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HomeMy WebLinkAbout060721_ca03 Department of Public Works O Consent Agenda Page 1 of 2 Jefferson County Board of Commissioners Agenda Request To: Board of Commissioners Mark McCauley, County Administrator From: Monte Reinders, P.E., Public Works Director/County Engineer Agenda Date: June 7, 2021 Subject: Execution of Contract, Port Hadlock Water Reclamation Facility Membrane Bioreactor Equipment - Design, Fabrication, and Installation Services Statement of Issue: Execution of Contract with Ovivo USA LLC, Salt Lake Utah, for their bid of $1,601,600.22 for the above referenced project. Analysis/Strategic Goals/Pro's Et Con's: Following analysis of bids by Public Works and the County's design engineers at Tetra Tech, this contract was awarded to the lowest responsive bidder, Ovivo USA, LLC on April 26, 2021. Ovivo has executed the contract documents and provided the required bonds and the contract is now ready for execution by the Board. Fiscal Impact/Cost Benefit Analysis: The Bid amount is $1,601,600.22 which includes Bid Item #1 - Contract Price for Design Services; Bid Item #2 - Contract Price for MBR System Equipment and Services during Construction; and Bid Item #3 - Contract Price for Taxes. The immediate fiscal impact of this contract will be for Design Services that will be paid for out of the Port Hadlock Wastewater System fund and that will allow completion of the Final Design of the treatment system. Actual costs for the MBR System Equipment and Services during Construction will not be needed until construction occurs in 2023/2024. Recommendation: Public Works recommends that the Board sign the contract where indicated and return all three (3) originals to Public Works for further processing. Department Contact: Monte Reinders, Public Works Director x242. Reviewed By: 7-.?(21 Mark cCau , County Administrat Date AGREEMENT BETWEEN BUYER AND SELLER FOR PROCUREMENT CONTRACT TABLE OF CONTENTS Page Article 1— Procurement Contract................................................................................................. .........1 1.01 Goods and Special Services........................................................................................................... 1 1.02 The Project........................................................................................................................ ........ 1 1.03 Engineer........................................................................................................................................ 1 1.04 Point of Destination...................................................................................................................... 2 Article2— Procurement Contract Times...................................................................................................... 2 2.01 Time of the Essence....................................................................................................................... 2 2.02 Schedule of Procurement Contract Times..................................................................................... 2 2.03 Shop Drawings and Samples......................................................................................................... 3 2.04 Liquidated Damages..................................................................................................................... 3 Article 3— Procurement Contract Price..................................................................................................... 4 3.01 Procurement Contract Price and Total Price —Based on Attached Bid ......................................... 4 Article4— Payment Procedures...................................................................................................................4 4.01 Submittal and Processing of Applications for Payment................................................................ 4 4.02 Progress Payments; Final Payment...............................................................................................4 4.03 Interest.......................................................................................................................................... 5 Article 5— Assignment of Procurement Contract........................................................................................5 5.01 Assignment of Contract.............................................................................................................. 5 Article 6— Procurement Contract Documents.............................................................................................8 6.01 List of Procurement Contract Documents..................................................................................... 8 Article 7— Seller's Representations and Certifications................................................................................9 7.01 Seller's Representations................................................................................................................ 9 7.02 Seller's Certifications...................................................................................................................10 Article8— Confidentiality.............................................................................................:.............................10 8.01 Confidential Information..........................................................................................................10 8.02 Disclosure of Confidential Information.......................................................................................10 8.03 Waiver of Immunity...............................................................................................................11 EJCDC® P-520, Agreement between Buyer and Seller for Procurement Contract. Copyright° 2019 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. TOC Page 1 of 2 Article9— Mutual Waiver..........................................................................................................................11 9.01 Mutual Waiver of Consequential Damages................................................................................11 Exhibit A— Assignment of Procurement Contract, Consent to Assignment, and Acceptance of Assignment................................................................................................................................................. I Exhibit B— Surety's Consent to Assignment.................................................................................................1 EJCDC® P-520, Agreement between Buyer and Seller for Procurement Contract. Copyright® 2019 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. TOC Page 2 of 2 AGREEMENT BETWEEN BUYER AND SELLER FOR PROCUREMENT CONTRACT This Procurement Agreement is by and between Jefferson County Department of Public Works ("Buyer") and Ovivo USA, LLC ("Seller"). Terms used in this Procurement Agreement have the meanings stated in the General Conditions of the Procurement Contract and the Supplementary Conditions of the Procurement Contract. Buyer and Seller hereby agree as follows: ARTICLE 1—PROCUREMENT CONTRACT 1.01 Goods and Special Services A. Seller shall furnish the Goods and Special Services as specified or indicated in the Procurement Contract Documents. The Goods and Special Services are generally described as follows: Attachment 1 — Scope of Work for Design Services, Division 11 section 110000 "General Requirements for Equipment", Division 26 section 260000 "General Requirements for Electrical Work", Division 40 section 400100 "Instrumentation and Control Systems", Division 46 section 464240 "Membrane Bioreactor Equipment", and Division 01 Section 017510 "Membrane Service Agreement." 1.02 The Project A. The Project, of which the Goods and Special Services are a part, is generally described as follows: The intent of the Project is to design and construct the Port Hadlock Water Reclamation Facility to meet all requirements for reliability and redundancy per Washington State Department of Ecology standards for Class A Reclaimed Water at all phases and configurations of the MBR System within it. The provisions for reliability and redundancy shall include multiple units to address the full design flow in the event one unit is out of service. The Buyer plans to have a phased approach for connecting sewer customers to the Port Hadlock Water Reclamation Facility, therefore the initial number of connected sewer customers is anticipated to be much lower than the ultimate number of connected sewer customers. As such, these Contract Documents (see Division 46 of the Specifications) present a conceptual Design Flow for the MBR System's initial implementation phase, which shall have adequate turndown capacity to serve the anticipated Start-up Flow. The exact timing of the phased approach and extent for connecting sewer customers is unknown at this time. Should there be enough customers connecting to exceed the Design Flow, an anticipated Future Expansion Capacity is given for a forecasted 20-year planning horizon. After construction is completed, support services to assist the County in operating and maintaining the facility are included. 1.03 Engineer A. Buyer has retained Tetra Tech, Inc. ("Engineer"), to prepare Procurement Contract Documents and act as Buyer's representative. Engineer assumes all duties and EJCDC® P-520, Agreement between Buyer and Seller for Procurement Contract. Copyright° 2019 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 of 12 responsibilities and has the rights and authority assigned to Engineer in the Procurement Contract Documents in connection with Seller's furnishing of Goods and Special Services. 1.04 Point of Destination A. The Point of Destination is designated as: 236 Lopeman Road, Port Hadlock, WA 98339. ARTICLE 2—PROCUREMENT CONTRACT TIMES 2.01 Time of the Essence A. All tirne limits for Milestones, including the submittal of Shop Drawings and Samples, the delivery of Goods, and the furnishing of Special Services as stated in the Procurement Contract Documents, are of the essence of the Procurement Contract. 2.02 Schedule of Procurement Contract Times A. The following schedule sets forth the Procurement Contract Times: Milestone Date or Days Notes Buyer issues Notice to Within 180 Days of Commence Seller Design Effective Date of the Services Procurement Contract 60% Design Phase Within 4 calendar This is dependent upon receipt of Concludes months of Notice to design review comments from Commence Seller Design Jefferson County and possibly Services Department of Ecology. 90% Design Phase Within 7 calendar This is dependent upon receipt of Concludes months of Notice to design review comments from Commence Seller Design Jefferson County and possibly Services Washington State Department of Ecology. 100% Design Phase Within 12 calendar This is dependent upon receipt of Concludes months of Notice to design review comments from Commence Seller Design Jefferson County and possibly Services Department of Ecology. Buyer Procures Unknown Date dependent upon procuring Contractor/Assignee grants and low-cost financing for construction. This Procurement Contract will be assigned to the Contractor/Assignee. Contractor/Assignee Anticipated within 3 This Procurement Contract will be given Notice to Proceed calendar months of reassigned to the (NTP) Notice of Award to Contractor/Assignee. Contractor/Assignee Submittals due for 90 Days of Contractor See Specification Division 46 construction phase Notice to Proceed (NTP) "Membrane Bioreactor Equipment" for submittal list EJCDC® P-520, Agreement between Buyer and Seller for Procurement Contract. Copyright© 2019 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 2 of 12 Buyer Issues Notice to Anticipated within 4 After all fabrication submittals are Commence Fabrication calendar months of NTP approved. to Contractor/Assignee Deliver acceptable No later than 180 Delivery may be made in the 15- Goods to the Point of calendar days following day period before delivery date Notice to Commence Destination Fabrication Commence Seller At Contractor Notice to Includes but is not limited to Construction Services Proceed (NTP) delivery inspection; installation assistance services; coristruclion inspection of MBR System; system integration; assistance for functional testing, clean water testing, system start-up; training of Buyer's staff; O&M manual Commencement of Within 60 calendar days Performance Testing of successful Start-up Completion of After 30 calendar days Performance Testing of commencement of Performance Testing Final inspection and No later than 60 acceptance of the calendar days after Goods completion of Performance Testing Commencement of Upon final acceptance of Service Agreements the Goods 2.03 Shop Drawings and Samples A. Submittal of Shop Drawings and Samples: Seller shall submit all Shop Drawings and Samples required by the Procurement Contract Documents to Engineer for its review and approval. B. Engineer's Review: It is the intent of the parties that Engineer will conduct its review of Shop Drawings and Samples and issue its approval, or a denial accompanied by substantive comments regarding information needed to gain approval, within 14 calendar days after Seller's submittal of such Shop Drawings and Samples, or within such longer period that is needed because of the quantity and quality of such submittals. Resubmittals will be limited whenever possible. 2.04 Liquidated Damages A. Buyer and Seller recognize that time is of the essence as stated in Paragraph 2.01, and that Buyer will suffer financial and other losses if the Goods are not delivered to the Point of Destination and ready for receipt of delivery by Buyer within the tirne specified in Paragraph 2.02, plus any extensions thereof allowed in accordance with this Procurement Contract. The parties also recognize that the timely performance of services by others involved in the Project is materially dependent upon Seller's specific compliance with the delivery requirements of Paragraph 2.02. Further, the parties recognize the time, expense, and difficulties involved in proving, in a legal or arbitration proceeding, the loss (whether EJCDC® P-520, Agreement between Buyer and Seller for Procurement Contract. Copyright° 2019 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 3 of 12 direct, consequential, or otherwise) suffered by Buyer if complete, acceptable Goods are not delivered on time. Accordingly, instead of requiring any such proof, Buyer and Seller agree that as liquidated damages for delay (but not as a penalty) Seller shall pay Buyer $2,000 dollars for each calendar day that expires after the time specified in Paragraph 2.02 for delivery of acceptable Goods. Liquidated damages shall be capped at $100,000 (50 calendar days). ARTICLE 3—PROCUREMENT CONTRACT PRICE 3.01 Procurement Contract Prire and Total Price —Based on Attached Bid A. For furnishing the Goods and Special Services in accordance with the Procurement Contract Documents, Buyer shall pay Seller the prices stated in Seller's Bid, attached hereto as an exhibit, subject to final adjustments for Unit Price Goods and Special Services and Buyer's Contingency Allowance, if any, and subject to the following Buyer -accepted alternates: No Alternates ARTICLE 4—PAYMENT PROCEDURES 4.01 Submittal and Processing of Applications for Payment A. Seller shall submit Applications for Payment in accordance with Article 13 of the General Conditions and the following paragraphs. Engineer and Buyer will process such Applications for Payment in accordance with said Article 13. 4.02 Progress Payments; Final Payment A. Seller may submit an Application for Payment requesting the stated percentage of Procurement Contract Price upon attainment of each of the following Payment Line Items: Seller Design Services: Following issuance of Notice to Commence Seller Design Services, Seller may submit an Application for Payment to the Engineer no more frequently than once per month. Upon approval by the Engineer, payment will be made until 80 percent of the lump sum price for Seller Design Services has been reached. Remaining 20 percent of the lump sum price will be paid to Seller upon satisfactory completion of Seller Design Services. Goods and Construction Services: Following Notice to Commence Fabrication of the Goods, payment will be as follows: Payment Line Item (Lump Sum) Percentage of Lump Sum 1. Upon approval by Engineer of construction submittals and shop [10] drawings 2. Completion of acceptable factory testing (if any) [5] 3. Delivery of Goods to Point of Destination in accordance with the [70] Procurement Contract Documents 4. Completion of Performance Testing [10] 5. Final Payment: Correction of non -conformities, provision of final [5] Operations and Maintenance manuals, submittal of warranties and EJCDC® P-520, Agreement between Buyer and Seller for Procurement Contract. Copyrightm 2019 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 4 of 12 other final documentation required by the Procurement Contract Documents Total Procurement Contract Price (Lump Sum) 100 For Unit Price Goods and Special Services, if any, or for payments owed to Seller as a result of authorizations by Buyer under the Buyer's Contingency Allowance (if any), Seller shall submit a separate Application for Payment, no more frequently than monthly, that states (1) the actual quantities of such Unit Price Goods and Special Services that have been furnished, and the applicable unit prices; and (2) the services or items performed or furnished underthe Buyer's Contingency Allowance, and the amounts owed. If practical, and at Seller's option, Seller may apply for such unit price and Buyer's Contingency Allowance payments in a separate section of an Application for Payment submitted under Paragraph 4.02.A for lump sum items. C. Buyer shall pay Seller the amount owed under an Application for Payment within 35 days after Engineer's presentation to Buyer of the Application for Payment and Engineer's recommendation. 4.03 Interest A. All amounts not paid when due will bear interest as the rate of 5 percent per annum. ARTICLE 5—ASSIGNMENT OF PROCUREMENT CONTRACT 5.01 Assignment of Contract A. Buyer has the right to assign this Procurement Contract for furnishing Goods and Special Services, but only to a person or entity with sufficient apparent ability to satisfy all of Buyer's obligations under this Procurement Contract, and Seller hereby consents to such assignment. Forms documenting the assignment of the Procurement Contract, and consent of Seller's surety to the assignment, have been executed by Buyer, Seller, and Seller's surety, and are attached as exhibits to this Procurement Agreement. If so, assigned the following provisions apply: 1. The Procurement Contract is initially executed in the name of the entity identified herein as Buyer, and will be assigned by such Buyer (as assignor) to a construction contractor (Contractor/Assignee) designated by such Buyer. The assignment will occur on the effective date of the construction contract between such Buyer (Project Owner) and the Contractor/Assignee, which is a date/time in accordance with what is specified in Article 2, Section 2.02A. Commencing on the date of acceptance of assignment by the Contractor/Assignee, all references in the Procurement Contract to "Buyer" shall mean the designated Contractor/Assignee. 2. The assignment of this Procurement Contract relieves the assignor from all further obligations and liabilities under this Procurement Contract. After assignment, Seller shall become a subcontractor or supplier to the Contractor/Assignee and, except as noted herein, all rights, duties, and obligations of Buyer under the Procurement Contract become the rights, duties, and obligations of the Contractor/Assignee. 3. After assignment: EJCDC® P-520, Agreement between Buyer and Seller for Procurement Contract. Copyright" 2019 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 5 of 12 a. The Procurement Drawings and Procurement Specifications, and any modifying Addenda will become "Contract Documents" under the construction contract. b. If the Procurement Drawings or Procurement Specifications, as "Contract Documents" under the construction contract, are duly modified under such construction contract, then Seller and Contractor/Assignee shall enter into a corresponding Change Order under the applicable provisions of this Procurement Contract. C. The Procurement Drawings and Procurement Specifications may not be modified by Seller or Contractor/Assignee, singly or in tandem, except as such Procurement Drawings or Procurement Specifications, as "Contract Documents" under the construction contract, have been duly modified under such construction contract. d. All performance warranties, guarantees, and indemnifications required by the Procurement Contract will continue to run for the benefit of assignor (Project Owner) and, in addition, for the benefit of the Contractor/Assignee. However, if assignor (Project Owner) and Contractor/Assignee make the same warranty or guarantee claim, then Seller shall only be liable once for such claim. Other than its remedies under such warranties, guarantees, and indemnifications, assignor will not retain direct rights under this Procurement Contract, but will have rights and remedies as a party to the construction contract, whose scope of work will encompass the Procurement Drawings, Procurement Specifications, and modifying Addenda; provided, however, that any limitations on Seller's liability in this Procurement Contract will continue to bind the original Buyer (assignor) after assignment. e. The Contractor/Assignee shall have all the rights of the Buyer under the Performance Bond and Payment Bond. f. Seller shall submit all Applications for Payment directly to Contractor/Assignee. 1) Contractor/Assignee shall review each Application for Payment promptly, determine the amount that Contractor/Assignee approves for payment, and then include the amount approved in the next application for payment submitted to Project Owner (or Engineer) under the construction contract. 2) Contractor/Assignee shall pay Seller as specified in Article 4 of the Agreement between Buyer and Seller for Procurement Contract and Article 13 of the Standard General Conditions of the Procurement Contract. 3) After assignment Engineer will review, approve, or deny the content of Applications for Payment under the Procurement Contract only to the extent that Contractor/Assignee, as construction contractor, has incorporated such content into payment applications that Engineer reviews under the construction contract. g. The Contractor/Assignee shall have all the rights of the Buyer under any pending Claim by Buyer. h. All Claims and supporting documentation will be submitted directly by the claimant party (either Buyer or Seller), to the other party, without submittal to Engineer. EJCDC® P-520, Agreement between Buyer and Seller for Procurement Contract. Copyright° 2019 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 6 of 12 1) The other party will render a response in writing within 30 days of receipt of the last submittal of claimant. 2) If the other party does not render a written response to a Claim within 30 days after receipt of the last submittal of the claimant, the other party shall be deemed to have approved the Claim in its entirety. 3) The other party's written response to a Claim, or the approval of the Claim in its entirety as a function of failure to respond within 30 days, will be final and binding upon Buyer and Seller 30 days after it is issued, unless within such 30 days of issuance either Buyer or Seller appeals the result by initiating the mediation of the Claim in accordance with the dispute resolution procedures set forth in Paragraph 12.02 of the General Conditions. 4) Any Claim by Seller that Contractor/Assignee may choose to submit, present, orforward to Project Owner must be submitted to Buyerwithin sufficienttime for Contractor/Assignee to preserve its rights under the construction contract, notwithstanding any procedures or time limits in this Procurement Contract. Seller's recovery of additional cost, time, or both cost and time for any Claim attributable to the Project Owner will be limited to the proportionate recovery by Contractor/Assignee against Project Owner for such Claim. Seller will cooperate and assist Contractor/Assignee in pursuing any Claim by Contractor/Assignee against Project Owner on behalf of Seller, including the timely preparation and delivery of supporting documentation. If the pursuit of any claim by Contractor/Assignee against Project Owner on Seller's behalf requires the expenditure by Contractor/Assignee of legal or consulting fees, or results in litigation, arbitration, or any dispute resolution procedures, Seller agrees to pay for a proportionate share of attorneys' fees, consultant fees, and litigation, arbitration, and other resolution costs incurred by Contractor/Assignee in pursuing the claim on behalf of Seller, based upon the amount claimed by Seller as compared to the total value of the claim pursued by the Contractor/Assignee. k. All rights, duties, and obligations of Engineer to Contractor/Assignee and Seller under this Procurement Contract will cease. Subject to the foregoing provisions, all references in the Procurement Contract to submitting items to Engineer, or to Engineer having tasks or obligations, will be read after such an assignment as requiring submittal to Contractor/Assignee, or as Contractor/Assignee having such tasks or obligations (which Contractor/Assignee may delegate when appropriate). m. If the Procurement Contract includes a Buyer's Contingency Allowance, upon assignment such allowance will be automatically reduced to the amount previously authorized by Buyer (Project Owner), and cease to be operational. B. No other assignment by a party hereto of any rights under or interests in the Procurement Contract will be binding on another party hereto without the written consent of the party sought to be bound. Specifically, but without limitation, Procurement Contract payments or other money that may become due, and Procurement Contract payments or other money that are due, may not be assigned without such consent (except to the extent that the effect EJCDC® P-520, Agreement between Buyer and Seller for Procurement Contract. Copyrightm 2019 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 7 of 12 of this restriction may be limited by Laws and Regulations). Unless specifically stated to the contrary in any written consent to such an assignment, such an assignment will not release or discharge the assignor from any duty or responsibility under the Procurement Contract Documents. ARTICLE 6—PROCUREMENT CONTRACT DOCUMENTS 6.01 List of Procurement Contract Documents A. The Procurement Contract Documents consist of the following: 1. This Procurement Agreement. (00520) 2. General Conditions of the Procurement Contract. (00700) 3. Supplementary Conditions of the Procurement Contract. (00800) 4. Procurement Specifications as listed in the Procurement Specifications table of contents 5. Procurement Drawings (not attached but incorporated by reference): a. P1— Conceptual Process Flow Diagram b. P2 — Conceptual Site Layout 6. Addenda Numbers: 1, 2, & 3. 7. Bonds: a. Performance bond (together with power of attorney). b. Payment bond (together with power of attorney). 8. Exhibits to this Procurement Agreement (enumerated as follows): a. Exhibit A, Assignment of Contract, Consent to Assignment, and Acceptance of Assignment. b. Exhibit B, Surety's Consent to Assignment. C. Documentation submitted by Seller: Ovivo MBR System Warranty; Seller's Bid signed/dated February 16, 2021; Amendments; Commercial Clarifications; and d. Attachment 1— Scope of Work for Design Services. 9. The following which may be delivered or issued on or after the Effective Date of the Procurement Contract and are not attached hereto: a. Change Orders; b. Change Directives; and C. Field Orders. B. The documents listed in Paragraph 6.01.A are attached to this Procurement Agreement (except as expressly noted otherwise above). C. There are no Procurement Contract Documents other than those listed above. D. The Procurement Contract Documents may only be amended or supplemented as provided in Paragraph 11.01 of the Procurement General Conditions. EJCDC® P-520, Agreement between Buyer and Seller for Procurement Contract. Copyright® 2019 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 8 of 12 ARTICLE 7—SELLER'S REPRESENTATIONS AND CERTIFICATIONS 7.01 Seller's Representations A. In order to induce Buyer to enter into this Procurement Agreement, Seller makes the following representations: 1. Seller has examined and carefully studied the Procurement Contract Documents. 2. If required by the Instructions to Bidders to visit the Point of Destination and the site where the Goods are to be installed or Special Services will be provided, or if, in Seller's judgment, any observable local or site conditions may affect the delivery, cost, progress, or furnishing of the Goods and Special Services, then Seller has visited the Point of Destination and site where the Goods are to be installed or Special Services will be provided (as applicable) and become familiar with and is satisfied as to the observable local and site conditions that may affect delivery, cost, progress, and furnishing of the Goods and Special Services. 3. Seller is familiar with and is satisfied as to all Laws and Regulations that may affect the cost, progress, and performance of Seller's obligations under the Procurement Contract. 4. Seller has carefully studied, considered, and correlated the information known to Seller with respect to the effect of such information on the cost, progress, and performance of Seller's obligations under the Procurement Contract. 5. Seller has given Engineer written notice of all conflicts, errors, ambiguities, or discrepancies that Seller has discovered in the Procurement Contract Documents, and the written resolution (if any) thereof by Engineer is acceptable to Seller. 6. The Procurement Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance of Seller's obligations under the Procurement Contract. 7. Seller's entry into this Procurement Contract constitutes an incontrovertible representation by Seller that without exception all prices in the Procurement Agreement are premised upon furnishing the Goods and Special Services as required by the Procurement Contract Documents. 8. The Seller acknowledges that unless and until Buyer issues the Notice to Commence Seller Design Services, the Buyer is not obligated to any monetary commitment associated with the performance of the Work. The anticipated timing of the issuance of the Notice to Commence Seller Design Services is described in Article 2 herein. 9. The Seller acknowledges that unless and until the Buyer issues the Notice to Commence Fabrication, the Buyer is not obligated to any monetary commitment associated with the performance of the Work beyond that which is incurred for Seller Design Services. Issuance of Notice to Commence Fabrication is dependent upon the Buyer obtaining grants and low-cost financing for construction of the project. 10. The Seller acknowledges that membrane units shall be made available for purchase by the Buyer at the pricing offered in the Bid Form and that the pricing for future membrane units, as part of a warranty claim or replacement purchase, shall be in accordance with the methods described in Specification Division 46 Section "Membrane EJCDC® P-520, Agreement between Buyer and Seller for Procurement Contract. Copyright® 2019 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 9 of 12 Bioreactor Equipment." Membrane unit pricing shall remain effective for a period of 20 years after bid opening date specified in the Notice to Bidders. 7.02 Seller's Certifications A. Seller certifies that it has not engaged in corrupt, fraudulent, collusive, or coercive practices in competing for or in executing the Procurement Contract. For the purposes of this Paragraph 7.02: 1. "corrupt practice" means the offering, giving, receiving, or soliciting of anything of value likely to influence the action of a public official in the bidding process or in the Procurement Contract execution; 2. "fraudulent practice" means an intentional misrepresentation of facts made (a) to influence the bidding process or the execution of the Procurement Contract to the detriment of Buyer, (b) to establish bid or contract prices at artificial non-competitive levels, or (c) to deprive Buyer of the benefits of free and open competition; 3. "collusive practice" means a scheme or arrangement between two or more Bidders, with or without the knowledge of Buyer, a purpose of which is to establish bid prices at artificial, non-competitive levels; and 4. "coercive practice" means harming or threatening to harm, directly or indirectly, persons or their property to influence their participation in the bidding process or affect the execution of the Procurement Contract. ARTICLE 8—CONFIDENTIALITY 8.01 Confidential Information A. Confidential information is information in documents submitted by Seller that Seller clearly and prominently labels in writing to be proprietary data, trade secrets, or other information that relates to Bidder's unique methods of conducting business or data unique to the product or services of Bidder. Such documents, if any, will be maintained in a manner that endeavors to avoid disclosing confidential information to third parties, to the extent allowed by Laws and Regulations. B. Seller shall clearly and prominently mark confidential information with the word "CONFIDENTIAL" on each page or sheet or on the cover of bound documents. Place "CONFIDENTIAL" stamps or watermarks so that they do not obscure any of the required information on the document, either in the original or in a way that would obscure any of the required information in a photocopy of the document. 8.02 Disclosure of Confidential Information Is1 If Buyer is requested to disclose confidential information, or becomes legally compelled (by oral questions, interrogatories, requests for information or documents, subpoena, civil or criminal investigative demand, public information requests, or other requests under Laws and Regulations) to disclose confidential information, or is required by a regulatory body, governing agency, or controlling authority to disclose confidential information, or make any other disclosure that is prohibited or otherwise constrained by the Procurement Contract, Buyer will provide Seller with prompt notice so Seller may seek an appropriate protective EJCDC® P-520, Agreement between Buyer and Seller for Procurement Contract. Copyright® 2019 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 10 of 12 order or other remedy. Seller will be solely responsible for submitting to the regulatory body, governing agency, or controlling authority any arguments, briefs, memoranda, motions, authorities, or other information in opposition to disclosure. B. Buyer's obligations with respect to confidential information are nullified by the following exceptions: 1. Confidential information becomes a part of the public domain through publication or otherwise, through no fault of the Buyer; 2. Buyer can demonstrate through suitable documentation that the confidential information was already in the Buyer's possession, and not previously marked as confidential, or was otherwise publicly available prior to the Effective Date of the Procurement Contract; 3. The confidential information is subsequently and independently disclosed to the Buyer by a third party who has a lawful right to disclose such information; 4. Buyer has a good faith belief that disclosure is required or justified; or 5. Buyer is required to disclose the confidential information by court order or by applicable Laws and Regulations. 8.03 Waiver of Immunity A. Notwithstanding any other provision of the Procurement Contract, it is stipulated and agreed that by accepting confidential information, Buyer has not and does not waive its legal immunity (if any) from suit or liability. B. Bidder understands that it has the burden of proving that the information it marks "CONFIDENTIAL" is exempt from disclosure under the Public Records Act, Chapter42.56 RCW and that Buyer will give Bidder third -party notice if such information is requested under the Public Records Act that will provide sufficient time for Bidder to seek protection from disclosure in the courts. Buyer is not responsible for defending or paying for the defense of Bidder's assertion that records are exempt from production under the Public Records Act. ARTICLE 9—MUTUAL WAIVER 9.01 Mutual Waiver of Consequential Damages A. Buyer and Seller waive against each other, and against the other's officers, directors, members, partners, employees, agents, consultants, and subcontractors, any and all claims for or entitlement to incidental, indirect, or consequential damages arising out of, resulting from, or related to the Procurement Contract. If Buyer (Project Owner) assigns this Procurement Contract to a construction contractor (Contractor/Assignee), then the terms of this Paragraph 9.01.A will be binding upon the Contractor/Assignee with respect to Seller and assignor. The terms of this mutual waiver do not apply to or limit any claim by either Buyer or Seller against the other based on any of the following: (a) contribution or indemnification, (b) liquidated damages, (c) costs, losses, or damages attributable to personal or bodily injury, sickness, disease, or death, or to injury to or destruction of the tangible property of others, (d) intentional or reckless wrongful conduct, or (e) rights conferred by any bond provided by Seller under this Procurement Contract. EJCDC® P-520, Agreement between Buyer and Seller for Procurement Contract. Copyright° 2019 National Society of Professional Engineers, American Council of Engineering Companies, and American society of Civil Engineers. All rights reserved. Page 11 of 12 IN WITNESS WHEREOF, Buyer and Seller have signed this Procurement Agreement. Counterparts have been delivered to Buyer and Seller. The Effective Date of the Procurement Contract is Buyer Jefferson County (typed or printed name of organization) By: (individual'ss .signature) Date: (date signed) Name: Kate Dean (typed or printed) Title: Chair of the Board (typed or printed) Attest: (individual's signature) Title: Clerk of the Board (typed or printed) Address for giving notices: Jefferson County Commissioners PO Box 1220 Port Townsend, WA 98368 Designated Representative: Name: Monte Reinders, P.E. (typed or printed) Title: Public Works Director/County Eng. (typed or printed) Address: Jefferson County Public Works 623 Sheridan Street Port Townsend, WA 98368 Phone: (360) 385-9160 Email: mreinders@co.jefferson.wa.us (If Buyer is a corporation, attach evidence of authority to sign. If Buyer is a publlc body, attach evidence of authority to sign and resolution or other documents authorizing execution of this Agreement.) Seller Ovivo USA, LLC (typed or printe me arganization) By: ignature) Date: 05/19/2021 (date signed) Name: Hiren Trivedi (typed or printed) Title: Senior VP, Municipal & Industrial (typed or printed) (If Seller is a corporation, a artn�ership, or a joint venture, of attach evrdenc thor�ty r� gn.) Attest:i (individual's signature) Title: National Sales Manager (typed or printed) Address forgiving notices: Ovivo USA, LLC 2300 Greenhill Dr., #100 Round Rock, TX 78664 Designated Representative: Name: Martin Swanson (typed or printed) Title: National Sales Manager (typed or printed) Address: Ovivo USA, LLC 2300 Greenhill Dr., #100 Round Rock, TX 78664 Phone: Email: (512) 653-5805 martin.swanson@ovivowater.com EJCDC® P-520, Agreement between Buyer and Seller for Procurement Contract. Copyright® 2019 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 12 of 12 EXHIBIT A —ASSIGNMENT OF PROCUREMENT CONTRACT, CONSENT TO ASSIGNMENT, AND ACCEPTANCE OF ASSIGNMENT This assignment will be effective on the effective date of the construction contract between Buyer (as "Owner") and Contractor/Assignee (as "Contractor"). The Procurement Contract between Jefferson County ("Buyer") and Ovivo USA, LLC ("Seller") for furnishing Goods and Special Services entitled Port Hadlock Wastewater Facility (Procurement Contract) is hereby assigned, transferred, and set over to Contractor/Assignee, as assignee, by Buyer, as assignor. Upon assignment the Contractor/Assignee shall have the duties, rights, and obligations of Buyer under the terms of the Procurement Contract, and will be responsible to Owner under the construction contract for the performance of obligations by Seller, which will become a Subcontractor or Supplier to Contractor/Assignee. Buyer, Seller, and Contractor/Assignee hereby acknowledge and agree to be bound by the terms and conditions of assignment set forth in Article 5 of the Agreement Between Buyer and Seller for Procurement Contract. Assignment Made by Buyer By: Name: (typed or printed name of organization) Date: (individual's signature) Title: (date signed) (typed or printed) (typed or printed) If Buyer is a corporation, attach evidence of authority to sign. If Buyer is a public body, attach evidence of authority to sign and resolution or other documents authorizing execution of Buyer -Seller Agreement. Assignment Acknowledged and Accepted by Seller (typed or printed name of organization) By: Date: (individual's signature) dote signed) Name: Title: (typed or printed) N11(typed or printed) �a If Seller is a corporation, attach evidence of authority to sign. Assignment Accepted by Contractor/Assignee (typed or ed name of organization) By: N 10 Date: (indlvrde+e{Ps'#p+ tore) Name: Title: (date signed) ?Wed or printed) (typed or printed) If Contractor/Assignee is a corporation, attach evidence of authority to sign. Exhibit A —Assignment of Procurement Contract, Consent to Assignment, and Acceptance of Assignment. EJCDC® P-520, Agreement between Buyer and Seller for Procurement Contract. Copyright" 2019 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 of 1 EXHIBIT B—SURETY'S CONSENT TO ASSIGNMENT Surety hereby acknowledges, agrees, and consents that the Procurement Contract for furnishing Goods and Special Services entitled Port Hadlock Wastewater Facility by and between Jefferson County ("Buyer") and Ovivo USA, LLC ("Seller") may be assigned, transferred, and set over to [Name of Contractor/Assignee] ("Contractor/Assignee"), in accordance with Article 5 and Exhibit A of the Agreement between Buyer and Seller for Procurement Contract. Surety further agrees that, upon assignment of the Procurement Contract, the Contractor/Assignee shall have all the rights of the Buyer under the Procurement Performance Bond and Procurement Payment Bond. Agreement to Assignment Acknowledged and Accepted by Surety e (typed or printed name of organization) By: Date: (in dividu al's signature) N. (date signed) Name: Title: (typed or printed) (typed or printed) Attach Power of Attorney. ape Exhibit B—Surety's Consent to Assignment. EJCDC® P-520, Agreement between Buyer and Seller for Procurement Contract. Copyright® 2019 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 of 1 CORPORATE RESOLUTION I, Gwen Klees_, Secretary of Ovivo USA, LLC a Delaware —Limited Liability Company hereby certify that the Managers of said Company on the _13th day of January 2015, adopted a resolution authorizing any officers of this Company, to sign bid proposals, sign and enter into any and all contracts and other instruments, sign and/or authorize bid guaranty and performance bonds for the purpose of furnishing labor and materials at such price and upon such terms and conditions, including any amendments or modifications thereto as such officer in his discretion shall deem best, and that said actions shall be binding upon the Company; and That Hiren Trivedi is a duly appointed officer of the Company and is qualified to act in such capacity and holds the title of Vice President. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of said Company at Montreal QC this 2nd day of July , 2020, and I further certify that said resolutions are still in full force and effect. I�O0• )SAJ L 4� �a�aoRA�C , a OCRp�e Corporate Secretary Amendment to Procurement Contact Port Hadlock Water Reclamation Facility Construction Project, Project 200-12562-20003 Membrane Bioreactor Equipment - Design, Fabrication and Installation Services Effect of this Amendment This Amendment to Procurement Contact Port Hadlock Water Reclamation Facility Construction Project, Project 200-12562-20003 Membrane Bioreactor Equipment - Design, Fabrication and Installation Services ("this Amendment") modifies the Aqreement Between Buyer and Seller for Procurement Contract, the Standard General Terms of the Procurement Contract, and the Supplementary Conditions of the Procurement Contract (collectively "Procurement Contract"). No other terms of the Procurement Contract are modified by this Amendment. In the event of conflict between the Procurement Contract documents and this Amendment, the terms and conditions of the Amendment shall control. Parties to the Procurement Contract The parties to the Procurement Contract are Jefferson County Department of Public Works ("Buyer") and Ovivo USA, LLC ("Seller"). Page 1 of the Procurement Contract is hereby modified to make this change. Limitation of Liability and Consequential Damage Disclaimer Section 9.01 of the Procurement Contract is replaced with the following: 9.01 Limitation of Liability and Consequential Damage Disclaimer To the extent permissible by applicable law, Seller shall have no further liability in connection with the Procurement Contract in excess of the amount paid by Buyer for the products giving rise to such liability. However, notwithstanding any other provision of the Procurement Contract to the contrary, in no event shall Seller be liable for any punitive, exemplary, special, incidental, or consequential loss or damage suffered by Buyer, or any other party, in connection with the Procurement Contract. These limits shall not apply to third party claims based on injury, death, or property damage. For the purpose of this term, the equipment provided in accordance with the requirements of this project shall not be considered property and shall instead be covered under the terms of the warranty herein. These limits shall not apply to claims which are based on the reckless conduct, willful misconduct, gross negligence, or fraud of the Seller. For the avoidance of doubt, liquidated damages are not consequential damages. Liquidated damages are covered in Section 2.04 of the Procurement Contract. Liquidated Damages Sections 2.04.13 and 2.04C are added to Section 2.04 of the Procurement Contract, as follows: B. Seller shall not be liable to pay liquidated damages if Buyer, Engineer, or anyone for whom Buyer is responsible, delays, disrupts, or interferes with Seller's performance or progress. For the avoidance of doubt, delays such as late drawing approval, inspection delays, scope changes are examples of delays Amendment to Procurement Contact - Membrane Bioreactor 5/7/2021 Page 1 of 3 caused by Buyer or persons for whom Buyer is responsible and for which Seller is not responsible in liquidated damages. C. Notwithstanding any other provision of the Procurement Contract to the contrary, for late delivery of the equipment, payment of liquidated damages shall be Seller's sole liability and Buyer's sole remedy, provided that no liquidated damages may be recovered by Buyer if there is a late delivery but the late delivery does not impact the critical path to completion of the Project as of the time of the delay in delivery. For the avoidance of doubt, Seller is not liable for liquidated damages if the project is not ready for installation of the equipment. Performance, Payment, and Other Bonds Section 5.01A. of the Standard General Terms and Conditions of the Procurement Contract is amended as follows: The following sentence is deleted: "These bonds must remain in effect until one year after the date when final payment becomes due or until completion of the correction period specified in Section 9.04, whichever is later, except as provided otherwise by Laws or Regulations, the term of a prescribed bond form, the Supplementary Conditions, or other provisions of the Procurement Contract." The following sentence is added in place of the deleted sentence in Section 5.04A. of the Standard General Terms and Conditions of the Procurement Contract: If Seller is required to provide a Bond, in no event shall Seller be obligated to provide a Bond for which the value exceeds the Procurement Contract price, nor a duration which exceeds the first twenty-four (24) months of the warranty period. Risk of Loss Section 8.03 of the Standard General Conditions of the Procurement Contract is replaced with the following: Seller shall be liable for risk until delivery. Buyer shall be responsible for risk during unloading equipment from transport, and for risk thereafter. Delays Section 4.04C.1 is amended to add "pandemics," after "epidemics,". Section 4.04.F is added as follows: F. If Seller is rendered unable, wholly or in material part, directly or indirectly, by reason of any of the events listed in Section 4.04.C, to carry out any of its obligations under the Procurement Contract, then on Seller's notice in writing to Buyer within a reasonable time after the occurrence of the cause relied upon, such obligations shall be suspended, until the occurrence of the cause relied upon has ended. For the avoidance of doubt, if the occurrence of the cause relied upon commenced prior to the Effective Date of the Procurement Contract, occurrence of the cause relied upon shall not render the cause void or not capable of being a basis for suspension under this Section 4.04.F. Amendment to Procurement Contact - Membrane Bioreactor 5/7/2021 Page 2 of 3 Jefferson County ("Buyer") By Name: Title: Date: Ovivo USA, LLC ("Seller") By: Name: Hiren Trivedi Title: Senior VP, Municipal & Industrial Date: 05/19/21 Amendment to Procurement Contact - Membrane Bioreactor 5/7/2021 Page 3 of 3 1F0V71V_0___.J Worldwide Experts in Water Treatment COMMERCIAL CLARIFICATIONS Buyer and Seller agree to the following clarifying language which is hereby incorporated into the contract documents. EJCDC P-400 6.03.A.6 The Bidder acknowledges that membrane units shall be made available for purchase by the Buyer at the pricing offered in the Bid Form and that the pricing for future membrane units, as part of a warranty claim or replacement purchase, shall be in accordance with the methods described in Specifications Division 46 Section "Membrane Bioreactor Equipment." Membrane unit pricing shall remain effective for a period of 20 years after bid opening date. Clarification: The membrane unit pricing shall remain effective for 20 years subject to an adjustment during this 20-year time period using the nationwide seasonally adjusted Consumer Price IndexforAll Urban Consumers (CPI-U), as published by the Bureau of Labor Statistics. Additionally, if the specific model is obsolete a replacement model shall be provided on a same price per square foot basis. Any new membrane model shall be compatible with the original system. EJCDC P-400 4.02.A Goods and Construction Services table Item # 4. Payment of 10% for the Completion of Performance Testing. Clarification: If the completion of the testing is delayed on no fault of Ovivo, then payment will be due is upon completion or no later than 180 days of the system delivered to the site. EJCDC P-400 4.02.A Goods and Construction Services table Item #5. Payment of 5% for the Final Payment: Correction of non -conformities, provision of final Operations and Maintenance manuals, submittal of warranty and other final documentation require by the procurement contract documents. Clarification: If the delivery for the corrections and documentation is delayed on no fault of Ovivo, then payment will be due is upon completion or no later than 210 days of the system delivered to the site. EJCDC P-400 3.01.13 Any labor, documentation, services, materials, or equipment that may reasonably be inferred from the Procurement Contract Documents or from prevailing custom or trade usage as being required to produce or furnish the indicated Goods and Special Services will be provided, whether or not specifically called for, at no additional cost to Buyer. Clarification: Ovivo's scope of supply is strictly limited to the goods and services provided in Ovivo's proposal which shall be adequate and sufficient to meet the project specifications. Items not listed specifically in Ovivo's scope of supply and not required to meet the project FrOVIV70 Worldwide Experts in Water Treatment specifications, are to be provided by others. Ovivo may, if requested provide an adder cost for these items, if the buyer so chooses to have Ovivo supply. 464240 1.13. B.3/4 C For MBR System equipment supplied as part of the original MBR equipment installation, the "date of installation" is when the date the membrane system has successfully completed the Performance Testing and the Notice of Substantial Completion of the MBR System has been issued. Clarification: Warranty will commence upon Substantial Completion or no longer than 6 months after the equipment is ready for shipment, whichever is soonest. 464240 1.13. F.1 The MBR System Supplier shall guarantee for a period of 20 calendar years after the date of Substantial Completion that the membrane subunit pricing for pro-rata warranty replacements and non -warranty replacements shall be the least of the following options: of Substantial Completion Clarification: The membrane unit pricing shall remain effective for 20 years subject to an adjustment during this 20-year time period using the nationwide seasonally adjusted Consumer Price Index for All Urban Consumers (CPI-U), as published by the Bureau of Labor Statistics. Additionally, if the specific model is obsolete a replacement model shall be provided on a same price per square foot basis. Any new membrane model shall be compatible with the original system. 464240 2.4.Q.2.d PLC Manufacture and Processor Model: Allen Bradley ControlLogix, or approved equal Clarification: Ovivo will provide Allen Bradley CompactLogix PLC, contingent upon Washington State Department of Ecology approval. If the Washington State Department of Ecology deems that the Allen Bradley CompactLogix PLC is insufficient for providing reliability per State requirements, Ovivo will provide the Allen Bradley ControlLogix PLC as specified in the procurement specifications. 464240 2.7.13.3 & 400100 2.7.A Redundant PLC Clarification: Ovivo will provide a shelf spare redundant PLC (Allen Bradley CompactLogix PLC), contingent upon Washington State Department of Ecology approval for the Allen Bradley CompactLogix PLC. If the Washington State Department of Ecology deems that the Allen Bradley CompactLogix PLC is insufficient for providing reliability per State requirements, Ovivo will provide a hardwired redundant Allen Bradley ControlLogix PLC as specified in the procurement specifications. Pppppp, POVIVO Worldwide Experts in Water Treatment 464240 3.4.A.3 The MBR System Supplier shall assist the Contractor in the testing of the MBR System. Deficiencies in portions of the Work that affect the performance of the testing and is outside of the MBR System shall be corrected by the Contractor prior to testing. All testing shall be conducted by the Contractor under the direction of the representatives from the MBR System Supplier. The Engineer and the Owner's operation and maintenance staff shall also assist in testing under the direction of the MBR System Supplier. Any labor required for the testing that is above normal plant operating requirements shall be provided by the Contractor and paid for separately by the MBR System Supplier. Clarification: Ovivo will provide remote support for the duration of the testing. For any on - site visits beyond what is specified in the procurement specifications, and any additional on - site time as required, Ovivo will be paid at the hourly and per diem rates in the Ovivo MBR System Warranty. Jefferson County ("Buyer") By: Name: Title: Date: Ovivo USA, LLC ("Seller") By: Name: I Rc�� TR i ✓ ^ Title: s• V. P Date: '51 15 / o- I • Worldwide Experts in Water Treatment Ovivo MBR System Warranty Port Hadlock MUNICIPAL WASTEWATER i SILICON CARBIDE MEMBRANE I Purchaser...................................................................................................................................................... 2 Seller.............................................. :.....:..:... ............... ............................................... .................................... 2 WarrantyScope ............... ................... :............................................................... ..................... I ......... I.......... 2 Disclaimers.................................................................................................................................................... 2 MembraneWarranty.................................................................................................................................... 3 EquipmentWarranty...................................................................................................................................9 SystemProcess Guarantee.....................................................................................................................................10 WarrantyClaims......................................................................................................................................... 10 LaborRates.................................................................................................................................................. 11 ©2020 Copyright Ovivo. Page 1 • • Worldwide Experts n Water Treatment MUNICIPAL WASTEWATER SILICON CARBIDE MEMBRANE Purchaser Buyer of the MBR System is Jefferson County Department of Public Works ("Buyer") Seller Seller of the membrane products is Ovivo USA, LLC. ("Seller") Warranty Scope This MBR System Warranty covers the MBR System ("System") which is comprised of Ovivo SiC Membrane Plate(s) with end caps ("Membrane(s)") and all equipment, including the Membranes provided by SELLER ("Equipment"). The MBR System Warranty is separated into a Membrane Warranty (Part 1) and an Equipment Material and Workmanship Warranty (Part 2). Both the Membrane Warranty and the Equipment Material and Workmanship Warranty contain separate terms and conditions, as specified below. The above referenced warranties cover defects in materials and workmanship of the System which are the result of materials and/or manufacturing errors. Disclaimers Any alteration of the Membranes or Equipment without the prior written approval of Seller will void the respective warranty, unless the system performance deficiency, in the reasonable opinion of the Buyer, requires immediate correction to avoid injury to Buyer personnel orto avoid a permit violation of any kind. The Buyer agrees to notify Seller within 24 hours of such event. Seller reserves the right to replace Membranes and Equipment under the warranties referenced below with new or modified designs that may differ from the configuration purchased by the Buyer. All warranties are project specific and cannot be transferred. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, WHETHER WRITTEN, ORAL OR STATUTORY, ARE EXCLUDED TO THE FULLEST EXTENT PERMISSIBLE BY LAW. ALL WARRANTIES AND OBLIGATIONS OF SELLER SHALL TERMINATE IF: (1) BUYER OR ORIGINAL USER FAILS TO PERFORM ITS OBLIGATIONS UNDER THESE WARRANTIES OR ANY OTHER AGREEMENT BETWEEN THE PARTIES; OR (2) BUYER FAILSTO PAY ANY CHARGES OTHERWISE DUE TO SELLER. In no event shall Seller be liable for any lost profits, costs for procurement of substitute products and services, loss of use, or any other special, incidental, indirect, or consequential damages, arising out of or related to any and all contracts or agreements, or the use or the performance of the Equipment, however caused and on any theory of liability, whether in an action for contract or tort (including negligence) or otherwise. Seller's total aggregate liability arising out of or related to any and all contracts or agreements shall in no event exceed the amount paid for such Equipment. Wastewater flows or loads, system operational specifications and parameters are summarized in the Membrane Warranty. In the event that the operational limits exceeds the specifications used in engineering the System, or the source of influent changes, the ability of the System to produce the 02020 Copyright Ovivo. Page 2 • • Worldwide Experts n Water Treatment MUNICIPAL WASTEWATER SILICON CARBIDE MEMBRANE designed treated water quality and/or quantity may be impaired. Seller may provide guidance to overcome characteristic variations, however, if the Buyer or any end user of the System chooses to continue to operate the System, they assume the risk or any additional costs associated with biological upset, increased consumable use or equipment and membrane damage. Failure to comply with applicable requirements herein or in the referenced documents shall be grounds for Seller to void applicable warranty terms. Part 1: Membrane Warranty Duration The Membrane Warranty Period shall be twelve (12) years from Substantial Completion of the System installation not to exceed twelve (12) years plus six (6) months (150 months total) from being made available to Buyer by Seller for shipment. The Warranty is applicable only for the intended use of the Membranes. Any use of the Membranes outside its intended use such as, but not limited to, physical abuse or handling will void the Membrane Warranty. For the first four (4) years of the Membrane Warranty Period, Membranes that fail in accordance with this warranty shall be totally replaced. Forthe final eight (8) years of the Membrane Warranty Period, Membranes that fail in accordance with this Membrane Warranty shall be purchased by the Buyer in accordance with the Membrane Pro -Rated Warranty Pricing formula set forth below. Membrane failure is defined as not being able to meet the specifications outlined in Tables 1.0 and 1.5. Membrane Pro -Rated Warranty Pricing 1. The Membrane price used to calculate pro -rated warranty replacement amounts is $39.00 USD per feet square Membrane, plus reasonable cost adjustments. Reasonable cost adjustments will be based on changes in the U.S. Consumer Price Index (the "CPI") from the purchase date to most recent available index, as well as any other reasonable costs Seller has or will incur that arise as a result of such elapse in time (collectively the "Cost Adjustment"). 2. For the purpose of calculating the pro -rated pricing, the Membrane Warranty Period for the Buyer shall be the remaining months available in the warranty period when written notice of the warranty claim is received by Seller, but not to exceed 12 years (144 months). The prorated warranty amount shall be calculated by the following equation: Months Between Replacement Date and Warranty Start Date • Membrane Price Cost Adjustment Membrane Warranty Period in months + 3. In the event a warranty claim is invalidated under this Membrane Warranty, Buyer is responsible for all reasonable labor and direct costs associated with investigating the warranty claim. Such costs include, but are not limited to, laboratory analysis, cleaning studies, consultants, and experimental tests. ©2020 Copyright Ovivo. Page 3 • • WWater Treatment MUNICIPAL WASTEWATER IM SILICON CARBIDE MEMBRANE Costs All ancillary costs including packaging, freight, taxes, non -membrane part/component replacement, installation, storage, forklift and/or crane services, waste disposal, chemicals, or repair materials are the responsibility of Buyer. .System Design Rasis Operation of the system outside the design basis, as shown in Tables 1.0, 1.1, 1.2, 1.3, and 1.4, and the operational parameters defined in Ovivo's O&M Manual may be grounds to void the applicable warranty. If deemed acceptable by Seller, the original warranty may be reinstated upon a satisfactory return to operational compliance within warranty parameters. This reinstatement is a continuation of the original warranty with the original end date. Seller and Buyer agree that the design basis will be finalized through the final design process and if needed, Tables 1.0, 1.1, 1.2, 1.3, and 1.4 will be amended. Changes that can impact system and Membrane performance include, but are not limited to, influent loading, influent flow rate, temperature, MLSS conditions, and air scour. Deviation from the system design criteria can adversely impact Equipment, Membranes, and process biology. Any deviation in System design and/or operation from the design criteria must have prior written approval by Seller. Parameter Flow Table 1.0. MBR Flow Design Basis Minimum Flow (MnMF) MMF Value PDF Value Units Notes 0.24 0.90 0.111 MGD Table 1.1. Influent Wastewater Design Basis Parameter MnMF Value MMF Value PDF Value Units Notes BOD 390 390 302 mg/I Permitted values are +/- 10% 'TSS 390 390 302 mg/I Permitted values are +/- 10% 'TKN 70 70 57 mg/I Permitted values are +/- 10% NH3 49 49 40 mg/I Permitted values are +/- 10% TN 70 1 70 57 mg/I Permitted values are +/- 10% TP -- -- -- mg/I Permitted values are +/- 10% COD 795 795 617 mg/I Permitted values are +/- 10% pH 7.3 7.3 7.3 mg/I Permitted values are +/- 10% Fats, Oils, Grease (FOG) 100 100 81 mg/I Permitted values are <40 mg/I Grit < 5.0 < 5.0 <5.0 mg/I Particles having specific gravity >1.6 Minimum Temperature 10 10 10 °C Maximum Temperature 25 25 25 °C ©2020 Copyright Ovivo. Page 4 -.44AWorldwide Experts n Water Treatment MUNICIPAL WASTEWATER IM SILICON CARBIDE MEMBRANE Table 1.2. Influent Wastewater Design Basis — Maximum Loading* Parameter MnMF Value MMF Value PDF Value Units Notes BOD 78 293 293 lb/day TSS 78 293 293 lb/day FOG 20 75 75 lb/day Permitted loading is <20% of Influent MMF BOD TKN 13 53 53 lb/day NH3 10 37 37 lb/day TN 13 53 53 lb/day TP -- -- -- lb/day COD 152 571 571 lb/day * Max loading values shall be proportional to flow (i.e. lower daily flow = lower max loading) Table 1.3. Headworks Design Basis Parameter Value Screen Type Perforated Screen Perforation Size 2 Screen Capture Efficiencv >85 Units I Notes Mm _ Table 1.4. MBR Design Basis MnMF MMF Value MMF Value Parameter PDF Value Units Notes Value 2 MB Online 1 MB Online Max allowable flux Flux 8.4 15.7 31.4 17.79 Gfd limitations per O&M manual _ Permitted values are Target MLSS 8,267 14,431 14,498 15,079 mg/I +/- 10% concentration See note below Coarse Suspended Needs to be 200 200 200 200 mg/I Solids <200mg/L (recycle from MBR RAS Flow 4.0 4.3 4.3 4.3 GPM to PAX) SRT (min/max) 23 20 17 20 Days ©2020 Copyright Ovivo. Page 5 • • Worldwide Experts n Water Treatment MUNICIPAL WASTEWATER SILICON CARBIDE MEMBRANE Note: Operation outside Target MLSS concentration without written approval from Seller shall void the Membrane Warranty. Table 1.5. Expected Effluent Quality Parameter Value Units Notes Turbidity <0.2 NTU No sample >0.5 NTU TSS <5.0 mg/I No sample > 20 mg/1 Expected effluent quality specifications are contingent upon the system meeting the requirements specified in Tables 1.0 through 1.4. Operational Requirements Operation of the Membranes outside the use for which they were furnished by Seller is not permitted and shall void the Membrane Warranty. Operation of the Membranes outside the limits of the design basis stated above may be grounds to void this warranty. Any operation outside the parameters specified in the Seller's operations and maintenance manual ("O&M manual") may also be grounds to void this warranty. This includes, but is not limited to, physical abuse, misuse, or handling. If deemed acceptable by Seller, the original warranty may be reinstated upon a satisfactory return to operational compliance within warranty parameters. This reinstatement is a continuation of the original warranty with the original end date. Other operational requirements and/or restrictions that must be followed to maintain the Membrane Warranty include: 1. Introduction of foreign debris >2.1 mm in diameter into the Membrane basin is not permitted. This includes debris that can enter the Membrane basin directly from the external environment as well as debris present in the wastewater itself. 2. All screen bypass events, which is defined as any instance where raw wastewater does not pass through the MBR screens, void the Membrane Warranty and must be reported to Seller. In the event of a screen bypass event, the following procedure must be followed, per Seller's O&M manual, at Buyer's sole expense. If the following procedure is executed in the absence of Seller Product Support personnel, the procedure must be documented in writing: a. Drain and inspect basins for ragging. Any and all ragging must be removed. b. Perform integrity tests on Membranes to determine if any damage has occurred. ©2020 Copyright Ovivo. Page 6 -4A Worldwide Experts i n Water Treatment MUNICIPAL WASTEWATER SILICON CARBIDE MEMBRANE c. If there are damaged Membranes, damaged Membranes are to be replaced at Buyer's cost. d. A chemical clean per Seller's O&M manual is to be performed. e. After damaged Membranes are replaced and chemical cleaning performed, a 2-week evaluation will be performed and/or supervised by Seller personnel to determine if all adverse effects of screen bypass event have been remedied. If Seller determines that the effects of the screen bypass event have been sufficiently remedied, the Membrane Warranty may be reinstated. 3. Maximum allowable mixed liquor suspended solids (MLSS) concentration allowed in the membrane basin is defined in Table 1.4. If the maximum MLSS concentration is exceeded, the Membrane Warranty is voided. In the event the maximum allowable MLSS concentration is exceeded, the following procedure must be followed, per Seller's O&M manual, at Buyer's sole expense: a. Drain and inspect basins for dewatering. Any and all dewatering must be removed. b. Perform integrity tests on Membranes to determine if any damage has occurred. c. If there are damaged Membranes, damaged Membranes are to be replaced at Buyer's cost. d. A chemical clean per Seller's O&M manual is to be performed. e. After damaged Membranes are replaced and chemical cleaning performed, a 2-week evaluation will be performed to determine if all adverse effects of high MLSS event have been remedied. If Seller determines that the effects of the high MLSS event have been sufficiently remedied, the Membrane Warranty may be reinstated. 4. Maximum chlorine exposure is 5,000,000 ppm-hrs with a maximum allowable concentration of 10,000 mg/I. 5. Influent must not contain more than 5 mg/I of grit, with being defined as particles having a specific gravity greater than 1.2. 6. Use of any chemical that may come into contact with the System is only permitted with prior written approval by Seller. 7. The following, routine maintenance is required, per Seller's C&M manual: Maintenance/Inspection Requirement Input of filterability, CSS, and lab data into Water Expert MLSS Filterability Measurement CSS Measurement MLSS Concentration Measurement e As data becomes available Weekly Weekly Weekly ©2020 Copyright Ovivo. Page 7 . • Worldwide Experts n Water Treatment MUNICIPAL WASTEWATER SILICON CARBIDE MEMBRANE Roll Pattern Inspection Weekly Screen Inspection Weekly MLSS Inspection Weekly Maintenance Cleans Semi -Monthly Instrument Calibration Monthly Equipment Inspection Monthly Drain and Inspect Basins & Membranes Semi -Annually 8. Filterability requirement for both MBT & MBR applications: Filterability must average >8 ml/5min per week (minimum 3 samples) Filterability must not be below 2 ml/5min at anytime. 9. Buyer shall maintain written system logs that record data and observations as outlined in item #7. Buyer shall make logs available within 7 days upon request by Seller. 10. Installation and maintenance of an automated data acquisition system is required or the Membrane Warranty will be voided. 11. Minimum data points to be monitored continuously and recorded by the data acquisition system include: a. Plant flow b. TM P c. Pressure d. M LSS e. Temperature f. pH g. RAS flow h. Air scour flow i. Dissolved oxygen j. Side water depth (SWD) 12. Buyer shall keep written records of all chemical cleanings (i.e. CIP) performed including date, chemical used, chemical concentration, fill rates, fill volumes, and duration. 13. In the event of a long term shut down (>1 week), the following procedure must be followed: a. Perform both acid and chlorine cleaning procedures per Seller's C&M manual. b. Complete draining of the MBR basin. c. Removal of any dewatering or ragging present on the membranes. d. Purging of permeate lines of all water. e. Membranes may be allowed to dry and remain dry in air. f. All plastic components that are normally submerged inside the membrane basin must be covered/protected from UV exposure. ©2020 Copyright Ovivo. Page 8 • . Worldwide Experts n Water Treatment MUNICIPAL WASTEWATER SILICON CARBIDE MEMBRANE g. Top of membrane stacks must be covered to prevent foreign debris from entering the membranes during shut down period. Part 2: Equipment Material and Workmanship Warranty Solely for the benefit of Buyer, Seller warrants that the Equipment provided to Buyer shall be free from defects in material and workmanship. This Equipment Material and Workmanship Warranty Period shall be twenty- four (24) months [60 months for Fine Bubble Diffuser] from Substantial Completion of the Equipment installation (the "Equipment Warranty Period"). If the Equipment fails to comply with the foregoing warranty, Seller shall repair or replace free of charge to Buyer, EX WORKS SELLER'S FACTORIES or other location that Seller designates, any part of the Equipment thereof returned to Seller, which examination shall show to have failed under normal use and service operation by Buyer within the Equipment Warranty Period; provided, that if it would be impracticable for the Equipment or part thereof to be returned to Seller, Seller will send a representative to Buyer's job site to inspect the Equipment. If it is determined after inspection that Seller is liable under this Equipment Material and Workmanship Warranty to repair or replace the Equipment or part thereof, Seller shall bear the transportation costs of (a) returning the Equipment to Seller for inspection or sending its representative to the job site and (b) returning the repaired or replaced Equipment or parts thereof to Buyer; however, if it is determined after inspection that Seller is not liable under this Equipment Material and Workmanship Warranty, Buyer shall pay those costs. For Seller to be liable with respect to this Equipment Material and Workmanship Warranty, Buyer must make its claims to Seller with respect to this warranty in writing no later than thirty (30) days after the date Buyer discovers the basis for its warranty claim and in no event more than thirty (30) days after the expiration of the Equipment Warranty Period. In addition to any other limitation or disclaimer with respect to this Equipment Material and Workmanship Warranty, Seller shall have no liability with respect to any of the following: (i) failure of the Equipment, or damages to them, due to Buyer's negligence or willful misconduct, abuse or improper storage, installation, application or maintenance (as specified in any manuals or written instructions that Seller provides to the Buyer); (ii) any part of the Equipment that has been altered or repaired in any way without Seller's prior written authorization, unless the system performance deficiency, in the reasonable opinion of the Buyer, requires immediate correction to avoid injury to Buyer personnel or to avoid a permit violation of any kind. The Buyer agrees to notify Seller within 24 hours of such event; (iii) The costs of dismantling and reinstallation of the Equipment; (iv) any Equipment damaged while in transit or otherwise by accident; (v) decomposition of Equipment by chemical action, erosion or corrosion or wear to Equipment or due to conditions of temperature, moisture and dirt; or (vi) claims with respect to parts that are consumable and normally replaced during maintenance such as filter media, filter drainage belts and the like, except where such parts are not performing to Seller's estimate of normal service life, in which case, Seller shall only be liable for the pro rata cost of replacement of those parts based on Seller's estimate of what the remaining service life of those parts should have been; provided, that failure of those parts did not result from any of the matters listed in clauses (i) through (vi) above. With regard to third -party parts, equipment, accessories or components not of Seller's design, Seller shall remain responsible for ©2020 Copyright Ovivo. Page 9 -4A Worldwide Experts n Water Treatment MUNICIPAL WASTEWATER SILICON CARBIDE MEMBRANE execution of warranties. THE PARTIES AGREE THAT ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, WHETHER WRITTEN, ORAL OR STATUTORY, ARE EXCLUDED TO THE FULLEST EXTENT PERMISSIBLE BY LAW. All warranties and obligations of Seller shall terminate if Buyer fails to perform its obligations under the Equipment supply agreement with Seller, including but not limited to any failure to pay any charges due to Seller. Seller's quoted price for the Equipment is based upon this warranty. Any increase in warranty obligation may be subject to an increase in price. Part 3: System Process Guarantee 1. The MBR System Supplier guarantees the system will be used for treatment of wastewater and will achieve the effluent water quality indicated herein. 2. The Process Guarantee Period shall be a maximum period of 12 months after date of successful completion of the Membrane System Commissioning, contingent on the following.. a. Satisfactory performance of the Goods to achieve equipment performance (e.g. design flows, backwash, chemical washing and Clean -In -Place intervals) and water quality (e.g. integrity failure) objectives. b. The influent process parameters listed in warranty statement. c. The minimum mixed liquor temperatures as shown in the warranty statement. d. The design mixed liquor suspended solids in the MBR as reflected in the process design and/or warranty statement. e. Addition of supplemental chemicals for aiding specific nutrient removal as reflected in the process design and/or warranty statement. f. The Owner shall maintain a high speed connection to the processor but all data monitoring shall be the responsibility of the MBR System Supplier. g. A change in operational parameters and protocols (e.g. backwash, chemical washing or chemical cleaning) will not represent an increase in the operational or membrane replacement cost to the Owner. 3. In the event that the Owner does not believe that the Goods meet the Contract Documents, the Owner shall notify the MBR System Supplier that the conditions for a breach of guarantee exists. a. The Owner shall make available to the MFEM electronic records for MFEM review. b. The Supplier shall provide an acceptable remedy to the Owner in accordance with the contract documents. Warranty Claims (Applicable to Part 1, Part 2 and Part 3) If the System should at any time be unable to meet warranted requirements, as expressly stated in Parts 1, Part 2 and Part 3 of this MBR System Warranty, Seller shall supply technical assistance to the Buyer until performance criteria are achieved. The Buyer agrees to implement reasonable operational modifications as requested by Seller, and in accordance with the referenced documents. Seller shall be allowed a minimum of three (3) months to implement a remedy to operational issues and meet performance criteria. For claims that are determined to be valid warranty claims, the technical assistance will be at no charge to the Buyer. Claims that are not covered under this MBR System Warranty will incur charges for 02020 Copyright Ovivo. Page 10 • Worldwide Experts n Water Treatment MUNICIPAL WASTEWATER SILICON CARBIDE MEMBRANE I . ; j the technical assistance per the rates defined in below. These charges are based on Seller's standard labor rates. Notwithstanding any of Buyer's rights under this MBR System Warranty, as long as the MBR Flow Design Basis stated in Table 1.0 and Expected Effluent Quality stated in Table 1.5, expressly stated above, are met, Seller shall not be liable for any Membrane Warranty or Equipment Material and Workmanship Warranty claims made by Buyer. All MBR System Warranty claims are to be requested by mail to Ovivo USA LLC., 2300 Greenhill Dr. #100, Round Rock, TX 78664. For service inquiries, call directly to Seller's EQuiptechT", Hotline at +1.512.652.5848. All MBR System Warranty claims must include the following: • Description of the defect which serves as the basis for the warranty claim • Photographs of the defect in question • Date defect was first discovered • All relevant operating, lab, and maintenance data/records pertaining to the MBR System Labor Rates JOBSITE RATES: (In USD, for Continental U.S. only. Consult factory for Hawaii, Alaska and international service charges) Hourly Rate: $145.00/hour up to 8 hours any day Monday through Friday 8:00 AM to 6:00 PM $217.50/hour all time in excess of 8 hours Monday through Friday and Saturdays 7:00 AM to 6:00 PM $290.00/hour Sundays and holidays Minimum Charge: $580.00 Monday through Friday $870.00 Saturday $1,160.00 Sundays and holidays Travel Charge: $145.00/hour Mileage Rate: $.85/mile SCHEDULED PREVENTIVE MAINTENANCEAND INSPECTION SERVICE Scheduled Preventative Maintenance and Inspection service will be performed at the rates detailed above. Minimum one -week notice is required. ©2020 Copyright Ovivo. Page 11 • Worldwide Experts n Water Treatment MUNICIPAL WASTEWATER SILICON CARBIDE MEMBRANE IM EMERGENCY24 HOUR SERVICE Emergency service (i.e. technical is required on site within 24 hours) will be performed at the above rates x 1.5. EXPENSES There is a $250 daily per diem for expenses: car rental, lodging, and meals regarding all service trips, including warranty. A flat rate of $750 will be billed for round trip airfare. PURCHASE ORDER A purchase order is required prior to the dispatching of the service technician. WARRANTY SERVICE TRIPS All travel time associated with a warranty service call will be billed at the listed rates. All expenses for a warranty service call will be billed at actual cost or per the terms of a valid warranty agreement. Non -warranty related service performed in conjunction with warranty service and/or delays as a result of inaccessibility to the equipment will be billed at the above rates. PARTS Parts and materials supplied in connection with Field Service work will be priced in accordance with Seller's published pricing. TECHNICAL SEMINARS/TRAINING Standard technical seminars and/or product training performed in the customer's plant shall be invoiced at the field service rates. Material for each seminar will cost $50.00 per person. MAXIMUM WORK AND TRAVEL HOURS FOR SELLER PERSONNEL 1. The maximum on site time and/or travel time shall not exceed 12 hours in a 24 hour period. 2. A 1/2 hour break period is required for every four hours worked. 3. In addition to the above, each employee must have a minimum of 12 hours for rest away from the site for every 24 hour period. 4. If around -the -clock services is required, two or more Field Service Personnel will be assigned to the project. PAYMENT TERMS Net 30 days subject to approved credit. ©2020 Copyright Ovivo. Page 12