No preview available
HomeMy WebLinkAboutC20-403 Intrepid PotashAGREEMENT FOR ROAD SALT MATERIALS BETWEEN EAGLE COUNTY, COLORADO AND INTREPID POTASH – MOAB, LLC. THIS AGREEMENT (“Agreement”) is effective as of ___________________________________ by and between Intrepid Potash – Moab, LLC, a Delaware limited liability company (hereinafter “Vendor”) and Eagle County, Colorado, a body corporate and politic (hereinafter “County”). RECITALS WHEREAS, County desires to purchase 300 tons of medium road salt material (hereinafter “Road Salt Material” or “Materials”) for its various County Roads from Vendor; and WHEREAS, Vendor is authorized to do business in the State of Colorado and has the time, skill, expertise, and experience necessary to provide the Materials as set forth below in Paragraph 1 hereof; and WHEREAS, this Agreement shall govern the relationship between Vendor and County in connection with the procurement of Road Salt Material. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the following promises Vendor and County agree as follows: 1.Materials. Vendor agrees to procure and deliver 300 tons of medium road salt material as described in Exhibit A which is attached hereto and incorporated herein by reference. The Materials shall be delivered to the Maintenance Service Center (“MSC”) located at 3289 Cooley Mesa Road in Gypsum, CO 81637. The Road Salt Material shall be provided in accordance with the provisions and conditions of this Agreement. a.Vendor agrees to furnish the Road Salt Material no later than December 31, 2020. By signing below, Vendor represents that it has the expertise and personnel necessary to properly and timely provide the Road Salt Material. b.In the event of any conflict or inconsistency between the terms and conditions set forth in Exhibit A and the terms and conditions set forth in this Agreement, the terms and conditions set forth in this Agreement shall prevail. c.County shall have the right to inspect all Road Salt Material. Inspection and acceptance shall not be unreasonably delayed or refused. In the event County does not accept the Road Salt Material because the Materials do not meet the County’s specifications in a material way, then Vendor shall upon County’s request and at no charge to County, at Vendor’s election either: i.take the Road Salt Material back; or ii.exchange the Road Salt Material. 2.County’s Representative. The Road and Bridge Department’s designee shall be Vendor’s contact with respect to this Agreement. DocuSign Envelope ID: 63E3FB1C-16CD-43AB-B44B-54C74C08A507 11/4/2020 C20-403 2 Eagle County Materials and Equipment Agreement 5/14 3. Term of the Agreement. This Agreement shall commence upon the date first written above, and subject to the provisions of Paragraph 10 and other provisions that may survive termination hereof, shall continue in full force and effect through the 31st day of December, 2020. 4. Extension or Modification. Any amendments or modifications shall be in writing signed by both parties. No additional Materials shall be provided by Vendor unless and until Vendor has obtained written authorization and acknowledgement by County for such additional materials in accordance with County’s internal policies. Accordingly, no course of conduct or dealings between the parties, nor verbal change orders, express or implied acceptance of alterations or additions to the Materials, and no claim that County has been unjustly enriched by any Materials, whether or not there is in fact any such unjust enrichment, shall be the basis of any increase in the compensation payable hereunder. In the event that written authorization and acknowledgment by County for such additional materials is not timely executed and issued in strict accordance with this Agreement, Vendor’s rights with respect to such additional materials shall be deemed waived and such failure shall result in non-payment for such additional materials. 5. Compensation. County shall compensate Vendor for the Materials in a sum computed and payable as set forth in Exhibit A. The compensation under this Agreement shall not exceed $24,600. a. Payment will be made for Materials satisfactorily delivered and accepted by County within thirty (30) days of receipt of a proper and accurate invoice from Vendor. All invoices shall include detail regarding the Materials and such other detail as County may reasonably request. b. If, at any time during the term or after termination or expiration of this Agreement, County reasonably determines that any payment made by County to Vendor was improper because the Materials for which payment was made were not provided materially as set forth in this Agreement, then upon written notice of such determination and request for reimbursement from County, Vendor shall forthwith return such payment(s) to County, and County at Vendor’s request will return the Materials to Vendor at no cost to County. Upon termination or expiration of this Agreement, unexpended funds advanced by County, if any, shall forthwith be returned to County. c. County will not withhold any taxes from monies paid to the Vendor hereunder and Vendor agrees to be solely responsible for the accurate reporting and payment of any taxes related to payments made pursuant to the terms of this Agreement. d. Notwithstanding anything to the contrary contained in this Agreement, County shall have no obligations under this Agreement after, nor shall any payments be made to Vendor in respect of any period after December 31 of any year, without an appropriation therefor by County in accordance with a budget adopted by the Board of County Commissioners in compliance with Article 25, Title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. 29-1-101 et. seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). 6. Insurance. Vendor agrees to provide and maintain at Vendor’s sole cost and expense, the following insurance coverage with limits of liability not less than those stated below: a. Types of Insurance. i. Workers’ Compensation insurance as required by law. DocuSign Envelope ID: 63E3FB1C-16CD-43AB-B44B-54C74C08A507 3 Eagle County Materials and Equipment Agreement 5/14 ii. Auto coverage with limits of liability not less than $1,000,000 each accident combined bodily injury and property damage liability insurance, including coverage for owned, hired, and non-owned vehicles. iii. Commercial General Liability coverage to include premises and operations, personal/advertising injury, products/completed operations, broad form property damage with limits of liability not less than $1,000,000 per occurrence and $1,000,000 aggregate limits. b. Other Requirements. i. The automobile and commercial general liability coverage shall be endorsed to include Eagle County, its associated or affiliated entities, its successors and assigns, elected officials, employees, agents and volunteers as additional insureds. A certificate of insurance consistent with the foregoing requirements is attached hereto as Exhibit B. ii. The insurance provisions of this Agreement shall survive expiration or termination hereof. iii. The parties hereto understand and agree that the County is relying on, and does not waive or intend to waive by any provision of this Agreement, the monetary limitations or rights, immunities and protections provided by the Colorado Governmental Immunity Act, as from time to time amended, or otherwise available to County, its affiliated entities, successors or assigns, its elected officials, employees, agents and volunteers. iv. Vendor is not entitled to workers’ compensation benefits except as provided by the Vendor, nor to unemployment insurance benefits unless unemployment compensation coverage is provided by Vendor or some other entity. The Vendor is obligated to pay all federal and state income tax on any moneys paid pursuant to this Agreement. 7. Indemnification. The Vendor shall indemnify and hold harmless County, and any of its officers, agents and employees against any losses, claims, damages or liabilities for which County may become subject to insofar as any such losses, claims, damages or liabilities arise out of, directly or indirectly, this Agreement, or are based upon any performance or nonperformance by Vendor or any of its subcontractors hereunder; and Vendor shall reimburse County for reasonable attorney fees and costs, legal and other expenses incurred by County in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnification shall not apply to claims by third parties against the County to the extent that County is liable to such third party for such claims without regard to the involvement of the Vendor. This paragraph shall survive expiration or termination hereof. Vendor will not be liable for any special, incidental, indirect, or consequential damages of County. 8. Documents. Vendor shall execute any bill of sale or other documents reasonably required by County to transfer title of the Materials to County. 9. Notice. Any notice required by this Agreement shall be deemed properly delivered when (i) personally delivered, or (ii) when mailed in the United States mail, first class postage prepaid, or (iii) when delivered by FedEx or other comparable courier service, charges prepaid, to the parties at their respective addresses listed below, or (iv) when sent via facsimile so long as the sending party can provide facsimile machine or other confirmation showing the date, time and receiving facsimile number for the transmission, or (v) when transmitted via e-mail with confirmation of receipt. Either party may change its address for purposes of this paragraph by giving five (5) days prior written notice of such change to the other party. DocuSign Envelope ID: 63E3FB1C-16CD-43AB-B44B-54C74C08A507 4 Eagle County Materials and Equipment Agreement 5/14 COUNTY: Eagle County Road and Bridge Atten: John Harris 500 Broadway Post Office Box 250 Eagle, CO 81631 Telephone: 970-328-3542 Facsimile: 970-328-3546 E-mail: john.harris@eaglecounty.us With a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, Co 81631 Telephone: 970-38-8685 Facsimile: 970-328-8699 E-Mail: atty@eaglecounty.us VENDOR: Intrepid Potash – Moab, LLC Atten: Kevin Harmison PO Box 1208 Moab, UT 84532 Telephone: 435-259-1213 Mobile: 435-260-0473 E-Mail: KevinH@intrepidpotash.com 10. Termination. County may terminate this Agreement, in whole or in part, at any time and for any reason, with or without cause, and without penalty therefor with 14 calendar days’ prior written notice to the Vendor. Upon termination of this Agreement, Vendor shall immediately provide County with all documents as defined in paragraph 8 hereof, in such format as County shall direct and shall return all County owned materials and documents in the possession of Vendor, if any. County shall pay Vendor for Materials delivered in accordance with Section 1 prior to the date of termination. 11. Venue, Jurisdiction and Applicable Law. Any and all claims, disputes or controversies related to this Agreement, or breach thereof, shall be litigated in the District Court for Eagle County, Colorado, which shall be the sole and exclusive forum for such litigation. This Agreement shall be construed and interpreted under and shall be governed by the laws of the State of Colorado. 12. Execution by Counterparts; Electronic Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. The parties approve the use of electronic signatures for execution of this Agreement. Only the following two forms of electronic signatures shall be permitted to bind the parties to this Agreement: (i) Electronic or facsimile delivery of a fully executed copy of the signature page; (ii) the image of the signature of an authorized signer inserted onto PDF format documents. All documents must be properly notarized, if applicable. All use of electronic signatures shall be governed by the Uniform Electronic Transactions Act, C.R.S. 24-71.3-101 to 121. DocuSign Envelope ID: 63E3FB1C-16CD-43AB-B44B-54C74C08A507 5 Eagle County Materials and Equipment Agreement 5/14 13. Other Contract Requirements and Vendor Representations. a. Vendor has familiarized itself with the intended purpose and use of the Materials to be provided hereunder, the intended use of such Materials by County, and with all local conditions, federal, state and local laws, ordinances, rules and regulations that in any manner affect cost, progress, or the Materials. b. Vendor will make, or cause to be made, examinations, investigations, and tests as he deems necessary for the performance of this Agreement. c. The fact that the County has accepted or approved the Materials shall not relieve Vendor of any of its responsibilities. Vendor represents and warrants that it has the expertise and personnel necessary to properly perform the terms of this Agreement. Vendor shall provide appropriate supervision to its employees to ensure the performance in accordance with this Agreement. Vendor will provide the Materials in a skillful, professional and competent manner and in accordance with the standard of care applicable to vendors supplying similar materials. d. Intentionally Omitted. e. Vendor hereby represents and warrants that the Materials will be new and not mixed with or co- mingled with other material. f. Intentionally Omitted. g. Vendor warrants that title to all Materials shall pass to County either by acceptance by County at a County facility or upon receipt by Vendor of payment from County (whichever occurs first) free and clear of all liens, claims, security interests or encumbrances. Vendor further warrants that Vendor (or any other person performing work) purchased all Materials free and clear of all liens, claims, security interests or encumbrances. Notwithstanding the foregoing, Vendor assumes all risk of loss with respect to the Materials until County has inspected and approved the same. h. Intentionally Omitted. i. Guarantees and warranties shall not be construed to modify or limit any rights or actions County may otherwise have against Vendor in law or in equity. j. Vendor agrees to work in an expeditious manner, within the sound exercise of its judgment and professional standards, in the performance of this Agreement. Time is of the essence with respect to this Agreement. k. This Agreement constitutes an agreement for performance by Contractor as an independent Contractor and not as an employee of County. Nothing contained in this Agreement shall be deemed to create a relationship of employer-employee, master-servant, partnership, joint venture or any other relationship between County and Vendor except that of independent Vendor. Vendor shall have no authority to bind County. l. Vendor represents and warrants that at all times in the performance of the Agreement, Vendor shall comply with any and all applicable laws, codes, rules and regulations. m. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all other agreements or understanding between the parties with respect thereto. DocuSign Envelope ID: 63E3FB1C-16CD-43AB-B44B-54C74C08A507 6 Eagle County Materials and Equipment Agreement 5/14 n. Vendor shall not assign any portion of this Agreement without the prior written consent of the County. Any attempt to assign this Agreement without such consent shall be void. o. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted assigns and successors in interest. Enforcement of this Agreement and all rights and obligations hereunder are reserved solely for the parties, and not to any third party. p. No failure or delay by either party in the exercise of any right hereunder shall constitute a waiver thereof. No waiver of any breach shall be deemed a waiver of any preceding or succeeding breach. q. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof. r. The signatories to this Agreement aver to their knowledge no employee of the County has any personal or beneficial interest whatsoever in the Materials described in this Agreement. The Vendor has no beneficial interest, direct or indirect, that would conflict in any manner or degree with the performance of the Agreement and Vendor shall not employ any person having such known interests. s. The Vendor, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that he or she (i) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii) to the extent applicable shall comply with C.R.S. 24-76.5-103 prior to the effective date of this Agreement. 14. Prohibitions on Government Contracts. As used in this Section 14, the term undocumented individual will refer to those individuals from foreign countries not legally in the United States as set forth in C.R.S. 8-17.5-101, et. seq. If Vendor has any employees or subcontractors, Vendor shall comply with C.R.S. 8-17.5-101, et. seq., and this Agreement. By execution of this Agreement, Vendor certifies that it does not knowingly employ or contract with an undocumented individual who will perform under this Agreement and that Vendor will participate in the E-verify Program or other Department of Labor and Employment program (“Department Program”) in order to confirm the eligibility of all employees who are newly hired for employment to perform Services under this Agreement. a. Vendor shall not: i. Knowingly employ or contract with an undocumented individual to perform Services under this Agreement; or ii. Enter into a subcontract that fails to certify to Vendor that the subcontractor shall not knowingly employ or contract with an undocumented individual to perform work under the public contract for services. b. Vendor has confirmed the employment eligibility of all employees who are newly hired for employment to perform Services under this Agreement through participation in the E-Verify Program or Department Program, as administered by the United States Department of Homeland Security. Information on applying for the E-verify program can be found at: https://www.uscis.gov/e-verify c. Vendor shall not use either the E-verify program or other Department Program procedures to undertake pre-employment screening of job applicants while the public contract for services is being performed. DocuSign Envelope ID: 63E3FB1C-16CD-43AB-B44B-54C74C08A507 7 Eagle County Materials and Equipment Agreement 5/14 d. If Vendor obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with an undocumented individual, Vendor shall be required to: i. Notify the subcontractor and County within three (3) days that Vendor has actual knowledge that the subcontractor is employing or contracting with an undocumented individual; and ii. Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to subparagraph (i) of the paragraph (d) the subcontractor does not stop employing or contracting with the undocumented individual; except that Vendor shall not terminate the contract with the subcontractor if during such three (3) days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an undocumented individual. e. Vendor shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority established in C.R.S. 8-17.5-102(5). f. If Vendor violates these prohibitions, County may terminate the Agreement for breach of contract. If the Agreement is so terminated specifically for breach of this provision of this Agreement, Vendor shall be liable for actual and consequential damages to County as required by law. g. County will notify the Colorado Secretary of State if Vendor violates this provision of this Agreement and County terminates the Agreement for such breach. IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first set forth above. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its COUNTY MANAGER By: ______________________________ Jeff Shroll, County Manager VENDOR: INTREPID POTASH – MOAB, LLC By:________________________________ Print Name: _________________________ Title: ______________________________ DocuSign Envelope ID: 63E3FB1C-16CD-43AB-B44B-54C74C08A507 Kevin Harmison Production Superintendent & Sales 8 Eagle County Materials and Equipment Agreement 5/14 EXHIBIT A MATERIALS AND FEES DocuSign Envelope ID: 63E3FB1C-16CD-43AB-B44B-54C74C08A507 SALES QUOTATION FROM INTREPID September 29, 2020 Nicole Trujillo Eagle County Road & Bridge Phone: Email: nicole.trujillo@eaglecounty.us Dear Nicole, Thank you for purchasing Intrepid products. Below is a summary of our agreement: Product Quantity (Ton)Price ($/Ton)Estimated Invoice Amount ($) Medium Salt 300.00 $82.00 $24,600.00 Total 300.00 $24,600.00 Purchase Order Number: Intrepid Opportunity Number: 000953-2020-09-29-A-26981 Payment Terms: Net 30 days from date of invoice Ship From: Moab Medium Salt Ship To: Gypsom, Colorado Shipping Method: Truck Train Car Type: Shipping Terms: Delivered Shipping Period Start: November 03, 2020 Shipping Period End: December 31, 2020 Additional Information: Nicole, Thank you very much for the business. This contract is subject to Intrepid's Terms & Conditions of Sale. If for any reason you do not agree with any of the information above or the Terms & Conditions of sale, please contact me immediately. Thank you again for your business, Kevin Harmison Intrepid 1001 17th St., Suite 1050 Denver, CO 80202 (Office) +1 4352600473 (Mobile) kevinh@intrepidpotash.com DocuSign Envelope ID: 63E3FB1C-16CD-43AB-B44B-54C74C08A507 THESE TERMS AND CONDITIONS, ALONG WITH THE TERMS ON THE RELATED CONFIRMATION OF SALE FROM SELLER (“ORDER”), GOVERN THE PURCHASE OF THE MATERIALS LISTED ON THE RELATED ORDER (‘MATERIALS”) FROM INTREPID POTASH, INC., INTREPID POTASH–NEW MEXICO, LLC, INTREPID POTASH–MOAB, LLC, INTREPID POTASH–WENDOVER, LLC, OR ANY OF THEIR AFFILIATES (“SELLER”) NAMED THEREIN AND ARE INCORPORATED INTO THE TERMS OF THE ORDER BY THIS REFERENCE. 1.Conflicting Provisions. The Order, including these Terms and Conditions, will control as to the terms of the purchase and sale covered by this Order, notwithstanding any prior discussion or prior subsequent purchase order or similar document from the purchasing party listed in the Order (“Purchaser”). Purchaser, by taking delivery of all or any portion of any Materials from Seller, will be conclusively deemed to have accepted and assented to these Terms and Conditions. 2.Purchase Price and Payment Terms. The purchase price for the Materials in the Order excludes sales, use, occupation, license, VAT, GST, and/or any applicable taxes, customs, duties and fees of any kind, all of which will be paid by Purchaser, with the exception of any income tax which is to be legally bourn by Seller resulting from this sales transaction. Purchaser or its designated agent will be the “Importer of Record.” 3.Payment. The purchase price for all items is payable in lawful money of the United States. International sales will require payment be made by wire transfer. Acceptance by Seller of drafts, checks or other media of payment will be provisional only and subject to immediate collection of the full face amount thereof. Seller reserves the right to charge a late fee, assessed daily at a rate of 12% per annum subject to the maximum rate allowable by law, and/or any legal fees incurred by Seller to enforce payment, if Purchaser fails to make any payments to Seller when the same become due. Seller will be entitled at all times to set-off any amounts owing at any time from Purchaser to Seller against any amount payable at any time by Seller to Purchaser. All orders and credit availability may be subject to other terms as may be in effect at the time of shipment. Furthermore, international sales will require an irrevocable standby letter of credit (“SLOC”) in contractual form by a bank acceptable to Seller and on any other terms as are acceptable to Seller. If Purchaser fails to open a SLOC in time or in a form acceptable to Seller, then Seller may reject, delay or cancel any and all Orders with Seller at any time and has no obligation to ship the Materials referred to herein. 4.Shipments and Delivery. Seller reserves the right to accept or reject Purchaser’s offer to purchase Materials. Seller will use commercially reasonable efforts to meet shipment or delivery dates stated in the Order but any dates are estimates only and are not guaranteed or warranted. Seller reserves the right, in its discretion, to allocate its inventory between Purchaser and Seller’s other customers. Unless otherwise agreed in writing, Seller will have the right to make partial shipments, and invoices covering the same will be due and payable by Purchaser in accordance with the payment terms hereof. Except as otherwise set forth on the related Confirmation of Sales, all shipments will be Ex Works Seller’s facility, including warehouses (Incoterms 2010). Title to Materials to pass to Purchaser in accordance with delivery as defined by the shipping terms. Seller will assume risk of loss until the time as title transfers to Purchaser, who then assumes all risk of loss or damage to products upon delivery by Seller. In addition, Seller assumes any and all risk of loss or damage to any third party related to or involving the Materials at any time during shipment. Notwithstanding delivery terms, all loss and damage claims will be handled and filed against the carrier by the party, Purchaser or Seller, responsible for paying the carrier’s original freight bill with any settlements to be reverted to the party affected; subject to Seller’s right of set-off; provided, further that this provision does not affect Purchaser’s obligation to make timely payment for Materials delivered. Notwithstanding the preceding sentence, Seller reserves the right to charge Purchaser applicable demurrage and detention charges and expenses (rail car or other) for delays in performance caused by Purchaser or due to any port congestion in accordance with the policies of the applicable railroad or other carrier. 5.Suspension of Credit or Shipment. Seller may, at any time, alter, delay or suspend credit to Purchaser, suspend, delay or refuse to ship to Purchaser, or cancel any or all unfilled Orders when, in Seller’s discretion: (a) the financial condition of Purchaser is unsatisfactory to Seller; (b) Purchaser is delinquent in payment of any obligation owed to Seller; (c) sale of Materials may result in environmental safety, health danger or hazard; or (d) the action is necessitated to comply with Seller’s obligations under applicable law. 6.Force Majeure. Neither Purchaser nor Seller will incur any liability to the other by reason of failure or delay in fulfilling its obligations under the Order (except for payment obligations which will not be excused) where the failure or delay is beyond the reasonable control of the party affected, has a material impact on the affected party (“Affected Party”) and is caused by or results from acts of God, floods, fires, accidents, explosions, strike, lockouts, cessation, slowdown or stoppage of labor, sabotage, riots, war, acts of terrorism, enemy action, laws, regulations, rulings or acts of any governmental body or authority, governmental restriction or prohibition of exports or imports, governmental blockade or hostility, governmental seizure or expropriation or the closure of international trade routes, other inability to obtain raw materials or power or any other cause beyond the reasonable control of the Affected Party, whether or not the contingency is of the same type or nature as those enumerated above (“Force Majeure Event”). The Affected Party will promptly provide notice to the other party explaining in detail the full particulars of the Force Majeure Event and the expected duration thereof. The Affected Party may elect to suspend performance of all or any portion of its obligations under the Order for any time as may be reasonably necessary under the circumstances and will use its commercially reasonable efforts to remedy the Force Majeure Event. 7.Warranty. Seller warrants that the Materials delivered hereunder meet the standard specifications of Seller for the Materials or the other specifications as may have been expressly agreed to in writing by Purchaser and Seller (“Specifications”). SELLER MAKES NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER EXPRESS OR IMPLIED WARRANTY. Purchaser assumes all risk and liability resulting from the handling, use, or storage of the Materials delivered hereunder, whether used, handled or stored singly or in combination with other items, and Purchaser agrees to indemnify and hold Seller DocuSign Envelope ID: 63E3FB1C-16CD-43AB-B44B-54C74C08A507 harmless against any and all loss, damages, liability, cost and expense (including reasonable attorneys’ fees), arising out of the use, handling or storage. In the event that Purchaser determines that any delivery hereunder includes Materials that does not meet Seller’s warranty regarding Specifications (“Defective Materials”), Purchaser will so notify Seller and, if requested, provide to Seller reasonable documentation to support its determination. 8.Limitations of Liability. PURCHASER HEREBY WAIVES ANY CLAIM AGAINST SELLER FOR CONSEQUENTIAL DAMAGES, LOSS OF OR DAMAGE TO GOODWILL OR ANY OTHER SPECIAL, INDIRECT (INCLUDING LOST PROFITS), INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF SELLER HAS BEEN ADVISED OF OR HAS NOTICE OF THE POSSIBILITY OF THOSE DAMAGES. PURCHASER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, IN RESPECT OF THE MATERIALS SOLD HEREUNDER WILL BE EXPRESSLY LIMITED, AT SELLER’S OPTION, TO THE AMOUNT OF THE PURCHASE PRICE OF THE MATERIALS OR THE REPLACEMENT OF THE DEFECTIVE MATERIALS. PURCHASER HAS THE RIGHT TO REJECT OR REVOKE ITS ACCEPTANCE OF ALL OR ANY PORTION OF THE MATERIALS PROVIDED THAT PURCHASER PROVIDES NOTICE OF THE ALLEGED DEFECTIVE MATERIALS WITHIN 30 DAYS OF DELIVERY. FAILURE BY PURCHASER TO GIVE WRITTEN NOTICE OF THE CLAIM TO SELLER WITHIN 30 DAYS FROM THE DATE OF DELIVERY OF THE MATERIALS WILL CONSTITUTE A WAIVER BY PURCHASER OF ALL CLAIMS IN RESPECT OF THE MATERIALS. NO PRODUCTS OR MATERIALS SOLD HEREUNDER WILL BE RETURNED TO SELLER WITHOUT SELLER’S PERMISSION. NO CLAIM WILL BE ALLOWABLE AFTER THE MATERIALS HAVE BEEN PROCESSED IN ANY MANNER. SELLER ASSUMES NO OBLIGATION OR LIABILITY FOR THE TECHNICAL ADVICE GIVEN BY SELLER WITH REFERENCE TO THE USE OF THE MATERIALS OR RESULTS OBTAINED THEREFROM, AND THIS ADVICE IS GIVEN AND ACCEPTED AT PURCHASER’S RISK. 9.General. Each party agrees to comply with applicable national, regional and local laws and regulations including, but not limited to applicable labor, health, safety, environmental related laws, rules, ordinances and regulations, anti-corruptions laws including the U.S. Foreign Corrupt Practices Act (as amended) and any equivalent laws of any applicable jurisdiction, and export control laws, and all other laws applicable to its obligations hereunder. Neither party may assign any of its rights or delegate any of its obligations hereunder, in whole or in part, without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed. Any purported assignment or delegation in violation of this Section will be null and void. Accepted Orders will be binding upon and will inure to the benefit of the parties hereto and their respective permitted successors and permitted assigns. Notwithstanding the above, Seller may, without the consent of Purchaser, assign its rights and delegate its duties under an Order if the assignment or delegations is to (a) an affiliate of Seller; (b) a successor of Seller by consolidation, merger or operation of law; or (c) a purchaser of all or substantially all of the assets of Seller. Unless stated to the contrary elsewhere in an Order, including in these Terms and Conditions, no action, regardless of form, arising out of the sale or delivery of Materials hereunder, may be commenced more than one (1) year after the cause of action has accrued, except that an action for nonpayment may be brought at any time. Any waiver by Seller of any breach of an Order, including these Terms and Conditions, must be in writing and signed by Seller and the waiver will not be construed as a waiver of any other breach. The terms of the Order, including these Terms and Conditions, will be governed and controlled by the laws of the State of Colorado, U.S.A. excluding (a) its conflicts of laws principles and (b) the United Nations Convention on Contracts for the International Sale of Goods. Notwithstanding the above, with respect to any contracts for international shipment of Materials, any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, will be determined by arbitration in Denver, Colorado, before one arbitrator. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The parties will share equally all initial costs of arbitration. Judgment on the award may be entered in any court having jurisdiction. This clause will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Purchaser by taking delivery of all or any items will be conclusively deemed to have consented to personal jurisdiction in Colorado in any action arising out of the purchase and sale of Materials and the Order, including these Terms and Conditions. The Order, including these Terms and Conditions, constitutes the entire agreement between Seller and Purchaser and may not be modified or amended except by a writing executed by an authorized officer of Seller. If any provision or provisions of an Order, including these Terms and Conditions, will be held to be illegal or unenforceable, the legality and enforceability of the remaining provisions will not in any way be affected or impaired. Any terms of an Order, including these Terms and Conditions, which by their nature should apply beyond their terms will remain in force after any termination or expiration thereof. DocuSign Envelope ID: 63E3FB1C-16CD-43AB-B44B-54C74C08A507 9 Eagle County Materials and Equipment Agreement 5/14 EXHIBIT B INSURANCE CERTIFICATES DocuSign Envelope ID: 63E3FB1C-16CD-43AB-B44B-54C74C08A507 ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? INSR ADDL SUBR LTR INSD WVD DATE (MM/DD/YYYY) PRODUCER CONTACT NAME: FAXPHONE (A/C, No):(A/C, No, Ext): E-MAIL ADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY)(MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTED CLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person)$ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGG $JECT OTHER:$ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person)$ OWNED SCHEDULED BODILY INJURY (Per accident)$AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE $ CLAIMS-MADE AGGREGATE $ DED RETENTION $$ PER OTH- STATUTE ER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMIT $DESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORDACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE LOCKTON COMPANIES 3657 BRIARPARK DRIVE, SUITE 700 HOUSTON TX 77042 866-260-3538 Intrepid Potash, Inc. 1001 17th Street, Suite 1050 Denver CO 80202 American Zurich Insurance Company 40142 Zurich American Insurance Company 16535 Zurich American Insurance Co of Illinois 27855 X X X $250,000 SIR 2,000,000 1,000,000 10,000 2,000,000 4,000,000 4,000,000 X X X 2,000,000 XXXXXXX XXXXXXX XXXXXXX XXXXXXX XXXXXXX XXXXXXX XXXXXXX N X 1,000,000 1,000,000 1,000,000 C BAP 5570966-08 7/30/2020 7/30/2021 A GLO 5571161-08 7/30/2020 7/30/2021 B WC 4744428-08 7/30/2020 7/30/2021 NOT APPLICABLE 7/30/2021 1429741 Y Y Y Y Y 7/23/2020 14992733 14992733 XXXXXXX Eagle County 500 Broadway Post Office Box 250 Eagle CO 81631 X See Attachment DocuSign Envelope ID: 63E3FB1C-16CD-43AB-B44B-54C74C08A507 CONTINUATION DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS (Use only if more space is required) ACORD 25 (2016/03) All policies (except workers’ compensation/el) include a blanket automatic additional insured [provision] that confers additional insured status to the certificate holder only if there is a written contract between the named insured and the certificate holder that requires the named insured to name the certificate holder as an additional insured. In the absence of such a contractual obligation on the part of the named insured, the certificate holder is not an additional insured under the policy. All policies include a blanket automatic waiver of subrogation endorsement [provision] that provides this feature only when there is a written contract between the named insured and the certificate holder that requires it. In the absence of such a contractual obligation on the part of the named insured, the waiver of subrogation feature does not apply. Certificate Holder ID: 14992733 DocuSign Envelope ID: 63E3FB1C-16CD-43AB-B44B-54C74C08A507 Named Insured Schedule: INTREPID POTASH, INC. INTREPID POTASH - MOAB, LLC INTREPID POTASH - NEW MEXICO, LLC INTREPID POTASH - WENDOVER, LLC MOAB GAS PIPELINE, LLC Miscellaneous Attachment: M533237 Master ID: 1429741, Certificate ID: 14992733 DocuSign Envelope ID: 63E3FB1C-16CD-43AB-B44B-54C74C08A507