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HomeMy WebLinkAboutContract 46758 CITY SECRETARY CONTRACT NO, � 1 Pall Corporation Proposal ARIA TM Microfiltration System CITY OF FORT WORTH, TX MICROFILTRATION SYSTEM EXPANSION mPAL L m m v c z �a N O r September 23, 2014 OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX Pall Proposal - City of Fort Worth, TX eptember 23, 2014 2 PROPRIETARY & CONFIDENTIAL INFORMATION NOTICE This proposal document, proprietary to Pall Corporation, is furnished in confidence solely for use in evaluating the proposal and for no other direct or indirect use, and no rights are granted to the recipient for any information disclosed in this proposal. "It contains proprietary information which may be the subject of an issued patent or pending application in the United States or elsewhere." By accepting this document from Pall Corporation the recipient agrees: • to use this document and the information it contains exclusively for the above- stated purpose and to avoid use of the information for performance of the proposed work by recipient itself or any third party. • to avoid publication or other disclosure of this document or the information it contains to any third party without the prior approval of Pall Corporation. • to make only those copies needed for recipient's internal review, and • to return this document and any copies thereof when they are no longer needed for the purpose for which furnished or upon the request of Pall Corporation. Pall Proposal - City of Fort Worth, TX September 23, 2014 3 Table of Contents 1. Solution Summary 2. Pall Offering 2.1 Scope Summary 2.2 Pricing Summary 2.3 Delivery Schedule 2.4 Terms and Conditions 3. Scope of Supply 3.1 Scope Summary Table 3.2 Equipment Description 3.3 Submittal Description 3.4 Services and Labor 4. Technical Summary 4.1 Feed Fluid Characteristics 4.2 Filtrate Requirements 4.3 Design Conditions 4.4 Acceptance Criteria Attachment A - Pall Standard Terms and Conditions of Sales Covering Sales of Equipment, Systems and Made to Order Goods - The Americas Pall Proposal - City of Fort Worth, TX September 23, 2014 4 1. Solution Summary Pall Corporation is pleased to provide the following proposal for the City of Fort Worth, TX Microfiltration System Expansion project. Pall has reviewed your project needs and can meet or exceed them with the proposed Microfiltration System. This proposal is based on our multiple manifold, transverse rack design. Pall's state of the art, 12" Transverse rack provides substantial building space savings by manifolding the modules into a compact arrangement. The Pall Microza Hollow Fiber modules are the strongest in the industry, with very few fiber failures, making this arrangement attractive. The high crystalline, PVDF fibers are manufactured with the Thermally Induced Phase Separation (TIPS) method making them the most chemically and oxidant resistant membrane on the market. Pall has more than 15 years of history in using these fibers in water and waste water applications, with some of the modules still in service after more than 13 years. Pall's track record on the fewest failed fibers is second to none. Please review our offering and direct any questions you may have directly to our team. We stand ready to meet with you and the City at any time to finalize details. Pall Proposal - City of Fort Worth, TX September 23, 2014 5 2. Pall Offering 2.1 Scope Summary To meet your expansion capacity needs, Pall offers one of our 12"Transverse Racks with 102 microfiltration modules, as described in section 3 of this proposal. 2.2 Pricing Summary Total Sale Price for Scope as Described in Section 3 of Proposal: $500,000 USD Pall Standard Service Rates: $165/hour, plus travel and expenses, maximum 10-hour days. $247.50/hour for overtime/weekends/holidays. Services indicated in Section 3.4 of Proposal are included in total sale price. 2.3 Delivery Schedule Milestone Requested Schedule 45 days from First Design Submittal Acknowledgement of Purchase Order OR Receipt of Letter of Award Second Design Submittal 45 days fromdelivery of First Design Submital Release to Manufacture 2 weeks from Second Design Submittal Delivery of Equipment and Preliminary 24 weeks from Release to Manufacture O&M Manual Commissioning Complete 2 weeks from completed installation Final O&M Manual Delivered 4 weeks from completion of Commissioning 2.4 Terms & Conditions All sales made by Pall are subject to the terms contained within Section 2 and the Pall Standard Terms and Conditions of Sales Covering Sales of Equipment, Systems and Made to Order Goods - The Americas, as included as an attachment to this proposal. In the event of a conflict, the terms within Section 2 of the proposal shall take precedence. Pall Proposal - City of Fort Worth, TX September 23, 2014 6 Validity Pricing is in USD. This proposal is valid for 60 days from the date of this proposal. A fully executed contract and a notice to proceed must be provided to Pall prior to expiration of this proposal's validity. Shipping Terms FCA Pall eerdamd. Price for shipping is included in this proposal. Payment Terms Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of Seller's invoice. Buyer shall make all payments hereunder by EFT, wire transfer, or check and in US dollars. Payment for foreign billing shall be in accordance with Seller's written instructions. Payment Milestones Payments will be made per the following schedule (each a "Payment Milestone"): • 5% of the Purchase Price upon Seller being awarded project; 20% of the Purchase Price upon first submittal of drawings by Seller; • 20% of the Purchase Price upon completion of submittal drawings by Seller; 20% of the Purchase Price upon delivery of the notice to commence fabrication; 25% of the Purchase Price upon earlier of (i) date of shipment by Seller of the Goods or (ii) date of Seller's notice that the Goods are ready for shipment by Seller ("Equipment Completion"). 10% of the Purchase Price upon the earlier of (i) first usable effluent being produced by the Goods, or (ii) 30 days from shipment of the Goods. Escalation Orders received shall be subject to price adjustment in accordance with the Producer Price Index (PPI), for material and labor. Any price adjustment for the equipment shall be solely based on changes in the North American Industry Classification System (NAICS) - code 333298 - Industry: All other industrial machinery manufacturing; Product: All other industrial machinery manufacturing. The basis for determining the percentage change in NAICS shall be the annual percentage change in the cited index from the Date of the proposal through the date Pall is released to purchase materials but no greater than 5% for any 12 month period. Bonds No bonds of any type are included with this proposal. Pall Proposal — City of Fort Worth, TX September 23, 2014 7 Taxes All prices are exclusive of any applicable federal, state or local sales, use, excise or other similar taxes, including, without limitation, value added tax, goods and services tax or other similar tax or permits or license fees. All such taxes will be for Buyer's account and will be paid by Buyer to Pall upon submission of Pall's invoices. Buyer agrees to make tax accruals and payments to the tax authorities as appropriate. If Buyer is exempt from any applicable sales tax or equivalent, but fails to notify Pall of such exemption or fails to furnish its Sales Tax Exemption Number to Pall in a timely manner and the Pall is required to pay such tax, the amount of any such payment made by Pall will be reimbursed by Buyer to Pall upon submission of Pall's invoices. Pall Proposal — City of Fort Worth, TX September 23, 2014 8 3.0 Scope of Supply 3.1 Scope Summary Table Item Description By PALL By OTHERS Design, supply, and installation of all piping from the settled water supply to the intake of the feed pumps, and from the X feed strainers to the MF racks System drawing submittals X One (1) (12" Transverse) MF Valve and Module Racks with valves and instruments as shown on the attached P&ID X including Hach 660 Laser Turbidimeters for filtrate monitoring integral to each rack 102 Hollow Fiber Membrane Modules X Supply of Feed Pump and related Valves, Instruments and X Miscellaneous components EFM/CIP Waste Neutralization System Existing Master Control Panel to monitor and control Pall supplied Existing equipment Receiving, unloading and safe storage of equipment until X ready for installation Installation of all equipment X Design, and supply of anchorage for Pall supplied X Equipment Any on-site painting or touch-up painting of equipment supplied X Design, supply, and installation of all civil infrastructure inclusive of buildings, fire and safety protection, HVAC, X walkways, platforms, etc. Design, supply, and installation of interconnecting pipe, X inclusive of pipe supports and flexible connectors Design, supply, and installation of the Motor Control Center X (MCC) Design, supply, and installation of electrical wiring, conduit and other appurtenances required to provide power connections as needed from the electrical power source to X the PALL control panels, VFDs and other equipment and from the terminal boxes on the skids to the main plant panels Supply of any required chemicals X Operation & Maintenance Manuals X On-site start-up support, commissioning and Performance Testing X On-site operator training X Permitting_ ?C Pall Proposal — City of Fort Worth, TX September 23, 2014 9 3.2 Equipment Description MF Units Quantity 1 Type Transverse; HDPE piping Size 12 inch Modules per Rack 102 Module spaces per rack 132 Module Part Number UNA-620A Customer Connections ANSI Class B 150 Ib Flanges, sizes shown on P&ID in Appendix Operational Limits 0 - 40°C 3.3 Submittal Description First Design Submittal 1. P&I D 2. Membrane Filter Skid/Rack Assembly Drawing. 3. Power Single-Line Diagram/Network Diagram/System Interconnection Details Drawing. 4. CIP/EFM and Neutralization Tank Drawings 5. Major Equipment Cut Sheets (Pumps, Strainers and Compressors) 6. System Functional Description (SFD) 7. Electrical Panel Drawings 8. Instrument List 9. Equipment List 10. Valve List and Supporting Vendor Information (catalog cut sheets). Pall Proposal - City of Fort Worth, TX September 23, 2014 10 3.4 Services and Labor Commissioning This proposal includes on-site services of a Field Service Engineer for 10 days for commissioning of the system. Operator Training Training will be provided in conjunction with the start-up of the new filter skid. Performance Testing Performance Testing is not included with this proposal. If performance testing is required, Pall can provide an optional cost adder to provide performance testing support. Pall Proposal - City of Fort Worth, TX September 23, 2014 11 4.0 Technical Summary 4.1 Feed Fluid Characteristics Pall assumes that the feed water quality is unchanged from the specification. 4.2 Design Conditions Modules per Skid 102 Net Filtrate Flow 3.0 MGD Flux 65 GFD Filtrate Produced Between Backwashes(Gallons/Skid) 50,752 EFM Interval 1 day CIP Interval 30 Days 4.3 Acceptance Criteria The system shall be accepted by the end user upon completion of all of the following: 1) Completed system commissioning 2) Completion of Operator Training In the event that items 1 and 2 are incomplete 60 days after system delivery, the system shall be deemed accepted unless the delays in completion of items 1 and 2 above are solely caused by Pall Corporation or equipment that Pall has provided. Pall Proposal — City of Fort Worth, TX September 23, 2014 12 Attachment A - Pall Standard Terms and Conditions of Sales Covering Sales of Equipment, Systems and Made to Order Goods - The Americas Only Article 11 - Limited Warranty , as presented to City of Fort Worth 4/24/15, applies. Pall Proposal - City of Fort Worth, TX September 23, 2014 EDPall Corporation Standard Terms and Conditions of Sale Covering Sales of Equipment,Systems and Made to Order Goods The Americas 1. Applicability:Entire Agreement: 1.1. These terms and conditions of sale (these "Terms") are the only terms which govern the sale of the goods identified on Buyer's purchase order (the "Goods") by Seller to Buyer. By placing a purchase order, Buyer makes an offer to purchase the Goods pursuant to these Terms, including (a) a list of the Goods to be purchased; (b) the quantity of each of the Goods ordered; (c) the requested delivery date; (d) the unit Price for each of the Goods to be purchased; (e) the billing address; and (f) the delivery location (the "Basic Purchase Order Terms"), and on no other terms. 1.2. The accompanying quotation, proposal, confirmation of sale, invoice, order acknowledgment or similar document delivered by Seller to Buyer (the "Sales Confirmation"), the Basic Purchase Order Terms and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer's general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms. 1.3. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. 2. Buyer and Seller Responsibilities: 2.1. Buyer shall be responsible for correctly specifying and advising Seller of its requirements for the Goods, including, where applicable, design specifications, and is responsible for any discrepancies, errors or omissions in drawings, documentation or other information supplied in writing by it, if any, or between such documents and any of the other documents forming part of this Agreement. Buyer agrees that the design specifications and requirements described in Buyer's documents delivered to Seller correctly represent Buyer's requirements for the Goods as advised to Seller, and acknowledges that Seller's supply of the Goods will be based on such design specification and requirements. 2.2. It is Buyer's sole responsibility to ensure that its premises are safe and suitable for the installation and operation of the Goods or performance of any associated services. When requested and appropriate, and at Buyer's cost, Seller shall, prior to delivery of the Goods, inspect the relevant premises to confirm that the premises are suitable for the installation and operation of the Goods and, if Seller performs such inspection and determines that any aspect of any inspected premises is not suitable for the installation and operation of the Goods, Seller shall provide Buyer with such information in writing and such assistance as may be necessary to enable Buyer at its own cost to prepare the premises so that they are suitable for the installation and operation of the Goods. 2.3. Buyer shall allow the authorized personnel of Seller access to its premises during normal working hours for the purpose of performing its obligations under this Agreement. 2.4. If Seller is performing installation, oversight or commissioning services and, in the reasonable opinion of Seller, it is necessary to remove or disconnect any existing equipment of Buyer in order to install or commission the Goods, Seller shall give Buyer reasonable prior notice of such requirements and Buyer shall provide Seller, at Buyer's cost, with such assistance as is reasonably necessary to facilitate such removal or disconnection. ®Pall Corporation 2013 1 PACorporate LegarkFORMS\Current Forms\STANDARD T&Cs\Pall Standard Terms and Conditions of Sale-Systems- 08.06.2013.docx 2.5. Standard terms of sale include two sets of operating instructions in Seller's standard electronic format. If additional sets or alternative formats are required, they are available at an additional charge. Upon receipt of request for additional sets,a price quotation will be forwarded. 3. Delivery: 3.1 The Goods will be delivered within a reasonable time after the receipt of Buyer's purchase order, subject to availability of finished Goods. The delivery and/or shipping schedule is the best estimate possible based on conditions existing at the time of Seller's Sales Confirmation or Seller's quotation and receipt of all specifications, as applicable, and in the case of non-standard items, any such date is subject to Seller's receipt of complete information necessary for design and manufacture. Seller shall not be liable for any delays, loss or damage in transit or for any other direct, indirect, or consequential damages due to delays, including without limitation, loss of use. 3.2 Seller may, in its sole discretion, without liability or penalty, deliver partial shipments of Goods to Buyer and ship the Goods as they become available, in advance of the quoted delivery date. If the Goods are delivered in installments, then insofar as each shipment is subject to the same Agreement,the Agreement will be treated as a single contract and not severable. 3.3 Seller shall make the Goods available to Buyer at Seller's factory or designated shipment point (each, "Seller's Shipment Point") using Seller's standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within 5 days of Seller's written notice that the Goods have been delivered to the Seller's Shipment Point. 3.4 If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller's notice that the Goods have been delivered at the Seller's Shipment Point, or if Seller is unable to deliver the Goods at the Seller's Shipment Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i)title and risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses(including,without limitation,storage and insurance). 4. Shipping Terms: Unless otherwise mutually agreed to in writing by the parties, delivery shall be FCA (Seller's Shipment Point) INCOTERMS 2010. At Buyer's request, Seller will, at Buyer's risk and expense, arrange for the delivery of the Goods to Buyer's site/facility and Buyer will pay, or reimburse Seller,for all freight charges,taxes, duties, entry fees, brokers'fees, special, miscellaneous and all other ancillary charges and special packaging charges incurred. 5. Title and Risk of Loss: Title and risk of loss passes to Buyer upon the earlier of (i) delivery of the Goods at the Seller's Shipment Point or(ii) deemed delivery pursuant to clause 3.4 above. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in,to and under the Goods,wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the New York Uniform Commercial Code. 6. Inspection and Rejection of Nonconforming Goods: 6.1 Buyer shall inspect the Goods within 10 days of receipt(the "Inspection Period"). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. Such notification shall identify each and every alleged nonconformity of the Goods and describe that portion of the shipment being rejected. Seller shall then respond with instructions as to the disposition of the Goods. 6.2 If Buyer timely notifies Seller of any nonconforming Goods, Seller shall, in its sole discretion, (i) replace such nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such nonconforming Goods, together with any reasonable shipping and handling expenses ®Pall Corporation 2013 2 P:ICorporate LegalIFORMS\Current FormsISTANDARD T&Cs\Pall Standard Terns and Conditions of Sale-Systems- 08.06.2013.docx incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the nonconforming Goods to Seller's Shipment Point. If Seller exercises its option to replace nonconforming Goods, Seller shall, after receiving Buyer's shipment of nonconforming Goods, ship to Buyer, at Buyer's expense and risk of loss, the replaced Goods to the Seller's Shipment Point. 6.3 Buyer acknowledges and agrees that the remedies set forth in Section 6.2 are Buyer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 6.2, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller. 7. Services: Seller will provide such installation, oversight or commissioning services as are expressly described in the Sales Confirmation (collectively, the"Services"), during normal business hours, unless otherwise specified in the Sales Confirmation. Services requested or required by Buyer outside of these hours or in addition to the quoted or agreed upon services will be charged at Seller's then current schedule of rates, including overtime charges, if applicable, and will be in addition to the charges outlined in the Sales Confirmation. 8. Purchase Price: The price for the Goods and/or Services thereof shall be Seller's quoted price. Seller may also at any time assess a fuel or energy surcharge (in addition to the price of the Goods) (the "Purchase Price"). The Purchase Price is based on the project schedule defined in this Agreement, Sales Confirmation or applicable contract documents. Notwithstanding anything to the contrary set out herein, in the event of any delay to Seller's delivery schedule caused by Buyer or its representatives (other than for Force Majeure or delays caused by Seller), including without limitation, a suspension of work or the project, a postponement of the delivery date or failure to timely issue of a notice of commencement or similar document, then the Purchase Price shall increase by 1% for every month or partial month of such delay and this Agreement shall be construed as if the increased Purchase Price were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased Purchase Price. 9. Taxes: The Purchase Price is exclusive of any applicable federal, state or local sales, use, excise or other similar taxes, including,without limitation, value added tax, goods and services tax or other similar tax imposed by any governmental authority on any amounts payable by Buyer. All such taxes will be for Buyer's account and will be paid by Buyer to Seller upon submission of Seller's invoices. Buyer agrees to make tax accruals and payments to the tax authorities as appropriate. If Buyer is exempt from any applicable sales tax or equivalent, but fails to notify Seller of such exemption or fails to furnish its Sales Tax Exemption Number to Seller in a timely manner and Seller is required to pay such tax, the amount of any such payment made by Seller will be reimbursed by Buyer to Seller upon submission of Seller's invoices. 10. Payment: 10.1 If this Agreement provides for installment payments, payments will be made per the following schedule(each a"Payment Milestone"): a. 20% of the Purchase Price upon earlier of(i) Seller being awarded project or (ii) delivery to Seller of the Purchase Order or(iii)the Sales Confirmation. b. 30%of the Purchase Price upon first submittal of drawings by Seller. c. 40% of the Purchase Price upon earlier of(i) date of shipment by Seller of the Goods or (ii) date of Seller's notice that the Goods are ready for shipment by Seller ("Equipment Completion"). d. 10% of the Purchase Price upon the earlier of(i) first usable effluent being produced by the Goods,or(ii)30 days from shipment of the Goods. 10.2 In the event that achievement of a particular Payment Milestone is delayed or suspended due to the Buyer's convenience or other reasons for which the Buyer or its representatives is responsible, such Payment Milestone will be deemed to have occurred and Seller shall be entitled to invoice Buyer as if achievement of such Payment Milestone had been achieved. In such circumstances, Buyer must notify Seller in writing of the reasons for the delay and anticipated duration of the delay. Seller will mark the Goods (or parts thereof) as the Buyer's property and shall store the Goods(or parts thereof)in a segregated area until actual delivery. ®Pall Corporation 2013 3 PACorporate LegaRFORMS\Current Forms\STANDARD T&CMPall Standard Terms and Conditions of Sale-Systems- 08.06.2013.docx 10.3 Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of Seller's invoice. Buyer shall make all payments hereunder by EFT, wire transfer, or check and in US dollars. Payment for foreign billing shall be in accordance with Seller's written instructions. 10.4 Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, reasonable attorneys' fees. In addition to all other remedies available under these Terms or at law(which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend performance of any Purchase Order, or suspend the delivery of any Goods, if Buyer fails to pay any amounts when due hereunder and such failure continues for 5 days following written notice thereof. Additionally Seller my require payment in cash, security or other adequate assurance satisfactory to Seller when, in Seller's opinion, the financial condition of Buyer or other grounds for insecurity warrant such action. 10.5 All sales are subject to the approval of Seller's credit department. 10.6 Buyer may not withhold or setoff any amounts that may be claimed by Buyer against any amounts that are due and payable to Seller by reason of any set-off of any claim or dispute with Seller, whether relating to Seller's breach,bankruptcy or otherwise. 11. Limited Warranty: 11.1 Limited Hardware Warranty. Seller warrants to Buyer that for a period of twelve months commencing from the date of start-up or eighteen months from time of delivery from Seller,whichever is sooner,(the"Warranty Period"),that the goods manufactured by Seller,when properly installed and maintained,and operated at ratings,specifications and design conditions specified by Seller,will meet Seller's specifications for such goods and will be free from material defects in material and workmanship(this"Limited Warranty"). If the defects are of such type and nature as to be covered by this Limited Warranty,Seller shall, at its option and in its sole discretion,either: a. accept return of the defective goods and furnish a replacement goods;or b. furnish replacement parts for the defective goods;or c. repair the defective goods;or d. accept return of the defective goods and return payments made, or issue credits for,such defective goods. 11.2 Limited Module Warranty (10 YEAR: 1 YEAR ABSOLUTE AND 9 YEARS PRO-RATED) a. In addition to the foregoing,for a period of 120 months commencing from the date of the startup,or 126 months from the date of delivery from Seller(the"Module Warranty Period"),whichever is sooner, Seller warrants that the membrane modules,when properly installed, maintained, and operated at ratings,specifications,and conditions specified by the Contract documents and Seller's Operations and Maintenance Manual("O&M Manual"),will be free from defects in material and workmanship. b. Owner and Seller will work together to optimize the specific operating protocol to be used including number of racks on line,flow rates per rack,cleaning technique and cleaning set points with the goal of achieving excellent long-term performance. Any change in operational conditions, including feedwater chemistry or contaminants will require Seller's review to determine the potential impact on this warranty. c. If the membrane modules fail to perform as outlined by the Contract documents during the first 12 months of the Module Warranty Period, Seller will be given the opportunity to remedy the situation, by modifying operating and/or cleaning protocol. If Seller is not able to remedy the situation,Seller will repair or replace those modules that do not perform if they are removed from service due to poor performance. d. If the membrane modules fail to perform as outlined by the Contract documents after the first 12 months of the Module Warranty Period through the end of the Module Warranty Period, Seller will be given the opportunity to remedy the situation, by modifying operating and/or cleaning protocol. If Seller is not able to remedy the situation or repair the modules, Seller will replace those modules at the following replacement price: ®Pall Corporation 2013 4 PACorporate LegaRFORMS\Current Forms\STANDARD TBCs\Pall Standard Terms and Conditions of Sale-Systems- 08.06.2013.docx Replacement Module Price=Sellers current module price*(#of months from startup/120 months) Or Replacement Module Price=Sellers current module price*((#of months from delivery—6)/120 months)) e. Seller is committed to continuous development of its filters and filter processes. Should membrane technology improve, for example via changes in the permeability or operating flux rates of the membranes, Seller reserves the right to provide a suitable number of alternative membrane replacements during the term of our warranty and beyond. f. Buyer is required to contract Seller to perform one clean-in-place(TIP")annually to maintain this Limited Module Warranty validity. In addition, CIP's must be conducted by the Buyer at the interval and conditions stated in Seller's O&M Manual or as may be modified as stated herein this Limited Module Warranty. g. Seller's liability under this Limited Membrane Warranty is limited solely(in Seller's discretion)to replacing (FCA original shipping point), repairing or issuing credit for products that become defective during the Module Warranty Period. 11.3 Limited Warranty for Services. Seller further warrants that the services, if any,will be performed in a workmanlike manner in accordance with applicable law and industry standards by qualified personnel(this"Limited Warranty for Services"); this Limited Warranty for Services shall survive for 30 days following Seller's completion of the services(the "Service Warranty Period"). In the event of a warranty claim under this Limited Warranty for Services, Buyer shall inform Seller promptly in writing of the details of the claim within the Service Warranty Period. Seller's liability under any service warranty is limited(in Seller's sole discretion)to repeating the service that during the Service Warranty Period does not meet this Limited Warranty for Services or issuing credit for the nonconforming portions of the services. If Seller determines that any warranty claim is not, in fact, covered by the foregoing Limited Warranty for Services, Buyer shall pay Seller its then customary charges for all services performed by Seller. 11.4 Other Limits. Seller's warranty hereunder excludes,and in no event shall Seller be liable for, defects or damage arising out of or caused by: a. abuse, improper modification, improper maintenance, improper installation, or improper operation by persons other than Seller; or b. corrosion including microbial-induced corrosion, chemical attack, unless corrosive or damaging conditions were disclosed by Buyer and the contract documents require the goods to withstand such conditions; or c. use in a manner contrary to Seller's written instructions or negligence of persons other than Seller; or d. damage or adverse affects caused by processes or operational events external to Seller's supplied equipment or outside of Seller's control including hydraulic shock(water-hammer); or e. foreign debris including particulate matter not typical of the expected process fluid or feed source(s), or debris originating from components or processes not supplied by nor identified to Seller;or f. influences from catastrophic accidents including those that negatively affect the process fluid's quality, installation integrity, or site utilities. In no event shall Seller be liable for any goods repaired or altered by someone other than Seller except as authorized in writing by Seller. 11.5 Notification Buyer shall promptly notify Seller of any breach of Seller's warranties within the applicable Warranty Period and provide Seller with an opportunity to inspect and test the goods or services claimed to fail to meet the above Limited Warranties. Buyer shall provide Seller with a copy of the original invoice for the product or service, and prepay all freight charges to return any goods (or parts thereof) to Seller's factory, or other facility designated by Seller. All claims must be accompanied by full particulars, including operating conditions, if applicable. If Seller determines that any warranty claim is not, in fact, covered by the foregoing Limited Warranties, Buyer shall pay Seller its then customary charges for any additionally required service or products. ©Pall Corporation 2013 5 PACorporate Legal\FORMS\Current Forms\STANDARD T&Cs\Pall Standard Terms and Conditions of Sale-Systems- 08.06.2013.docx 11.6 _Exclusive Obligation. THIS WARRANTY IS EXCLUSIVE. THE LIMITED WARRANTY AND THE LIMITED WARRANTY FOR SERVICES ARE THE SOLE AND EXCLUSIVE OBLIGATIONS OF SELLER WITH RESPECT TO THE DEFECTIVE GOODS AND SERVICES. SELLER SHALL NOT HAVE ANY OTHER OBLIGATION WITH RESPECT TO THE GOODS,SERVICES,OR ANY PART THEREOF,WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE. THE REMEDIES SET FORTH ABOVE SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS AND SERVICES, INCLUDING WITHOUT LIMITATION ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. 11.7 Buyer Breach. In no event shall Buyer be entitled to claim under the above Limited Warranties if Buyer is in breach of its obligations, including but not limited to payment, hereunder. 12. Limitation of Liability: 12.1 IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, INCLUDING WITHOUT LIMITATION, REMANUFACTURING COSTS AND REWORK COSTS, DE-INSTALLATION OR RE- INSTALLATION COST, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (TORT, CONTRACT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND WHATEVER THE FORUM, WHETHER ARISING OUT OF OR IN CONNECTION WITH THE MANUFACTURE, PACKAGING, DELIVERY, STORAGE, USE, MISUSE OR NON-USE OF ANY OF ITS GOODS OR SERVICES OR ANY OTHER CAUSE WHATSOEVER. 12.2 IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER 12.3 The limitation of liability set forth in Section 12.2 above shall not apply to(i) liability resulting from Seller's gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller's acts or omissions. 13. Cancellation: Buyer may not cancel this Agreement after Sales Confirmation unless all the details are approved in writing by the parties, including Buyer's agreement to pay a stated amount of termination charges. Unless otherwise agreed to in writing by Seller,the termination charges shall be as follows: Termination Charae Milestone 25%of the Purchase Price after Sales Confirmation but prior to release to purchase materials 50%of the Purchase Price after release to purchase materials but prior to release for fabrication 75%of the Purchase Price after release for fabrication but prior to Equipment Completion 95%of the Purchase Price after Equipment Completion but prior to release for shipment 100%of the Purchase Price after release for shipment ®Pall Corporation 2013 6 PACorporate LegaftFORMS\Current FormsISTANDARD TBCs\Pall Standard Terms and Conditions of Sale-Systems- 08.06.2013.docx 14. Termination: In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i)fails to pay any amount when due under this Agreement and such failure continues for 10 days after Buyer's receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. 15. Changes: Seller shall not be obligated to implement any changes or variations in the scope of work described in Seller's Documentation unless Buyer and Seller agree in writing to the details of the change and any resulting price, schedule or other contractual modifications. This includes any changes or variations necessitated by a change in applicable law occurring after the effective date of this Agreement including these Terms. 16. Intellectual Property Infringement: Buyer has no authorization to make any representation, statement or warranty on behalf of Seller relating to any Goods sold hereunder. Buyer shall indemnify and defend, at its own expense, Seller against claims or liability for U.S. or applicable foreign patent, copyright, trademark or other intellectual property infringement and for product liability arising from the preparation or manufacture of the Goods according to Buyer's specifications or instructions, or from Buyer's unauthorized or improper use of the Goods or part thereof, or from any changes or alterations to the Goods or part thereof made by persons other than Seller, or from the use of the Goods in combination with products not furnished by Seller. 17. Ownership of Materials: All ideas, concepts, whether patentable or not, devices, inventions, copyrights, improvements or discoveries, designs (including drawings, plans and specifications), estimates, prices, notes, electronic data and other documents or information that are: a) created, prepared, reduced to practice or disclosed by Seller; and/or b) based upon, derived from, or utilize the Confidential Information of Seller, and all related intellectual property rights, shall at all times remain Seller's property. No right, title or interest in any patents, trademarks, trade names or trade secrets, or in any pattern, drawing or design for any of the Goods or in any other Seller intellectual property right, shall pass or transfer to the Buyer and Seller shall at all times retain ownership rights therein. Notwithstanding the foregoing, Seller grants Buyer a non-exclusive, non-transferable license to use any such material to the extent necessary and solely for Buyer's use of the Goods purchased by Buyer from Seller hereunder. Buyer shall not disclose any such material to third parties without Seller's prior written consent. As a condition to Seller's delivery to Buyer of the Goods, Buyer shall not, directly or indirectly, and shall cause its employees, agents and representatives not to: (i) alter or modify the Goods, (ii) disassemble, decompile or otherwise reverse engineer or analyze the Goods, (iii) remove any product identification or proprietary rights notices, (iv) modify or create derivative works, (v) otherwise take any action contrary to Seller's rights in the technology and intellectual property relating to the Goods, (vi) assist or ask others to do any of the foregoing. 18. Export: As a condition to Seller's delivery to Buyer of the Goods, Buyer agrees, with respect to the exportation or resale of the Goods by Buyer, to comply with all requirements of the International Traffic in Arms Regulations ("ITAR") and the Export Administration Regulations ("EAR"), regulations issued thereunder and any subsequent amendments thereto, and all other national, including, but not limited to, European, government laws and regulations on export controls, including laws and regulations pertaining to export licenses, restrictions on export to embargoed countries and restrictions on sales to certain persons and/or entities. Buyer further agrees that the shipment and/or delivery of the Goods by Seller is contingent upon Seller obtaining all required export authorizations, licenses, and permits (collectively,"Authorizations")and Buyer agrees that Seller shall not be liable to Buyer for any failure or delay in the shipment or delivery of the Goods if such Authorizations are delayed, conditioned, denied or not issued by the regulatory or governmental agencies having jurisdiction over such Authorizations. 19. Confidentiality: If Seller discloses or grants Buyer access to any research, development, technical, economic, or other business information or "know-how" of a confidential nature, whether reduced to writing or not, Buyer will not use or disclose any such information to any other person or company at any time, without Seller's prior written consent. In the event that Buyer and Seller have entered into a separate confidentiality agreement (the "Confidentiality Agreement"), the terms and conditions of the Confidentiality Agreement shall take precedence over the terms of this paragraph. ®Pall Corporation 2013 7 PACorporate Legar%FORMS\Current Forms\STANDARD T&Cs\Pall Standard Terms and Conditions of Sale-Systems- 08.06.2013.docx 20. No Waiver: No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. Seller's failure to exercise, or to delay in exercising, any right, remedy, power or privilege arising from this Agreement, or to insist on Buyer's strict performance of these Terms shall not operate as or be construed as a waiver by Seller. 21. Force Majeure: Whenever performance by Seller of any of its obligations hereunder, is substantially prevented by reason of any act of God, strike, lock out, or other industrial or transportation disturbance, fire, lack of materials, law, regulation or ordinance, war or war conditions, or by reason of any other matter beyond its reasonable control,then such performance shall be excused, and deemed suspended during the continuation of such event and for a reasonable time thereafter, delayed, or adjusted accordingly. 22. No Third-Party Beneficiaries: This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms. 23. Relationship of the Parties: The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. 24. Validity: If any provision of this Agreement, the Sales Confirmation or these Terms is held by any competent authority to be invalid or unenforceable in whole or in any part, such provision shall be ineffective, but only to the extent of such invalidity or unenforceability,without invalidating the remainder of such provision nor the other provisions,which shall not be affected. 25. Governing Law: This Agreement, and all the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement or the transaction(s) contemplated by it, shall be governed by the laws of the State of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York. The parties expressly exclude the application of the United Nations Conventions on Contracts for the International Sale of Goods, and further exclude the applications of the International Sale of Goods Contracts Convention Act, S.C. 1990-1991,C.13,and the International Sale of Goods Act, R.S.O. 1990, C.1. 10,as amended. 26. Submission to Jurisdiction: Buyer and Seller hereby unconditionally and irrevocably submit to (and waive any objection on the grounds of inconvenient forum or otherwise) the jurisdiction of the Supreme Court of the State of New York, County of Nassau or the United States District Court for the Southern District of New York,which courts shall have exclusive jurisdiction to adjudicate and determine any suit, action or proceeding regarding or relating to this Agreement and the purchase and supply of the Goods. A judgment, order or decision of those courts in respect of any such claim or dispute shall be conclusive and may be recognized and enforced by any courts of any state,country or other jurisdiction. 27. No Jury Trial: BUYER AND SELLER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT. 28. Survival: All payment, confidentiality and indemnity obligations, warranties, limitations of liability, product return, and ownership of materials provisions together with those sections the survival of which is necessary for the interpretation or enforcement of these Terms, shall continue in full force and effect for the duration stated in such provisions or the applicable statute of limitations. 29. Amendment and Modification: This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party. ®Pall Corporation 2013 8 PACorporate Legal\FORMS\Current Forms\STANDARD T&Cs\Pall Standard Terms and Conditions of Sale-Systems- 08.06.2013.docx CITY OF FORT WORTH,TEXAS STANDARD PURCHASING TERMS AND CONDITIONS (As mutually modified by Pall Corporation &City of Fort Worth) 1.0 DEFINITION OF BUYER The City of Fort Worth, its officers, agents, servants, authorized employees, vendors and subvendors who act on behalf of various City departments, bodies or agencies. 2.0 DEFINITION OF SELLER The consultant, contractor, supplier, vendor or other provider of goods and/or services, its officers, agents, servants, employees, vendors and subvendors who act on behalf of the entity under a contract with the City of Fort Worth. 3.0 PUBLIC INFORMATION Any information submitted to the City of Fort Worth(the"City') may be requested by a member of the public under the Texas Public Information Act. See TEX. GOVT CODE ANN. §§ 552.002, 552.128(c) (West Supp. 2006). If the City receives a request for a Seller's proprietary information, the Seller listed in the request will be notified and given an opportunity to make arguments to the Texas Attorney General's Office (the "AG") regarding reasons the Seller believes that its information may not lawfully be released. If Seller does not make arguments or the AG rejects the arguments Seller makes, Seller's information will be released without penalty to the City. 4.0 PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS No officer or employee of Buyer shall have a financial interest, direct or indirect, in any contract with Buyer or be financially interested, directly or indirectly, in the sale to Buyer of any land, materials, supplies or services, except on behalf of Buyer as an officer or employee. Any willful violation of this section shall constitute malfeasance in office, and any officer or employee found guilty thereof shall thereby forfeit his office or position. Any violation of this section with the knowledge, expressed or implied, of the person or corporation contracting with the City Council shall render the contract invalid by the City Manager or the City Council. (Chapter XXVII, Section 16, City of Fort Worth Charter) 5.0 ORDERS 5.1 No employees of the Buyer or its officers, agents, servants, vendors or subvendors who act on behalf of various City departments, bodies or agencies are authorized to place orders for goods and/or services without providing approved contract numbers, purchase order numbers, or release numbers issued by the Buyer. The only exceptions are Purchasing Card orders and emergencies pursuant to Texas Local Government Code Section 252.022(a)(1), (2), or (3). In the case of emergencies, the Buyer's Purchasing Division will place such orders. 5.2 Acceptance of an order and delivery on the part of the Seller without an approved contract number, purchase order number, or release number issued by the Buyer may result in rejection of delivery, return of goods at the Seller's cost and/or non-payment. 6.0 SELLER TO PACKAGE GOODS Seller will package goods in accordance with good commercial practice. Each shipping container, shall be clearly and permanently marked as follows: (a) Seller's name and address: (b) Consignee's name, address and purchase order or purchase change order number; (c) Container number and total number of containers, e.g., box 1 of 4 boxes; and (d) Number of the container bearing the packing slip. Seller shall bear the cost of packaging unless otherwise provided. Goods shall be suitably packed to secure lowest transportation costs and to conform to requirements of common carriers and any applicable specifications. Buyer's count or weight shall be final and conclusive on shipments not accompanied by packing lists. Page 1 of 9 7.0 SHIPMENT UNDER RESERVATION PROHIBITED Seller is not authorized to ship the goods under reservation, and no tender of a bill of lading will operate as a tender of goods. 8.0 TITLE AND RISK OF LOSS The title and risk of loss of the goods shall not pass to Buyer until Buyer actually receives and takes possession of the goods at the point or points of delivery after inspection and acceptance of the goods. 9.0 DELIVERY TERMS AND TRANSPORTATION CHARGES Freight terms shall be FCA. Destination, Freight Prepaid and Allowed, unless delivery terms are specified otherwise in Seller's bid. Buyer agrees to reimburse Seller for transportation costs in the amount specified in Seller's bid or actual costs, whichever is lower, if the quoted delivery terms do not include transportation costs; provided, Buyer shall have the right to designate what method of transportation shall be used to ship the goods. 9.1 The Seller and Buyer shall exercise their best efforts to meet their respective duties and obligations as set forth in these Terms, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control (force majeure), including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 10.0 PLACE OF DELIVERY The place of delivery shall be set forth in the "Ship to" block of the purchase order, purchase change order,or release order. 11.0 RIGHT OF INSPECTION Buyer shall have the right to inspect the goods upon delivery before accepting them. Seller shall be responsible for all charges for the return to Seller of any goods rejected as being nonconforming under the specifications. Buyer shall inspect the goods and notify Seller of any nonconformities within 10 days of delivery as designated herein. 12.0 INVOICES 12.1 Seller shall submit separate invoices in duplicate, on each purchase order or purchase change order after each delivery. Invoices shall indicate the purchase order or purchase change order number. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, should be attached to the invoice. Seller shall mail or deliver invoices to Buyer's Department and address as set forth in the block of the purchase order, purchase change order or release order entitled "Ship to." Payment shall not be made until the above instruments have been submitted after delivery and acceptance of the goods and/or services. 12.2 Seller shall not include Federal Excise, State or City Sales Tax in its invoices. The Buyer shall furnish a tax exemption certificate upon Seller's request. 13.0 PRICE WARRANTY 13.1 Payment Terms&Payment Milestones shall be as stated in the Pall Proposal. 13.2 Seller warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for commission, percentage, brokerage or contingent fee, excepting employees of an established commercial or selling agency that is maintained by Seller for the purpose of securing business. For breach or violation of this warranty, Buyer shall have the right, in addition to any other right or rights arising pursuant to said purchase(s), to cancel this contract without liability and to deduct from the contract price such commission percentage, brokerage or Page 2 of 9 contingent fee, or otherwise to recover the full amount thereof. 14.0 PRODUCT WARRANTY Seller shall not limit or exclude any express warranties and any attempt to do so shall render this contract voidable at the option of Buyer. Seller warrants that the goods furnished will conform to Buyer's specifications, drawings and descriptions listed in the bid invitation, the Seller's warranty contained in Seller's bid, and the sample(s) furnished by Seller, if any. In the event of a conflict between Buyer's specifications, drawings, and descriptions, Buyer's specifications shall govern. 15.0 SAFETY WARRANTY Seller warrants that the product sold to Buyer shall conform to the standards promulgated by the U.S. Department of Labor under the Occupational Safety and Health Act (OSHA) of 1970, as amended. In the event the product does not conform to OSHA standards, Buyer may return the product for correction or replacement at Seller's expense. In the event Seller fails to make or aggressively pursue appropriate correction within a reasonable time, any correction made by Buyer will be at Seller's expense. Where no correction is or can be made, Seller shall refund all monies received for such goods within thirty (30) days after request is made by Buyer in writing and received by Seller. Notice is considered to have been received upon hand delivery, or otherwise in accordance with Section 29.0 of these terms and conditions. Failure to make such refund shall constitute breach and cause this contract to terminate immediately. 16.0 SOFTWARE LICENSE TO SELLER N/A 17.0 WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY 17.1 Seller shall indemnify and hold harmless Buyer, Engineer and their officers, directors, members, partners, employees, agents, consultants, contractors, and subcontractors from and against all claims, costs, losses, damages, and judgments (including but not limited to all reasonable attorneys' fees that a court of competent jurisdiction has finally determined was the direct result of any infringement of any third party's valid United States or foreign patent or copyright by any of the Goods as delivered hereunder when used in accordance with Seller's specifications. 17.2 In the event of suit or threat of suit for patent infringement, Buyer will promptly notify Seller of in writing within twenty (20) days after receiving notice thereof. Seller shall promptly defend the claim or suit, including negotiating a settlement. Seller shall have control over such claim or suit, provided that Seller agrees to bear all expenses and to satisfy any adverse judgment thereof. a. If Seller fails to defend such suit or claim after written notice by Buyer, Seller will be bound in any subsequent suit or claim against Seller by Buyer by any factual determination in the prior suit or claim. b. If Buyer fails to provide Seller the opportunity to defend such suit or claim after written notice by Seller, Buyer shall be barred from any remedy against Seller for such suit or claim. 17.3 If a final determination has been made by a court of competent jurisdiction that the Goods, when used by the Buyer in the United States in accordance with Seller's specifications, has infringed a third party's valid United States patent, then Seller may, at its option, (i) modify the Goods to be non-infringing; (ii) obtain the necessary licenses for Buyer's benefit, or(iii) replace the Goods and provide related design and construction as reasonably necessary to avoid the infringement at Seller's own expense; or if (i), (ii), or (iii) are not commercially reasonable, Seller may require the return of the infringing Goods and all rights thereto from Buyer and refund the amounts paid for the returned infringing Goods. Page 3 of 9 18.0 OWNERSHIP OF WORK PRODUCT All ideas, concepts, whether patentable or not, devices, inventions, copyrights, improvements or discoveries, designs (including drawings, plans and specifications), estimates, prices, notes, electronic data and other documents or information that are: a) created, prepared, reduced to practice or disclosed by Seller; and/or b) based upon, derived from, or utilize the Confidential Information of Seller, and all related intellectual property rights, shall at all times remain Seller's property. No right, title or interest in any patents, trademarks, trade names or trade secrets, or in any pattern, drawing or design for any of the Goods or in any other Seller intellectual property right, shall pass or transfer to the Buyer and Seller shall at all times retain ownership rights therein. Notwithstanding the foregoing, Seller grants Buyer a non-exclusive, non-transferable license to use any such material to the extent necessary and solely for Buyer's use of the Goods purchased by Buyer from Seller hereunder. Buyer shall not disclose any such material to third parties without Seller's prior written consent. As a condition to Seller's delivery to Buyer of the Goods, Buyer shall not, directly or indirectly, and shall cause its employees, agents and representatives not to: (i) alter or modify the Goods, (ii) disassemble, decompile or otherwise reverse engineer or analyze the Goods, (iii) remove any product identification or proprietary rights notices, (iv) modify or create derivative works, (v) otherwise take any action contrary to Seller's rights in the technology and intellectual property relating to the Goods, (vi) assist or ask others to do any of the foregoing. 19.0 NETWORK ACCESS The City owns and operates a computing environment and network (collectively the"Network"). If Seller requires access, whether onsite or remote, to the City's network to provide services hereunder, and the Seller is required to utilize the Internet, Intranet, email, City database, or other network application, Seller shall separately execute the City's Network Access Agreement prior to providing such services. A copy of the City's standard Network Access Agreement can be provided upon request. 20.0 CANCELLATION Either Party shall have the right to cancel this contract for default on all or any part of the undelivered portion of this order if the opposing party materially breaches this Agreement, including warranties of Seller and non-payment by Buyer; provided the breaching party has been given written notice and 30 days to remedy the breach. Such right of cancellation is in addition to and not in lieu of any other remedies, which Buyer may have in law or equity. 21.0 TERMINATION Subject to Article 20.0, the performance of work or purchase of goods under this order may be terminated in whole or in part by Buyer, with or without cause, at any time upon the delivery to Seller of a written "Notice of Termination" specifying the extent to which performance of work or the goods to be purchased under the order is terminated and the date upon which such termination becomes effective. Such right of termination is in addition to and not in lieu of any other termination rights of Buyer as set forth herein. In the case of Buyer termination without cause, Seller shall be entitled to recover its costs, expenses and reasonable cancellation fees. 22.0 ASSIGNMENT/DELEGATION No interest, obligation or right of Seller, including the right to receive payment, under this contract shall be assigned or delegated to another entity without the express written consent of Buyer. Any attempted assignment or delegation of Seller shall be wholly void and totally ineffective for all purposes unless made in conformity with this paragraph. Prior to Buyer giving its consent, Seller agrees that Seller shall provide, at no additional cost to Buyer, all documents, as determined by Buyer, that are reasonable and necessary to verify Seller's legal status and transfer of rights, interests, or obligations to another entity. The documents that may be requested include, but are not limited to, Articles of Incorporation and related amendments, Certificate of Merger, IRS Form W-9 to verify tax identification number, etc. Buyer reserves the right to withhold all payments to any entity other than Seller, if Seller is not in compliance with this provision. If Seller fails to provide necessary information in accordance with this section, Buyer shall not be liable for any Page 4 of 9 penalties,fees or interest resulting therefrom. 23.0 WAIVER No claim or right arising out of a breach of this contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration in writing and is signed by the aggrieved party. 24.0 MODIFICATIONS This contract can be modified or rescinded only by a written agreement signed by both parties. 25.0 THE AGREEMENT In the absence of an otherwise negotiated contract, or unless stated otherwise, the Agreement between Buyer and Seller shall consist of these Standard Terms and Conditions as negotiated, together with any applicable bid documents published by the Buyer and Seller's Response to such bid (the "contract documents"). This Agreement is intended by the parties as a final expression of their agreement and is intended also as a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any term used in this Agreement. Acceptance of or acquiescence in a course of performance under this Agreement shall not be relevant to determine the meaning of this Agreement even though the accepting or acquiescing party has knowledge of the performance and opportunity for objection. Whenever a term defined by the Uniform Commercial Code (UCC) is used in this Agreement, the definition contained in the UCC shall control. In the event of a conflict between the contract documents, the order of precedence shall be these Standard Terms and Conditions, the Buyer's published bid documents and the Seller's response. If Buyer and Seller have otherwise negotiated a contract, this Agreement shall not apply. 26.0 APPLICABLE LAW/VENUE This agreement shall be governed by the Uniform Commercial Code wherever the term "Uniform Commercial Code" or "UCC" is used. It shall be construed as meaning the Uniform Commercial Code as adopted and amended in the State of Texas. Both parties agree that venue for any litigation arising from this contract shall be in Fort Worth, Tarrant County, Texas. This contract shall be governed, construed and enforced under the laws of the State of Texas. 27.0 INDEPENDENT VENDOR Seller shall operate hereunder as an independent vendor and not as an officer, agent, servant or employee of Buyer. Seller shall have exclusive control of, and the exclusive right to control, the Details of its operations hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, employees, vendors and sub- vendors. The doctrine of respondeat superior shall not apply as between Buyer and Seller, its officers, agents, employees, vendors and subvendors. Nothing herein shall be construed as creating a partnership or joint enterprise between Buyer and Seller, its officers, agents, employees, vendors and subvendors. 28.0 LIABILITY AND INDEMNIFICATION, 28.1 LIABILITY - SELLER SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE GROSSLY NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF SELLER, ITS OFFICERS,AGENTS,SERVANTS OR EMPLOYEES. 28.2 EXCEPT AS STATED IN 28.1 ABOVE, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, INCLUDING WITHOUT LIMITATION, REMANUFACTURING COSTS AND REWORK COSTS, DE-INSTALLATION OR RE- INSTALLATION COST, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY Page 5 of 9 BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (TORT, CONTRACT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND WHATEVER THE FORUM, WHETHER ARISING OUT OF OR IN CONNECTION WITH THE MANUFACTURE, PACKAGING, DELIVERY, STORAGE, USE, MISUSE OR NON-USE OF ANY OF ITS GOODS OR SERVICES OR ANY OTHER CAUSE WHATSOEVER. 28.3 EXCEPT AS STATED IN 28.1 ABOVE, IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER 28.4 INDEMNIFICATION - SELLER HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY (ALSO REFERRED TO AS BUYER), ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS, PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OF SELLER, ITS OFFICERS, AGENTS, SUBCONTRACTORS,SERVANTS OR EMPLOYEES. 29.0 SEVERABILITY In case any one or more of the provisions contained in this agreement shall for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this agreement, which agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 30.0 FISCAL FUNDING LIMITATION In the event no funds or insufficient funds are appropriated and budgeted in any fiscal period for payments due under this contract, then Buyer will immediately notify Seller of such occurrence and this contract shall be terminated on the last day of the fiscal period for which funds have been appropriated without penalty or expense to Buyer of any kind whatsoever, except to the portions of annual payments herein agreed upon for which funds shall have been appropriated and budgeted or are otherwise available. 30.1 Seller shall not be obligated to implement any changes or variations in the scope of work described in Seller's Documentation unless Buyer and Seller agree in writing to the details of the change and any resulting price, schedule or other contractual modifications. 31.0 NOTICES TO PARTIES Notices addressed to Buyer pursuant to the provisions hereof shall be conclusively determined to have been delivered three (3) business days following the day such notice is deposited in the United States mail, in a sealed envelope with sufficient postage attached, addressed to Purchasing Manager, City of Fort Worth, Purchasing Division, 1000 Throckmorton Street, Fort Worth, Texas 76102. Notices to Seller shall be conclusively determined to have been delivered three (3) business days following the day such notice is deposited in the United States mail, in a sealed envelope with sufficient postage attached, addressed to the address given by Seller in its response to Buyer's invitation to bid. Or if sent via express courier or hand delivery, notice is considered received upon delivery. 32.0 NON-DISCRIMINATION This contract is made and entered into with reference specifically to Chapter 17, Article III, Division 3 ("Employment Practices"), of the City Code of the City of Fort Worth (1986), as amended, and Seller hereby covenants and agrees that Seller, its employees, officers, agents, vendors or subvendors, have fully complied with all provisions of same and that no employee, Page 6 of 9 participant, applicant, vendor or subvendor has been discriminated against according to the terms of such Ordinance by Seller, its employees,officers, agents,vendor or subvendors herein. 33.0 IMMIGRATION NATIONALITY ACT The City of Fort Worth actively supports the Immigration & Nationality Act (INA) which includes provisions addressing employment eligibility, employment verification, and nondiscrimination. Seller shall verify the identity and employment eligibility of all employees who perform work under this Agreement. Seller shall complete the Employment Eligibility Verification Form (1-9), maintain photocopies of all supporting employment eligibility and identity documentation for all employees, and upon request, provide Seller with copies of all 1-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Seller shall establish appropriate procedures and controls so that no services will be performed by any worker who is not legally eligible to perform such services. Seller shall provide Buyer with a certification letter that it has complied with the verification requirements required by this Agreement. Seller shall indemnify Buyer from any penalties or liabilities due to violations of this provision. Buyer shall have the right to immediately terminate this Agreement for violations of this provision by Seller. 34.0 HEALTH.SAFETY,AND ENVIRONMENTAL REQUIREMENTS Services, products, materials, and supplies provided by the Seller must meet or exceed all applicable health, safety, and the environmental laws, requirements, and standards. In addition, Seller agrees to obtain and pay, at its own expense, for all licenses, permits, certificates, and inspections necessary to provide the products or to perform the services hereunder. Seller shall indemnify Buyer from any penalties or liabilities due to violations of this provision. Buyer shall have the right to immediately terminate this Agreement for violations of this provision by Seller. 35.0 RIGHT TO AUDIT Seller agrees that the Buyer, or Buyer's authorized representative, shall, until the expiration of three (3) years after final payment under this contract, and at no additional cost to Buyer, have access to and the right to examine any directly pertinent books, computer disks, digital files, documents, papers and records of the Seller involving transactions relating to this contract, including any and all records maintained pursuant to Section 31 of this Agreement. Seller agrees that the Buyer shall have access, during normal working hours, to all necessary Seller facilities, and shall be provided adequate and appropriate workspace, in order to conduct audits in compliance with the provisions of this section. Buyer shall pay Seller for reasonable costs of any copying in accordance with the standards set forth in the Texas Administrative Code. The Buyer shall give Seller reasonable advance written notice of intended audits, but no less than ten (10) business days. Buyer will be required to execute Seller's standard nondisclosure agreement previous to accessing any of Seller's records and/or entering Seller's premises. 36.0 DISABILITY In accordance with the provisions of the Americans With Disabilities Act of 1990 (ADA), Seller warrants that it and any and all of its subvendors will not unlawfully discriminate on the basis of disability in the provision of services to general public, nor in the availability, terms and/or conditions of employment for applicants for employment with, or employees of Seller or any of its subvendors. Seller warrants it will fully comply with ADA's provisions and any other applicable federal, state and local laws concerning disability and will defend, indemnify and hold Buyer harmless against any claims or allegations asserted by third parties or subvendors against Buyer arising out of Seller's and/or its subvendor's alleged failure to comply with the above-referenced laws concerning disability discrimination in the performance of this agreement. 37.0 DISPUTE RESOLUTION If either Buyer or Seller has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement,the parties shall first attempt to resolve the matter through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a good faith effort, Page 7 of 9 either through email, mail, phone conference, in person meetings, or other reasonable means to resolve any claim, dispute, breach or other matter in question that may arise out of, or in connection with this Agreement. If the parties fail to resolve the dispute within sixty (60) days of the date of receipt of the notice of the dispute, then the parties may submit the matter to non-binding mediation upon written consent of authorized representatives of both parties in accordance with the Industry Arbitration Rules of the American Arbitration Association or other applicable rules governing mediation then in effect. If the parties cannot resolve the dispute through mediation,then either party shall have the right to exercise any and all remedies available under law regarding the dispute. Page 8 of 9 AGREEMENT THIS AGREEMENT dated as of 3 Lk_n*, 1'l , 2015 (the 'Effective Date") is by and between Pall Corporation, having its place of business located at 839 State Route 13 Cortland, NY 13045 ("Seller") and the City of Fort Worth, Texas, having its place of business located at ("Buyer"). Seller and Buyer are collectively referred to herein as the "Parties" and individually as a "Party". WHEREAS, Seller is engaged in the business of manufacturing, servicing and supplying filtration systems and other filtration, separation and purification products and services; and WHEREAS, Buyer desires to purchase goods and services from Seller for the project at Fort Worth, Texas; and WHEREAS, Seller is willing to sell to Buyer the goods and services, all in accordance with and subject to the terms and conditions contained herein; NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereto agree as follows: 1. Seller shall furnish the goods and associated services in accordance with Sections 2, 3, and 4, of the Pall Proposal dated September 23, 2014 inclusive of Seller's Article 11 Limited Warranty as provided 4/24/2015, and the City of Fort Worth, Texas Standard Purchasing Terms and Conditions (as mutually modified by Pall Corporation & City of Fort Worth) and attached hereto for a price of $500,000 USD. 2. Buyer agrees to pay Seller for the goods and associated services in accordance with Section 2.4 of the Pall Proposal dated September 23, 2014. IN WITNESS WHEREOF, the parties by their duly authorized officers or representatives have executed this Agreement on the dates set forth below. BY: BY: CITY OF FORT WORTH Seller—PALL CORPORATION Fernando Costa Dave Korton Assistant City Manager VP Sales,Process Systems Date: G / /S Date: APPROVAL RECOMM NDED: ' By: n Robert Car an irector,Water Department APPROV D TO FOR AND EGALITY: M&C No.: C-27250 By: P2 Doug Black f C­11 et-/U, 5 M&C Date: April 7,2015 Assistant City Attorney ATT ST: ,_J� S� Mary J. Kayser �1 City Secretary OFFICIAL RECORD CITY SECRETARY Page 9 of 9 FT.WORTH, TX M&C Review Page 1 of 2 Official site of the City of Fort Worth,Texas CITY COUNCIL AGENDA FORTTII Ir— COUNCIL ACTION: Approved on 4/7/2015-Ordinances 21713-04-2015& 21714-04-2015 DATE: 4/7/2015 REFERENCE NO.:""C-27250 LOG NAME: 603MGD WESTSIDE WTP EXP -PALLCORP CODE: C TYPE: CONSENT PUBLIC NO HEARING: SUBJECT: Authorize Execution of a Contract with Pall Corporation in the Amount of$500,000.00 for Procurement of a 3 MGD Water Filtration Membrane for the Westside Water Treatment Plant Expansion and Adopt Appropriation Ordinances (ADJACENT TO COUNCIL DISTRICT 3) RECOMMENDATION: It is recommended that the City Council: 1. Adopt the attached appropriation ordinance increasing estimated receipts and appropriations in the Water Capital Project Fund (PW53) in the amount of$500,000.00 from Impact Fees; 2. Authorize the transfer in the amount of$500,000.00 from the Water Capital Project Fund (PW53)to the Water Capital Project Fund (P264); 3. Adopt the attached appropriation ordinance increasing estimated receipts and appropriations in the Water Capital Project Fund (P264) in the amount of$500,000.00 from available funds; and 4. Authorize execution of a contract in the amount of$500,000.00 with Pall Corporation for procurement of a 3 MGD water filtration membrane for the Westside Water Treatment Plant Expansion. DISCUSSION: The Westside Water Treatment Plant went into operation in April 2012 with an initial capacity of 12 million gallons per day (MGD). The original project scope called for 15 MGD, but due to lower than anticipated customer demands and budgetary constraints, only 12 MGD capacity was installed. Now, with growth and development in west Fort Worth increasing, the Water Department desires to bring the plant's capacity up to the originally planned 15 MGD with the addition of this fifth filtration membrane rack and modules. Pall Corporation, the originally sourced filtration membrane provider, will provide the new 3 MGD filtration membrane, perform startup testing, commissioning, and Staff training. The membrane equipment and associated piping will be installed by Staff. The existing plant footprint is designed to be expanded up to an ultimate capacity of 35 MGD. Pall Corporation is the only Texas Commission on Environmental Quality (TCEQ) certified company which can provide the filtration membrane for this upgrade. The Westside Plant was designed and permitted utilizing Pall Corporation membrane equipment, sizing, operating protocols, programming, and TCEQ approval, as described below. In order to utilize membrane filtration in the drinking water treatment process in Texas, membranes must be pilot tested using an approved protocol on the specific raw water to be utilized by the drinking water treatment plant, with results submitted to the TCEQ for approval. On May 16, 2006 (M&C C-21456), the City Council authorized the Water Department to join the cities of Mansfield, Waxahachie and Midlothian in participating in membrane piloting and testing raw water originating from Richland Chambers and Cedar Creek reservoirs. On March 20, 2007 (M&C C-22017), the City Council authorized a Westside Treatment Plant process evaluation, which included further membrane pilot testing of Lake Benbrook raw water. Pilot testing results from these two studies were submitted to the TCEQ for review and approval. Three membrane vendors participated in these pilot studies and were approved, although with differing types of systems: two with submerged types and one using a pressure-type system. Based on competitive bids from the three vendors the City selected the pressure-type system manufactured by Pall Corporation, which was also the lowest priced bidder. On March 25, 2008 (M&C C-22728), the City Council approved an Engineering Agreement with Pall Corporation for the preparation of membrane filtration system shop drawings required to complete the design of the Westside Water Treatment Plant. These drawings provided for an ultimate capacity of 35 MGD and were incorporated into the overall Westside Water Treatment Plant design by the City's design engineer, Camp Dresser and McKee, Inc. On June 23, 2009, (M&C C-23623)the City Council awarded the contract in the amount of$47,044,014.00 http://apps.cfwnet.org/council_packet/mc_review.asp?ID=20820&councildate=4/7/2015 6/11/2015 M&C Review Page 2 of 2 inclusive of the cost for the 12 MGD membrane filtration system, to McCarthy Building Companies, Inc. Procurement of the first 12 MGD of the filtration system was from Pall Corporation by McCarthy Building Companies, Inc., pursuant to the previously submitted bid from Pall Corporation. Upon approval of this Mayor and Council Communication appropriations for Westside Plant Membrane Rack Purchase project will consist of the following: Pall Corporation Contract $500,000.00 M/WBE Office:A waiver of the goal for MBE/SBE subcontracting requirements was requested by the Water Department and approved by the M/WBE Office, in accordance with the BDE Ordinance, because the MSBE Waiver is solicited based on the sole source information provided to the M/WBE Office by the managing department's project manager. The project is located at located at 12200 Old Weatherford Road ADJACENT TO COUNCIL DISTRICT 3, Mapsco 71 C. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that funds are available in the Water Capital Projects Fund (PW53)for transfer to the Water Capital Projects Fund (P264) for the Westside Plant Membrane Rack Purchase project contract, as depicted in the table below. Remaining Available Transfer Available Unspecified for Unspecified Fund Amount Contract Amount Water Capital Projects Fund (PW53) $2,655,016.48 $500,000.00 $2,155,016.48 Subject to Mayor and Council approval, transfer of funds from Unspecified and adoption of the attached appropriation ordinances to the Westside Plant Membrane Rack Purchase project, the proposed funding for the project will consist of the following: Existing Revised Revised Fund Appropriations Appropriations Encumbrances Expenditures Balance Water Capital Projects Fund (P264) $0.00 $500,000.00 $0.00 $0.00 $500,000.00 TO Fund/Account/Centers FROM Fund/Account/Centers PW53 488013 060530200040 $500,000.00 p x/53 538040 060530200040 $500,000.00 1) PW53 538040 $500,000.00 3) P264 541200 600540252780 $500,000.00 060530200040 182) P264 472053 $500,000.00 600540252780 2) P264 541200 600540252780 $500,000.00 Submitted for City Manager's Office by: Fernando Costa (6122) Originating Department Head: Andy Cronberg (5020) Additional Information Contact: Chris Harder(8293) ATTACHMENTS 603MGD WESTSIDE 'A7P EXP - PALLCORP map.pdf 603MGD WESTSIDE WTP EXP - PALLCORP P264 A015.docx 603MGD WESTSIDE WTP EXP - PALLCORP PW53 A015.docx http://apps.cfwnet.org/council_packet/mc_review.asp?ID=20820&councildate=4/7/2015 6/11/2015