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HomeMy WebLinkAbout032-25 - ATEC Water Systems, LLC - ContractDocusign Envelope ID: FACE8689-17CA-4115-879E-69F00907594C Port Orchard Contract #: 032-25 Authorized Amount: $5,000 Date Start: 4/10/2025 Date End: 6/10/2025 AGREEMENT FOR SERVICES — CONTRACTOR THIS AGREEMENT is entered into by and between the City of Port Orchard, Washington, a municipal corporation ("City") and ATEC Water Systems, LLC organized under the laws of the State of California located and doing business at ATEC Water Systems, LLC 1690 Lana Way, Bldg A Hollister, CA 95023, Attention: Lee Odell, Email: sales@atecwaterfilters.com (hereinafter the "Contractor"). RECITALS: WHEREAS, the City has determined it needs to have certain services performed for its residents but does not have the manpower, resources, or expertise to perform such services; and WHEREAS, the City desires to have the Contractor perform such services pursuant to certain terms and conditions; NOW, THEREFORE, in consideration of the mutual benefits and conditions hereinafter contained, the Parties hereto agree as follows: AGREEMENT: 1. Scope and Schedule of Services to be Performed by Contractor. A. Contractor shall perform those services described on Exhibit "A," ("Scope of Work") which is attached hereto and incorporated herein by this reference as if set forth in full. The Contractor shall request and obtain prior written approval from the City if the scope or schedule is to be modified in any way. B. Unless otherwise specified in the attached Scope of Work, all tools, equipment, supplies, chemicals or any other materials necessary for the completion of the services described in the Scope of Work shall be provided by the Contractor. C. The Contractor shall report any known or discovered damage or potential hazard involving City property immediately to the City of Port Orchard Public Works Department or, in the case of an emergency, by calling 911. Hazardous conditions shall be immediately remedied or secured by the Contractor to prevent further damage and/or to protect the public from injury. D. Any incidents, accidents, or altercations with members of the public or with City staff shall be immediately reported to the City of Port Orchard Public Works Department. The City's Public Works Director may require a written report describing the incident or accident. City of Port Orchard and ATEC Water Systems, LLC Maintenance Contract No. Page 1 of 16 Updated 4/2022 IBDR 1572422.1- 366922 -0039 1 of 22 Docusign Envelope ID: FACE8689-17CA-4115-879E-69F00907594C E. The Contractor shall remedy, in a timely manner, and at its expense, any damage to City property due to the negligence of the Contractor or the Contractor's employees. F. Contractor acknowledges and understands that it is not the City's exclusive provider of these services and that the City maintains its unqualified right to obtain these services through other sources. Contractor further represents that the services furnished under this Agreement will be performed in accordance with generally accepted professional practices in effect at the time such services are performed. 2. Time of Completion. Upon the Effective Date of this Agreement, Contractor shall complete the work and provide all goods, materials, and services by 6/10/2025. 3. Compensation and Method of Payment. The City shall pay the Contractor for services rendered according to the rates and methods set forth below. X LUMP SUM. Compensation for these services set forth in Exhibit A shall be a Lump Sum of $5,000.00 , including applicable Washington State Sales Tax, for the services contemplated in this Agreement. ❑ TIME AND MATERIALS NOT TO EXCEED. Compensation for these services shall not exceed $ per year, including applicable Washington State Sales Tax, without written authorization and will be based on the list of billing rates and reimbursable expenses attached hereto as Exhibit `B." ❑ TIME AND MATERIALS. Compensation for these services shall be on a time and materials basis according to the list of billing rates and reimbursable expenses attached hereto as Exhibit `B." ❑ OTHER All invoices shall be paid by City warrant within thirty (30) days of receipt of a complete invoice. If the City objects to all or any portion of any invoice, it shall so notify the Contractor of the same within fifteen (15) days from the date of receipt and shall pay that portion of the invoice not in dispute, and the Parties shall immediately make every effort to settle the disputed portion. A. Defective or Unauthorized Work. The City reserves its right to withhold payment from Contractor for any defective or unauthorized goods, materials, or services. If Contractor is unable, for any reason, to complete any part of this Agreement, the City may obtain the goods, materials or services from other sources, and Contractor shall be liable to the City for any additional costs incurred by the City. "Additional costs" shall mean all reasonable costs, including legal costs and attorneys' fees, incurred by the City beyond the maximum Agreement price specified above. The City further reserves its right to deduct these additional costs incurred to complete this Agreement with other sources, from any and all amounts due or to become due the Contractor. B. Final Payment: Waiver of Claims. CONTRACTOR'S ACCEPTANCE OF FINAL PAYMENT SHALL CONSTITUTE A WAIVER OF CLAIMS, EXCEPT THOSE PREVIOUSLY AND PROPERLY MADE AND IDENTIFIED BY CONTRACTOR AS UNSETTLED AT THE TIME REQUEST FOR FINAL PAYMENT IS MADE. City of Port Orchard and ATEC Water Systems, LLC Maintenance Contract No. Page 2 of 16 Updated 4/2022 IBDR 1572422.1- 366922 -0039 2 of 22 Docusign Envelope ID: FACE8689-17CA-4115-879E-69F00907594C 4. Prevailing Wages. The Contractor shall pay prevailing wages as required by law and shall comply with Chapters 39.12 and 49.28 RCW. Prior to beginning work under this Contract, the Contractor shall submit — on behalf of itself and each and every Sub -Contractor — a "Statement of Intent to Pay Prevailing Wages," which must be approved by the Department of Labor and Industries (See link below.) Following the final acceptance of the work, or termination of this Agreement, whichever occurs last, the Contractor must submit — on behalf of itself and every Sub -Contractor — an "Affidavit of Wages Paid" for final payment. Final payments shall be made in accordance with the requirements of Chapter 39.12 RCW. Refer to https:Hfortress.wa.gov/lni/wa-el�p/prvWa elg ookup.aspx for Washington State Prevailing Wage rates. 5. Changes. The City may issue a written amendment for any change in the goods, materials, or services to be provided during the performance of this Agreement. If the Contractor determines, for any reason, that an amendment is necessary, Contractor must submit a written amendment request to the person listed in the Notice section of this Agreement within fourteen (14) calendar days of the date Contractor knew or should have known of the facts and events giving rise to the requested change. If the City determines that the change increases or decreases the Contractor's costs or time for performance, the City will make an equitable adjustment. The City will attempt, in good faith, to reach agreement with the Contractor on all equitable adjustments. However, if the Parties are unable to agree, the City will determine the equitable adjustment as it deems appropriate. The Contractor shall proceed with the amended work upon receiving either a written amendment from the City or an oral order from the City before actually receiving the written amendment. If the Contractor fails to require an amendment within the time allowed, the Contractor waives its right to make any claim or submit subsequent amendment requests for that portion of the contract work. If the Contractor disagrees with the equitable adjustment, the Contractor must complete the amended work; however, the Contractor may elect to protest the adjustment as provided in Subsection A through E of the "Claims" Section 6 below. The Contractor accepts all requirements of an amendment by: (1) endorsing it, (2) writing a separate acceptance, or (3) not protesting in the way this section or Section 6 provides. An amendment that is accepted by Contractor as provided in this section shall constitute full payment and final settlement of all claims for contract time and materials and for direct, indirect, and consequential costs, including costs of delays related to any work, either covered or affected by the change. 6. Claims. If the Contractor disagrees with anything required by an amendment, another written order, or an oral order from the City, including any direction, instruction, interpretation, or determination by the City, the Contractor may file a claim as provided in this section. The Contractor shall give written notice to the City of all claims within fourteen (14) calendar days of the occurrence of the events giving rise to the claims, or within fourteen (14) calendar days of the date the Contractor knew or should have known of the facts or events giving rise to the claim, whichever occurs first. Any claim for damages, additional payment for any reason, or extension of time, whether under this Agreement or otherwise, shall be conclusively deemed to have been waived by the Contractor unless a timely written claim is made in strict accordance with the applicable provisions of this Agreement. At a minimum, a Contractor's written claim shall include the information set forth in subsections A, items 1 through 5 below. City of Port Orchard and ATEC Water Systems, LLC Maintenance Contract No. Page 3 of 16 Updated 4/2022 IBDR 1572422.1- 366922 -0039 3 of 22 Docusign Envelope ID: FACE8689-17CA-4115-879E-69F00907594C FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM WITHIN THE TIME ALLOWED SHALL BE AN ABSOLUTE WAIVER OF ANY CLAIMS ARISING IN ANY WAY FROM THE FACTS OR EVENTS SURROUNDING THAT CLAIM OR CAUSED BY THAT DELAY. A. Notice of Claim. Provide a signed written notice of claim that provides the following information: 1. The date of the Contractor's claim; 2. The nature and circumstances that caused the claim; 3. The provisions in this Agreement that support the claim; 4. The estimated dollar cost, if any, of the claimed work and how that estimate was determined; and 5. An analysis of the progress schedule showing the schedule change or disruption if the Contractor is asserting a schedule change or disruption. B. Records. The Contractor shall keep complete records of extra costs and time incurred as a result of the asserted events giving rise to the claim. The City shall have access to any of the Contractor's records needed for evaluating the protest. The City will evaluate all claims, provided the procedures in this section are followed. If the City determines that a claim is valid, the City will adjust payment for work or time by an equitable adjustment. No adjustment will be made for an invalid protest. C. Contractor's Duty to Complete Protested Work. In spite of any claim, the Contractor shall proceed promptly to provide the goods, materials and services required by the City under this Agreement. D. Failure to Protest Constitutes Waiver. By not protesting as this section provides, the Contractor also waives any additional entitlement and accepts from the City any written or oral order (including directions, instructions, interpretations, and determination). E. Failure to Follow Procedures Constitutes Waiver. By failing to follow the procedures of this section, the Contractor completely waives any claims for protested work and accepts from the City any written or oral order (including directions, instructions, interpretations, and determination). 7. Limitation of Actions. CONTRACTOR MUST, IN ANY EVENT, FILE ANY LAWSUIT ARISING FROM OR CONNECTED WITH THIS AGREEMENT WITHIN 120 CALENDAR DAYS FROM THE DATE THE CONTRACT WORK IS COMPLETE (OR THIS AGREEMENT TERMINATES, WHICHEVER EVENT OCCURS FIRST) OR CONTRACTOR'S ABILITY TO FILE THAT SUIT SHALL BE FOREVER BARRED. THIS SECTION FURTHER LIMITS ANY APPLICABLE STATUTORY LIMITATIONS PERIOD. City of Port Orchard and ATEC Water Systems, LLC Maintenance Contract No. Page 4 of 16 Updated 4/2022 IBDR 1572422.1- 366922 -0039 4 of 22 Docusign Envelope ID: FACE8689-17CA-4115-879E-69F00907594C 8. Duration of Agreement; Extensions. This Agreement shall be in full force and effect for a period commencing 4/10/2025 and ending 6/10/2025 unless sooner terminated under the provisions contained in Section 18 "Termination". Time is of the essence of this Agreement in each and all of its provisions in which performance is required. 9. Ownership and Use of Documents. A. Ownership. Any records, files, documents, drawings, specifications, data, or information, regardless of form or format, and all other materials produced by the Contractor in connection with the services provided to the City, shall be the property of the City whether the project for which they were created is executed or not. B. Records preservation. Contractor understands that this Agreement is with a government agency and thus all records created or used in the course of Contractor's work for the City may be considered "public records" and be subject to disclosure by the City under the Public Records Act, Chapter 42.56 RCW ("the Act"). Contractor agrees to safeguard and preserve records in accordance with the Act. The City may be required, upon request, to disclose the Agreement, and the documents and records submitted to the City by Contractor, unless an exemption under the Public Records Act applies. If the City receives a public records request and asks Contractor to search its files for responsive records, Contractor agrees to make a prompt and thorough search through its files for responsive records and to promptly turn over any responsive records to the City's public records officer at no cost to the City. 10. Independent Contractor. Contractor and City agree that Contractor is an independent contractor with respect to the services provided pursuant to this Agreement. As the Contractor is customarily engaged in an independently established trade which encompasses the specific service provided to the City hereunder, no agent, employee, representative or sub -contractor of the Contractor shall be or shall be deemed to be the employee, agent, representative or sub -contractor of the City. In the performance of the work, the Contractor is an independent contractor with the ability to control and direct the performance and details of the work, the City being interested only in the results obtained under this Agreement. Nothing in this Agreement shall be considered to create the relationship of employer and employee between the Parties hereto. Neither Contractor nor any employee of Contractor shall be entitled to any benefits accorded City employees by virtue of the services provided under this Agreement. The City shall not be responsible for withholding or otherwise deducting federal income tax or social security or contributing to the State Industrial Insurance Program, or otherwise assuming the duties of an employer with respect to the Contractor, or any employee of the Contractor. The City may, during the term of this Agreement, engage other independent contractors to perform the same or similar work that the Contractor performs hereunder. 11. Standard of Care. The Contractor represents and warrants that it, and the Contractor's employees, have the requisite training, skill and experience necessary to provide the services under this Agreement and are appropriately accredited and licensed by all applicable agencies and governmental entities. Contractor further warrants that it has or will have a valid Port Orchard business license during the entire time that this Agreement is in effect. Services provided by the Contractor and the Contractor's employees under this Agreement will be performed in a manner consistent with that degree of care and City of Port Orchard and ATEC Water Systems, LLC Maintenance Contract No. Page 5 of 16 Updated 4/2022 IBDR 1572422.1- 366922 -0039 5 of 22 Docusign Envelope ID: FACE8689-17CA-4115-879E-69F00907594C skill ordinarily exercised by members of the same profession currently practicing in similar circumstances. The Contractor and the Contractor's employees shall conduct themselves in a professional manner at all times when on site. The Contractor's employees shall wear clothing and/or a uniform which clearly identifies them as an employee of the Contractor. The Contractor further represents and warrants that it shall provide proper supervision for any employees utilized to perform the services herein and shall ensure that all employees are properly trained and qualified. The Contractor shall ensure that all workplace safety requirements of state or federal law are strictly observed at all times. The Contractor warrants that all employees have been trained to comply with state and federal standards (including but not limited to standards for handling chemicals, WISHA and OSHA) relevant to the duties to be performed in accordance with the Scope of Work. 12. Indemnification. A. Contractor shall defend, indemnify, and hold the City, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorneys' fees, arising out of or resulting from the acts, errors or omissions of the Contractor in performance of this Agreement, except for injuries and damages caused by the sole negligence of the City. B. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Contractor and the City, its officers, officials, employees, and volunteers, the Contractor's liability, including the duty and cost to defend, hereunder shall be only to the extent of the Contractor's negligence. C. It is further specifically and expressly understood that the indemnification provided herein constitutes the Contractor's waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the Parties. D. The provisions of this section shall survive the expiration or termination of this Agreement. 13. Insurance. The Contractor shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, or employees. below: A. Minimum Scope of Insurance. Contractor shall obtain insurance of the types described i. Automobile Liability insurance covering all owned, non -owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. City of Port Orchard and ATEC Water Systems, LLC Maintenance Contract No. Page 6 of 16 Updated 4/2022 IBDR 1572422.1- 366922 -0039 6 of 22 Docusign Envelope ID: FACE8689-17CA-4115-879E-69F00907594C limits: ii. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors and personal injury and advertising injury. The City shall be named as an insured under the Contractor's Commercial General Liability insurance policy with respect to the work performed for the City. iii. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. B. Minimum Amounts of Insurance. Contractor shall maintain the following insurance i. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. ii. Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate. C. Other Insurance Provisions. The Contractor's Automobile Liability and Commercial General Liability insurance policies are to contain, or be endorsed to contain, that they shall be primary insurance as respect the City. Any Insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Contractor's insurance and shall not contribute with it. D. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A-VII. E. Verification of Coverage. The Contractor shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Contractor before commencement of the work. F. Notice of Cancellation. The Contractor shall provide the City with written notice of any policy cancellation, within two business days of their receipt of such notice. G. Failure to Maintain Insurance. Failure on the part of the Contractor to maintain the insurance as required shall constitute a material breach of contract, upon which the City may, after giving five business days' notice to the Contractor to correct the breach, immediately terminate the contract or, at its discretion, procure or renew such insurance and pay any and all premiums in connection therewith, with any sums so expended to be repaid to the City on demand, or at the sole discretion of the City, offset against funds due the Contractor from the City. H. No Limitation. Contractor's maintenance of insurance as required by the agreement shall not be construed to limit the liability of the Contractor to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. City of Port Orchard and ATEC Water Systems, LLC Maintenance Contract No. Page 7 of 16 Updated 4/2022 IBDR 1572422.1- 366922 -0039 7 of 22 Docusign Envelope ID: FACE8689-17CA-4115-879E-69F00907594C 14. Record Keeping and Reporting. A. The Contractor shall maintain accounts and records, including personnel, property, financial and programmatic records which sufficiently and properly reflect all direct and indirect costs of any nature expended and services performed in the performance of this Agreement and other such records as may be deemed necessary by the City to ensure the performance of this Agreement. B. These records shall be maintained for a period of seven (7) years after termination hereof unless permission to destroy them is granted by the office of the archivist in accordance with RCW Chapter 40.14 and by the City. 15. City's Right of Inspection and Audit. A. Even though the Contractor is an independent contractor with the authority to control and direct the performance and details of the work authorized under this Agreement, the work must meet the approval of the City and shall be subject to the City's general right of inspection to secure the satisfactory completion thereof. The Contractor agrees to comply with all federal, state, and municipal laws, rules, and regulations that are now effective or become applicable within the terms of this Agreement to the Contractor's business, equipment, and personnel engaged in operations covered by this Agreement or accruing out of the performance of such operations. B. The records and documents with respect to all matters covered by this Agreement shall be subject at all times to inspection, review or audit by the City during the performance of this Agreement. All work products, data, studies, worksheets, models, reports, and other materials in support of the performance of the service, work products, or outcomes fulfilling the contractual obligations are the products of the City. 16. Contractor to Maintain Records to Support Independent Contractor Status. On the effective date of this Agreement (or shortly thereafter), the Contractor shall comply with all federal and state laws applicable to independent contractors including, but not limited to the maintenance of a separate set of books and records that reflect all items of income and expenses of the Contractor's business, pursuant to the Revised Code of Washington (RCW) Section 51.08.195, as required to show that the services performed by the Contractor under this Agreement shall not give rise to an employer - employee relationship between the Parties which is subject to RCW Title 51, Industrial Insurance. 17. Work Performed at the Contractor's Risk. The Contractor shall take all precautions necessary and shall be responsible for the safety of its employees, agents, and sub -contractors in the performance of the work hereunder and shall utilize all protection necessary for that purpose. All work shall be done at the Contractor's own risk, and the Contractor shall be responsible for any loss of or damage to materials, tools, or other articles used or held by the Contractor for use in connection with the work. 18. Termination. The City reserves the right to terminate or suspend this Agreement at any time, with or without cause, upon seven (7) days' prior written notice. In the event of termination or suspension, all finished or unfinished documents, data, studies, worksheets, models, reports, or other materials prepared by the Contractor pursuant to this Agreement shall promptly be submitted to the City. City of Port Orchard and ATEC Water Systems, LLC Maintenance Contract No. Page 8 of 16 Updated 4/2022 IBDR 1572422.1- 366922 -0039 8 of 22 Docusign Envelope ID: FACE8689-17CA-4115-879E-69F00907594C A. Termination without cause. This Agreement may be terminated by the City at any time for public convenience, for the Contractor's insolvency or bankruptcy, or the Contractor's assignment for the benefit of creditors. B. Termination with cause. The Agreement may be terminated upon the default of the Contractor and the failure of the Contractor to cure such default within a reasonable time after receiving written notice of the default. C. Rights Upon Termination. i. With or Without Cause. Upon termination for any reason, all finished or unfinished documents, reports, or other material or work of the Contractor pursuant to this Agreement shall be submitted to the City, and the Contractor shall be entitled to just and equitable compensation for any satisfactory work completed prior to the date of termination, not to exceed the total compensation set forth herein. The Contractor shall not be entitled to any reallocation of cost, profit or overhead. The Contractor shall not in any event be entitled to anticipated profit on work not performed because of such termination. The Contractor shall use its best efforts to minimize the compensation payable under this Agreement in the event of such termination. Upon termination, the City may take over the work and prosecute the same to completion, by contract or otherwise. ii. Default. If the Agreement is terminated for default, the Contractor shall not be entitled to receive any further payments under the Agreement until all work called for has been fully performed. Any extra cost or damage to the City resulting from such default(s) shall be deducted from any money due or coming due to the Contractor. The Contractor shall bear any extra expenses incurred by the City in completing the work, including all increased costs for completing the work, and all damage sustained, or which may be sustained, by the City by reason of such default. C. Cancelation of Contractor's Insurance. This Agreement may be canceled immediately if the Contractor's insurance coverage is canceled for any reason, or if the Contractor is unable to perform the services called for by this Agreement. D. Termination by Contractor. The Contractor reserves the right to terminate this Agreement with not less than fourteen (14) days written notice, or in the event that outstanding invoices are not paid within sixty (60) days. E. Suspension. The City may suspend this Agreement, at its sole discretion. Any reimbursement for expenses incurred due to the suspension shall be limited to the Contractor's reasonable expenses and shall be subject to verification. The Contractor shall resume performance of services under this Agreement without delay when the suspension period ends. F. Notice of Termination or Suspension. If delivered to the Contractor in person, termination shall be effective immediately upon the Contractor's receipt of the City's written notice or such date as stated in the City's notice of termination, whichever is later. Notice of suspension shall be given to the Contractor in writing upon one week's advance notice to the Contractor. Such notice shall indicate the City of Port Orchard and ATEC Water Systems, LLC Maintenance Contract No. Page 9 of 16 Updated 4/2022 IBDR 1572422.1- 366922 -0039 9 of 22 Docusign Envelope ID: FACE8689-17CA-4115-879E-69F00907594C anticipated period of suspension. Notice may also be delivered to the Contractor at the address set forth in the Notice Section herein. G. The provisions in this Section shall not prevent the City from seeking any legal remedies it may otherwise have for the violation or nonperformance of any provisions of this Agreement. 19. Force Maieure. Notwithstanding anything to the contrary in this Agreement, any prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts of God, acts of war, terrorist acts, inability to obtain services, labor, or materials or reasonable substitutes therefor, governmental actions, governmental laws, regulations or restrictions, civil commotions, casualty, actual or threatened public health emergency (including, without limitation, epidemic, pandemic, famine, disease, plague, quarantine, and other significant public health risk), governmental edicts, actions, declarations or quarantines by a governmental entity or health organization, breaches in cybersecurity, and other causes beyond the reasonable control of the Party obligated to perform, regardless of whether such other causes are (i) foreseeable or unforeseeable or (ii) related to the specifically enumerated events in this paragraph (collectively, a "Force Majeure"), shall excuse the performance of such Parry for a period equal to any such prevention, delay or stoppage. To the extent this Agreement specifies a time period for performance of an obligation of either Party, that time period shall be extended by the period of any delay in such Parry's performance caused by a Force Majeure. Provided however, that the current COVID-19 pandemic shall not be considered a Force Majeure unless constraints on a Party's performance that result from the pandemic become substantially more onerous after the effective date of this Agreement. 20. Discrimination Prohibited. The Contractor shall not discriminate against any employee, applicant for employment, or any person seeking the services of the Contractor under this Agreement, on the basis of race, color, religion, creed, sex, sexual orientation, age, national origin, marital status, presence of any sensory, mental or physical disability, or other circumstance prohibited by federal, State or local law or ordinance, except for a bona fide occupational qualification. Violation of this Section shall be a material breach of this Agreement and grounds for cancellation, termination, or suspension of the Agreement by the City, in whole or in part, and may result in ineligibility for further work for the City. 21. Non -Appropriation of Funds. If sufficient funds are not appropriated or allocated for payment under this Agreement for any future fiscal period, the City will so notify the Contractor and shall not be obligated to make payments for services or amounts incurred after the end of the current fiscal period. This Agreement will terminate upon the completion of all remaining services for which funds are allocated. No penalty or expense shall accrue to the City in the event that the terms of the provision are effectuated. 22. Employment of State Retirees. The City is a "DRS-covered employer" which is an organization that employs one or more members of any retirement system administered by the Washington State Department of Retirement Systems (DRS). Pursuant to RCW 41.50.139(1) and WAC 415-02-325(1), the City is required to elicit on a written form if any of the Contractor's employees providing services to the City retired using the 2008 Early Retirement Factors (ERFs), or if the Contractor is owned by an individual who retired using the 2008 ERFs, and whether the nature of the service and compensation would result in a retirement benefit being suspended. Failure to make this City of Port Orchard and ATEC Water Systems, LLC Maintenance Contract No. Page 10 of 16 Updated 4/2022 IBDR 1572422.1- 366922 -0039 10 of 22 Docusign Envelope ID: FACE8689-17CA-4115-879E-69F00907594C determination exposes the City to significant liability for pension overpayments. As a result, before commencing work under this Agreement, Contractor shall determine whether any of its employees providing services to the City or any of the Contractor's owners retired using the 2008 ERFs, and shall immediately notify the City and shall promptly complete the form provided by the City after this notification is made. This notification to DRS could impact the payment of retirement benefits to employees and owners of Contractor. Contractor shall indemnify, defend, and hold harmless the City from any and all claims, damages, or other liability, including attorneys' fees and costs, relating to a claim by DRS of a pension overpayment caused by or resulting from Contractor's failure to comply with the terms of this provision. This provision shall survive termination of this Agreement. 23. Assignment and Subcontract. The Contractor shall not assign or subcontract any portion of the services contemplated by this Agreement without the written consent of the City. Any assignment made without the prior approval of the City is void. 24. Entire Agreement. This Agreement contains the entire agreement between the Parties, and no other agreements, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or bind either of the Parties. If there is a conflict between the terms and conditions of this Agreement and the attached exhibits, then the terms and conditions of this Agreement shall prevail over the exhibits. Either Party may request changes to the Agreement. Changes which are mutually agreed upon shall be incorporated by written amendments to this Agreement. 25. Compliance with Laws. The Contractor agrees to comply with all federal, state, and municipal laws, rules, and regulations that are now effective or in the future become applicable to Contractor's business, equipment, and personnel engaged in operations covered by this Agreement or accruing out of the performance of those operations. 26. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. 27. Notices. All notices or other communications required or permitted under this Agreement shall be in writing and shall be (a) personally delivered, in which case the notice or communication shall be deemed given on the date of receipt at the office of the addressee; (b) sent by registered or certified mail, postage prepaid, return receipt requested, in which case the notice or communication shall be deemed given three (3) business days after the date of deposit in the United States mail; or (c) sent by overnight delivery using a nationally recognized overnight courier service, in which case the notice or communication shall be deemed given one business day after the date of deposit with such courier. In addition, all notices shall also be emailed, however, email does not substitute for an official notice. Notices shall be sent to the following addresses: Notices to the City of Port Orchard shall be send to the following address: City Clerk City of Port Orchard 216 Prospect Street Port Orchard, Washington 98366 Bwallace(acityofportorchard.us City of Port Orchard and ATEC Water Systems, LLC Maintenance Contract No. Page 11 of 16 Updated 4/2022 IBDR 1572422.1- 366922 -0039 11 of 22 Docusign Envelope ID: FACE8689-17CA-4115-879E-69F00907594C Notices to the Contractor shall be sent to the following address: Phone No.: Email: 28. Resolution of Disputes; Governing Law. A. Should any dispute, misunderstanding or conflict arise as to the terms and conditions contained in this Agreement, the matter shall first be referred to the Mayor, who shall determine the term or provision's true intent or meaning. The Mayor shall also decide all questions which may arise between the Parties relative to the actual services provided or to the sufficiency of the performance hereunder. B. If any dispute arises between the City and the Contractor under any of the provisions of this Agreement which cannot be resolved by the Mayor's determination in a reasonable time, or if the Contractor does not agree with the Mayor's decision on a disputed matter, jurisdiction of any resulting litigation shall be filed in Kitsap County Superior Court, Kitsap County, Washington. C. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. In any suit or action instituted to enforce any right granted in this Agreement, the substantially prevailing parry shall be entitled to recover its costs, disbursements, and reasonable attorneys' fees from the other Party. 29. Title VI. The City of Port Orchard, in accordance with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d to 2000d-4 and Title 49, Code of Federal Regulations, Department of Transportation subtitle A, Office of the Secretary, Part 21, nondiscrimination in federally assisted programs of the Department of Transportation issued pursuant to such Act, must affirmatively insure that its contracts comply with these regulations. Therefore, during the performance of this Agreement, the Consultant, for itself, its assignees, and successors in interest agrees as follows: A. Compliance with Regulations. The Consultant will comply with the Acts and the Regulations relative to Nondiscrimination in Federally -assisted programs of the U.S. Department of Transportation, Federal Highway Administration (FHWA), as they may be amended from time to time, which are herein incorporated by reference and made a part of this Agreement. B. Nondiscrimination. The Consultant, with regard to the work performed by it during this Agreement, will not discriminate on the grounds of race, color, national origin, sex, age, disability, income - level, or LEP in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Consultant will not participate directly or indirectly in the discrimination prohibited by City of Port Orchard and ATEC Water Systems, LLC Maintenance Contract No. Page 12 of 16 Updated 4/2022 IBDR 1572422.1- 366922 -0039 12 of 22 Docusign Envelope ID: FACE8689-17CA-4115-879E-69F00907594C the Acts and the Regulations as set forth in Appendix A, attached hereto and incorporated herein by this reference, including employment practices when this Agreement covers any activity, project, or program set forth in Appendix B of 49 C.F.R. part 21. C. Solicitations for Subcontracts, Including Procurements of Materials and Equipment. In all solicitations, either by competitive bidding, or negotiation made by the Consultant for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the Consultant of the Consultant's obligations under this Agreement and the Acts and the Regulations relative to Non-discrimination on the grounds of race, color, national origin, sex, age, disability, income -level, or LEP. D. Information and Reports. The Consultant will provide all information and reports required by the Acts, the Regulations and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the City or the FHWA to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of the Consultant is in the exclusive possession of another who fails or refuses to furnish the information, the Consultant will so certify to the City or the FHWA, as appropriate, and will set forth what efforts it has made to obtain the information. E. Sanctions for Noncompliance. In the event of the Consultant's noncompliance with the non- discrimination provisions of this Agreement, the City will impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: i. withholding payments to the Consultant under the Agreement until the contractor complies; and/or ii. cancelling, terminating, or suspending the Agreement, in whole or in part. F. Incorporation of Provisions. The Consultant will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The Consultant will take action with respect to any subcontract or procurement as the City or the FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the Consultant becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the Consultant may request the City to enter into any litigation to protect the interests of the City. In addition, the Consultant may request the United States to enter into the litigation to protect the interests of the United States. 30. Non -waiver of Breach. The failure of either Party to insist upon strict performance of any of the covenants and agreements contained herein, or to exercise any option herein contained in one or more instances, shall not be construed to be a waiver or relinquishment of said covenants, agreements, or options, and the same shall be in full force and effect. 31. Modification. No waiver, alteration, modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of the City and the Contractor. City of Port Orchard and ATEC Water Systems, LLC Maintenance Contract No. Page 13 of 16 Updated 4/2022 IBDR 1572422.1- 366922 -0039 13 of 22 Docusign Envelope ID: FACE8689-17CA-4115-879E-69F00907594C 32. Severability. Any provision or part of this Agreement held to be void or unenforceable under any law or regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon the City and the Contractor, who agree that the Agreement shall be reformed to replace such stricken provision or part with a valid and enforceable provision that comes as close as reasonably possible to expressing the intent of the stricken provision. IN WITNESS WHEREOF, the City and the Contractor have executed this Agreement as of the dates listed below. CONTRACTOR Title: COO Date: 4/ 15/2025 City of Port Orchard and ATEC Water Systems, LLC Maintenance Contract No. Page 14 of 16 Updated 4/2022 IBDR 1572422.1- 366922 -0039 CITY OF PORT ORCHARD: Sgned by: BY:Fr' Nmwvu, "Rm6ifPuth"ansuu Mayor Date: 4/ 17/2025 ATTEST/AUTHENTICATE : Brandy Wallace, MMC, City Clerk APPROVED AS TO FORM: Signed by: °Ol'fY'City Attorney's Office 14 of 22 Docusign Envelope ID: FACE8689-17CA-4115-879E-69F00907594C EXHIBIT ATEC Water Systems LLC Annual Service Contract This ANNUAL SERVICE CONTRACT ("Agreement"), entered into by and between the owner set forth below ("Owner") and ATEC Water Systems, LLC, a Delaware limited liability company ("Contractor"), effective as of the date set forth below. Owner and Contractor may be referred to in this Agreement individually as a "Party' and collectively as the "Parties". City of Port Orchard 216 Prospect St Port Orchard, WA 98366 Attention: Scott Wolf Email: swolf@portorchardwa. Site Information Site Street Address: 300 Tremont St Site City, State and Zip: Port Orchard, WA 98366 • •r/ Notice Address ATEC Water Systems, LLC 1690 Lana Way, Bldg A Hollister, CA 95023 Attention: Lee Odell Email: sales@atecwaterfilters.com Frequency of Visits (Check) :00ne Time, ❑ Annual, ❑ Owner has purchased from Contractor and Contractor has installed a water filtration system (the "System") on Owner's real property located at project Site address, (the "Site"). Owner hereby wishes to engage Contractor as an independent contractor during the Term of this Agreement for the purpose of performing Maintenance Services on the System, pursuant to the terms and conditions set forth in Attachment A ("Terms and Conditions") attached hereto and incorporated into and made a part of this Agreement. Capitalized terms not defined shall have the meaning given to them in the Terms and Conditions. For Scheduling Contact Danny Miller: dmiller@atecwaterfilters.com www.atecwater.com Phone (559) 270-5262 1 @ ATEC Water Systems LLC 2024 15 of 22 Docusign Envelope ID: FACE8689-17CA-4115-879E-69F00907594C Imo:/:I1-.11W1 MAINTENANCE SERVICES Cnct ci� nnn nor \/icit* Check Full Operation and Performance ❑� - Operator Settings 0 - Treatment Performance 0 - Check Backwash Flow/Frequency/Duration ❑.i - Filter loading rates 0 - Chemical settings - Treatment Performance Check Media Conditions ❑.i 0 - Measure media depth - Take Core Samples 0 - Test Media for Adsorptive Capacity 0 - Take Microscopic Photos of Media 0 - Calculate Effective Size - Calculate Uniformity Coefficient Provide Assessment Report Provide Recommendations for Equipment Repair or 0 0 0 0 I\C r.IIQI.CIIICIII *Replacement Parts and Additional Services not included in pricing. By executing this Agreement, Owner accepts and agrees to be bound by the Terms and Conditions. (BEFORE SIGNING, READ THE TERMS AND CONDITIONS OF THIS AGREEMENT) OWNER: By: Name: Title: www.atecwater.com ATEC: ATEC Water Systems, LLC Bv: Name: Lee Odell Title: Chief Operating Officer 2 © ATEC Water Systems LLC 2024 16 of 22 Docusign Envelope ID: FACE8689-17CA-4115-879E-69F00907594C EXHIBIT ATTACHMENT A TERMS AND CONDITIONS 1. Incorporation. The following terms and conditions are hereby incorporated into the Agreement. 2. Definitions. As used in this Agreement, all capitalized terms have the respective meanings given to them in this Agreement. a. Scope of Services. (a) Maintenance Services. During the Term of this Agreement, Contractor shall perform the maintenance services set forth above in the section above entitled Maintenance Services (the "Maintenance Services"). (b)Additional Services. From time to time as mutually agreed upon in writing by the Parties, Owner may request that Contractor provide other services related to the System beyond the scope of the Maintenance Services, ("Additional Services"). The terms and conditions of any Additional Services shall be set forth in a written work order signed by both Parties. If Owner requests maintenance, repair or service that would constitute an Additional Service, including but not limited to services due to vandalism or actions of third parties, , Contractor shall have no obligation to complete the Additional Services requested. Prior to undertaking any such Additional Services, Contractor may require Owner to agree in advance in writing to pay Contractor at specified rates on a time and materials basis for such Additional Services. The general terms and conditions of this Agreement shall apply to any Additional Services unless explicitly provided for otherwise in the work order for such Additional Services. 3. Term. The term of this Agreement for Maintenance Services (the "Term") shall commence upon the date of receipt of Owner's payment of the Annual Fee by Contractor (the "Payment Date"), and, unless terminated earlier in accordance with the terms and conditions provided herein, shall continue until the first -year anniversary of the Payment Date. Thirty (30) days prior to the expiration of the Term, Contractor shall invoice Owner for the Annual Fee then in effect (the "Renewal Fee"). Upon Owner's payment of the Renewal Fee, this Agreement shall renew for an additional one-year term (each an "Extension Term") on the same terms and conditions contained herein. If payment of the Renewal Fee is not received pursuant to the terms of such invoice, then this Agreement shall expire and be of no further force or effect, except those provisions that expressly survive the termination hereof. 4. Annual Fee. Owner shall pay Contractor an annual fee for Contractor's performance of the Maintenance Services during the Term and each Extension Term in the amount determined by multiplying (i) the cost per visit set forth in the section above entitled Maintenance Services (which amount may be amended from time to time by Contractor) by (ii) the frequency of visits selected by Owner as set forth on the first page of this Agreement (the "Annual Fee"). S. Payment of Annual Fee. The www.atecwater.com 3 © ATEC Water Systems LLC 2024 17 of 22 Docusign Envelope ID: FACE8689-17CA-4115-879E-69F00907594C EXHIBIT Annual Fee shall be due and paid by Owner to Contractor upon execution by the Parties of this Agreement. The Annual Fee and any Renewal Fee shall be fully earned and non- refundable upon payment. 6. Invoiced Fees. Any Additional Services provided by Contractor shall be paid within thirty (30) days of the invoice date, unless provided otherwise in the work order for such Additional Services. Replacement Parts shall be invoiced separately and shall be paid within thirty (30) days of the invoice date. 7. Disputed Payments. If there is a dispute about any amount invoiced by Contractor, Owner shall pay the undisputed amount pursuant to Section 6, and any disputed amount which is ultimately determined to be payable shall be paid immediately upon such resolution, along with interest in accordance with the provisions of Section 8. 8. Past Due Amounts. Any amounts due under this Agreement, other than disputed payments that are determined to have been properly withheld by Owner, if not timely paid when due, shall bear interest from the date payment is due at the lesser of the rate of one and a half percent (1.5%) per month or the maximum rate allowed by law. 9. Standard of Services. Contractor shall perform the Maintenance Services and Additional Services (collectively, the "Services") in accordance with the terms of this Agreement and all applicable laws, permits, and regulations. 10. Materials and Equipment. Contractor shall provide all tools and equipment needed to perform the Services. Contractor shall procure, at Owner's expense, all replacement parts, media, components and equipment attached to, part of or constituting the System (collectively, "Replacement Parts") necessary for the performance of the Services during the Term. Notwithstanding the foregoing, Contractor shall not be responsible for any installation or disposal of any media procured by Contractor as Replacement Parts; Owner shall be solely responsible for the installation and/or disposal of any media procured by Contract as Replacement Parts. 11. Emergency. In the event of any Emergency, Contractor shall take such action as may be reasonable and necessary to prevent, avoid or mitigate injury, damage or loss to the System and shall, as soon as possible, report any such incident, including Contractor's response thereto, to Owner. If Contractor is not immediately available, Owner may take such action as may be reasonable and necessary to prevent, avoid, or mitigate injury, damage or loss to the System, and shall report to Contractor in writing the specific mitigation actions taken within five (5) days of such actions. For purposes of this Agreement, an Emergency shall mean an event occurring at the Site, or an adjoining property, that (i) poses actual or imminent risk of serious personal injury or material physical damage to the System, and (b) requires, in the good faith determination of Contractor or Owner, immediate preventative or remedial action. 12. Place and Hours of Services. Except in the event of an Emergency, Contractor shall perform its Maintenance Services on the System at the Site during Contractor's regular business hours. 13. Owner Responsibilities. Owner agrees to provide the following: www.atecwater.com 4 © ATEC Water Systems LLC 2024 18 of 22 Docusign Envelope ID: FACE8689-17CA-4115-879E-69F00907594C EXHIBIT (a)Utilities (electric and water) for Contractor's use while on the Site. (b) Give Contractor access to the System upon mutually agreeable reasonable times and conditions. (c) Ensure proper disconnection of the System from Owner's [water service] to allow Contractor to perform the Services, as needed, and ensure proper reconnection of the System to Owner's [water service] after Contractor has performed such Services. (d) If any, copies any special maintenance requirements of any of Owner's insurance policies. 14. Subcontractors. Contractor may engage subcontractors as it deems advisable for the purpose of performing or carrying out any of its obligations under this Agreement and Contractor shall be liable for such subcontractor. Nothing in this Agreement shall be construed to impose on Owner any obligation, liability or duty to a subcontractor, or to create any contractual relationship between such subcontractor and Owner. 15. Access to Site and System. Owner shall provide Contractor and its subcontractors, agents and employees with reasonable access to the Site and the System during reasonable times as required for Contractor to perform its obligations under this Agreement. Contractor will use reasonable efforts to schedule Services in advance with Owner. Contractor shall not be responsible for connecting and disconnecting the System from Owner's [water service] while Services are being performed by Contractor. While Contractor is performing Services at the Site, Owner shall ensure that Owner or an authorized representative of Owner is available and physically present at the Site to ensure the System is properly disconnected and reconnected to Owner's [water service]. Owner hereby acknowledges and agrees that Owner shall be solely responsible for disconnecting and reconnecting the System from Owner's [water service] and that Contractor shall have no liability for any issues arising from or in connection with the disconnecting or reconnecting the System to Owner's [water service]. 16. Preferred Provider. During the Term, Contractor shall be the preferred provider of Maintenance Services for the System. Owner shall notice and inform Contractor of the performance of, any repair, maintenance or monitoring activities, on or related to the System by Owner and an alternative provider. In the event, Owner or an alternative provider undertake, any repair, maintenance or monitoring activities related to the System, as between Owner and its alternative provider on the one hand, and Contractor on the other hand, Owner and its alternative provider shall bear full and complete responsibility for these actions. 17. Termination. Prior to the expiration of the Term, either Party may terminate this Agreement immediately upon written notice if the other Party breaches any material term or condition of this Agreement, and such other Party has not cured such breach within thirty (30) business days after being provided written notice of such breach by the other Party. If this Agreement is terminated by Contractor during the Term, Contractor will be entitled to retain any Annual Fee paid by Owner prior to termination of this Agreement by Contractor and payment for any and all Additional Services performed prior to termination of this Agreement by Contractor. If this Agreement is terminated by Owner during the Term, Owner will be obligated to remit www.atecwater.com 5 © ATEC Water Systems LLC 2024 19 of 22 Docusign Envelope ID: FACE8689-17CA-4115-879E-69F00907594C EXHIBIT any and all payments due to Contractor for any and all Additional Services performed and Replacement Parts provided prior to termination of this Agreement by Owner. Upon termination of this Agreement, all rights and duties of the Parties toward each other shall cease except Sections 3, 5, 6, 17, 20, 21, 22, 23, 25 and 33 of this Agreement, which shall survive the termination of this Agreement. 18. Delays Beyond Contractor's Control. Contractor shall be excused for any delay in performance of its obligations under this Agreement caused by acts of God; acts of Owner, of Owner's agents, or of Owner's employees or independent contractors; inclement weather; labor strikes, lockouts, labor disputes, embargo or other form of civil disturbance beyond Contractor's reasonable control; acts of public utilities, public bodies, or governing agencies; any delay in receipt of materials from suppliers due to reasons beyond Contractor's reasonable control; Federal holidays; material or supply shortages; any delay resulting from a manufacturer's response to a warranty claim or request; or Owner's failure to make payments as required under this Agreement. 19. Insurance. Owner shall maintain property insurance on the System for all risk of loss, including theft, vandalism, and fire insurance. Owner agrees and understands that Contractor's insurance does not provide Owner with protection from loss or damage to the System or Owner's property. This Agreement is not an insurance contract. 20. Indemnity. Each Party shall indemnify the other Party, and its directors, officers, employees, agents, representatives, affiliates and subcontractors, defend, and hold them harmless for all third party claims, demands or liability arising from or encountered in connection with this Agreement or the prosecution of the Services hereunder, but only to the extent of the willful misconduct or negligent acts or omissions of the indemnifying Party, its directors, officers, employees, agents, representatives, affiliates and subcontractors. The indemnifying Party shall not be required to defend, indemnify or hold harmless the other Party, or its directors, officers, employees, agents, representatives, affiliates and subcontractors, for any willful or grossly negligent acts or omissions of the other Party or its directors, officers, employees, agents, representatives, affiliates and subcontractors. 21. LIMITATION OF LIABILITIES. EXCEPT FOR DAMAGES OR LIABILITY ARISING IN CONNECTION WITH THE PARTIES' INDEMNIFICATION OBLIGATIONS UNDER SECTION 20, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, LOSS OF USE OR COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES. THERE ARE NO WARRANTIES BY CONTRACTOR UNDER THIS AGREEMENT, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. EACH PARTY'S TOTAL LIABILITY WITH RESPECT TO ANY AND ALL CLAIMS REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE www.atecwater.com 6 © ATEC Water Systems LLC 2024 20 of 22 Docusign Envelope ID: FACE8689-17CA-4115-879E-69F00907594C EXHIBIT OF ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT, OR THE USE OF THE SERVICES BY OR ON BEHALF OF OWNER, OR ANY OTHER THIRD PARTY, SHALL BE SOLELY FOR DIRECT DAMAGES. NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT. ADDITIONALLY, EXCEPT OF THE INDEMNIFICATION OBLIGATIONS IN SECTION 20, IN NO EVENT WILL CONTRACTOR'S TOTAL LIABILITY FOR ANY CLAIMS OR CAUSES ARISING OUT OF THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, EXCEED THE COMPENSATION PAID OR DUE PAYABLE TO CONTRACTOR PURSUANT TO THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IT IS THE INTENT OF THE PARTIES THATTHE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. 22. Arbitration. Except as expressly provided herein, all controversies, claims and disputes arising from or relating to this Agreement will be resolved by final and binding arbitration before a single neutral arbitrator located in Los Angeles, California, conducted under the applicable commercial arbitration rules of the American Arbitration Association. The arbitrator's award will be final and binding upon the parties and judgment may be entered on the award. Each party expressly waives its right to have any controversies, claims or dispute arising from or related to this Agreement decided by a court or jury. Nothing herein will prohibit or prevent any party from seeking or obtaining injunctive or other equitable relief in court to enforce the agreement between the parties. 23. Title to Materials. Title to all Replacement Parts and other items purchased or obtained by Contractor hereunder shall remain in Contractor's name until Owner has made all payments required under this Agreement. A copy of all manuals and warranties related to the Replacement Parts shall be delivered to Owner upon expiration or termination of this Agreement. 24. Time of the Essence. All time limits stated in this Agreement are of the essence to this Agreement, and failure to comply with this provision shall be a material breach of this Agreement. Unless otherwise expressly stated, all references in this Agreement to days mean calendar days. 25. Attorney Fees. If either Party becomes involved in arbitration or litigation arising from this Agreement or the performance of it, the court or tribunal in such arbitration or litigation or in a separate suit shall award reasonable costs and expenses of arbitration and litigation, including expert witness fees and attorney fees, to the prevailing party or parties. 26. Assignment. Owner may not assign this Agreement or any of its obligations hereunder without Contractor's written consent, such consent not to be unreasonably withheld, conditioned or delayed. www.atecwater.com 7 © ATEC Water Systems LLC 2024 21 of 22 Docusign Envelope ID: FACE8689-17CA-4115-879E-69F00907594C EXHIBIT 27. Notice. Any notice required or permitted under this Agreement shall be deemed given, if in writing, on the earlier of delivery or three (3) days after deposit in the U.S. Mail, first-class postage prepaid, registered, return receipt requested or via nationally recognized overnight courier or on the same business day if delivered by email before 5 p.m. Pacific Time, or if delivered later, the next business day thereafter, and addressed to the Party at the address shown in this Agreement, although such address may be changed by written notice from one Party to the other as necessary. 28. Integration. This Agreement constitutes the entire agreement of the Parties. No other agreements, oral or written, pertaining to the Services to be performed under this Agreement exist between the Parties. This Agreement may be modified only by an agreement in writing signed by both Parties. 29. Headings. The headings herein have been inserted for convenience of reference only and shall not in any manner affect the construction, meaning or effect of anything herein contained nor govern the rights and liabilities of the Parties. 30. Severability. If any provision of this Agreement is deemed to be invalid, that provision shall be disregarded, and the remainder of this Agreement shall be construed as if the invalid provision had not been included. 31. No Waiver of Rights. Except as may be specifically agreed in writing, the failure by any Party to insist in any one or more instances upon the strict performance of any one or more of the provisions of this Agreement or to exercise any right herein contained or provided by law or equity, shall not be construed as, or constitute in any way, a waiver, modification or relinquishment of the performance of such provision or right(s), or of the right to subsequently demand such strict performance or exercise such right(s), and all such rights shall continue unchanged and remain in full force and effect. 32. Construction. All references herein to any agreement shall be to such agreement as amended, supplemented or modified from time to time. All references to a particular entity shall include a reference to such entity's successors and permitted assigns. The words "herein", "hereof" and "hereunder" shall refer to this Agreement as a whole and not to any particular section or subsection of this Agreement. The singular shall include the plural and the masculine shall include the feminine and neuter, and vice versa. "Includes" or "including" shall mean "including, without limitation." All exhibits, schedules and appendices to this Agreement are hereby incorporated herein by reference. 33. Governing Law. This Agreement shall be construed in accordance with, and governed by, the laws of the State of California. This section shall not prevent application of the Federal Arbitration Act to any dispute that may arise under this Agreement. 34. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which will together constitute one instrument. A signed copy of IP Assignment delivered by facsimile, e-mail, PDF, DocuSign or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Assignment. www.atecwater.com 8 © ATEC Water Systems LLC 2024 22 of 22