PurchaseAgreement_Denora_CCWRP Sand Filter Upgrade_Final — Pacifica City Council, August 22, 2022

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PURCHASE AGREEMENT
CITY OF PACIFICA – WASTEWATER DIVISION
PURCHASE ORDER NO. 121379
Seller (Vendor): Buyer:

Name De Nora Water Technologies, LLC Name: City of Pacifica Address 2000 McClaren Woods Drive Address: 540 Crespi Drive City, State Zip: Pittsburg, PA 15108 City, State, ZIP: Pacifica, CA 94044 Attn: Frank Stanish Dave Peel
Phone: (412) 494-4075 Fax: Phone: (650) 393-3574 Fax: (650) 355-7256 E-mail: [email protected] Fed. Tax I.D.: E-mail: [email protected] Project Information (If Applicable): Ship To:

Charge to Calera Creek Water Recycling Plant
Acct#: 34.900000.52800.P044.000 – CCWRP Sand Filter Upgrade 700 Coast Highway Pacifica, CA 94044
Order Date Ship Via Payment Terms
- Net 30 days of invoice Upon Receipt of
Equipment Delivery
Buyer and Seller agree as follows:

MATERIAL AND/OR EQUIPMENT TO BE PROVIDED: Vendor shall furnish the materials or equipment described below in strict compliance with the Quotation from De Nora dated 1-14-2022 (Attachment 1) at the price or prices set forth opposite each item and within the times stated below in accordance with the terms and provisions of this Purchase Agreement, including the attached Terms and Conditions as amended, which are incorporated into and made a part of this Agreement. Except as specifically provided in this Purchase Agreement, the “General Terms and Conditions of Sale” appended to De Nora’s 1-14-22 Quotation shall not apply to this Agreement.

Item
No.

Item Description Budget
Acct No.

Quantity Unit Price Extension Delivery
Date
1 ControlLogix Upgrade 34.900000.52800.P044.000 LS $118,756 $118,756 2 Blower unloading valve 34.900000.52800.P044.000 LS $6,125 $6,125 TOTAL $124,881
Sales Tax : To Be Determined (Based of $63,185 for parts) Shipping: $ 0
P.O. Total: $ 131,000

PURCHASE AGREEMENT
Project Title: DE NORA – PURCHASE ORDER FOR SAND FILTER UPGRADE

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Special Terms and Conditions
Shipping: Show Purchase Order number on all packages and invoices.

All purchases are F.O.B Pacifica unless otherwise specified on Purchase Order.

Charges: All transportation charges must be prepaid and shown separately on all invoices.

City of Pacifica is exempt from Federal Excise Tax.
 Purchase up to $10,000 (must be approved
by Department Head or authorized signator)
Approved: _______________________
Name: LISA PETERSEN
Title: Director of Public Works
 Purchase between $10,000.01 and $25,000
(must be approved by the Assistant City
Manager)
Approved: _______________________
Name: YULIA CARTER
Title: Assistant Manager
 Purchase between $25,000.01 and $50,000
(must be approved by the City Manager)
Approved: _______________________
Name: KEVIN WOODHOUSE
City Manager
 Purchase above $50,000
(must be approved by the City Council)
Date City Council Approved: _______________
Buyer: CITY OF PACIFICA
Authorized Signature: _______________________
Name: KEVIN WOODHOUSE
Title: City Manager
Vendor: DE NORA WATER TECHNOLOGIES, LLC
Authorized Signature:

Name:

Title:

If Seller is located in the City of Pacifica, does Seller have a current business license? Yes  No 

PURCHASE AGREEMENT
Project Title: DE NORA – PURCHASE ORDER FOR SAND FILTER UPGRADE

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PURCHASE ORDER TERMS AND CONDITIONS
DEFINITIONS: The term "Buyer" as used in this Purchase Order means the City of Pacifica, and the term "Seller" means the person, firm, or corporation from whom the material or equipment described in the purchase order is ordered.

ACCEPTANCE: The attached Acceptance Copy shall be signed and returned by the Seller within ten (10) calendar days after it is received by the Seller and fully negotiated. The receipt by the Buyer of the signed Acceptance Copy or the initiation of performance under this Purchase Order by the Seller shall constitute acceptance of the Purchase Order by the Seller, including all of the terms and conditions herein as negotiated. Acceptance is limited to the terms stated herein. Any additional or different terms and conditions proposed by the Seller are rejected unless expressly agreed to in writing by City Purchasing Agent or authorized agent.

COMPLETE AGREEMENT: This Purchase Order, including all applicable terms, conditions and specifications, shall constitute the sole and exclusive agreement between the parties. This Purchase Order supersedes all other writings and negotiations, written or oral. The City of Pacifica will not be responsible for goods delivered without a Purchase Order properly signed by the City Purchasing Agent or authorized agent. When this Purchase Order covers a purchase rendered over a stated period of time, Seller must obtain a new order upon expiration of the time period to authorize the purchase for an additional period of time.

DEFAULT: The Buyer may terminate the whole or any part of the purchase in any one of the following circumstances: (1) If the Seller fails to make delivery or fails to perform within the time specified herein or any extension thereof; or (2) If Seller delivers nonconforming goods; or (3) If Seller fails to perform in accordance with the material provisions of this agreement, or so fails to make progress as to endanger performance of this Purchase Order in accordance with its terms. In the event of any such failure Buyer will provide Seller with written notice of the default and Buyer's intention to terminate for default if Seller fails to take material steps to cure the default to Buyer's reasonable satisfaction within seven (7) calendar days of Buyer' notice. If Seller fails to take material steps to cure or correct the default within seven days, the Buyer may, without further notice to Seller, procure upon such terms and in such manner as the Buyer may deem appropriate, items similar to those terminated, and the Seller shall be liable to the Buyer for direct and commercially reasonable costs of such similar items; however, the Seller shall continue the performance of this Purchase Order to the extent not terminated. The rights and remedies of the Buyer provided in this clause shall not be exclusive, and are in addition to any other rights and remedies provided by law or under this Purchase Order.

CHANGES: Buyer may direct in writing changes, including additions to or deletions from the quantities originally ordered, or in the specifications or drawings. If any such change causes a material increase or decrease in the cost of, or the time required for, performance hereunder, an equitable adjustment shall be made in the price or schedule. Any claims for adjustment which Seller believes result from any change directed by Buyer shall be asserted in writing by Seller no later than ten (10) days from the date of Seller's receipt of any such direction. Equitable adjustments for any claims or changes under this agreement, including claims arising from

PURCHASE AGREEMENT
Project Title: DE NORA – PURCHASE ORDER FOR SAND FILTER UPGRADE

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terminations or suspensions directed under DEFAULT above, of this agreement, will be made by written Change Order. Whether made pursuant to this clause or by mutual agreement, changes shall not be binding upon the Buyer, except when confirmed in writing by a member of the Buyer’s Purchasing Department.

INVOICES: Seller shall send Buyer a separate invoice for each shipment. Invoices shall not be issued prior to delivery of items. Payment shall not be made prior to receipt of items and an invoice. Credit and discount periods will be computed from the date of receipt of the invoice to the date the Buyer’s check is mailed. Unless freight and other charges are itemized, the discount will be taken on the full amount of the invoice. Payment will be made within thirty (30) days after approval of the invoice by the Buyer.

TITLE AND RISK OF LOSS: All prices shall be F.O.B. Pacifica. The Seller shall be responsible for safe and adequate packing of the items, which shall conform to the carriers’ requirements. The Seller shall separately number all cases and packages, showing the corresponding numbers on the invoices. An itemized packing slip bearing this Purchase Order number shall be placed in each container. No extra charge shall be made for packaging or packing materials unless authority therefor is set forth in this Purchase Order. Seller shall assume and pay for any and all loss or damage to the merchandise from any cause whatsoever until delivered to Buyer at the specified destination.

DELIVERY: Timely performance and deliveries are essential to this Purchase Order. The Buyer reserves the right to refuse deliveries made in advance of the delivery schedule.

Overshipment allowances, if authorized, will be applied to the entire order. If the Buyer agrees to accept deliveries after the date of delivery has passed, the Buyer shall have the right to direct the Seller to make shipment to the delivery point set forth in this Purchase Order by the most expeditious means, and the total cost of such expedited shipment and handling shall be borne by the Seller. Acceptance of late deliveries shall not be deemed a waiver of the Buyer’s right to hold the Seller liable for any loss or damage resulting therefrom, nor shall it act as a modification of the Seller’s obligation to make future deliveries in accordance with the delivery schedule.

DELAYS: Seller will not be liable for delays in performing its obligations to the extent the delay is caused by an unforeseeable condition which is beyond Seller’s reasonable control and without Seller's fault or negligence. Acts of God, such as storms or floods, as well as government priorities, acts of civil or military authorities, fires, strikes, epidemics, war or riot are examples of events which will be excusable for being beyond Seller's reasonable control, only upon fulfillment of the following conditions: (a) within seven (7) days of the commencement of any excusable delay, Seller shall provide Buyer with written notice of the cause and extent thereof as well as a request for a schedule extension for the estimated duration thereof, and (b) within seven (7) days of the cessation of the event causing delay Seller shall provide Buyer with written notice of the actual delay incurred, upon receipt of which, the date of promised delivery shall be extended for the time actually lost by reason of an excusable delay.

INSPECTION AND APPROVAL: All items are subject to final inspection and approval after delivery to Buyer. If any items are defective in material or workmanship or otherwise not in conformity with the requirements of this Purchase Order, the Buyer shall have the right to

PURCHASE AGREEMENT
Project Title: DE NORA – PURCHASE ORDER FOR SAND FILTER UPGRADE

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require Seller to correct or replace them. Final acceptance or rejection shall be made by the Buyer as promptly as practicable after delivery. Final acceptance shall be conclusive except with respect to latent defects, fraud or such gross mistakes as amount to fraud, or with respect to the Buyer’s rights under the “Warranty” clause.

WARRANTIES-GUARANTEES: The Seller warrants that the items, at time of delivery, shall conform to the Buyer’s specifications, the requirements of this Purchase Order, approved sample or samples, if any, and are free from defects in design, material and workmanship. Warranty will be as described in the attached Vendor’s Quotation. At the Buyer’s option, the Seller shall promptly either repair or replace defective items after receipt of the Buyer’s written notice of a defect. Transportation charges for the return and redelivery of defective items shall be borne by the Seller. Seller also warrants that said merchandise is free and clear of all liens and encumbrances whatsoever and the Seller has good and marketable title to same, and Seller agrees to indemnify, defend and hold the City of Pacifica, its officers, agents and employees free and harmless against any and all claimants to said merchandise. It is expressly understood the warranties shall not apply where failure is due to causes other than defective design, material and/or workmanship, including without limitation faulty installation by others, normal wear and tear, improper operation or maintenance, excessive temperatures or pressures, corrosion, and abuse. The remedies set forth in the Vendor’s Quotation are the sole and exclusive remedies for breach of warranty. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SELLER DISCLAIMS

ALL OTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLDUING

WITHOUT LIMITATION THE IMPLIED WARRANTIES OR MERCHANT ABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Any alteration, disassembly, division, modification, storage or use of the items not in accordance with Seller’s documentation shall void all warranty obligations of Seller related to such items. Buyer assumes full responsibility in the event Buyer uses the items in combination with other goods or in any manner not stated in Buyer’s written specifications provided prior to sale.

SAFETY: All equipment and materials shall comply with all Federal, State and local safety rules and regulations including OSHA. Where applicable, materials must be labeled in accordance with Section 5194, Title 8, of the California Administrative Code. The Seller is required to include a Material Safety Data Sheet prepared in accordance with Section 5194(9) with each shipment of all such materials to the City.

EQUAL OPPORTUNITY EMPLOYER: It is the policy of the City of Pacifica that in connection with all materials furnished or work performed under this Purchase Order, there be no discrimination against employees because of race, religion, color, sex or national origin, and therefore the Seller agrees to comply with applicable Federal and California laws including, but not limited to, the California Fair Employment Practices Act.

TAXES: Unless prohibited by law, Seller shall pay and has included in the prices of this Purchase Order any federal, state or local tax, transportation tax, or other tax which is required to be imposed upon the items ordered hereunder, or by reason of their sale or delivery.

TERMINATION FOR CONVENIENCE: Buyer shall have the right to terminate this Purchase Order in whole or in part at any time, and from time to time, by written notice effective upon

PURCHASE AGREEMENT
Project Title: DE NORA – PURCHASE ORDER FOR SAND FILTER UPGRADE

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receipt by Seller of such notice, even though Seller is not in breach of any obligation hereunder.

Upon receipt of notice of termination, Seller shall immediately discontinue performance and shall comply with Buyer’s instructions concerning disposition of completed and partially completed items, work in progress and materials acquired pursuant to this Purchase Order. In the event of such termination, Seller shall be paid an amount in settlement to be mutually agreed upon by the parties which shall cover Seller’s reasonable costs of performance incurred prior to termination in connection with the items for which this Purchase Order is terminated plus a reasonable profit based upon such costs. However, said payment shall not exceed the price specified herein for such items. Seller shall advise the Buyer, in writing, of Seller’s claim, if any, for termination costs within ten (10) days after receipt of the notice of termination.

Termination in accordance with this article shall not affect Buyer’s obligation to pay for items accepted by Buyer prior to such termination.

GOVERNING LAW; VENUE; DEFINITIONS: The definition of terms used, interpretation of this Purchase Order and rights of all parties hereunder shall be construed under and governed by the laws of the State of California. Any litigation with respect to this Purchase Order shall be brought and conducted in San Mateo County, California.

LIMITATION OF LIABILITY: Notwithstanding any other terms in this Purchase Order, Seller’s total aggregate liability to Buyer with respect to any cause of action or claim hereunder, including but not limited to any warranty claims, shall not exceed the purchase price payable pursuant to the Purchase Order. In no event shall Seller be liable, either directly or as indemnitor of Buyer, for any special, punitive, incidental, indirect or consequential damages, including but not limited to damages for loss of use, loss of income or loss of profit. Notwithstanding the above, this limitation of liability shall not apply to a) claims brought directly against the Seller by unrelated third parties; and b) claims arising from Seller’s gross negligence or willfull misconduct.

ATTACHMENT 1
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DE NORA WATER TECHNOLOGIES, INC
1000 Cliff Mine Road, Suite 600, Pittsburgh, PA 15275, United States - ph +1 412 788 8300 - fax +1 412 788 8304 mail [email protected] web www.denora.com
14 January 2022
Mr. Dave Peel
City of Pacifica
170 Santa Maria Avenue
Pacifica, CA 94044
Subject: Project Name Water Treatment Plant
City of Pacifica WWTP
De Nora Proposal Number P-91359 Rev 4
Dear Mr. Peel:

De Nora Water Technologies, Inc. (De Nora) is pleased to offer this proposal for the supply of equipment and services for upgrade of the control panel at the City of Pacifica WWTP. Our proposal is based on replacement of the equipment and the services described below. No other work is to be done or is implied.

De Nora Functional Improvements to the City of Pacifica’s Existing Operation De Nora has developed several improvements to filter operations in the past 15 years that will allow much more flexibility in the operation. The following advancements and advantages can be realized by sole-sourcing De Nora as the provider:

1. Add the De Nora proprietary and patented Speed Bump. Speed Bump has two purposes. One is to release gasses that form biologically, accumulate up in the filter media and impede filtration. The second purpose allows the redistribution of solids within the media bed to increase filter runtimes. The bump is commonly used during high filtration rate periods to maintain filtration through the filter system. Speed Bump will redistribute the solids within the bed during high flow events to maintain filtration rates. Bumps can be enabled and disabled and set up on time of day, interval, and only bump filters that are in need of one during these operations.

2. Add high level backwash starts as a backup to the normal backwash interval. If operations change upstream increasing the solids loading to the filters, this function is used to notify the operator of the changing condition and automatically backwash the filter.

3. Improve the backwash sequence to produce consistent backwashes across the filter system. Level indication will be utilized to optimize each backwash so that each filter receives the same length backwash no matter what the initial water level is.

4. Add blower unloading valve to discharge of the backwash air blower. This will reduce the initial air surge into the filters increasing the longevity of the filter system. This allows for easier blower starts reducing that initial back pressure on the blower and wear on the blower.
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6. The original commissioning engineers are available so there will be no time-consuming learning curve as what would be needed if non-De Nora personnel were used.

7. Denora will provide updated as built annotated programs for the new filter PLC and the revisions to communications with the plant main PLC.

Our Scope of supply for the upgrade will be:

Panel items to be furnished
• Ethernetswitch 1783-US5T Qty 2
• 24 VDC power supply 1606-XLB240E Qty 2
PLC Equipment to be furnished for ControlLogix Main Panel • 1756-A4 ControlLogix Chassis
• 1756-L81E ControlLogix Controller
• 1756-PA75 Power Supply
• 1756-OW16i 120V Output Card Qty 1
• 1756-IA16 120V Input Card Qty 1
• The PLC I/O modules will include prewired harnesses and wire tags and will be left with flying leads to be terminated at startup
PLC Equipment to be furnished for ControlLogix Remote Panel • 1756-A17 ControlLogix Chassis
• 1756-PA75 Power Supply
• 1756-ENBT Ethernet Module
• 1756-PA75 Power Supply
• 1756-IF16 Analog Input Module Qty 2
• 1756-OW16i 120V Output Card Qty 4
• 1756-IA16 120V Input Card Qty 10
• The PLC I/O modules will include prewired harnesses and wire tags and will be left with flying leads to be terminated at startup
Note: The PLC equipment is eligible for the Allen Bradley system upgrade program and can be returned to AB for a refund. Per Pacifica request the PLC equipment will be left on site for Pacifica to use as a future spare.

HMI Equipment to be furnishedQty 1
• 2711P-T10C21D8S PanelView Plus 7Standard Terminal 10.4 in Display Size, Color Display, Ethernet Communications, DC Power supply.
• The new AB panel view HMI will be located in the main control panel (the existing HMI will our research - your future

Drawings to be furnished
• Updated set of paper and electronic versions of drawingsshowing all new PLC cards and updated Bill of Materials.

Software to be furnished
• Complete Filter System application will be developed for the ControlLogix L81 processor. • Developed Filter System screens application for the PanelView Plus 7 Display • No Allen Bradley programming software will be part of this scope • The DH+ network will be replaced by an Ethernet/IP network. De Nora will assume the plant has the correct drivers on the SCADA system to accommodate this network change. De Nora will make the necessary tag name changes within existing Wonderware application.

Start-up Time to be furnished
• The new PLC will be programmed at the DE NORA facility. Program finalization and further troubleshooting will be completed during start-up at the site. • 13 man-days for installation and programming for the upgrade of the PLC/HMI. De Nora will provide two field representatives to complete this. The time will break down as shown below:
• 3 man-days in 1 trip for process assistance in start-up and training Travel Day
a. Two De Nora field engineers will travel to the City of Pacifica Day 1
a. Shut down power to panel and remove all existing PLC 5 equipment from existing panels
b. Remove Nematron PC
c. Remove Message View
d. Start installing new PLC and HMI equipment
Day 2
a. Finish installing new PLC and HMI equipment
b. Power up panels and new equipment and establish communications between all devices.

Day 3
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Day 5-8
a. Wonderware programming
b. Process start up & training
Travel Day
Additional services can be purchased, if desired, at the rate of $1,500 per day (8 hr/day max.), including travel days, plus travel and living expenses to be billed at cost.

When the De Nora field representative arrives on-site at the time requested by the contractor/purchaser, all equipment must be ready for work to begin. If equipment is not ready then our standard per diem rate, plus travel and living expenses, will apply.

De Nora personnel will tag and disconnect the wiring in the existing panel. De Norapersonnel will then reinstall and connect the new filter control wiring. The plant will be responsible for disposal of all waste.

PLC Software and Documentation
▪ The PLC will be fully programmed,staged and debugged at the DE NORA facility. Program finalization and further equipment troubleshooting will be done during start-up at the site. ▪ DE NORA will provide software documentation consisting of a fully annotated Ladder Logic Listing with cross-reference of internal coil and contact usage and location. ▪ Pacifica will supply the development software and key for Wonderware. De Nora will update the screens on site.

Blower Unloading Control Valve
4” Blower unloading valve to minimize initial air surge into filters for greater longevity of filters and easier blower start. Control valve will be butterfly type per AWWA Standard C504, with cast iron bodies and discs, and 304 stainless steel shafts. Valve Class will be 150B. The valve operatorwill be in accordance with AWWA C540 and have electric actuation. Operators to be sized based on a maximum pressure differential of 25 psi. The blower unloading valve to have an open/close speed of 60 seconds minimum. (Dezurik BAW with AUMA actuator). our research - your future

DE NORA BRANDS MAKE WATER EASY
Disinfection Capital Controls® EST™ MicroChem® UltraDynamics® Electrochlorination BALPURE®CECHLO® ClorTec® Mariner OMNIPURE® MIOX® OMNIPURE™ SANILEC® SEACLOR® Filtration De Nora TETRA® SORB33®UAT™
Fs/krn/P-91359 - CP Upgrade Proposal Rev 4
5 The following items are not included in the DE NORA package:
• Receiving, unloading, storing of DE NORA supplied equipment • Conduit and wire and engineering thereof
• Software and development key for Wonderware
• Spare parts
Price Payment and Schedule
De Nora Water Technologies, Inc.will provide the items above for a lump sum payment of; • ControlLogix Upgrade as described above $118,756.00
• Blower unloading valve as described above $6,125.00
• 9.25 % sales tax on $63,185.00 for parts $5,844.61
TOTAL with tax $130,725.61
Lead time 18-20 weeks
NOTE
• Cost for AB Equipment Conformal Coating for the ControlLogix equipment located in the Remote Panelhas been added into the cost.

Freight costs to Pacifica, California are included and any applicable taxes are shown above.

Pricing and acceptance of this proposal is valid for (90) days, and provided that shipment is executed within three (3) months after purchase order.

Acceptance of Proposal P-91359 Rev 4
Acceptance of this proposal is based on the incorporation of any referenced documents and De Nora Water Technologies Standard Terms and Conditions of Sale as follows De Nora Water Technologies, Inc. Pacifica WWTP
___________________________ ___________________________ (Name) (Name)
___________________________ ___________________________ (Title) (Title)
___________________________ ___________________________ (Date) (Date)
Controlled Document: January 18, 2022

DE NORA WATER TECHNOLOGIES LLC

DE NORA MARINE TECHNOLOGIES, LLC

DE NORA UV TECHNOLOGIES, LLC

DE NORA TECH, LLC

DE NORA NEPTUNE, LLC

GENERAL TERMS AND CONDITIONS OF SALE

1. APPLICABLE TERMS
The sale of products, goods, or components (the “Product(s)) and/or the provision of services (“Services”) by any one of the De Nora legal entities listed above (in each case, “Seller”) to the party from whom Seller is selling the Products or Services (“Purchaser”, and with Seller, each a “Party” and collectively the “Parties”) is limited to and made expressly conditional on Purchaser’s acceptance of these General Terms and Conditions of Sale (these “General Conditions”) which, along with any and all associated purchase orders, quotations, proposals, special conditions or other contract documents (including any expressly incorporated specifications or drawings) (“Seller’s Documentation” and, collectively with these General Conditions, the “Contract”). These General Conditions shall control over any inconsistent or additional terms or conditions proposed or issued by Purchaser or Seller, including any additional or different terms contained in any purchase order, acknowledgement, proposal or other communication, written or otherwise, unless specifically agreed to in writing by both Parties. These General Conditions shall not be varied and no conditions contained in any quotations, letters, advice notes, invoices or other communications issued by Seller or Purchaser shall annul or vary them, unless expressly agreed by both Parties in writing.

Purchaser’s acceptance of delivery or the full or partial payment of the purchase price hereunder shall constitute Purchaser’s express and unconditional acceptance of all the General Conditions, notwithstanding any other inconsistent terms, documents, prior dealings, or usage of trade.

2. PRICES AND PAYMENT TERMS
Purchaser shall pay the full purchase price as set forth in Seller’s Documentation without any deduction by way of set-off, counterclaim, discount or otherwise in strict accordance with Seller’s Documentation. All prices and payments shall be in U.S. currency unless otherwise expressly noted in Seller’s Documentation. Unless specifically noted otherwise in Seller’s Documentation, prices are exclusive of any and all sales, use, excise, ad valorem, property or other taxes, duties or levies of any kind due or applicable to this transaction. Purchaser shall pay directly or reimburse Seller immediately upon demand for any and all such taxes. Payment terms are net 30 calendar days from date of invoice.

Where payment is made by letter of credit (to the extent permitted by Seller’s Documentation), the applicable instructions as communicated in writing by Seller to Purchaser shall determine the terms of payment thereunder. Where payment on credit terms is expressly approved, payment terms are net thirty (30) calendar days from date of invoice. Any payments delayed beyond thirty (30) days from the specified due date shall be subject to interest on the unpaid balance at the rate of [one and one-half (1- 1/2%) percent] per month or the maximum rate permitted by applicable law, whichever is less. If advances, progress payments, or milestone payments are included in the Seller’s Documentation, such payments shall be required to be made in strict accordance with the Seller’s Documentation. Seller reserves the right, among other remedies, to suspend further deliveries in the event Purchaser fails to pay for any one shipment when payment becomes due. All Contracts are subject to credit approval. Should Purchaser’s financial condition become unsatisfactory or insecure, in Seller’s discretion, Seller shall have the right, at its option, to require from Purchaser payment in advance, cash payment upon delivery, or satisfactory security.

If Purchaser is required by applicable law to withhold any amounts paid or payable to Seller for tax purposes, (a) the amount paid or payable shall be increased by the amount that it would have received had not taxes been withheld and (b) Purchaser shall forward proof of such legally required withholding to Seller as soon as reasonably practicable.

Purchaser hereby irrevocably grants Seller a security interest in the Products until such time as Purchaser makes full payment of the purchase price. Purchaser agrees, if requested, to execute a financing statement or such other documentation as may be necessary or advisable to perfect and maintain such security interest including the execution and delivery to Seller of a UCC-1 financing statement.

3. DELIVERY AND RISK OF LOSS
Delivery dates set forth in Seller’s Documentation are approximate and Seller will make commercially reasonable efforts to meet same. Timely delivery is subject to prompt and timely receipt from Purchaser of accurate and complete technical and shipping information. Seller reserves the right to make partial shipments, invoices for which shall be due and payable in accordance with the payment terms specified above. Where payment is due in advance or by letter of credit, timely delivery is further subject to timely receipt of such payment or issuance of such letter of credit. All shipping and handling costs are to be paid by Purchaser. Purchaser is liable for compliance with all laws and regulations governing the unloading, storage, importation, handling and use of all Products.

Whether or not installation Services are performed by Seller, title and risk of loss shall pass to Purchaser in accordance with the stated shipping terms under Incoterms 2010.

Unless otherwise agreed and specified in Seller’s Documentation, shipping terms are Ex Works Seller’s facility. Seller will notify Purchaser when Products are available for shipment. Purchaser must provide Seller with specific written instructions as to Purchaser’s preferred method of shipment or common carrier. If Purchaser does not arrange for a freight carrier or freight forwarder to collect the Products within seven (7) calendar days following notification that the Products are available, Seller may, at its own discretion and at Purchaser’s cost, arrange for Products to be collected by a freight carrier or freight forwarder for shipment to Purchaser. Alternatively, Seller may choose to store the Products and may charge Purchaser all incurred storage and handling expenses and fees.

In the event Purchaser requests a postponement of delivery beyond the date specified in Seller’s Documentation, Seller may invoice the Purchaser and title and risk of loss shall pass to Purchaser at such time as Products are made available for shipment but in no event earlier than the delivery date specified in Seller’s Documentation. If delivery is postponed by Purchaser, Seller shall endeavor but shall not have the obligation to either store the Products or secure a storage location at Purchaser’s expense and based upon General Conditions mutually agreed by the Parties in writing.

Prior to installation, Products must be stored by Purchaserin accordance with the storage instructions that may be a part of Seller’s instructions or other documentation for Product installation, maintenance, and care. In the absence of specific instructions in the Seller’s Documentation, Products must be stored prior to their installation in an enclosed space affording protection from weather, dust and physical damage and providing appropriate temperature, humidity and ventilation conditions to prevent deterioration. Purchaser’s failure to follow Seller’s storage instructions may cause damage to the Products and will void the warranties provided hereunder. Seller shall have the right to inspect Products stored by Purchaser prior to installation. If Products are stored by Purchaser for a period of 60 days or more, Purchaser shall reimburse Seller for all reasonable costs of such inspection.

4. PERMITS, REGISTRATIONS AND LAWS
Purchaser is responsible for obtaining and maintain all permits and registrations and for compliance with local laws concerning permitting, registration, installation and use of the Products or the provision of Services. Purchasershall indemnify and hold harmless Seller from any and all costs, damages, fines and penalties resulting from Purchaser’s failure to comply with any and all applicable laws, permits and regulations. Purchaser shall strictly comply with and refrain from exporting or re-exporting the Products in violation of all applicable laws, rules, and regulations affecting Seller regarding trade restrictions, import-export compliance, money laundering, anti-bribery protections, and embargoes, as such laws, rules, and regulations may be amended from time to time. Unless otherwise agreed according to the specified Incoterms governing shipment of the Products, Seller shall have no obligation or liability for export clearance, customs clearance or import duties of any kind. Purchaser shall provide to Seller any and all documentation requested by Seller to evidence Purchaser’s compliance with such applicable import-export laws and regulations.

Seller may provide reimbursement to Purchaser or Purchaser’s representative, either directly or indirectly through intermediaries, for their reasonable and bona fide travel and lodging expenses in connection with Purchaser’s purchase of Products or Services hereunder. Any such reimbursement is NOT a payment, gift, offer or promise of anything of value, but is rather provided to Purchaser for the sole purpose of reimbursing Purchaser’s reasonable travel and lodging expenses related to the promotion, demonstration or explanation of the Products or Services being offered by Seller to Purchaser. Should Seller discover that a violation of the U.S. Foreign Corrupt Practices Act, the UK Bribery Act, or other applicable law, rule, or regulation has occurred or is likely to occur, Seller shall have the right to unilaterally terminate the Contract.

5. PRODUCT ACCEPTANCE
Except for Products that are not assembled at Seller’s facility, Purchaser has the right to inspect Products at Seller’s facility prior to shipment provided that advance written arrangements are made by Purchaser and are confirmed in writing by Seller. Any and all costs associated with inspection and testing requested by Purchaser at Seller’s facility will be paid solely by Purchaser. Purchaser shall inspect the Products within a reasonable period of time following receipt at the point of destination and prior to conducting any Acceptance Test (as defined below) to determine if the Products are damaged, incomplete or do not otherwise conform to Purchaser’s express specifications. If Purchaser receives Products with visible or suspected damage or loss, including damages to the packaging, or with discrepancies in specification, Purchaser shall make relevant notes in receiving documents and notify Seller in writing immediately. Such notice shall be reasonably detailed and shall specify the damage or discrepancy. Purchaser’s failure to inspect the Products and/or give written notice to Seller of any alleged defects or nonconformity within a reasonable period of time after receipt at the point of destination shall waive Purchaser’s right to reject the Products and return them to Seller for credit and Purchaser’s sole remedy for non-conforming or defective Products shall be warranty claims made in accordance with Article 8 herein.

For purposes of this Article 5, “reasonable period of time” means a period of time that is not immoderate or excessive, in accordance with prevailing industry standards at the time of delay.

If Seller’s Documentation expressly provides that the Products are subject to specific acceptance testing (the “Acceptance Test”) in order to verify Product performance in accordance with specifications set forth in Seller’s Documentation, the Products shall be deemed fully accepted when they have satisfied the requirements of the Acceptance Test.

Purchaser’s remedy for Products that have failed an Acceptance Test or are within the warranty period shall be limited, at Seller’s sole discretion, to the repair or replacement of such Products.

Notwithstanding any right conferred upon the Purchaser to inspect or test the Products prior to acceptance, any use, repair, modification, or alteration of the Products by Purchaser, its agents, employees or licensees, for any purpose after delivery thereof, shall constitute Purchaser’s irrevocable and unconditional acceptance of the Products.

Accordingly, in the event of any discovery by Purchaser of a non-conformity or defect following such acceptance of the Products, Purchaser’s sole recourse is a warranty claim pursuant to the warranty provisions stated in Article 8 herein.

Controlled Document: January 18, 2022

6. INSTALLATION AND/OR START UP SERVICES
If Seller’s Documentation includes the provision of Services (including installation supervision, on-site assembly, or start-up services), Purchaser will confirm to Seller at least two (2) weeks (or such shorter term set forth in Seller’s Documentation) prior to the date Seller’s personnel will be required on site to perform such Services that Purchaser has fully completed all work necessary for such Services in accordance with Seller’s Documentation. In the event that the completion of such Services is delayed for any reason not the fault of Seller, Purchaser shall pay for any additional costs resulting from the delay. Seller shall not be responsible for the means and methods selected for such Services, or for the manner in which such Services are performed, including the efficiency, adequacy and safety of same. Seller makes no warranty, express or implied, with respect to such Services, except that the Seller shall be responsible for any claims or damages resulting from its own negligence.

7. SUSPENSION AND CANCELLATION
If Purchaser suspends, cancels or partially cancels a Contract, Purchaser shall promptly pay Seller for all Products delivered to date, work performed on account of the Products, and all Services completed or in process prior to such suspension and/or cancellation, plus any other reasonable costs incurred by Seller as a result of such suspension and/or cancellation including, if applicable, an appropriate restocking fee.

8. WARRANTY
Subject to the conditions stated below, Seller warrants the Products (excluding spare parts and Services) against defects in materials and workmanship for a period of [eighteen (18)] months from the date in which title has passed to Purchaser or [twelve (12)] months from the date of installation of the Products, whichever occurs first. Seller shall, at its option, repair or replace any Products or components thereof that prove upon examination to the satisfaction of Seller to be defective. In addition, any part or component that has been repaired or replaced shall be warranted for a period equal to the lesser of (i) the remaining warranty period hereunder; or (ii) one year from the date of such repair or replacement. Spare parts are warranted against defects in materials and workmanship for a period of [ninety (90)] days from the delivery of the spare parts, unless otherwise specified. This warranty expressly excludes and does not apply to the appearance of the Products, as variations in color and appearance may occur.

In the event that Seller fails to initiate a corrective action plan to repair or replace the defective Products within [30] days following Purchaser’s notification, Purchaser may, at its reasonable discretion, take action to repair or replace such defective product and Seller shall bear the direct and commercially reasonable cost for parts and labor thereof.

In such circumstances, Seller has no warranty obligation with regard to the repair or replacement performed by Purchaser. Further, if Purchaser improperly repairs or replaces the defective Products and/or uses incompatible components, Seller is not responsible for any costs, damages or malfunctions resulting therefrom.

Any alteration, disassembly, division, modification, storage or use of the Products not in express accordance with Seller’s Documentation shall void all warranty obligations of Seller related to such Products. Purchaser assumes full responsibility in the event Purchaser uses the Products in combination with other goods or in any manner not stated in Purchaser’s written specifications provided prior to sale.

All costs associated with removing the Products from service and re-installing same following examination, repair or replacement are to be borne by Purchaser. Seller may, in its sole discretion, require that the Products be shipped to Seller’s facility for examination, repair or replacement. All transportation costs to and from Seller’s facility, if required, are to be prepaid by Purchaser.

THE WARRANTIES SET FORTH HEREIN, IF ANY, ARE MADE EXPRESSLY IN LIEU OF OTHER

WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND ANY IMPLIED

WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR

PURPOSE, EVEN IF THAT PURPOSE IS KNOWN TO SELLER, IS HEREBY EXPRESSLY EXCLUDED; PROVIDED, HOWEVER, THAT THE PRODUCTS ARE WARRANTED TO CONFORM

IN ALL MATERIAL RESPECTS TO THE RELEVANT AND KNOWN SPECIFICATIONS, AND

PERFORMANCE STANDARDS, INCLUDING ANY MUTUALLY AGREED MODIFICATIONS THERETO.

SELLER’S LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR ANY FAILURE BY SELLER TO

SUPPLY PRODUCTS THAT MEET THE FOREGOING WARRANTY IS EXPRESSLY LIMITED TO, AT SELLER’S OPTION, THE REPAIR OR REPLACEMENT OF THE NON-CONFORMING PRODUCTS.

9. INDEMNIFICATION
Purchaser and Seller shall each defend, indemnify and hold the other harmless from and on account of all bodily injury and property damage claims asserted by third parties as a result of the other’s negligent acts or omissions. To the extent that both Purchaser and Seller are determined by a finder of fact to be negligent and the negligence of both is a proximate cause of a claim by a third party against either Purchaser or Seller, then in such event, Purchaser and Seller shall each be responsible for a portion of the liability, including costs and expenses, attributable to its comparative share of the total negligence.

Seller agrees to indemnify and hold harmless Purchaser against any third party claim alleging that the Products infringe upon a valid and enforceable United States patent, provided Purchaser gives Seller written notice immediately when such claim is asserted, directly or indirectly. Notwithstanding the foregoing, Seller shall have no liability to Purchaser if any patent infringement or claim thereof is based upon or arises out of:
(a) compliance with designs, plans or specifications furnished by or on behalf of Purchaser;
(b) use of the Products in a manner for which the Products were neither designed nor contemplated; or
(c) the claimed infringement of any patent in which the Purchaser or any affiliate or subsidiary of Purchaser has any direct or indirect interest by license or otherwise.

10. LIMITATION OF LIABILITY
Seller’s total aggregate liability to Purchaser with respect to any cause of action or claim hereunder including, without limitation, any indemnities hereunder, shall not exceed the purchase price payable pursuant to the Contract. In no event shall Seller be liable, either directly or as indemnitor of Purchaser, for any special, punitive, indirect or consequential damages, damages for loss of use, loss of income, loss of profit, or any other indirect damages of any kind or type. Notwithstanding the above, this limitation of liability shall not apply to claims arising from Seller’s gross negligence or willful misconduct. All of Purchaser’s claims or actions of any description whatsoever against the Seller shall be brought not later than one (1) year after the occurrence of the event upon which each such claim or action is based.

11. FORCE MAJEURE; DELAY EVENTS; PRICE CHANGES
Force Majeure shall mean any act, event or condition that is beyond Seller’s reasonable control, that materially and adversely affects Seller’s ability to perform its obligations hereunder, and that is not the result of Seller’s willful neglect, error, omission or failure to exercise reasonable due diligence. For the avoidance of doubt, delays caused by or related to shortages or unavailability of raw materials or component parts to be supplied by Seller or Seller’s sub-suppliers, supported by relevant documentary evidence, shall be considered a Force Majeure event.

Seller shall not be liable for any delay in performance or failure to perform any obligation hereunder if, and to the extent that, such failure or delay is caused by an event of Force Majeure. If Seller is unable to perform any of its obligations hereunder as a result of a Force Majeure event, Seller shall be required to resume performance upon termination of the event and shall have reasonable additional time for performance.

In addition, to the extent that a Force Majeure event materially increases Seller’s cost of performance hereunder, Seller shall be entitled to an equitable contribution from Purchaser towards such additional costs of performance, excluding any costs that are covered by Seller’s insurance.

In the event that the performance of a contractual obligation hereunder by either party hereto is prevented, restricted, hindered, delayed or interfered with directly or indirectly in connection with the COVID-19 (“Coronavirus”) pandemic or similar pandemic or epidemy and/or any measures introduced by any government authority to address such pandemics/epidemies, the party so affected shall be excused from such performance to the extent and for the duration of such prevention, restriction, hindrance, delay or interference, and shall not be liable for any costs or damages.

Each party shall exercise reasonable efforts to resolve any impediment, however, neither Party shall be obligated to incur additional costs of more than 5% of the order value. The party affected should give notice to the other party as soon as practicable of the prevention, restriction, hindrance, delay, or interference with its performance.

Notwithstanding any other provision of these Terms or the Seller’s Documentation, unless otherwise expressly stated in the Seller’s Documentation, if, at any time during the course of Seller’s performance of the sale of the Products or Services, there is an unforeseen and material increase in the price or supply chain of raw materials, materials, labor, or other costs of Seller associated with the Products or Services, Seller shall have the right to reasonably adjust the prices or delivery dates or terms set forth in the Seller’s Documentation upon written notice to the Purchaser setting forth the amount of such price adjustment or change in delivery terms and reasonably setting forth the cost changes associated therewith.

12. DEFAULT AND TERMINATION
The substantial failure of either Party to comply with the terms herein shall constitute default hereunder. Upon default by one Party, the other non-defaulting Party shall provide written notice clearly specifying the nature of the default. The defaulting Party shall have thirty (30) days to cure the default. If the default is capable of being cured within thirty (30) days and is not cured within thirty (30) days, this Contract may be terminated. In the case of default that cannot be cured within thirty (30) days, this Contract shall not be terminated so long as the defaulting Party has given written notice of extension to the other Party and the defaulting Party has commenced and is diligently pursuing a cure.

For purposes of this Contract, the failure of Purchaserto pay Seller in accordance with the payment terms hereunder shall be considered a substantial default for which no cure period beyond thirty (30) days shall be allowed. In the event of the Purchaser’s default, Seller may, in addition to the right to terminate set forth in this paragraph, elect to suspend work until the default has been cured.

In the event of any termination, Seller shall be paid for Products delivered and Services rendered (including Products specifically manufactured/assembled or special ordered for the Purchaser that have yet to be supplied) through the date of termination.

No delay or omission on the part of the Seller in exercising any right or remedy hereunder shall constitute a waiver of any such right or remedy on any future occasion.

Controlled Document: January 18, 2022

13. INTELLECTUAL PROPERTY
All devices, equipment, designs (including drawings, plans and specifications), estimates, prices, notes, electronic data and other documents or information prepared or disclosed by Seller in connection with the Products sold hereunder shall remain Seller’s exclusive property. Purchaser shall not disclose any such material to third parties without Seller’s prior written consent. Purchaser will not undertake any analyses or “reverse engineering” of the products for the purpose of designing, developing or manufacturing by the Purchaser or by any third party of products that compete with the Product(s).

Seller will retain sole ownership of all discoveries, improvements, inventions, patents, trademarks, copyrights, know-how, trade secrets, or other intellectual property rights associated in any way with the Products. The Parties specifically agree that all improvements, inventions, discoveries and copyright in works of authorship, including those in formative stages, made by either Party hereto (either alone or jointly with others) improving upon or related to the Products shall from the time of conception or, in the case of works of authorship, from the time of creation, be the property of Seller.

Except for the marking of Products as required by applicable law or as requested by Seller, Purchaser shall not use Seller’s name, logo, trademarks, trade names, or other intellectual property in any manner, including product literature, advertisements, or marketing materials without the express written permission of Seller.

14. RELIANCE ON INFORMATION
Purchaser acknowledges that Seller has used and expressly relied upon information provided by the Purchaser, if any, regarding site conditions, specifications and other technical requirements in the design, installation and start-up of its Product(s) and the provision of Services. Seller shall not be obligated to establish or verify the accuracy of the information furnished by the Purchaser nor shall Seller be responsible for the impact or effect on its Products(s) and any Services provided by Seller hereunder of the information furnished by the Purchaser in the event that such information is in error.

15. DISPUTE RESOLUTION
All matters arising out of or relating to the Contract shall be governed by and construed in accordance with the internal laws of the State of Ohio, USA without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Ohio, USA. Any legal suit, action or proceeding arising out of or relating to this Contract shall be instituted in the courts of the State of Ohio, USA in each case located in Cuyahoga County, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. The United Nations Convention on Contracts for the International Sale of Goods (“CISG”) shall not apply to this Contract.

16. MISCELLANEOUS PROVISIONS
The Contract constitutes the entire agreement of sale and purchase between Purchaser and Seller and supersede all prior or contemporaneous communications, representations, understandings or agreements, whether written or oral, unless such document states that it intends to modify this Contract and is signed by both Parties. No modification of this Contract (including changes in scope, specifications, price or delivery schedule) shall be of any force or effect unless made pursuant to a writing signed by both Parties. No course of dealing or performance or usage of trade may be used to modify this Contract. Those federal contract clauses required to be expressly incorporated into this Contract are expressly incorporated herein by reference as if originally included herein. The English language shall be the official text of this Contract.

The failure on the part of either Party to enforce its rights as to any provisions herein shall not be construed as a waiver of its rights to enforce such provisions in the future. Should any provision of this Contract for any reason be declared invalid or void, such declaration will not affect the remaining provisions of this Contract, which shall remain in full force and effect.

Purchaser may not assign or permit any other transfer of this Contract without Seller’s prior written consent. Purchaser acknowledges that Seller shall be entitled to manufacture the Products at any of its or its affiliates’ facilities worldwide, and the Contract may be assigned to such affiliates without the consent of Purchaser. This Contract is entered into solely between, and may be enforced only by, the Purchaser and Seller; and this Contractshall not be deemed to create any rights in third parties, including customers, subcontractors, or affiliates of the Purchaser, or to create any obligations to any such third parties.

Any translation, summary, or description of the terms herein are provided solely as a courtesy and the terms set forth herein, and the English version thereof, shall govern and have full force and effect and be precedent above any such translation, summary, or description.

Pacifica City CouncilAugust 22, 2022

Pacifica City Council
August 22, 2022