SAN2338.SR.JD
CITY OF SIMI VALLEY
MEMORANDUM
January 29,2024
TO: City Council
FROM: Department of Public Works
SUBJECT: ADOPTION OF A RESOLUTION AND AWARD OF AGREEMENT FOR
WEST BIOLOGICAL NUTRIENT REMOVAL (BNR) BASINS AERATION
DIFFUSER REPLACEMENTS AND APPROVAL OF A SUPPLEMENTAL
BUDGET REQUEST FOR THE SANITATION DIVISION’ S BNR
DIFFUSERS REPLACEMENT PROJECT, CP70200054
STAFF RECOMMENDATION
It is recommended that the City Council:
1. Adopt Resolution No. 2024- 02 by-passing bid requirements under the Public Contract Code and awarding an Agreement to Ovivo USA, LLC (Ovivo) and its installer Coombs Service Group (Corporation Code 3615044; DIR 1000038047) in the amount of $ 947,989.63 for the West BNR Basins Aerat ion Diffuser Replacements for the reason that that the se are the only entities providing the required equipment and services;
2. Approve a Supplemental Budget Request in the amount of $1,000,000, in the Sanitation Replacement Reserve Fund (Fund 702) for the BNR Diffusers Replacement Project, CP70200054;
3. Authorize the City Manager to approve subsequent contract amendments to incorporate budgeted funds into the contract amount, and to extend the term of the contract; and
4. Take such additional, related, action that may be desirable.
BACKGROUND AND OVERVIEW
The biological nutrient removal (“ BNR”) process is a critical and necessary treatment element in the Water Quality Control Plant (WQCP) operation. The BNR process removes organic and nitrogen materials, such as ammonia and carbon, during the treatment of wastewater. The WQCP utilizes proprietary membranes for the BNR process, identified as AEROSTRIP®. These were originally installed in the WQCP following a competitive process in 2003 as part of Project No. SV03-04.
The performance of the West BNR Aeration Basins has deteriorated necessitating the need to re build the air diffusers and membrane components of the system to regain efficiency and reliability of the BNR treatment. The air diffusers and membranes in the West BNR Basins, rebuilt in 2016, are approaching their useful life expectancy.
AGENDA ITEM NO.
Consent (4)
FINDINGS AND ALTERNATIVES
There are four basins in the West BNR, with each basin having 221 air diffusers each with membranes in operation. This equates to 884 aeration diffusers needing to be replaced or rebuilt. In order to maintain continuous wastewater treatment at the WQCP, only one basin can be out of service at a time. The replacement and rehabilitation work requires staging the removal , rehabilitation , and reinstallation of diffusers to keep a minimum of three West BNR basins in service. This sequence requires purchasing and installing both new and rebuilt diffusers and membranes as the existing diffusers are removed. The 221 diffusers removed from the first basin can then be rebuilt and installed in the second basin and so on until the rehabilitation of all diffusers in the four basins is completed.
Ovivo is the exclusive distributor for the sales, aftermarket sales , and service of all AEROSTRIP® products in the United States for which the BNR Aeration Basins are designed to use (see letter dated November 29, 2023, Attachment A, Page 29).
Ovivo's proposed total cost is $947,989.63, which includes materials, shipping, tax and installation. The FY 2023-24 Sanitation Budget does not have funds specified for the BNR West Basins Aeration Diffuser Replacement Project. The proposed project was originally forecasted to be included in the FY 2024-2 5 Sanitation Budget, howev er the condition of the Aeration Diffusers requires replacement to begin in the current fiscal year. Therefore, a Supplemental Budget Request in the amount of $1,000,000 is requested in the Sanitation Replacement Reserve Fund (Fund 702) to provide a reasonable contingency for the BNR Diffusers Replacement Project, CP70200054. Moving the project forward by one year does not impose any financial impact to the overall Sanitation Replacement Reserve Fund as sufficient funds are available for this projec t and other planned projects.
The City would ordinarily need to comply with the competitive bidding requirements of the California Public Contracts Code for this project. Here, however, Ovivo is the only vendor that can provide the AEROSTRIP® products in the United States. Additionally, Coombs Service Group dba Coombs Construction Engineering is the only authorized contractor for installing these products. Ovivo has provided Coombs Service Group with proprietary training, specialized tooling, precise reskinning procedures, testing processes and appropriate use of the required chemicals for this comprehensive refurbis hment procedure. Replacement projects performed by Coombs Service and Ovivo carry a full warranty for both the materials and rebuilding labor. Coombs Service Group is registered with the Department of Industrial Relations and would be required to execute a standard public works contract that includes payment of prevailing wage in accordance with the Labor Code.
SAN2338.SR.JD
2 SAN2338.SR.JD
The following alternatives are available to the City Council:
1. Adopt Resolution No. 2024-02 awarding the Agreement to Ovivo and Coombs Service Group for the BNR West Basins Aerator Replacement Project in the amount of $947,989.63;
2. Approve a Supplemental Budget Request in the amount of $ 1,000,000, in the Sanitation Replacement Reserve Fund (Fund 702) for the BNR Diffusers Replacement Project, CP70200054;
3. Authorize the City Manager to approve subsequent contract amendments to incorporate budgeted funds into the contract amount, and to extend the term of the contract;
4. Provide staff with further direction.
Staff recommends Alternative No. 1 and 2.
SUGGESTED CITY COUNCIL MOTION
I move to adopt Resolution No. 2024-02 awarding the Agreement to Ovivo and Coombs Service Group for the BNR West Basins Aerator Replacement Project in the amount of $947,989.63, authorize the City Manager to execute subsequent contract amendments and approve a Supplemental Budget Request in the amount of $1,000,000 in the Sanitation Replacement Reserve Fund (Fund 702).
SUMMARY
The air diffuser and membrane components in the BNR West Basins are in need of replacement. Ovivo is the only company that manufactures and supplies the materials to replace the diffusers in the BNR West basins and has a facility in Escondido, CA to rebuild the diffusers reliably and efficiently. Staff recommends that the City Council adopt a Resolution awarding the Agreement to Ovivo and Coombs Service Group for the BNR West Aeration Basin Replacement, authorize the City Manger to execute subsequent contract amendments, and approve a Supplemental Budget Request in the Sanitation Replacement Reserve.
____________________________________
Ronald K. Fuchiwaki, Director
Department of Public Works
Prepared by: Al Sexton, Deputy PW Director – Sanitation Services
INDEX Page
Resolution No. 2024-02 ................................................................ 4 Maintenance Agreement .............................................................. 7 Attachment A to Staff Report - Sole Source Letter ..................... 29 3 RESOLUTION NO. 2024-02
A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A
STANDARD PUBLIC WORKS AGREEMENT WITH OVIVO USA, LLC AND
COOMBS SERVICE GROUP DBA COOMBS CONSTRUCTION
ENGINEERS WITHOUT THE NEED FOR COMPETITIVE BIDDING FOR
THE BNR WEST BASINS AERATOR REPLACEMENT PROJECT IN THE
AMOUNT OF $947,989.63
The City Council does resolve as follows:
SECTION 1: The City Council finds and declares as follows:
A. In 2003, the City made improvements to the Water Quality Control Plant (“WQCP”) via Project No. SV03-04 to install membranes needed to implement the biological nutrient removal (“BNR”) process at the WQCP;
B. Following a competitive bidding process in 2003, Ovivo USA, LLC’s proprietary membranes were selected for use in the WQCP. These products were rebuilt in 2016 and are now approaching the end of their useful life expectancy;
C. Replacing the membranes requires both acquisition of the products and installation into the WQCP by qualified contractors familiar with the proprietary technology (the “Project”);
D. Ordinarily, the City would need to comply with the competitive bidding requirements set forth in the California Public Contracts Code for this Project;
E. The purpose of such bidding requirements is to guard against favoritism, improvidence, extravagance, fraud and corruption, to prevent waste of public funds, and to obtain the best economic result for the public;
F. The facts and circumstances of this Project, however, demonstrate that competitive bids would be unavailing or would not produce an advantage, and the advertisement for competitive bid would thus be undesirable and impractical for the following reasons:
1. The Project incorporates proprietary technology that is available through one supplier: Ovivo USA, LLC. Additionally, Ovivo authorizes only one company, Coombs Service Group, to install the membranes;
4 RESOLUTION NO. 2024-02
2. The membranes needed for the Project were previously selected through a competitive process in 2003; they were replaced in 2016. The City requires consistent products that are compatible with the WQCP to ensure the BNR process
continues without interruption;
3. Coombs Service Group is registered with the Department of Industrial Relations (DIR #1000038047); has the required insurance and bonding; is properly licensed; and is prepared to execute the City’s standard agreement for public works projects; and
4. Since Ovivo and Coombs are already prepared to complete the Project – and are the only ones authorized to do so –
undergoing a complete bid process at this time would be nonsensical.
G. In waiving the competitive bid requirements otherwise required by the Public Contract Code, the City Council takes note of the analysis and decisions set forth in Graydon v. Pasadena Redevelopment Agency (1980) Cal.App.3d 631; Hodgeman v. City of San Diego (1942) 53 Cal.
App.2nd 610; Orange County Water Dist. v. Bennett (1958) 156 Cal.
App.2nd 745; and Los Angeles G&E Corp. v. City of Los Angeles (1922) 188 Cal. 307.
SECTION 2: Environmental Assessment. The Project is categorically exempt from the requirements of the California Environmental Quality Act (CEQA) pursuant to 14 California Code of Regulations § 15301 as a Class 1 categorical exemption (Existing Facilities). The Project results in minor alterations to existing public facilities involving no significant expansion of the existing use. The project is not anticipated to have any significant impacts with regard to traffic, noise, air quality, or water quality. There are adequate utilities and public services to serve the project.
SECTION 3: Design Immunity; Authorization.
A. The design and plans for the Project are determined to be consistent with the City’s standards and are approved.
B. The design approval set forth in this Resolution occurred before actual work on the Project construction commenced.
C. The approval granted by this Resolution conforms with the City’s General Plan.
D. The Public Works Director, or designee, is authorized to act on the City’s behalf in approving any alterations or modifications of the design and plans approved by this Resolution.
5 RESOLUTION NO. 2024-02
E. The approval and authorization granted by this Resolution is intended to avail the City of the immunities set forth in Government Code § 830.6.
SECTION 4: Actions; Authorizations. The City Council takes the following actions:
A. The City Manager is authorized to execute a standard public works agreement with Coombs Service Group dba Coombs Construction Engineers to complete the Project with Ovivo supplied membranes in a form approved by the City Attorney without the need for additional bidding; and
B. The City Manager, or designee, is authorized to execute change orders – in accordance with the terms of the public works agreement – as necessary to complete the Project.
SECTION 5: Electronic Signatures. This Resolution may be executed with electronic signatures in accordance with Government Code §16.5. Such electronic signatures will be treated in all respects as having the same effect as an original signature.
SECTION 6: If any part of this Resolution or its application is deemed invalid by a court of competent jurisdiction, the City Council intends that such invalidity will not affect the effectiveness of the remaining provisions or applications and, to this end, the provisions of this Resolution are severable.
SECTION 7: This Resolution will become effective immediately upon adoption.
PASSED, APPROVED, AND ADOPTED this 29
th day of January, 2024.
Attest:
Lucy Blanco, City Clerk Fred D. Thomas, Mayor of the City of Simi Valley, California
Approved as to Form: Approved as to Content:
Algeria R. Ford, City Attorney Brian Paul Gabler, City Manager
Ronald K. Fuchiwaki
Public Works Director
6 20240116 – Maintenance Agreement
MAINTENANCE AGREEMENT
BETWEEN
THE CITY OF SIMI VALLEY AND
OVIVO USA, LLC
THIS MAINTENANCE AGREEMENT (“Agreement”) is made and entered into this 29th day of January, 2024, by and between the CITY OF SIMI VALLEY, a general law city and municipal corporation (“CITY”) and OVIVO USA, LLC , a Delaware Corporation (“CONTRACTOR”).
The Parties agree as follows:
1. CONSIDERATION.
A. As partial consideration, CONTRACTOR agrees to perform the work listed in the SCOPE OF SERVICES, below;
B. As additional consideration, CONTRACTOR and CITY agree to abide by the terms and conditions contained in this Agreement;
C. As additional consideration, CITY agrees to pay CONTRACTOR for CONTRACTOR’s services not to exceed a total of $947,989.63 for the work.
2. TERM. The term of this Agreement will be from the date this Agreement is made and entered, as first written above, and shall be completed no later than 280 consecutive calendar days after receipt of the Notice to Proceed. The Agreement may be extended upon mutual consent of the parties by amending this Agreement.
3. SCOPE OF SERVICES.
A. This Agreement may be used for “maintenance services” which include the following:
i. Routine, recurring, and usual work for the preservation or protection of any publicly owned or publicly operated facility for its intended purposes.
ii. Minor repainting.
iii. Resurfacing of streets and highways at less than one inch.
iv. Landscape maintenance.
v. Work performed to keep, operate, and maintain publicly owned water, power, or waste disposal systems and electrical transmission lines of 230,000 volts and higher.
7 20240116 – Maintenance Agreement
vi. Carpentry, electrical, plumbing, glazing, and other craftwork;
B. CONTRACTOR will perform the maintenance services listed in the attached Exhibit “A,” which is incorporated by reference. The provisions contained in this Agreement supersede any conflicting provisions in Exhibit A.
C. The additional terms and conditions in attached Exhibit “B,” are incorporated by reference. The provisions contained in this Agreement supersede any conflicting provisions in Exhibit B.
D. CONTRACTOR will, in a workmanlike manner, furnish all of the labor, technical, administrative, professional and other personnel, all supplies and materials, equipment, printing, vehicles, transportation, office space and facilities, and all tests, testing and analyses, calculation, and all other means whatsoever, except as herein otherwise expressly specified to be furnished by CITY, necessary or proper to perform and complete the work and provide the professional services required of CONTRACTOR by this Agreement.
4. PREVAILING WAGES.
A. Pursuant to Labor Code § 1720, and as specified in 8 California Code of Regulations § 16000, CONTRACTOR must pay its workers prevailing wages. It is CONTRACTOR’s responsibility to interpret and implement any prevailing wage requirements and CONTRACTOR agrees to pay any penalty or civil damages resulting from a violation of the prevailing wage laws.
B. In accordance with Labor Code § 1773.2, copies of the prevailing rate of per diem wages are available upon request from CITY’s Engineering Division or the website for State of California Prevailing wage determination at http://www.dir.ca.gov/DLSR/PWD
. CONTRACTOR must post a copy of
the prevailing rate of per diem wages at the job site.
C. CITY directs CONTRACTOR’s attention to Labor Code §§ 1777.5, 1777.6 and 3098 concerning the employment of apprentices by CONTRACTOR or any subcontractor.
D. Labor Code § 1777.5 requires CONTRACTOR or subcontractor employing tradesmen in any apprenticeship occupation to apply to the joint apprenticeship committee nearest the site of the public works project and which administers the apprenticeship program in that trade for a certificate of approval. The certificate must also fix the ratio of apprentices to journeymen that will be used in the performance of the contract. The ratio of apprentices to journeymen in such cases will not be less than one to five except:
8 20240116 – Maintenance Agreement
i. When employment in the area of coverage by the joint appren - ticeship committee has exceeded an average of 15 percent in the 90 days before the request for certificate, or
ii. When the number of apprentices in training in the area exceeds a ratio of one to five, or
iii. When the trade can show that it is replacing at least 1/30 of its membership through apprenticeship training on an annual basis state-wide or locally, or
iv. When CONTRACTOR provides evidence that CONTRACTOR
employs registered apprentices on all of his contracts on an annual average of not less than one apprentice to eight journeymen.
v. CONTRACTOR is required to make contributions to funds estab- lished for the administration of apprenticeship programs if CONTRACTOR employs registered apprentices or journeymen in any apprenticeable trade on such contracts and if other contractors on the public works site are making such contributions.
vi. CONTRACTOR and any subcontractor must comply with Labor Code §§ 1777.5 and 1777.6 in the employment of apprentices.
vii. Information relative to apprenticeship standards, wage schedules and other requirements may be obtained from the Director of Industrial Relations, ex -officio the Administrator of Apprenticeship, San Francisco, California, or from the Division of Apprenticeship Standards and its branch offices.
E. CONTRACTOR and its subcontractors must keep an accurate certified payroll records showing the name, occupation, and the actual per diem wages paid to each worker employed in connection with this Agreement.
The record will be kept open at all reasonable hours to the inspection of the body awarding the contract and to the Division of Labor Law Enforcement.
If requested by CITY, CONTRACTOR must provide copies of the records at its cost.
5. PAYMENTS.
A. For CITY to pay CONTRA CTOR as specified by this Agreement, CONTRACTOR must submit a detailed invoice to CITY.
B. CITY’s city manager may make payments up to $94,798.96 for special items of work not included in the project scope of work and services.
Payments for special work wi ll only be made after CITY issues a written 9 20240116 – Maintenance Agreement
notice to proceed for the specific special tasks. A written scope of work, an agreed upon additional fee, a schedule for starting and completing the special tasks, and an agreed upon extension of the time for performance, if needed to complete the special work, will be required before CITY issues a notice to proceed for special work. All special work will be subject to all other terms and provisions of this Agreement.
6. FAMILIARITY WITH WORK.
A. By executing this Agreement, CONTRACTOR represents that CONTRACTOR has
i. Thoroughly investigated and considered the scope of services to be performed;
ii. Carefully considered how the services should be performed; and
iii. Understands the facilities, difficulties, and restrictions attending performance of the services under this Agreement.
B. If services involve work upon any site, CONTRACTOR warrants that CONTRACTOR has or will investigate the site and is or will be fully acquainted with the conditions there existing, before commenci ng the services hereunder. Should CONTRACTOR discover any latent or unknown conditions that may materially affect the performance of the services, CONTRACTOR will immediately inform CITY of such fact and will not proceed except at CONTRACTOR’s own risk unt il written instructions are received from CITY.
7. INSURANCE.
A. Before commencing performance under this Agreement, and at all other times this Agreement is effective, CONTRACTOR will procure and maintain the following types of insurance with coverage limits complying, at a minimum, with the limits set forth below:
Type of Insurance
Limits (combined single)
Commercial general liability: $ 5,000,000
Business automobile liability $ 5,000,000
Workers compensation $1,000,000
B. Commercial general liability insurance will meet or exceed the requirements of ISO-CGL Form No. CG 00 01 11 85 or 88. The amount of insurance set forth above will be a combined single limit per occurrence for bodily injury, personal injury, and property damage for the policy coverage. Liability 10 20240116 – Maintenance Agreement
policies will be endorsed to name City, its officials, and employees as “additional insureds” under said insurance coverage and to state that such insurance will be deemed “primary” such that any other insurance that may be carried by City will be excess thereto. Such insurance will be on an “occurrence,” not a “claims made,” basis and will not be cancelable or subject to reduction except upon thirty (30) days prior written notice to City.
C. Automobile coverage will be written on ISO Business Auto Coverage Form CA 00 01 06 92, including symbol 1 (Any Auto).
D. CONTRACTOR will furnish to City duly authenticated Certificates of Insurance evidencing maintenance of the insurance required under this Agreement, endorsements as required herein, and such other evidence of insurance or copies of policies as may be reasonably required by City from time to time. Insurance must be placed with insurers with a current A.M.
Best Company Rating equivalent to at least a Rating of “A:VII.” Certificate(s) must reflect that the insurer will provide thirty (30) day notice of any cancellation of coverage. CONTRACTOR will require its insurer to modify such certificates to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, and to delete the word “endeavor” with regard to any notice provisions.
E. Should CONTRACTOR, for any reason, fail to obtain and maintain the insurance required by this Agreement, City may obtain such coverage at CONTRACTOR’s expense and deduct the cost of such insurance from payments due to CONTRACTOR under this Agreement or terminate.
8. TIME FOR PERFORMANCE. CONTRACTOR will not perform any work under this Agreement until:
A. CONTRACTOR furnishes proof of insurance as required under Section 7 of this Agreement; and
B. CITY gives CONTRACTOR a written notice to proceed.
C. Should CONTRACTOR begin work in advance of receiving written authorization to proceed, any such professional services are at CONTRACTOR’s own risk.
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9. TERMINATION.
A. Except as otherwise provided, CITY may terminate this Agreement at any time with or without cause. Notice of termination will be in writing.
B. CONTRACTOR may terminate this Agreement upon providing written notice to CITY at least thirty (30) days before the effective termination date.
C. Should the Agreement be terminated pursuant to this Section, CITY may procure on its own terms services similar to those terminated.
D. By executing this document, CONTRACTOR waives any and all claims for damages that might otherwise arise from CITY’s termination under this Section.
10. INDEMNIFICATION.
A. CONTRACTOR indemnifies and holds CITY harmless from and against any claim, action, damages, costs (including, without limitation, attorney’s fees), injuries, or liability, arising out of this Agreement, or its performance. Should CITY be named in any suit, or should any claim be brought against it by suit or otherwise, whether the same be groundless or not, arising out of this Agreement, or its performance, CONTRACTOR will defend CITY (at CITY’s request and with counsel satisfactory to CITY) and will indemnify CITY for any judgment rendered against it or any sums paid out in settlement or otherwise.
B. For purposes of this section “CITY” includes CITY’s officers, officials, employees, agents, representatives, and certified volunteers.
C. It is expressly understood and agreed that the foregoing provisions will survive termination of this Agreement.
11. INDEPENDENT CONTRACTOR. CITY and CONTRACTOR agree that CONTRACTOR will act as an independent contractor and will have control of all work and the manner in which is it performed. CONTRACTOR will be free to contract for similar service to be performed for other employers while under contract with CITY.
CONTRACTOR is not an agent or employee of CITY and is not entitled to participate in any pension plan, insurance, bonus or similar benefits CITY provides for its employees.
Any provision in this Agreement that may appear to give CITY the right to direct CONTRACTOR as to the details of doing the work or to exercise a measure of control over the work means that CONTRACTOR will follow the direction of the CITY as to end results of the work only.
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12. NOTICES.
A. All notices given or required to be given pursuant to this Agreement will be in writing and may be given by personal delivery or by mail. Such noticing does not include day -to-day communications between CITY’s and CONTRACTOR’s project managers. Notice sent by mail will be addressed as follows:
To CITY: Department of Public Works
City of Simi Valley
2929 Tapo Canyon Road
Simi Valley, CA 93063
Staff Contact: John Hamilton, Senior Engineer
(805) 583-6809
To CONTRACTOR: Ovivo USA, LLC
4246 Riverboat Road, Suite 300
Salt Lake City, UT 84123
Attention: Karen Burns
(801) 931-3027
B. When addressed in accordance with this paragraph, notices will be deemed given upon deposit in the United States mail, postage prepaid. In all other instances, notices will be deemed given at the time of actual delivery.
C. Changes may be made in the names or addresses of persons to whom notices are to be given by giving notice in the manner prescribed in this paragraph.
13. TAXPAYER IDENTIFICATION NUMBER. CONTRACTOR will provide CITY with a Taxpayer Identification Number.
14. WAIVER. A waiver by CITY of any breach of any term, covenant, or condition contained in this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained in this Agreement, whether of the same or different character.
15. CONSTRUCTION. The language of each part of this Agreement will be construed simply and according to its fair meaning, and this Agreement will never be construed either for or against either party.
16. SEVERABLE. If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, then such portion will be dee med modified to the extent necessary in the opinion of the court to render such portion enforceable and, as so modified, such portion and the balance of this Agreement will continue in full force and effect.
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17. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of reference only and will not affect the interpretation of this Agreement.
18. WAIVER. Waiver of any provision of this Agreement will not be deemed to constitute a waiver of any other provision, nor will such waiver constitute a continuing waiver.
19. INTERPRETATION. This Agreement was drafted in, and will be construed in accordance with the laws of the State of California, and exclusive venue for any action involving this agreement will be in Ventura County.
20. AUTHORITY/MODIFICATION. This Agreement may be subject to and conditioned upon approval and ratification by the Simi Valley City Council. This Agreement is not binding upon CITY until executed by the City Manager. The Parties represent and warrant that all necessary action has been taken by the Parties to authorize the undersigned to execute this Agreement and to engage in the actions described herein. This Agreement may be modified by written agreement. CITY’s city manager may execute any such amendment on behalf of CITY.
21. ACCEPTANCE OF ELECTRONIC SIGNATURES. This Agreement may be executed with electronic signatures in accordance with Government Code § 16.5. Such electronic signatures will be treated in all respects as having the same effect as an original signature.
22. EFFECT OF CONFLICT. In the event of any conflict, inconsistency, or incongruity between any provision of this Agreement, its attachments, the purchase order, or notice to proceed, the provisions of this Agreement will govern and control.
23. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of reference only and will not affect the interpretation of this Agreement.
24. FORCE MAJEURE. Should performance of this Agreement be prevented due to fire, flood, explosion, war, terrorist act, embargo, government action, civil or military authority, the natural elements, or other similar causes beyond the Parties’ control, then the Agreement will immediately terminate without obligation of either party to the other.
25. ENTIRE AGREEMENT. This Agreement and its two attachments constitutes the sole agreement between CONTRACTOR and CITY respecting maintenance services. To the extent that there are additional terms and conditions contained in Exhibit “B” that are not in conflict with this Agreement, those terms are incorporated as if fully set forth above.
There are no other understandings, terms or other agreements expressed or implied, oral or written.
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IN WITNESS WHEREOF the parties hereto have executed this contract the day and year first hereinabove written.
A
ttest: City of Simi Valley, A Municipal Corporation
B y:
Lucy Blanco, City Clerk Fred D. Thomas, Mayor of the City of Simi Valley, California
A
pproved as to Form: Ovivo USA, LLC
B y:
Algeria R. Ford, City Attorney
P rint Name:
Approved as to Content: Title:
B y:
Brian Paul Gabler, City Manager
P rint Name:
T itle:
Johanna Medrano,
Deputy Administrative Services Director/
Budget & Purchasing
Ronald K. Fuchiwaki
Public Works Director
15 AREA REPRESENTATIVE
PREPARED BY
Karen Burns
Phone (801) 931-3027
[email protected]
Ovivo USA, LLC
4246 Riverboat Road – Suite 300
Salt Lake City, Utah 84123-2583
SIMI VALLEY WWTP
SIMI VALLEY, CA
Please note: The pricing is only valid for 30 days from the date listed on this proposal. Ovivo will not accept a purchase order for this proposal past the listed date without reviewing pricing and delivery of the items proposed.
The Coombs-Hopkins Company
Casey Rebmann
760.525.6139
[email protected]
PROPOSAL
Q1408– KB
28 NOVEMBER 2023
EXHIBIT A
TO MAINTENANCE AGREEMENT BETWEEN
CITY OF SIMI VALLEY, OVIVO USA, AND COOMBS SERVICE GROUP 16 PROJECT SUMMARY:
Ovivo USA, LLC (formerly EIMCO Water Technologies – EWT™) is pleased to offer the following proposal to provide new Aerostrip® membrane kits, reskinning services, and removal/installation services. This is for the existing Aerostrip® Aeration System for the West Basins.
ITEM I: MEMBRANE REPLACEMENT KITS INCLUDE THE FOLLOWING: (Per Kit)
- One (1) T4.0-15 or T3.5-18 Polyurethane membrane (quantities listed below) - Two (2) Peripheral strip A short ends
- Two (2) Peripheral strip A long sides
- Double sided tape
- One (1) Rubber seal
- One (1) Lower membrane washer
- One (1) Upper membrane washer
- Chemicals (Silicone, Sikaflex adhesive, Sikaflex primer) - 500’ Total Spare Tiger-flex hose
- Teflon tape
- Freight (Approximate 14-week lead time for components)
Items NOT Included
- Stainless steel panel and stainless-steel components (existing to be reused) - Anchors, hardware, or compression fittings (existing to be reused) - Piping, pipe fittings, tubing, fitting or supports
- No components not specifically mentioned above
- Removal or installation services (See Item III below)
ITEM II: RESKINNING SERVICES: (West Basins Only)
- T4.0-15 or T3.5-18 Diffusers to be rebuilt at our authorized rebuild shop in Escondido, CA - Supervision and labor to install new membranes on existing stainless-steel panels, tools and other construction equipment as needed.
- Perform leak testing and repair leaks as necessary
- Lead times will vary depending on quantities
Items NOT Included
- Pipe repair
- Tubing
- Anchors, hardware, and compression fittings (existing to be reused) - Removal of old debris – Diffusers need to be free of debris and power washed prior to shipment to the rebuild facility
- Installation or removal of diffusers from basin (See section III below)
17 ITEM III: REMOVAL SERVICES – (Per Basin, West Basins Only)
- Provide the required confined space entry crew to remove the existing Aerostrip® diffusers in each basin, one basin at a time. This includes supervision, labor (at the local prevailing wage) and service to complete this project
- Tools and other construction equipment as needed, including crane services - Removal of the existing diffusers from each basin:
o The city is responsible for draining and power washing the tank floor prior to arrival - Provide crates and spacers required to ship diffusers from the Simi Valley WWTP to the rebuild shop in Escondido, CA
- Provide labor and delivery required to deliver the crates to the rebuild shop in Escondido, CA
ITEMS NOT INCLUDED:
- Any costs associated with the diffuser rebuild kits
- Any cost associated with air piping repairs
- Any costs associated with diffuser anchor system repairs - Any other work not specifically mentioned in the above scope of work
ITEM IV: INSTALLATION SERVICES – (Per Basin, West Basins Only)
- Provide labor (at local prevailing wage rate) and equipment necessary to install the rebuilt diffusers in each basin
- Provide labor required to perform startup and testing for the rebuilt diffusers - All labor, at the local prevailing wage rate, confined space entry, equipment, crane services and travel expensed required to complete the outlined scope of work - All work is covered under the contractor’s general liability and worker’s compensation policies - Ninety (90) day labor warranty
ITEMS NOT INCLUDED:
- Any costs associated with the diffuser rebuild kits
- Any cost associated with air piping repairs
- Any costs associated with diffuser anchor system repairs - Any other work not specifically mentioned in the above scope of work
ITEM EQUIPMENT ESTIMATED
SHIP DATE PRICE
I
Seven Hundred Twenty-Four (724) T4.0-15 Replacement
Membrane Kits* AND One Hundred-Sixty (160) T3.5-18
Replacement Membrane Kits*
For the West Process Basins
12-14 Weeks $348,257.00
II, III & IV Removal, Rebuild and Installation Services for Each West Basin, as Described Above N/A $143,621.00
Per Basin
*Quantities to be verified by owner
18 PRICING TERMS
All prices quoted are in US Dollars. After expiration of the pricing effective period, prices will be subject to review and adjustment. Prices quoted are FOB point of shipment, with freight included to an accessible point nearest the jobsite. Performance and payment security, including but not limited to bonds, letters of credit, or bank guarantees, are not included, but can be provided if purchased for an additional cost. Federal, state or local sales, use or other taxes are not included in the sales price.
PRICE ESCALATION
The prices submitted are based upon Purchaser’s acceptance of this proposal by December 28, 2023, not to exceed 30 days from the date of this proposal.
If a binding purchase order is not received by Ovivo prior to the above referenced date, prices and shipping dates are subject to review and adjustment by Ovivo.
Additionally, due to the unpredictability of material and labor prices and availability, including but not limited to recent sharp increases in carbon steel, stainless steel, aluminum, other metal prices, electrical components, coatings, FRP, shipping, and labor prices in the North American and worldwide markets (the “Labor and Material Price(s)”), Ovivo, shall not assume responsibility for such possible escalations and impacts to schedule beyond the validity date of its proposal or between the date of the executed Contract and the procurement of such labor and material.
Ovivo may increase the price of its proposal or require additional payment in the form of a change order due to any Labor and Material Price increase (a) that exceeds 5% per annum of the price of the specific labor or material in place on the date of Ovivo ’s proposal or (b) when product fabrication utilizing labor or materials does not commence until more than 6 months after the purchase order date, due primarily to actions of parties other than Ovivo. Furthermore, Ovivo is entitled to adjust its delivery date to account for such delay.
Any Labor and Material Price increase shall be based on an industry-standard pricing measure or index for that particular labor or material that accurately represents the market increase or, at Ovivo’s reasonable discretion, actual increases incurred by Ovivo. The resulting cost and schedule impact shall be disclosed to the Buyer prior to fabrication.
Notwithstanding the above, should requested shipment dates be extended primarily due to actions of parties other than by Ovivo or its suppliers, Ovivo reserves the right to charge 1.5% per month of the Contract Price for each month or partial month of delay, unless said delay is agreed to in writing by all affected parties.
Any additional duties and tariffs invoked after the date of its proposal will be added to the total proposed price.
GENERAL NOTES
The dates of drawing submission and shipment of the Products represents Ovivo's best estimate, but is not guaranteed, and Ovivo shall not be liable for any damages due to late delivery, including 19 but not limited to liquidated damages. The Products shall be delivered to the delivery point or points in accordance with the delivery terms stated in this proposal. If such delivery is prevented or postponed by reason of Force Majeure, as defined in Oviv o’s standard terms and conditions of sale, Ovivo shall be entitled at its option to tender delivery to Purchaser at the point or points of manufacture, and in default of Purchaser’s acceptance of delivery, to cause the Products to be stored at such a point or points of manufacture at Purchaser's expense. Such tender, if accepted, or such storage, shall constitute delivery for all purposes of this proposal. If shipment is postponed at request of Purchaser, or due to delay in receipt of shipping instructions, payment of the purchase price shall be due on notice from Ovivo that the Products are ready for shipment. Handling, moving, storage, insurance and other charges thereafter incurred by Ovivo with respec t to the Products shall be for the account of Purchaser and shall be paid by Purchaser when invoiced.
This equipment is being provided to replace existing equipment, as described, and will be covered by our standard mechanical warranty. Please note that unless directly stated otherwise, Ovivo is not providing any sort of guarantee or warranty regarding process or performance as part of this proposal.
As an equipment supplier, Ovivo’s scope of responsibility is limited to the equipment that it supplies and its ability to meet the agreed upon project specifications. Unless expressly stated in its proposal document, Ovivo is not responsible for a treatment pla nt’s process performance, engineering decisions in relation to the plant’s construction or operation nor the appropriateness or compatibility of Ovivo’s equipment within such plant.
DELIVERY
Ovivo intends to ship all Products as indicated above after receipt of approved purchase order and approved submittal drawings from Purchaser, if applicable. However, the date of shipment of the Products represent Ovivo's best estimate, but is not guaranteed, and Ovivo shall not be liable for any damages due to late delivery, including but not limited to liquidated damages. The Products shall be delivered to th e delivery point or points in accordance with the delivery terms stated in this proposal. If su ch delivery is prevented or postponed by reason of Force Majeure, as defined in Ovivo’s standard terms and conditions of sale, Ovivo shall be entitled at its option to tender delivery to Purchaser at the point or points of manufacture, and in default of Purchaser’s acceptance of delivery, to cause the Products to be stored at such a point or points of manufacture at Purchaser's expense. Such tender, if accepted, or such storage, shall constitute delivery for all purposes of this proposal. If shipment is po stponed at request of Purchaser, or due to delay in receipt of shipping instructions, payment of the purchase price shall be due on notice from Ovivo that the Products are ready for shipment. Handling, moving, storage, insurance and other charges thereafter incurred by Ovivo with respect to the Products shall be for the account of Purchaser and shall be paid by Purchaser when invoiced.
PAYMENT TERMS
Payment terms are: One hundred percent (100%) payment due within thirty (30) days after Purchaser’s receipt of invoice. Invoices will be submitted after all materials have been received at the job site, not to exceed 30 days from delivery. Credit is subject to acceptance by the Ovivo Credit Department.
20 Purchaser shall remit payment for proper invoices received from Ovivo in accordance with the payment terms stated above even if the Purchaser has not been paid by the Purchaser’s customer (the “Owner”) if Purchaser is not the end-user of the Products. Payments are due within thirty (30) days after Purchaser’s receipt of invoice. Overdue and unpaid invoices are subject to a service charge of 2% per month until paid.
If Purchaser requests or causes cancellation, suspension or delay of Ovivo’s work, Purchaser shall accept transfer of title and pay Ovivo all appropriate charges incurred up to date of such event plus Ovivo’s overhead and reasonable profit. Additionally, all charges related to and risks incidental to storage, disposition and/or resumption of work shall be borne solely by Purchaser.
Full payment for all work shall be due and payable thirty (30) days from the date work is placed into storage.
TAXES
Federal, State, or local sales, use or other taxes are not included in the sales price. Such taxes, if applicable, shall be for Purchaser's account.
BACKCHARGES
In no event shall Purchaser/Owner do or cause to be done any work, purchase any services or material or incur any expense for the account of Ovivo, nor shall Ovivo be responsible for such work or expenses, until after Purchaser/Owner has provided Ovivo’s PROJECT MANAGER full details (including estimate of material cost and amount and rate of labor required) of the work, services, material or expenses, and Ovivo has approved the same in writing. Ovivo will not accept Products returned by Purchaser/Owner unl ess Ovivo has previously accepted the return in writing and provided Purchaser/Owner with shipping instructions.
**PURCHASE ORDER SUBMISSION**
In an effort to ensure all purchase orders are processed timely and efficiently, please submit all purchase order documentation to the following department and address:
Ovivo USA, LLC
Attn: Karen Burns
4246 Riverboat Road, Suite 300
Salt Lake City, Utah 84123-2583
Tel. #: 801-931-3027
[email protected]
ADDITIONAL FIELD SERVICE
When included and noted in the Product pricing of each proposal item, Ovivo will supply the service of a competent field representative to inspect the completed installation and adjustment of equipment, supervise initial operation, and instruct Owner's personnel in the operation and maintenance of each proposal item for the number of eight (8) hour days. Notwithstanding Ovivo’s performance of the above- referenced services, Ovivo shall not be held liable for any faulty workmanship or other defects in the Products’ installation, or for other goods and/or services, performed by third parties unless such goods and/or services are expressly included under Ovivo’s scope of work. 21 If additional service is required over and above the Field Services described above, it will be furnished to the Purchaser and billed to him at the current rate for each additional day required, plus travel and lodging expenses incurred by the service personnel during the additional service days.
It shall be the Purchaser's responsibility to provide for all necessary lubrication of all equipment prior to placing equipment in operation. All equipment must be in operating condition and ready for the Field Service Engineer when called to the project location. Should the Contractor not be ready when the Field Service Engineer is requested or if additional service is requested, the Ovivo current service rates will apply for each additional day required, plus travel and lodging expenses incurred by the service personnel during the additional service days.
SURFACE PREPARATION AND PAINTING GENERAL INFORMATION
If painting the Products is included under Ovivo’s scope of work, such Products shall be painted in accordance with Ovivo’s standard practice. Shop primer paint is intended to serve only as minimal protective finish. Ovivo will not be responsible for condition of primed or finished painted surfaces after equipment leaves its shops. Purchasers are invited to inspect painting in our shops for proper preparation and application prior to shipment. Ovivo assumes no responsibility for field service preparation or touch -up of shipping damage to paint. Painting of fasteners and other touch -up to painted surfaces will be by Purchaser's painting contractor after mechanism erection. Clarifier motors, gear motors and center drives shall be cleaned and painted with manufacturer's standard primer paint only. It is our intention to ship major steel components as soon as fabricated, often before drives, motors and other manufactured components. Unless you can insure that shop primed steel shall be field painted within thirty (30) days after arrival at the jobsite, we encourage you to purchase these components in the bare metal (no surface prep or primer) condition. Ovivo cannot accept responsibility for rusting or deterioration of shop applied prime coatings on delivered equipment if the primed surfaces have not been field painted within thirty (30) days of arrival at the jobsite using manufacturers' standard primers. Other primers may have less durability.
GENERAL ITEMS NOT INCLUDED
Unless specifically and expressly included above, prices quoted by Ovivo do not include unloading, hauling, erection, installation, piping, valves, fittings, stairways, ladders, walkways, grating, wall spools, concrete, grout, sealant, dissimilar metal pro tection, oakum, mastic, field painting, oil or grease, electrical controls, wiring, mounting hardware, welding, weld rod, shims, leveling plates, protection against corrosion due to unprotected storage, special engineering, or overall plant or system operating instructions or any other products or services.
Performance and payment security, including but not limited to bonds, letters of credit, or bank guarantees, are not included, but can be provided if purchased for an additional cost.
MANUALS
The content of any and all installation, operation and maintenance or other manuals or documents pertaining to the Products are copyrighted and shall not be modified without the express prior written consent of Ovivo. Ovivo disclaims any liability for claims resulting from unauthorized modifications to any such manuals or other documents provided by Ovivo in connection with the Project. 22 WARRANTY AND CONDITIONS
Ovivo standard Terms and Conditions of Sale is attached and made an essential part of this proposal. These terms and conditions are an integral part of Ovivo’s offer of Products and related services and replace and supersede any terms and conditions or warranty included in Purchaser or Owner requests for quotation or specifications and cannot be changed without written approval from an authorized representative of Ovivo.
PERFORMANCE WARRANTY DISCLAIMER
The performance of the Products is dependent upon many factors, including, but not limited to, the influent or feed quality and quantity, additives required, time, temperature, rates of change, sizing criteria used, operating conditions, etc. Therefore, Ovivo cannot assume any liability or responsibility for performance or process results that Purchaser is expecting or has predicted. No verbal or written information or advice given by any personnel of the Ovivo shall create a warranty or in any way increase the scope of the warranties. THE PARTIES AGREE THAT, OTHER THAN ITS MECHANICAL
WARRANTY SET FORTH IN THIS PROPOSAL, OR ANY PE RFORMANCE WARRANTY SET FORTH ON OVIVO’S STANDARD ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY PROCESS OR
PERFORMANCE RELATED WARRANTIES OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE
AND MERCHANTABILITY, WHETHER WRITTEN, ORAL OR STATUTORY, ARE EXCLUDED TO THE FULLEST EXTENT PERMISSIBLE BY LAW.
GENERAL NOTES
The Infrastructure Investment and Jobs Act signed into law on November 15, 2021, includes substantive changes to Buy America requirements compared to those specified in the preceding American Iron and Steel Act. While Ovivo fabricates and procures the vast majority of steel domestically for our equipment for the United States market, there are certain components that are either unavailable domestically or impractical to procure domestically through long -established supply chains, while meeting other project specifications, internal requirements, and project schedules. This challenge is further exacerbated by supply chain and labor shortages in pandemic and post pandemic times. As with previous legislation, we are awaiting any additional guidance for the U S Environmental Protection Agency or other Agencies for further clarification relating to current Buy America requirements. As of now, the industry at large is unable to ascertain the parameters of the Buy America requirement. Thus, Ovivo cannot make any guarantee that its scope of supply will be in compliance with any Buy America requirements under the Infrastructure Investment and Jobs Act. Accordingly, any offer for sale, proposal, or budgetary quote/estimate submitted by or on behalf of Ovivo should not be construed as meeting such Buy America requirements unless explicitly stated otherwise.
23 TER MS AND COND ITION S OF SALE
1. ACCEPTANCE. The proposal of Ovivo USA, LLC (“SELLER”), as well as these terms and conditions of sale (collectively the “Agreement”), constitutes SELLER’s contractual offer of goods and associated services, and PURCHASER’s acceptance of this offer is expressly limited to the terms of the Agreement. The scope and terms and conditions of this Agreement represent the entire offer by SELLER and supersede all other solicitations, discussions, agreements, understandings and representations between th e parties. Any scope or terms and conditions included in PURCHASER’s acceptance/purchase order that are in addition to or different from this Agreement are hereby rejected.
2. DELIVERY. Any statements relating to the date of shipment of the Products (as defined below) represent SELLER's best estimate, but is not guaranteed, and SELLER shall not be liable for any damages due to late delivery. The Products shall be delivered to the delivery point or points in accordance with the delivery terms stated in SELLER’s proposal. If such delivery is prevented or postponed by reason of Force Majeure (as defined below), SELLER shall be entitled at its option to tender delivery to PURCHASER at the point or points of manufacture, and in default of PURCHASER’s acceptance of delivery to cause the Products to be store d at such a point or points of manufacture at PURCHASER's expense. Such tender, if accepted, or such storage, shall constitute delivery for all purposes of this agreement. If shipment is postponed at request of PURCHASER, or due to delay in receipt of shipping instructions, payment of the purchase price shall be due on notice from SELLER that the Products are ready for shipment. Handling, moving, storage, insurance and other charges thereafter incurred by SELLER with respect to the Products shall be for the account of PURCHASER and shall be paid by PURCHASER when invoiced. Delivery by SELLER of the Products shall constitute acceptance of the Products by PURCHASER, unless written notice of defect or nonconformity is received by SELLER within thirty (30) days of SELLER’s delivery of the Products.
3. TITLE AND RISK OF LOSS. SELLER shall retain the fullest right, title, and interest in the Products to the extent permitted by applicable law, including a security interest in the Products, until the full purchase price has been paid to SELLER. The gi ving and accepting of drafts, notes and/or trade acceptances to evidence the payments due shall not constitute or be construed as payment so as to pass SELLER’s interests until said drafts, notes and/or trade acceptances are paid in full. Risk of loss shall pass to PURCHASER at the delivery point.
4. PAYMENT TERMS. SELLER reserves the right to ship the Products and be paid for such on a pro rata basis, as shipped. If payments are not made by the due date, interest at a rate of two percent (2%) per month, calculated daily, shall apply from t he due date for payment. PURCHASER is liable to pay SELLER’s legal fees and all other expenses in respect of enforcing or attempting to enforce any of SELLER’s rights relating to a breach or threatened breach of the payment terms by PURCHASER. In the event o f nonpayment SELLER reserves the further right to seek compensation from any third party in possession of the Products.
5. TAXES. Unless otherwise specifically provided in SELLER’s quotation/proposal; PURCHASER shall pay and/or reimburse SELLER, in addition to the price, for all sales, use and other taxes, excises and charges which SELLER may pay or be required to pay to any governm ent directly or indirectly in connection with the production, sale, transportation, and/or use by SELLER or PURCHASER, of any of the Products or services dealt with herein (whether the same may be regarded as personal or real property).
PURCHASER agrees to pay all property and other taxes which may be levied, assessed or charged against or upon any of the Products on or after the date of actual shipment, or placing into storage for PURCHASER’s account.
6. MECHANICAL WARRANTY. Solely for the benefit of PURCHASER, SELLER warrants that new equipment and parts manufactured by it and provided to PURCHASER (collectively, “Products”) shall be free from defects in material and workmanship.
The warranty period shall be twelve (12) months from startup of the equipment not to exceed eighteen (18) months from the earliest of the notice of readiness to ship or the actual shipment. If any of SELLER’s Products fail to comply with the foregoing warr anty, SELLER shall re pair or replace free of charge to PURCHASER, EX WORKS SELLER’s FACTORIES or other location that SELLER designates, any Product or parts thereof returned to SELLER, which examination shall show to have failed under normal use and service operation by PURCHA SER within the Warranty Period; provided, that if it would be impracticable for the Product or part thereof to be returned to SELLER, SELLER will send a representative to PURCHASER’s job site to inspect the Product. I f it is determined after inspection that SELLER is liable under this warranty to repair or replace the Product or part thereof, SELLER shall bear the transportation costs of (a) returning the Product to SELLER for inspection or sending its representative to th e job site and (b) returning the re paired or replaced Products to PURCHASER; however, if it is determined after inspection that SELLER is not liable under this warranty, PURCHASER shall pay those costs. For SELLER to be liable with respect to this warranty, PURCHASER must make its claims to SELLER with respect to this warranty in writing no later than thirty (30) days after the date PURCHASER discovers the basis for its warranty claim and in no event more than thirty (30) days after the expiration of the Warranty Period. In addition to any other limitation or disclaimer with respect to this warranty, SELLER shall have no liability with respect to any of the following: (i) failure of the Products, or damages to them, due to PURCHASER’s negligence or willful misconduct, abuse or improper storage, installation, application or maintenance (as specified in any manuals or written instructions that SELLER provides to the PURCHASER); (ii) any Products that have been altered or repaired in any way without SELLER’s prior written authorization; (iii) The costs of dismantling and reinstallation of the Products; (iv) any Products damaged while in transit or otherwise by accident; (v) decomposition of Products by chemical action, erosion or corrosion or wear to Products or due to conditions of temperature, moisture and dirt; or (vi) claims with respect to parts that are consumable and normally replaced during maintenance such as filter media, filter drainage belts and the like, except where such parts are not performing to SELLER’s estimate of normal service life, in which case, SELLER shall only be liable for the pro rata cost of replacement of those parts based on SELLER’s estimate of what the remaining service life of those parts should have been; provided, that failure of those parts d id not result from an y of the matters listed in clauses (i) through (v) above. With regard to third -party parts, equipment, accessories or components not of SELLER’s design, SELLER’s liability shall be limited solely to the assignment of available third-party warranties.
THE PARTIES AGREE THAT ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES
OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, WHETHER WRITTEN, ORAL OR STATUTORY, ARE EXCLUDED TO THE FULLEST EXTENT PERMISSIBLE BY LAW. All warranties and obligations of SELLER shall terminate if PURCHASER fails to perform its obligations under this Agreement including but not limited to any failure to pay any charges due to SELLER. SELLER’s quoted price for the Products is based upon this warranty. Any increase in warranty obligation may be subject to an increase in price.
7. CONFIDENTIAL AND PROPRIETARY INFORMATION. All nonpublic or proprietary information and data furnished to PURCHASER hereunder, including but not limited to price, size, type, design and other technical or business information relat ing to the Products is the sole property of SELLER and submitted fo r PURCHASER’s own confidential use solely in connection with this Agreement and is not to be made known or available to any third party without SELLER’s prior written consent.
8. SURFACE COATING . Any Product coating provided by SELLER shall be in accordance with SELLER’s standard practice, unless otherwise agreed in writing.
9. DRAWINGS AND TECHNICAL DOCUMENTATION. When PURCHASER requests to approve drawings before commencement of manufacture, shipment may be delayed if approved drawings are not returned to SELLER within fourteen (14) days of receipt by PURCHASER of such drawings for approval. SELLER will furnish only general arrangement, general assembly, and if required, wiring diagrams, erection drawings, installation and operation -maintenance manuals for SELLER’s equipment (in English language). SELLER will supply six (6) complete sets of drawings and operating instructions. Additional sets will be paid for by PURCHASER. Electronic files, if requested from SELLER, will be provided in pdf, jpg or tif format only.
10. SET OFF. This Agreement shall be completely independent of all other contracts between the parties and all payments due to SELLER hereunder shall be paid when due and shall not be setoff or applied against any money due or claimed to be due from SELLER to PURCHASER on account of any other transaction or claim.
11. SOFTWARE. PURCHASER shall have a nonexclusive and nontransferable license to use any information processing program supplied by SELLER with the Products. PURCHASER acknowledges that such programs and the information contained therein is Confidential Information and agrees: a) not to copy or duplicate the program except for archival or security purposes; b) not to use the program on any computer other than the computer with which it is supplied; and c) to limit access to the program to those of its employees who are necessary to permit authorized use of the program. PURCHASER agrees to execute and be bound by the terms of any software license applicable to the Products supplied.
12. PATENT INDEMNITY. SELLER will defend at its own expense any suit instituted against PURCHASER based upon claims that SELLER’s Product hereunder in and of itself constitutes an infringement of any valid
apparatus claims of any United States patent issued and existing as of the date of this Agreement, if notified promptly in writing and given all information, assistance, and sole authority to defend and settle the same, and SELLER shall indemnify the PURCHASER against such claims of infringement. Furthermore, in case the use of the Products is enjoined in such suit or in case SELLER otherwise deems it advisable, SELLER shall, at its own expense and discretion, (a) procure for the PURCHASER the right to continue using the Products, (b) replace the same with non-infringing Products, (c) modify the Product so it becomes non-infringing, or (d) remove the Products and refund the purchase price less freight charges and depreciation. SELLER shall not be liable for, and PURCHASER shall indemnify SELLER for, any claim of infringement related to (a) the use of the Products for any purpose other than that for which it was furnished by SELLER, (b) compliance with equipment designs not furnished by SELLER or (c) use of the Products in combination with any other equipment. The foregoing states the sole liability of SELLER for patent infringement with respect to the Products
13. GENERAL INDEMNITY. Subject to the limitations of liabilities of the parties set forth in this Agreement, each party shall protect and indemnify the other party, its parent and their respective officers, directors, employees and agents, from and against all claims, demands and causes of action asserted by, or in favor of, any entity to the extent of the indemnifying party’s negligence or willful misconduct in connection with the performance of this agreement.
14. DEFAULT, TERMINATION. In the event that PURCHASER becomes insolvent, commits an act of bankruptcy or defaults in the performance of any term or condition of this Agreement, the entire unpaid portion of the purchase price shall, without notice or demand, become immediately due and payable. SELLER at its option, without notice or demand, shall be entitled to sue for said balance and for reasonable legal fees, plus out-of-pocket expenses and interest; and/or to enter any place where the Products are located and to take immediate possession of and remove the Products, with or without legal process; and/or retain all payments made as compensation for the use of the Products: and/or resell the Products, without notice or demand, for and on behalf of the PURCHASER, and to apply the net proceeds from such sale (after deduction from the sale price of all expenses of such sale and all expenses of retaking possession, repairs necessary to put the Products in saleable condition, storage charges, taxes, liens, collection and legal fees and all other expenses in connection therewith) to the balance then due to SELLER for the Products and to receive from the PURCHASER the deficiency between such net proceeds of sale and such balance. PURCHASER hereby waives all trespass, damage and claims resulting from any such entry, repossession, removal, retention, repair, alteration and sale. The remedies provided in this paragraph are in addition to and not limitations of any other rights of SELLER.
15. CANCELLATION. PURCHASER may terminate this Agreement for convenience upon giving SELLER thirty (30) days prior written notice of such fact and paying SELLER for all costs and expenses (including overhead) incurred by it in performing its work and closing out the same plus a reasonable profit thereon. All such costs and expenses shall be paid to SELLER within ten (10) days of the termination of the Agreement, or be subject to an additional late payment penalty of five percent (5%) of the total amount of costs and expenses owed.
16. REMEDIES. The rights and remedies of the PURCHASER in connection with the goods and services provided by SELLER hereunder are exclusive and limited to the rights and remedies expressly stated in this Agreement.
17. INSPECTION. PURCHASER is entitled to make reasonable inspection of Products at SELLER’s facility. SELLER reserves the right to determine the reasonableness of the request and to select an appropriate time for such inspection. All costs of inspections not expressly included as an itemized part of the quoted price of the Products in this Agreement shall be paid by PURCHASER.
18. WAIVER. Any failure by SELLER to enforce PURCHASER’s strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
19. COMPLIANCE WITH LAWS. If applicable laws, ordinances, regulations or conditions require anything different from, or in addition to that called for by this Agreement, SELLER will satisfy such requirements at PURCHASER’s written request and expense.
20. FORCE MAJEURE. If SELLER is rendered unable, wholly or in material part, directly or indirectly, by reason of Force Majeure, to carry out any of its obligations hereunder, then on SELLER’s notice in writing to PURCHASER within a reasonable time after the occurrence of the cause relied upon, such obligations shall be suspended. “Force Majeure” shall include, but not be limited to, acts of God, epidemics and pandemics, acts of or delays caused by governmental authorities, changes in laws and regulations, strikes, civil disobedience or unrest, lightning, fire, flood, washout, storm, communication lines failure, delays of the PURCHASER or PURCHASER’s subcontractors, breakage or accident to equipment or machinery, wars, police actions, terrorism, embargos, and any other causes that are not reasonably within the control of the SELLER. If the delay is the result of PURCHASER’s action or inaction, then in addition to an adjustment in time, SELLER shall be entitled to reimbursement of costs incurred to maintain its schedule. For the avoidance of doubt, if the cause relied upon has commenced prior to the Parties entered into a contracting relationship, it shall not render the cause void and/or not capable of being included within the definitions of Force Majeure, as listed within this Article 20.
21. INDEPENDENT CONTRACTOR. It is expressly understood that SELLER is an independent contractor, and that neither SELLER nor its principals, partners, parents, subsidiaries, affiliates, employees or subcontractors are servants, agents, partners, joint ventures or employees of PURCHASER in any way whatsoever.
22. SEVERABILITY. Should any portion of this Agreement, be held to be invalid or unenforceable under applicable law then the validity of the remaining portions thereof shall not be affected by such invalidity or unenforceability and shall remain in full force and effect. Furthermore, any invalid or unenforceable provision shall be modified accordingly within the confines of applicable law, giving maximum permissible effect to the parties’ intentions expressed herein.
23. CHOICE OF LAW, CHOICE OF VENUE. This Agreement shall be governed and construed in accordance with the laws of the State of Utah, without regard to its rules regarding conflicts or choice of law. The parties submit to the exclusive jurisdiction and venue of the state and federal courts located in Salt Lake City, Utah.
24. ASSIGNMENT. PURCHASER shall not assign or transfer this Agreement without the prior written consent of SELLER. Any attempt to make such an assignment or transfer shall be null and void. SELLER shall have the authority to assign, or otherwise transfer, its rights and obligations in connection with this Agreement, in whole or in part, upon prior written notice to PURCHASER.
25. LIMITATION ON LIABILITY. To the extent permissible by law, SELLER shall HAVE NO FURTHER LIABILITY IN CONNECTION WITH THIS AGREEMENT in excess of the amount paid by purchaser for the products giving rise to such liability. Notwithstanding any liabilities or responsibilities assumed by SELLER hereunder, SELLER shall in no event be responsible to PURCHASER or any third party, whether arising under contract, tort (including negligence), strict liability, or otherwise, for loss of anticipated profits, loss by reason of plant shutdown, non-operation or increased expense of operation, loss of data, service interruptions, cost of purchased or replacement power, cost of money, loss of use of capital or revenue or any other indirect, incidental, special, punitive, exemplary, or consequential loss or damage, whether arising from defects, delay, or from any other cause whatsoever.
26. PRIVACY AND DATA PROTECTION. Seller has put in place rigorous safeguards and procedures regarding privacy and data protection, notably the Ovivo Privacy Policy (ovivowater.com/privacy-policy), and requires that Purchaser adhere to its data protection principles to the extent applicable to Purchaser.
27. DATA COLLECTION. PURCHASER consents to the collection of the Product’s operational data and to the use of such data for the purpose of improving the Products and other purposes stated herein. PURCHASER further agrees that such data collection does not constitute a performance monitoring service or duty by SELLER.
28. INSURANCE. SELLER shall maintain that its current levels of insurance for the duration of the Project, as set forth in its standard certificate of insurance, available upon request.
29. BONDS. If PURCHASER deems it necessary, and within ten (10) days of PURCHASER’s request, SELLER shall provide one or more Bonds in favor of PURCHASER, at PURCHASER’s expense, by an institution, and in a form, approved in advance by SELLER.
30. PERMITS. PURCHASER shall be solely responsible to obtain and maintain in force all necessary permits with respect to any products to be provided by SELLER hereunder and any intended use by PURCHASER.
REVISED – March 2020
24 NORTH AMERICAN
FIELD SERVICE RATE SHEET
Effective January 2022
Standard (Travel) Daily Rate (8 hour day) $ 1,200.00 Hourly Rate (4 hour minimum) $ 150.00 Standard (Labor) Daily Rate (8 hour day) $ 1,200.00 Hourly Rate (4 hour minimum) $ 150.00
Saturday Daily Rate (8 hour day) $ 1,800.00 Hourly Rate (4 hour minimum) $ 225.00 Sundays/Holidays * Daily Rate (8 hour day) $ 2,400.00 Hourly Rate (4 hour minimum) $ 300.00 Overtime ** Hourly Rate - Standard Day $ 225.00 Hourly Rate - Weekends & Holidays $ 300.00
* Sunday and Holidays requests will be billed at the double time rate ** For all hours worked over eight (8) hours per standard day and Saturdays
UNLESS OTHERWISE ARRANGED; EXPENSES ARE CHARGED AT ACTUAL COST PLUS 10%
Please Note:
• All of the rates provided are portal to portal. In addition, travel and living expenses will be invoiced at actual cost plus 10% and documentation will be provided for these expenses .
Travel/Labor on Saturday and all overtime, will be billed at the overtime rate. Travel/Labor on Sundays or Holidays, will be billed at the double-time rate. If a fixed Per Diem rate is required, it will be charged at $250. 00 per day (lodging and meals) with the exception of the east coast where the price will be $300.00.
• Use of Ovivo USA Fleet vehicles for travel will be charged at the rate of $0.625 per mile.
25 EXHIBIT B
TO MAINTENANCE AGREEMENT BETWEEN
CITY OF SIMI VALLEY, OVIVO USA, AND COOMBS SERVICE GROUP
Limitation of Liability and Consequential Damage Disclaimer
NOTWITHSTANDING ANY LIABILITIES OR RESPONSIBILITIES ASSUMED BY CONTRACTOR HEREUNDER,
CONTRACTOR SHALL IN NO EVENT BE RESPONSIBLE TO CITY OR ANY THIRD PARTY, WHETHER ARISING UNDER
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR LOSS OF ANTICIPATED
PROFITS, LOSS BY REASON OF PLANT SHUTDOWN, NON-OPERATION OR INCREASED EXPENSE OF OPERATION,
LOSS OF DATA, SERVICE INTERRUPTIONS, COST OF PURCHASED OR REPLACEMENT POWER, COST OF MONEY,
LOSS OF USE OF CAPITAL OR REVENUE OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY,
OR CONSEQUENTIAL LOSS OR DAMAGE, WHETHER ARISING FROM DEFECTS, DELAY, OR FROM ANY OTHER CAUSE WHATSOEVER.
THESE LIMITS SHALL NOT APPLY TO THIRD PARTY CLAIMS BASED ON INJURY, DEATH, OR PROPERTY DAMAGE.
FOR THE PURPOSE OF THIS TERM, THE EQUIPMENT PROVIDED IN ACCORDANCE WITH THE REQUIREMENTS OF
THIS PROJECT SHALL NOT BE CONSIDERED PROPERTY AND SHALL INSTEAD BE COVERED UNDER THE TERMS OF THE WARRANTY HEREIN. THESE LIMITS SHALL NOT APPLY TO CLAIMS WHICH ARE BASED ON THE WILLFUL MISCONDUCT, GROSS NEGLIGENCE, OR FRAUD OF THE CONTRACTOR.
Liquidated Damages
Except in cases of Force Majeure, Contractor agrees to pay City, as liquidated damages, $ 250 per day for every working day that elapses after the guaranteed delivery date without delivery of its equipment. Contractor is not liable for paying liquidated damages for Owner/ City-caused delays such as late drawing approval, inspection delays, scope changes etc.
Warranty
Contractor warrants equipment and parts manufactured by it and provided to City (collectively, “Products”) are free from defects in material and workmanship. The warranty period is 12 months from startup of the equipment not to exceed 18 months from the earliest of the notice of readiness to ship or the actual shipment.
If it is determined after inspection that Contractor is liable under this warranty to repair or replace the Product or part thereof, Contractor bears the transportation costs of (a) returning the Product to Contractor for inspection or sending its representative to the job site and (b) returning the repaired or replaced Products to City; however, if it is determined after inspection that Contractor is not liable under this warranty, City will pay those costs.
For Contractor to be liable with respect to this warranty, City must make its claims to Contractor with respect to this warranty in writing no later than six months after the date City discovers the basis for its warranty claim and in no event more than 12 months after the expiration of the Warranty Period. In addition to any other limitation or disclaimer with respect to this warranty, Contractor has no liability with respect to any of the following: (i) failure of the Products, or damages to them, due to City’s negligence or willful misconduct, abuse or improper storage, installation, application or maintenance (as specified in any manuals or written instructions that Contractor provides to the City); (ii) any Products that have been altered or repaired in any way without Contractor’s prior written authorization; (iii) The costs of dismantling and reinstallation of the Products; (iv) any Products damaged while in transit or otherwise by accident; (v) decomposition of Products by chemical action, erosion or corrosion or wear to Products or due to conditions of temperature, moisture and dirt; or (vi) claims with respect to parts that are consumable and normally replaced during maintenance, except where such parts 26 are not performing to Contractor’s estimate of normal service life, in which case, Contractor is only liable for the pro rata cost of replacement of those parts based on Contractor’s estimate of what the remaining service life of those parts should have been; provided, that failure of those parts did not result from any of the matters listed in clauses (i) through (v) above.
With regard to third-party parts, equipment, accessories or components not of Contractor’s design, Contractor’s liability is limited solely to the assignment of available third-party warranties. THE PARTIES AGREE THAT ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY PROCESS OR PERFORMANCE WARRANTIES OR
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, WHETHER WRITTEN, ORAL OR STATUTORY, ARE EXCLUDED TO THE FULLEST EXTENT PERMISSIBLE BY LAW. All warranties and obligations of Contractor terminates if City fails to perform its obligations under this Contract including, without limitation, any failure to pay any charges due to Contractor.
The performance of the Products is dependent upon many factors, including the influent or feed quality and quantity, additives required, time, temperature, rates of change, sizing criteria used, operating conditions, etc.
Therefore, Contractor cannot assume any liability or responsibility for performance results that City is expecting or has predicted. No verbal or written information or advice given by any personnel of the Contractor creates a warranty or in any way increase the scope of the warranties.
Expertise/Scope
City warrants that all information furnished to the Contractor in connection with this contract (including but not limited to site conditions, specifications or other technical information) is accurate and complete, and the Contractor 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 Contract.
Bonds
If Contractor is required to provide a Bond, in no event is Contractor be obligated to provide a Bond for which the value exceeds the Contract price, nor a duration which exceeds the first 24 months of the warranty period.
Risk
Contractor is liable for risk until delivery. City is responsible for risk during unloading equipment from transport, and for risk thereafter.
Price Escalation
Any labor, material and transportation/shipping prices are subject to increase in the event any of the following milestones are subject to delay or extension.
(a) If City does not issue submittal approval and release for fabrication all equipment within 4 weeks from City receiving submittals from Contractor. Contractor will only release engineering submittals and materials/labor for fabrication with a separate Contract.
(b) If City is not ready to receive the equipment within 28 weeks from release of fabrication by City, then City must provide storage in accordance with Contractor’s instructions for storage of equipment. All costs to 27 consolidate, store, and maintain equipment during storage will be borne solely by City. Contractor may require City to buy an extended warranty as a result of this storage requirement.
Price increases must be paid by City and be based on an industry-standard pricing measure or index for that particular labor, material, or transportation/shipping that accurately represents the market increase or, at Contractor’s reasonable discretion, actual increases incurred by Contractor. The resulting cost and schedule impact shall be disclosed to the City prior to fabrication.
28 Ovivo USA, LLC
4246 Riverboat Road, Suite 300
Salt Lake City, Utah
84123
USA
Telephone: 801.931.3000
Facsimile: 801.931.3080
www.ovivowater.com
November 29, 2023
City of Simi Valley
600 West Los Angeles Avenue
Simi Valley, CA 93065
To whom it may concern:
Please be advised OVIVO USA, LLC (Formerly known as Eimco Water Technologies – EWT) is the exclusive distributor for the marketing, sales, aftermarket sales and service of all AEROSTRIP® products in the United States. In addition, Ovivo has also dedicated Coombs Service Group of Escondido, CA. as the only factory authorized and approved rebuild facility for the rebuilding procedure. Ovivo has provided Coombs Service Group with proprietary training, specialized tooling, precise reskinning procedures, testing processes and appropriate use of the required chemicals for this comprehensive refurbishment procedure.
Turnkey projects performed by Coombs Service and Ovivo USA carry our full warranty for both the materials and rebuilding labor. No other North American Aerostrip® Aeration Diffusers rebuild facility has the Ovivo authorization.
OVIVO USA, LLC’s sole designated Sales Representative for your area is:
Coombs Hopkins Company
Casey Rebmann
2011 Palomar Airport Rd, Suite 303
Carlsbad, CA 92011
Purchase orders are to be made out to: Ovivo USA, LLC and will be invoiced directly.
Respectfully,
Karen Burns
Karen Burns
Product Manager – Rebuild Group
Office Phone: (801) 931-3027
Cell: (801) 651-1142
Email: [email protected]
AEROSTRIP® is a registered trademark of Aquaconsult Anlagenbau GmbH Austria.
ATTACHMENT A
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