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HomeMy WebLinkAbout2015-033 Contract - GE-Zenon Environmental Corp Contract for PERSONAL SERVICES les's than $35,000 CONSULTANT: GE Water & Process Technologies CITY OF Zenon Environmental Corporation ASHLAND CONTACT: Jason Diamond 20 East Main Street Regional Lifecycle Manager Western USA Ashland, Oregon 97520 ADDRESS: 3239 Dundas Street West Telephone: 541/488-6002 Oakville, Ontario L6M 4132 Fax: 541/488-5311 TELEPHONE: 905-465-3030, ext 3273 CELL: 905-469-2243 FAX: 905-469-2243 DATE AGREEMENT PREPARED: November 21, 2014 BEGINNING DATE: Aril 1, 2015 COMPLETION DATE: November 30, 2015 COMPENSATION: Insight Basic Service - $478/Month - 8 Months - Total Price $3,824.00 24/7 Emergency Telephone Technical Support - $206/Month - 8 Months - Total Price $1,648.00 SERVICES TO BE PROVIDED: Insight Digital Monitoring and 24/7 Emergency Telephone Technical Support Services, Term: April 1, 2015 to November 30, 2015 (8 Months) GE Water & Process Technologies Service Agreement is attached as Exhibit C. ADDITIONAL TERMS: In the event of conflicts or discrepancies among the contract documents, the City of Ashland Contract for Personal Services will be primary and take precedence, and any exhibits or ancillary contracts or agreements having redundant or contrary provisions w' be subordinate to nd interpreted in manner that will not conflict with the said primary City of Ashland Contract. rjt.G Acl~ FINDINGS: Pursuant to AMC 2.50.120, after reasonable inquiry and evaluation, the undersigned Department Head finds and determines that: (1) the services to be acquired are personal services; (2) the City does not have adequate personnel nor resources to perform the services; (3) the statement of work represents the department's plan for utilization of such personal services; (4) the undersigned consultant has specialized experience, education, training and capability sufficient to perform the quality, quantity and type of work requested in the scope of work within the time and financial constraints provided; (5) the consultant's proposal will best serve the needs of the City; and (6) the compensation negotiated herein is fair and reasonable. NOW THEREFORE, in consideration of the mutual covenants contained herein the CITY AND CONSULTANT AGREE as follows: 1. Findings / Recitations. The findings and recitations set forth above are true and correct and are incorporated herein by this reference. 2. All Costs by Consultant: Consultant shall, at its own risk and expense, perform the personal services described above and, unless otherwise specified, furnish all labor, equipment and materials required for the proper performance of such service. 3. Qualified Work: Consultant has represented, and by entering into this contract now represents, that all personnel assigned to the work required under this contract are fully qualified to perform the service to which they will be assigned in a skilled and worker-like manner and, if required to be registered, licensed or bonded by the State of Oregon, are so registered, licensed and bonded. 4. Completion Date: Consultant shall start performing the service under this contract by the beginning date indicated above and complete the service by the completion date indicated above. 5. Compensation: City shall pay Consultant for service performed, including costs and expenses, the sum specified above. Payments shall be made within 30 days of the date of the invoice. Should the contract be prematurely terminated, payments will be made for work completed and accepted to date of termination. 6. Ownership of Documents: All documents prepared by Consultant pursuant to this contract shall be the property of City. 7. Statutory Requirements: ORS 279C.505, 279C.515, 279C.520 and 279C.530 are made part of this contract. 8. Living Wage Requirements: If the amount of this contract is $20,142.20 or more, Consultant is required to comply with chapter 3.12 of the Ashland Municipal Code by paying a living wage, as defined in this chapter, to all employees performing work under this contract and to any Subcontractor who performs 50% or more of the service work under this contract. Consultant is also required to post the notice attached hereto as Exhibit B predominantly in areas where it will be seen by all employees. 9. Indemnification: Consultant agrees to defend, indemnify and save City, its officers, employees and agents harmless Contract for Personal Services, Revised 07/08/2014, Page 1 of 5 -from any and all losses, claims, actions, costs, expenses, judgments, subrogations, or other damages resulting from injury to any person (including injury resulting in death), or damage (including loss or destruction) to property, of whatsoever nature arising out of or incident to the performance of this contract by Consultant (including but not limited to, Consultant's employees, agents, and others designated by Consultant to perform work or services attendant to this contract). Consultant shall not be held responsible for any losses, expenses, claims, subrogations, actions, costs, judgments, or other damages, directly, solely, and proximately caused by the negligence of City. 10. Termination: a. Mutual Consent. This contract may be terminated at any time by mutual consent of both parties. b. City's Convenience. This contract may be terminated at any time by City upon 30 days' notice in writing and delivered by certified mail or in person. C. For Cause. City may terminate or modify this contract, in whole or in part, effective upon delivery of written notice to Consultant, or at such later date as may be established by City under any of the following conditions: i. If City funding from federal, state, county or other sources is not obtained and continued at levels sufficient to allow for the purchase of the indicated quantity of services; ii. If federal or state regulations or guidelines are modified, changed, or interpreted in such a way that the services are no longer allowable or appropriate for purchase under this contract or are no longer eligible for the funding proposed for payments authorized by this contract; or iii. If any license or certificate required by law or regulation to be held by Consultant to provide the services required by this contract is for any reason denied, revoked, suspended, or not renewed. d. For Default or Breach. i. Either City or Consultant may terminate this contract in the event of a breach of the contract by the other. Prior to such termination the party seeking termination shall give to the other party written notice of the breach and intent to terminate. If the party committing the breach has not entirely cured the breach within 15 days of the date of the notice, or within such other period as the party giving the notice may authorize or require, then the contract may be terminated at any time thereafter by a written notice of termination by the party giving notice. ii. Time is of the essence for Consultant's performance of each and every obligation and duty under this contract. City by written notice to Consultant of default or breach may at any time terminate the whole or any part of this contract if Consultant fails to provide services called for by this contract within the time specified herein or in any extension thereof. iii. The rights and remedies of City provided in this subsection (d) are not exclusive and are in addition to any other rights and remedies provided by law or under this contract. e. Obligation/Liability of Parties. Termination or modification of this contract pursuant to subsections a, b, or c above shall be without prejudice to any obligations or liabilities of either party already accrued prior to such termination or modification. However, upon receiving a notice of termination (regardless whether such notice is given pursuant to subsections a, b, c or d of this section, Consultant shall immediately cease all activities under this contract, unless expressly directed otherwise by City in the notice of termination. Further, upon termination, Consultant shall deliver to City all contract documents, information, works-in-progress and other property that are or would be deliverables had the contract been completed. City shall pay Consultant for work performed prior to the termination date if such work was performed in accordance with the Contract. 11. Independent Contractor Status: Consultant is an independent contractor and not an employee of the City. Consultant shall have the complete responsibility for the performance of this contract. Consultant shall provide workers' compensation coverage as required in ORS Ch 656 for all persons employed to perform work pursuant to this contract. Consultant is a subject employer that will comply with ORS 656.017. 12. Assignment and Subcontracts: Consultant shall not assign this contract or subcontract any portion of the work without the written consent of City. Any attempted assignment or subcontract without written consent of City shall be void. Consultant shall be fully responsible for the acts or omissions of any assigns or Subcontractors and of all persons employed by them, and the approval by City of any assignment or subcontract shall not create any contractual relation between the assignee or subcontractor and City. 13. Default. The Consultant shall be in default of this agreement if Consultant: commits any material breach or default of any covenant, warranty, certification, or obligation it owes under the Contract; its QRF status pursuant to the QRF Rules or loses any license, certificate or certification that is required to perform the Services or to qualify as a QRF if consultant has qualified as a QRF for this agreement; institutes an action for relief in bankruptcy or has instituted against it an action for insolvency; makes a general assignment for the benefit of creditors; or ceases doing business on a regular basis of the type identified in its obligations under the Contract; or attempts to assign rights in, or delegate duties under, the Contract. 14. Insurance. Consultant shall at its own expense provide the following insurance: a. Worker's Compensation insurance in compliance with ORS 656.017, which requires subject employers to provide Oregon workers' compensation coverage for all their subject workers b. Professional Liability insurance with a combined single limit, or the equivalent, of not less than Enter one: $200,000, $500,000, $1,000,000, $2,000,000 or Not Applicable for each claim, incident or occurrence. This is to cover damages caused b error, omission or negligent acts related to the professional services to be provided Contract for Personal Services, Revised 07/08/2014, Page 2 of 5 under this contract. C. General Liability insurance with a combined single limit, or the equivalent, of not less than Enter one: $200,000, $500,000, $1,000,000, $2,000,000 or Not Applicable for each occurrence for Bodily Injury and Property -Damage. It shall include contractual liability coverage for the indemnity provided under this contract. d. Automobile Liability insurance with a combined single limit, or the equivalent, of not less than Enter one: $200,000, $500,000, $1,000,000, or Not Applicable for each accident for Bodily Injury and Property Damage, including coverage for owned, hired or non-owned vehicles, as applicable. e. Notice of cancellation or change. There shall be no cancellation, material change, reduction of limits or intent not to renew the insurance coverage(s) without 30 days' written notice from the Consultant or its insurer(s) to the City. f. Additional Insured/Certificates of Insurance. Consultant shall name The City of Ashland, Oregon, and its elected officials, officers and employees as Additional Insureds on any insurance policies required herein but only with respect to Consultant's services to be provided under this Contract. The consultant's insurance is primary and non-contributory. As evidence of the insurance coverages required by this Contract, the Consultant shall furnish acceptable insurance certificates prior to commencing work under this contract. The certificate will specify all of the parties who are Additional Insureds. Insuring companies or entities are subject to the City's acceptance. If requested, complete copies of insurance policies; trust agreements, etc. shall be provided to the City. The Consultant shall be financially responsible for all pertinent deductibles, self-insured retentions and/or self- insurance. 15. Governing Law; Jurisdiction; Venue: This contract shall be governed and construed in accordance with the laws of the State of Oregon without resort to any jurisdiction's conflict of laws, rules or doctrines. Any claim, action, suit or proceeding (collectively, "the claim") between the City (and/or any other or department of the State of Oregon) and the Consultant that arises from or relates to this contract shall be brought and conducted solely and exclusively within the Circuit Court of Jackson County for the State of Oregon. If, however, the claim must be brought in a federal forum, then it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon filed in Jackson County, Oregon. Consultant, by the signature herein of its authorized representative, hereby consents to the in personam jurisdiction of said courts. In no event shall this section be construed as a waiver by City of any form of defense or immunity, based on the Eleventh Amendment to the United States Constitution, or otherwise, from any claim or from the jurisdiction. 16. THIS CONTRACT AND ATTACHED EXHIBITS CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES. NO WAIVER, CONSENT, MODIFICATION OR CHANGE OF TERMS OF THIS CONTRACT SHALL BIND EITHER PARTY UNLESS IN WRITING AND SIGNED BY BOTH PARTIES. SUCH WAIVER, CONSENT, MODIFICATION OR CHANGE, IF MADE, SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR THE SPECIFIC PURPOSE GIVEN. THERE ARE NO UNDERSTANDINGS, AGREEMENTS, OR REPRESENTATIONS, ORAL OR WRITTEN, NOT SPECIFIED HEREIN REGARDING THIS CONTRACT. CONSULTANT, BY SIGNATURE OF ITS AUTHORIZED REPRESENTATIVE, HEREBY ACKNOWLEDGES THAT HE/SHE HAS READ THIS CONTRACT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. 17. Nonappropriations Clause. Funds Available and Authorized: City has sufficient funds currently available and authorized for expenditure to finance the costs of this contract within the City's fiscal year budget. Consultant understands and agrees that City's payment of amounts under this contract attributable to work performed after the last day of the current fiscal year is contingent on City appropriations, or other expenditure authority sufficient to allow City in the exercise of its reasonable administrative discretion, to continue to make payments under this contract. In the event City has insufficient appropriations, limitations or other expenditure authority, City may terminate this contract without penalty or liability to City, effective upon the delivery of written notice to Consultant, with no further liability to Consultant. Certification. o sultant hall sign the certification attached hereto as Exhibit A and herein incorporated b reference. onsultant: City of Ashland By - ~2 n (3)2Dt.< By Signs a (JI Departme (P`rint ame Print Name S l.o m me('Cl o ~~>CWt S 1/ 3 PS Title Date W-9 One copy of a W-9 is to be submitted with the signed contract. Purchase Order No. Ashl st. ty Atto e_ y for Personal Services, Revised 07/08/2014, Page 3 of 5 Dat © ` 1 Contract ~ EXHIBIT A CERTIFICATIONS/REPRESENTATIONS: Contractor, under penalty of perjury, certifies that (a) the number shown on the attached W-9 form is its correct taxpayer ID (or is waiting for the number to be issued to it and (b) Contractor is not subject to backup withholding because (i) it is exempt from backup withholding or (ii) it has not been notified by the Internal Revenue Service (IRS) that it is subject to backup withholding as a result of a failure to report all interest or dividends, or (iii) the IRS has notified it that it is no longer subject to backup withholding. Contractor further represents and warrants to City that (a) it has the power and authority to enter into and perform the work, (b) the Contract, when executed and delivered, shall be a valid and binding obligation of Contractor enforceable in accordance with its terms, (c) the work under the Contract shall be performed in accordance with the highest professional standards, and (d) Contractor is qualified, professionally competent and duly licensed to perform the work. Contractor also certifies under penalty of perjury that its business is not in violation of any Oregon tax laws, and it is a corporation authorized to act on behalf of the entity designated above and authorized to do business in Oregon or is an independent Contractor as defined in the contract documents, and has checked four or more of the following criteria: ✓ (1) 1 carry out the labor or services at a location separate from my residence or is in a specific portion of my residence, set aside as the location of the business. ✓ (2) Commercial advertising or business cards or a trade association membership are purchased for the business. ✓ (3) Telephone listing is used for the business separate from the personal residence listing. (4) Labor or services are performed only pursuant to written contracts. ✓ (5) Labor or services are performed for two or more different persons within a period of one year. ✓ (6) 1 assume financial responsibility for defective workmanship or for service not provided as evidenced by the ownership of performance bonds, warranties, errors and omission insurance or liability insurance relating to the labor or services to be provided. r~ 2of~ Contrac or (Date) Contract for Personal Services, Revised 07/08/2014, Page 4 of 5 CITY OF ASHLAND, OREGON EXHIBIT B City of Ashland LIVING WAGE . . per hour effective June 30, 2014 (Increases annually every June 30 by the Consumer Price Index) • - • - portion of business of their 401 K and IRS eligible employer, if the employer has' cafeteria plans (including ten or more employees, and childcare) benefits to the has received financial amount of wages received by For all hours worked under a assistance for the project or the employee. ➢ business from the City of service contract between their Ashland in excess of ➢ Note: "Employee" does not employer and the City of $20,142.20. include temporary or part-time Ashland if the contract employees hired for less than exceeds $20,142.20 or more. ➢ If their employer is the City of 1040 hours in any twelve- Ashland including the Parks month period. For more ➢ For all hours worked in a and Recreation Department. details on applicability of this month if the employee spends policy, please see Ashland 50 or more of the ➢ In calculating the living wage, Municipal Code Section employee's time in that month employers may add the value 3.12.020. working on a project or of health care, retirement, For additional information: Call the Ashland City Administrator's office at 541-488-6002 or write to the City Administrator, City Hall, 20 East Main Street, Ashland, OR 97520 or visit the city's website at www.ashland.or.us. Notice to Employers: This notice must be posted predominantly in areas where it can be seen by all employees. CITY OF ASHLAND Contract for Personal Services, Revised 07/08/2014, Page 5 of 5 ADDENDUM "CHANGE ORDER" TO CITY OF ASHLAND AND GE WATER PROCESSING TECHNOLOGIES CONTRACT FOR PERSONAL SERVICES Addendum made this day of 2014, between the City of Ashland ("City") and GE Water Processing Technologies ("Contractor"). Recitals: A. City and Contractor intend to enter into a City of Ashland Contract for Personal Services to provide software support and emergency telephonic technical support to ensure proper operation of the City's wastewater system. B. The Contractor has supplied its own contract with terms and conditions (Exhibit C to the City's Contract) which conflict with terms and conditions of the City's standardized contract. Despite the fact that the City's contract states that its terms and conditions in its standard contract will take precedence in the event there is a conflict between the two contracts, the City wishes to ensure clarification where doubt may arise. C. Section B.1 of the "General Terms and Conditions of Sale" in Contractor's contract states that the "Agreement may only be revised by a change order approved in writing by Both Parties." City and Contractor agree to amend by way of this "change order" the Contractor's contract in the following manner: 1. Strike Section 1 of Exclusive Terms and Conditions, and replace with the following: Exclusive Terms and Conditions. The Parties agree to read these terms together with those in the City of Ashland's standard Personal Services Contract in a manner that is consistent where possible. In the event of conflicts or discrepancies among the Contract Documents, the City of Ashland Contract for Personal Services to provide software support and emergency telephonic technical support to ensure proper operation of the City's wastewater system, will be primary and take precedence, and any exhibits or ancillary contracts or agreements having redundant or contrary provisions will be subordinate to and interpreted in a manner that will not conflict with the said primary City of Ashland Contract. 2. 3. Strike Section 16 Governing Law, 4. Strike the first sentence of Section 20 Conflicts: Survival. Assignments. 5. Except as modified above, the terms of the City of Ashland Contract for Personal Services shall remain in full fc e d effect. CONTRAC CITY OF ASHLAND: BY BY Department Head Its $ ~o ►++►ti. e•4 ec Z44o 4J Date DATE a h~ ~'J y "ZO l S Purchase Order # Acct. No.: (For City purposes only) I- CITY OF ASHLAND, ADDENDUM TO CONTRACT FOR PERSONAL SERVICES UO Water & Process Technologies Service Agreement For the Ashland Wastewater Treatment Plant i ~ i " _ r ' Water & Process Technologies Table of Contents 1 Introduction ..........................................................................................................................................3 2 System Description ..............................................................................................................................3 3 Scope Summary - GE ............................................................................................................................3 4 Insight- Knowledge Management Solution .....................................................................................3 4.1 Features of InSight ....................................................................................................................................................4 4.2 Key Benefits ..................................................................................................................................................................4 4.3 Insight Packages ........................................................................................................................................................4 4.4 Insight Service Conditions ......................................................................................................................................5 5 24/7 Emergency Telephone Technical support ................................................................................5 6 Partnership Communication ..............................................................................................................7 7 Duties .....................................................................................................................................................8 8 Duration & Schedule ............................................................................................................................9 9 Price Summary ......................................................................................................................................9 10 Terms and Conditions of Sale .............................................................................................................9 11 Signed Agreement ..............................................................................................................................18 This proposal has been issued based upon the information provided by Customer and currently available to GE Water & Process Technologies at the time of proposal issuance. Any changes or discrepancies in site conditions (including but not limited to changes in system influent water characteristics, changes in Environmental Health and Safety (EH&S) conditions, changes in the Disposal System Permit reissued by the regulatory agency having jurisdiction, changes in Customer financial standing, Customer requirements, or any other relevant change or discrepancy in the factual basis upon which this proposal was created may lead to changes in the offering, including but not limited to changes in pricing, guarantees, quoted specifications, or terms and conditions. © GE All rights reserved. This document is provided for the sole use of the addressee and is not to be reproduced or divulged to other parties. Ashland - Service Agreement ©GE November 18, 2014 150485 revl Page 2 of 18 ' Water & Process Technologies Introduction ZENON Environmental Corporation, referred to here as GE provides support services to the Ashland WWTP, which is owned and operated by the City of Ashland, referred to here as Ashland. The following proposal is for on 8-month renewal of the Agreement services. 2 System Description 1 Plant Information _ Plant : Ashland Wastewater Treatment Plant Site Address 1295 Oak Street, Ashland OR 97520 Application: ZeeWeed° ultrafiltration treatment of wastewater. ZeeWeed,~ Membrane Module Type _ 500c 1220 ft2) Number of Process Trains 4 3 Scope Summary - GE This Service Agreement is an 8-month service plan which includes: Insight Basic - Digital Asset Monitoring 24/7 Emergency Telephone Technical Support Service Descriptive detail for the service components of this Scope is set out below. 4 InSight - Knowledge Management Solution InSight captures and transforms your plant data into meaningful and actionable information, ultimately providing the knowledge you need to maximize performance, avoid operational interruptions, optimize your processes, and reduce the total cost of operation. InSight provides: Analytics: Seeing, at any point in time, historical and current plant performance against success criteria and the trajectory of future performance; where it's on track and the weaknesses that need improvement. Early Detection and Alarming: Detecting emerging problems, so that action can be taken now, before a failure is experienced in the future. Optimization: Identifying opportunities to optimize and extend the life of membranes and equipment, lowering total cost of operations without sacrificing performance. Productivity: Reducing the tedious work of entering and reporting operator-collected data including data required for membrane warranties. Helping staff get more done with tools that enhance their personal productivity, enabling them to see and do more. Ashland - Service Agreement ©GE November 18, 2014 150485 revl Page 3 of 18 ' Water & Process Technologies Reporting: Reporting on key performance indicators and their impact on business objectives. Membrane Replacement Strategy: Planning a cost effective strategy for membrane replacement and upgrades with a deep understanding of factors affecting membrane performance. 4.1 Features of InSight Simplicity: InSight makes it easy to see how well your applications are performing over a specified time horizon. Reports: Provides regular scheduled performance reports and summaries. f Alerts: Provides alerts if any process parameters fall outside their normal operating range. In icators into a simple aggregate pe ormance indicator - Plant Health Mobility: Provides smartphone or tablet access Gauge. allowing the user the some abilities to see system health, current data, trends, reports and even enter operational data and notes. Security: Archives all plant data securely in an off-site central database. Data is password protected. Data Sources: Allows for data to be acquired from a wide range of sources and modes of capture - including automatic (wired and wireless) and direct manual data entry. 4.2 Key Benefits Allowing you to consolidate all your data to pull out valuable information to drive better business results. Driving safety, reliability, accountability and increased throughput. Digitizing data and tools to liberate your operations and service teams to do theirjobs more effectively. Providing peace of mind by having another level of surveillance which allows you to redefine operational excellence. 4.3 InSight Packages Two InSight packages are available to meet particular customer needs: InSight Basic - Digital Asset Monitoring InSight Pro - Process Consulting Service The service level of Insight offered to Ashland is InSight Basic - Digital Asset Monitoring. InSight Basic With InSight Basic, you will gain visibility into your plant's current and future performance by having complete access to your plant data through InSight. InSight allows you to perform your own process monitoring, trending and analysis suited to your individual plant operations and success criteria. You will have access to the tools in InSight to add your own annotations, load your own analytical data and configure your own reports and alerts. The service is enhanced with weekly automated performance reports and daily alarm notification summaries, allowing you to identify emerging problems earlier so that action can be taken now, before a failure can occur. Ashland - Service Agreement OGE November 18, 2014 150485 rev1 Page 4 of 18 ' Water & Process Technologies Insight Basic customers have access to personnel from GE's Service Reliability Center (SRC) who will provide training and support on the use and features of InSight. InSight Pro InSight Pro puts a professional GE Process Expert onto your team, collaborating to empower your operating team to apply the power of InSight to continuously improve their treatment processes. The Process Expert is specifically assigned to your plant and will monitor key parameters on a regular rhythm using the InSight platform. The Process Expert will be in frequent contact with the key members of your operations team to discuss and resolve performance, process and operational issues. While supporting your operations team with day- to-day issues, the Process Expert will also use InSight to bring attention to long term trends and provide recommendations that will help increase membrane and equipment life and reduce costs. As part of InSight Pro, the Process Expert provides bi-weekly process reports with analysis of key trends and recommendations to improve plant operation, membrane cleaning and overall performance. In addition, a semi- annual summary performance report is provided. If the need for troubleshooting does arise, you will have your Process Expert available, deeply familiar with your system and empowered with information to assist. 4.4 InSight Service Conditions GE will perform the services specified in the scope section of this document under the following provisos. Delays- Where GE is responsible for service delay during the agreement, the duration of the agreement shall be extended for the some duration as the service delay. Where Ashland is responsible for InSight service delays or interruptions, there will be no extension to the agreement term and Ashland is responsible to contact GE for reactivation after the cause of an interruption has been resolved. Hardware Replacement- Ashland retains ownership of any hardware supplied for data acquisition and transmission. Ashland will be billed for the replacement of this hardware if replacement is required and requested from GE. Installation will normally be performed by Ashland. 5 24/7 Emergency Telephone Technical Support For the life of the system, Plant Operators have telephone access to a skilled GE technical support specialist who will assist Plant Operators in troubleshooting of system problems such as electrical (PLC/HMI), mechanical and process control issues. Plant Operators call the telephone number provided below at any time during business hours and ask for Technical Support. - Business Hours -Hours of operation: 8:30am to S:OOpm Monday to Friday, Eastern Time Zone GMT-5 Telephone, toll free in North America: I +1 866 271 5425 Press 1 for RO/F&M Elements & Tonkaflo® Pump Support, Press 2 for OF/MBR/2eeWeed Membrane Equipment Support Press 3 for EDI/EDR Support Outside North America, j +1905-469-7723 Daytime Hours email address: LGEWater.TechnicalSupport@ae.com Ashland - Service Agreement i ©GE November 18, 2014 150485 rev1 Page 5 of 18 ` Water & Process Technologies Calls After-Flours - 24/7 Emergency Telephone Technical Support Our technical support team is always on call and is equipped with the system information for the plant to effectively talk a Plant Operator through an emergency, potentially averting loss of plant production and expensive call outs. The Telephone Technical Support Group maintains access to all plant drawings for rapid reference during 24/7 support calls. The Telephone Technical Support group has portable computers equipped to dial into the plant control system, in order to gain a better understanding of the situation, and to make any necessary adjustments to control set-points or software. Dial-in access requires a LAN modem or hi-speed internet connection at your facility and requires that you setup permissions in advance. If a situation requires a more detailed investigation of control code, a GE programmer is on call at all times. The Technical Support Specialist will manage the resources needed within GE to assist you in resolving your plant issues. All client issues are tracked through to resolution using GE's state-of-the-art Issue Tracking software. The Plant Operators call the telephone number provided below and cite the Plant's 24/7 Access Code. After Hours -Hours of Operation: Weekday Evenings & Nights, 5:00pm to 8:30am, Eastern Time Zone GMT-5 Weekends - All of Saturday and Sunday Telephone, toll free in North America: +1888 692 4547 for English press 1, answers as GE Outside North America: I +1905 9741917 When You Call When you call, or if you are leaving a message, please provide the following information: Plant Name Your contact telephone number for a call back. A brief description of the issue. For After-Hours calls, weekends and evenings, you will be asked for your 24/7 Access Code. 1 24/7 Service Information for your Plant Plant Name: Ashland WWTP Original Project Number: 500127 Your 24/7 Service Access Code: 3433 Getting the Most out of Your Call Having the following plant documentation conveniently available to the plant operator and close to the telephone will contribute greatly to effective and rapid troubleshooting when a problem arises. CLSC: Control Logic Summary Chart - Details of the control logic - ranges, set points and action or derivation of alert/alarm. OSC: Operation Sequence Chart - The PLC follows specific steps to automatically control valves, pumps and other devices during MODES OF OPERATION of the treatment plant. These steps are listed and described in the OSC. P&ID's: Piping & Instrumentation Diagram - schematic illustration of the functional relationship of piping, instrumentation and system equipment components. Electrical drawings of your plant. This will help with locating devices and fuses. A copy of this Telephone Technical Support service description. Ashland - Service Agreement ©GE November 18, 2014 150485 revl Page 6 of 18 ` Water & Process Technologies For control related issues, before making the call, it is very helpful to gather the last 5 relevant alarm messages and the corresponding instrument or equipment tag numbers. Client Issue Tracking, CIT To drive quick and definitive issue resolution, all client issues are tracked through to resolution using GE Water's state-of-the-art Issue Tracking software. All customer issues, warranty claims and technical support questions are entered into the CIT system and given a tracking number in a single tracking system, accessible to all GE Water's employees worldwide. An issue manager takes ownership of the issue, engages GE staff who can help resolve the issue and provides the customer with updates on progress. Customers can call for an update on their issue referencing their CIT tracking number. Issues that are taking too long to resolve are automatically escalated to upper management for action. Service Limitations Not all issues can be resolved through telephone support. In the event that the GE Technical Support Group cannot resolve the problem with the Plant Operator over the phone in a reasonable time frame, more extensive service support options are available at the rates and under the conditions published in the GE Services Labor Rate Sheet. Off-Site control code programming On-Site service by a Service Representative. On-Site or Off-Site Process Support Wherever feasible, calls regarding non-urgent issues should be made during business hours. For any further questions regarding this Telephone Technical Support service, please feel free to contact us through the Business Hours telephone number or email above. 6 Partnership Communication GE is committed to partnering with Ashland. An important part of this partnership is having dedicated contacts within GE. Regional Lifecycle Manager - GE Services To assure that our customers are fully supported, GE assigns a Regional Lifecycle Manager to each customer. This Regional Lifecycle Manager iRLMI will act as the GE Services "quarterback", communicating with plant staff to assure timely access to all the technical resources required from GE. Process Analyst A dedicated Process Analyst is assigned to each customer. The Process Analyst will be the primary contact for the plant staff for the remote monitoring and diagnostic support of their system. Ashland - Service Agreement ©GE November 18, 2014 150485 revl Page 7 of 18 ` Water & Process Technologies GE Contacts _ Contact Jason Diamond Dan Kelly Regional Lifecycle Manager Title Process Analyst Western USA Email Jason. Diamond@qe.com Daniel.kellyl@ge.com Address ( 3239 Dundas Street West 760 Shadowridge Drive, Oakville, Ontario L6M 462 Vista, California, USA 92083-7986 Telephone 905 465 3030 ext 3273 760 685 8562 Mobile -905 399 7055 LFax _905 469 2243 760 305 0173 Ultrafiltration Users Group As an on-going benefit to Ultrafiltration plants, this annual meeting typically takes place over 2 days and consists of formal meetings and a tour of the hosting Ultrafiltration plant. New technologies are introduced, current issues tabled, and roundtable discussions ensue on such topics as plant design or spare parts strategies. The Users Group has become an excellent forum for experienced operators to keep current, to renew old acquaintances, to exchange the "tricks of the trade" with each other, and to impart their hard won knowledge to newer Ultrafiltration operators. Each forum is chaired and organized by a duly selected, representative Ultrafiltration plant operator. Generous hospitality combines with informal experiences and exercises to enhance the esprit de corps between plant operators. All Ultrafiltration plants are invited to send operators representing the plant to participate in the Users Group. GE covers conference, food, and hospitality expenses. The plant must cover the operator's travel and hotel expenses and a small conference fee. GE supports this forum to facilitate interaction between Ultrafiltration Plant Operators and to provide a forum for real-world feedback to GE's management, design and operations staff. The first Ultrafiltration Users Group was formed in the year 2000 bringing together drinking water Plant Operators and the first Ultrafiltration Users Group for wastewater Plant Operators was organized in 2005. Previous User Group meetings have attracted operators from all over North America and from as far away as New Zealand. 7 Duties Ashland Where InSight service is being delivered, GE retains ownership of all software utilized to perform the service. The software is provided to Ashland on a licensed basis, and GE reserves the right to have the software returned whenever InSight service is not being delivered. Where Ashland is responsible for InSight service delays of any kind there will be no extension to the agreement, Ashland is responsible to re-establish service and continue with the agreement. GE Where GE is responsible for InSight service delays during the agreement, the duration of the agreement shall be extended for the same period of the service delay. Ashland - Service Agreement ©GE November 18, 2014 150485 revl Page 8 of 18 ' Water & Process Technologies 8 Duration & Schedule Agreement Duration & Start Date The term of the agreement - 8-months. See under Section 9, Price Summary Contract dates - April 1, 2015 - November 30, 2015 Schedule Service Item Proposed Quantity Duration InSight Basic 1 8 months - 24/7 Emergency Telephone Technical Support 1 8 months 9 Price Summary Price Table Part Number Unit Price Qty Total Price USD $ USD $ InSight Basic Service - Monthly Fee 3110633 $478 8 $3,824 _ 24/7 Emergency Telephone Technical Support - Monthly Fee _ 3066598 $206 8 y $1,648 - j Total $5,472 Purchase Order to be issued in the name of ZENON Environmental Corporation. 10 Terms and Conditions of Sale A - Specific Terms and Conditions of Sale 1 Legal Entity for Contracting ZENON Environmental Corporation is the name of the legal entity providing services and is an affiliate of GE Water & Process Technologies Canada. Purchase Orders and Checks should be made out using the name ZENON Environmental Corporation. Short Form:Where a short reference is required in this document, for convenience, we are called simply GE. 2 Payment Terms & Invoicing On approved credit, payment terms are Net 30 Days. InSight and 24/7 fees will be invoiced in advance of the service. 3 Price Validity Price quoted is valid up to April 1, 2015. 4 Purchase Order Guidelines Please ensure thatyour Purchase Order has covered the following points. This will ensure accurate and prompt order entry, product delivery, invoicing and accounts receivables processing and will prevent administrative delays for all parties. Ashland - Service Agreement ©GE November 18, 2014 150485 revl Page 9 of 18 ` Water & Process Technologies Legal Entity- Please be sure your Purchase Order is issued in the name of the specific GE legal entity issuing this proposal cited above. We will be glad to work with your Purchasing department to set this entity up as an approved SupplierNendor. Hard Copy- Our strong preference is to receive a hard copy of your Purchase Order rather than a PO number alone. Proposal Number and Date- Please reference the 6 digit Proposal Number and the Proposal Date which are found in the footer of each page. Price- State the total price you are accepting for this order. Taxes- Provide any required tax exemption certificates. Ship-To Address- Please clearly define the plant site address or delivery location and the Receiver's email & telephone. Specify receiving hours and any special off-loading requirements. Delivery Date- Please include your requested delivery date or agreement start date. Purchase Order- Please send your Purchase Order by email to ServicePOCentral@ge.com B - General Terms and Conditions of Sale Note to Purchasing Agent: The following are GE's standard set of commercial terms & conditions, written for moderate value transactions to allow an efficient and rapid provision of services and parts. Where Corporate Agreement Terms have been previously agreed these may be brought forward by either party and applied by mutual consent. If either of these terms sets are not immediately acceptable, please expect a typical 6-10 week cycle of mutual review to build agreement on changes. 1. Exclusive Terms and Conditions. Together with any other terms the Parties agree to in writing, these General Terms and Conditions - together with the last proposal in order of time issued by the Seller -form the exclusive terms ("Agreement") whereby Buyer agrees to purchase, and Seller agrees to sell products and equipment (jointly "Equipment") and to provide advice, instruction and other services in connection with the sale of that Equipment ('Services"). If Buyer sends to Seller other terms and conditions to which Seller may not respond, including but not limited to those contained in Buyer's purchase order, such shall not apply. This Agreement may only be revised by a change order approved in writing by both Parties. All terms not defined herein shall be defined in Sellers proposal. 2. Equipment and Services. The Equipment to be delivered and the Services to be provided shall be as set out in this Agreement. Unloading, handling, storage, installation, and operation of Buyer's systems or the Equipment are the responsibility of Buyer. Buyer shall not require or permit Seller's personnel to operate Buyer's systems or the Equipment at Buyer's site. 3. Prices and Payment. Buyer shall pay Seller for the Equipment and Services in accordance with the payment schedule (as set forth in Sellers proposal or, if applicable, in any special conditions agreed to in writing by the Parties). Unless otherwise specified in writing, payment is due net thirty (30) days from the date of Seller's invoice. Seller may require a Letter of Credit or other payment guarantee, in which case the stated amount of the guarantee will be adjusted by Buyer in the event of any currency-based adjustment to prices or payment amounts per the Payment Schedule, and Buyer shall deliver the adjusted guarantee within five (5) days of request by Seller. Buyer agrees to reimburse Seller for collection costs, including 2% (two percent) interest per month (not to exceed the maximum amount permitted by applicable law), should Buyer fail to timely pay. Buyer shall have no rights to make any deduction, retention, withholding or setoff relating to any payments due under this Agreement. 4. Taxes and Duties. Seller shall be responsible for all corporate taxes measured by net income due to performance of or payment for work under this Agreement 1"Seller Taxes"). Buyer shall be responsible for all taxes, duties, fees, or other charges of any nature (including, but not limited to, consumption, gross receipts, import, property, sales, stamp, turnover, use, or value-added taxes, and all items of withholding, deficiency, penalty, addition to tax, interest, or assessment related thereto, imposed by any governmental authority on Buyer or Seller or its subcontractors) in relation to the Agreement or the performance of or payment for work under the Agreement other than Seller Taxes ('Buyer Taxes"). The Agreement prices do not include the amount of any Buyer Taxes. If Buyer deducts or withholds Buyer Taxes, Buyer shall pay additional amounts so that Seller receives the full Agreement price without reduction for Buyer Taxes. Buyer shall provide to Seller, within one month of payment, official receipts from the applicable governmental authority for deducted or withheld taxes. Buyer shall furnish Seller with evidence of tax exemption acceptable to taxing authorities if applicable, prior to execution of the Agreement by both Parties or issuance by the Ashland - Service Agreement ©GE November 18, 2014 150485 rev1 Page 10 of 18 ' Water & Process Technologies Seller of the order acceptance. Buyer's failure to provide evidence of exemption at time of order will relieve Seller of any obligation to refund taxes paid by Seller. 5. Delivery, Title, Risk of Loss. Unless otherwise specified in this Agreement, Seller shall deliver all Equipment to Buyer FCA (Incoterms 2010) Seller's facility. The time for delivery of the Equipment to Buyer shall be specified in this Agreement. Seller's sole liability for any delay in delivery of the Equipment shall be as expressly set out in this Agreement. The place of delivery specified herein sell be firm and fixed, provided that Buyer may notify Seller no later than forty-five (45) days prior to the scheduled shipment date of the Equipment of an alternate point of delivery, Buyer shall compensate Seller for any additional cost in implementing the change. If any part of the Equipment cannot be delivered when ready due to any cause not attributable to Seller, Buyer shall designate a climate- controlled storage location, and Seller shall ship such Equipment to storage. Title and risk of loss shall thereupon pass to Buyer, and amounts payable to Seller upon delivery or shipment shall be paid by Buyer along with expenses incurred by Seller. Services provided herein shall be charged at the rate prevailing at the time of actual use and Buyer shall pay any increase, and Buyer shall pay directly all costs for storage and subsequent transportation. Failure by Buyer to take delivery of the Equipment shall be a material breach of this Agreement. Title and risk of loss to the Equipment shall be transferred from Seller to Buyer at the point of delivery upon handover in accordance with this Agreement. Title and risk of loss to the Services shall pass as they are performed. 6. Warranties and Remedies. Seller warrants that Equipment shall be delivered free from defects in material, workmanship and title and that Services shall be performed in a competent, diligent manner in accordance with any mutually agreed specifications. Seller's warranty does not cover the results of improper handling, storage, installation, commissioning, operation or maintenance of the Equipment by Buyer or third parties, repairs or alterations made by Buyer without Seller's written consent, influent water which does not comply with agreed parameters, or fair wear and tear. Unless otherwise expressly provided in this Agreement, the foregoing warranties are valid for: a. chemicals and Services, for six (6) months from their date of delivery or the provision of Services; b. consumables, including filters and membranes (other than membranes for process treatment), twelve (12) months from their date of delivery; C. membranes for process treatment, ninety (90) days from their date of delivery; d. Equipment other than chemicals and consumables, the earlier of, fifteen (15) months from delivery or shipment to storage, or twelve (12) months from start-up/first use; e. software, ninety (90) days from the date of receipt; f. Equipment not manufactured by Seller, the warranty shall be the manufacturers transferable warranty only, Any claim for breach of these warranties must be promptly notified in writing, and Buyer shall make the defective item available to the Seller, or the claim will be void. Sellers sole responsibility and Buyers exclusive remedy arising out of or relating to the Equipment or Services or any breach of these warranties is limited to repair at Seller's facility or (at Sellers option) replace at Seller's facility the defective item of Equipment, and re-perform defective Services. In performance of its obligations hereunder, Seller will not control the actual operation of either Buyers systems or the Equipment at the Buyers site. Warranty repair, replacement or re-performance by Seller shall not extend or renew the applicable warranty period. The warranties and remedies are conditioned upon (a) proper unloading, handling, storage, installation, use, operation, and maintenance of the Equipment and Buyers facility and all related system in accordance with Seller's instructions and, in the absence, generally accepted industry practice, (b) Buyer keeping accurate and complete records of operation and maintenance during the warranty period and providing Seller access to those records, and (c) modification or repair of Equipment or Services only as authorized by Seller in writing. Failure to meet any such conditions renders the warranty null and void. The Buyer will be entitled to assign to a subsequent owner of the Equipment the warranties of the Seller under this Agreement, provided that a prior written notification is sent to the Seller and the assignment agreement contains terms and conditions which provide the Seller with the protections of the warranties and limitations on liability contained in the Agreement. Subject to Buyers compliance with the foregoing requirement, such warranty rights are expressly assignable by the Buyer to a subsequent owner of the Equipment. Except as provided herein, Buyer is Ashland - Service Agreement OGE November 18, 2014 150485 revl Page 11 of 18 ' Water & Process Technologies not entitled to extend or transfer this warranty to any other party. The warranties and remedies set forth in this article are in lieu of and exclude all other warranties and remedies, statutory, express or implied, including any warranty of merchantability or of fitness for a particular purpose. Unless otherwise expressly stipulated in this Agreement, Seller gives no warranty or guarantee as to process results or performance of the Equipment, including but not limited to product quality, flow, production, capacity, membrane life, chemical consumption, regulatory compliance or energy consumption. 7. General Indemnity. Seller shall indemnify and hold harmless Buyer from claims for physical damage to third party property or injury to persons, including death, to the extent caused by the negligence of Seller or its officers, agents, employees, and/or assigns while engaged in activities under this Agreement. Buyer shall likewise indemnify and hold harmless Seller from claims for physical damage to third party property or injury to persons, including death, to the extent caused by the negligence of the Buyer, its officers, agents, employees, and/or assigns. In the event such damage or injury is caused by thejoint or concurrent negligence of Seller and Buyer, the loss shall be borne by each Party in proportion to its negligence. For the purposes of this article (i)'Third party' shall not include Buyer or any subsequent owner of the Equipment, their subsidiaries, parents, affiliates, agents, successors or assigns including any operation or maintenance contractor, or their insurer; and (ii) no portion of the Equipment is "third party property". 8. Compliance with Laws and Permits. All permits, authorizations, and licenses which are required to construct, install and/or operate Buyer's facility or equipment, to use the Equipment, or to manage and dispose of any wastes, discharges, and residues resulting from Buyer's use of the Equipment, shall be obtained and maintained by Buyer at Buyer's sole expense. Buyer is responsible for compliance with all laws and regulations applicable to the storage, use, handling, installation, maintenance, removal, registration, and labeling of all Equipment after delivery of the Equipment, as well as for the proper management and disposal of all wastes, discharges, and residues. 9. Buyer's Site Conditions. Buyer warrants that any data furnished to the Seller concerning conditions at Buyer's site (including but not limited to any existing Buyer facility, equipment or processes, influent water or other substances to be treated or measured with the Equipment) is accurate and complete, and the Seller reserves the right to utilize the most appropriate design compatible with generally accepted engineering practices, and to make changes in details of design, manufacture and arrangement of Equipment unless precluded by any limitations specified in this Agreement. Seller shall notify Buyer of (1) any conditions at Buyer's site which materially differfrom those indicated in the data furnished by Buyer, (2) any previously unknown physical conditions at Buyer's site of an unusual nature, not revealed by previous investigations and differing from those ordinarily encountered in the type of work provided for in this Agreement, and (3) the presence of any Hazardous Materials (as defined below), the existence of a contaminated soil, unexploded ordinance, or archaeological remains. If such conditions cause an increase in Seller's cost or in the time required for the performance of Seller's obligations, Seller shall be entitled to an equitable adjustment in the Agreement price and an extension in the time for performance. 10. Hazardous Materials and Wastes. In the event that Seller encounters any Hazardous Materials (meaning toxic substances, hazardous substances, pollutants, contaminants, regulated wastes, or hazardous wastes as such terms may be defined or classified in any law, statute, directive, ordinance or regulations promulgated by any applicable governmental entity) at Buyer's site, other than Hazardous Materials introduced by Seller or that are otherwise the express responsibility of Seller under this Agreement, Buyer shall immediately take whatever precautions are required to legally eliminate such Hazardous Materials so that the Seller's work under this Agreement may safely proceed. At no time shall Seller be deemed to have taken title to or the responsibility for the management or disposal of any wastes, Hazardous Materials, influent water, any resultant product streams, wastewater streams, discharges, cleaning materials, or any other materials or substances processed by the Equipment or otherwise located at Buyer's site. Seller does not take responsibility for and hereby expressly disclaims responsibility for the characterization or disposal of wastes, Hazardous Materials, or for the identification, selection, or management of disposal facilities for any wastes. 11. Excusable Delays. Seller shall not be liable nor in breach or default of its obligations under this Agreement to the extent performance of such obligations is delayed or prevented, directly or indirectly, due to causes beyond the reasonable control of Seller, including, but not limited to: acts of God, natural disasters, unusually severe weather, fire, terrorism, war (declared or undeclared) epidemics, material shortages, insurrection, act (or omissions) of Buyer or Buyer's contractors/suppliers or agents, any act (or omission) by any governmental authority, strikes, labor disputes, transportation shortages, or vendor non-performance. The delivery or performance date shall be extended Ashland - Service Agreement OGE November 18, 2014 150485 revl Page 12 of 18 ' Water & Process Technologies for a period equal to the time lost by reason of delay or non-performance, plus such additional time as may be necessary to overcome the effect of the delay or non-performance. If delivery or performance is delayed for a period exceeding 180 (one hundred and eighty) days, either Party may terminate this Agreement without further liability provided that Seller shall be paid an amount equal to that which would be payable to Seller under the article entitled "Termination". If Seller is delayed by any acts for omissions) of Buyer, or by the prerequisite work of Buyer's other contractors or suppliers, Seller shall be entitled to an equitable adjustment in schedule, price and/or performance, as applicable. 12. Emergencies. If the safety of Seller's personnel is threatened or likely to be threatened by circumstances outside the reasonable control of Seller, including but not limited to war, armed conflict, civil unrest, riots, terrorism, kidnapping, presence of or exposure to hazardous materials, unsafe working conditions, or by the threat of such circumstances or a lack of adequate protections against such circumstances, Seller shall be entitled to take all necessary steps to ensure the security and safety of its personnel including the evacuation of personnel until such circumstances no longer apply. Any such occurrence shall be considered an excusable delay event. Buyer shall reasonably assist in the event of any such evacuation. 13. Confidentiality, Intellectual Property. Both Parties agree to keep confidential the other Party's proprietary non- public information, if any, which may be acquired in connection with this Agreement. Buyer will not, without Seller's advance written consent, subject Equipment to testing, analysis, or any type of reverse engineering. Seller retains all intellectual property rights including copyright which it has in all drawings and data or other deliverables (including the Equipment) supplied or developed under this Agreement. Buyer agrees that it will not file patent applications on the Equipment or any development or enhancement of the Equipment, or of processes and methods of using the Equipment, without Seller's express prior written permission. Buyer further agrees that in any event any such patents will not be asserted against Seller or its other buyers based upon purchase and use of such Equipment. Seller grants to Buyer a non-exclusive, non-terminable, royalty free license to use the intellectual property embedded in Equipment delivered to and paid for by the Buyer, as well as any drawings, design or data delivered to and paid for by the Buyer, for the purposes of owning, financing, using, operating and maintaining the relevant Equipment at Buyer's site. Such license may only be assigned to a subsequent owner of the Equipment or to an operations and maintenance subcontractor. Such license does not extend to the re-creation of the Equipment or the manufacture of spores or consumables by Buyer or third parties. Any software Seller owns and provides pursuant to this Agreement shall remain Seller's property. Seller provides to Buyer a limited, non-exclusive and terminable royalty free project-specific license to such software for the use, operation or maintenance at Buyer's site of any Equipment purchased hereunder to which the software is a necessary component. Buyer agrees not to copy, sub-license, translate, transfer, reverse engineer, or decode the software. Seller shall indemnify and hold harmless Buyer from any rightful claim of any third party that any Equipment or Service infringe a patent in effect in the USA, or country of delivery (provided there is a corresponding patent issued by the USA), or USA copyright or copyright registered in the country of delivery. If the Buyer notifies the Seller promptly of the receipt of any such claim, does not take any position adverse to the Seller regarding such claim and gives the Seller information, assistance and exclusive authority to settle and defend the claim, the Seller shall, at its own expense and choice, either (i) settle or defend the claim and pay all damages and costs awarded in it against the Buyer, or (ii) procure for the Buyer the right to continue using the Equipment or Service, or (iii) modify or replace the Equipment or Service so that it becomes non-infringing, or (iv) remove the infringing Equipment and refund the price. The above paragraph shall not apply to any misuse of Equipment or Equipment which is manufactured to the Buyer's design, or to alleged infringement arising from the combination, operation, or use of any Equipment or Services with other equipment or services when such combination is part of any allegedly infringing subject matter. The foregoing list of sub-sections (i), (ii), (iii), and (iv) and related terms state the entire liability of the Seller for intellectual property infringement by any Equipment or Service. 14. Limitations on Liability. Notwithstanding anything else contained in this Agreement, to the maximum extent permitted by law, and regardless of whether a claim is based in contract (including warranty or indemnity), extra- contractual liability, tort (including negligence or strict liability), statute, equity or any other legal theory: a. THE TOTAL LIABILITY OF THE SELLER AND OF ITS INSURER FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE PERFORMANCE OR BREACH OF THIS AGREEMENT OR USE OF ANY EQUIPMENT OR SERVICES SHALL NOT EXCEED THE TOTAL PRICE PAID BY BUYER UNDER THIS AGREEMENT OR (IN THE CASE OF AN AGREEMENT FOR Ashland - Service Agreement ©GE November 18, 2014 150485 revl Page 13 of 18 ' Water & Process Technologies SERVICES WITH A TERM OF MORE THAN ONE YEAR) THE ANNUAL PRICE PAYABLE BY BUYER UNDER THIS AGREEMENT; b. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY LOSS OF PROFIT OR REVENUES, LOSS OF PRODUCTION, LOSS OF USE OF EQUIPMENT OR SERVICES OR ANY ASSOCIATED EQUIPMENT, INTERRUPTION OF BUSINESS, COST OF CAPITAL, COST OF REPLACEMENT WATER OR POWER, DOWNTIME COSTS, INCREASED OPERATING COSTS, CLAIMS OF BUYER'S CUSTOMERS FOR SUCH DAMAGES, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES; C. SELLER'S LIABILITY SHALL END UPON EXPIRATION OF THE APPLICABLE WARRANTY PERIOD, PROVIDED THAT BUYER MAY CONTINUE TO ENFORCE A CLAIM FOR WHICH IT HAS GIVEN NOTICE PRIOR TO THAT DATE BY COMMENCING AN ACTION OR ARBITRATION, AS APPLICABLE UNDER THIS AGREEMENT, BEFORE EXPIRATION OF ANY STATUTE OF LIMITATIONS OR OTHER LEGALTIME LIMITATION BUT IN NO EVENT-TO THE EXTENT PERMITTED BY APPLICABLE LAW - LATER THAN FIVE (5) MONTHS AFTER EXPIRATION OF SUCH WARRANTY PERIOD. For the purposes of this article, "Seller" shall mean Seller, its affiliates, subcontractors and suppliers of any tier, and their respective agents and employees, individually or collectively. If Buyer is supplying Seller's Equipment or Services to a third party, Buyer shall require the third party to agree to be bound by this article. If Buyer does not obtain this agreement for Seller's benefit for any reason, Buyer shall indemnify and hold Seller harmless from all liability arising out of claims made by the third party in excess of the limitations and exclusion of this article. 15. Termination. This Agreement and any performance pursuant to it may be terminated by either Party, and the consequences of such termination shall be as set out in the next paragraph, if the other Party a. becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for the benefit of its creditors, or files for protection from creditors under any bankruptcy or insolvency laws; or b. fails to make any payment when due or to establish any payment security required by this Agreement, or commits a material breach or defaults in its material obligations under this Agreement, and such default is not cured within thirty (30) days of written notice from the other Party. Upon the termination of this Agreement by Buyer for cause (i) Seller shall reimburse Buyer the difference between that portion of the Agreement price allocable to the terminated scope and the actual amounts reasonably incurred by Buyer to complete that scope, and (ii) Buyer shall pay to Seller (a) the portion of the Agreement price allocable to Equipment completed, and (b) amounts for Services performed before the effective date of termination. Upon the termination of this Agreement by Seller for cause Buyer shall pay to Seller within thirty (30) days of receipt of invoice the price of all Equipment or Services delivered at the date of termination, plus an amount equal to all costs and expenses incurred in the engineering, sourcing, financing, procurement, manufacture, storage and transportation of the Equipment including materials, work in progress and any cancellation charges assessed against Seller by Seller's suppliers including reasonable overhead and profit on all such costs and expenses. Alternatively, if any schedule of termination payments has been agreed between the Parties, Buyer shall pay to Seller within thirty (30) days of receipt of invoice the amounts set out in that schedule. Seller shall have the right to suspend performance upon written notice to Buyer in any case where Seller would have the right to terminate the Agreement under this article, without prejudice to Seller's right to terminate this Agreement for cause. Any cost incurred by Seller in accordance with any such suspension (including storage costs) shall be payable by Buyer upon submission of the Seller's invoice(s). Performance of the Seller's obligations shall be extended for a period of time reasonably necessary to overcome the effects of such suspension. 16. Governing Law, Dispute Resolution. This Agreement shall be governed by the substantive laws of the State of New York. In the event of a dispute concerning this Agreement, the complaining Party shall notify the other Party in writing thereof. Management level representatives of both Parties shall meet at an agreed location to attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining Party shall seek remedies exclusively through arbitration. The seat of arbitration shall be the federal district court in Philadelphia, PA, and the rules of the arbitration will be the Commercial Arbitration Rules of the American Arbitration Association, which are incorporated by reference into this article. Notwithstanding the foregoing, each Party shall have the right to commence an action or proceeding in a court of competentjurisdiction, subject to the terms of this Agreement, in order to seek and obtain a restraining order or Ashland - Service Agreement ©GE November 18, 2014 150485 revl Page 14 of 18 Water & Process Technologies injunction to enforce the confidentiality intellectual property provisions set forth in the first two paragraphs of article 13; nuclear use restrictions set forth in article 17, or to seek interim or conservatory measures not involving monetary damages. 17. No Nuclear Use. Equipment and Services sold by Seller are not intended for use in connection with any nuclear facility or activity, the Buyer warrants that it shall not use or permit others to use the Equipment or Services for such purposes, without the advance written consent of Seller. If, in breach of this, any such use occurs, Seller land its parent, affiliates, suppliers and subcontractors) disclaims all liability for any nuclear or other damage, injury or contamination, and, in addition to any other rights of Seller, Buyer shall indemnify and hold Seller land its parent, affiliates, suppliers and subcontractors) harmless against all such liability. 18. Export Control. Seller's obligations are conditioned upon Buyer's compliance with all USA and other applicable trade control laws and regulations. Buyer shall not trans-ship, re-export, divert or direct Equipment (including software and technical data) other than in and to the ultimate country of destination declared by Buyer and specified as the country of ultimate destination on Seller's invoice. 19. Changes. Each Party may at any time propose changes in the schedule or scope of Equipment or Services. All changes to the Equipment or Services shall be subject to mutual agreement via a written change order or variation, which shall only become effective once signed by both Parties. The scope, Agreement price, schedule, and other provisions will be equitably adjusted to reflect additional costs or obligations incurred by Seller resulting from a change, after Seller's proposal date, in Buyer's site-specific requirements or procedures, or in industry specifications, codes, standards, applicable laws or regulations. It shall be acceptable and not considered a change if Seller delivers Equipment (including Equipment replacement under warranty) that bears a different, superseding or new part or version number compared to the part or version number listed in the Agreement, provided that in no circumstance shall this affect any other of Seller's obligations including those set forth in article 6. 20. Conflicts; Survival, Assignment If there is any conflict between this Agreement and any written proposal or quotation provided by Seller, then the terms and conditions set forth in this Agreement shall prevail. If any term or condition of this Agreement or any accompanying terms and conditions are held invalid or illegal, then such terms and conditions shall be reformed to be made legal or valid, or deleted, but the remaining terms and conditions shall remain in full force and effect, and this Agreement shall be interpreted and implemented in a manner which best fulfills Parties' intended agreement. Those provisions which by their nature remain applicable after termination shall survive the termination of this Agreement for any reason. Seller may assign or novate its rights and obligations under the Agreement, in whole or in part, to any of its affiliates or may assign any of its accounts receivable under this Agreement to any party without Buyer's consent, and the Buyer hereby agrees, by signing this Agreement, to such assignment and to execute any document that may be necessary to complete Seller's assignment or novation. This Agreement shall not otherwise be assigned by either Party without the other Party's prior written consent, and any assignment without such consent shall be void. Seller may li) manufacture and source the Equipment and any part thereof globally in the country or countries of its choosing; and 00 may subcontract portions of the Services, so long as Seller remains responsible for such. 21. No Third Party Beneficiary. Except as specifically set forth in the article entitled "Limitations on Liability" and "No Nuclear Use", this Agreement is not intended to, and does not, give to any person who is not a party to this Agreement any rights to enforce any provisions contained in this Agreement. 22. Entire Agreement This Agreement embodies the entire agreement between Buyer and Seller and supersedes any previous documents, correspondence or agreements between them. No modification, amendment, revision, waiver, or other change shall be binding on either Party unless agreed in writing by the Party's authorized representative. Any oral or written representation, warranty, course of dealing, or trade usage not specified herein shall not be binding on either Party. Each Party agrees that it has not relied on, or been induced by, any representations of the other Party not contained in this Agreement. C - Intellectual Property and Data Provisions INTELLECTUAL PROPERTY: Buyer shall not nor shall it allow any third party to reverse engineer the equipment nor permit or otherwise grant any third party access to the equipment for such purpose. USE: Buyer agrees to use the equipment only in accordance with Seller's instructions and shall only use Seller approved chemical products in connection with the equipment. To the extent that Buyer fails to do so, Buyer hereby agrees that any Ashland - Service Agreement ©GE November 18, 2014 150485 revl Page 15 of 18 r~ ' Water & Process Technologies and all applicable warranties for the Services, including, but not limited to, any accuracy or performance guarantees shall be waived. DATA RIGHTS: The parties acknowledge that in performance of the Services, Seller will be collecting data from Buyer relating to Buyer's processes, materials, equipment and other information I"Data"). Buyer hereby consents to the collection of such Data by the Seller. The following provisions will apply to Data. NETWORK INTERFACE: Buyer will install and maintain any and all equipment, systems, software and network interfaces at, and provide telecommunications access to, its facilities as may be required to gather and communicate Data to Seller's monitoring systems in conformance with Seller's interface specifications. Buyer shall use commercially reasonable efforts to maintain its equipment, systems, software and network interfaces to ensure that there are no viruses, Trojan horses, tracking or other cookies, malware or any other harmful software embedded in or attached to Data or such equipment, systems, software or network interfaces that are accessed by or otherwise affect Seller's equipment, systems or software. Upon reasonable request by Seller, Buyer shall perform testing or audits to verify compliance with this paragraph at Seller's sole expense. CUSTODIAN: Seller will be custodian of the Data. Seller will store and maintain the Data in a secure manner and logically separate from data belonging to other customers consistent with industry standards. Data will be stored and maintained by Seller for an archive period of 1 year, and then shall be destroyed. Periodic back-ups of Data will be maintained as necessary for Seller to perform its obligations herein and in accordance with reasonable commercial practices. Seller may store such information in any location and in such a manner as it deems appropriate in its sole discretion in accordance with reasonable commercial practices. All Data remains subject to the confidentiality provisions set forth in this Agreement. SELLER ACCESS: Seller will restrict access to Data to those employees, agents and contractors of Seller with a need to know. In addition to accessing Data through computer terminals, such employees, agents and contractors may access Data through computer monitors disposed in monitoring laboratories or control rooms at sites operated by or on behalf of Seller. Access by such individuals on behalf of Seller to stored Data shall be controlled through individual user names and passwords consistent with Seller's information technology policies and procedures. Access by such individuals on behalf of Seller to displayed Data on monitors shall be restricted through controlled access or other reasonable security measures determined by Seller in its sole discretion. BUYER ACCESS: Seller may provide access to Buyer to Data during the period which Data is stored. For individual access, Buyer shall provide a request for authorization for each individual requesting such access. Authorized personnel of Buyer shall be issued a unique User ID and password that identifies and may be used by only a single user. All requests for access shall be through an officially approved and documented process of Buyer. Seller shall use reasonable commercial efforts to provide user access to Buyer in a timely manner. In the case that any employee or contractor no longer requires access or in the case where such employee or contractor is voluntarily or involuntarily terminated, Buyer shall notify Seller immediately at which time such User ID will be disabled and access terminated. Seller shall not be liable for any access by individuals based on whole or in part by the failure on the part of Buyer to provide timely notice of restrictions on or termination of access. Upon reasonable request by Buyer and to the extent technically feasible or practical, copies of some or all of Buyer's Data shall be transferred to Buyer pursuant to mutually agreed upon protocols, procedures and schedules. Moreover, reports that summarize Data may be developed from time to time and provided to Buyer. Seller shall be compensated on a time and materials basis for any such transfer or report generation. Buyer or Seller may develop applications for accessing Data from mobile devices. Additional user identification and secure login information may be required by Seller. Seller shall use reasonable commercial efforts to ensure that mobile access to Data is secure. However, Buyer acknowledges that much of wireless network security is controlled by 3rd party carriers or network vendors and Seller shall not be liable for any security breaches based in whole or in part on services provided by such 3m parties. SECURITY / UNAUTHORIZED ACCESS: Buyer shall not reverse engineer, hack, access or attempt to access, or have anyone do so on its behalf, any data, systems, programming, or any other information maintained by Seller. In addition, Buyer or those acting on Buyer's behalf shall not develop or insert into any of Sellers systems, networks or data any back-door access, viruses, Trojan horses, tracking or other cookies, malware or any other unauthorized software. RIGHTS TO USE DATA: Buyer shall have unlimited rights to use the Data for any purposes not inconsistent with this Agreement. Seller may use the Data 11) for any and all purposes in furtherance of this Agreement; (2) for internal research and development purposes; and (3) in the aggregate for statistical and other analysis, provided that in the case of (3) above, no Ashland - Service Agreement ©GE November 18, 2014 150485 revl Page 16 of 18 ' Water & Process Technologies information identifying Buyer shall be associated with such analysis. Seller may share Data with its affiliates, including its affiliates in other countries, for the purposes described above. INTELLECTUAL PROPERTY: 1. Neither Party shall acquire any right, title, or interest in or to any patents, trademarks, trade secrets, copyrights or other intellectual property of the other Party or any intellectual property rights therein in existence before the date of this Agreement 2. Except to the extent that Goods are made entirely to Buyer's design, specifications or instructions, Seller shall be liable for and indemnify, defend and hold harmless Buyer from and against all claims asserted against, or suffered, sustained, paid or incurred by Buyer arising out of or relating to the actual or alleged infringement or misappropriation of any intellectual property rights, and any litigation or other proceedings based thereon, with respect to any Goods or any intellectual property made or provided by or on behalf of Seller. Seller shall have the right at its own expense to substitute non-infringing Goods or to modify infringing Goods so they become non- infringing, or to obtain the necessary licenses to use the infringing Goods, in each case only if the substituted or modified Goods meets all of the requirements of and is subject to all of the provisions of this Agreement. 3. Buyer shall own all right, title and interest in and to all documents, data, reports and other deliverables provided in accordance with the Services hereunder ("Deliverables") and all intellectual property and all intellectual property rights therein , and Seller hereby assigns to Buyer all right, title and interest of Seller in and to all intellectual property rights in the Deliverables.. Seller retains all intellectual property rights in the Services, excluding the Deliverables. Ashland - Service Agreement OGE November 18, 2014 150485 revl Page 17 of 18 ~ r Water & Process Technologies 11 Signed Agreement By virtue of having issued this proposal GE hereby signals their intent to enter into an agreement with Ashland. Ashland acknowledges that they have read and understood this Agreement and agree to be bound by the terms and conditions specified in it. Offered by Legal ZENON Environmental Corporation, Accepted by The City of Ashland Oregon Entity: also known as GE or Seller Legal Entity: also known as Ashland or Buyer Summary Authorized Signature By: Product/Service Insight and 24/7 Contract Renewal Title: Price USD $5,472 Signature Date: Signature: x Purchase Order No: ServicePOCentral@ge.com Upon acceptance of this proposal, please forward the following either • by OR email with.pdf attachments or • by postal mail or • by fax. GE Water & Process Technologies 1) this signature page completed to: Attention: Contracts Administrator 2) a hard copy of your purchase order, and 3239 Dundas Street West, 3) any required tax exemption certificates Oakville, Ontario, Canada L6M 462 OR Fax No.: 905 465-3050 This agreement comes into force when GE has issued a formal acceptance of Ashland's Purchase order or of this Ashland signed agreement Ashland - Service Agreement ©GE November 18, 2014 150485 revl Page 18 of 18 Page 1 / 1 CITY OF ASHLAND PO NUMBER 20 E MAIN ST. 2/13/2015 12729 ASHLAND, OR 97520 (541) 488-5300 VENDOR: 012643 SHIP TO: Ashland WWTP GE - ZENON ENVIRONMENTAL CORP, GE WATEF (541) 488-5348 14506 COLLECTIONS CENTER DRIVE 1295 OAK STREET CHICAGO, IL 60693 ASHLAND, OR 97520 FOB Point: Ashland, Oregon Req. No.: Terms: Net Dept.: Req. Del. Date: Contact: David Gies Special Inst: Confirming? No Quantity Unit` Description Unit Price Ext. Price 8.00 Mo WWTP - Insight Digital Monitoring 478.00 3,824.00 $478/Mo - 8 Months April 1, 2015 to November 30, 2015 8.00 Mo WWTP - 24/7 Emerqencv Technical 206.00 1,648.00 Support, $206.00/Mo - 8 Months April 1, 2015 to November 30, 2015 Contract for Personal Services Beqinninq date: April 1, 2015 Completion date: November 30, 2015 SUBTOTAL 5.472.00 BILL TO: Account Payable TAX 0.00 20 EAST MAIN ST FREIGHT 0.00 541-552-2010 TOTAL 5,472.00 ASHLAND, OR 97520 Account Number Project Number Amount Account Number Project Number Amount E 675.08.19.00.60570 5,472.00 Authorized gnature~~/, ~ VENDOR COPY FORM #3' CITY OF ASHLAND REQUISITION Date of request: - - t Required date for delivery: Vendor Name ~eho z:-n 1//fVn W" / Address, City, State, Zip Contact Name & Telephone Number Fax Number SOURCING METHOD ❑ Exempt from Competitive Bidding ❑ Emergency ❑ Reason for exemption: ❑ Invitation to Bid (Copies on file) ❑ Form #13, Written findings and Authorization ❑ AMC 2.50 Date approved by Council: ❑ Written quote or proposal attached ❑ Written quote or proposal attached ❑ Small Procurement Cooperative Procurement Less than $5,000 ❑ Request for Proposal (Copies on file) ❑ State of Oregon ❑ Direct Award Date approved by Council: Contract # ❑ Verbal/Written quote(s) or proposal(s) ❑ State of Washington Intermediate Procurement Sole Source Contract # GOODS & SERVICES applicable Form (#5,6, 7 or 8) ❑ Other government agency contract $5,000 to $100,000 Written quote or proposal attached Agency ❑ (3) Written quotes and solicitation attached ❑ Form #4, Personal Services $5K to $75K Contract # PERSONAL SERVICES ❑ Special Procurement intergovernmental Agreement $5,000 to $75,000 ❑ Form #9, Request for Approval ❑ Agency ❑ Less than $35,000, by direct appointment ❑ Written quote or proposal attached Date original contract approved by Council: ❑ (3) Written proposals/written solicitation Date approved by Council: (Date) ❑ Form #4, Personal Services $5K to $75K Valid until: Date Description of SERVICES Total Cost ,~sosoyl, t 13asiG° f]og,f, / /9Ss ~f ~o~. ~o ,v? Y17 ti / Item Quantity Unit Description of MATERIALS Unit Price Total Cost 31166 33 ~ w Sol -f- 7~4 7~0 ",V .J7$ aoG ,era G YB` 06615 99 d y 7 ~r E'r~c %r~p yoet- TOTAL COST Per attached quote/proposal $ o0 S ~ 7a Project Number _ ° _ Account Numbe16 72r- Off. / %©a L O S~ 7~ l7 Account Number--'--'--' Account Number-------- `Expenditure must be charged to the appropriate account numbers for the financials to accurately reflect the actual expenditures. IT Director in collaboration with department to approve all hardware and software purchases: IT Director Date Support -Yes / No By signing this requisit' form, I certify that ity's public contracting requirements have been satisfied. Employee: Department Head: (Equal to or greater than $5,000) Department Manager/Supervisor:. City Administrator: (Equal to or greater than $25,000) Funds appropriated for current fiscal year.- ! YES, NO v L /,3 Finance Director (Equal to or greater n $5,000) Date Comments: CITY OF -ASHLAND SOLE-SOURCE DETERMINATION AND WRITTEN FINDINGS Less than_$100,000---q~~J_ 9 To: Mike Faught, Public Works Director From: David Gies, Wastewater & Water Reuse Supervisor Date: November 18, 2014 Re: Sole Source Determination and Written Findings foersonal Service In accordance with AMC 2.50.090(F), the Department Head shall determine in writing that there is only one provider of a product or service of the quality and type required available. Estimated total value of contract: $5,472.00 Project name: Insight Monitoring & 24/7 Emergency Telephone Support j Description of project: Insight Asset monitoring and 24/7 Emergency Telephone Technical Support for a period from 4-1-15 thru 11-30-15. Background: The City of Ashland WWTP utilizes Zenon Membranes filtration for removing phosphorus. This contract covers automated process monitoring and 24/7 emergency telephone support for the computerized system that operates the membranes. Findings: flhe findings below must include actual information supporting the determination]. Market Research Overall finding: NIA [In accordance with ORS 279B.075these are the examples of findings that should be addressed. Select at least one of the findings and prepare the determination as it specifically relates to the goods or services being procured More than one finding can be addressed. The findings are as follows. Pursuant to ORS 279B.075 (2)(a): Provide findings supporting your determination that the efficient utilization of existing goods requires the acquisition of compatible goods or services from only one source. The City of Ashland has a Zenon membranes filtration system in place for removing phosphorus. This is a proprietary system and this contract is with a specific firm (G.E. Water) that is authorized to support Zenon software. Pursuant to ORS 279B.075 (2)(b): Provide, findings supporting your determination that the goods or services required for the exchange of software or data with other public or private agencies are available from only one source. N/A Pursuant to ORS 279B.075 (2)(c): Provide findings supporting your determination that the goods or services are for use in a pilot or an experimental project. N/A Pursuant to ORS 27913.075 (2)(d): Any other findings that support the conclusion that the goods or services are available from only one source. These services help the city should the membrane computerized system fail or crash. The Insight Program monitors the membrane system 24/7 and sends a weekly report showing the efficieny of the process and certain parameters that are monitored daily. If the membrane filtration system is off line for an extended period of time, the City's NPDES Permit could be violated with excess phosphorus being discharged. This 24/7 support is invaluable in getting the system up and operating correctly. Expected lifespan of Zenon membranes is a minimum of 10 years. The cost for these services is currently $5,472.00 per year. The estimated cost for the monitoring and 24/7 tech support during the lifespan of membranes is estimated to be less than $60,000; therefore, Council approval is not required at this time. CITY OF -ASHLAND December 10, 2014 Jason Diamond Regional Lifecycle Manager Western USA GE Water & Process Technologies Zenon Environmental Corporation 3239 Dundas Street West Oakville, Ontario L6M 4132 Dear Jason: A contract is enclosed for your consideration and review. The GE Water & Process Technologies Service Agreement is attached to the contract as Exhibit C. x We will need a current insurance certificate, including the City of Ashland endorsed as the additional insured, for General Liability, Professional Liability, q Automobile, and Workers' Compensation per the insurance requirements on page 2, section 14, of the contract. Please mail the original signed contract and insurance certificate to my attention at the following address: Kari Olson City of Ashland 90 N. Mountain Avenue Ashland, OR 97520 If you have any questions or need additional infc (541) 488-5354. Thank you. DECEIVED i Olson Purchasing Representative PURCHASING Tel: 541-488-5354 City of Ashland Fax: 541-488-5320 , 90 N. Mountain TTY: 541-552-1234 IVA Ashland, Oregon 97520 www.ashland.or.us t o0% Post-Consumer content