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HomeMy WebLinkAboutRES NO 094-2023RESOLUTION NO. 0 9 4- 2 0 2 3 RESOLUTION DETERMINING THAT THE SEPTAGE UNIT REQUIRED FOR RECEIVING AND PROCESSING SEPTAGE AT WASTEWATER TREATMENT PLANT NO. 3 CANNOT BE REASONABLY OBTAINED THROUGH THE USUAL BIDDING PROCEDURES AND AUTHORIZING THE FINANCE DIRECTOR TO DISPENSE WITH BIDDING THEREFOR, NOT TO EXCEED FIVE HUNDRED TWENTY-FIVE THOUSAND DOLLARS ($525,000). -Ref. o`� 3 WHEREAS, Wastewater Treatment Plant No. 3 (WWTP 3) has two septage receiving units (septage units) that process the septage prior to discharge into the septage storage tank; and WHEREAS, the septage units are manufactured by Huber Technology, Inc. (Huber); and WHEREAS, Huber is the sole distributor of RoFAS septage unit, as stated in the sole source letter attached hereto as Exhibit A and incorporated by reference herein; and WHEREAS, WWTP 3 has one unit that is inoperable and in need of replacement, for which Huber submitted a quote attached hereto as Exhibit B and incorporated by reference herein; and WHEREAS, Goble Sampson is the designated representative of Huber parts and services in the state of California; and WHEREAS, the Public Works Director recommends the Council find the purchase of the replacement septage unit required for WWTP 3 can only be reasona ly obtained from Huber, because Huber is the sole distributor of the required unit and services for the City's geographical area, and recommend the Council dispense With bidding requirements, in accordance with subsection D.2 of Section 3.20.060 of the Bakersfield Municipal Code. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Bakersfield as follows: 100 The above -recitals are true and correct and incorporated herein by reference. Based on the facts included in the above recitals, the purchase of�he required parts and services can only be reasonably obtained from Hub r, because --Page 1 of 2 Pages— �OAKF,� S:\Projects\E3K304 Septage Processing Unit Upgrade\Resolution\Huber Resolution .docx m vOF?!eNA � o Huber is the sole distributor of the required parts for the City's area. .ographical 3. The expenditure of funds for required parts and services shall not xceed Five Hundred Twenty -Five Thousand Dollars ($525,000). 4. The Finance Director is authorized to dispense with bidding in accordance with Section 3.20.060 of the Bakersfield Municipal Code I HEREBY CERTIFY that the foregoing Resolution was passed and adopted, by the Council of the City of Bakersfield at a regular meeting thereof held on J U N 2 8 2023 by the following vote: YES: N ABSTAIN: ABSENT: COUNCILMEMBER ARIAS, GONZALES, WEIR, SMITH, FREEMAN, GRAY, KAUR COUNCILMEMBER COUNCILMEMBER COUNCILMEMBER JULIE DRIMAKIS, MMC CITY CLERK and Ex Officio Clerk of 1 Council of the City of Bakersfield APPROVED: JUN 2 8 2023 By _� 44M . - ;6 41 KAREN GOH Mayor APPROVED AS TO FORM: VIRGINIA GENNARO City Attorney D--1 Y OSHUA RUDNICK Deputy City Attorney II --Page 2 of 2 Pages— S:\Projects\E3K304 Septage Processing Unit Upgrade\Resolution\Huber Resolution .docx )e s ~ r 'ORIGINAL HUBER Technology, Inc. EXHIBIT June 2, 2023 Subject Sole Source Letter To whom it may concern, UEER WASTE WATER Solutions This letter serves as a sole source document for products manufactured by HUBER SE and HUBER Technology Inc. (U.S.). HUBER Technology, Inc., based in Denver, NC, is the only vendor for the HUBER products. A list of HUBER products can be provided upon request. Goble Sampson is the sole authorized representative for HUBER Technology products, parts and services for the state of California. No other representatives or vendor manufacturers distribute these o'- similar items. Please let me know should you need further details. Sincerely, Henk-Jan van Ettekoven President HUS HUBER Technology, Inc. HUBER Technology, Inc. 1009 Airlie Parkway, Denver, NC 28037 (704) 949-1010 - Fax (704) 949-1020 - huber@hhusa.net www,huber-technologycom A member of the HUBER Group Bakersfield, CA Equipment: HUBER Sludge Acceptance Plant RoFAS 1 - Single Inlet Represented by: Goble Sampson Associates Matt Bentley (704) 650-7332 mbentley@goblesampson.com Regional Sales Director: Ron Maiorana 704-990-2422 Rona ld.Maiorana@hhusa.net Project Number: 467703 Revision: 1 Date: 6/8/2023 DEER kINOMOLOIROM WASTE WATER Solutions v a H BER Technolog4c. 1p 1009 Airlie Pk y, Denver, NC O037 m 704-949-1010 1 www.H BER-technologyaprq!G!NAL� Design Information WAS WAM MM soave Maximum Flow Rate 700 GPM Solids Content at Max Flow Rate 3% % Drum Perforation Sizing 10 I mm Diameter of Drum 3.94 feet Length of Drum 9.24 feet Approximate empty weight 2756 Ibs Approximate loaded weight 4960 Ibs Wash Water Consumption 40 GPM Wash Water minimum pressure 100 PSI Installation Angle of Drum 30 ° ANSI Inlet Diameter 4 ! inch ANSI Outlet Diameter 8 inch Equipment Details Quantity 1 Material 304L Stainless Steel Construction; picked and passivated in acid bath Screenings Wash One (1) spraybar system used to clean screenings Solenoid Valve One (lx) 1-1/2 inch size diameter Classl Divisionl 120VAC 60Hz single phase Stainless Steel body Drive Motor 3HP, 480 VAC, 3ph, 60 Hz, S.F. 1.15, Class 1 Division 1 Actuator/Valve Electric actuator with PVC Ball Valve Flow Meter Magnetic flow meter Level Sensor Pressure transducer Supports 304L Stainless Steel Construction Anchor Bolts M12, 316L, Included Booster Pump Booster pump for wash water, TFEC Motor, Class 1, Division 2, no thermostat included. Design Information WAP Screenings Capacity 212 cu.fyhr Drain Pan Perforation Sizing 5 mm Approximate empty weight 1323 Ibs Wash Water Consumption 24 gpm Wash Water minimum pressure 30-75 psi ANSI Outlet Diameter (WAP6 or Larger) 4 inch Equipment Details Quantity Material Auger Material Solenoid Valve(s) Drain Pan Inlet Hopper Discharge Pipe Motor Supports Anchor Bolts 1 304L Stainless Steel Construction; picked and passivated in acid bath 304L Stainless Steel Construction; picked and passivated in acid bath with shafted screw design Two (2x), 1-inch size diameter, Class 1 Division 1, 120 VAC, 60 Hz single phase, Stainless Steel boc Latched, 3.5" NPT Connection Enclosed feed hopper, inspection Hatch Included 304L stainless steel with endless bagger 7.5 HP, 480 VAC, 3ph, 60 Hz, S.F. 1.15, Class 1 Division 1 304L Stainless Steel Construction M12, 316L, Included Power Supply: 480VAC-3PH-60HZ Panel Classification: NONE Panel Location: Outdoors, Under Site Provided Sun Shade 1 - Enclosure, NEMA 4X, 304 Stainless Steel, w/ Dead Front and 3PT Latch (Estimated Size: 60x36x12) 1 - Air Conditioner, NEMA 4X w/ Level 2 Corrosion Package (Note: AC adds 12" to enclosure width) 1 - Main Disconnect, Non -Fused Type, w/Through Door Handle 1 - Variable Frequency Drive, Altivar 320 Series, w/MSP Branch Circuit Protection [3HP - 480VAC Max, Screen] 1 - Motor Starter, NEMA, Reversing, w/OL and Branch Circuit Protection [7.5HP - 480VAC Max, Press] 1 - Motor Starter, NEMA, Reversing, w/OL and Branch Circuit Protection [3.OHP - 480VAC Max, Booster Pump] 1 - Current Monitor - Press 1 - Phase Failure Relay 1- Control Power Transformer, 480-120VAC 1 - Panel Heater, with Thermostat 1 - Alarm Beacon 1- Alarm Horn and Silence Pushbutton _ 1 - Lot, Circuit Breakers, 120VAC: [As Required] 1 - Lot, Pilot Lights, LED Type: [As Required] 1 - Lot, Push Buttons: [E-Stop, Silence] 0 - Lot, Selector Switches: [NONE - All switches in field LCS] 1 - Lot, Control Relays, Socket Type: [As Required] 1- Lot, Terminal Blocks: [As Required] _ 1 - Lot, Dry Contacts: [As Required] 1 - UL Label 1 - 12/18 Month Warranty Power Supply: 120VAC-3PH-60HZ - From Motor Control Panel Panel Classification: NONE Panel Location: Outdoors, Under Site Provided Sun Shade 1 - Enclosure, NEMA 4X, 304 Stainless Steel, w/ Dead Front and 3PT Latch (Estimated Size: 60x36x12) 1 - Air Conditioner, NEMA 4X w/ Level 2 Corrosion Package (Note: AC adds 1Z" to enclosure width) 1 - Main Disconnect, Non -Fused Type, w/Through Door Handle 1 - Surge Protection, 120VAC 1 - Programmable Logic Controller, Modicon M340 Series w/ Ethernet and Required 10 _ 1 - Operator Interface Unit, Modicon Magelis, 12" Color Touchscreen 1 - Panel Heater, with Thermostat 1 - pH meter 1 - Lot, Circuit Breakers, 120VAC: [As Required] _ 1 - Lot, Pilot Lights, LED Type: [Control Power On] _ 1 - Lot, Push Buttons: [E-Stop, System Reset] 0 - Lot, Selector Switches: [NONE - All switches in field LCS] 1 - Lot, Control Relays, Socket Type: [As Required] 1 - Lot, Terminal Blocks: [As Required] 1 - Lot, Dry Contacts: [As Required] _ 1 - UL Label 1 - 12/18 Month Warranty y '^ Pagp vOR!GNIA 1 c RoFAS Control Station: Panel Classification: C1D1 1 - Enclosure, NEMA 7, Cast Aluminum 1- Lot, Selector Switches: [As Required] - Screen HOA Screen FOR (Spring Return from Reverse to Off) (1) Solenoid HOA 1 - Lot, Push Buttons: - Emergency Stop WAP Control Station: Panel Classification: C1D1 1 - Enclosure, NEMA 7, Cast Aluminum 1 - Lot, Selector Switches: [As Required] Press HOA Press FOR (Spring Return from Reverse to Off) (3) Solenoid HOA 1 - Lot, Push Buttons: - Emergency Stop 3 days and 1 trips Startup services for installation inspection and startup supervision. Freight to jobsite. Pricing HUBER Sludge Acceptance Plant RoFAS 1 1 Included HUBER Wash Press WAP 6 1 Included HUBER Control Panel 2 Included Freight and Startup Services 3 days, 1 trip Included TOTAL: Ancillary Equipment Hauler Access Station with PortALogic software HUBER Rock Trap This proposal has been reviewed for accuracy and approved for issue by: $473,860.00 DS-200 1 $38,500.00 DN500 1 $11,000.00 JW ."n WATER Sd.— O� 0 AKF'� �— m r� OR0.11Pa&�4 HUBER General Notes 1. HUBER Scope of Supply is based on: N/A 2. HUBER is in receipt of the following addenda: N/A 3. All electrical interconnections, motor disconnects, wirings, junction boxes, and terminations between the equipment al be provided by installing contractor. 4• Any item not specifically listed is not considered part of this scope of supply. Please contact the HUBER Technology rep clarification. electrical components are to listed for further 5. A fully functioning and programmed HMI/PLC will be delivered to site. Screens and symbols used on the HMI are based on HUBER's standard unless otherwise noted. Software licenses for the PLC/HMI program will not be included in this scope of supply unless stated otherwise. These items are available for additional price adder upon request. 6. The Control Panel is based on the specification provided and inclusive to meet the requirements of a Vendor designed panel, whereas the components and the factory testing of the panel will meet HUBER's requirements for function and warranty. Additional requirements or sections of the specification to meet local authority requirements or control panel designs unrelated to the equipment section, including special labeling, testing, or integration have not been included. 2• HUBER Technology, Inc. is offering the equipment and associated performance guarantees based on information available at the time of the issuance date. Information not made available to HUBER, whether HUBER is asking for specific information or not, which could affect the performance of the equipment might void warranty and performance guarantees. 8. HUBER will ship all equipment to site inside of 20', 40' or 40'OT ocean containers as deemed appropriate by our factory. HUBER will not ship any 9• equipment on flatbed truck. Flatbed truck shipping means that the equipment would need to be transferred at port from, factory packaged containers to the flatbed. This process it out of HUBER's control and it is our experience that equipment always gets damaged during this process. 10. HUBER's standard submittal documents, programming, testing procedure and O&M documentation are included. 11. All piping to and from the equipment is to be supplied by the installing contractor. ' �Pgge 5 G1 0P..�._ Terms and Conditions The Proposal is dependent and expressly conditioned upon Purchaser's acceptance of the attached HUBER Technology, Inc. Terms and Conditions of Sale dated June 08, 2023. Special Information and Exceptions • Price does not include any unloading or any applicable fees or taxes (Local, Federal, or Final Destination) • Prices are in U.S. Dollars unless noted otherwise • Freight is delivered with duty paid (D.D.P.) to Job site • Price does not include installation or building modifications The Price Quotation is valid until July 14, 2023 or until withdrawn by HUBER Technology, Inc. (hereinafter "HUBER"). Af HUBER reserves the right to adjust pricing to take into account any significant increases in material costs such as steel, s products, stainless steel coil, etc. Due to the current volatility of raw materials and shipping HUBER cannot guarantee to validity date. HUBER therefore reserves the right to adjust our pricing based on applicable price indexes at time of orde Terms of Payment 10% upon delivery of submittals (net 30 days) 80% upon delivery of equipment (net 30 days) 10 % upon start-up of equipment (net 30 days) No retainage will be withheld on this Project. WASU SI.191� !reinafter "HUBER") Standard expiration of validity iless steel finished Id prices beyond the Submittals HUBER will provide documentation to the Purchaser per the following schedule: • Five (5) copies or the quantity stipulated in the equipment specification of submittal shop drawings 4-6 weeks after acceptance of a written purchase order. • Three (3) copies or the quantity stipulated in the equipment specification of HUBER O&M manuals prior to equipment sort -up. Shipment HUBER will make all reasonable efforts to maintain the following schedule: • Submittals 4-6 weeks after acceptance of a written purchase order. • Equipment delivery 22-30 weeks after approved submittals or notice to proceed. • O&M manuals prior to equipment start-up. • For any delays in delivery which are beyond HUBER's responsibility, a finance charge of 1.5% of the contract value perm nth and all direct Costs incurred as a result of the delay will be due and payable to HUBER upon request/invoice. Accessories This Proposal includes only those items specifically mentioned in the equipment descriptions. Any items which may be necessary for the operation of the equipment, but are not specifically mentioned, such as motors, drives, controls, or supports, are to be supplied via additional quotation separate from this offering. Abrasion or Corrosive Materials All of HUBER's machines and systems are manufactured from 304L or 316L grade stainless steel. The environment or materials the equipment may be exposed to may be abrasive or corrosive. This Proposal makes no representation or warranties concerning the service life of the equipment against such abrasion or corrosion. The concentration of chloride and hydrogen sulfide (H2S) in the equipment operating environment shall be kept below the following values: • Maximum Chloride for V2A (304, 304L)* 100 mg/L • Maximum Chloride for V4A (316L, 316Ti)* 400 mg/L • Maximum Chloride for V4A (316L, 316Ti)** 250 mg/L • pH Value of the Wastewater/Washwater >6.5 • Iron Content in Washwater <0.50 mg/L * no hydrogen sulphide in the area of the stainless steel ** with a maximum hydrogen sulphide content of 6 ppm Machines made from 316 grade stainless steel are available at an additional price for extremely harsh operating environment upon request. Purchase Orders All Purchase Orders are to be faxed or mailed to: HUBER Technology, Inc. 1009 Airlie Parkway Denver, NC 28037 Phone: (704) 949-1010 gA!(F? Fax: (704) 949-1020 All Purchase Orders are subject to acceptance by HUBER and acceptance of HUBER's Standard Terms and Conditions. 0 Pag(O TECHNOLOGY o``OAKF`�s E rn ORIGINAL Page 7 Warranty LIMITED WARRANTY: HUBER warrants that the equipment and components furnished will be free from defects in workmans the general process function intended, solely under the conditions defined by HUBER for a period of (a) twelve (12) months fr start-up or owner acceptance of the equipment assuming the equipment is accepted by the owner within 6 months of deliver) from the date of delivery to Purchaser, whichever date comes first. HUBER will replace, modify or repair, at its sole option, an or equipment at no charge provided that HUBER is notified promptly in writing of any claimed defect. If requested by HUBER, component shall be returned to HUBER, freight prepaid. HUBER will provide on -site Field Service when reasonably assured of warranty does not apply or when such service is required in its judgments. This warranty does not apply to any defect or malt to store, install, operate or maintain the equipment in accordance with instructions by HUBER. Warranty shall be voided for a operation under conditions other than those defined by HUBER in its operation and maintenance (0&M) manuals for said equ negligence. Any unauthorized modification or alteration of the equipment or repair or replacement of components may void option of HUBER. For any billable repairs completed outside of the initial warranty period, a sixty (60) day guarantee on work will apply. HUBER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH REGARD TO THE DESIGN, SALE, MERCHANTABILITY OR PARTICULAR PURPOSE OR USE EXCEPT AS EXPRESSLY SET FORTH IN HUBER'S TERMS AND CONDITIONS. HUBER IS NOT SUBJ OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR WARRANTY, TORT CLAIMS INCLUDING NEGLIGENC STRICT LIABILITY, OR ANY OTHER THEORIES OF LAW. HUBER IS UNDER NO EVENT LIABLE FOR ANY SPECIFIC, INDIRECT, INCI[ LOSS, DAMAGES, EXPENSE, INJURY, DISMEMBERMENT, OR DEATH OF ANY KIND WHATSOEVER. Exclusions • Financing • Cranes and/or lifting devices • Unloading and/or storage of equipment on job site • Local, State or Federal taxes or fees • Foundation design and engineering (HUBER will only furnish equipment drawings and data) • Utilities for erection, installation and operation • Gauges and instrumentation not specifically described in HUBER scope of supply • Interconnecting wiring, conduit, piping, tubing, valves, fittings, etc. between the equipment and other equipment panel. • Tools, oil, grease, grease gun, dumpster(s), or bin(s). Project Management HUBER will appoint a Project Manager for the duration of the contract. Project Management services are included in this • Provision of a complete critical path project schedule for HUBER equipment • Coordination with HUBER manufacturing on materials procurement and fabrication to and with HUBER shipping/lo commitments are maintained. Erection, Training and Start-up Assistance A certified HUBER Service Technician will make every reasonable effort to be at the job site within two (2) weeks after Purcha equipment start-up and commissioning assistance. HUBER will provide additional erection and start-up supervision, which is i scope of our supply at the Purchaser's written request. For such additional services Purchaser shall pay $1,000.00 per day plu per day. • At the request of the Purchaser, overtime service will be provided at a rate of 1.5 times the regular rate for weekdays, a for weekends. • "Expenses" are defined as the costs of travel from HUBER's location to the point of installation and return; together witl expenses during the start-up period of field service. HUBER will make all reasonable efforts to provide a HUBER Rep loci However, some circumstances will require travel from Europe. • Charges for all time involved will be invoiced, including delays which are beyond HUBER's control. The full net invoice is of receipt by Purchaser. W"n WAM SOMcm ip and materials and perform im completion of installation, or (b) eighteen (18) months such defective component any such defective part or payment therefore if this nction arising out of failure iy misuse of equipment; pment, or gross operator his warranty, at the sole performed and parts supplied TNESS OF THE GOODS FOR A CT TO ANY OTHER , GROSS NEGLIGENCE AND NTAL OR CONSEQUENTIAL control devices and control and are as follows: to ensure HUBER er's request to HUBER for )t specifically included in the expenses, for eight (8) hours 2.0 times the regular rate accommodation and living ed within North America. ble within thirty (30) days Equipment Standard Any deviations from the HUBER standard mechanical and electrical specifications must be discussed with the Purchaser and a reed upon. HUBER reserves the right to charge additional costs to the equipment price for any non-standard mechanical and electrical components requir d by the Purchaser and not explicitly stated in HUBER's scope of supply. Shop Painting Gears and motors will receive three (3) layers of painting, two (2) layers of primer and a finishing layer with synthetic resin varnish. S� Pige ~ r ORGINA8 U HUBER WMH w11M sonmwrs HUBER TECHNOLOGY, INC. STANDARD TERMS AND CONDITIONS OF SALE 1. ENTIRE AGREEMENT/ORDERS. This agreement (the "Agreement") is between HUBER Technology, Inc., its subsidiaries and its affiliates (collectively "HUBER") nd Purchaser. No order for HUBER's goods or services shall be binding upon HUBER until acknowledged in writing by HUBER. Such written acknowledgement and these Standard Terms and Conditions of Sale (the "Terms and Conditions") constitute the entire agreement between HUBER and Purchaser. Any purchase order, offeror counter-offer made by Purchaser before or after HUBER's written acknowledgement is rejected and all documents exchanged prior to HUBER's written acknowledgement are merely preliminary negotiations and not part of any agreement between the parties. For example, orders submitted on Purchaser's own purchase order forms modifying, adding to, contrary to, or inconsistent with these Terms and Conditions are expressly rej cted and of no force or effect and acceptance is expressly made conditional upon assent to these terms. In no event will HUBER be deemed to have in any way changed, enlarged or modified its liabilities or obligations as fixed by these Terms and Conditions including, without limitation, situations in whit HUBER satisfies an order submitted on Purchaser's own purchase order form. No other terms or conditions or modification of these terms shall be binding upon HUBER unless specifically accepted in writing by an Officer of HUBER. Merely signing a purchase order or other document as a condition of payment shall not be deemed a specific acceptance of terms therein by HUBER. Purchaser shall have been deemed to agree to these Terms and Conditions upon the earlier of acceptance of HUBER's quotatidn, acceptance of delivery of the goods or services or the issuance of a purchase order to HUBER. 2. PRICES. Until acceptance of a purchase order is acknowledged in writing by HUBER, all prices are subject to change. Written quotation expire fourteen (14) calendar days from the date of quotation unless specified otherwise. Verbal quotations are non -binding on HUBER. Quoted prices do not include sales, excise, municipal, state or any other government taxes. All taxes and other governmental charges upon the production, manufacture, distribution, sale or use of goods or services to the extent required or not forbidden by law to be collected by HUBER from Purchaser, shall be paid Irby Purchaser to HUBER unless Purchaser furnishes HUBER with exemption certificates acceptable to the relevant taxing authorities. HUBER reserves tl}e right to revise final quoted prices of work in process due to any change in the order on the part of Purchaser or any factor beyond the control of HUBER. Typographical and/or clerical errors made by HUBER are subject to correction. If Purchaser causes or requests delays in manufacture or shipment beyond six (6) months from acceptance of Purchase Order, HUBER shall have the right to increase price based on any actual escalation in labor, material, overhead, and component costs. HUBER also reserves the rigf�t to charge Purchaser for any direct costs, reasonable storage costs caused by such delays and a finance charge of 1.5% of the Contract value per month. 3. TERMS OF PAYMENT. Invoices are net thirty (30) days from the date of invoice, unless specified otherwise and approved in writing by HUBER. In the vent that the purchase order between Purchaser and HUBER requires partial payments to be made by Purchaser, Purchaser shall pay those required amounts in a timely manner or HUBER will be permitted to suspend, without penalty or liability of any kind, delivery of future goods and services to the Pu haser even though partial payment for such undelivered goods or services may have already been received by HUBER. Past due accounts will bear interest at the rate of 1.5% per month of the invoiced amount. All invoices are payable in U.S. dollars, unless specified otherwise and approved by HUBER in writing. Acceptance of bank drafts, checks or other form of payment shall be subject to i mediate collection of the full face amount thereof. HUBER may, at its discretion, impose a transaction fee on payments processed via wire transfer or b letter of Credit. HUBER reserves the right at any time to suspend credit or to change credit terms provided herein when in its sole opinion the Purchaser so warrants. In such case, in addition to any other remedies provided herein or by law, HUBER may request cash pal from Purchaser prior to shipment of goods. In the event of nonpayment of an invoice when due, and without prejudice to other lawful remedies, HUBER shall have the rig of any kind, to suspend further work or the delivery of future goods under this Agreement or any other agreement with Purchz in full; provided, however, that if such invoice remains unpaid for more than five (5) days after written demand by HUBER, HUI Agreement without penalty and recover all damages as a result of Purchaser's Breach. 4. RETAINAGE. There shall be no retainage under this Agreement. ancial condition of ent or satisfactory security without penalty or liability , until such invoice is paid t may terminate this O�OAKF��' N' m ~ r— ORIGINAL� Page 9 w�sie wain saaM S. TAXES AND OTHER CHARGES. The prices for Goods and/or Services do not include any sales, use or other taxes or charges payable to state or local authoriti s. In addition to HUBER's invoice price or quote price, Purchaser is also responsible for payment of any use -tax, sales tax, excise tax, VAT tax, duty, cust m, inspection or testing fee, and/or any other fee, tax, or charge imposed by governmental or non -governmental authority arising from the Goods and/or Services provided by HUBER. Purchaser is responsible for and bears the risk of establishment of a valid exemption from any fee, tax, or charge. In the event HUBER is required to pay any of the fees, taxes, or charges listed in this paragraph, Purchaser herewith agrees to immediately reimburse HUBER for this cost, or in lieu of such payment by HUBER, Purchaser agrees to timely provide an exemption certificate or other comparable document to the entity or authority imposing said fee, tax and/or charge. Purchaser further agrees to waive any and all claims regarding the reasonableness of such payment a�tlis will be liable to HUBER for rges reasonable attorneys' fees and/or court costs incurred by HUBER as a result of Purchaser's failure to pay the chalisted in paragraph. 6. DELIVERY. HUBER shall not be liable for any damage as a result of any non -delivery or delay, including, without limitation, an act of God; Oct of Purchaser; act of HUBER embargo; other government act, regulation or request; fire; accident; strike; war; boycott; slowdown; riot; or delay in t ansportation or inability to obtain necessary labor, materials, or manufacturing facilities. HUBER will use its best efforts to meet promised delivery dates,�Ilbut under no circumstances shall HUBER be liable for any direct, or indirect, consequential, incidental, liquidated or other damages for delay in delivery. Purchaser will notify HUBER within thirty (30) days after order acceptance of the scheduled delivery date. If Purchaser does n t notify, a delivery date of six (6) months, unless otherwise specified by HUBER, after notice to proceed and/or approval of submittals is agreed. For any dellys by Purchaser after commencement of manufacturing, a finance charge of 1.5 % per month of the contract value will be assessed to Purchaser. HUBER reserves the right to substitute suitable alternative materials and components where necessary. Where the services are to be performed on Purchaser's premises, Purchaser agrees to provide HUBER on a timely basis with such access, machine downtime, utilities and equipment as HUBER shall reasonably require in order to perform the services in accordance with the agreement. If Purchaser fails to perform its obligations or shall fail to perform them in a timely manner, Purchaser acknowledges and agrees that HUBER shall be entitled to delay performance of the services, without penalty or liability of any kind, until such time as Purchaser has complied in all respects with its obligations and to increase the price for the services to reflect any increased cost to HUBER caused by Purchaser's failure to perform or late performance. If delivery is delayed or deferred by Purchaser beyond the scheduled date, payment shall be due in full when HUBER is prepared to ship the goods or perform the services. The goods may thereafter, at HUBER's option, be stored at the risk and expense of Purchaser. HUBER may at certain times provide goods or services to Purchaser prior to the issuance, delivery and acceptance of a corresponding purchase order. In such cases, these Terms and Conditions shall apply to such transactions and Purchaser shall be deemed to have accepted such Terms and Conditions upon HUBER's delivery of goods or performance of services. 7. GOODS ACCEPTANCE. It is HUBER's intent to deliver complete orders in good condition to the final destination dictated by the Purchaser. All equip ent and components delivered to the receiving location must be duly inspected upon receipt. Any visible damages must be noted on way -bill and followed up with a full inspection within a period of seven (7) days from delivery date. If a written report is not submitted to HUBER within this period it is assumed that the equipment was received in good condition, meets the specifications of the purchase order, constitutes unqualified acceptance by the Purchaser, and Purchaser waives any rights to rejection or remediation of delivered equipment. 8. FIELD SERVICE. "Field Service" refers to the services of a HUBER factory -trained representative at the site of end -use for initial installation, ins ection, start-up observation and operator training. "Field Service" refers also to any subsequent investigations of warranty issues, operational difficulties, Purchaser complaints, or requests for post -warranty service. Purchaser acknowledges that HUBER Field Service representatives shall make all arrangements necessary with labor unions for their presence on the site. No contractual warranty or indemnity relating to Field Service is extended by HUBER, nor are its Field Service representatives authorized to bind HUBER with any oral representations or statements in conflict with or addition to the gove rang contract terms or any manual or instructions provided by HUBER. This paragraph shall apply to any and all initial and subsequent Field Service provi ed by HUBER relating to the Goods sold to the Purchaser. Any field service work performed at site after expiration of the initial warranty period is warranted for sixty (60) days after the work has been completed. s m ~ r ORIGINAL Page 10 9. SHIPMENT/RISK OF LOSS. HUBER will use commercially reasonable efforts to meet delivery dates stated in advance of actual shipment of goods or perf event shall such quoted delivery dates be deemed to represent fixed or guaranteed delivery dates. Under no circumstances wi direct, or indirect, consequential, incidental, liquidated or other damages for delay in delivery. Method and route of shipment HUBER unless specified otherwise by Purchaser and agreed by HUBER, and any additional expense of the method or route of Purchaser shall be borne by Purchaser. Claims for shortage or other quantity errors must be made in writing to HUBER within of shipment. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Purchaser. wAM MM enwmn. mance of services, but in no HUBER be liable for any till be at the discretion of ipment specified by even (7) days after receipt HUBER, in its sole discretion, may accommodate Purchaser requests for delivery of goods in installments if such requests are confirmed in writing by HUBER. Such installment deliveries, when separately invoiced, shall be paid for when due per invoice without regard to subse uent deliveries. Delay in delivery of any installment shall not relieve Purchaser of its obligations to accept remaining deliveries. 10. GOVERNMENT STANDARDS. HUBER applies quality standards in our manufactured equipment that are designed to meet and comply with federal governm nt occupational safety, noise, sanitation and health standards. The Purchaser is solely responsible for compliance of the equipment and its operation with any state or local laws, codes, ordinances, or regulations, unless otherwise specified by HUBER in its proposal. i 11. LIMITED WARRANTY. HUBER warrants that the equipment and components furnished will be free from defects in workmanship and materials and perform the general process function intended, solely under the conditions defined by HUBER for a period of (a) twelve (12) months from completion of installation, start-up or owner acceptance of the equipment assuming the equipment is accepted by the owner within 6 months of delivery or (b) eighteen (18) months from the date of delivery to Purchaser, whichever date comes first. HUBER will replace, modify or repair, at its sole option, any such defective component or equipment at no charge provided that HUBER is notified promptly in writing of any claimed defect. If requested by HUBER, any such defective part or component shall be returned to HUBER, freight prepaid. HUBER will provide on -site Field Service when reasonably assured of payment therefore i this warranty does not apply or when such service is required in its judgments. This warranty does not apply to any defect or malfunction arising out of fail re to store, install, operate or maintain the equipment in accordance with instructions by HUBER. Warranty shall be voided for any misuse of equipment; operation under conditions other than those defined by HUBER in its operation and maintenance (0&M) manuals for said equipment, or gross operator negligence. Any unauthorized modification or alteration of the equipment or repair or replacement of components may void this warranty, at the sole o' of HUBER. For any billable repairs completed outside of the initial warranty period, a sixty (60) day guarantee on work performed and parts supplied will (apply. HUBER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH REGARD TO THE DESIGN, SALE, MERCHANTABILITY OR FITNESS OF THE GOODS FOR A PARTICULAR PURPOSE OR USE EXCEPT AS EXPRESSLY SET FORTH IN HUBER'S TERMS AND CONDITIONS. HUBER IS NOT SUBJECTTO ANY OTHER OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR WARRANTY, TORT CLAIMS INCLUDING NEGLIGENCE GROSS NEGLIGENCE AND STRICT LIABILITY, OR ANY OTHER THEORIES OF LAW. HUBER IS UNDER NO EVENT LIABLE FOR ANY SPECIFIC, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSS, DAMAGES, EXPENSE, INJURY, DISMEMBERMENT, OR DEATH OF ANY KIND WHATSOEVER. 12. EXCLUSIVE REMEDIES. Purchaser acknowledges that its sole and exclusive remedies for breach of the Limited Warranty shall be replacement or repa part or component, and payment of the reasonable out of pocket costs incurred in connection with replacement or repair if st advance by HUBER, or refund of 80% of the purchase price if HUBER in its sole discretion concludes the equipment cannot be remedy excludes any other direct, indirect, consequential, incidental, special or other form of damages. It also excludes any E removal or re -installation of HUBER equipment, such as crane rental, structural alteration, or demolition, necessitated by buil r by HUBER of any defective ch costs are approved in -epaired or replaced. This <traordinary costs for ling design or configuration. O� 6 A KF�cP � m r— vC�PtGt'V p gage 11 13. LIMITATION OF LIABILITY/INDEMNITY. WASTE WAM SdW wrs HUBER's liability on any claim for loss or damage arising out of any transactions under this Agreement or from the performance or breach thereof or connected with any goods or services supplied hereunder, or the sale, resale, operation or use of goods, whether based on agreement, warranty, tort (including negligence) or other grounds, include the Exclusive remedies in ¶ 12 and shall not exceed the price allocable to su& goods or services or part thereof involved in the claim, regardless of cause or fault. Purchaser's remedies are limited to the return of non -conforming goods and repayment of the price or to the repair and replacement of non -conforming. This limitation of liability and remedies reflects a deliberate and ba gained -for allocation of risks between HUBER and Purchaser and constitutes the basis of the parties' bargain, without which HUBER would not have agreed to the price or terms of this transaction. HUBER SHALL NOT IN ANY EVENT BE LIABLE WHETHER AS A RESULT OF BREACH OF AGREEMENT, WARRANTY, TORT (INCLUDI G NEGLIGENCE) OR OTHER GROUNDS FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF GOODS OR ASSOCIATED PRODUCTS, BUSINESS INTERRUPTION, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES OR SERVICES, DOWNTIME COSTS, OR CLAIMS OF PURCHASERS OF PURCHASER FOR SUCH DAMAGE. In addition, if HUBER furnishes Purchaser with advice or other assistance regarding any goods or services supplied hereunder, or any system or equipment in which any such goods may be installed, and which is not required pursuant to this transaction, the furnishing of the advice or assistance will not subject HUBER to any liability, whether based o i agreement, warranty, tort (including negligence) or other grounds. In the event Purchaser modifies HUBER goods or incorporates HUBER goods into another product or component part, Purchas r agrees to hold harmless and indemnify HUBER from any and all claims, liabilities, losses, costs and expenses (including reasonable attorneys' fees) invc Iving personal injury or property damage. Purchaser also agrees to hold harmless and indemnify HUBER from any patent or other intellectual proper claims related to (i) any HUBER goods made in accordance with Purchaser's designs or specifications; or (ii) the use of any drawings provided to HUBER by Purchaser for use in the manufacture, production or assembly of such goods. 14. TITLE. Notwithstanding delivery, installation or start-up, title to all equipment furnished shall remain solely with HUBER until the full purchase price is paid by Purchaser. Until such time, HUBER may enter the premises where such equipment is then located and repossess and remove uch equipment by any lawful means as this is the property of HUBER Technology. Purchaser agrees to do all acts deemed necessary or desirable or request d by HUBER to maintain HUBER's rights in, and title to such equipment. 15. WAIVER. The failure of HUBER to insist in any one or more instances, upon the performance of any of the Terms and Conditions as set f rth herein or the failure of HUBER to exercise any of its rights hereunder shall not be construed as a waiver or relinquishment of any such terms, conditio s or rights and shall not effect HUBER's right to insist on strict performance and compliance with regard to any future performance of these Terms and Conditions. 16. CHOICE OF LAW. This Contract shall be exclusively governed by the laws of the State of North Carolina, without regard to its conflict of law pro sions. HUBER and Purchaser further consent to the exclusive personal jurisdiction of any applicable court, in the county of Lincoln, North Carolina for any I 4al action or proceeding brought to enforce, construe or interpret these Terms and Conditions. Venue is proper only in the North Carolina Superior Co rt of Lincoln County. Each party hereto irrevocably submits to the jurisdiction of each court in each such action or proceeding. 17. DISPUTE RESOLUTION/ATTORNEYS' FEES. Any controversy or claim arising out of or relating to this Contract or its breach shall be settled by arbitration conducted in Del accordance with the Construction Industry Arbitration Rules of the American Arbitration Association and North Carolina law a rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. The arbitrator shall award attorneys' fee witness fees, arbitrator compensation, arbitrator fees, exhibit fees, travel costs and other amounts deemed reasonable to the North Carolina General Statute §44A et al. 18. ASSIGNMENT, WAIVER, ENTIRE AGREEMENT, SEVERABILITY. Neither party shall assign or delegate any of its rights or obligations under this Agreement without the prior written consent consent shall not be unreasonably withheld, except that either party may assign or delegate its rights or obligations hereund other parry's consent. As used herein, the term "Affiliate" shall mean any entity that directly or indirectly through one or mo controlled by, or is under common control with the entity specified. HUBER may terminate this Agreement upon written not further liability to Purchaser if there is a change of control of Purchaser. The Agreement constitutes the entire agreement be to its subject matter, and supersedes all prior oral or written representations or agreements by the parties with respect to tF Agreement. Neither the Agreement nor any of its provisions may be modified, amended or waived, whether orally, through performance, course of dealing or course of conduct, or manifested in any other way, unless in writing and signed by an autl the express intention of the parties that such requirement for written modifications, amendments or waivers be strictly enfc precedent or statutory provisions to the contrary. Any provision found invalid or unenforceable will not affect the validity or provision and the invalid provision may be judicially modified to the extent enforceable. er, North Carolina in i judgment on the award costs, witness costs, expert revailing party as defined by the other party, which such to an Affiliate without the intermediaries, controls or is to Purchaser without any teen the parties with respect subject matter of this parties' course of rized officer of HUBER. It is ed notwithstanding judicial iforceability of any other T Paj? 12 vORIGINAL