24-100 To Pre-Order Equipment for the SE Area Water Improvements Project, City Project 24-08CITY OF SHOREWOOD
COUNTY OF HENNEPIN
STATE OF MINNESOTA
RESOLUTION 24-100
A RESOLUTION TO PRE -ORDER EQUIPMENT FOR THE SE AREA WATER
IMPROVEMENTS PROJECT; CITY PROJECT 24-08
WHEREAS, Council authorized the preparation of plans & specifications at the September 23,
2024, Council Meeting for the SE Area Water Treatment project to rehab three water filter bays
and replace its filter media, adjust the chlorination process to be ahead of the filters to improve
water quality, and upgrade the existing controls due to an aging computer system; and
WHEREAS, The design, review, and bidding will not be completed in 2024 as anticipated and
staff have identified that some of the critical materials have up to 40 week lead times; and
WHEREAS, To utilize as much of the ARPA funds as possible in 2024 and to start the clock on
the delivery of materials, staff recommends pre ordering the critical materials; and
WHEREAS, Several of the critical materials for this project are proprietary and must be
compatible with the existing facility and its operations, therefore multiple quotes were not
received for the specific items; and
WHEREAS, Staff have received one quote for the filter media and controls from Tonka Water-
Kurita in the amount of $145,000; and
WHEREAS, Staff have received an second quote for the chlorine materials from Vessco Inc. in
the amount of $33,536; and
WHEREAS, Staff will continue to complete the design and review with the Minnesota
Department of Health over the next several months and will be back with final plans seeking
approval and bidding early in 2025; and
WHEREAS, The project schedule is to have all items installed and functioning in 2025; and
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD,
MINNESOTA AS FOLLOWS:
1. The City Council of the City of Shorewood, Minnesota approval the resolution
authorizing pre ordering of the filter media, controls through the quote provided by
Tonka Water-Kurita in the amount of $145,000, and the chlorination materials through
the quote provided by Vessco Inc. in the amount of $33,536;
Adopted by the City Council of Shorewood, Minnesota this 25th day of November, 2024.
Je nifer L adie, Mayor
Att
J�(
Sanc ie Thone, City Clerk
6TONKAWATER"
a Kurita brand
Quotation
Pressure Filter Refurbishment Materials
Shorewood, MN — Original Tonka Water Project Number 91130
Addressee: City of Shorewood, MN
Andrew Budde
City Engineer
Quotation #: KATW11112024-1BRP
Quotation Date: 11/11/24
Quotation 30 Days
Expires:
We are represented on this project by
As6NE
Matt Fritze — President/Outside Sales
Office: (651) 289-9100 Cell: (952) 239-2264
Email: mfritze@nenv.com
Great Northern Environmental
1300 Helmo Ave N, Oakdale, MN 55128
See us on the web at www.Rnenv.com
Kurita America Contact:
Brienne Peterson
6600 94th Ave. North
Minneapolis, MN 55445
USA
1-800-530-1887
b.petersonl@kurita-water.com
a1�1
a Kurita brand
ABOUT KURITA AMERICA
Kurita America is a designer and manufacturer with 70 years of experience in providing customized
water and wastewater systems to municipal and industrial customers with more than 2300 installations.
Engineering cost-effective solutions for the most challenging surface water and ground water problems.
Key packaged solutions
• Clarification
• Membrane systems
• Filtration
• Ion Exchange
• Metals removal
Service packages and parts
• Filter media replacement
• Original equipment manufacturer parts
• Full array of water related parts
• Troubleshooting
• Upgrades and refurbishment
Kurita America Aftermarket Service and Sales is continually offering new products and services to extend
equipment life, reduce water and energy usage, and replace end of life equipment.
Refurbishments
• Turn -key services matching original
• Site -based services
specifications
• Underdrain nozzles and replacement
• Simul-Wash'" — simultaneous air & water
• System enhancements
backwash system
• Design -Build -Operate -Maintain solutions
• BLEUT"" —low profile SS dual underdrain
for industrial water/wastewater facilities
• Uni-CastT"° Underdrain —pour in place
Media Replacement and Analysis
• Turn -key removal and installation
• Disinfection services and media treatment
• Inventoried anthracite, Sand, garnet, gravel
services
and greensand
• Meets AWWA and NSF standards
Parts
• Full line of OEM parts • Stocked sealing and control components
• Chemical feed equipment • Aerator packing materials
• Valves and valve rebuild parts
Automation and Controls
• Factory remote support and monitoring
• SCADA compliant and control
• Allen Bradley control upgrades, PLC & HMI and obsolete replacement
• Compliance reporting and trending
• Custom functional modification for ease of use like screens, tablets, PCs
• Security — firmware, smart switch
Pressure Filter Refurbishment Materials- KATW11112024-1BRP Page 2 of 13KuPJTA
a Kurita brand
Scope of Work
Kurita America has been requested to provide a quotation to provide the necessary internal
components associated to refurbish one (1) three -cell horizontal pressure filter, for the city of
Shorewood, MN original Tonka Water serial number 91130.
Project timeline is to have the filter material shipped in 10-12 weeks after the receipt of purchase.
Filter materials can be shipped before hand upon request, or at the same time as control panel.
Kurita America has additionally been requested to provide a quotation for a complete control
panel replacement. The replacement control panel will be shipped fully equipped with a pre -
loaded, custom program.
The customer should update any SCADA panel communication at the same time to communicate
with ethernet connection.
The Control Panel lead time is 38-40 weeks.
Key benefits of Kurita America for the Project
• Kurita America provided the original equipment and has the expertise to make key
recommendations.
• Field Service Technicians with extensive equipment knowledge for start-up after repair.
• Certified contractors to perform removal and install of Kurita America equipment.
• Plant operation will run according to Kurita America Engineering design.
Products Provided
Filter Media
• Kurita America is to provide new filter media. Media is to consist of the following and
should be installed in accordance with AWWA B100-2016 specifications for filter material:
0 12" 0.8-1.2mm anthracite UC <1.65
0 18" 0.45-0.55mm silica sand UC <1.65
0 3" of 0.8-1.2mm torpedo sand
a 3" of 1/4 x 1/8 Gravel
0 3" of 1/2 x 1/4 Gravel
0 3" of 3/4 x 1/2 Gravel
A. All materials are to be shipped in one or half cubic foot bags and palletized.
B. Approximate total cubic feet of combined media and gravels provided: 1194cuft
Pressure Filter Refurbishment Materials- Page 3 of 13 G)KuRITA
KATW11112024-1BRP
a Kurita brand
C. Kurita America is to provide the following filter materials:
o -336 Underdrain Nozzles (to be finalized upon submittal of redesigned underdrain)
o Three 14x18" Elliptical Manway gaskets.
o Three 24" Round hinged manway enclosures, primed, ready for contractor to install
■ To replace 3 existing elliptical manways on filter.
o Kurita to supply one (1) 6" SimulWash'" rate set valve for the creation of a new
backwash SimulWash rate set loop.
■ Contractor to supply necessary amount of pipe and install piping and valve
to the rate set loop.
■ Kurita to provide drawings as needed.
■ Kurita to program the new valve to work with standard Tonka SimulWash
controls.
D. Freight to the jobsite is included.
Underdrain System
• Kurita America is to provide our proprietary gravel retaining ABS insert nozzle.
E. Kurita America to provide -336 (12" on center) underdrain nozzles per tank.
F. Contractor is required to remove existing underdrain grid and header and install replacement
header and laterals.
G. Contractor to encase new underdrain in concrete.
N. Concrete provided by others.
I. Installation shop drawings provided by Kurita America.
J. New underdrain support steel provided by Kurita for contractor installation.
K. Freight to the jobsite is included
• Kurita America is to provide our proprietary airwash grid as a direct replacement of the
existing airwash grid.
o Kurita America is to provide new PVC airwash grids for all three of the existing filter
cell(s).
o Contractor is required to remove existing airwash header and laterals and install
replacement header and laterals.
o Installation shop drawings provided by Kurita America.
o New airwash support steel provided by Kurita for contractor installation.
• Freight to the jobsite is included.
Pressure Filter Refurbishment Materials- Page 4 of 13 QKu1UTA
KATw11112024-1BRP
• Kurita America is to provide a new 42" x 36" control
panel.
o Allen Bradley PanelView Plus 7 —10.4" operator
interface terminal for operation observation.
o CompactLogix programmable logic Controller
o Ethernet Switch — Ethernet SCADA capable
o Program to be preloaded prior to shipping.
• Freight to the jobsite is included.
Remote Access Package
• Includes tablet with copy of the panel program with
identical HMI screen that can control the system
remotely from anywhere a wireless internet program is available.
• Program to be replicated on a tablet that can be used to control the system remotely from
anywhere you have an internet signal.
• Smartphone connectivity is possible upon request.
• Additional licenses may be required to purchase by customer.
• Kurita America is to provide a replacement solenoid panel, equipped with the required
amount of pneumatic driven solenoids to operate the existing plant with the addition of a
SimulWashTm rate set valve added to the system.
• Installed by contractor
• External tubing and wiring not included in this quote, to be provided by others.
Pressure Filter Refurbishment Materials- Page 5 of 13 QKuRITA
KATW11112024-1BRP
I us I 1, 21 1 WAN I & k - =-a
Customer Scope
• Filter materials removal and installation by others.
• Execute the required Lock Out/Tag Out procedures as required to perform work on the
necessary equipment. Label then disconnect all wiring from the existing enclosure to field
devices. Remove old enclosure. Drill conduit entries into the new enclosure and terminate
wiring in new enclosure. Providing new airlines as needed. Install Ethernet cables between
existing router and new PLC.
• Kurita will assist the customer with these tasks in in an advisory role but will be limited by
the presiding electrical code and licensing requirements governing the plant. Keep in mind
that filter units that we encounter for these upgrades are rarely identical from one plant to
the next. There may be some debugging time that is needed from the time power is applied
to the new enclosure until it is fully functional.
• The expected time required to perform these upgrades is 6-10 hours from the time the
upgrade starts until the unit is running again. This is based on history and is not guaranteed
due to unforeseen circumstances that may arise. Kurita is committed to meeting your
standards and will not consider the job complete until you are satisfied. This upgrade can
usually be done while the filter is in service if needed.
• Customer to supply internet connection for remote access if option is purchased.
• It is recommended that the customer schedule an electrician for control panel setup the
week of arrival of the Kurita technician.
• Customer to VERIFY any SCADA integration or connection is capable of taking ethernet
connection capability prior to making purchase. PLC in new panel will utilize Ethernet
communication, any outdated "data highway" integration to other systems outside of the
Tonka Panel will not integrate to new panel(s) and communication will not be possible if
SCADA (or other) panels are not ethernet communication ready. Please ensure your other
systems are ready to integrate ethernet communication. Tonka does not do SCADA
integration and will provide a panel(s) that are SCADA integration ready.
Limits of Scope
• Plant personnel are required to open vessel manways and reinstall manways
• Filter disinfection is required prior to putting the filter into service.
Pressure Filter Refurbishment Materials- Page 6 of 13 G)Ku1UTA
KATW11112024-1BRP
a Kurita brand
o Any disinfection or saturation chemical is not included in this quote.
o Chemicals needs to be onsite prior to service visit/start-up.
o System will require additional backwashing to remove chemical treatments.
• Kurita will need to be informed of any personnel protection equipment required and if any
additional requirements are needed to enter the facility (i.e. Plant Safety requirements).
• Kurita not expected to perform an on -site electrical installation.
• Kurita does not provide any wiring or conduit outside of the control panel enclosure.
Start-up Services
Kurita America's Service technician to be onsite for 7 days total; 1 day for filter underdrain
inspection prior to concrete pour, 1 day for media installation and supervision, and 5 days to
ensure filter backwash sequence and flow rates are within specification after panel installation.
Additional inspection as time allows.
Pressure Filter Refurbishment Materials- Page 7 of 13 G)KuRITA
KATW11112024-1BRP
a Kurita brand
Kurita bases this proposal on the invoice schedule as shown below:
20% Upon Receipt of PO
70% Upon Readiness of Shipment
10% Retainage to be Paid no Later Than 30 Days After Completion
Delivery:
1. Submittal drawings will be supplied in approximately 3-4 after receipt of a fully signed
and executed purchase order.
2. Shipment of filter material equipment will be no earlier than 10-12 weeks after receipt
of approved drawings OR 38-40 weeks with the control panel, upon request.
The attached CONDITIONS OF SALE AND WARRANTIES that are incorporated herein.
For your convenience, this sheet may be used as your order for this equipment.
Items Ordered
P.O. Number
Total Net Price
Firm Name and el Or—
Address 1575CIA -IZD
Vt ` Sr.�l
By (Print) t ( t
Signature
Date 6
/f
Kurita America Inc.
Purchase orders should be addressed to:
Kurita America Inc.
6600 94t" Ave. North
Minneapolis, MN 55445
Pressure Filter Refurbishment Materials- Page 8 of 13 G)KuRITA
KATW11112024-1BRP
a Kurita brand
We do not include the following:
1. Mechanical or electrical installation.
2. Unloading or rigging. The contractor must provide a suitable access to the jobsite.
3. On -site storage or protection of equipment.
4. Pipe, valves or fittings other than those specifically described herein.
5. Pipe supports or hangers.
6. Motor starters, motor controls, disconnects, or any other electrical equipment other than
those specifically described herein.
7. Electrical wiring or conduit.
8. Chemical feed tubing, conduit piping, hangers or supports.
9. Pumps or pumping equipment other than those specifically described herein.
10. Concrete, concrete grout or rebar.
11. Disinfection or disinfection / start-up chemicals.
12. Lubricants.
13. Pneumatic tubing or conduit.
14. Control panel wall mounting material or hardware.
15. Anchor bolts or anchoring calculations, unless specifically described herein.
16. Any items not specifically described in this proposal.
17. Seismic design considerations of equipment unless otherwise noted.
Notes:
1. Equipment is quoted f.o.b. factory with full freight allowed to the jobsite.
2. Our proposal does not include any sales or use taxes.
3. If the above proposal includes valves, piping, etc., these are to be shipped loose for assembly and
installation by others unless specifically noted to the contrary.
4. The attached Kurita America standard Terms and Conditions are incorporated by reference into
this quotation, will be a part of any binding agreement between you and Kurita America, and
cannot be modified by you whether by the terms of your purchase order or otherwise, except to
the extent expressly accepted by Kurita America in writing. You agree to abide by the terms of
Section 1("General"), Section 3 ("Quotations") and Section 17 ("Confidential Information") of
the Kurita America standard terms and conditions with respect to the information contained in
this quotation and any other information provided to you by Kurita America, regardless of
whether you submit an order or whether you and Kurita America enter into a binding agreement
regarding the purchase of the products described herein.
5. Please note that a copy of the contractor's payment and performance bond is required to be
forwarded to us as a part of normal credit approval procedures.
6. Kurita America requires partial payments based on shipped material and purchaser's account
being current prior to scheduling a field technician for equipment start-up.
7. Kurita America will provide field services as outlined above in this quotation. Kurita America's
field service rate is $1200.00 per day plus travel and per diem expenses. If Kurita America field
service personnel arrive on -site after a schedule is established and the project is not ready for
the intended services to be performed, Kurita America will invoice for additional days, if
required. If the time required is greater than listed in this quotation, Kurita America will invoice
purchaser at the above field service rate plus travel and per diem expenses.
8. This proposal meets the requirements of the American Iron and Steel (AIS) Act, if specified.
9. Kurita America's manufactured product as described in this proposal meets the requirements for
Build America, Buy America (BABA), if specified.
Pressure Filter Refurbishment Materials- Page 9 of 13 G)KuRITA
KATW11112024-1BRP
a Kurita brand
•M7FM1 _
1. Exclusive Tereus and Conditions
Together with any other terms the parties agree to in
writing, these terms and conditions of sale form the
exclusive terms ("Agreement") whereby Buyer agrees to
purchase, and Seller agrees to sell goods and provide
advice, instruction and other services in connection with
the sale of those goods ("Services"). Notwithstanding any
provisions communicated in any way by Buyer to Seller
prior to this agreement including any terms contained in
any request for quote by Buyer, Buyer agrees that this
agreement will control the relationship by accepting goods
and services from Seller, even if Buyer sends to Seller other
terms and conditions to which Seller may not respond.
2. Buyer Obligations
Seller will not control the actual operation of either Buyer's
systems or goods at the site, and unless otherwise
specifically agreed in writing, installation of goods shall be
the responsibility of Buyer. Goods and services provided
hereunder are based upon the information Buyer makes
available to Seller, and Seller reserves the right to utilize the
most compact and feasible design compatible with sound
engineering practices, and to make changes in details of
design, construction and arrangement of goods unless
precluded by limitations (including, but not limited to actual
space and feed water/substance quality specifications)
specified by Buyer in writing at the time an order is placed.
If no such limitations are specified, Seller shall not be held
responsible for incompatibility of the goods and services
due to changes in feed water/substance quality
specifications or site conditions nor for incompatibility with
actual space or design limitations, which were not initially
disclosed by Buyer and become apparent at a later date. For
services to be accurate and goods to work as intended,
Buyer must fulfill the following obligations ("Obligations'):
(a) provide Seller complete and accurate information and
data relevant to the scope of work to be provided, such as
information related to Buyer's site conditions, systems,
related equipment and processes, feed water or other
substances to be treated or measured with the Goods ,
including any hidden, unapparent, or changing conditions
that may affect the effectiveness of the Goods; (b) operate
all related systems and the goods within the agreed to
control parameters or, if none, within industry customary
operating conditions; (c) maintain all related systems and
Goods in good operating condition and repair; and (d)
maintain and handle goods in a proper and safe manner. If
Buyer's fails to fulfill the foregoing obligations, Seller shall
be relieved of any obligations with respect to warranties or
any other commitments made to Buyer in writing, and
Seller shall have no liability for any loss, damage or injury
which Buyer may sustain or for which Buyer may be liable.
3. Payment and Prices
Unless otherwise specified in writing in section 10 of this
proposal document, payment is due net thirty (30) days
from the date of Seller's invoice. If Seller shall have any
doubt at any time as to Buyer's ability to pay, Seller may
decline to make deliveries except on receipt of satisfactory
security. The prices quoted herein do not include taxes.
Buyer shall be directly responsible, and reimburse Seller, for
the gross amount of any present or future sales, use, excise,
value-added, or other similar tax applicable to the price,
sale of delivery of any products or services furnished
hereunder. Buyer shall furnish Seller with evidence of
exemption acceptable to the taxing authorities if
applicable. [For multi -year agreements, pricing stated shall
remain firm for 12 months, after which Seller shall be
entitled to adjust pricing upward on an annual basis
according to the designated formula used by Seller in
Buyer's country and which shall be notified to Buyer.]
Unless otherwise specified, all prices are ExWorks Seller's
facility. Buyer agrees to reimburse Seller for collection
costs, including 2% interest per month, should Buyer fail to
timely pay. Buyer shall have no rights to any setoffs of any
nature relating to any payments due under the agreement.
4. Payment for Excessive Usage; Lost and Damaged
Goods
If payment for goods is based on some factor other than the
actual amount of goods delivered (e.g., payment is for a
fixed amount, or based on usage or production), then Buyer
agrees to pay for all Goods (a) consumed as a result of
Buyer's failure to comply with obligations as set forth in
Section 2; or (b) lost or damaged after delivery to Buyer.
Buyer shall provide Seller all information necessary to
calculate amounts due and enable Seller to audit those
records.
S. Deliveries
Unless stated otherwise in the proposal, Seller shall deliver
all products to Buyer EXW Seller's facility, place of
manufacture, or warehouse, according to INCOTERMS
2000. Shipment dates, if applicable, noted in this proposal
represent Seller's best estimate of probable delivery time
considering conditions known at the time this Proposal was
prepared. Upon acceptance of Buyer's purchase order or,
where specified in the purchase order, upon receipt of
Buyer's notification to proceed with fabrication of
equipment that satisfies Seller's requirements for meeting
the delivery schedule, Seller shall commence fabrication of
equipment. The place of delivery specified therein shall be
firm and fixed, provided that Buyer may notify Seller no
later than 45 days prior to the scheduled shipment date of
the products of an alternate point of delivery. Provided the
parties agree a variation to take into account any additional
Pressure Filter Refurbishment Materials- Page 10 of 13 QKuR*1TA
KATW 11112024-1 BRP
cost [or delay] incurred by Seller in implementing this
change, the alternate place of delivery shall become the
agreed place of delivery for all purposes under this
agreement.
6. Consigned Goods
Buyer shall bear all risk of loss and damage
to all consigned goods in Buyer's possession
or control, notwithstanding Buyer's exercise
of reasonable care. Seller shall have the
right to enter Buyer's premises at all
reasonable times to inspect such Goods and
related records. Upon request, Buyer agrees
to return such goods to Seller pursuant to
Seller's shipping instructions.
7. Limited warranties
Seller warrants that the goods shall conform to published
specifications and shall be free from defects in material and
workmanship when at all times operated in accordance
with Seller's written instructions; and that the services will
be performed with the degree of skill which can reasonably
be expected from a seller engaged in a comparable business
and providing comparable services under comparable
circumstances. Unless otherwise provided in any warranty
schedule that may be attached hereto, the foregoing
warranties are valid: (a) for chemicals and services, for 6
months from their date of delivery or the provision of
Services; (b) for consumables, including filters and
membranes, 12 months from their date of delivery, (c) for
goods other than chemicals and consumables, the earlier
of, 15 months from receipt, or 12 months from start-
up/first use. Unless expressly agreed in a "performance
warranty document" signed between the parties on a
separate basis, there is no performance warranty on goods
and services or warranty on process results. For goods not
manufactured by Seller, the warranty shall be the
manufacturer's transferable warranty only. Any claim for
breach of these warranties must be promptly notified in
writing or the claim will be void. Seller's sole responsibility
and Buyer's exclusive remedy arising out of or relating to
the goods or services or any breach of these warranties is
limited to, at Seller's option: (a) replacement of non-
conforming goods or refund of purchase price of the non-
conforming Goods; and (b) re -performance of the services
at issue, or a refund of the amount paid for the Services at
issue. No allowance will be made for repairs or alterations
made by Buyer without Seller's written consent or approval.
Goods may not be returned to Seller without Seller's
written permission. Seller will provide Buyer with a "return
material authorization" number to use for returned goods.
Buyer, as the original purchaser, is not entitled to extend or
transfer this warranty to any other party. The foregoing
warranties are in lieu of and exclude all other warranties,
statutory, express or implied, including any warranty of
merchantability or of fitness for a particular purpose.
B. Use of Equipment, Tanks, and Containers
Tanks and SBC's owned by Seller shall be
used only for the storage of goods approved
by Seller and, at Seller's request, shall be
returned to Seller within thirty (30) days.
4. Compliance with Laws; Permits
Buyer is responsible for compliance with all laws and
regulations applicable to the storage, use, handling,
installation, maintenance, removal, registration and
labeling of all goods from and after Buyer's receipt of the
goods, as well as for the proper management and disposal
of all wastes and residues (including containers) resulting
from Buyer's use of the Goods. Buyer agrees to ensure that
all Goods and Services provided to Buyer for export are
exported only in compliance with applicable export control
laws and regulations. Permits and licenses of a permanent
nature, or which are required to operate apparatus or
equipment or to use the Goods, shall be procured by Buyer
at Buyer's sole expense.
10. Installation
For equipment purchase if applicable, installation costs of
the equipment and materials supplied shall be the
responsibility of the Buyer, unless otherwise provided
within the Seller's proposal. Otherwise, unless stipulated in
the Seller's proposal, Buyer agrees to pay for start-up
supervision and operator instruction, at the Seller's
prevailing rate per day. Buyer also agrees to pay reasonable
expenses for transportation room and board for Seller's
personnel. Standard terms of sale include two sets of
operating instructions. If additional sets are required, they
are available at an additional charge. Upon receipt of
request for additional sets, a price quotation will be
forwarded.
11. Differing Site Conditions and Hazardous Materials
In the event that Seller encounters any Hazardous Materials
(shall mean toxic substances, hazardous substances,
pollutants, contaminants, regulated wastes, or hazardous
wastes as such terms may be defined or classified in any
law, statue, directive, ordinance or regulations
promulgated by any applicable governmental entity) at the
Buyer's site, other than Hazardous Materials introduced by
Seller or that are otherwise the express responsibility of
Seller under this Agreement, Buyer shall immediately take
Pressure Filter Refurbishment Materials- Page 11 of 13 QKuRITA
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whatever precautions are required to legally eliminate such
hazardous conditions so that the Seller's work under this
Agreement may safely proceed.
12. Emergencies
In the event an emergency condition should occur where
the protection of either the plant equipment, employees at
site, or the surrounding community are threatened, Seller
may procure the required and necessary equipment,
personnel, or subcontract support. Seller must provide
immediate notice to Buyer regarding the emergency and
then provide a report after reviewing the events and
itemizing all expenditures. Buyer will reimburse Seller for all
emergency related expenses.
13. Excusable Delay/Non-Performance
Seller shall not be liable nor in breach or default of its
obligations under this Agreement to the extent
performance of such obligations is delayed or prevented,
directly or indirectly, due to causes beyond the reasonable
control of Seller, including, but not limited to: acts of God,
fire, terrorism, war (declared or undeclared), epidemics,
material shortages, insurrection, act (or omissions) of Buyer
or Buyer's suppliers or agents, any act (or omission) by any
governmental authority, strikes, labor disputes,
transportation shortages, or vendor non-performance. The
delivery or performance date shall be extended for a period
equal to the time lost by reason of delay or non-
performance, plus such additional time as may be necessary
to overcome the effect of the delay or non-performance. If
Seller is delayed by any acts (or omissions) of Buyer, or by
the prerequisite work of Buyer's other contractors or
suppliers, Seller shall be entitled to an equitable price and
performance adjustment as applicable.
14. Confidentiality and Intellectual Property
Both parties agree to keep confidential the other party's
proprietary non-public information, if any, which may be
acquired in connection with this Agreement. Buyer will not,
without Seller's advance written consent, subject Goods to
testing, analysis, or any type of reverse engineering. Seller
retains all intellectual property rights including copyright
which it has in all drawings and data or other deliverables
supplied or developed under this Agreement, subject to
Buyer's right to use such drawings and data for its own use
without additional cost. Buyer acknowledges that Seller is
in the business of selling the Goods subject to this
Agreement and agrees that it will not file patent
applications on the Goods, or processes and methods of
using the Goods, without Sellers express written
permission. Buyer further agrees that in any event any such
patents will not be asserted against Seller or its customers
based upon purchase and use of such Goods. Buyer shall be
fully liable for any infringement of patent rights of third
parties arising out of the products supplied hereunder
where the construction, and other characteristics of such
products including modification of the Goods and Services,
is prescribed to the Seller, or completed independently, by
the Buyer or agent(s). Buyer shall fully defend and
indemnify the Seller in case of such claim(s). Any software
Seller owns and provides pursuant to this Agreement shall
remain Seller's property. Seller provides to Buyer a limited,
non-exclusive and terminable license to such software for
the term of this Agreement. Buyer agrees not to copy, sub-
license, translate, transfer, reverse engineer, or decode the
software. Unless otherwise expressly agreed by Seller, this
license shall terminate and the software shall be returned
to Seller upon termination of this Agreement, or the
material breach of the terms in this section.
1. Limitation on Liability
To the extent permitted by law, the total liability of the
Seller for all claims arising out of or relating to the
performance or breach of this Agreement or use of any
Goods or Services shall not exceed the annual contract
value of this Agreement. Seller shall not be liable for any
advice, instruction, assistance or any services that are not
required under this Agreement or for which Seller does not
charge Buyer. In no event will either party be liable to the
other for lost profits or revenues, cost of capital or
replacement or increased operating costs, lost or decreased
production, claims of Buyer's customers for such damages
or any similar or comparable damages, or for any incidental,
special, consequential or indirect damages of any type or
kind, irrespective of whether arising from actual or alleged
breach of warranty, indemnification, product liability or
strict liability, or any other legal theory. If Buyer is supplying
Seller's Goods or Services to a third party, Buyer shall
require the third party to agree to be bound by this clause.
If Buyer does not obtain this agreement for Seller's benefit
for any reason, Buyer shall indemnify and hold Seller
harmless from all liability arising out of claims made by the
third party in excess of the limitations and exclusion of this
clause.
16. Conflicts; Survival, Assignment
If there is any conflict between this Agreement and any
written proposal or quotation provided by Seller, then the
terms and conditions set forth in the proposal or quotation
shall prevail. If any term or condition of this Agreement or
any accompanying terms and conditions are held invalid or
illegal, then such terms and conditions shall be reformed to
be made legal or valid, or deleted, but the remaining terms
and conditions shall remain in full force and effect, and the
Agreement shall be interpreted and implemented in a
manner which best fulfills our intended agreement. This
Agreement may only be assigned by Seller to any affiliate.
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a Kurita brand
17. Termination and Cancellation
This Agreement and any performance pursuant to it may be
terminated or suspended by either party if the other party
(a) is the subject of bankruptcy or insolvency proceedings;
or (b) defaults in its material obligations under this
Agreement, and such default is not cured within thirty (30)
days. Upon the termination of this Agreement: (a) Buyer
agrees to pay for all Goods in Buyer's possession or for
which title has passed to Buyer, at current prices or at such
other prices as have been agreed to in writing; and (b) all
amounts owing, if any, for the equipment or tanks relating
to those Goods shall immediately become due and shall be
paid within thirty (30) days of receipt of an invoice. In the
event of cancellation of an order by Buyer, a cancellation
charge will be made against the Buyer, in proportion to the
work completed by Seller, or obligated against the order,
plus any cancellation charges assessed against Seller by
Seller's suppliers.
18, Governing Law and Dispute Resolution
This Agreement shall be governed by the substantive laws
of the State of Minnesota. The UN Convention on the
International Sale of Goods shall not apply. In the event of
a dispute concerning this Agreement, the complaining party
shall notify the other party in writing thereof. Management
level representatives of both parties shall meet at an agreed
location to attempt to resolve the dispute in good faith.
Should the dispute not be resolved within thirty (30) days
after such notice, the complaining party shall seek remedies
exclusively through arbitration. The seat of arbitration shall
be the federal district court in Minneapolis, MN, and the
rules of the arbitration will be the Commercial Arbitration
Rules of the American Arbitration Association, which are
incorporated by reference into this clause.
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