insurance shall be delivered to the Buyer prior to Vendor proceeding with any work pursuant to this Agreement. 15 Revised 3.11.20tp Exhibit B — CONFLICT OF INTEREST QUESTIONNAIRE Pursuant to Chapter 176 of the Local Government Code, any person or agent of a person who contracts or seeks to contract for the sale or purchase of property, goods, or services with a local governmental entity (i.e. The City of Fort Worth) must disclose in the Questionnaire Form CIQ ("Questionnaire") the person's affiliation or business relationship that might cause a conflict of interest with the local governmental entity. By law, the Questionnaire must be filed with the Fort Worth City Secretary no later than seven days after the date the person begins contract discussions or negotiations with the Buyer, or submits an application or response to a request for proposals or bids, correspondence, or another writing related to a potential agreement with the Buyer. Updated Questionnaires must be filed in conformance with Chapter 176. A copy of the Questionnaire Form CIQ is enclosed with the submittal documents. The form is also available at httpJ/www.ethics.state.tx.us/forms/CIO.I)df: If you have any questions about compliance, please consult your own legal counsel. Compliance is the individual responsibility of each person or agent of a person who is subject to the filing requirement. An offense under Chapter 176 is a Class C misdemeanor. NOTE: If you are not aware of a Conflict of Interest in any business relationship that you might have with the Buyer, state Seller name in the # 1, use N/A in each of the areas on the form. However, a signature is required in the #4 box in all cases. 16 Revised 3.11.20tp CONFLICT OF INTEREST QUESTIONNAIRE For vendor doing business with local governmental entity FORM CIQ This questionnaire reflects changes made to the taw by H.B. a 84th Leg., Regular Session. OFFICE USE ONLY This questionnaire is being filed in accordancewith Chapter 176, Local Government Code, Date Rocwod by a vendorwho has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the vendor meets requirements under Section 176.006(a). By law this questionnaire must be filedwith the records administrator of the local governmental entity not later than the 7th Business day after the date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Government Cade. A vendor commits an offense if the vendor knowingly violates Section 176,006, Local Government Code.An offense under this section is a misdemeanor. J Name of vendor who has a business relationship with local governmental entity. t J I I Check this box ff ylru are fIlIMI.Im update to a p ously filed questionnalm. (The taw requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th business day after the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate.) 3 Name of local government officer about whom the information In this section Is being disclosed. Name of Officer This section (item 3 including subparts A. 13, C, & 0) must be completed for each officer with whom the vendor has an employment or other business relationship as defined by Section 176.001 (1 -a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the vendor? E] Yes No N B. Is the vendor receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? Yes = No � A C. is the fifer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership interest of one percent or more? El Yes � No 144 D. describe each employment or business and family relationship with the local government officer named in this section. F=' Cv, , S-l7-ZS Signature pf endor doing business with the rnmetrtat entity Date Adopted 8 712015 17 Revised 3.11.20tp EXHIBIT C — SELLER CONTACT INFORMATION L AAC , Seller's Name: Seller's Local Address:�,;:� Phone: R -7 c ¢ Fax: hr� Email: Cw C� �� �n P-r- " . , 6i rnry\ J Name of persons to contact when placing an order or invoice questions: Name/Title Vrv-i- PM.-s"A"'o� Phone:Fax: Email:r�rvj P ones �ln 4.r . , C'errv� 1 ;J Name/Title Phone: Email: Name/Title Phone: Email: Fax: Fax: Signature Printed Name Date 18 Revised 3.11.20tp EXHIBIT D VERIFICATION OF SIGNATURE AUTHORITY Cherry Engineering, INC Attn: Elizabeth Cherry 8805 Scarlet Knight ST NE Albuquerque, NM 87122 Execution of this Signature Verification Form ("Form") hereby certifies that the following individuals and/or positions have the authority to legally bind Seller and to execute any agreement, amendment or change order on behalf of Seller. Such binding authority has been granted by proper order, resolution, ordinance or other authorization of Seller. Buyer is fully entitled to rely on the warranty and representation set forth in this Form in entering into any agreement or amendment with Seller. Seller will submit an updated Form within ten (10) business days if there are any changes to the signatory authority. Buyer is entitled to rely on any current executed Form until it receives a revised Form that has been properly executed by Seller. Name: CI1Lrnl I Position: tC`_� r i cjg-Y`- & Signa 2. Name: Position: Signature Signatur�ofP sident/CEO/Managi artner Title: ��r����M- Date 19 Revised 3.11.20tp Exhibit E Seller's Sole Source Justification Letter CHERRY ENGINEERING, INC. TECHNICALLY CHARACTERIZED AND OPERATIONALLY PROVEN 1kU UISANLlMkN I"IE(:HNULUl:1kS `�AUVANIkU iRA1NIN(: UUUHSkS tXl'L()SIVk kNTIiV SYSIkMS C7/- T�CIINICAI. CCINSIIITINC SOLE SOURCE PROVIDER Cherry Engineering, INC is the sole source provider, sole source manufacturer, and sole source distributor of the following products' Advanced Disablement Tool Sample Kit MWBT"Disrupter — Commercially Valuable Information(CVI)— licensedproduct MWB Magnum— Disrupter Remote MWB Disrupter Delivery PlatformTM Horizontal MWB Disrupter Positioning FixtureTI Black Boxes' Disrupter System — based on CV] that is a licensed product - Tri-Stem- Disrupter Big Mikew Disrupter MWB TM and MWB MagnumTm Loading Kit Frangible Link Kit Hydra -Jet- Disrupter — patented — licensed product Remote Horizontal Delivery Fixtures for Hydra-JetTm Disrupter Trunk TrasherTm Disrupter System — based on patented licensed product Aqua-Det- Portal Charge SWAT Block Adapterfor Aqua-DetT1d Portal Charge Lock -Buster- Severing Charge Magic CubeT Opening Charge — patented — licensed product Sherwood Special- Projectile — patented — licensed product Sherwood Special"" Seating Tool Flyer Plate TM Projectile Charge Det-SafeT"' Detonator Protector Disrupter Tool Tower' Shock Tube 3-way Splitters & Shock Tube 4-way Splitlers Shock Tube Safety VaIV9TM System Cherry TreeTm Dual Disrupter Delivery Fixture Bat-JackTM Disrupter Delivery System Pipe Bomb TrainerTm System APEX Shock Keys"" Breaching Charge APEX SC Strip Charger' Breaching Charge APEX NP-SC Narrow Profile Strip ChargeTm Breaching Charge APEX FDT Full Length Door Charge APEX HST"' High Security Tandem Door Charge APEX MerrimacT Gun Port Charge APEX MerrimacTI Team Entry Charge APEX Delta-PTM (A-P) Fluid Impulse Charge APEX Saltirel Steel Garage Door Portal Charge APEX FinlanderT"' Specialized Security Door Charge 2022 All products listed are the invention of Chris Cherry, President of Cherry Engineering, INC. All products are manufactured and distributed exclusively by Cherry Engineering, INC. All products listed are made in the USA. Please direct all product information inquiries to Elizabeth Cherry at (505) 292-3878. Elizabeth P. Cherry Vice President CHERRY ENGINEERING, INC. 8805 Scarlet Knight ST NE TEL: 505-292-3878 Albuquerque, NM 87122 V~.CHERRYENGINEERINGINC.COM FAX: 505-292-3855 PROPRIETARY- RESTRICTED RIGHTS © 2022 20 Revised 3.11.20tp Exhibit F Seller's Proposal Cherry Engineering, INC 8805 Scarlet Knight Street NE Albuquerque, NM 87122 An American Company TEL: 505-292-3878 FAX: 505-292-3878 Name / Address Police Fiscal & Equipment Management 505 W. Felix Street Fort Worth, TX 76115 Description APEX Shock Key - Dead Bolt & Door Lock Charge - case of 12 APEX Strip Charge - Standard - 9 inch - case of 12 APEX Strip Charge - Standard - 12 inch - case of 12 APEX Strip Charge - Standard - 15 inch - case of 12 APEX Strip Charge - Mixed case - 9, 12, & 15 inch standard strip charges - 4 of each size - case of 12 APEX Narrow Profile Strip Charge - 9 inch - case of 12 APEX Narrow Profile Strip Charge - 12 inch - case of 12 APEX Narrow Profile Strip Charge -15 inch - case of 12 APEX Narrow Profile Strip Charge - Mixed Case - 9, 12, 15 inch - case of 12 - 4 of each size APEX Full Length Door Charge - case of 6 APEX High Security Tandem Door Charge - case of 6 Delta P - Fluid Impulse Charge - 4 inch - case of 16 Delta P - Fluid Impulse Charge - 8 inch - case of 16 Delta P - Fluid Impulse Charge - 12 inch - case of 16 Delta P - Fluid Impulse Charge - 15 inch - case of 16 Delta P - Fluid Impulse Charge - Mixed case - 8 & 12 inch -10 of each size - case of 20 Merrimac Gun Port Charge (without prop sticks) - case of 2 Merrimac Gun Port Charge (prop slicks included) - case of 2 2-Component Prop stick for Merrimac Gun Port Charge - case of 4 Merrimac Team Entry Charge - case of 2 APEX Saltire Steel Garage Door Portal Charge - case of 8 Shock Tube Cutter - each Shock Tube Tee - pkg of 10 3-Way Shock Tube Sputter - pkg of 10 4-Way Shock Tube Sputter - pkg of 10 Thank you for your business P.O. No. 21 Page 1 Price Quote Date I Estimate # 9/7/2022 1 3018 Terms Rep Account# Net 30 BC Qty cost Total 1 760.00 760.00 1 760.00 760.00 1 814.00 814.00 1 837.00 837.00 1 797.00 797.00 1 760.00 760.00 1 814.00 814.00 1 837.00 837.00 1 797.00 797.00 1 995.00 995.00 1 986.00 986.00 1 511.00 511.00 1 534.00 534.00 1 557.00 557.00 1 581.00 581.00 1 682.00 682.00 1 562.00 562.00 1 621.00 621.00 1 122.00 122.00 1 690.00 690.00 1 327.00 327.00 1 12.00 12.00 1 28.00 28.00 1 60.00 60.00 1 77.00 77.00 Total Revised 3.11.20tp Cherry Engineering, INC 8805 Scarlet Knight Street NE Albuquerque, NM 87122 An American Company TEL: 505-292-3878 FAX; 505-292-3878 Name / Address Police Fiscal & Equipment Management 505 W. Felix Street Fort Worth, TX 76115 P.O. No. Description Shock Tube Safety Valve System - pkg of 10 Det-Safe Detonator Protector - case of 10 Aqua-Det SWAT Block Adapter - case of 16 Aqua-Det Portal Charge - case of 16 Additional Copy of Loading Instructions & Performance Data - each Shipping to be added as line item when official quote is requested. Pricing effective through 12/31/22 Thank you for your business. Page 2 22 Price Quote Date Estimate # 9/7/2022 3018 Terms Rep Account # Net 30 BC Qty Cost Total 1 88.00 88.00 1 143.00 143.00 1 122.00 122.00 1 292.00 292.00 1 25.00 25.00 I Total $15,191.00 Revised 3.11.20tp