memorandum - mwatoday.com...11. resolution 11-18-06 – approval for p-53, tipping floor repair...

300 E. Locust Street, Suite 100 Des Moines, IA 50309

515-244-0021

MEMORANDUM

DATE: November 9, 2018

TO: MWA Board Members

CC: MWA Staff

FROM: Michael McCoy, Executive Director

RE: Wednesday, November 14, 2018, Board Meeting This month’s board meeting is scheduled for Wednesday, November 14, 2018, at 5:45 p.m. in the boardroom at Central Office (300 East Locust Street, Ste. 100, Des Moines, Iowa). If you have questions about any items listed below, please call me at 323-6535 (w) or 707-3869 (c). I look forward to seeing you on Wednesday.

The following numbered items correspond with the number of the item on the agenda:

Regular Agenda Items for Approval

11. Resolution 11-18-06 – Approval for P-53, Tipping Floor Repair Project Completionat Metro Central Transfer Station – Action ItemConstruction of Metro Central Transfer Station tipping floor repair project iscomplete. Minturn, Inc. completed floor replacement, push wall extension, trenchdrain replacement, hopper skirt repair, and fueling station. The project wascompleted under budget and under the contracted amount. Staff recommendsapproval.

12. Resolution 11-18-07 – Approval to Purchase Trommel Screen at Metro Park EastLandfill – Action ItemTwo bids were received, and the units were demoed. Based on the staff evaluation,ease of usability, versatility, and long term maintenance, Ecoverse is therecommended vendor in the amount of $330,000.00. This unit is scheduled toreplace the 2003 Powerscreen 830 trommel screen. The trommel screen is used atthe compost pad to remove large particles in the compost, providing properly sizedcompost. Staff recommends approval.

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Board of Directors 2018 Calendar Year

Dean O’Connor Chair

Mark Holm Vice-Chair

Dean O’Connor

Altoona

Mark Holm Ankeny

Wes Enos Bondurant

John Edwards

Clive

Josh Mandelbaum Des Moines

Kevin Smith

Elkhart

David Gisch Grimes

Matt Brown Johnston

Dean McGee Mitchellville

Ed Kuhl Norwalk

Barb Malone Pleasant Hill

Rob Sarchet

Polk City

Tom Hockensmith Polk County

Gerald Lane

Runnells

Ron Pogge Urbandale

John Mickelson

West Des Moines

Threase Harms Windsor Heights

Michael McCoy Executive Director

Metro Waste Authority Board Meeting

November 14th, 2018

MWA Central Office 300 E. Locust Street, Suite 100, Des Moines, IA 50309

5:45 p.m.

Agenda

1. Call to Order, Roll Call 2. Approval of Regular Agenda 3. Public Forum CONSENT AGENDA The following are routine items enacted by one roll call vote without separate discussion unless someone, Board or Public, requests an item be removed for consideration: 4. Approval of Consent Agenda – Items 4 through 10

5. Consideration of Minutes October 17, 2018 Metro Waste Authority Board

Meeting – Action for Approval

6. Resolution 11-18-01 - Consideration of June 2018, Financial Statements – Action to Receive and File

7. Resolution 11-18-02 - Consideration of July 2018, Financial Statements –

Action to Receive and File 8. Resolution 11-18-03 - Consideration of August 2018, Financial Statements –

Action to Receive and File

9. Resolution 11-18-04 - Consideration of September 2018, Financial Statements – Action to Receive and File

10. Resolution 11-18-05 – Consideration of October 2018, Monthly Expenditures –

Action for Approval END CONSENT AGENDA Regular Agenda Items for Approval – Items 11 and 12

11. Resolution 11-18-06 – Approval of P-53, Tipping Floor Repair Project

Completion at Metro Central Transfer Station – Action Item

12. Resolution 11-18-07 – Approval to Purchase Trommel Screen at Metro Park East Landfill – Action Item

13. Director’s Report

14. Chair’s Report

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MWA Board Meeting November 14, 2018

15. General Board Discussion and Other Business 16. Correspondence

17. Adjournment

December Executive/Finance Meeting: December 7, 2018, MWA Central Office, 300 E. Locust Street, Suite 100, Des Moines, IA 50309, 12:00 p.m. December Board Meeting: December 19, 2018, MWA Central Office, 300 E. Locust Street, Suite 100, Des Moines, IA 50309, 5:45 p.m.

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300 E. Locust Street, Suite 100

Des Moines, IA 50309 515-244-0021

October 17, 2018 Unofficial Metro Waste Authority Board Meeting Minutes

1. Call to Order

The meeting was held at Metro Waste Authority’s Central Office. Dean O’Connor, chair, called the October 17, 2018, Metro Waste Authority board meeting to order at 5:45 p.m. A quorum was present.

Roll Call – MWA Board Representatives/Alternates in Attendance Dean O’Connor, Altoona Mark Holm, Ankeny John Edwards, Clive Josh Mandelbaum, Des Moines David Gisch, Grimes Matt Brown, Johnston Jon Woods, Mitchellville Barb Malone, Pleasant Hill Rob Sarchet, Polk City Tom Hockensmith, Polk County Gerald Lane, Runnells Dave McKay, Urbandale Bret Hodne, West Des Moines Mike Loffredo, Windsor Heights

2. Approval of Regular Agenda

Moved by Clive, seconded by Mitchellville, to approve the October 17, 2018, board meeting agenda as presented. Motion carried unanimously by voice vote.

3. Public Forum

There were no requests to address the Board. ______________________________________________________________________ CONSENT AGENDA The following are routine items enacted by one roll call vote without separate discussion unless someone, Board or Public, requests that an item be removed for consideration:

4. Approval of Consent Agenda – Items 4 through 6

Moved by Clive, seconded by Polk County, to approve the Consent Agenda, items 4 through 6. Motion carried unanimously by voice vote.

5. Consideration of Minutes of September 19, 2018, Metro Waste Authority Board Meeting – Action for Approval

6. Resolution 10-18-01 - Consideration of September 2018, Monthly Expenditures - Action for Approval

END CONSENT AGENDA ___________________________________________________________________________

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Regular Agenda Items for Approval - Items 8 through 10 7. Resolution 10-18-02 - Approval of Vendor Agreement for Recycling and Disposal of

White Goods - Action Item Moved by Clive, seconded by Pleasant Hill, to approve Resolution 10-18-02. Motion carried unanimously by voice vote.

Judi Mendenhall, Director of Recycling & Diversion, reported that an RFP was sent out in August 2018. Metro Waste Authority received three proposals, however, two of the proposals withdrew prior to the completion of the evaluation. Judi spoke about staff checking in to the possibilities of remanufacturing a percentage of the white goods internally or partnering with an organization to repair the white goods for disadvantage families or for resell. Staff recommends approval of the agreement for recycling and disposal of white goods with A-Line Iron and Metals.

8. Resolution 10-18-03 - Approval of Owner’s Representative Agreement for Development of Materials Recovery Facility Development - Action Item Moved by Clive, seconded by Grimes, to approve Resolution 10-18-03 with the addition of a cap of $20,000 on hourly fees. Motion carried unanimously by voice vote. Michael McCoy, Executive Director, reported the next step to move forward with a recycling center is to bring on owner’s representation to assist MWA in the process. Staff recommends Christensen Development to provide representation and guidance with next steps, including team selection, presenting MWA project committee solutions for project challenges, change order management, and cost control. Board members discussed the hourly rates and approved the resolution with a cap on the hourly rate.

9. Resolution 10-18-04 – Approval of Revised Recycling Processing Contract with Mid

America Recycling - Action Item Moved by Polk County, seconded by Mitchellville, to approve Resolution 10-18-04. Motion carried unanimously by voice vote. Michael McCoy reported that after a year of contract discussion, the Recycling Processing Committee would recommend for approval the proposed contract with Mid America Recycling. The contract would be a three-year term with an increase processing fee from $47.47 to $65.00 per ton. MWA will internalize the increase through this budget year. In the agreed contract, the revenue share adjusted to a 60/40 split. Options for covering the increase long-term are being researched and staff will be in discussions with city managers in the coming months.

10. Director’s Report

Michael introduced Joe Farris, the new Disposal Operations Manager for Metro Park East and Metro Park West Landfill. McCoy discussed there was only one bid for the purchase of a new roll off truck and it was over budget. Staff will look into why and will seek other options. McCoy announced that Gail Hopkins, Accounting Specialist at Metro Park West, will be retiring at the end of the year. Gail has been with Metro Waste Authority for 5 years.

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The November board meeting will be held at Central Office (300 E. Locust Street, Ste. 100, Des Moines, Iowa) on Wednesday, November 14, 2018 at 5:45 p.m. This date is a week early due to Thanksgiving. At this time, there will not be an Executive/Finance Committee meeting.

11. Chair’s Report

Dean O’Connor announced that the audit committee needs members. If interested, Board Members can contact the Chair. O’Connor announced the materials recycling facility committee: Ron Pogge, Urbandale; Tom Hockensmith, Polk County; Mark Holm, Ankeny, and Dean O’Connor, Altoona.

12. General Board Discussion and Other Business

No report.

13. Closed Session Moved by Clive, seconded by Johnston, to enter closed session at 6:15 p.m. as provided in Iowa Code Chapter 21.5.1.c to discuss strategy with counsel in matters that are presently in litigation or where litigation is imminent where its disclosure would be likely to prejudice or disadvantage the position of the governmental body in that litigation. In addition, the discussion was exempt from Iowa Code Chapter 21 pursuant to the case law on attorney/client privilege as codified in Iowa Code Section 622.10. Motion carried unanimously by roll call vote. No action was taken during the closed session.

A motion was made by Clive, seconded by Polk County, to adjourn closed session at 7:37 p.m. Motion carried unanimously by voice vote. The public meeting reconvened at 7:38 p.m.

14. Adjournment

Moved by Polk County, seconded by Polk City, to adjourn the October 17, 2018, board meeting. Motion carried unanimously by voice vote. Meeting adjourned at 7:39 p.m. __________________________________ _____________________________

Michael McCoy, Executive Director Dean O’Connor, Chair

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Metro Waste Authority Board Monthly Board Meeting

November 14, 2018

AGENDA ITEM 11

ITEM Approval of Final Completion and Closeout of Project P-53, Tipping Floor Repair Project at Metro Central Transfer Station (MCTS).

SUMMARY Construction is complete. Contractor is requesting final acceptance and payment.

PREVIOUS BOARD ACTION March 2018 – Board approved Minturn, Inc. as the contractor with a low bid of $496,400.00. September 2017 – No bids received. No board action taken. August 2017 – Approved professional services for Engineering of Bid Documents and Construction Quality Assurance (CQA) for Tipping Floor Replacement project at MCTS ($59,800).

BUDGET REQUIREMENTS The funds are available in the Capital and Equipment Fund. Budgeted amount was $900,000.00. The project was completed under budget and under the contracted amount.

DISCUSSION POINTS Minturn, Inc. has completed construction. All closeout documents have been submitted. The final value of the work is $494,052.00. There was one change order of (-$2,348.00) to remove the seeding and Turf Reinforcement Mat (TRM) requirements. The seeding and TRM items will be added to the P-56, MCTS Tarping Building Addition Project. The construction included:

• Floor Removal/Replacement • Trench Drain Removal/Replacement • Push Wall Extension • Hopper Skirt Repair • Fueling Station

MWA staff believes the work has been satisfactorily performed in accordance with contract specifications. In accordance with the Iowa Code, the 5% retainage ($24,702.60) will not be made until 30 days after acceptance of Final Completion by MWA Board. This is to ensure the legally required time frame has passed for any liens to be filed on the project.

Figure 1 Compost Facility

Photo 2 – MCTS Fuel and Turnout Lane

Photo 1 – MCTS Floor

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STAFF RECOMMENDATION Staff recommends that the Board accept the project as complete and release the retainage payment to Minturn, Inc.

CONTACTS Yuta Naganuma, Site Engineer Phone: 333-4446

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Metro Waste Authority Board Monthly Board Meeting

November 14, 2018

AGENDA ITEM 12

ITEM Approval to Purchase Trommel Screen

SUMMARY Two proposals were received for a trommel screen. The unit is scheduled to replace for 2003 Powerscreen 830 trommel screen. MWA demoed trommel screen units from Ecoverse and Vermeer. Based on the staff input and ease of usability, Ecoverse is the recommended vendor in the amount of $330,000.00.

Table 1: Summary of Proposals

Vendor Vermeer Ecoverse

Model Vermeer TR626 Self-Contained Trommel

Screen

Doppstadt SM 726 SA Plus Trommel

Price $300,335.08 $330,000.00

BUDGET REQUIREMENTS The trommel screen is a budgeted item. The recommended proposal is $6,960 (2%) under the budgeted amount of $336,960 and funds are available in the Capital Equipment Fund.

DISCUSSION POINTS A trommel screen is used at the Metro Compost Center (MCC) facility at Metro Park East Landfill (MPE) to provide a properly sized compost product by removing the large particles. Both Vermeer and Ecoverse units were demoed onsite. Although the Doppstadt unit is slightly more expensive, the ease of usability, versatility, and long term maintence were the key points for the selection of the Ecoverse unit. Specifically, the screen drum is replaceable in fifteen minutes (oppose to days for the other vendors). MWA is working with Polk Soil and Water Conservation District on obtaining potential United States Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) grant projects for farm practices. One of the potential projects is to create buffers using specific size woodchips. With the proposed Ecoverse unit, we will be able to quickly exchange different size screen drum to create woodchips for the NRCS project. The proposal includes a 1-year or 1,000-hour machine warranty.

STAFF RECOMMENDATION Staff recommends that the Board accept the proposal from Ecoverse for a total cost of $330,000.00.

ATTACHMENTS Attachment A – Ecoverse Proposal

CONTACTS Yuta Naganuma, Site Engineer Phone: 333-4446

Fig 1. – Trommel Screener

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Ecoverse 1265 Lear Industrial Parkway, Avon, OH 44011 440-937-3225 www.ECOVERSE.net Confidential pricing of Ecoverse: Ecoverse considers its customer and dealer pricing confidential and should not be disclosed to persons outside the company or

authorized dealers or distributors. Proposal is valid for 30 days from issuance. Metro Waste Authority - SM-532-A 103118 Page 1 of 3

October 31, 2018

Proposal for: Metro Waste Authority

Proposal # SM-532-A

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PROPOSAL #: SM-532-A

DATE: October 31, 2018

TO: Metro Waste Authority

300 East Locust Street, Suite 100

Des Moines, IA 50309-1864

ATTN: Joe Ferris

DOPPSTADT SM 726 SA PLUS TROMMEL SCREENING: Screening area equivalent to 7’ diameter x 26’

length Complete with punch plate drum, replaceable

in 15 minutes Continuous load-sensing material feeding

from the hopper belt to the screening drum Hopper approximately 9.5 cubic yards Hydraulically-tensioned cleaning brush

ENGINE, MECHANICAL & HYDRAULICS: Deutz TCD 3.6 LA, Diesel, 114 hp Certified EPA Tier 4 Final Fuel Capacity: 106 Gallons 2-stage fuel filter system Engine swings out at 90-degrees for ease of

access Central lubrication banks Hydraulically reversible fan wheel at water

and oil cooler ELECTRICAL & CONTROL PANEL SYSTEM: Doppstadt Telematic Monitoring System for

remote panel access and diagnostic by factory trained technician

24V Control Panel system with the following: − Emergency stop − Fold/unfold rear conveyor − Fold/unfold/buckle side conveyor

Continuously adjustable speeds: − Drum from 0-20 rpm − Hopper belt from 0-.18 y/s

Emergency stop switches at the side and rear conveyors

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CONVEYORS: Side conveyor - length: 18”, width 40”

− hydraulically foldable Rear conveyor - length: 18”, width 40”

− hydraulically foldable CHASSIS & TRANSPORTATION: Central axle-trailer chassis ABS braking system and road-legal light system Tires 435/50 R 19.5 2-inch EC trailer coupling ring including slip on coupling Hydraulically-adjustable jack-legs GENERAL INFORMATION: Permissible total weight: 52,911 lbs Paint: RAL 2011, deep orange

INCLUDED OPTIONS 16 channel radio remote for multiple machine functions

Price for SM 726 SA PLUS Trommel……………………………….……..…………………....... $330,000.00

Payment Terms: Payment in Full or Approved Financing Prior to Shipment of Machinery. Delivery Terms: F.O.B. Mitchellville, IA Taxes: All local, state and federal taxes are the responsibility of the customer. Terms / Warranty: 1-year or 1,000 hour machine warranty. See included Ecoverse General Terms & Conditions of

Sale. I, the undersigned, being authorized to sign on behalf of my company, agree to and authorize the purchase of the above detailed equipment under the noted and included terms & conditions. _________________________________________ ______________________ On behalf of Metro Waste Authority Date Presented and accepted by: _________________________________________ ______________________ On behalf of Ecoverse Date Notes:

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1265 Lear Industrial Pkwy Avon, OH 44011

TEL: (440) 937-3225 FAX: (440) 937-3411 www.ecoverse.net

General Terms and Conditions of Sale

These terms and conditions of sale (“Agreement”) govern the sale by Ecoverse, including its affiliates and subsidiaries (collectively, “Ecoverse”) of products and/or services and support (“Product”) sold in the United States. Notwithstanding any different, conflicting or additional terms or conditions which appear on any purchase order or other business forms submitted by a customer (“Purchaser”), such different, conflicting or additional terms will not become a part of the contract of sale between Ecoverse and Purchaser. 1. Acceptance. Upon receipt of a purchase order from Purchaser, Ecoverse shall issue an invoice for Products. Issuance of

an invoice to Purchaser constitutes acceptance of the contract and performance and/or shipment by Ecoverse will commence. If Purchaser does not wish to be bound by the terms of this Agreement, Purchaser must immediately notify Ecoverse.

2. Exclusive Terms. This Agreement supersedes all prior agreements, orders, quotations, proposals and other

communications regarding the Product, except that a signed prior agreement issued by Ecoverse, together with any other document incorporated by reference in this Agreement will continue to apply to the extent not directly in conflict with this Agreement.

3. Pricing and Payment Terms. All prices quoted are firm for the stated shipping date, unless specifically noted on the

proposal form. Proposals automatically expire thirty (30) days after issuance unless otherwise stated or accepted prior to the expiration date. Prices are subject however, to change without notice. Ecoverse reserves the right to change, including without limitation, specifications, package and/or designs as may be required. The obligations of Ecoverse to perform hereunder are subject to the strict observance of Purchase to the payment terms established by Ecoverse in its sole discretion. Ecoverse reserves the right to change its payment and shipping terms upon advance notice to Purchaser and may require payment in advance as a condition of shipment of Product. Ecoverse reserves the right, among other remedies, to terminate any sales contract with or suspend deliveries to Purchaser in the event Purchaser fails to make any payments when due.

4. Late Payments. Purchaser agrees to pay interest on all past-due amounts at the lower of one and one-half percent (1.5%)

per month or the highest rate allowed by law. In the event of a payment default, Purchaser will be responsible for all of Ecoverse’s costs of collection, including, but not limited to, court costs, filing fees and attorneys’ fees.

5. Tax. Any tax (other than income), duty or other governmental charge now or hereafter imposed on the Product or on

Ecoverse shall be paid by the Purchaser in addition to the sale price. The prices quoted do no include any duties or sales, use, excise, value-added, or other taxes or charges, unless specifically noted on the proposal form. Ecoverse shall invoice Purchaser for all applicable taxes. Purchaser remains liable for payment of such taxes in the event Ecoverse fails to issue an invoice.

6. Shipment, Title and Insurance. Unless otherwise stated, Product shall be shipped F.O.B. U.S. Port. Ecoverse assumes no

liability for loss or damage to the goods after delivery for shipment at U.S. Port. Title to Product and risk of loss shall pass to Purchaser upon delivery of the Product to the carrier by Ecoverse, except that a security interest in the Product, proceeds and any replacement shall remain in Ecoverse regardless of mode of attachment to realty or other property, until the full price has been paid in cash. Purchaser agrees to do all acts necessary to perfect and maintain said security interest, and to protect Ecoverse’s interest by adequately insuring the Product against loss or damage from any external cause with Ecoverse named as insured or co-insured. Purchaser hereby irrevocably constitutes and appoints Ecoverse as its attorney

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in fact to execute any financing statements or other instruments or documents reasonably necessary or desirable to perfect and maintain said security interest in the Product and proceeds.

7. Noncancellation. Purchaser may not cancel or terminate for convenience or direct suspension of manufacture unless

Ecoverse agrees in writing, at which time Ecoverse may negotiate mutually agreeable termination charges. 8. Warranty. Subject to the notice requirements in Paragraph 10 below, the following warranties are made by Ecoverse: (a)

Ecoverse warrants that it has good title to the Product; (b) on the date of shipment, the Product is as described herein, except as to items not manufactured by Doppstadt; and (c) on the date of shipment, the Product is free of defects in workmanship and material, except as to items not manufactured by Doppstadt.

THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE EXCLUDED FROM THIS TRANSACTION AND SHALL NOT APPLY.

9. No Production Warranty. Ecoverse cannot, does not, and will not warrant any rate of production or specific date of

delivery of the equipment quoted. This disclaimer of warranty is an integral part of this proposal, will be incorporated in the sale or rental agreement, and will survive the sale or rental of the equipment, together with the disclaimer of implied warranties of merchantability and fitness for a particular purpose, set forth hereinabove.

10. Exclusive Remedy. Except for any wear parts that are sold individually or incorporated into an item or Product, if within

one (1) year from date of shipment by Ecoverse, or within 1000 hours of operation of an item or Product (whichever comes first), Purchaser discovers that the Product was not as warranted and notifies Ecoverse in writing within thirty (30) days thereafter specifying the defect, Ecoverse shall, at Ecoverse’s option, adjust, repair or replace the Product or any affected part of the Product. Ecoverse shall bear reasonable expense of any parts and Ecoverse’s labor in connection with the foregoing remedies. Purchaser shall be responsible for all other expense including expenses for removal, reinstallation and freight in connection with the foregoing remedies. Replacement parts may be, at Ecoverse’s option, new or repaired parts and Ecoverse shall have the right to keep any parts replaced by it. The adjustment, repair or replacement shall be subject to the same warranties set forth above for a period of thirty (30) days or the remaining warranty period on the original item, whichever is longer. THE REMEDIES SET FORTH IN THIS PARAGRAPH CONTAIN PURCHASER’S EXCLUSIVE REMEDIES AGAINST ECOVERSE AND ITS SUPPLIERS RELATING TO THE PRODUCT, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY, AND WHETHER ARISING OUT OF WARRANTIES, REPRESENTATIONS, INSTRUCTIONS, INSTALLATIONS OR DEFECTS FROM ANY CAUSE.

11. Limitation of Liability. NEITHER ECOVERSE NOR ITS SUPPLIERS SHALL BE LIABLE, WHETHER IN

CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY FOR: (A) LOSS OF USE, REVENUE OR PROFIT; (B) FOR COST OF CAPITAL; (C) FOR SUBSTITUTE USE OR PERFORMANCE; (D) FOR INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES; (E) FOR ANY OTHER LOSS OR COST OF SIMILAR TYPE; (F) OR FOR CLAIMS BY PURCHASER FOR DAMAGES OF PURCHASER’S CUSTOMERS OR ANY THIRD PARTY. Ecoverse and its suppliers shall have no obligation as to any Product, which has been improperly stored or handled, which has not been installed, operated or maintained according to instructions in Ecoverse or supplier furnished manuals, or has been modified. Ecoverse and its suppliers shall not be liable for the fault, negligence or wrongful acts of Purchaser or Purchaser’s employees, or Purchaser’s other contractors and suppliers.

12. Damages. Notwithstanding any other provision of this Agreement, in the event of any liability incurred by Ecoverse or

any of its suppliers, the entire liability of Ecoverse and its suppliers for damages from any cause whatsoever will not exceed the purchaser price of the Product.

13. Force Majeure. Any delay or failure of Ecoverse to perform its obligations will be excused if and to the extent that it is

caused by an event or occurrence beyond the reasonable control of Ecoverse and without its fault or negligence such as: acts of God; restrictions, prohibitions, priorities or allocations imposed or actions taken by a governmental authority; embargoes; fires; explosions; natural disasters; riots; wars; sabotage; inability to obtain power; or court injunction or order. Ecoverse will give Purchaser notice within a reasonable time after Ecoverse becomes aware of any such delay.

14. Supply Delay. Any other delays incurred by Ecoverse, including but not limited to, delays in obtaining from other suitable

services, materials, components, equipment or transportation shall result in an extension of the time of performance equal

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to the period of the delay and its consequences. Ecoverse will give Purchaser notice within a reasonable time after Ecoverse becomes aware of any such delay.

15. Storage. Any item of the Product(s) on which manufacture or shipment is delayed by causes within Purchaser’s control, or

by causes, which affect Purchaser’s ability to receive the Product(s), may be placed in storage by Ecoverse at Purchaser’s expense and risk.

16. Default in Payment. In the event Purchaser defaults in making any payments to Ecoverse and Ecoverse places the invoice

and this agreement in the hands of an attorney for collection of the purchase price or other sums owing to Ecoverse from Purchaser, Purchaser agrees to pay Ecoverse’s reasonable costs and expenses of collection, including attorneys’ fees, whether or not any suit or action is filed and any additional costs, expenses, and attorneys’ fees incurred at trial or on appeal.

17. Non-Assignment. Ecoverse and Purchaser may not assign or delegate its obligation without the express written consent of

both parties which may be withheld for any or no reason. 18. Compliance with Laws. Ecoverse will comply with all laws applicable to Ecoverse. Compliance with OSHA or similar

federal, state, or local laws during any operation or use of the Product(s) is the sole responsibility of Purchaser. 19. Governing Law, Jurisdiction and Venue. These Terms and Conditions shall be governed by the laws of the State of Ohio.

Purchaser irrevocably submits to the exclusive jurisdiction of and venue in the courts located in Cleveland, Ohio. 20. General. Statements about the Product(s) may have been made to Purchaser by representatives of Ecoverse. Such

statements do not constitute warranties and shall not be relied on by Purchaser and are not part of this agreement. The entire agreement is embodied in this writing. THIS WRITING CONSTITUTES THE FINAL EXPRESSION OF THE PARTIES AGREEMENT AND IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE TERMS OF THE AGREEMENT.

Revised and Effective: April 27, 2009

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