Loading...
HomeMy WebLinkAbout2017-030 Agrmt - GE Zenon Enviromental Corp x Water & Process Technologies Controls Upgrade To: City of Ashland Date: February 3, 2017 referred to here as Ashland or Buyer Attention: Chris Stark Email: starkc@ashiand.or.us 20 E. Main Street Telephone No.: 541488 5348 Address: Ashland, Oregon, USA 97540 F No. of Pages: 11 including cover Email: Jason.Diamond@ge.com Jason Diamond, From: Regional Lifecycle Manager, Telephone No.: 905 465 3030 x3273 Western USA Cell No.: 905 399 7055 Fax No.: 905 465 3050 cc: Yuseph Montasser, Jason Xu, Shawn Clark (APSCO) Proposal No.: 209899 Subject: PLC upgrade Project No.: 500127 Current The following is based on the latest information available to GE. Please provide corrections if inaccurate: Plant Data: Ashland Wastewater Treatment Plant, Municipal Wastewater-Tertiary Treatment, 500c, 4 trains, 9 cassettes per train, 26 modules per cassette. Substantial Completion Date Oct 17, 2002. t ~s Ashland - Controls Upgrade ©GE February 3, 2017 209899 Page 1 of 11 l 'A t_ r Water & Process Technologies Digital Leadership GE is the world's Digital Industrial Company, transforming industry with software-defined machines and solutions that are connected, responsive and predictive. GE is organized around a global exchange of knowledge, the "GE Store," through which each business shares and accesses the some technology, markets, structure and intellect. Each invention further fuels innovation and application across our industrial sectors. With people, services, technology and scale, GE delivers better outcomes for customers by speaking the language of industry. NYSE: GE www.ge.com Proposal Provisos This proposal has been issued based on the information provided by the customer and on information 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 reissued State/Provincial Disposal System Permit, changes in Buyer financial standing, Buyer 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. Confidential and Proprietary Information O GE All rights reserved. This proposal contains proprietary information and is the property of GE Water & Process Technologies (GEWPT). No assignments, either implied or expressed, of intellectual property rights, data, know how, trade secrets or licenses of use thereof are given. All information is provided exclusively to the addressee and agents of the addressee for the purposes of evaluation and is not to be reproduced or divulged to other parties, nor used for manufacture or other means, without the express written consent of GEWPT. The acceptance of this document will be construed as an acceptance of the foregoing. Trademarks The following are trademarks of General Electric Company and may be registered in one or more countries: +100, ABMet, Absolute.Z, Absolute.Zo, AccuSensor, AccuTrak, AccuTrok PLUS, ActNow, Acufeed, ALGAECAP, AmmCycle, Apogee, APPLICATIONS ATLAS, AquaFloc, AquaMox, Aquamite, Aquaplex, AquaSel, Aquatrex, Argo Analyzer, AutoSDI, BENCHMARK, Betz, BetzDearborn, BEV Rite, BioHealth, BioMate, BioPlus, BIOSCAN, Bio-Trot, Butaclean, Certified Plus, CheckPoint, ChemFeed, ChemSensor, ChemSure, CHEX, CleanBlade, CLOROMAT, CoolPlus, COMP-METER, COMP-RATE, COMS (Crude Overhead Monitoring System), Continuum, CopperTrol, CorrShield, CorTrol, Custom Clean, Custom Flo, Cyto3, DataGuard, DataPlus, DataPro, De:Odor, DELTAFLOW, DEOX, DeposiTrol, Desal, Dionodic, Dimetallic, Dispatch Restore, Durasan, DuraSlick, Durasolv, Duratherm, DusTreat, E-Cell, E-Cellerator, ELECTROMAT, Embreak, EndCor, EXACT, FACT-FINDER, Feedwater First, Ferrameen, Ferroquest, FilterMate, Fleet View, FloGard, Flotrex, Flotronics, FoomTrol, FoodPro, Fore4Sight, ForeSight, FRONTIER, FS CLEAN FLOW, FuelSoly, Full-Fit, G.T.M., GenGard, GEWoterSource, Glegg, Heat-Rate Pro, High Flow Z, HPC, HPD Process, HyperSperse, Hypure, Hytrex, InfoCalc, InfoScon, InfoTrac, InnovOx, Insight, IONICS, IONICS EDR 2020, IPER (Integrated Pump & Energy Recovery), iService, ISR (Integrated Solutions for Refining), JelCleer, KlorAid, Kleen, LoyUp, Leak Trac, Leakwise, LEAPmbr, LEAPprimary, Learning Source, LOGIX, LoSALT, M-PAK, MACarrier, Mace, Max-Amine, MegaFlo, Membrex, MemChem, Memtrex, MerCURxE, MetClear, MiniWizard, MK-3, MOBILEFLOW, MobileRO, Modular Pro, ModuleTrac, MonitAll, Monitor, Monitor Plus, Monsol, MP-MBR, MULTIFLOW, Muni.Z, NEWater, NGC (Next Generation Cassette), Novus, NTBC (Non Thermal Brine Concentrator), OptiGuard, OptiSperse, OptiTherm, Osmo, Osmo PRO, Osmo Titan, Osmonics, Pacesetter, PaceSetter, Petroflo, Petromeen, pHlimPLUS, PICOPORE, PlantGuard, PolyFloc, PowerTreat, Predator, PRO E-Cell, Pro Elite, ProCare, Procera, ProChem, Proof Not Promises, ProPAK, ProShield, ProSoly, ProSweet, Purtrex, QSO (Quality System Optimization), QuickShip, RCC, RE:Sep, Rec-Oil, Recurrent, RediFeed, ReNEW, Renewell, Return on Environment, RMS (Rackless Modular System), ROSave.Z, SolesEdge, ScaleTrol, Sea PAK, SeaPRO, SeaSMART, Seasoft, SeaTECH, Selex, Sensicore, Sentinel, Sepa, Sevenbore, Shield, SIDTECH, SIEVERS, SmartScan, SoliSep, SolSet, Solus, Spec-Aid, Spectrus, SPLASH, Steamate, SteriSafe, Styrex, SUCROSOFT, SUCROTEST, Super Westchar, SuperStar, TFM (Thin Film Membrane), Therminator, Thermoflo, Titan R0, TLC, Tonkaflo, TraveLob, Trend, TruAir, TrueSense, TurboFlo, Turboline, Ultrafilic, UsedtoUseful, Vape-Sorber, VeriFeed, VersaFlo, Versamate, VICI (Virtual Intelligent Communication Interface), V-Star, WasteWizord, WATER FOR THE WORLD, Water Island, Water-Energy Nexus Game, WaterGenie, WaterNODE, WaterNOW, WaterPOINT, WellPro.Z, XPleat, YieldUp, Z-BOX, Z-MOD, Z-PAK, Z-POD, ZCore, ZeeBlok, ZeeLung, ZeeWeed, ZENON, and Z. Plex. Ashland - Controls Upgrade OGE February 3, 2017 209899 Page 2 of 11 Water & Process Technologies 1 Scope & Price - GE GE Water & Process Technologies is pleased to present this proposal at the request of the City of Ashland to provide a new PLC and HMI for the Ashland Wastewater Treatment Plant. Under this proposal GE will provide an updated PLC and network interface card. GE's proposal also includes options for a shelf spare PLC for backup and a replacement HMI as separate line items. GE recommends that the existing Ethernet module (communication card) be kept as a backup. GE's proposal includes hardware required for Ashland's InSight service. Currently, the HMI also performs the data acquisition and transmission for InSight. For simplicity, GE has moved this function into a computer (Black Box) to ensure this functionality will be maintained regardless of whether the HMI upgrade is selected. Based on discussions with Portland Engineering, GE has not included on-site service support in this proposal. Base Scope Qty Item Part. No. Price (USD) 1 Allen Bradley ControlLogix communication module 1756-EN2T 1 Allen Bradley ControlLogix 2MB Controller 1756-1-71 1 InSight Hardware (Black Box) data acquisition 3137351 computer 13,400 In-house labor for programming and drawing updates included in-house support for Ashland or their 31d party 3097215 designate during installation and rescheduling Adder Scope - Shelf Spare PLC Qty Item Part. No. Price (USD) 1 Allen Bradley ControlLogix 2MB Controller 1756-1-71 included In-house labor for programming 3097215 5,540 A7er Scope - Replacement HMI Qty Item Part No. Price (USD) 1 1 PanelView Plus 1250 2711P-RDT15C included in-house labor for programming 3097215 20,600 In-house labor to adjust screens for 15" display a 4/, Applicable taxes are not included. M Purchase Order to be issued in the name of ZENON Environmental Corporation. The schedule for this service support, including delivery of product to site, is to be determined in consultation with GE after receipt of a Purchase Order and with due regard for the availability of the materials Ashland - Controls Upgrade ©GE February 3, 2017 209899 Page 3 of 11 I I j 61 Water & Process Technologies 2 Scope - Ashland ❑ Ashland or their third party designate will be responsible for receiving and installation of all hardware and all related wiring, conduit, and electrical work needed to facilitate this upgrade, including cut outs in the existing panels, as required. ❑ Ashland or their third party designate will be responsible for rescheduling the ControlNet for the new architecture. 3 Terms and Conditions of Sale A - Specific Terms and Conditions 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. Purchase Orders and Checks should be made out using the name ZENON Environmental Corporation. Please advise if this GE entity is not set up in your purchasing system as a vendor and you have another GE entity. We are keen to make the purchase process as convenient as possible for Buyer. Short Form: Where a short reference is required in this document, for convenience, we are called simply GE. 2 Payment Terms On approved credit, payment terms are Net 30 Days following receipt of invoice. Fees for this service support and materials will be invoiced after the service is completed. 3 Delivery ❑ DDP - Delivery will be by standard ground on the basis of DDP Ashland Wastewater Treatment Plant, 20 E. Main Street, Ashland, Oregon, USA 97540or other named place of destination; Incoterms 2010. DDP = Delivery Duty Paid. Partial shipments will be acceptable unless otherwise specified. Title & Risk - Title and risk of loss or damage to materials supplied through this quote shall pass to Ashland upon delivery at the named place of destination. 4 Price Validity Prices quoted are valid up to thirty (30) days after the date of issue of this proposal unless confirmed with a Purchase Order. 5 Bonds Performance or Payment Bonds are not included in the price. These bonds can be purchased on request but will be at additional cost. 6 Warranty on Programming GE warrants that changes to the PLC program will conform to the specifications in the relevant sections of the CLSC and OSC (revised for the project) and will be free from defects in workmanship when operated at all times in accordance with GE's written instructions. If any defects are found and reported by Ashland within a period not exceeding twelve (12) months beyond the completion of the site acceptance test, GE will make modifications to the PLC code as deemed necessary. Any changes requested by Ashland after this period will be charged in accordance with the prevailing GE Service Labor Rates Sheet - available upon request. 7 Purchase Order Guidelines Please ensure that your 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 - Controls Upgrade ©GE February 3, 2017 209899 Page 4 of 11 OEM- ~F 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 Supplier/vendor. ❑ 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 Service.POCentral@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 Seller's 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 Seller's 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 ("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 Ashland - Controls Upgrade ©GE February 3, 2017 209899 Page 5 of 11 006- Water & Process Technologies or issuance by the 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 shall 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 manufacturer's 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. Seller's sole responsibility and Buyer's 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 Seller's 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 Buyer's systems or the Equipment at the Buyer's 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 Buyer's 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 Buyer's 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 - Controls Upgrade OGE February 3, 2017 209899 Page 6 of 11 E ' 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 the joint 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 0) "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 differ from 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 - Controls Upgrade OGE February 3, 2017 209899 Page 7 of 11 j ' E 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 (or 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 spares 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. la. 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 - Controls Upgrade ©GE February 3, 2017 209899 Page 8 of 11 ' 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 LEGAL TIME 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 00 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 Low, 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. Ashland - Controls Upgrade ©GE February 3, 2017 209899 Page 9 of 11 ~ i OE Water & Process Technologies Notwithstanding the foregoing, each Party shall have the right to commence an action or proceeding in a court of competent jurisdiction, subject to the terms of this Agreement, in order to seek and obtain a restraining order or 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 (and 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 (and 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 (i) manufacture and source the Equipment and any part thereof globally in the country or countries of its choosing; and (ii) 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. Ashland - Controls Upgrade OGE February 3, 2017 209899 Page 10 of 11 AMANShN 1 E Water & Process Technologies 4 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 City of Ashland Entity: also known as GE or Seller Legal Entity: also known as Ashland or Buyers-, Authorized j v/-( ti Signature By: Title: Signature Date: p[ ' 7~ Signature: x Purchase Order No: Service.POCentraI@ge.com OR Upon acceptance of this proposal, please forward the following either GE Water & Process Technologies • by email with pdf attachments or • by postal mail or • by fax. Attention: Contracts Administrator 1) this signature page completed to: Please contact Service.POCentral@ge.com 2) a hard copy of your purchase order, and for correct address. 3) any required tax exemption certificates 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. Doc. Control: Aathcr JNCU Fiienar? e: Ashland controls supg rode 2099899 Feb 3- =,01 .~ocX Lost Modified PP iOVED FORM 4 Ashla ity Attorney At v Ashland - Controls Upgrade ©GE February 3, 2017 209899 Page 11 of 11 T- t Gt R. - L S 7 7 - 41 1 ~`'3 Date off rveJl. ^I - 17 Regaired date for delilfery. le- In- it 0 0 fAdl cars, Qgj3 Stag, Zip Gon'tact iianna- co; 1 elephom Mum-bar 530 ~:MMIMGZOU i;en. f~ora, CoingeMie Siddino Q Reason for e ernpUon: Q #n=.fitation fo Sits (Copies on file) F1 AMC 2.50 mate approved by Council: _ ❑ INdtien quote or proposal attached Attach copy of council communication) El Small Less Mn OProcurement Q Reguest' for Proposal (Copies on file) ❑ 01rect Aviard Date approved by Council: - 1lerbalMtitten quote(s) or proposal(s) ___(Attach copy or council communication) tnter:Itedla a Procurement Sole Source GOODS 23 SER CFES Applicable Fo , , 7 or b) " 835550to 8100,000 lNtten quote or proposal attached F1 (3) Written quotes and solicitation allached Form #4, Personal Services S5K to Vf PERSOMIA L SERVICES ❑ Sneciat Procurement 55.000 to 575,000 F1 Form #9, Request for Approval ❑ Less than $35,000, by direct appointment F j Wiri ien quote or proposal attached F-I (3) written proposaiskrritten solicitation Date approved by Council: ❑ Form #,A, Personal Services $5K to S75K Valid until. Mal ! i 115, Ke o 0um-h a bj U p- E, Lr Doo'asLUA a 1oPa tt &'A L y .9 L F F-I Par eaaclied quotelproposat r zr, for the financials to accurately reflect the actual expenditures- - = - _ rtractittg requirements have been satisfied. J! JEqual to,*! gi n 5,fi0D) Ad nainis-Mor. f r j` (Equai o or greater tl an $25,000) o. ~ ~ d S .a_. v' j-.-.r~ ~r" 1. ~iC C:: c.. ti,U.. ! .v Form #3 - Requisition CITY OF FORM #5 ASHLAND SOLE-SOURCE DETERMINATION AN WRITTEN FINDINGS GOODS AND SERVICES Less than $100,000 To: Mike F'aught, Public Works Director From: David Gies, Wastewater & Water Meuse Supervisor Date: 2-6-17 Re: Sole Source Determination and Written Findings for Goods and Services 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: $39,540.00 Project name: Membrane PLC & HMI Upgrade Description of goods and services: Purchase new PLC hardware and software. Portland Engineering to do onsite installation and programming. Background: The existing PLC hardware is outdated and does not support the newer software required to operate Insight more efficiently. Insight is the software program that monitors the performance of the membranes from an off-site location. Upgrading the hardware and software will increase redundancy while improving communications for Insight between the WWTP and GE water located off site. Form #5 - Sole Source -Goods and Services - Less than $100,000, Page 1 of 2, 2/6/2017 Findings: [The findings below must include factual information supporting the determination]. Market Research Overall finding: Un accordance with OILS 279B. 075, these are the examples of findings that should be addressed. Select at least one of the findings and prgpare the determination as it specifically relates to the goods or services being procured. More than one fndingcan be addressed. The findings are as ollows. Pursuant to ORS 27913.075 (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 existing membranes utilized by the City of Ashland are a product of G.E. Water Technologies. All associated hardware and software are proprietary and can only be purchased through G.E. Water. Pursuant to ORS 27913.075 (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 279B.075 (2) (d): Any other findings that support the conclusion that the goods or services are available from only one source. See ORS 27913.075 (2) (a): Form #5 - Sole Source -Goods and Services - Less than $100,000, Page 2 of 2, 2/612017