Loading...
2.5a ERMUSR 06-13-2023DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D AM System Master Agreement For entire AM I System Between Elk River Municipal Utilities Ana AMI System Supplier 39 DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D Table of Contents 1. Recitals.................................................................................................................................3 2. Definitions............................................................................................................................3 3. Rules of Construction..........................................................................................................6 4. Scope of this Agreement......................................................................................................7 5. Term.....................................................................................................................................7 6. Agreement Price...................................................................................................................8 7. Invoice and Payment............................................................................................................8 8. Equipment Forecasts............................................................................................................9 9. Purchase Orders...................................................................................................................9 10. Amendments and Change Orders....................................................................................10 11. Deployment Plan.............................................................................................................11 12. Coverage Commitment...................................................................................................11 13. Meter or Module Replacement for Non -Associating Meters..........................................12 14. Catastrophic Meter or Module Failure............................................................................12 15. Meter Disconnection or Reconnection Failure................................................................13 16. Tests and Inspections......................................................................................................13 17. Right to Use AMI System Not Yet Accepted.................................................................14 18. Right to Use Accepted AMI System...............................................................................15 19. AMI System Life Expectancy.........................................................................................15 20. Time is of the Essence.....................................................................................................15 21. Liquidated Damages and Remedies................................................................................15 22. Distributor Representations.............................................................................................16 23. Warranty..........................................................................................................................17 24. Licenses...........................................................................................................................18 25. Independent Contractor...................................................................................................18 26. Subcontractors.................................................................................................................19 27. Insurance.........................................................................................................................19 28. Indemnification...............................................................................................................20 29. Limitation of Liability.....................................................................................................21 30. Safety and Compliance with Codes and Other Laws......................................................21 31. Site, Supervision, and Safety...........................................................................................22 32. Termination.....................................................................................................................22 33. Confidential and Proprietary Information.......................................................................23 34. No Implied Waiver..........................................................................................................24 35. Notice..............................................................................................................................24 36. Miscellaneous Requirements...........................................................................................25 37. Site, Supervision, and Safety...........................................................................................26 38. Force Majeure.................................................................................................................27 39. Severability......................................................................................................................27 40. Survival...........................................................................................................................28 41. Assignment......................................................................................................................28 42. Governing Law and Venue.............................................................................................28 43. Publicity..........................................................................................................................28 44. Entire Agreement............................................................................................................28 45. Execution in Counterparts...............................................................................................29 Elk River Municipal Utilities I Core & Main LP FA re DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D Attachment I: F1exNet 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 VIL• Sample Reports (Purposely omitted from MSA) Attachment VIII: Maintenance and Support Agreements Attachment IX: Software License Agreement Attachment X: Warranties Appendix A: Distributor's Oral Presentation Elk River Municipal Utilities 41 Core & Main LP DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D 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 ("Distributor") (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. Distributor 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 Distributor, and Distributor 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 Distributor 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 Distributor, 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 Elk River Municipal Utilities 3 Core & Main LP W DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D 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; 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 the 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. "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 Distributor makes the Software available to ERMU for electronic download. "Distributor" means Core & Main LP. Elk River Municipal Utilities 4 Core & Main LP 43 DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D "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. "Equipment" means Network Equipment, Endpoints, Meters, Modules, Router, and any other hardware that ERMU purchases from Distributor. "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 Delivery, accepted the Work provided by Distributor after Distributor and ERMU, in cooperation with the Manufacturer (defined below), have performed a FSAT with results satisfactory to ERMU as measured against the System Acceptance Test criteria set forth in Attachment V. "FSAT" means Final System Acceptance test after Phase 11. "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 Distributor after ERMU and Distributor 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 Attachment V. "ISAT" means Initial System Acceptance test after Phase I. "Life Expectancy" means a term of fifteen (15) years beginning on the date of Final System Acceptance. "Manufacturer" means Sensus USA, Inc. "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 that ERMU purchases from Distributor. "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 11 or has lost communication with the AMI System for a period of twenty- four (24) or more hours. Elk River Municipal Utilities Core & Main LP DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D "Proiect 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. "Router" means Network Equipment which ERMU purchases from Distributor 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 the Manufacturer to implement and use the AMI System as contemplated by this Agreement. "Subcontractor" means a person, persons, partnership, association, company, or corporation engaged by Distributor to furnish any portion of the Work to Distributor. "Work" means the performance of the Distributor'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 Distributor'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. Elk River Municipal Utilities 6 Core & Main LP 45 DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D This Agreement has been negotiated and prepared by ERMU and Distributor 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 Distributor shall deliver an AMI System to ERMU according to the terms of this Agreement. This Agreement between ERMU and Distributor 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 Distributor'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 amendments to this agreement, this Agreement, Distributor'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, the terms of this Agreement, and the terms of Distributor's proposal, the terms of the later enacted document shall control. 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, Distributor must, before proceeding, consult ERMU, whose written interpretation shall be final. 5. Term This Agreement is effective beginning on the Effective Date, which date shall not be earlier than the date Distributor receives or delivers the Equipment required for Phase I hereunder, and shall continue until Distributor's completion of delivery of materials for Phase 11. Elk River Municipal Utilities M Core & Main LP DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D 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 Distributor 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 Payment of Retainage withheld during for the Phase I, Initial Deployment Phase I Area Phase II Full Delivery 95% of each monthly invoice for items delivered related to Phase II Network Equipment deployment area: 5% Retainage FSAT Successful completion of the FSAT Payment of retainage withheld during for all AMI System components Phase II delivered during Phase II 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 Distributor will issue invoices to ERMU in accordance with Section 6. Invoices shall be emailed electronically to invoicegermumn.com with a copy to mtietzgermumn.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. Elk River Municipal Utilities 47 Core & Main LP DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D 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 Distributor while Distributor is in default of any material provision in this Agreement. ERMU may withhold from Distributor the amount of (i) any defective workmanship, materials, and Equipment, or (ii) any claim by a third party against either Distributor 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 Distributor the withheld percentage for Phase I upon the successful completion of the ISAT and the withheld percentage for Phase II upon the successful completion of the FSAT as defined in Table 1 of Section 6. Taxes Distributor 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 Distributor a written forecast of total anticipated 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 Equipment lead times and may adversely impact delivery of the Equipment to ERMU. 9. Purchase Orders Purchase Orders ERMU shall authorize Equipment purchases by issuing written purchase orders to Distributor by electronic mail. The Distributor shall be deemed to have accepted a purchase order if the Distributor delivers the Equipment that the ERMU ordered. Order Lead Times ERMU's desired shipment dates shall take into account current lead times at the time of the purchase order. Lead times will be provided to ERMU by a Distributor 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 Distributor 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 Elk River Municipal Utilities Core & Main LP DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D 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 Distributor 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 Distributor for delivery to the destination designated by ERMU. Shipping will be F.O.B. destination, freight prepaid by Distributor. Distributor 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 Distributor 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 Distributor 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. Distributor 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. 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. Elk River Municipal Utilities 10 Core & Main LP DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D 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, Distributor 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 IV - 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. 0 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. 0 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. • Phase I shall end on the date Distributor 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 the ISAT and Initial System Acceptance and shall include delivery of meters and equipment to be installed by others within the remaining service territory of ERMU not covered in Phase L 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 Distributor completes its obligations to deliver the quantity of meters and equipment specified herein. 12. Coverage Commitment Distributor 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 Elk River Municipal Utilities I I Core & Main LP 50 DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D 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 Distributor. ERMU shall calculate the Meter Read Rate monthly and summarize the information according to categories agreed upon by both ERMU and Distributor. ERMU shall make the summary information available to Distributor. Within fifteen (15) days, ERMU will investigate any monthly Meter Read Rates that is not achieved and report ERMU's findings to Distributor in writing according to Distributor's instructions. Within fifteen (15) days of ERMU's reported findings, both ERMU and Distributor will collaborate to determine an acceptable strategy to resolve the problem. Once a strategy is identified, Distributor 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. Distributor 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 Distributor under the terms of the Manufacturer's warranty. The defective Meter's or Module's serial number will be reported to Distributor, and the Meter or Module returned to Distributor for replacement under the Manufacturer's warranty. Distributor 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 Distributor or ERMU to suspect other Meters or Modules may have the same defect, Distributor will identify the appropriate serial numbers. Distributor will then dispatch technicians to ERMU offices to identify and 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. Distributor shall remedy the defect under the terms of the Manufacturer's warranty. For all Non -Associating Meters discovered during Phase I and Phase 11 and any warranty period, Distributor shall provide ERMU with replacement Meters or Modules as needed under the terms of the Manufacturer's warranty. 14. Catastrophic Meter or Module Failure If during the AMI System Warranty Period a catastrophic failure of the Meters or Modules provided by the Distributor occurs, correction will be pursued as set forth in the Catastrophic 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 Distributor on a mutually agreed schedule. Elk River Municipal Utilities 12 Core & Main LP 51 DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D 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 Distributor, 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 Distributor and its Subcontractors or other suppliers. Distributor shall furnish ERMU with such certified information and test certificates as are normally made available to customers of the Manufacturer 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 Distributor 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 Distributor, in accordance with the Specifications identified in the appendices to this Agreement, including Distributor'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 of Phase I unless the ISAT needs to be extended due to Distributor side delays or a Force Maj eure 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 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 Distributor shall notify ERMU in writing as soon as is practicable and suggest alternate remedies without further costs to ERMU. FSAT. Distributor and ERMU, in cooperation with the Manufacturer, will complete a FSAT after the completion of Phase II Full Delivery of AMI System by Distributor, in accordance with the Specifications identified in the appendices to this Agreement, including Distributor's 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 Elk River Municipal Utilities 13 Core & Main LP 52 DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D Delivery or thirty-six (36) months from the start of Phase II Full Delivery, whichever is shorter unless the FSAT needs to be extended due to Distributor 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 five (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 Distributor shall notify ERMU in writing as soon as is practicable and suggest alternate remedies to resolve the problem without further costs to ERMU. 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, Distributor 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 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 Distributor does not successfully complete the ISAT or FSAT, then upon receipt of notice, Distributor 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 Distributor 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 Distributor. The parties agree that installation of meters will be performed by third parties outside the control of Distributor and Distributor 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 Distributor 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. Elk River Municipal Utilities 14 Core & Main LP 53 DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D 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 Expectancy Distributor represents and warrants that it is the intention of the Manufacturer of the AMI System and Equipment, that the AMI System and Equipment purchased by Distributor directly from Sensus for the purpose of the Elk River AMI project will be backwards compatible and supported for the 15-year Life Expectancy of the AMI System. Distributor shall request that Sensus make available for purchase by ERMU compatible current generation spare parts for all Equipment ordered under this Agreement directly from Sensus. Software maintenance and support are included as long as Elk River continues to make SaaS payments. The Software as a Service and Spectrum Lease Agreement to be executed between ERMU and Manufacturer sets forth the 15-year term during which Manufacturer will provide SaaS services if ERMU continues to pay the continuing SaaS fees. 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. Distributor 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 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, Distributor will use commercially reasonable efforts to deliver Equipment ordered within the time specified in the Agreement. Distributor reserves the right to extend those delivery times based on Manufacturer lead times as impacted events beyond the control of Distributor including but not limited to the current pandemic, global shipping delays, supply chain disruptions, and the microchip shortage. In addition, Distributor 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 Distributor. Availability of materials cannot be guaranteed. 21. Liquidated Damages and Remedies Liquidated damages may be assessed against Distributor according to the terms of this section Performance Delays. ERMU shall have the right to assess liquidated damages for Distributor's delay in performing the Work as follows: (a) If the Distributor fails to complete Phase I Initial Deployment, through no fault of ERMU or its agents or subcontractors and not due to a Force Majeure Event, within twelve (12) months from the date Distributor receives all materials required for Phase I Initial Deployment, the Distributor shall be assessed liquidated damages of three thousand dollars ($3,000) plus five hundred dollars ($500) per each calendar day the Distributor is Elk River Municipal Utilities 15 Core & Main LP 54 DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D late in completing performance until such time as Phase I Initial Deployment is completed or ERMU elects to terminate this Agreement, but not to exceed Twenty-five Thousand Five Hundred Dollars ($25,500.00). (b) If the Distributor fails to complete Phase 11 Full Delivery, through no fault of ERMU and not due to a Force Majeure Event, within thirty-six (36) months from Initial System Acceptance, the Distributor shall be assessed liquidated damages of three thousand dollars ($3,000) plus five hundred dollars ($500) per each calendar day the Distributor is late in completing performance until such time as Phase 11 Full Delivery is completed or ERMU elects to terminate this Agreement, not to exceed Twenty-five Thousand Five Hundred Dollars ($25,500.00). 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, Distributor 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 11 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 Distributor. Achieving completion and acceptance of ISAT and FSAT are not subject to liquidated damages. Distributor shall promptly notify ERMU of any failure to meet the milestones in the schedule set forth in this section, 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 Distributor'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. Distributor Representations In order to induce ERMU to enter into this Agreement, Distributor makes the following representations and warranties: (a) Distributor has examined and studied this Agreement and the appendices with both the commercial/sales team, Distributor Management, and legal representatives. (b) Distributor 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 Elk River Municipal Utilities 16 Core & Main LP 55 DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D 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. Distributor 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) Distributor 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) Distributor 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: Equipment Warranty. During the Equipment Warranty Period, Distributor 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 Distributor's prior consent; (b) use with third party software, hardware, or firmware that Distributor 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. Distributor 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, Distributor warrants that the AMI System will perform in accordance with Manufacturer documentation and Specifications. This AMI System warranty only covers problems reported to Distributor in writing during such AMI System Warranty Period. In the event of a breach of the foregoing AMI System warranty, in addition to Distributor's other obligations under this Agreement, Distributor 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. Elk River Municipal Utilities 17 Core & Main LP 56 DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D IP Warranty. To the extent set forth in the applicable Manufacturer's warranty, Distributor 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 Distributor is a distributor of materials only, and therefore offers no additional warranties. DISTRIBUTOR 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 DISTRIBUTOR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND. Compliance with Laws. The Distributor 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. For any Equipment under warranty that does not comply with the warranties herein, Distributor 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 Distributor 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 Distributor 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 Distributor and ERMU, nor shall either Party have any right, power, or authority to enter into any agreement or Elk River Municipal Utilities 18 Core & Main LP 57 DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D 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, Distributor may retain qualified consultants and subcontractors to carry out the Work. There shall be no relationship, fiduciary, contractual, or otherwise, between Distributor's consultants, subcontractors, affiliates, employees, agents, and representatives and any employee, director, or agent of ERMU. Distributor shall be fully responsible to ERMU for all acts and omissions of its consultants, subcontractors, affiliates, employees, agents, and representatives just as Distributor is responsible for Distributor's own acts and omissions. Distributor shall not employ any consultant or subcontractor over ERMU's reasonable objection. Distributor 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 Distributor by a consultant or subcontractor will be pursuant to a written agreement between the Distributor and the consultant or subcontractor. Such agreement shall 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 Distributor 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. Distributor 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. Distributor will require its subcontractors to maintain insurance at limits acceptable to Distributor. 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 Distributor's employment of workers and anyone for whom Distributor may be liable for workers' compensation claims. Workers' compensation insurance is required, and no "alternative" forms of insurance shall be permitted. Elk River Municipal Utilities 19 Core & Main LP M DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D 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) Intentionally 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 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 Distributor does not release or diminish in any manner the liability or obligations of Distributor or its subcontractors or constitute a waiver of any of the insurance requirements under this Agreement. 28. Indemnification Distributor 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 Distributor, 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 Distributor 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, Distributor shall make every Elk River Municipal Utilities 20 Core & Main LP 59 DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D 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 Distributor of any Liabilities asserted against Distributor for which ERMU believes Distributor is responsible for indemnification, in whole or in part. Upon receipt of such written notice, Distributor 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. Distributor agrees that it maintains Insurance ("Insurance") for purposes of insuring against loss as a result of Liabilities caused by Distributor; such insurance coverage is acknowledged to comply with the requirements as designated in this Agreement. Distributor understands and agrees and further warrants and represents to ERMU that, notwithstanding any other provision to the contrary herein contained, Distributor's Liability for any and all losses, whether to ERMU or to third parties, resulting from any Liabilities to the extent caused by Distributor's negligence shall not be limited to the amount of any insurance proceeds payable to or on behalf of Distributor under such Insurance, and Distributor agrees to immediately indemnify and hold ERMU harmless for any and all such Liability in excess of such insurance proceeds. Distributor shall furnish written proof of such insurance upon execution of this Agreement, and at least annually to ERMU with ERMU as additional named insured. 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 Distributor 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. Distributor 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 Distributor find any unsafe or hazardous areas or conditions, Distributor 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 Distributor's compliance with any safety measures, laws, ordinances, regulations, or codes. Distributor is solely responsible for its acts, errors, and omissions and the acts, errors, and omissions of any Subcontractor, of any Distributor, or of any other individual or entity performing any of the Work. Elk River Municipal Utilities 21 Core & Main LP DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D 31. Site, Supervision, and Safety The Sites will be furnished to Distributor by ERMU in its presently existing condition, and Distributor shall leave the Sites in the same condition as it was received, except as otherwise provided herein. Distributor 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. Distributor 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. Distributor shall provide regular and appropriate safety briefings for its personnel and others involved in the Work. Distributor shall provide a competent superintendent who shall be present at all times during working hours to supervise the Work. Distributor 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. Distributor 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) Distributor shall at no time and under no circumstances cause or permit any employee of Distributor to perform any Work upon energized lines, or upon poles carrying energized lines. (b) Distributor shall so conduct the construction of the Project as to cause the least possible obstruction of public highways. (c) Distributor 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 Distributor. In such an event, ERMU shall pay Distributor the contract price for all labor and material costs incurred prior to such termination notice. Upon receipt of a notice of termination of some or all of the Work, Distributor 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. Elk River Municipal Utilities 22 Core & Main LP 61 DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D Distributor 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. Distributor shall not be entitled to damages resulting from termination of any Work, including loss of anticipated revenue or costs. If the Distributor 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 Distributor 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. Distributor may terminate this Agreement upon thirty (30) days prior written notice to ERMU if (i) ERMU fails to compensate Distributor 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 Distributor, such failure prevents Distributor from performing its material obligations under this Agreement. 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. Elk River Municipal Utilities 23 Core & Main LP W DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D 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. 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 Elk River Municipal Utilities 24 Core & Main LP 63 DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D 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 Distributor shall be sent to: Core & Main LP Attn: John Selsvold or Kirk Peterson 1800 W. 79th Street Eden Prairie, MN 55344 (612) 202-7786 Kirk.Peterson@coreandmain.com With a copy to: Core & Main LP Attn: Legal Department 1830 Craig Park Court St. Louis, MO 63146 36. Miscellaneous Requirements Unlawful Employees, Contractors and Subcontractors Distributor shall not knowingly employ or contract with an Undocumented Immigrant to perform work under this Agreement. Distributor 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 Distributor 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 Distributor obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an undocumented immigrant, the Distributor shall, unless the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an undocumented immigrant: Elk River Municipal Utilities 25 Core & Main LP DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D Notify the subcontractor and ERMU within three days that the Distributor 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 Distributor 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. Right to Inspect ERMU may, at reasonable times, inspect the part of the plant, place of business or worksite of the Distributor or the Distributor's subcontractors at any tier which is pertinent to the performance of the award of the Agreement. Equal Opportunity Distributor 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. Distributor 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 Distributor by ERMU in its presently existing condition, and Distributor shall leave the Sites in the same condition as it was received, except as otherwise provided herein. Distributor 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. Elk River Municipal Utilities 26 Core & Main LP 65 DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D Distributor 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. Distributor shall provide regular and appropriate safety briefings for its personnel and others involved in the Work. Distributor shall provide a competent superintendent who shall be present at all times during working hours to supervise the Work. Distributor 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. Distributor 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) Distributor shall at no time and under no circumstances cause or permit any employee of Distributor to perform any Work upon energized lines, or upon poles carrying energized lines. (b) Distributor shall so conduct the construction of the Project as to cause the least possible obstruction of public highways. (c) Distributor 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 Distributor 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 Distributor who agree that this Agreement shall be reformed to replace Elk River Municipal Utilities 27 Core & Main LP DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D 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. 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. If for any reason the relationship between Distributor and Manufacturer ends, the 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 Distributor 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. Elk River Municipal Utilities 28 Core & Main LP 67 DocuSign Envelope ID: 58FE3CF5-7330-4F18-9C60-B177A84C616D 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. 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 Mp "Ili � / Print Name: dr' /'P 141seo Title: 6&-,7el,�,/ 10%aV APPROVED AS TO FORM: By:01 Print Name: Title: �G/7Gld �'vO,e�ac,�i APPROVED AS TO INSURANCE CONTENT: By: Print Title: Core & Main LP D/ocuSigned by: By: —burin. atsu ACMBAOOFF481... Print Name: John Selsvold Title: Branch Manager Elk River Municipal Utilities 29 Core & Main LP