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HomeMy WebLinkAboutRES NO 134-2021134 RESOLUTION NO. 2 0 2 1 RESOLUTION DETERMINING THAT PARTS AND SERVICES REQUIRED FOR THE AIR DIFFUSERS LOCATED AT WASTEWATER TREATMENT PLANT NO. 3 CANNOT BE REASONABLY OBTAINED THROUGH THE USUAL BIDDING PROCEDURES AND AUTHORIZING THE FINANCE DIRECTOR TO DISPENSE WITH BIDDING THEREFOR, NOT TO EXCEED $255,000. WHEREAS, Wastewater Treatment Plant No. 3 (WWTP 3) has ten aeration basins for the biological treatment of influent wastewater; and WHEREAS, replacement parts and after-sales services for the AEROSTRIP air diffusers installed in the aeration basins are only available from Ovivo USA, LLC (Ovivo) as stated in the sole source letter attached hereto as Exhibit A and incorporated by reference herein; and WHEREAS, WWTP 3 is in need of reskinning 590 air diffusers, for which Ovivo has submitted a quote attached hereto as Exhibit B and incorporated by reference herein; and WHEREAS, Coombs Hopkins Company is the designated representative of Ovivo units and its parts installed at WWTP 3; and WHEREAS, the Public Works Director recommends the Council find the purchase of replacement parts and services required to reskin the air diffusers located at WWTP 3 can only be reasonably obtained from Ovivo, because Ovivo is the sole distributor of the required parts and services for the City's geographical area, and recommend the Council dispense with bidding requirements, in accordance with subsection D.2 of Section 3.20.060 of the Bakersfield Municipal Code. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Bakersfield as follows: The above -recitals are true and correct and incorporated herein by reference. 2. Based on the facts included in the above recitals, the purchase of the required replacement parts and services can only be reasonably obtained from Ovivo, because Ovivo is the sole distributor of the required parts and services for the City's geographical area. --Page 1 of 2 Pages— S:\Projects\E6K206 Rehab Aeration Basin\Aerostrip Difussers\2021\Resolution.docx Fi v r ORIGINAL 3. The expenditure of funds for required parts and services shall not exceed Two Hundred Fifty -Five Thousand Dollars ($255,000). 4. The Finance Director is authorized to dispense with bidding in accordance with Section 3.20.060 of the Bakersfield Municipal Code I HEREBY CERTIFY that the foregoing Resolution was passed and adopted, by the Council of the Ci of Bakersfield at a regular meeting thereof held on AUG 0 4 201 by the following vote: ( DD COLINCILMEMBER ARIAS, GONZALES, WE1�; SMITH, FRE-EPd1i�N, GRAY, PARLIER NOES: COLINCILMEMBER N84-2_ IN: COLINCILMEMBER ABSEN COLINCILMEMBER JULIE DRIMAKIS, MMC CITY CLERK and Ex -Officio Clerk of the Council of the City of Bakersfield APPROVED: AUG .0 4 2021 By ��4/ KAREN GOH Mayor APPROVED AS TO FORM: VIRGINIA GENNARO, CITY ATTORNEY ?2 tjeputy SHUA RUDNICK City Attorney II --Page 2 of 2 Pages— S:\Projects\E6K206 Rehab Aeration Basin\Aerostrip Difussers\2021\Resolution.docx o4�AKF9`�-n >- m VORIGINAL Ovivo USA, LLC 4246 Riverboat Road, Suite 300 Salt Lake City, Utah 84123 USA July 7, 2021 City of Bakersfield 8101 Ashe Road Bakersfield, CA 93313 To whom it may concern: Telephone: 801.931.3000 A Facsimile: 801.931.3080 Worldv ide Experts www.ovivowater.com in Water Treatment Please be advised OVIVO USA, LLC (Formerly known as Eimco Water Technologies — EWT) is the exclusive distributor for the marketing, sales and after-sales service of all AEROSTRIP° products in the United States. OVIVO USA, LLC's sole designated Sales Representative for your area is: Coombs Hopkins Company Casey Rebmann 2011 Palomar Airport Rd, Suite 303 Carlsbad, CA 92011 Purchase orders are to be made out to: Ovivo USA, LLC and will be invoiced directly. Respectfully, Karen &rns Karen Burns Product Manager—Rebuild Group Office Phone: (801) 931-3027 Office Fax: (801) 931-3080 Email: Karen.burns@ovivowater.com AEROSTRIP® is a registered trademark of Aquaconsult Anlagenbau GmbH Austria. o4�AK�� n s v C� OR nCINAl Worldwide Experts in Water Treatment BAKERSFIELD WWTP BAKERSFIELD, CA AREA REPRESENTATIVE Coombs Hopkins Company Casey Rebmann 760:525.61139 casey@chcwater.com B � _ PROPOSAL Q1336- KB 16 JUNE 2021 v o OFIGI Al PROPOSAL I Q1336 -KB 1 16 June 21 PROJECT SUMMARY: Ovivo USA, LLC (formerly EIMCO Water Technologies — E\ArFm) is pleased to offer the following proposal to provide a variation of replacement diffusers and membrane kits with reskinning services. This is for the existing Ovivo Aeration System. ITEM I: MEMBRANE REPLACEMENT KITS INCLUDE THE FOLLOWING: (Per Kit) - One (1) T3.5-18 Polyurethane membrane - Two (2) Peripheral strip A short ends - Two (2) Peripheral strip A long sides - Double sided tape - One (1) Rubber seal - One (1) Lower membrane washer - One (1) Upper membrane washer - Chemicals (Silicone, Sikaflex adhesive, Sikaflex primer) - Teflon tape - Spare compression fittings (5% of total kits ordered) Items NOT Included - Removal or installation services (Available upon request) - Anchors, hardware or compression fittings (existing to be reused) - Stainless steel panel and stainless steel outer strips (existing to be reused) - Pipe repair - Tubing - No components not specifically mentioned above - This equipment is being provided to replace existing equipment, as described above, and will be covered by our standard mechanical warranty. Please note that unless directly stated otherwise, Ovivo is not providing any sort of guarantee or warranty regarding process or performance as part of this proposal. - T3.5-18 Diffusers to be rebuilt at our rebuild shop in San Diego, CA - Supervision and labor to install new membranes on existing stainless steel panels, tools and other construction equipment as needed - Perform leak testing and repair leaks as necessary - Transportation cost to/from rebuild facility (Does NOT include crating, which will be required for shipment) - Lead time is approximately 6 weeks after receipt of shipment to our rebuild shop in San Diego, CA Ovivo USA, LLC 14246 Riverboat Road, Suite 300, Salt Lake City, Utah 84123 USA I Tel: (801) 931-3000 I Fax: (801) 931-3080 ovivowater.com d` 'FLT 1, r— ORIG1NAL - Crating (To be provided by the owner) - Pipe repair Tubing Anchors, hardware and compression fittings (existing to be reused) - Removal of old debris — Diffusers need to be free of debris and power washed prior to shipment to the rebuild facility - Installation or removal of diffusers from basin (Services available upon request) - Startup or checkout services (Available upon request) *The COVID-19 pandemic may cause disruptions in our normal business practices, capacity, and supply chain. Any schedule statements made by Ovivo at this time are our best estimate and subject to change. PRICING TERMS All prices quoted are in US Dollars. Prices are good for 30 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. Performance and payment security, including but not limited to bonds, letters of credit, or bank guarantees, are not included, but can be provided if purchased for an additional cost. Federal, state or local sales, use or other taxes are not included in the sales price. Please note that there is currently a high degree of instability in the steel market, especially for certain material types. The prices listed in this document are based on today's costs. Beyond the expiration period stated above, we recommend contacting us for updated pricing. COMMODITIES PRICE ESCALATION We have recently, and in the past, experienced sharp increases in carbon steel, stainless steel, aluminum, and other metal prices in the North American and worldwide markets. To remain competitive, we will not attempt to cover all possible escalations from the date of our proposal to supply placement. Due to these potential material cost increases, Ovivo may increase the price of the proposal or require additional payment in the form of a change order for such material increases based on the actual material cost at the time fabrication begins. Market Ovivo USA, LLC 14246 Riverboat Road, Suite 300, Salt Lake City, Utah 84123 USA I Tel: (801) 931-3000 1 Fax: (801) 931-3080 ovivowater.com ORIGINAL PROPOSAL I Q1336 -KB 1 16 June 21 incremental increases of <5% per annum will be covered by Ovivo if fabrication begins within 6 months of the date of the signed purchase order or contract. Any price increase or additional payment to Ovivo shall be based on an industry - standard pricing measure or index for that particular commodity that accurately represents the market increase. The resulting cost impact shall be disclosed to the Buyer prior to fabrication. Ovivo will always endeavor to cover material cost increases to the extent possible. Any additional duties and tariffs invoked after the date of the proposal will be added to the total proposed price. DELIVERY Ovivo intends to ship all Products as indicated above after receipt of approved purchase order and approved submittal drawings 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 such 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. PAYMENT TERMS Payment terms are: One hundred percent (100%) payment due within thirty (30) days after Purchaser's receipt of invoice. Invoices will be submitted after all materials have been received at the job site, not to exceed 30 days from delivery. Credit is subject to acceptance by the Ovivo Credit Department. 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. Ovivo USA, LLC 14246 Riverboat Road, Suite 300, Salt Lake Otty, Utah 84123 USA I Tel: (801) 931-3000 1 Fax: (801) 931-3080 ovvowatercom m r OR INAL TAXES PROPOSAL I Q1336 -KB 1 16 June 21 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. 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. I**PURCHASE ORDER, SUBMISSION", In an effort to ensure all purchase orders are processed timely and efficiently, please submit all purchase order documentation to the following department and address: Ovivo USA, LLC 4246 Riverboat Road - Suite 300, Salt Lake City, Utah 84123-2583 Tel. #: 801-931-3027 karen.burns@ovivowater.com ADDITIONAL FIELD SERVICE When included and noted in the Product pricing of each proposal item, 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, or for Ovnro USA, LLC 14246 Riverboat Road, Suite 300, Salt Lake City, Utah 84123 USA I Tel: (801) 931-3000 1 Fax: (801) 931-3080 ovivowater.com OI A KF9 cP� N r r1PI('ZI NAIO 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 over and above the Field Services described above, 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 all 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 and lodging expenses incurred by the service personnel during the additional service days. GENERAL ITEMS NOT INCLUDED Unless specifically and expressly included above, prices quoted by Ovivo do not 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. Performance and payment security, including but not limited to bonds, letters of credit, or bank guarantees, are not included, but can be provided if purchased for an additional cost. MANUALS The content of any and all installation, operation and maintenance or other manuals or documents pertaining to the Products are copyrighted and shall not be modified without the express prior written consent of Ovivo. Ovivo disclaims any 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 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 Ovivo USA, LLC 14246 Riverboat Road, Suite 300, Salt Lake City, Utah 84123 USA I Tel: (801) 931-3000 1 Fax: (801) 931-3080 � ovivowater com � o T ORIGIM >- m i � cannot be changed without written approval from an authorized representative of Ovivo. Ovaro USA, LLC 14246 Riverboat Road, Suite 300, Salt Lake City, Utah 84123 USA I Tel: (801) 931-3000 1 fax: (801) 931-3080 ovivowater.com OVIVO VYm,Pxhfklo Elwrrts in WMerTrcatmont TERMS AND CONDITIONS OF SALE 1. ACCEPTANCE. The proposal of Oviro USA. LLC ("SELLER'% as well as these tams and conditions of sale (collectively the "Agreement'), constitutes SELLER's contractual offer of goods and associated service,, and PURCHASER', acceptance of this offer is expressly limited to the tams of the Agreement. The scope and terms and conditions of this Agreement represent the entire offer by SELLER and supersede all other solicitations, discussions, agreements, understandings and representations between the parties. Any scope or terms and conditions included in PURCHASER 's acceptance/purchase order that are in addition to or different Gom this Agreement me hereby rejected 2. DELIVERY. Any statements relating to the date of shipment of the Products (as defined below) represent SELLER', best estimate, but is not guaranteed, and SELLER shall not be liable for any damages due to late dchwry. The Products shall be delivered to the delivery point or points in accordance with the delivery tunas stated in SELLER', proposal. If such delivery is prevented ar 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 in default of PURCHASER', acceptance of delivery to cause the Products to be stored at such a point or points of manufacture at PURCHASER', expense. Such tender, if accepted, or such storage, shall 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 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 invuimd. Delivery by SELLER ofthe Products shall constitute acceptance of the Products by PURCHASER unless written notice of defeat or nonconformity is received by SELLER within thirty (30) days of SELLER's delivery ofthe Products. 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 scomity interest in the Products, until the full purchase pricehas 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 drama, notes and/or trade acceptances are paid in fnll. Risk of loss shall pass to PURCHASER at the delivery point. J. PAYMENT TERMS. SELLER resenus 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 data, interest at a 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 all other expenses in respect of enforcing or attempting to enforce any of SELLER's rights relating to a breach or threatened breach of the payment tams by PURCHASER In the event of nonpayment SELLER reserves the father right to seek compensation from any third party in possession of the Products. 5. TAXES Unless otherwise specifically provided in SELLER's quotation/proposal; PURCHASER shall pay and/or reimburse SELLER in addition to the price, for all sales, use and other taxes, excises and charges which SELLER may pay or be required to pay to any go, crunmt directly or indirectly in connection with the production, sale, transportation, and/or use by SELLER or PURCHASER of any of the Products or senices dealt with herein (whether the same may be regarded as personal or real property). PURCHASER agrees to pay all property and other taxes which may be levied, assessed or charged against or upon my of the Products on err ager 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 wanufactured by it and provided to PURCHASER (collectively. 'Products') sball be firm from def is in material and orkmanship. The warranty period shall be twelve (12) months Gom startup of the equipment not to exceed eighteen (18) months from the earliest of the notice of readiness to ship or the actual shipment 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 it would be impracticable fm the Product or part thereof to be returned in SELLER, SELLER will send a representative to PURCHASER's job site to inspect the Product If it is determined after inspection that SELLER is liable under this warranty to, repair m replace the Product or part thereof, SELLER shall bear the transportation costs of (a) retuning the Product to SELLER for inspection m 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 isnot liable under this waranty•, PURCHASER shall pay those costs. For SELLER to be liable with respect m mmran this waaty, PURCHASER must task, its claims to SELLER with respect to this warty in writing no pater than thirty (30) days after the data 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 limitation or disclaimer with respect to this warranty, SELLER shall have no liability with respect to any of the following: (i) failure of the Products, or damages to them, due to PURCHASER', 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); (ii) any Products that have been altered or repaired in any my without SELLER's prior written authorization; (hi) The costs of dismantling and reinstallation of the Products; (iv) any Products damaged while in transit or otherwise by amidenq (v) decomposition of Products by chemical action, erosion or corrosion or tar to Products or due to conditions of temperature, moister, and dirt; or (vi) claims with respect to parts that are consurnable and annually replaced during maintenance such as filter media, filter drainage belts and the like, except whore such parts are not performing to SELLER', estimate of normal service life, in which ease, SELLER shall only be liable for the pro rata coat 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 mends listed in 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 PERDHSSIBLE BY LAW. All warranties and obligations of SELLER shall terminale if PURCHASER fails to Perform its obligations under this Agreement including but not limited to any failure in pay any charges due to SELLER SELLER's quoted price for the Products is based upon this warranty. Any increase in warranty obligation may be subject to an increase in price. 7. CONFIDENTIAL AND PROPRIETARY INFORMATION. All nonpublic or proprietary information and data furnished to PURCHASER hereunder, including but not limited to price, size, type, design and other technical or business information relating to the Products is the sole property of SELLER and submitted for PURCHASER's own confidential use solely in connection with this Agreement and is not to be made known or available to any third party without SELLER's prim written consent. S. SURFACE COATING. Any Product moaning provided by SELLER shall be in accordance with SELLER', standard practice, unless otherwise agreed in writing. 9. DRAWINGS AND TECHNICAL DOCUMENTATION. When PURCHASER requests to approve drawings before inavenocatent of manufacture, shipment may be delayed if approved drawings are not returned f SELLER within foorm, (14) days of receipt by PURCHASER of such drawings for approval. SELLER will furnish only general a r agament, gmaml assembly, and if required, wiring diagrams, erection dravvings, installation and operation m inlenance 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. Jag or rJfmmat only. 10. SET OFF. This Agreement shall be completely independent of all other contracts between the parties and all payments due to SELLER haeuvda shall be paid when due and 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. 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 mforrution 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 limit 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 men expense any suit instituted against PURCHASER based upn claims that SELLER', Product hereunder in and of itself constipate, an inftingement of any valid apparatus claims of any United States latent issued and existing as of the date of this Agreement, ifnotilfed promptly in writing and gi-n all inf tion, assistance, and sole authority to defend and settle the same, and SELLER shall iixkmmfy the PURCHASER against such cleans of'nhi ge ant. Furthermore, in case the use of the Products is joined in such suit or in case SELLER otherwise deans it advisable, SELLER shall, at its min exp -se and diserAio, (a) Roare Cm the PURCHASER the right to continue using the Products, (b) replace the same with non-infiinging Products, (c) modify the Product an it becomes nmm -infiinging, or (d) remove the Products and refimd the purchase price les ficight chmgea and depreciation. SELLER shag not be liable for, and PURCHASER shall indam Y, SELLER far, my claim of infiigament related to (a) the use of the Products for any purpose other than that f which it as furnished by SELLER (b) compliance with equipment designs not firntished by SELLER m (c) use of the Products in combination with my other equipment. The foregoing states the sole liability of SELLER fm patent infringement with respect to the Products 13. GENERAL INDEMNITY. Subject to the limitations of liabilities of the parties set forth in this Agreanmi, each party shall protect and indemnify die other party, its parent and thea respective officers, daedors, employes and agents, from, and against all claims, demands and causes of action asserted by, or in favor of, any amity to the extent of the indemnifying pity's negligence or willfid misconduct in drnectio with the paf ceofthis agreement. 14. DEFAULT, TERMINATION. In the event that PURCHASER become iwuhent commits an set of bankruptcy or defaults in the part ce of my term or condition of this Agreement, de entire unpaid portio of the prdase 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 f reasonable legal f , plus out-of-pocket expenses and interest; andl r to enter any place where the Products arc located and to take imnediate possession ofand remove the Products, with or without legal process, a d/m retain all payments made cornpration f the use of the Products: and/or resell tc Products, without notice or dermad, for and an behalf of the PURCHASER and to apply [hand pocerds Ginn soh sale (afte, deduction fiom the sal, price of all evpauses of such sale and all expenses ofretaking possession, repsia necessary to pan the Products in saleable condition, storage cages, taxes, liens, collection and legal F and all other expanses in connection therewith) to the balance then due to SELLER for the Products and m receive fimn the PURCHASER the deficiency bewwen such nes proceeds of sale and such balance. PURCHASER hereby waives all trespass, damage and claim resulting from any such anrri, reposseson, removal, retention, rept ir, alteration and sale The ranedies provided in this paragraph are in addition to, and not limitations army other rights of SELLER IS CANCELLATION PURCHASER may tnniacits this Agreement fm comaiia es upon giving SELLER thirty (30) days pia written notice of such fad and paying SELLER for all costs and expenses fi cluding overhead) incurred by it in p•rforming its work and closing out the sane plus a ressmable profit thereon All such costs and expenses shall be paid to SELLER within 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 expnus owed 16. REMEDIES The rights and remodies of the PURCHASER in camectim with the good and services provided by SELLER hereunder are exclusive and limited to rhe rights andranedies expressly awed in this Agreanme 17. INSPECTION. PIn2CFIASER is mfidrd to mals rrasorable i,,I a tim of Products at SELLER', facility. SELLER—the right to determine the reasonablend s of the request and to select anappropriate time fm such inspection. Allcosts of in peclions not expressly included as an itemized put ofthe quotedp ice ofthe Products in Its Agamont shall be paid by PURCHASER. IR WAIVER Any failure by SELLER to adi m PURCHASER's strict performance, army provision of this Agreement will not constitute a wahhr of its right to subsequently enface such provision or my other provision ofild, Agrcemmt 19. COM1IPLIANCE W rut LAWS If apphnble laws, mdinonaa, regulations m emditms rcghdm anything dill t Gom, m in addition to that called fm by this Agreement. SELLER will satisfy such rerphianenis at PURCHASEWs written requestand expense. 20. FORCE MAJEURE If SELLER is ranched unable, wholly or in material part, directly or indi adly, by reason of Force Majeure, to carry out any of its obligations hereunder, then an SELLER's notice in writing to PURCHASER within a reawmable time after the ooarrenre of the —,.tied upn such obligations shall be susp ided'Fmce Majdae'shall inhide, but not be limited to, ants of God, epide nits and pandemics, acts afar delays caused by governmental authorities, changes in laws and relpilatiom, strikes, civil disobedience a hmrmt, lightning, fire, Board, washout, storm, communication lines failure, delays of the PURCHASER or PURCHASEWs subcontractors, breakage or accident to equipment or noulimery, wan, police actions, terrorism embergos, and my other masts that are not reasonably within the control ofthe SELLER Ifthe delay is the result of PURCHASER's action or inaction, then in addition to an adjustment in time, SELLER shall be collided to rc'unbavernmt of costs incurred to maintain its schedule. For die avoidance ofdoubr, if the rause relioi upon has commenced prior to the Parties entered into a contracting rcatioship, it shall not amderthe cause void and/or not capable ofbving included within the definitions of Force Majewe, as listed within this Article 20. 21. INDEPENDENT CONTRACTOR It is expressly understood that SELLER is an independent contractor, and that neither SELLER not its principals, pMeax, pmuN subsidiaries, affiliates, employees or subcontractors are servants, agmN pumds joint ventures cr amployees of PURCHASER in any way whatsoever. 2L SEVERABILITY. Should any portio of tis Agreement, be held to be invalid or menf ceable ado applicable law than the validity ofthe renaining portions thereofshaB not be affected by such invalidity or rmad'mceability and stall remain in full f and effect. Furtherance, my invalid or unenforceable provision shall be modifiedaamdiugly within the confines ofapplicoble law, giving maximan remissible effct to the partes'intentions yressedhaein. 23. CHOICE OF LAW, CHOICE OF VENUE This Agreement shall be governed and cmnsmhad in accordance with the laver; of the State of Utah, without repand to its odea regarding conflicts or, choice of pave The parties submit to the exelmiva jurisdiction and venue ofthe state and federal courts lactated in Salt lake City, Utah U. ASSIGNMENT. PURCHASER shall not assign or want this Agtmnmt without the prim written cmrcat of SELLER Any attempt to make such an assignment or uansfx shall be null and aid SELLER shall have the authority to asgn, or otherwise transfer, us rightsand obligations in connection with this Agsandr, in whole orin pmt, upon prim writican nim to PURCHASER a LIMITATION ON LIABILITY. To the erten, pernnissible by law, SELLER shall HAVE NO FURTHER LIABILITY IN CONNECTION WITH THIS AGREEMENT' in —, of the amount paid by purchaser for the products giving rise to such IFvbflfty. Notwithstanding any liabilities or responsibilities assumed by SELLER hereunder, SELLER shall in no event be responsible to PURCHASER or any third party, wheticer raising under contract, tort( eluding negUgenee), Arict liability, or otherwise, for Ims of anticipated pmfiu, loss by reason of plant shutdmm, nonoperation or increased expeme of operation, loss of data, senior interruptions, most of purchased or mplaeemat power, cost of money, loss of we ofcapital or revenue or dr other indirect, incidental, special, punitive, eumplary, or consequattial less or danuge, whedmr arising from defects, elay, or from any other canna what soever. 26. PRIVACY AND DATA PROTECTION. Seller has put in place rigorous safeguard and procedures regarding privacy and data protection, notably the Ovivo Privacy Policy (ovivowmar.com/privacy-policy), and requires that Purchase aAmere to its data protectim principles to the extant npph©ble to Purchaser. 27. DATA COLLECTION. PURCHASER consents to the cellectim of the Product's operational data and to the use fs 1h data fm theImpose of improving the Products and other purposes stated heragrees ein PURCHASER further that such data collodion does _I cobrute a pert ce monitesirg;,wire or duty by SELLER 28. INSURANCE SELLER shag maintain that its dunent leelsofinsurance f the duration ofth, Project, as set forth in its standard certificate ofinsurmhce, mailable upn request 29. BOWS IfPURCHASER dead it nm. y, and within tan(10)days ofPURCHASEW, request, SELLER shall provide me or more Band in favor of PURCHASER at PURCHASER's expense, by an imstiwtimy and in a Conn, approved in advance by SELLER 30. PERMIT'S PURCHASER sb ll be solely responsible to obtain and maintain in fore, all necessary µ its with respect to any products to be provided by SELLERhaemder and my intended use by PURCHASER REVISED—Mitch 2020 Ovivo USA, LLC 14246 Riverboat Road, Suite 300, Salt Lake City, Utah 84123 USA I Tel: (801) 931-3000 1 Fax: (801) 931-3080 AKF� ovivowatercom O �� m r t7 O PROPOSAL I Q1336 -KB I 16June 21 NORTH AMERICAN FIELD SERVICE RATE SHEET Effective January 2021 Standard (Travel) Daily Rate (8 hour day) $ 1,200.00 Hourly Rate (4 hour minimum) $ 150.00 Standard (Labor) Daily Rate (8 hour day) $1,200.00 Hourly Rate (4 hour minimum) $ 150.00 Saturday Daily Rate (8 hour day) $ 1,800.00 Hourly Rate (4 hour minimum) $ 225.00 Sundays/Holidays * Daily Rate (8 hour day) $ 2,400.00 Hourly Rate (4 hour minimum) $ 300.00 Overtime ** Hourly Rate - Standard Day $ 225.00 Hourly Rate - Weekends & Holidays $ 300.00 * Sunday and Holidays requests will be billed at the double time rate ** For all hours worked over eight (8) hours per standard day and Saturdays UNLESS OTHERWISE ARRANGED; EXPENSES ARE CHARGED AT ACTUAL COST PLUS 10% Please Note: • 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 for these expenses. Travel/Labor on Saturday and all overtime, will be billed at the overtime rate. Travel/Labor on Sundays or Holidays, will be billed at the double-time rate. If a fixed Per Diem rate is required, it will be charged at $250.00 per day (lodging and meals) with the exception of the East coast where the price will be $300.00. • Use of Ovivo USA Fleet vehicles for travel will be charged at the rate of $0.56 per mile. Ovivo USA, LLC 14246 Riverboat Road, Suite 300, Salt Lake City, Utah 84123 USA I Tel: (801) 931-3000 I Fax: (801) 931-3080 �AKF ovivowater.com m r c7 C Or;l(3'1NA1