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HomeMy WebLinkAboutContract 61684CSC No. 61684 FORT WORTH CITY OF FORT WORTH PURCHASE AGREEMENT This Purchase Agreement ("Agreement") is entered into by and between Drip Drop Hydration Inc. ("Seller") and the City of Fort Worth ("Buyer"), a Texas home -rule municipal corporation, individually referred to as "party" and collectively as "parties". The Purchase Agreement includes the following documents which shall be construed in the order of precedence in which they are listed: 1. This Purchase Agreement; 2. Exhibit A: Terms and Conditions; 3. Exhibit B: Conflict of Interest Questionnaire. 4. Exhibit C: Seller Contact Information 7. Exhibit D: Seller's Quote Exhibits A, B, C, and D, 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 fifty thousand dollars ($50,000.00). The undersigned represents and warrants that he or she has the power and authority to execute this Agreement and bind the respective party. Seller and Buyer have caused this Agreement to be executed by their duly authorized representatives to be effective on October 1, 2024. This Agreement may be executed by electronic signature, which will be considered as an original signature for all purposes and have the same force and effect as an original signature. For these purposes, "electronic signature" means electronically scanned and transmitted versions (e.g. via pdf file or facsimile transmission) of an original signature, or signatures electronically inserted via software such as Adobe Sign. [Signature Page Follows] [Remainder of Page Intentionally Left Blank] 1 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples. CITY OF FORT WORTH: Pang BurghdoAc By: Dana Burehdoff (Jul 1 02415:56 CDT) Name: Dana Bur2hdoff Title: Assistant Citv ManaLyer Date: J u 112, 2024 APPROVAL RECOMMENDED: �By:J s Davis (Jul 12, 202413:11 CDT) Name: James E. Davis Title: Fire Chief ATTEST .o4vann e � �oo FOR?o'0�dd �oo Ova o=d ?p�* °°° °° o d Qmn nm�en % `�,S�as aafl neXA?4�p By: Name: Jannette Goodall Title: Citv Secretary SELLER: Drip Drop Hydration Inc. By: Name:ftre Sumerlin Title: VP Government Sales Date: 11 July 2024 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. 122 By: BJul 12, 2024 08:57 CDT) Name: Brenda Rav Title: Purchasing Manager APPROVED AS TO FORM AND LEGALITY: By; --/— P"'5 Name: Andrea Phillips Title: Assistant Citv Attornev CONTRACT AUTHORIZATION: M&C: N/A M&C Date: N/A Form 1295: N/A OFFICIAL RECORD 2 CITY SECRETARY FT. WORTH, TX 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 Drip Drop Hydration Inc., 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 of October 1, 2024 ("Effective Date") and shall expire twelve months from effective date ("Expiration Date"), unless terminated earlier in accordance with this Agreement. Buyer 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. 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. 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 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). 3 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; (c) 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 shall bear the cost of packaging unless otherwise provided. 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. 10.0 DELIVERY TERMS AND TRANSPORTATION CHARGES Freight terms shall be F.O.B. Destination, Freight Prepaid and Allowed. 4 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 furnish a tax exemption certificate upon Seller's request. 12.3 Payment. All payment terms shall be "Net 30 Days" unless otherwise agreed to in writing. Before the 1st 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 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 5 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 sample(s) 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 make such refund shall constitute breach and cause this contract to terminate immediately 17.0 SOFTWARE LICENSE TO SELLER If this purchase is for the license of software products and/or services, and unless otherwise agreed, Seller hereby grants to Buyer, a perpetual, irrevocable, non-exclusive, nontransferable, royalty free license to use the software. This software is "proprietary" to Seller, and is licensed and provided to the Buyer for its sole use for purposes under this Agreement and any attached work orders or invoices. The Buyer may not use or share this software without permission of the Seller; however, Buyer may make copies of the software expressly for backup purposes. 18.0 WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY 18.1 The SELLER 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 each individually referred to as a "Deliverable" and collectively as the 0 "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. 18.2 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; 18.3 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 7 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; and 18.4 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. 19.0 OWNERSHIP OF WORK PRODUCT Seller agrees that any and all analyses, evaluations, reports, memoranda, letters, ideas, processes, methods, programs, and manuals that were developed, prepared, conceived, made or suggested by the Seller for the Buyer pursuant to a Work Order, including all such developments as are originated or conceived during the term of the Contract and that are completed or reduced to writing thereafter (the "Work Product") and Seller acknowledges that such Work Product may be considered "work(s) made for hire" and will be and remain the exclusive property of the Buyer. To the extent that the Work Product, under applicable law, may not be considered work(s) made for hire, Seller hereby agrees that this Agreement effectively transfers, grants, conveys, and assigns exclusively to Buyer, all rights, title and ownership interests, including copyright, which Seller may have in any Work Product or any tangible media embodying such Work Product, without the necessity of any further consideration, and Buyer shall be entitled to obtain and hold in its own name, all Intellectual Property rights in and to the Work Product. Seller for itself and on behalf of its vendors hereby waives any property interest in such Work Product. 20.0 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. 21.0 TERMINATION 21.1 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. 21.2 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 8 expense to Buyer of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 21.3 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. 22.0 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 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. 23.0 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. 24.0 MODIFICATIONS This contract can be modified or rescinded only by a written agreement signed by both parties. 25.0 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 0 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. 26.0 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 County, Texas. This contract shall be governed, construed and enforced under the laws of the State of Texas. 27.0 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. 28.0 LIABILITY AND INDEMNIFICATION. 28.1 LIABILITY - SELLER 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 SELLER, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. 28.2 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 10 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 CA USED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF SELLER, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. 28.3 INTELLECTUAL PROPERTYINDEMNIFICATION- 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 PAYSHALL NOTAPPLYIFBUYER 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 HA VE THE RIGHT TO COND UCT 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 INANYAND ALL SUCHSETTLEMENT, 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 11 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 WITHEQUALLY SUITABLE, COMPATIBLE, AND FUNCTIONALL Y EQUIVALENT NON -INFRINGING SOFTWARE AND/OR D 0 CUMENTA TION A T NO ADDITIONAL CHARGE TO BUYER; OR (D) IF NONE OF THE FOREGOING ALTERNATIVES IS REASONABLY AVAILABLE TO SELLER TERMINATE THIS AGREEMENT, AND REFUND ALL AMOUNTSPAID TO SELLER BYBUYER, SUBSEQUENT TO WHICH TERMINATION BUYER MAY SEEK ANY AND ALL REMEDIES AVAILABLE TO BUYER UNDER LAW. 29 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. 30 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 whatsoever, except to the portions of annual payments herein agreed upon for which funds shall have been appropriated and budgeted or are otherwise available. 31 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 100 Fort Worth Trail Fort Worth, TX 76102 Facsimile: (817) 392-8654 12 TO SELLER: Drip Drop Hydration Inc. Gregory Sumerlin, VP Govt. Sales 1144 65th St. Suite C Oakland, CA 94608 With copy to Fort Worth City Attorney's Office at same address 32 NON-DISCRIMINATION Seller, for itself, its personal representatives, assigns, sub -vendors 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. 33 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 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. 34 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 terminate this Agreement for violations of this provision by Seller. 35 LINKED TERMS If the attached contains a website link to terms and conditions, the linked terms and 13 conditions located at that website link as of the effective date of the Agreement shall be the linked terms and conditions. To the extent that the linked terms and conditions conflict with any provision of either this Agreement, the provisions contained within this Agreement shall control. If any changes are made to the linked terms and conditions after the date of the Agreement, such changes are hereby deleted and void. Further, if Seller cannot clearly and sufficiently demonstrate the exact terms and conditions as of the effective date of the Agreement, all of the linked terms and conditions are hereby deleted and void. 36 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. 37 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. 38 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 14 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. 39 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 2271 of the Texas Government Code, 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" has the meanings ascribed to those terms in Chapter 2271 of the Texas Government Code. By signing this Agreement, Seller certifies that Seller's signature provides written verification to Buyer that Seller: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the Agreement. 40 PROHIBITION ON BOYCOTTING ENERGY COMPANIES. Seller acknowledges that in accordance with Chapter 2276 of the Texas Government Code, Buyer 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 boycott energy companies; and (2) will not boycott energy companies during the term of the contract. To the extent that Chapter 2276 of the Government Code is applicable to this Agreement, by signing this Agreement, Seller certifies that Seller's signature provides written verification to the City that Seller: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. 41 PROHIBITION ON DISCRIMINATION AGAINST FIREARM AND AMMUNITION INDUSTRIES. Seller acknowledges that except as otherwise provided by Chapter 2274 of the Texas Government Code, Buyer 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 association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. To the extent that Chapter 2274 of the Government 15 Code is applicable to this Agreement, by signing this Agreement, Seller certifies that Seller's signature provides written verification to Buyer that Seller: (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. 42 INSURANCE REQUIREMENTS 39.1 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 Seller, 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: 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 Buyer to evidence coverage. 16 39.2 General Requirements (a) The commercial general liability and automobile liability policies shall name Buyer as an additional insured thereon, as its interests may appear. The term Buyer 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 Buyer. (c) 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. (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- 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. (e) Any failure on the part of Buyer to request required insurance documentation shall not constitute a waiver of the insurance requirement. (f) Certificates of Insurance evidencing that Seller has obtained all required insurance shall be delivered to the Buyer prior to Seller proceeding with any work pursuant to this Agreement. 17 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 htty://www.ethics.state.tx.us/forms/CIO.vdf. 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. 18 CONFLICT OF INTEREST QUESTIONNAIRE For vendor doing business with local governmental entity This questionnaire reflects changes made to the law by H.B. 23. 84th Leg.. Regular Session. This questionnaire is being filed in accordance with Chapter 176. Local Government Code, 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). Bylaw this questionnaire must be filed with 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 Code. 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. 21 ❑ Check this box If you are filing an update to a previously filed questionnaire. FORM CIO OFFICE USE ONLY Date Receroed (The law 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. 41 Name of Officer This section (item 3 including subparts A, B. C, & D) must be completed for each officer with whom the vendor has an employment or other business relationship as defined by Section 176.001(1-a). Local Government Code. Attach additional pages to this Form CIO 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? F] Yes F-1 No 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? F1 Yes F1No C. Is the filer 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? F1 Yes F1 No D. Describe each employment or business and family relationship with the local government officer named in this section. Signature of vendor doing business with the governmental entity Date 19 Adopted 8/7+2015 EXHIBIT C — SELLER CONTACT INFORMATION Seller's Name: Seller's Local Address: Phone: Email: Fax: Name of persons to contact when placing an order or invoice questions: Name/Title Phone: Fax: Email: Name/Title Phone: Fax: Email: Name/Title Phone: Fax: Email: Signature Printed Name 20 Date EXHIBIT D — SELLER'S QUOTE Drip Drop Hydration Inc. 1144 651h Ave Suite G Oakland CA 94608 Dri Dro "° p p City of Fort Worth Texas June 5 2024 Thanks for your interest in Drip Drop ORS. Per our conversation, please find a summary of your order basis: Shipping included in Quote price. Drip Drop Oral Rehydration Powder Sticks Qty Unit Total Price Price 1 100 count 21gm powder $165.00 $165.00 stick - berry flavor 1 100 count 21gm powder $165.00 $165.00 stick- orange flavor 1 100 count 21 gm powder $165.00 $165.00 stick -watermelon flavor 1 100 Count 21gm powder $165.00 $165.00 stick -grape flavor 1 100 count lemon -Lime $165.00 $165.00 sugar free flavor 1 100 count 21gm powder $165.00 $165.00 stick- Lemon Shipping included in price Thank you for your interest in Drip Drop Hydration. We look forward to serving you! Expiration of quote is 30 days from the quote date. Sincerely, Greg Sumerlin 21