5.2 ERMUSR 03-14-2023
UTILITIES COMMISSION MEETING
TO:
ERMU Commission
FROM:
Mike Tietz –Technical Services Superintendent
MEETING DATE:
March 14, 2023
AGENDA ITEM NUMBER:
5.2
SUBJECT:
Advanced Metering Infrastructure System Master Agreement – Core & Main
ACTION REQUESTED:
Approve AMI System Master Agreement between Elk River Municipal Utilities and Core & Main,
LP, subject to commission attorney approval per Commission Policy G.4i4.
BACKGROUND:
With our current Automated Meter Reading (AMR) system coming to its end-of-life cycle,
ERMU requested proposals for an Advanced Metering Infrastructure (AMI) system. After a
thorough review of proposals, Core & Main, LP, a distributor for Sensus’s FlexNet AMI system
was selected. In August of 2022, ERMU sent Core & Main, LP, a letter of intent stating our
desire to enter into negotiations to provide an AMI system including hardware and software.
DISCUSSION:
Core & Main, LP, the distributor for the new AMI system, and ERMU are in the final stages of
negotiating a master services agreement which addresses concerns pertaining to terms and
conditions, system performance, testing, commitments, liabilities, and warranties to the
satisfaction of both parties.
ERMU staff has reviewed this document in detail with legal counsel and believes it is ready to
be presented to the Commission for their review and approval pending final legal review.
FINANCIAL IMPACT:
ERMU staff is requesting commission approval to proceed with the signing of this contract
subject to commission attorney approval so that we may purchase the hardware, software, and
licensing necessary to allow us to proceed with the implementation of the AMI project. This is a
multi-year budgeted project that has been estimated to cost around $6 million over the next 2
years.
ATTACHMENT:
• AMI System Master Agreement
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AMI System Master Agreement
For entire AMI System
Between
Elk River Municipal Utilities
And AMI System Supplier
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Table of Contents
1. Recitals .................................................................................................................................3
2. Definitions............................................................................................................................3
3. Rules of Construction. .........................................................................................................6
4. Scope of this Agreement ......................................................................................................7
5. Term ...................................................................................................................................87
6. Agreement Price ...................................................................................................................8
7. Invoice and Payment ............................................................................................................9
8. Equipment Forecasts ............................................................................................................9
9. Purchase Orders ...................................................................................................................9
10. Amendments and Change Orders ................................................................................1110
11. Deployment Plan .............................................................................................................11
12. Coverage Commitment ...............................................................................................1211
13. Meter or Module Replacement for Non-Associating Meters ..........................................12
14. Major Catastrophic Meter or Module Failure .............................................................1312
15. Meter Disconnection or Reconnection Failure ............................................................1312
16. Tests and Inspections ......................................................................................................13
17. Right to Use AMI System Not Yet Accepted .............................................................1514
18. Right to Use Accepted AMI System ...........................................................................1514
19. AMI System Life Expectancy .....................................................................................1514
20. Time is of the Essence .................................................................................................1514
21. Liquidated Damages and Remedies ............................................................................1615
22. Supplier Representations .............................................................................................1716
23. Warranty ......................................................................................................................1716
24. Licenses .......................................................................................................................1918
25. Independent Contractor ...............................................................................................1918
26. Subcontractors .............................................................................................................1918
27. Insurance .....................................................................................................................2019
28. Indemnification ...........................................................................................................2120
29. Limitation of Liability .................................................................................................2220
30. Safety and Compliance with Codes and Other Laws ..................................................2221
31. Site, Supervision, and Safety.......................................................................................2221
32. Termination .................................................................................................................2322
33. Confidential and Proprietary Information ...................................................................2422
34. No Implied Waiver ......................................................................................................2524
35. Notice ..........................................................................................................................2524
36. Miscellaneous Requirements .......................................................................................2625
37. Site, Supervision, and Safety.......................................................................................2726
38. Force Majeure .............................................................................................................2827
39. Severability ..................................................................................................................2827
40. Survival .......................................................................................................................2927
41. Assignment ..................................................................................................................2927
42. Governing Law and Venue .........................................................................................2927
43. Publicity ......................................................................................................................2928
44. Entire Agreement ........................................................................................................2928
45. Execution in Counterparts ...........................................................................................2928
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Attachment I: FlexNet Hardware Maintenance Job Aid
Attachment II: AMI Requirements
Attachment III: Pricing
Attachment IV: Proposed Project Plan
Attachment V: Statement of Work and System Acceptance Test (ISAT and FSAT)
Attachment VI: Propagation Study
Attachment VII: Sample Reports (Purposely omitted form from MSA)
Attachment VIII: Maintenance and Support Agreements
Attachment IX: Software License Agreement
Attachment X: Warranties
Appendix A: Supplier’s Oral’s Presentation
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AMI System Master Agreement
This AMI System Master Agreement (“Agreement”) is effective December 31st, 2022
(“Effective Date”) by and between Elk River Municipal Utilities, a Minnesota municipal
corporation, (“ERMU”) whose principal office is located at 13069 Orono Parkway Elk River,
MN 55330, and Core & Main LP, whose principal office is located at 1830 Craig Park Court, St.
Louis, MO 63146 (“Supplier”) (individually referred to as “Party” or collectively as “Parties”).
1. Recitals
1.1. ERMU is a municipal corporation that serves about 13,600 electric and about 5,500 water
accounts within a service territory covering approximately 50 square miles.
1.2. Supplier is a Florida limited partnership engaged in the sale, installation, and support of
the SENSUS FlexNet® Advanced Metering Infrastructure (hereinafter referred to as “AMI
System”); and
1.3. ERMU desires to purchase from Supplier, and Supplier desires to provide to ERMU, the
AMI System and associated maintenance services for the AMI System according to this
Agreement.
For and in consideration of the foregoing recitals and the mutual promises, terms, conditions, and
warranties set forth herein, ERMU and Supplier hereby agree as follows:
2. Definitions
The following terms, when capitalized in this Agreement, shall mean as follows:
“Agreement” means this AMI System Master Agreement by and between ERMU and Supplier,
including all documents and exhibits attached hereto and incorporated herein by reference.
“Active Meters” means an installed Sensus FlexNet meter (with a SmartPoint Module installed)
or a Sensus SmartPoint Module which has been installed on a third party meter, and which, in
either case, is not an Unavailable Meter (or on an Unavailable Meter in the case of SmartPoint
Modules on third party meters) and which satisfies all of the following criteria: (i) it functions
properly, is powered and is not a damaged or failed meter; (ii) it is in a deployment area of
meters for Customer such that a sufficient number of two-way meters are in range of each other;
(iii) it is serviced by RF Field Equipment that has not been subjected to a power failure greater
than eight (8) total hours; (iv) neither it nor the RF Field Equipment that serves that meter has
been affected by a Force Majeure event; (v) jamming of the radio spectrum is not preventing or
interfering with radio communication to or from the meter; (vi) it is installed in the Service
Territory; (vii) it has not been reported to Customer under Sensus' or Customer’s preventative
maintenance; (viii) its functioning or performance has not been adversely affected by a failure of
Customer to perform its obligations or tasks for which it is responsible under this Agreement,
including, but not limited to, testing and confirming that the socket to which the meter will be/is
connected is in safe operating condition, is fully functional, is not corroded, does not contain
improperly installed jaws or other deficiencies, complies with ANSI standards, and is not hot,
damaged, or otherwise in need of maintenance or repair; (ix) its functioning or performance has
not been adversely affected by a failure or insufficiency of the back haul telecommunications
network of Customer for communications among the components of the Sensus FlexNet System;
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and (x) it has been installed in compliance with the procedures and specifications approved by
Customer and Sensus.
“AMI” means advanced metering infrastructure.
“AMI System” means Supplier’s Equipment, Firmware, Software, and field tools as may be
necessary to complete this Agreement, to include (but not limited to) Collectors, Endpoints,
Meters, Network Equipment, Routers, and Take-Out Points, as herein defined, whether or not
fully detailed on drawings (if any) or listed in detail in this Agreement.
“AMI System Warranty Period” means the duration of the manufacturer’s warranty as defined
in the manufacturer’s warranties attached hereto in Attachment X.
“Base Station” or “Collector” means a two-way radio communications device that transmits
data between the Meters, Routers, Endpoints and the central data center located at ERMU’s data
center.
“Confidential Information” means all information, data, materials, products, programs,
software, designs, drawings, specifications, manuals, financial information, technical
information, correspondence, customer information (including names, addresses, email
addresses, telephone numbers, and personal financial information), and other information
reasonably known to not be available to the general public that is disclosed orally, electronically,
or in any other intangible form by one Party to the other whether or not such information is
marked “Confidential” or “Proprietary.”
“Coverage Commitment” means communicating with ninety-nine percent (99%) of the
installed base of Active Meters shown in the Certified Propagation Study performed by Sensus
via on-request read within a three-day reading cycle (“Meter Read Rate”). Three-day reading
cycle is the seventy-two (72) hour period commencing the day of the relevant reading day for
such Available Meter and ending three days after such reading day.
“Coverage Commitment Term” means when full deployment of the base stations and meters
shown in the Certified Propagation Study are installed and have established communication with
the AMI System if and only to the extent ERMU maintains the system in accordance with
manufacturer recommendations set forth in the FlexNet Hardware Maintenance Job Aid attached
hereto as Attachment I, for the time period specified in the manufacturer’s warranty attached
hereto as Attachment X. Full deployment not to exceed past fourth quarter 2025.
“Delivery Date(s)” means (i) for Equipment, the date on which such Equipment is delivered in
accordance with the provisions for transportation and risk of loss in this Agreement; and (ii) for
Software, the earlier of the date on which ERMU downloads the Software, or thirty days after the
Supplier makes the Software available to ERMU for electronic download.
“Endpoint” means a sensory-type device, including, but not limited to, Meter, distribution
automation (DA) device, and load control switch that is equipped with a Module.
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“Equipment” means Network Equipment, Endpoints, Meters, Modules, Router, and any other
hardware that ERMU purchases from Supplier.
“Equipment Warranty Period” means the duration of the manufacturer’s warranty as defined
in the manufacturer’s warranties attached hereto in Attachment X.
“Final System Acceptance” means that ERMU has at the completion of Phase II Full
DeploymentDelivery, accepted the Work provided by Supplier after Supplier and ERMU, in
cooperation with the manufacturer, hasve performed a FSAT with results satisfactory to ERMU
as measured against the System Acceptance Test criteria set forth in Attachment V and satisfying
Specifications in Attachment I.
“FSAT” means Final System Acceptance test in after Phase II.
“Firmware” means software embedded in and provided with the Equipment.
“Initial System Acceptance” means the ERMU has, within six (6) months after completing the
Phase I Initial Deployment, accepted the Work provided by Supplier after ERMU and Supplier
have jointly performed an ISAT, with cooperation of the manufacturer, defined below, with
results satisfactory to ERMU as measured against the System Acceptance Test criteria set forth
in Appendix VIIAttachment V and satisfying Specifications in Attachment I.
“ISAT” means Initial System Acceptance test in after Phase I.
“Life Expectancy” means a term of fifteen (15) years beginning on the date of Final System
Acceptance.
“Meter” means a device that measures the supply of electricity and water provided by ERMU.
“Module” means a device used to connect to the AMI System provided by Supplier.
“Network Equipment” means the Collectors, Routers, fiber optic interface points, and radios
for radio frequency (RF) that are, or will be, under this Agreement physically deployed for
ERMU. The term does not include the AMI System backhaul, the network operations center, or
Meters.
“Non-Associating Meter” means an installed Meter and Module that have not established
communication with the AMI System within twenty-four (24) hours of the installation time
during Phase I and II or has lost communication with the AMI System for a period of twenty-
four (24) or more hours.
“Project Manager” means the individual designated by each Party as the representative acting
on the Party’s on behalf on matters relating to the planning and execution of the Work under this
Agreement.
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“Router” means Supplier-furnished Network Equipment that provides intermediate
communication and data processing between Endpoints and Collectors. Routers may also
communicate with other Routers.
“Services” means project management services, training, project delivery services,
commissioning services, and any other services described in Attachment V Statement of Work
and Attachment III Agreement Price.
“Sites” means all property where the Work is performed.
“Specifications” means any requirements for any product contained in this Agreement and the
appendices.
“Software” means computer applications and programs in any form that ERMU licenses from
Supplier or a third-party vendor to implement and use the AMI System as contemplated by this
Agreement.
“Subcontractor” means a person, persons, partnership, association, company, or corporation
engaged by Supplier to furnish any portion of the Work to Supplier.
“Supplier” means Core & Main LP.
“Work” means the performance of the Supplier’s requirements under this Agreement, including,
but not limited to, furnishing labor, Equipment, Services, Software, documentation,
transportation, and other tasks as may be necessary to meet the Supplier’s obligations under this
Agreement.
3. Rules of Construction.
The defined terms in this Agreement shall have the meanings set forth herein whenever the terms
appear in this Agreement, whether in the singular or the plural or in the present or past tense.
Words not otherwise defined herein that have well known and generally accepted technical or
trade meanings are used herein in accordance with such recognized meanings. In addition, the
following rules of interpretation shall apply:
1. The masculine shall include the feminine and neuter.
2. The singular includes the plural and vice versa.
3. The word “or” is not exclusive, unless a clear contrary intention exists.
The section and subsection names in this Agreement are only provided for convenience.
In no way do the section and subsection names restrict the applicability of the requirements to
the topic area given in the section or subsection name. For example, it is possible requirements
under a section labeled “hardware” could actually include software requirements unrelated to the
section or subsection title. Furthermore, it is possible that requirements listed under a particular
section or subsection name are not all the requirements for that topic within this Agreement, as
requirements on that topic may be listed in other sections, subsections, or appendices.
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This Agreement has been negotiated and prepared by ERMU and Supplier and the Parties’
respective attorneys and, should any provision of this Agreement require judicial interpretation,
the court interpreting or construing such provision shall not construe the Agreement more strictly
against either Party.
Unless otherwise expressly provided, use of the words “include” or “including” or similar words
shall be interpreted as “including but not limited to” or “including, without limitation, regardless
of whether “without limitation” or a similar phrase is included in the applicable provision.
4. Scope of this Agreement
Supplier shall deliver an AMI System to ERMU according to the terms of this Agreement. This
Agreement between ERMU and Supplier is comprised of (i) this Agreement, (ii) the appendices
listed in the table of contents of this Agreement, which are incorporated herein by reference, (iii)
any amendments agreed to by the Parties subsequent to the Effective Date of this Agreement,
and (iv) all instruments and documents issued or delivered pursuant to this Agreement, including
Supplier’s proposal submitted in response to ERMU’s RFP any and all purchase orders, purchase
order acceptance, purchase order acknowledgements, change orders, invoices, and other
instruments, which are incorporated herein by reference irrespective of whether any such
document expressly references this Agreement. In the event of a conflict between the terms of
any appendix, purchase orders, purchase order acceptance, purchase order acknowledgements,
change orders, invoices, or other instruments and the terms of this Agreement, the terms of
Supplier’s proposal followed by amendments to this agreement, this Agreement, Supplier’s
proposal, the appendices to this agreement, and any other instruments and documents issued or
delivered pursuant to this Agreement shall control. In the event of a conflict between the terms of
an amendment, and the terms of this Agreement, and the terms of Supplier’s proposal, the terms
of the amendment later enacted document shall control.
This Agreement incorporates, herein by reference, the terms and conditions of the following
documents. If there is a conflict among the documents, their terms and conditions shall prevail
in the following order:
Change Orders
AMI Master Services Agreement
Attachments in the order represented in this Master Services Agreement
Any terms and conditions contained in a purchase order, purchase order acceptance, purchase
order acknowledgement, change order, invoice, or other instrument now or hereafter delivered
by a Party pursuant to this Agreement other than quantities, service description, and other
required details and shipping instructions, will not apply, and each Party hereby waives and
rejects all such terms and conditions. Amendments addressing terms and conditions may only be
made in accordance with this Section 4 and Section 10.
In the event of an ambiguity in the Specifications, drawings, or other requirements of this
Agreement, Supplier must, before proceeding, consult ERMU, whose written interpretation shall
be final.
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5. Term
This Agreement is effective beginning on the Effective Date, which date shall not be earlier than
the date Supplier receives or delivers the Equipment required for Phase I hereunder, and shall
continue until Supplier’s completion of delivery of materials for Phase II.
This Agreement does not create a multiple fiscal year direct or indirect debt or other financial
obligation. All financial obligations of ERMU under this Agreement are contingent upon
appropriation, budgeting, and availability of specific funds to discharge such obligations.
6. Agreement Price
ERMU shall compensate Supplier for Work performed pursuant to this Agreement according to
the price information set forth in Attachment III –Pricing and the following milestone schedule.
The “Milestone Description” stated in the Milestone Payment Schedule is provided as a
summary only; this Agreement and the appendices provide the detailed scope of the Work,
deliverables, and requirements.
Table 1: Milestone Payment Schedule
Milestone Description Payment
Phase I Initial Deployment Area 95% of each monthly invoice for items
related to Phase I deployment area
5% Retainage
ISAT Successful completion of the ISAT
for the Phase I, Initial Deployment
Area
95% of each monthly invoice for items
related to Phase I Network Equipment
deployment area:
5% Retainage
Payment of Retainage after passing
ISATwithheld during Phase I
Phase II Full DeploymentDelivery 95% of each monthly invoice for items
delivered related to Phase II Network
Equipment deployment area:
5% Retainage
FSAT Successful completion of the FSAT
for all AMI System components
installed delivered during Phase II
Payment of retainage withheld during
Phase II
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All Equipment prices shall be fixed until December 31, 2025, or until all products required for
the project are delivered, whichever first occurs, and only for the quantities of materials specified
herein. The foregoing price lock is contingent upon ERMU ordering all materials required for
the project upon contract execution. Thereafter prices will be subject to increase based on prices
then prevailing.
7. Invoice and Payment
Invoices
Supplier will issue invoices to ERMU in accordance with Section 6. Invoices shall be emailed
electronically to invoice@ermumn.com with a copy to mtietz@ermumn.com. ERMU will
review, approve, and pay each undisputed invoice within thirty (30) days of receiving such
invoice and other documents as requested by ERMU to support the contents of the invoice.
In the event ERMU disputes or contests all or part of any invoice, ERMU reserves the right to
request a replacement invoice stating only the undisputed amount, pay any undisputed amount,
and withhold payment of any disputed amount. Such replacement invoice and the payment
thereof shall not constitute a waiver of any claims or defenses by either Party.
No payment shall be due to Supplier while Supplier is in default of any material provision in this
Agreement. ERMU may withhold from Supplier the amount of (i) any defective workmanship,
materials, and Equipment, or (ii) any claim by a third party against either Supplier or ERMU
arising from the scope of this Agreement.
Retainage
ERMU shall withhold retainage during Phases I and II of five percent (5%) of the total value of
the Work in each invoice. ERMU shall pay Supplier the withheld percentage for Phase I upon the
Supplier’s successful completion of the ISAT and the withheld percentage for Phase II upon the
Supplier’s successful completion of the FSAT as defined in Table 1 of Section 6.
Taxes
Supplier shall pay any tax, fee, or charge imposed by any governmental authority with respect to
the transactions under this Agreement and include such tax, fee, or charge for payment on the
applicable invoices submitted to ERMU.
8. Equipment Forecasts
Within thirty (30) days after the Effective Date of this Agreement, ERMU shall provide Supplier
a written forecast of total anticipated Supplier Equipment needs by month for the AMI System
deployment; ERMU shall revise and resubmit such forecast as necessary throughout deployment.
Failure to provide an accurate forecast, within reason, may negate the stated Supplier Equipment
lead times and may adversely impact delivery of the Equipment to ERMU.
9. Purchase Orders
Purchase Orders
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ERMU shall authorize Equipment purchases by issuing written purchase orders to Supplier by
electronic mail. The Supplier shall be deemed to have accepted a purchase order if the Supplier
delivers the Equipment that the ERMU ordered.
Order Lead Times
ERMU’s desired shipment dates shall take into account Supplier’s current lead times at the time
of the purchase order. Lead times will be provided to ERMU by a Supplier representative and are
defined as the cycle time from acknowledgement of the purchase order to fulfillment of the
purchase order.
Cancelling or Modifying a Purchase Order
ERMU may, without penalty, cancel or reduce a purchase order by written notice to Supplier no
later than sixty (60) days prior to scheduled delivery of the Equipment ordered on the purchase
order. If ERMU cancels or materially modifies a purchase order within sixty (60) days prior to
delivery, such purchase order may be subject to reasonable cancellation charges.
Notwithstanding the foregoing, cancellation charges do not apply to purchase order items
regarding Software or Services.
Transportation and Risk of Loss
Supplier shall be responsible for the proper packaging of Equipment provided hereunder and
shall exercise reasonable precautions to protect all shipments against damage in transit. The
method of transportation and routing shall be at the option of Supplier for delivery to the
destination designated by ERMU. Shipping will be F.O.B. destination, freight prepaid by
Supplier. Supplier shall be responsible for correcting and collecting for any damage or loss while
the Equipment is in transit and prior to receipt of the Equipment.
All material and workmanship shall be subject to inspection and testing at reasonable times and
places by ERMU before, during, and after performance and delivery. If any loss of or damage to
the Work or the AMI System or component thereof occurs prior to delivery to ERMU, ERMU
may require that Supplier promptly make all repairs or replacements at no cost to ERMU as
necessary to place the Work and AMI System in the condition required by this Agreement.
ERMU’s failure to inspect or test does not relieve Supplier of any responsibility to perform
according to the terms of this Agreement. Acceptance of the AMI System and Work by ERMU
shall not constitute acceptance as to latent or hidden defects not subject to discovery upon
reasonable inspection or testing.
Supplier shall notify ERMU in writing when any Equipment is ready for shipment. In addition to
the preceding, a complete packing list, tracking information and test record data file will be
provided with each shipment.
After delivery and inspection at destination, ERMU will be responsible for any loss, theft,
physical damage, or abuse that affects the operation of the AMI System and occurs while AMI
System is in the control of ERMU.
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10. Amendments and Change Orders
Changes to the terms and conditions of this Agreement can only be made by a written
amendment signed by duly authorized representatives of both Parties.
Changes to the scope of the Work, Agreement price, and schedule can only be made by a written
change order signed by duly authorized representatives of both Parties. No other verbal or
written communication or action or failure to act on the part of either Party can substitute for a
written amendment or change order.
Change Order Procedure. Either Party may request a change in the scope of the Work,
Agreement price, or schedule by providing a written change order request to the other Party in
advance. When a written change order is received, the receiving Party shall respond to the
request within ten (10) business days either accepting or denying the requested change. If no
response is made within the required time, the change order request will be deemed denied.
If the terms of a change order are agreed to, the requesting Party shall provide an executed copy
to the other Party for signature. The Party accepting the request shall sign and return the signed
change order to the requesting Party.
When invoicing for change order items, Supplier shall reference the change order and separately
identify the items subject to the change order.
11. Deployment Plan
The deployment shall occur in two phases. Phase I and Phase II are defined in Attachment V –
Statement of Work and shall be conducted according to Attachment VI IV - Deployment
Proposed Project Plan and the Schedule that will be developed and agreed to by the Parties prior
to beginning the Work. Phase I shall include but not be limited to:
Project design meeting; receipt of standard AMI System documentation and training
manuals covering the scope of this Agreement; review and approval of ERMU’s
coverage area and design drawings for the initial deployment area.
Configuration of AMI System server and hardware components and delivery of
configured software and hardware to ERMU; training on use of the Software for the AMI
System.
Delivery of Phase I base stations, collectors, repeaters, load management end devices,
gateways, Meters, and Modules as determined prior to Agreement signing.
Completion of onsite support and training covering Equipment installation, Meter or
Module, inspection of the Work and training installation, AMI System training including
support on report generation.
Successful completion of the ISAT and Initial System Acceptance.
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Phase I shall end on the date of Initial System AcceptanceSupplier completes its
obligations to deliver and install the AMI Infrastructure and deliver meters and
equipment.
Phase II shall include:
Phase II shall commence upon the completion of Phase Ithe ISAT and Initial System
Acceptance and shall include deployment delivery of meters and equipment to be
installed by others within the remaining service territory of ERMU not covered in Phase
I. Phase II may commence prior to completion of the ISAT and Initial System
Acceptance upon written agreement of both parties.
Phase II shall end on the date Supplier completes its obligations to deliver the quantity of
meters and equipment specified herein.
12. Coverage Commitment
Supplier shall satisfy the Coverage Commitment for the duration of the Coverage Commitment
Term only if and to the extent ERMU maintains the AMI System in a manner consistent with
manufacturer recommendations. In the event the Coverage Commitment is not met, the costs of
additional base station(s) will be the responsibility of Supplier.
ERMU shall calculate the Meter Read Rate monthly and summarize the information according to
categories agreed upon by both ERMU and Supplier. ERMU shall make the summary
information available to Supplier.
Within fifteen (15) days, ERMU will investigate any monthly Meter Read Rates that is not
achieved and report ERMU’s findings to Supplier in writing according to Supplier’s instructions.
Within fifteen (15) days of ERMU’s reported findings, both ERMU and Supplier will collaborate
to determine an acceptable strategy to resolve the problem. Once a strategy is identified, Supplier
and ERMU commit to resolve the source of the failure in a timely manner.
13. Meter or Module Replacement for Non-Associating Meters
ERMU shall conduct tests as new meters are being deployed to assure they are
working/communicating after installation at ERMU’s customer Sites.
If ERMU finds a Non-Associating Meter, ERMU will dispatch personnel to visit the Meter.
Supplier shall provide training, support, and documentation to ERMU to allow ERMU to
investigate Non-Associating Meter. If the Meter or Module is found to be defective, the Meter or
Module will be replaced by Supplier under the terms of the manufacturer’s warranty. The
defective Meter’s or Module’s serial number will be reported to Supplier, and the Meter or
Module returned to Supplier for replacement under the manufacturer’s warranty.
Supplier will examine the Non-Associating Meter and report the cause (“defect”) of Meter or
Module failure to ERMU once the cause has been identified. If the diagnosis leads Supplier or
ERMU to suspect other Meters or Modules may have the same defect, Supplier will identify the
appropriate serial numbers. Supplier will then dispatch technicians to ERMU offices to identify
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and replace provide replacements for defective Meters or Modules and ship them to the
appropriate location for repair or further inspection at no cost to ERMU pursuant to the Sensus
Return Material Authorization process. Supplier shall remedy the defect under the terms of the
manufacturer’s warranty.
For all Non-Associating Meters discovered during Phase I and Phase II Deployment and any
warranty period, Supplier shall provide ERMU with replacement Meters or Modules as needed
under the terms of the manufacturer’s warranty.
14. Major Catastrophic Meter or Module Failure
If during the AMI System Warranty Period a major catastrophic failure of the Meters or Modules
provided by the Supplier occurs (with “major failure” being defined as failure to perform
according to the Specifications of over two percent (2%) of the installed Meter or Module within
any rolling twelve (12) month period), correction will be pursued as set forth in the
manufacturer’s warrantyCatastrophic Electric Meter Warranty or Catastrophic Water Meter
Warranty attached hereto in Attachment X.
Meter and Module failures will be tracked by ERMU and reported to Supplier on a mutually
agreed schedule.
15. Meter Disconnection or Reconnection Failure
A Meter disconnection or reconnection failure is defined as any time the AMI System either a)
properly performs a disconnect command but cannot properly perform a reconnect command or
b) improperly initiates a remote disconnect to a single Endpoint or to multiple Endpoints and
remains unable to automatically reconnect power.
In case of such event, ERMU will inform Supplier, at which point correction will be pursued
pursuant to the manufacturer’s warranty.
16. Tests and Inspections
The Equipment furnished pursuant to the Specifications in the appendices to this Agreement
shall be in compliance with all of the standard commercial inspections and tests normally
performed by Supplier and its Subcontractors or other suppliers. Supplier shall furnish ERMU
with such certified information and test certificates as are normally made available to customers
of Supplier’s manufacturing divisions and subsidiaries and other manufacturers of Equipment
specified within. ERMU or its agent has the right to witness all factory and site tests and
inspections. ERMU shall not be required to accept any Equipment until the Equipment has
undergone and successfully met such tests and inspections.
ISAT. The Supplier and ERMU, in cooperation with the manufacturer, will complete an ISAT to
validate the completion of Phase I Initial Deployment of the AMI System by Supplier, in
accordance with the Specifications identified in the appendices to this Agreement, including
Supplier’s proposal and the Functional Testing and System Acceptance Testing Criteria set forth
in the attached Attachment V. ISAT shall be completed within six (6) months of the completion
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of Phase I unless the ISAT needs to be extended due to Supplier side delays or a Force Majeure
Event.
If all testing meets the pass criteria as set forth in Attachment V, the ISAT will be considered
successful, and deployment of the AMI System will proceed to Phase II.
Initial System Acceptance shall occur on the date ERMU indicates in writing its acceptance of
satisfactory completion of the ISAT, which acceptance shall be provided within ten (10 five (5)
days of the successful completion of the ISAT.
In the event testing criteria cannot be met or a defined functionality requirement cannot be
remedied as part of the testing, the Supplier shall notify ERMU in writing as soon as is
practicable and suggest alternate remedies without further costs to ERMU.
ERMU reserves the right to accept or reject any and all remedies proposed by the Supplier for
any reason and treat the failure to meet the testing criteria as a breach of this Agreement.
FSAT. Supplier and ERMU, in cooperation with the manufacturer, will complete a FSAT to
validateafter the completion of Phase II Full Deployment Delivery of AMI System by Supplier,
in accordance with the Specifications identified in the appendices to this Agreement, including
Supplier Proposal and the Functional Testing and System Acceptance Testing Criteria set forth
in the attached Attachment V. The FSAT shall be performed at the completion of Phase II Full
Deployment Delivery or thirty-six (36) months from the start of Phase II Full
DeploymentDelivery, whichever is shorter unless the FSAT needs to be extended due to Supplier
side delays or a Force Majeure Event.
Final System Acceptance shall occur on the date ERMU indicates in writing its acceptance of
satisfactory completion of the FSAT, which acceptance shall be provided within ten (10five (5)
days of the successful completion of the FSAT.
In the event testing criteria cannot be met or a defined functionality requirement cannot be
remedied as part of the testing, the Supplier shall notify ERMU in writing as soon as is
practicable and suggest alternate remedies to resolve the problem without further costs to
ERMU. ERMU reserves the right to accept or reject any and all remedies proposed by the
Supplier for any reason and treat the failure to meet the testing criteria as a breach of this
Agreement.
The parties acknowledge and agree that the foregoing ISAT and FSAT are a preliminary, high-
level test plan and subject to refinement. ISAT and FSAT testing will only apply to Available
Meters as defined in Attachment V. Unavailable meters will not be utilized or included in the
test population for ISAT and FSAT performance.
For all failed tests, Supplier and ERMU will agree:
1) To a remediation plan
2) Create a mutually agreed upon timeline for completing the remediation
3) A date for rerunning any test that failed previously
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If ERMU does not issue such notice within five days of completion of the tests, then the ISAT or
FSAT is automatically deemed successfully passed. If Supplier does not successfully complete
the ISAT or FSAT, then upon receipt of notice, Supplier shall fulfill its obligations, and the AMI
System will be retested within a reasonable time.
Notwithstanding the foregoing or anything contained herein to the contrary, in no event will
Supplier be liable for any delay in meeting or failure to meet the ISAT, FSAT, or any other
performance criteria that in any way relates to the untimely or improper installation of any
meters or equipment by ERMU or any other third party or any other work or service performed
by ERMU or a third party not under the direction or control of Supplier. The parties agree that
installation of meters will be performed by third parties outside the control of Supplier and
Supplier will not be responsible for any delays relating to installation of meters.
17. Right to Use AMI System Not Yet Accepted
At any time prior to the ISAT and FSAT, ERMU shall have the right to use the AMI System as
installed. Use of the AMI System prior to Final System Acceptance shall not result in any waiver
of any of ERMU’s rights under this Agreement and shall not be deemed acceptance of the AMI
System. This use of the AMI System prior to acceptance is intended to assist Supplier and
ERMU in evaluating the AMI System functionality in advance of the ISAT and FSAT and to
permit ERMU to continue business operations during deployment.
18. Right to Use Accepted AMI System
ERMU shall have the right to use the AMI System at any time the AMI System is sufficiently
functional to allow such use as long as it is in accordance with the manufacturer’s
recommendations.
19. AMI System Life ExpectancyIntentionally Omitted
Supplier represents and warrants that the Work, AMI System, and Equipment purchased from
Supplier shall be supported for the Life Expectancy of the AMI System. Supplier shall make
available spare parts for all Equipment ordered under this Agreement and corrections for any
software ordered for the Life Expectancy of the AMI System. In the event AMI System support
is terminated by Supplier during the term of the Life Expectancy, other than for a Force Majeure
Event, Supplier shall compensate ERMU a straight-line depreciation pro-rated amount based on
the initial cost of this Agreement over a 15-year straight line depreciation schedule.
20. Time is of the Essence
Time is of the essence and shall remain a material element of this Agreement, and no acts of
ERMU, including modifications to this Agreement or acceptance of late deliveries, shall
constitute waiver of this provision. SUPPLIER SHALL BE LIABLE AND SOLELY
RESPONSIBLE FOR ANY AND ALL CLAIMS AND DIRECT DAMAGES ERMU MAY
INCUR DUE TO SUPPLIER’S FAILURE TO TIMELY PERFORM THE WORK IN THIS
AGREEMENT. Supplier shall promptly notify ERMU in writing of any actual or potential
delays to the performance of this Agreement; such notice shall include a proposed revision to the
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agreed upon schedule but shall not constitute a waiver to ERMU’s rights and remedies
hereunder. Notwithstanding the foregoing or anything contained herein to the contrary, Supplier
will use commercially reasonable efforts to deliver Equipment ordered within the time specified
in the Agreement. Supplier reserves the right to extend those delivery times based on
manufacturer lead times as impacted events beyond the control of Supplier including but not
limited to the current pandemic, global shipping delays, supply chain disruptions, and the
microchip shortage. In addition, Supplier will not be liable for liquidated damages or other
delays caused by third parties, including but not limited to meter installers, not under the
direction or control of Supplier. Availability of materials cannot be guaranteed.
21. Liquidated Damages and Remedies
Liquidated damages may be assessed against Supplier according to the terms of this section.
Performance Delays. ERMU shall have the right to assess liquidated damages for Supplier's delay
in performing the Work as follows:
(a) If the Supplier fails to complete Phase I Initial Deployment and ISAT, through no fault of
ERMU or its agents or subcontractors and not due to a Force Majeure Event, within
twelve (12) months from Agreement executionthe date Supplier receives all materials
required for Phase I Initial Deployment, the Supplier shall be assessed liquidated
damages of three thousand dollars ($3,000) plus five hundred dollars ($500) per each
calendar day the Supplier is late in completing performance until such time as Phase I
Initial Deployment and ISAT is completed or ERMU elects to terminate this Agreement,
but not to exceed Forty EightTwenty-five Thousand Five Hundred Dollars
($48,025,500.00).
(b) If the Supplier fails to complete Phase II Full Deployment and FSATDelivery, through no
fault of ERMU and not due to a Force Majeure Event, within twenty-four (24thirty-six
(36) months from Initial System Acceptance, the Supplier shall be assessed liquidated
damages of three thousand dollars ($3,000) plus five hundred dollars ($500) per each
calendar day the Supplier is late in completing performance until such time as Phase II
Full Deployment and FSATDelivery is completed or ERMU elects to terminate this
Agreement, not to exceed Forty EightTwenty-five Thousand Five Hundred Dollars
($48,025,500.00).
Process of Applying Liquidated Damages. Any assessment of liquidated damages may be
deducted from the next payment(s) due the Seller or Seller shall promptly pay liquidated
damages to ERMU in the event liquidated damages exceed the remaining amount otherwise due
Seller.
The Parties acknowledge that the amount of liquidated damages is not a penalty, but rather is a
reasonable estimate of the actual damages ERMU may sustain as a result of delay or failure to
meet the requirements of this Agreement and that such damages are difficult to ascertain.
Notwithstanding the foregoing or anything contained herein to the contrary, Supplier will not be
liable for damages or delay, including but not limited to liquidated damages, for delay in
completing or failure to complete Phase I or Phase II; for failure achieve ISAT, FSAT, or for any
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delay in achieving ISAT or FSAT; when such failure or delay is substantially caused by delays in
installation of meters and equipment, or faulty or improper installation of meters and equipment,
by ERMU or other third parties not under the direction or control of Supplier. Achieving
completion and acceptance of ISAT and FSAT are not subject to liquidated damages.
Supplier shall promptly notify ERMU of any failure to meet the milestones in the schedule set
forth in this section set forth in Attachment V, as may be amended from time to time by the
Parties in a written amendment and provide a proposed remediation plan. ERMU will have ten
(10) days to consider and respond to Supplier’s plan without assessment of liquidated damages.
If the parties cannot reach agreement, ERMU shall be entitled to claim liquidated damages upon
written notice and at the expiration of the ten (10) day period.
22. Supplier Representations
In order to induce ERMU to enter into this Agreement, Supplier makes the following
representations and warranties:
(a) Supplier has examined and studied this Agreement and the appendices with both the
commercial/sales team, Supplier Management, and legal representatives.
(b) Supplier has fully acquainted itself with ERMU’s service territory and Sites where the
AMI System will be installed, including the design, availability of materials, existing
facilities, general topography, accessibility, soil structure, subsurface conditions,
obstructions, and all other conditions pertaining to this Agreement and made all
investigations essential to a full understanding of the difficulties which may be
encountered in performing the Work, providing the AMI System, and achieving the
Coverage Commitment. Supplier assumes full and complete responsibility for
meeting the requirements of this Agreement and all risks in connection therewith,
within such service territory and at such Sites.
(c) Supplier is qualified to complete the Work and has or will obtain prior to performing
the Work the requisite authority, licensure, capacity, equipment, experience,
expertise, and sufficient qualified personnel to perform the Work according to the
industry standard of care, in compliance with all applicable laws and regulations, and
in accordance with the terms of this Agreement within the timeframe agreed to by the
Parties; and
(d) Supplier is familiar with and is in compliance with all federal, state, and local statutes,
laws, rules, and regulations including but not limited to OSHA, NEC, NESC, and any
other regulations that may affect cost, progress, and performance of the Work, and
assumes the risk that additional cost may be incurred due to any noncompliance of its
proposal with any applicable law or regulatory requirement.
23. Warranty
Notwithstanding the acceptance of the AMI System by ERMU or the provision of any certificate
with respect to delivery or acceptance of the AMI System, the following warranties shall apply:
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Equipment Warranty. During the Equipment Warranty Period, Supplier warrants that the
Equipment furnished to ERMU under this Agreement and all components thereof will comply
with the Specifications and will be: (1) of new manufacture upon the Delivery Date, (2) free
from defects in design, workmanship, and materials, (3) conveyed to ERMU with good title, free
and clear of all security interests, liens, encumbrances, or claims of subcontractors and third
party suppliers, and (4) fully tested in accordance with the manufacturer’s Specifications. This
warranty does not cover Equipment in poor operating condition due to: (a) changes made by
ERMU to the Equipment without Supplier’s prior consent; (b) use with third party software,
hardware, or firmware that Supplier has not provided to ERMU under this Agreement or
approved in writing for use with Equipment; (c) ERMU’s or a third party’s misuse, abuse,
negligence, or failure to install, test, handle, or operate the Equipment in accordance with express
use conditions documented and provided to ERMU; or (d) a Force Majeure Event. Supplier will
repair Equipment damaged by any of the foregoing items (a) to (d) above only upon ERMU’s
payment of costs to repair or replace such damaged Equipment.
AMI System Warranty. For as long as ERMU has purchased support services and for the
duration of the AMI System Warranty per section 19, AMI System Life Expectancy, Supplier
warrants that the AMI System will perform in accordance with manufacturer documentation and
Specifications. This AMI System warranty only covers problems reported to Supplier in writing
during such AMI System Warranty Period. In the event of a breach of the foregoing AMI System
warranty, in addition to Supplier’s other obligations under this Agreement, Supplier will, under
the terms of the manufacturer’s warranty, repair, modify, or adjust the AMI System to make it
conform to the foregoing AMI System warranty.
IP Warranty. To the extent set forth in the applicable manufacturer’s warranty, Supplier warrants
that the sale of, use, or incorporation into manufactured products of all machines, parts,
components, services, devices, material, and rights furnished or licensed hereunder which are not
of ERMU’s design, composition or manufacture shall be free from any patent, copyright,
trademark, or other proprietary rights for the payment of any license fee or royalty to others by
ERMU.
Manufacturer’s Warranty. Notwithstanding anything contained herein to the contrary, the
manufacturer’s warranty only shall apply to all materials purchased by ERMU hereunder.
ERMU acknowledges that Supplier is a distributor of materials only, and therefore offers no
additional warranties. SUPPLIER SPECIFICALLY DISCLAIMS ALL OTHER
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. IN NO EVENT, WHETHER ARISING OUT OF WARRANTY, INDEMNITY,
TORT, CONTRACT OR OTHERWISE, SHALL SUPPLIER BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES
OF ANY KIND.
Compliance with Laws. The Supplier warrants that the Work, upon delivery and when operated
in accordance with the manufacturer’s documentation, will comply with and will have been
produced, processed, delivered, and sold in conformity with all applicable federal, state, and
local laws and administrative regulations and orders.
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For any Equipment under warranty that does not comply with the warranties herein, Supplier
shall pursue on behalf of ERMU in processing warranty claims with the manufacturer. If Meters
are purchased directly from a third party by ERMU, those Meters would be exempt from this
provision. The decision whether to repair or replace will be made with the concurrence of ERMU
and the repair or replacement will be scheduled consistent with ERMU’s operating requirements
so as to minimize loss of production or use of the Equipment or of any infrastructure of which
the Equipment is a part. Repaired or replaced Equipment must be made from new parts. The
manufacturer’s original or new warranty will apply to any repaired or replaced Equipment.
24. Licenses
Supplier shall make available to ERMU all necessary licenses (i.e., software and others as may
apply) for the AMI System and the Work upon payment by ERMU of necessary licensing fees.
These licenses shall set out rights granted by the manufacturer under the applicable license
agreement, and will be subject to payment by ERMU of applicable license fees.
25. Independent Contractor
The relationship between ERMU and Supplier shall be that of contracting party to independent
contractor. Accordingly, subject to the specific terms of this Agreement, neither Party shall have
any general right to prescribe the means by which the other Party shall meet its obligations under
this Agreement. This Agreement is not intended to create nor shall it be construed to create any
partnership, joint venture, employment or agency relationship between Supplier and ERMU, nor
shall either Party have any right, power, or authority to enter into any agreement or undertaking
for, or act on behalf of, or to act as or be an agent or representative of, or to otherwise bind, the
other Party. No Party shall be liable for the payment or performance of any debts, obligations,
taxes, or liabilities of the other Party, unless expressly assumed in writing herein or otherwise.
Each Party retains full control over the employment, direction, compensation and discharge of its
employees, and will be solely responsible for all compensation of such employees, including
social security, withholding and worker’s compensation responsibilities.
26. Subcontractors
With ERMU’s prior approval, Supplier may retain qualified consultants and subcontractors to
carry out the Work. There shall be no relationship, fiduciary, contractual, or otherwise, between
Supplier’s consultants, subcontractors, affiliates, employees, agents, and representatives and any
employee, director, or agent of ERMU. Supplier shall be fully responsible to ERMU for all acts
and omissions of its consultants, subcontractors, affiliates, employees, agents, and
representatives just as Supplier is responsible for Supplier’s own acts and omissions.
Supplier shall not employ any consultant or subcontractor over ERMU’s reasonable objection.
Supplier shall discharge and immediately remove from the project any consultant or
subcontractor that has or is acting in an unsafe manner or otherwise not complying with the
requirements of this Agreement.
All Work performed for Supplier by a consultant or subcontractor will be pursuant to a written
agreement between the Supplier and the consultant or subcontractor. Such agreement shall
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specifically bind consultant or subcontractor to the terms and conditions of this Agreement,
including, without limitation, insurance, indemnification, and warranty provisions for the benefit
of ERMU.
27. Insurance
Supplier shall obtain and maintain during the term of this Agreement occurrence-based liability
insurance with coverages and limits of liability not less than those shown herein. All such insurance
shall be primary with respect to any other insurance or self-insurance programs afforded to or
maintained by or for the benefit of ERMU and shall not require the exhaustion of any other
coverage.
Supplier shall procure at its expense, and maintain, in full force during the full term of this
Agreement, insurance policies, from an insurer, or insurers, licensed to do business in the State of
Minnesota where the Work hereunder is to be performed, and each of which insurers shall be
satisfactory to ERMU. Supplier will require its subcontractors to maintain insurance at limits
acceptable to Supplier. The said policies shall provide insurance of the type and, at a minimum, in
the amounts below indicated:
a) Workers' Compensation Insurance shall be provided covering liability arising out of
Supplier’s employment of workers and anyone for whom Supplier may be liable for
workers’ compensation claims. Workers’ compensation insurance is required, and no
“alternative” forms of insurance shall be permitted.
b) Employers Liability Insurance with limits of not less than $1,000,000 per occurrence
and $1,000,000 per disease per each employee.
c) Commercial General Liability Insurance under an occurrence policy form insuring the
indemnity agreements set forth in this Agreement with a combined single limit of not
less than $1,000,000 per occurrence and $2,000,000 in the aggregate, including
endorsements for Premises and Operations, Personal Injury Liability, Products and
Completed Operations, Blanket Contractual Liability, and Completed Operations
Coverage (completion of this Agreement). The policy must provide that aggregates
limits apply on a per location basis. General liability limits may be met by a
combination of General Liability and Excess or Umbrella Liability.
d) Business Automobile Liability Insurance covering liability arising out of any auto
(owned, hired and non-owned) with a combined single limit of at least $1,000,000.
e) Professional Liability (Engineer's Errors and Omissions) Insurance, in the event
Supplier is performing design, engineering or other professional services, with limits
of at least $1,000,000 each claim and $1,000,000 in the aggregateIntentionally omitted.
f) Umbrella Insurance (Excess Liability) with minimum limits of $5,000,000 per
occurrence.
The insurance required hereunder shall be maintained in effect during the entire duration of this
Agreement. A copy of each of the endorsements and a certificate or certificates evidencing the
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existence thereof shall be delivered to ERMU prior to the commencement of the Work.
Replacement certificates of insurance evidencing continuation of such coverage shall be furnished
to ERMU prior to the expiration of the current policies. Each copy or certificate shall contain a
valid provision or endorsement that the policy may not be canceled without giving thirty (30) days
written advance notice thereof to ERMU. ERMU’s receipt of or failure to object to any insurance
certificates or policies submitted by Supplier does not release or diminish in any manner the
liability or obligations of Supplier or its subcontractors or constitute a waiver of any of the
insurance requirements under this Agreement. Should Supplier at any time neglect, refuse to
provide, or cancel the insurance required herein, ERMU shall have the right to terminate this
Agreement or pursue any remedy available at law.
28. Indemnification
Supplier shall indemnify, defend and hold harmless ERMU, ERMU's officers, directors, partners,
employees, consultants, contractors, and agents from and against and in respect to any and all
actual and direct claims, actions, suits, proceedings, demands, assessments, judgments, costs,
losses, damages, fines, penalties, fees, and any expense (including but not limited to all reasonable
fees and charges of attorneys and all court or arbitration or other dispute resolution costs) arising
out of personal injury, death, violation of any federal, state, or local law, rule, or regulation,
unauthorized disclosure of Confidential Information, and any damage to tangible or intangible
property, excluding the loss of use thereof, hereinafter referred to as “Liabilities” to the extent that
such Liabilities were caused by the negligent acts, errors, or omissions of Supplier, its agents,
employees, Subcontractors or others for whom it is responsible arising out of, in connection with,
or as a result of the performance and furnishings of the Work or other services performed by
Supplier for or on behalf of ERMU.
In the event that any Work, the AMI System, or use of any Work or the AMI System is delayed
due to any claim, suit, or proceeding relating to patent infringement, Supplier shall make every
reasonable effort to quickly remedy the situation, at its own cost, so Work and provision of the
AMI System can proceed and be used as desired. This includes but is not limited to obtaining any
necessary license arrangements and finding alternatives acceptable to ERMU.
ERMU agrees that it will give prompt written notice to Supplier of any Liabilities asserted against
Supplier for which ERMU believes Supplier is responsible for indemnification, in whole or in part.
Upon receipt of such written notice, Supplier shall have the right, but not the duty, to provide
counsel to defend such Liabilities or to collaborate with counsel for ERMU in such defense.
Supplier agrees that it maintains Insurance (“Insurance”) for purposes of insuring against loss as a
result of Liabilities caused by Supplier; such insurance coverage is acknowledged to comply with
the requirements as designated in this Agreement. Supplier understands and agrees and further
warrants and represents to ERMU that, notwithstanding any other provision to the contrary herein
contained, Supplier's Liability for any and all losses, whether to ERMU or to third parties, resulting
from any Liabilities to the extent caused by Supplier's negligence shall not be limited to the amount
of any insurance proceeds payable to or on behalf of Supplier under such Insurance, and Supplier
agrees to immediately indemnify and hold ERMU harmless for any and all such Liability in excess
of such insurance proceeds. Supplier shall furnish written proof of such insurance upon execution
of this Agreement, and at least annually to ERMU with ERMU as additional named insured.
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29. Limitation of Liability
NEITHER PARTY NOR ANY OF ITS RESPECTIVE AFFILIATES AND SUBSIDIARIES
SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES
RELATED TO OR ARISING OUT OF THIS AGREEMENT EVEN IF THE PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF
WHAT LEGAL OR EQUITABLE THEORY MAY BE ASSERTED, INCLUDING, WITHOUT
LIMITATION, ANY CONTRACT, NEGLIGENCE, BREACH OF WARRANTY, OR ANY
OTHER LEGAL OR EQUITABLE THEORY.
30. Safety and Compliance with Codes and Other Laws
Supplier shall at all times be solely responsible for complying with all applicable federal, state,
and local laws, ordinances, regulations, and codes in connection with the Work, including those
relating to the safety of all persons and property. This shall include obtaining all licenses and
permits required for the Work. Supplier understands that the obligations of the Parties hereunder
are subject to the applicable regulations and orders of governmental agencies having jurisdiction
in the matters. Should at any point Supplier find any unsafe or hazardous areas or conditions,
Supplier will immediately report the said condition to ERMU.
No obligations shall be imposed upon ERMU, ERMU's officers, directors, partners, employees,
consultants, and agents to review or supervise Supplier’s compliance with any safety measures,
laws, ordinances, regulations, or codes. Supplier is solely responsible for its acts, errors, and
omissions and the acts, errors, and omissions of any Subcontractor, of any Supplier, or of any other
individual or entity performing any of the Work.
31. Site, Supervision, and Safety
The Sites will be furnished to Supplier by ERMU in its presently existing condition, and Supplier
shall leave the Sites in the same condition as it was received, except as otherwise provided herein.
Supplier shall be responsible for furnishing proper protection for the health and life of personnel,
for the public, for the Work and all materials, machinery, equipment, tools, and supplies used in
the performance thereof, and for the property of others.
Supplier shall make sure its personnel are informed of dangers associated with electric distribution
systems, line facilities, and communications facilities and know how to exercise proper
precautions and follow appropriate safety procedures. Supplier shall provide regular and
appropriate safety briefings for its personnel and others involved in the Work.
Supplier shall provide a competent superintendent who shall be present at all times during working
hours to supervise the Work. Supplier shall employ, in connection with the construction of the
Work, capable, experienced and reliable foremen and such skilled workers as may be required for
the various classes of Work to be performed. Directions and instructions given to the
superintendent by ERMU shall be binding upon those doing the Work.
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Supplier shall at all times take all reasonable precautions for the safety of employees and of the
public, and shall comply with all applicable provisions of federal, state, and municipal safety laws
and building and construction codes, as well as the safety rules and regulations of ERMU.
The following provisions shall not limit the generality of the above requirements:
(a) Supplier shall at no time and under no circumstances cause or permit any employee
of Supplier to perform any Work upon energized lines, or upon poles carrying
energized lines.
(b) Supplier shall so conduct the construction of the Project as to cause the least
possible obstruction of public highways.
(c) Supplier shall provide and maintain all such guard lights and other protection for
the public as may be required by industry standards and applicable statutes,
ordinances, and regulations.
32. Termination
ERMU may terminate this Agreement, in whole or in part, at any time by written notice to Supplier.
In such an event, ERMU shall pay Supplier the contract price for all actual labor and material costs
incurred prior to such termination notice.
Upon receipt of a notice of termination of some or all of the Work, Supplier shall discontinue the
Work and make every effort to cancel all subcontracts, orders, and other agreements, or portions
thereof that involve the terminated Work. ERMU shall not be liable for any damage to any
subcontractor in case of termination.
Supplier will also make reasonable effort to preserve the terminated portion of the AMI System
regardless of location, assist with inventory of the terminated AMI System, identify outstanding
orders and subcontracts, and as requested by ERMU, transfer the AMI System and title to the AMI
System to ERMU. ERMU may decline title to any portion of the AMI System.
Supplier shall not be entitled to damages resulting from termination of any Work, including loss
of anticipated revenue or costs.
If the Supplier defaults in the performance of the Work, then ERMU may at its option, finish the
Work by any method possible, including contracting with another supplier. In the event of
termination for cause, the total amount of damages paid by the Supplier as a result of the
termination shall be limited to ERMU’s actual damages, including the cost of finishing the
remaining Work, capped at 100% of the fees that would have been paid for any such remaining
Work.
Supplier may terminate this Agreement upon thirty (30) days prior written notice to ERMU if (i)
ERMU fails to compensate Supplier according to the terms in this Agreement, or (ii) ERMU fails
to perform a material term of this Agreement and, through no fault of the Supplier, such failure
prevents Supplier from performing its material obligations under this Agreement.
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33. Confidential and Proprietary Information
In the course of performing the Work covered by this Agreement, both Parties may disclose certain
Confidential Information. The Party receiving Confidential Information (“Recipient”) shall refrain
from disclosing such Confidential Information to any contractor or other third party without prior,
written approval from the disclosing Party and shall protect such Confidential Information from
inadvertent disclosure to a third party using the same care and diligence that the Recipient uses to
protect its own proprietary and confidential information, but in no case less than reasonable care.
The Recipient shall ensure that each of its employees, officers, directors, or agents who has access
to Confidential Information disclosed under this Agreement is informed of its proprietary and
confidential nature and is required to abide by the terms of this Agreement. The Recipient of
Confidential Information disclosed under this Agreement shall promptly notify the disclosing
Party of any disclosure of such Confidential Information in violation of this Agreement.
All Confidential Information disclosed under this Agreement shall be and remain the property of
the disclosing Party and nothing contained in this Agreement shall be construed as granting,
directly or by implication, or conferring any rights to such Confidential Information on the other
Party.
The Recipient shall honor any request from the disclosing Party to promptly return or destroy
Confidential Information disclosed under this Agreement. Notwithstanding the foregoing, each
Recipient may retain one archival copy of the Confidential Information received from Disclosing
Party in a secure location provided that any such Confidential Information is otherwise handled as
required in this Agreement for so long as so retained. The Parties agree that the disclosing Party
will suffer irreparable injury if its Confidential Information is made public, released to a third
party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be
entitled to seek injunctive relief against a threatened breach or continuation of any such breach.
The terms of this Agreement shall not be construed to limit either Party’s right to develop
independently or acquire products without use of the other Party’s Confidential Information. The
disclosing Party acknowledges that the Recipient may currently or in the future be developing
information internally, or receiving information from other parties, that is similar to the
Confidential Information. Nothing in this Agreement will prohibit the Recipient from developing
or having developed for its products, concepts, systems or techniques that are similar to or compete
with the products, concepts, systems or techniques contemplated by or embodied in the
Confidential Information provided that the Recipient does not violate any of its obligations under
this Agreement in connection with such development.
Notwithstanding the above, the Parties agree that information shall not be deemed Confidential
Information and the Recipient shall have no obligation to hold in confidence such information,
where such information: (i) is already known to the Recipient, having been disclosed to the
Recipient by a third party without such third party having an obligation of confidentiality to the
disclosing Party; (ii) is or becomes publicly known through no wrongful act of the Recipient, its
employees, officers, directors, or agents; (iii) is independently developed by the Recipient without
reference to any Confidential Information disclosed hereunder; (iv) is approved for release (and
only to the extent so approved) by the disclosing Party; or (v) is disclosed pursuant to the lawful
requirement of a court or governmental agency or where required by operation of law according
to this section.
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If compelled by a requirement of a government agency, a court, or by law or discovery to disclose
any of the Confidential Information, the Party ordered to disclose the information shall make
reasonable efforts to resist disclosure and shall notify the other Party in writing prior to making
any disclosure in order to provide the Party whose information may be disclosed a reasonable
opportunity to either waive any objection to such disclosure or request a remedy from the
appropriate authority. The Parties will reasonably cooperate with each other in efforts to obtain
such a remedy. If the Party whose information may be disclosed waives its objections, is
unsuccessful in its request for a remedy, or fails to make such a request, the Party compelled to
disclose information will furnish only that portion of the Confidential Information that is legally
required.
Disclosure of Confidential Information beyond what is outlined above shall be approved in writing
by the other Party in advance of such disclosure.
34. No Implied Waiver
Either Party’s failure to insist upon strict performance by the other Party of any of the terms of this
Agreement shall not be construed as a waiver of terms of this Agreement. No waiver shall be
deemed a continuing waiver or waiver in respect of any subsequent breach or default, either of a
similar or dissimilar nature, unless expressly so stated in writing by a duly authorized
representative of the Party granting the waiver.
35. Notice
Any notice required or in connection with this Agreement shall be in writing and shall be given to
the appropriate Party by personal delivery, certified mail, or other recognized delivery service that
confirms delivery. All notices shall be deemed duly given and effective (i) when received after
being sent by confirmed facsimile transmission, or delivered by hand, (ii) five (5) days after being
deposited with the United States Postal Service, properly addressed, sent by registered or certified
mail, return receipt requested, postage prepaid, or (iii) the immediately succeeding business day
after next day delivery shipping with Federal Express or other similar overnight courier. Any Party
may change its address for the purpose of this paragraph by giving written notice of such change
to the other Parties in the manner provided in this paragraph.
Elk River Municipal Utilities
13069 Orono Parkway
Elk River, MN 55330
purchasing and Contracts
Legal notices to Supplier shall be sent to: Core & Main LP
Attn: John Selsvold or Kirk Peterson
1800 W. 79th Street
Eden Prairie, MN 55344
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(612) 202-7786
Kirk.Peterson@coreandmain.com
With a copy to:
Core & Main LP
Attn: Legal Department
1830 Craig Park Court
St. Louis, MO 63146Supplier's Name
Attn:
Address
ERMU, State, Zip
Telephone Number
Email Address
36. Miscellaneous Requirements
Unlawful Employees, Contractors and Subcontractors
Supplier shall not knowingly employ or contract with an Undocumented Immigrant to perform
work under this Agreement. Supplier shall not knowingly contract with a subcontractor that (a)
knowingly employs or contracts with an undocumented immigrant to perform work under this
Agreement or (b) fails to certify to the Supplier that the subcontractor will not knowingly employ
or contract with an undocumented immigrant to perform work under the resulting contract.
Duty to Terminate a Subcontract; Exceptions
If the Supplier obtains actual knowledge that a subcontractor performing work under this
Agreement knowingly employs or contracts with an undocumented immigrant, the Supplier
shall, unless the subcontractor provides information to establish that the subcontractor has not
knowingly employed or contracted with an undocumented immigrant:
1. Notify the subcontractor and ERMU within three days that the Supplier has actual
knowledge that the subcontractor is employing or contracting with an undocumented
immigrant; and
2. Terminate the subcontract with the subcontractor if, within three days of receiving notice
that the Supplier has actual knowledge that the subcontractor is employing or contracting
with an undocumented immigrant, the subcontractor does not stop employing or
contracting with the undocumented immigrant.
Damages for Breach of Contract
In addition to any other legal or equitable remedy ERMU may be entitled to for a breach of this
Agreement, if ERMU terminates this Agreement, in whole or in part, due to the Supplier’s
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breach of any provision of the Agreement, the Supplier shall be liable for actual and
consequential damages to ERMU.
Right to Inspect
ERMU may, at reasonable times, inspect the part of the plant, place of business or worksite of
the Supplier or the Supplier’s subcontractors at any tier which is pertinent to the performance of
the award of the Agreement.
Equal Opportunity
Supplier will not discriminate against any employee or applicant for employment because of
race, color, religion, age, sex, or national origin, or other reason prohibited by applicable federal,
state or local law, ordinance or regulation. Supplier shall abide by all federal laws in effect
during the Agreement period which govern Equal Opportunity Employment.
Gratuities
It is unlawful and unethical for any person to offer, give or agree to give any ERMU employee,
ERMU official or former ERMU employee, or for any ERMU employee, ERMU official or
former ERMU employee to solicit, demand, accept or agree to accept from another person, a
gratuity or an offer of employment in connection with any decision, approval, disapproval,
recommendation or preparation of any part of a program requirement or a purchase request,
influencing the content of any specification or procurement standard, rendering of advice,
investigation, auditing or in any other advisory capacity in any proceeding or application, request
for ruling, determination, claim or controversy, or other particular matter, pertaining to any
program requirement or a contract or subcontract, or to any solicitation or proposal therefore.
It is unlawful and unethical for any payment, gratuity or offer of employment to be made by or
on behalf of a subcontractor under a contract to the prime contractor or higher tier subcontractor
of any person associated therewith, as an inducement for the award of a subcontract or order.
37. Site, Supervision, and Safety
The Sites will be furnished to Supplier by ERMU in its presently existing condition, and Supplier
shall leave the Sites in the same condition as it was received, except as otherwise provided herein.
Supplier shall be responsible for furnishing proper protection for the health and life of personnel,
for the public, for the Work and all materials, machinery, equipment, tools, and supplies used in
the performance thereof, and for the property of others.
Supplier shall make sure its personnel are informed of dangers associated with electric distribution
systems, line facilities, and communications facilities and know how to exercise proper
precautions and follow appropriate safety procedures. Supplier shall provide regular and
appropriate safety briefings for its personnel and others involved in the Work.
Supplier shall provide a competent superintendent who shall be present at all times during working
hours to supervise the Work. Supplier shall employ, in connection with the construction of the
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Work, capable, experienced and reliable foremen and such skilled workers as may be required for
the various classes of Work to be performed. Directions and instructions given to the
superintendent by ERMU shall be binding upon those doing the Work.
Supplier shall at all times take all reasonable precautions for the safety of employees and of the
public, and shall comply with all applicable provisions of federal, state, and municipal safety laws
and building and construction codes, as well as the safety rules and regulations of ERMU.
The following provisions shall not limit the generality of the above requirements:
(a) Supplier shall at no time and under no circumstances cause or permit any employee
of Supplier to perform any Work upon energized lines, or upon poles carrying
energized lines.
(b) Supplier shall so conduct the construction of the Project as to cause the least
possible obstruction of public highways.
(c) Supplier shall provide and maintain all such guard lights and other protection for
the public as may be required by industry standards and applicable statutes,
ordinances, and regulations.
38. Force Majeure
Neither ERMU nor Supplier shall be considered in default in the performance of its obligations
under this Agreement and neither party will be liable for damages for delay to the extent that the
performance of its obligations is prevented or delayed by any condition beyond the Party’s
reasonable control without fault or negligence, including without limitation: acts of God; acts or
omissions of governmental authorities; acts of public enemy; wars; blockades; riots; strikes; civil
disturbances; floods; fires; explosions; hurricanes; tornadoes; acts of nature; and any other
events, acts, or conditions (individually and collectively referred to as a “Force Majeure Event”).
In the event that either Party’s performance is prevented or delayed by a Force Majeure Event,
the Party shall inform the other Party in writing within five (5) days after the event impacting or
likely to impact the Party’s performance.
39. Severability
Any provision or part of this Agreement held to be void or unenforceable under any law or
regulation shall be deemed stricken. All remaining provisions shall continue to be valid and
binding upon ERMU and Supplier who agree that this Agreement shall be reformed to replace
such stricken provision or part thereof with a valid and enforceable provision that comes as close
as possible to expressing the intention of the stricken provision, provided that such stricken
clause is not material to the performance of this Agreement and neither Party is aggrieved by the
omission of such clause or the reformation of this Agreement.
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40. Survival
The rights and obligations of the Parties under this Agreement that would by their nature survive
the expiration or termination of this Agreement, including, but not limited to, those pertaining to
further assurances, confidentiality, applicable laws and courts, safety and compliance with codes
and other laws, warranty, indemnification, insurance, limitations of liability, and severability
shall survive the expiration or termination of this Agreement.
41. Assignment
Neither Party may assign or transfer any part of this Agreement without the written consent of
the other Party. In the event of a consented assignment, the assignee shall be bound by the terms
of this Agreement and shall remain liable for obligations under this Agreement. If for any reason
the relationship between Supplier and the meter manufacturer ends, the meter manufacturer will
develop an agreement directly with the customer for continued service and support of the
solution. Any other attempt to transfer or assign is void.
42. Governing Law and Venue
This Agreement will be governed by, construed, and enforced in accordance with the laws, rules,
and regulations of the State of Minnesota without regard to its conflicts of law principles. Venue
for any legal proceedings arising from or concerning this Agreement shall be in the District
Court in the County of Sherburne, State of Minnesota.
43. Publicity
The Parties shall not at any time use the name or trademark of the other Party in any advertising
or form of publicity without the prior written consent of the other Party.
44. Entire Agreement
This Agreement and the appendices and documents incorporated herein by reference shall be
deemed to include the entire Agreement between the Parties and shall supersede all other
previous and contemporaneous understandings, commitments or representations, whether oral or
written, and all subsequent oral agreements concerning the subject matter hereof. Neither
Supplier nor ERMU shall claim any modification resulting from any representation or promise
made at any time, by an officer, agent or employee of either Party or by any other person unless
such modification is in writing and signed by the Parties as an amendment or Change Order to
this Agreement. Each Party acknowledges that the other Party has not made any representations
other than those that are contained herein. All communications, including email, voicemail, and
oral discussions in connection with this Agreement are for informational purposes only.
45. Execution in Counterparts
This Agreement may be executed in two (2) or more counterparts, each of which, upon execution
and delivery, shall constitute a single and complete Agreement. Signature pages may be detached
from counterparts and attached to a different counterpart to create a single document.
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In witness whereof, the Parties have, by their duly authorized representatives, executed this
Agreement to be effective as of the Effective Date.
Elk River Municipal Utilities Supplier's NameCore & Main LP
By: By:
Print Name: Print Name:
Title: Title:
APPROVED AS TO FORM:
By:
Print Name:
Title:
APPROVED AS TO INSURANCE CONTENT:
By:
Print Name:
Title:
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