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Home My WebLink AboutR-2011-066 Sole Source Ovivo USA, LLC for 4 Dorr-Oliver Drive UnitsRESOLUTION NO. R-2011-66 A RESOLUTION authorizing a sole source service agreement between the City of Yakima and Ovivo USA, LLC. (formally Eimco Water Technologies, LLC.) to remove, rebuild, and re -install 4 Dorr Oliver Drive Units over a two to four year time frame without bids. WHEREAS, Article VI, section 6 of the City of Yakima Charter and the Yakima Municipal Code Chapter 1.80 generally require that purchases over $25,000 be done by competitive bidding, subject to certain exceptions; and WHEREAS, pollution control facilities are governed by a specific statute allowing for the acquisition of equipment and services in the sole source discretion of the governing body pursuant to RCW 70.95A.090; and, a "sole source" exception from competitive bid requirements is utilized when, due to unique specifications and requirements, it is less costly and more efficient to proceed as an alternate to competitive bidding; and WHEREAS, the City of Yakima Wastewater Division requires a service agreement to rebuild 4 primary clarifier drive units; and WHEREAS, Ovivo USA, LLC. (formally Eimco Water Technologies LLC) is the only supplier of this service that will remove, rebuild, reinstall, calibrate, commission and warranty the drive units for one year; and WHEREAS, Ovivo USA, LLC. will rebuild one or two drive units per year over the next two to four years. The $81,914 quote is per drive unit with allowances for price increases in the future; and WHEREAS, the City Council finds that it is in the best interest of the City to authorize the purchase of services from Ovivo USA, LLC. a sole source service without calling for bids, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized to execute a sole source service agreement without calling for bids, whereby Ovivo USA, LLC. (formally Eimco Water Technologies LLC.) agrees to provide the service to rebuild the Primary Clarifier Drive Units, to the City of Yakima. ADOPTED BY THE CITY COUNCIL this 3`d of May, 2011. ATTEST: City Clerk City Clerk Micah Cawley, Magor City of Ya ma/Yakima County SOLE SOURCE JUS'TIFICA'TION e..: •. COUNTY Your Name: Max Linden Your Department: Wastewater Your Phone: 509-249-6814 Requisition Number: Requested Vendor: Ovivo USA, LLC. Cost Estimate: $81,91.4.00 + tax/per unit (formally EIMCO Water Technologies) Vendor's Address: 4255 Lake Park Blvd. — Suite. 100, Salt Lake City, Utah 84120-8201 Vendor E -Mail & Website: chad.layton a@ovivowater.com Vendor Contact Name: Chad Layton Vendor Phone: 801-931-3240 1 Describe the product, service or system. Attach all information: See attachment. . Below are eligible reasons for sole source. Check all boxes below that apply to your sole source situation and attach any useful documents to justify the sole source. X Compatibility to existing City/County standard or to existing equipment, inventory, systems, data, programs or service. Describe. List efforts to find other sources. Four primary clarifier drive units need to be rebuilt and Ovivo rebuilds the Dorr Oliver drives and calibrates the unit to assure proper operation. This includes removal, installation and commissioning of the drive units with a one year'warranty on parts and labor. GLV (Dorr- Oliver) uses Ovivo.as.their only authorized rebuilder, per the attached letter. ❑ Licensed or patented product with only one dealer. Describe. Attach documentation if available, to confirm your source is the only dealer or supplier for this region. X Only authorized Service Provider, Repair and/or Warranty Services. Describe. Ovio is the only authorized Service provider that provides this overall service and calibration including a one year warranty. The were referred to us by GLV(Dorr-Oliver). ❑ Unique design: Requires unique features that are essential, aesthetic requirements, or not practical to match to existing design or equipment. Describe. C Used item: Surplus item bought through an auction or distributor that would represent good 0 value and is advantageous to the City/County. Describe. D Delivery Date: Only one supplier can meet required delivery date: Describe and list efforts to find other suppliers to meet the delivery date. ❑ Project or Research Continuity: Product, systems, services or data must comply with an ongoing project, research, data, testing or analysis. Results would be interrupted or compromised without continuity. Describe. X Other: Please describe: Primary Clarifier Drive Unit Rebuild of existing Dorr Oliver drive unit. STATEMENT OF NEED: My division's recommendation for sole source is based upon an objective review of the good/service being required and appears to be m the best interest of the City/County. I know of no conflict of interest on my part or personal involvement in any way with this request. No gratuities, favor, or compromising action have taken place. Neither has my personal familiarity with particular brands, types of equipment, materials or firms been a deciding influence on my request to sole source this purchase when there are other known suppliers to exist. Max .Linden Signature of Req Signature of Depai tment Head 4/13/2011 Date 14 2_o) Da Please complete entire forum and forward to Purchasing. yaie Recommendation of proval by Purchasing Mgr. to Approval by City 'anager ®e Date • • BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. For Meeting Of May 3, 2011 ITEM TITLE: A Resolution authorizing a sole source service agreement between the City of Yakima and Ovivo USA, LLC. (formally Eimco Water Technologies) to remove, rebuild, and re -install 4 Dorr-Oliver driveunits over a two to four year time frame. SUBMITTED BY: Chris Waarvick, Public Works Director CONTACT PERSON/TELEPHONE: Max Linden, Wastewater Utility Engineer (509) 249-6814 SUMMARY EXPLANATION: Staff respectfully requests City Council consideration of a resolution authorizing a sole source service agreement. This is a sole source service and formal bid requirements are requested to be waived, since Ovivo is the only exclusive distributor and authorized rebuilder of Dorr-Oliver drive units and equipment). The four (4) existing Primary Clarifier drive units have been in service several decades without being rebuilt. The seals and motors are old and worn out and require rebuilding. Removal, standard rebuilding, re -installation and calibration will cost approximately $81,914 per drive unit barring any unforeseen expenses. Our plans are to rebuild one or two drive units per year over the next two to four years. The $81,914 quote is per drive unit with allowances for price increases in the future. The Wastewater Division will be able to only rebuild one drive this year and plans on rebuilding two in 2012 and rebuild the remaining drive in 2013. See attached Sole Source Justification form, letter and proposal from Dorr-Oliver. Resolution X Ordinance _Contract _ Other (Specify) Funding Source: 473-473-232-S232-594.35-642; $81,914 per drive unit with allowances for price increases in the future APPROVED FOR SUBMITTAL: City Manager STAFF RECOMMENDATION: Adopt resolution to authorizing a sole source service agreement between the City of Yakima and Ovivo USA, LLC. to remove, rebuild, and reinstall 4 Dorr Oliver drive units over a three to four year time frame. BOARD/COMMISSION RECOMMENDATION: COUNCIL ACTION: Ovivo USA, LLC 4255 Lake Park Blvd., Suite 100 Salt Lake City, Utah 84120-8201 USA • Telephone: 801.931.3000 Facsimile: 801.931.3080 www.ovlvowater.com April 14, 2011 CITY OF YAKIMA WWTP 2220 EAST VIOLA YAKIMA, WA 98901 Attn: Max Linden Re: Dorr Oliver Equipment Dear Max: ovvo. Bringing water to life Please be advised that Ovivo USA, LLC is the exclusive distributor and authorized rebuiider of all Dorr Oliver drive units & equipment used in Ovivo (formerly EIMCO Water Technologies) Clarifiers. Our exclusive agent for this equipment in your geographic area is: BEAVER EQUIPMENT SPECIALTY COMPANY, INC Kenmore, WA 98028 Greg Mead 425 398-8082 - Office 425 398-8570 - Fax gregm(a�beaver-equipment.com Very truly yours, Ovzvo USA, LLC cLe 'Chad Layton Territory Development Manager U.S. Rebuild Group 801 931-3240 chad.layton@ ovivowater.com ovivo. Bringing water to life PREPARED FOR City of Yakima WWTP Yakima, WA Attention: Steve Brown Proposal No. 04112011 - CL Proposal Date: April 11, 2011 Page 1 of 10 AREA REPRESENTATIVE Beaver Equipment Specialty Company Inc Kenmore, WA Greg Mead (425) 398-8082 gregm@beaver-equipment.com PROJECT: Dorr Oliver 60S 1 Drive Unit Rebuild for 90' diameter Dorr Clarifier Serial # 881314-7/10 PREPARED BY Ovivo USA, LLC 4255 Lake Park Blvd.— Suite 100 Salt Lake City, Utah 84120-8201. Chad Layton Phone (801) 931-3240 Fax (801) 931-3090 chad.layton@ovivowater.com PROPOSAL Ovivo USA, LLC 4255 Lake Park Blvd. • Suite 100 • Salt Lake City, Utah 84120-8201 USA Tel: (801) 931-3000 • Fax: (801) 931-3080 www.ovivowater.com o O • Bringing water to Life • 1 Proposal No. 04112011 - CL. Proposal Date: April 11; 2011 Page 2 of 10 Bringingwater to 1. EIMCO WATERTECHNOLOGIES EIMCO Water Technologies, LLC (EWTTm) is pleased to announce that effective September 13, 2010 we have changed our name. The new name is: Ovivo . USA, L www.ovivowater.com PROPOSAL Ovivo USA, LLC ; 4255 Lake Park Blvd. • Suite 100 • Salt Lake City, Utah 84120-8201 USA Tel: (801) 931-3000 • Fax: (801),931-3080 . .. .• www.ovivowater.com ov,Ivo Bringing water to life PROJECT SUMMARY: Ovivo USA, LLC is pleased to provide the following proposal to provide materials and labor to perform a standard rebuild of existing 60S1 drive unit at our authorized rebuild center in Salt Lake City, UT.. This is for existing 90' Dorr Clarifier, (serial # 81314 7/10). We estimate 6-8 weeks to accomplish this scope for materials acquisition, transport and rebuilding labor. Drive unit must be removed and oil drained prior to pickup. Drive will be returned to site after rebuilding and reinstalled by others. Ovivo is also providing separate labor costing for removal & install of 60S.1 drive unit. Rebuild of existing Dorr-Oliver 60S1 drive unit to include the .following: Disassembly and Inspection • Completely disassemble drive into individual parts and components. • Steam clean and inventory all parts. • Provide an evaluation report indicating the condition of all parts and sub-componentsand recommendations for the scope of the rebuild. Proposal No. 04112011— CL Proposal Date: April 11, 2011 Page 3 of 10 Standard Rebuild • Blast clean bases, main gear, housings, covers, and end cap. Machined surfaces are protected or are not blasted • Replace all wear items i.e. bearings, bearing strip liners, bearing balls, seals, gaskets, keys; retaining rings, grease fittings, gauges, piping and fasteners • Deburr and hand dress teeth of all gearing, pinions, worm gear assemblies, worms and shafts • Polish all shafts • Completely re -assemble, paint and inspect equipment. Tnemec 161 epoxy sky blue paint (4 mils DFT) and an SSPC-SP-6 metal prep will be applied as a standard • Warranty parts and workmanship for (1) year • Replacement of drive motor, sprockets and chain • Field Service - factory trained Ovivo technician on site for (1) trip of (1) day to witness Start- up, assist with check out_ and adjustment of rebuilt drive and to validate the (1) year warranty Non -Standard Rebuild items — NOT included • Replacement of gears, pinions or housings if required • Replacement of large precision bearings • Drive lubricants or special paint • New operation and maintenance manual • No overtime work hours or removal of old debris • No drive removal or installation services Pricing for pickup, rebuild & re -delivery complete as described above Lead time is estimated at 6-8 weeks PROPOSAL: Ovivo USA, LLC 4255 Lake Park Blvd. • Suite 100 • Salt Lake City, Utah 84120-8201 USA Tel: (801)931-3000 !Fax: (801) 931-3080 www.ovivowater.com ()Bringing water to life Labor Removal & Installlation Services: Ovivo will supply supervision, labor, service and equipment necessary to complete this project Proposal No. 04112011 — CL:: Proposal Date: April 11, 2011 Page 4 of 10 We Include: • Site mobilization • Removal of existing 60S 1 drive unit • . Installation of rebuilt 60S1 drive unit • Support of superstructure as needed • Crane, mats, riggingand related equipment • Demobilization of personnel and equipment. • One shift, 10 hours per day Items NOT Included • No draining or cleaning of tank prior to start of installation • No electrical installation or alteration of existing electrical supply •. No finish or touch up painting • No lubricants . • No disposal of any old lubricants/fluids No overtime work hours or removal of old debris Removal & Installation pricing for 60S1 drive unit as described above III DELIVERY $ 42,241.0° Ovivo intends to ship all Products as indicated above after receipt of approved purchase order from Purchaser. However, the date of shipment of the Products represent Ovivo's best. estimate, but is not guaranteed, and Ovivo shall not be liable for any damages due to late delivery. The Products shall be delivered to the delivery point or points in accordance with the delivery terms stated in this proposal.: If such delivery is prevented or postponed by reason. of. Force Majeure, as defined in Ovivo's standard terms and conditions of sale, Ovivo shall be. entitled at its option to tender delivery to Purchaser at the point or points of manufacture,. and .. in default of Purchaser's acceptance of delivery, to cause: the Products to .be stored at such a ;• point or points of manufacture at Purchaser's expense.Such tender, if accepted, or suck storage, -shall constitute delivery for all purposes of this proposal. If shipment is postponed at request of Purchaser, or due to delay in receipt of shipping instructions, payment of the purchase price shall be due on notice from Ovivo that the Products are ready for shipment. Handling, moving, storage, insurance and other. charges thereafter .incurred: by Ovivo with respect to the Products shall be for the account of Purchaser and shall be paid by Purchaser when invoiced. PROPOSAL Ovivo USA, LLC 4255 Lake Park Blvd. • Suite 100.• Salt Lake City, Utah84120-8201 USA • Tel: (801) 931=3000 • Fax: (801) 931-3080 . •. www.ovivowater.com Bringing water to life PRICING TERMS ProposalNo':`041120_ 11:- CI,. Proposal Date: April 11, 2011 . Page 5 of 10 All prices quoted are in US Dollars. Prices are good for 90, days. After expiration of the pricing effective period, prices will be subject to review and. adjustment.. Prices quoted are .FOB point of. shipment, with freight included to an accessible point nearest the jobsite. Federal, state o r local sales, use or other taxes are not included in the sales price. PAYMENT TERMS Payment terms are: One hundred percent '(100%) payment due within thirty. (30),. days after Purchaser's receipt of invoice. Credit is subject to acceptance by the Ovivo Credit Departn ent. Purchaser shall remit payment for proper invoices received from Ovivo in accordance with the payment terms stated above even if the Purchaser has not been paid by the Purchaser's customer (the ` "Owner"), if Purchaser is not the end-user of the Products. Payments are due within thirty (30) days. after Purchaser's receipt of invoice. Overdue and unpaid invoices are subject to a service charge of 2% per month until paid. If Purchaser requests or causes cancellation, suspension or delay of Ovivo's work, Purchaser shall accept transfer of title and pay Ovivo all appropriate charges incurred up to date of such event plus Ovivo's overhead and reasonable profit: Additionally, all charges related to and risks incidental to storage, disposition and/or resumption of work shall be borne solely by Purchaser. Full payment for all work shall be due and payable thirty (30) days from the date work is placed into storage TAXES Federal, State or local sales, use or other taxes are not included in the sales price. Such taxes, if applicable, shall be for Purchaser's account.. BACKCHARGES. In no event shall Purchaser/Owner do or cause to be done any work, purchase any services or material or incur any expense for the account of Ovivo, nor shall Ovivo be responsible for such work or expenses, until after Purchaser/Owner has provided Ovivo's PROJECT MANAGER full details (including estimate of material cost and amount and rate of labor required) of the work, services, material or expenses, and Ovivo has approved the same in writing:; Ovivo will not accept Products returned by Purchaser/Owner unless Ovivo has previously accepted the return in writing and provided Purchaser/Owner with shipping instructions. tear eucR-_n"V RCH� In an effort to ensure all purchase orders are processed timelyand efficiently, please submit all purchase order documentation to the following department and address: PROP.O SAL Ovivo USA; LLC ". 4255 Lake Park Blvd. • Suite 100 Salt Lake City, Utah 84120-8201.USA Tel: (801) 931-3000 • Fax: (801) 931-3080 www.ovivowater.com • Bringing water to life Proposal NO. 04112011 CL Proposal`Date: April 11, 2011::. Page 6 of 10 Attn: Order EntryAdministrator.. Ovivo USA, LLC 4255 Lake Park Blvd., Suite 100,, Salt Lake City, Utah 84120 Fax #: 801-931-3080 Tel. #: 801-931-3000 ADDITIONAL FIELD SERVICE When included and noted in the Product pricing of each proposal iteni,. Ovivo will supply the service of a competent field representative to inspect the completed installation and adjustment of equipment, supervise initial operation, and instruct Owner's personnel .in the operation and',, maintenance of each proposal item for the number of eight .(8).hour, days.:: Notwithstanding Ovivo's performance of the above -referenced services, Ovivo shall: not be held . liable for ' any faulty workmanship or other defects in the Products' installation, orfor other goods and/or.: services, performed by third parties unless such goods and/or services are expressly included 'Under Ovivo's scope of work. If additional service is required, it will be furnished to the Purchaser and billed to him at the current:,- rate for each additional day required, plus travel and lodging exPenSeS incurred by "the SerVice personnel during the additional service days: It shall be the Purchaser's responsibility to provide for all necessary lubrication. of a11. equipment prior. to placing equipment in operation. All equipment must be in operating condition and ready for the Field Service Engineer when called to the project location. Should the Contractor not be ready when • the Field Service Engineer is requested or if additional service is requested, the Ovivo current service rates will apply for each additional day required, plus.travel g. and lodginexpenses incurred by the: service personnel during the additional service days. SURFACE PREPARATION AND PAINTING GENERAL INFORMATION. If painting the Products, is included under Ovivo'.s scope of work; such Products•sh'all bepainted accordance with Ovivo's standard practice. Shop primer paint is intended to`serve only as;minimal- protective finish. Ovivo will not be 'responsible for r condition of primed or finished •painted : , surfaces after equipment leaves its shops. 'Purchasers. are invited to inspect. painting in, our shops: for proper preparation 'and' application prior to shipment.. are. no, responsibilitfor, field service preparation or touch-up of shipping damage, to paint Painting of fasteners and other touch, up to painted surfaces will be' by Purchaser's painting contractor after mechanism erection:.. Clarifier motors, gear motors and center drives shall be cleaned and paintedwith' manufacturer's standard primer paint only: PROPOSAL bvivo'USA, LLC 4255 Lake Park Blvd. •. Suite 100 • Salt Lake City, Utah 84120-8n01 USA . Tel': (801) 931-3000- Fax: (801) 931-3080,;;: www.ovivowater.com ' ovtvo. Bringing water to life Proposal No. 0411201/ — CL Proposal Date: April 11, 2011 .,- page 7 of 10 . It is our intention to ship major steel components as soon as fabricated, often before drives, motors and other manufactured, components. Unless you can insure that shop primed steel shall be field painted within thirty (30) days after arrival at the jobsite, we encourage you to purchase these components in the bare metal (no surface prep or primer) condition. Ovivo cannot accept responsibility for rusting or deterioration of shop applied prime coatings on delivered equipment if the primed surfaces have not been field painted within thirty (30) days of arrival at the jobsite using manufacturers' standard primers., Other primers may have less durability. GENERAL ITEMS NOT INCLUDED Unless specifically and expressly included above, prices quoted by. Ovivo do note include unloading, hauling, erection, installation, piping, valves, fittings, stairways, ladders, walkways, grating, wall spools, concrete, grout, sealant, dissimilar metal protection, oakum, mastic, field painting, oil or grease, electrical controls, wiring, mounting hardware,welding, weld rod; ,shims; leveling plates, protection against corrosion due to unprotected storage, special engineering; or overall plant or system operating instructions or any other products or services. MANUALS The content of any and all installation, operation and maintenance or other manuals ordocuments pertaining to the Products are copyrighted and shall not be modified without the express prior written consent of Ovivo. Ovivo disclaimsany liability for claims resulting from unauthorized_. modifications to any such manuals or other documents provided by Ovivo 'in connection with the Project. WARRANTY AND CONDITIONS Ovivo standard Terms and Conditions of Sale, QFORMEWT 0115.-02031 is attached and made • an essential part of this proposal. These terms and conditions . are an integral part of .Ovivo's,. offer of Products and related services and replace and supersede any terms and conditions or warranty included in Purchaser or Owner requests for quotation or specifications and cannot be e changed without written approval from an authorized representative of Ovivo. CONFIDENTIALITY The contents of this proposal are confidential and shall be. used by Purchaser and/or.Owner only for the purpose of evaluating Ovivo's offer of goods and services in connection with the Project. Purchaser/Owner shall not disclose the contents of this proposal to any third party without the prior written consent of Ovivo. PROPOSAL • Ovivo USA, LLC . 4255 Lake Paik Blvd. • Suite 100 • Salt Lake City, Utah 84120=8201 USA' Tel: (801) 931-3000 • Pak:.(801) 931-3080. www.ovivowater.com • Bringing water to life • Terms & Conditions Proposal No. 04112011 — CL Proposal Date: April 11, 2011 Page 8 of 10 1. ACCEPTANCE The proposal of Ovivo USA. LLC ("SELLER"), as well as these tents and conditions of sale (collectively the "Agreement"), constitutes SELLER' s- contractuel.offer of goods and . associated services, and PURCHASER's acceptance of this offer is expressly limited to the terms of the Agreement. The scope and terms and conditions of this Agreement represent the:entire offer by SELLER and supersede all prior solicitations, discussions, agreements, understandings and representations between the parties. Any.scope or terms and conditions included imPURCHASER's•acceptence/purchase order' that are in addition to or different from this Agreement are hereby rejected, 2. DELIVERY. Any statements relating to the date of shipment of the Products (as defined below) represent SELLER'S best estimate, but is not guaranteed, and SELLER:shall not be'liable for any damages • due to late delivery. The Products shall be delivered to the delivery point or points in accordance with the delivery terms stated in SELLER's proposal.., If such delivery is prevented or postponed by reason of Force Majeure (as defined below), SELLER shall be entitled at its option to tender delivery to PURCHASER at the point or points of manufacture, and rn•default of PURCHASER's acceptance of delivery to.. " cause the Products to be stored at such a point or points of manufacture at PURCHASER'S expense. Such tender, if accepted, or such storage, shell constitute delivery' for.all purposes of this agreement. If •, shipment is postponed at request of PURCHASER, or due to delay in receipt of shipping instructions, payment of the purchase price shall be due on notice'from,SELLER.that the Products are ready for 'C' •• shipment. Handling, moving, storage, insurance and other charges thereafter incurred by SELLER:with respect to the Products shall be'for the account' of PURCHASER•and shall be paid by PURCHASER';-':. when invoiced 3. TITLE AND RISK OF LOSS. SELLER shall retain the fullest right, title, and interest in the Products to the extent permitted by applicable law, including a security interest in the Products, until the full ' purchase price has been paid to SELLER. The giving and accepting of drafts, notes and/or trade acceptances to evidence the payments due shall not constitute or be construed as. payment so as to pass " SELLER'S interests until said drafts, notes and/or trade acceptances are paid in full. Risk of loss shall pass to PURCHASER at the delivery point.. .. 4. PAYMENT TERMS, SELLER reserves the right to ship the Products and be paid for such on a pro rata basis, as shipped..If payments are not made by the due date;, interest ata rate of two percent (2%) per month, calculated daily, shall.apply from the due date for payment PURCHASER is liable to pay SELLER'S legal fees and aft other expenses In respect of enforcing orattempting to enforce any of SELLER'S, . rights relating to a breach or threatened breach of the.payment terms by PURCHASER.. '"' •• ' '.••••:: ,.::',..;',..'...'r., l'• " 5. TAXES. Unless otherwise specifically provided in SELLER's quotation/proposal; PURCHASER shall pay and/or• reimburse SELLER' in addition ao thprice, for all Tales, use'and other' taxes,:excises and charges which SELLER may pay or be required to pay to any government directly or indirectly in connection with the production, sale; transportation, and/or use' by SELLER or PURCHASER, of any of the Products or services dealt with herein (whether the same may be regarded as personal or real property). PURCHASER agrees to pay all property and other taxes, which maybe lei%red,'assessed or charged against or upon any of the Products on or after the date of actual shipment,"or placing into storage for PURCHASER'S account. " ' ' •' 6. MECHANICAL WARRANTY. Solely for the benefit of PURCHASER,' SELLER warrants that new equipment and parts manufactured by it and provided to PURCHASER (collectively, "Products")shall .. be free from defects in material and workmanship. The warranty period shall be twelve (12) months from startup of the equipment not to exceed eighteen (18) months from•shiprnent.If any of SELLER'S; ' Products fail to comply with the foregoing warranty, SELLER shall repair or replace free of charge to PURCHASER, EX WORKS SELLER'S FACTORIES or other location that SELLER designates, any •. Product or parts thereof returned to SELLER, which examination shall show to have failed under normal use and service operation by PURCHASER within the Warranty'Period; provided, that if rt would be impracticable for the Product or part thereof to be retumed to•SELLER, SELLER will send a representative to PURCHASER's job site to iiispect the Product. If it is determined after inspection that SELLER rs liable under this warranty to repair or replace the Product or part thereof, SELLER shall bear the transportation costs of (a) returning the Product to SELLER for inspection or sending its representative to the . job site and (b) returning the repaired or replaced Products to PURCHASER; however, if it is determined after inspection that SELLER is not liable under this warranty, PURCHASER shall pay those costs. For SELLER to be liable with respect to this warranty, PURCHASER must make its claims to SELLER with respect to this warranty in writing no later than thirty (30) days after the date PURCHASER discovers the basis for its warranty claim and in no event more than thirty (30) days after the expiration of the Warranty Period. In addition to any other !imitation or disclaimer with respect to this warranty,'SELLER. shall have no liability with respect to any of the following: (r) failure of the Products, or damages to them, due to PURCHASER'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 PURCHASER); (0) any Products that have been altered or repaired in any way without SELLER'S: prior written authorization; (iii) The costs of dismantling and reinstallation of the Products; (rv) any Products damaged while in transit or otherwise by accident;.(v) decomposition of. Products by chemical action, erosion or corrosion or wear to Products or due to conditions of temperature, moisture and dirt; or (vi) claims with respect to parts that are consumable' and normallyteplaced 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 M. $ ' • clauses (i) through (v) above. With regard to third -party parts, equipment, accessories or components not of SELLER's design; SELLER'S liability shall', be limited solely to the assignment of available third- ' - party 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 andobligetions of SELLER., •' shall terminate if PURCHASER fails to perform its obligations under this Agreement including but not limited to any failure to pay any charges due to SELLER R' SELLES:quoted price for the Products rs` based upon this warranty. Any increase in warranty obligation may be subject to an increase in price. •..• " - . ' :. 7. CONFIDENTIAL INFORMATION. All nonpublic information and data furntshed to PURCHASER hereunder, including but not limited to price, size, type and design of the Products' is the sole property of SELLER and submitted for PURCHASER'S own confidential use solely in connection. with this Agreement and is Pot to be made known or available to'any third'party without SELLER'S prior written consent._ 8. PAINTING. The Products shall be painted in accordance with SELLER'S standard practice, and purchased items such as motors, controls, speed reducers, pumps,, etc., will be painted in accordance with manufacturers' standard practices, unless otherwise agreed in writing. ' . ' 9. DRAWINGS AND TECHNICAL DOCUMENTATION. When PURCHASER requests approval of drawings before commencement of manufacture, shipment may be delayed if approved drawings are : . not returned to SELLER within fourteen (14) days of receipt by PURCHASER of such drawings for approval. SELLER will furnish only general arrangement, general assembly, and if required, wiring' diagrams, erection drawings, installation and operation -maintenance manuals for SELLER'S equipment (in English language). SELLER will supply six (6) complete sets of drawings and operating instructions. Additional sets will be paid for by PURCHASER. Electronic files, if requested from SELLER, will be provided in pdf, jpg or sf format only. ' ' .: : •:••......,,•-'„.,-;.:,.;• ' ... 10. SET OFF. This Agreement shall be completely independent of all other contracts between the parties and all payments due to SELLER hereunder shall be paid, when' duend shall not be setoff or applied . .. against any money due or claimed to be due from SELLER to PURCHASER on account of any other transaction or claim. ' : - � ' " ,-.•':: •l,',,•••••'>;•.•••..'•.:•"'' :'•' ":��' :-'. 11. SOFTWARE. PURCHASER shall have a nonexclusive and nontransferable license to use any information processing program supplied by SELLER with the Products. PURCHASER acknowledges that such programs and the information contained therein is Confidential Information and agrees a) not to copy or duplicate the program except for archival or security purposes; b) not to use the program on any computer other than the computer with which it is supplied; and c) to linnt access to the program to those of its employees who are necessary to permit authorized use of the program., PURCHASER agrees to ... execute and be bound by the terms of any software license applicable to the Products supplied. •' - 12. PATENT INDEMNITY. SELLER will defend at its own expense any suit instituted against PURCHASER based upon claims that SELLER'S Product hereunder nr'and of itself constitutes an infringement of any valid apparatus claims of any United States patent issued and existing is of the date of this Agreement, if notified promptly in writing and given all information, assistance, and sole authority to defend and settle the same, and SELLER shall indemnify the PURCHASER against such claims of infringement. Furthermore, in case the use of the Products is enjoined in such suit or in case' SELLER otherwise deems it advisable, SELLER shall, at its own expense and discretion, (a) procure for the PURCHASER the right to continue using the Products, (b) replace the same with non -infringing Products, (c) modify , the Product so it becomes non -infringing, or (d) remove the Products and refund the purchase price less freight charges and depreciation. SELLER shall not be liable for, and PURCHASER shall indemnify ' SELLER for, any claim of infringement related to (a) the use of the Products for any purpose other than that for which it was furnished by SELLER., (b) compliance with equipment designs not furnished by SELLER or (c) use of the Products in combination with any other equipment. The foregoing states'the sole liability of SELLER for patent infringement with respect to the Products ' 13. GENERAL INDEMNITY, Subject to the rights, obligations and limitations of liabilities of the parties set forth in this Agreement, PURCHASER shall protect and indemnify SELLER its ultimate parent, its ultimate parent's subsidiaries and' each of the respective officers, directors, employees and agents, from and against all claims, demands and causes' of action asserted by any. entity to the extent of PURCHASER'S negligence or willful misconduct in connection with this Agreement. 14. DEFAULT. TERMINATION. In the event that PURCHASER•becomes insolvent -Commits an act of bankruptcy or defaults in the performance of any term or,condition of this Agreement, the entire unpaid portion of the purchase price shall, without notice or demand, become immediately due and payable. SELLER at its option, without notice or demand, shall be entitled to sue for said balance and for reasonable legal fees, plus out-of-pocket expenses and interest; and/or to enter any place where the Products are located and to take immediate possession of and removethe Products, -.with or without legal process, and/or retain all payments made as compensation for the use of the Products: and/or resell the Products, without notice or demand, for and on behalf of the PURCHASER, and to apply the net proceeds from such sale (after deduction from the sale price of all expenses of such sale and all expenses of retaking possession, repairs necessary. to put the Products in saleable condition, storage,charges, taxes, liens, collection and legal fees and all other expenses in connection therewith) to the balance then due to SELLER for the Products and to receive from the PURCHASER the deficiency between.seeh net proceeds of sale and such balance. PURCHASER hereby waives all trespass, damage and claims resulting from any such entry', repossession, removal; retention,, repair; alteration and sale. The remedies, provided in: this f paragraph are in addition to and not limitations of any other rights of SELLER' • $ $ - . 15. CANCELLATION. PURCHASER may terminate this Agreement for convenience upon giving SELLER thirty"(30) days prior written notice of such fact and paying SELLER for all'costs and expenses ' (including overhead) incurred by rt in performing its work and closing out the same plus a reasonable _ profit thereon. Al] such costs and expenses shall be paid'to SELLER.withrn ten (10) days of the termination of the Agreement, or be subject to an additional late payment penalty of five percent (5%) of the total amount of costs and expenses owed. 16. REMEDIES. The rights and remedies'of the PURCHASER in connection with the goods and services provided by SELLER hereunder are exclusive and limited to the rights and remedies expressly stated in this Agreement. _ . .. 17. INSPECTION. PURCHASER is entitled to:make reasonable inspection of Products at SELLER's facility. SELLER reserves the right to determine the reasonableness of the request and to select an appropriate time for such inspection All costs of inspections not expressly included as an itemized part of the quoted price of the Products in this Agreement shall be paid by PURCHASER . 18. WAIVER Any failure by SELLER to enforce PURCHASER's strict performance of any provision of this Agreement will not constitute a waiver of its right to,subsequently enforce such provision or any other provision of this Agreement.. PROPOS. Ovivo USA, LLC 4255 Lake Park Blvd. • Suite 100 • Salt Lake City, Utah, 84120-8201 USA Tel: (801) 931=3000 • Fax: (801) 931-3080,. www.ovivowater-.com b i} u Bringing water to life . Terms.& Conditions :. Proposal No. 0411201`1= CL Proposal Date: Apr1111, 2011 Page 9 of 10 )9. COMPLIANCE WITH LAWS. If applicable laws, ordinances, regulations or conditions require anything different froni,.or in addition to, that called for by' this Agreement, SELLER will satisfy such ' requirements at PURCHASER'S written request and expense._ 20. FORCE MAJEURE. If SELLER is rendered unable, wholly or in material part, by reason of Force Majeure to carry out any of its obligations hereunder, then on'SELLER's notice 'in writing to PURCHASER within a reasonable time after the occurrence of the cause relied upon, such obligations shall be suspended. "Force Majeure" shall include, but riot be limited to,. acts of God, Jaws and regulations, strikes, civil disobedience or unrest, lightning, fire, flood, washout, storm, communication lines failure, delays of the PURCHASER or PURCHASER's subcontractors, breekage,or accident to.'. • equipment or machinery, wars, police actions, terrorism, embargos, and any other causes that are not reasonably within the control, of the SELLER If the delay, is the•result of PURCHASER'S•action or inaction, then in addition to an adjustment in time, SELLER shall be entitled to reimbursement of corn incurred to maintain' its schedule. ' . 21. INDEPENDENT CONTRACTOR It is expressly understood that SELLER is an independent contractot, and that neither SELLER nor its principals, partners, parents, subsidiaries, affiliates, employees or subcontractors are servants, agents, partners, joint ventures or employees of PURCHASER in any way whatsoever. 22. SEVERABILITY. Should any portion of this Agreement, be held to be invalid or unenforceable under applicable law then the validity of the remaining portions. thereof shall not be affected by such :, invalidity or unenforceability and shall remain in full force and effect. Furthermore, any invalid or unenforceable provision shall be modified accordingly within the confines of applicable law, giving 'maximum pemtissible effect to the parties' Intentions expressed herein. - 23. CHOICE 01? LAW, CHOICE OF VENUE. This Agreement shall be governed and construed in accordance with the laws of the State of Utah, without regard to its rules regarding conflicts or choice of ; law. The parties submit to the jurisdiction and venue of the state and federal courts located in Salt Lake City, Utah.- 7.4. ASSIGNMENT. PURCHASER shall not assign or transfer this Agreement without the' prior written consent of the SELLER. Any attempt to make such an assignment, or transfer shall 'be null and' Void.. . ' SELLER shall have the authority to assign, or otherwise transfer, its rights and obligations in connection with this Agreement, in whole or in part, upon prior written notice to PURCHASER ' 25. LIMITATION ON LIABILITY. TO THE EXTENT PERMISSIBLE BY LAW, SELLER SHALL HAVE NO FURTHER LIABILITY IN CONNECTION WITH THIS•AGREEMENT IN EXCESS 01? THE COST OF CORRECTING ANY DEFECTS, OR IN THE ABSENCE OF ANY DEFECT, IN EXCESS OF THE VALUE OF. THE PRODUCTS SOLD HEREUNDER NOTWITHSTANDING ANY LIABILITIES OR RESPONSIBILITIES ASSUMED BY SELLER HEREUNDER, SELLER SHALL IN -NO EVENT BE RESPONSIBLE TO PURCHASER OR ANY THIRD PARTY, WHETHER'ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR LOSS OF ANTICIPATED PROFITS, LOSS - BY REASON OF PLANT SHUTDOWN, NON -OPERATION OR INCREASED EXPENSE OF OPERATION, SERVICE INTERRUPTIONS, COST OF PURCHASED OR REPLACEMENT POWER,.. COST OF MONEY, LOSS OF USE OF CAPITAL OR REVENUE OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, 'EXEMPLARY, OR. CONSEQUENTIAL LOSS OR. DAMAGE, WHETHER ARISING FROM DEFECTS, DELAY, OR FROM ANY OTHER, CAUSE WHATSOEVER . REVISION DATE - MARCH 5, 2009 PROPOSAL • • • Ovivo USA, LLC, .• 4255 Lake Park Blvd. • Suite 100 • Salt Lake, City, Utah 84120-8201 USA Tel: (801) 931-3000 • Fax:, (801) 931-3080 ':• www.ovivowater-.com Bringing water to life • Standard (Travel) Hourly Rate (4 hour minimum Standard (Labor),. Hourly Rate (4 hour minimum)' Saturday.., Hourly Rate (4 hour.niinimum) Sundays/Holidays * Hourly Rate (4 hour minimum) Overtime;** Terms & Conditions. Proposal No. 04112011,- CL Proposal Da . e Date: April 11, 2011:-.: To of 10' NORTH AMERICAN FIELD SERVICE RATE SHEET, Effective January 2010 :. Daily Rate (8 hour day): . Daily Rate (8 hour;day) Daily Rate (8 *hour:day) Daily Rate (8 hour day) Hourly. Rate? Standard Day 1::1;000.00. $ 125.0.1 1,000.00 $ 125:00: 1:;500:00 :187.50:::: 2,000.,ob . $ 250.00' $`:187.50 `,Hourly Rate - Weekends & * Except Christmas Day and New: Years Day ** For all hours worked over eight (8) hours per da UNLESS OTHERWISE ARRANGED; EXPENSES ARE CHARGED AT ACTUAL .COST. PLUS 10%' • All of the rates provided are portal to portal. In addition, travel and living expenses will be invoiced at actual cost PLUS 10 % and documentation will be provided forthese expenses: .lf a fixed Per Diem rate is required, it will be charged of $200.00 per day (lodging and:meals) with the;:: exception of the East Coast where the price will be .$2$0.00). Travelph Saturday, Sunday.. or Holidays, and after 8 hours per day will be billed at the overtime rate: $ 250.00:• • Use of Ovivo Fleet vehicles for travel will be charged at the rate of $0.50per.mile. PROPOSAL „Ili/lye USA, LLC '. 4255 Lake Park Blvd.: • Suite 100 • Salt Lake City, Utah 84120-8201 USA..„ Tel: (801) 931-3000 • Fax: (891)9,3.1-30.9.-: : ''• .,. ' www.ovivowater-.corn: •