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Home My WebLink AboutRES NO 156-2020RESOLUTION NO. 156-2020 RESOLUTION DETERMINING THAT PUMPS REQUIRED FOR PRIMARY SLUDGE PROCESSING 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 $90,000. WHEREAS, Wastewater Treatment Plant No. 3 (WWTP 3) has eight primary clarifiers for the settling of solids from the influent wastewater; and WHEREAS, the primary sludge pumps currently in service are Moyno TM pumps; .l. WHEREAS, Moyno TM pumps are solely manufactured and distributed by National Oilwell Varco Process & Flow Technologies (NOV) as stated in the sole source letter attached hereto as Exhibit A and incorporated by reference herein; and WHEREAS, WWTP 3 is in need of replacing four primary sludge pumps that are beyond repair for which NOV has provided a quote attached hereto as Exhibit B and incorporated by reference herein ; and WHEREAS, the Public Works Director recommends the Council find the purchase of replacement pumps for the primary sludge at WWTP 3 can only be reasonably obtained from NOV, because NOV is the sole distributor of the required parts 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: The above -recitals are true and correct and incorporated herein by reference. 2. Based on the facts included in the above recitals, the purchase of the required replacement parts can only be reasonably obtained from NOV, because NOV is the sole distributor of the required parts for the City's geographical area. 3. The expenditure of funds for required parts shall not exceed Ninety Thousand Dollars ($90,000). gAKF SAProjects\E1K309 WWTP3 Primary Sludge Pumps\Resolution - Moyno.docx Pagel of 2 m r J O ORIGINAL 4. The Finance Director is authorized to dispense with bidding in accordance with Section 3.20.060 of the Bakersfield Municipal Code 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 OCT 2.1 2020 by the following vote: AYES: COUNCILMEMBER: RIVER✓A, GONXLES, WEIR, SMITH, FRE MAN, SULLIVAN, PARLIER NOES: COUNCILMEMBER: NONE ABSTAIN: COUNCILMEMBER: WbyAC ABSENT: COUNCILMEMBER: NOME d "DRI CMC CITY CLERK and Ex Officio Clerk of the Council of the City of Bakersfield APPROVED: OCT 21 2020 By: KAREN GOH Mayor APPROVED AS TO FORM: VIRGINIA GENNARO City Attorney n —>,/ keQ' OSHUA RUDNICK Deputy City Attorney II � g AKF9 S:\Projects\E1 K309 VWVrP3 Primary Sludge Pumps\Resolution - Moyno.docx p s Pae 2 of 2 g�_ m U r O ORIGINAL KOY Attn: Ms. Evette Roldan Wastewater Treatment Superintendent Public Works Department — Wastewater Division City of Bakersfield RE: Sole Source Letter Good afternoon Ms.Roldan, EXHIBIT A 21 September 2020 National Oilwell Varco (NOV) is the sole OEM manufacturer of genuine MoynoTM pumps and parts worldwide. Please be advised that Moyno is selling direct to the City of Bakersfield and will continue to be the sole source supplier of NOV brand Moyno genuine replacement parts indefinitely. If there should be a change of representation, National Oilwell Varco will notify the City of Bakersfield. We appreciate your business and continued support. Respectfully yours, Mr. Steven Messina NOV/Moyno Area Sales Manager Western United States C 707 210 7916 E steven.messina@nov.com s � r U O ORIGINAL KAY Scope#: MIP026669-01 Customer: City of Bakersfield Project: WWTP Plant 3 Moyno Pump Replacement Contact: David Weatherly Bid Date: Engineer: Addendum: EXHIBIT B Steven Messina Phone: 707.210.7916 Email: steven.messina@nov.com Date: 05/28/2020 'Clarifications Please note there are clarifications to your quote. Please see detailed clarification items in the section labeled Scope of Supply. iTerms— - _ Offer is firm----i-f- ac-cepted in writing by 90 days of_ bid date and released for manufacture a—nd shipment prior to one year of bid date. Orders not released per above are subject to escalation. Terms: Terms are to be negotiated and are subject to NOV's Credit Department approval. Orders accepted on the basis that we are to furnish the material and services covered by our scope only and that the purchase order is made out to: NOV Process & Flow Technologies PO Box 205155 Dallas, TX 75320-5155 9,AK'c Pa9411 �0), r m U r - O ORIGINAL KAY Scope#: MIP026669-01 Customer: City of Bakersfield Project: WWTP Plant 3 Moyno Pump Replacement Contact: David Weatherly Jonathan Dorland Application Engineer 5870 Poe Avenue Dayton, OH 45414 Phone: Email: Jonathan. Dorland@nov.com Date: 08/15/2019 Scope Letter- MIP026669-01 WWTP Plant 3 Moyno Pump Replacement ................ Clarifications.......................................................................................................... Terms.................................................................................................................... Contents.................................................................................................................... Section: Paragraph: Item(s): .................................................................................... Pump and Application Details................................................................................ MoynoO 2G065G1 CDQ3AAA Pump.................................................................. PumpMaterials.................................................................................................. Conditions of Service......................................................................................... Universal Joint Information................................................................................. General Unit Dimensions 2000 Series Pump Model 2G065G1 .......................... ScopeOf Supply.................................................................................................... Clarifications...................................................................................................... Additional Comments/Notes............................................................................... Performance Curve — 2000 2GO65G1 CDQ3AAA................................................... ..................................1 ..................................1 ..................................1 .................................. 2 .................................. 3 .................................. 3 .................................. 3 .................................. 3 .................................. 3 .................................. 3 .................................. 4 .................................. 5 .................................. 5 .................................. 5 .................................. 6 (` 0AKF9� Page 12 0 ORIGINAL KOY Scope#: MIP026669-01 Customer: City of Bakersfield Project: WWTP Plant 3 Moyno Pump Replacement Contact: David Weatherly Section: Paragraph: Item(s): :Pump and Application Details moynow rump r Pump Materials Jonathan Dorland Application Engineer 5870 Poe Avenue Dayton, OH 45414 Phone: Email: Jonathan. Dorland@nov.com Date: 08/15/2019 Castings C - Cast Iron Shaft Seal Braided Teflon & Graphite Packing (Black). Standard Internals D - Alloy Steel Suction 8.00IN 125LB ANSI Flat Faced Flange Stator Q - Nitrile 70 (NBR) Discharge 8.00IN 125LB ANSI Flat Faced Flange Rotor Standard Size Hard Chrome Plating Seed 192 RPM Nozzle Loads Suction: I Force: 600 Ibf Moment: 1000 ft*Ibf Dischar e: Force: 600 Ibf Moment: 1000 ft*Ibf Conditions of Service Material Primary Sludge Description Universal Joint Information Gear Joint Gear Ball Hardened Alloy Steel Ring Gear Hardened Alloy Steel Primary Thrust Plate Self -Lubricating Bronze Secondary Thrust Plate Self -Lubricating Bronze Gear Joint Seal Elastomer seal, NBR Grease Mobil 1 Synthetic Grease. (§9,NKF9� Page} 3 U O ORIGINAL General Unit Dimensions 2000 Series Pump Model 2G065G1 Inline Arrangement Jonathan Dorland KOY Pum Application Engineer B V W 5870 Poe Avenue Y Size M Size M1 Dayton, OH 45414 Scope#: MIP026669-01 Phone: Customer: City of Bakersfield 32 8.00 Project: WWTP Plant 3 Moyno Pump Replacement Email: Jonathan.Dorland@nov.com Contact: David Weatherly Date: 08/15/2019 General Unit Dimensions 2000 Series Pump Model 2G065G1 Inline Arrangement All dimensions in inches. Dimensions and weights are estimates only. This quote has a right-angle gearbox that is oriented vertically, so the overall length will be shorter than shown. The suction flange will be rotated 90 deg right from vertical. Actual values may vary. ��AKF9 Pa 14 1 4 �T � m r v o ORIGINAL Standard Dimensions Suction Flan a Discharge Flange Weight Pum Al B V W X Y Size M Size M1 Ibs 2G065G1 7.00 41.62 21 12.50 128 32 8.00 1 13.50 8.00 1 13.50 2540 All dimensions in inches. Dimensions and weights are estimates only. This quote has a right-angle gearbox that is oriented vertically, so the overall length will be shorter than shown. The suction flange will be rotated 90 deg right from vertical. Actual values may vary. ��AKF9 Pa 14 1 4 �T � m r v o ORIGINAL KAY Scope#: MIP026669-01 Customer: City of Bakersfield Project: WWTP Plant 3 Moyno Pump Replacement Contact: David Weatherly Section: Paragraph: Item(s): :Scope of Supply Jonathan Dorland Application Engineer 5870 Poe Avenue Dayton, OH 45414 Phone: Email: Jonathan. Dorland@nov.com Date: 08/15/2019 1 PUMP Moyno 2000 Pump Model: 2G065G1CDQ3AAA; w/ Suction Rotation: 90deg right from vertical 1 BASEASM Carbon Steel Brake Bent Base; W/ Groutholes 1 COUPLING, LS COUPLING: LOW SPEED 1 GRDCPL, LS COUPLING GUARD: LOW SPEED; MATERIAL: ALUMINUM; OSHA 1 MOTOR PN: 4242453006; Weg 10HP 215TC C -Faced Premium Efficient AC Motor; Weg PN: 01018ET3ER215TC-W22 1 GEAR REDUCER NORD C -Faced Reducer; Model: SK32100-210TC; RPM: 192; Ratio: 9.1:1; Foot Mounted To Base; Mount Position: M4A; Class: III 1 Std Warranty Moyno Standard Warranty: The warranty period is 18 months from the date of shipment from the factory or 12 months from the date of installation at the customer's facility, which ever period expires first. Estimated Delivery 10 Weeks from receipt of order, or Bakersfield Price Per Pump: 19,500.00 approval for manufacture. Please verify with factory for QTY: 4 78,000.00 0 Tax: 8.25 / 6,435.00 actual lead time at time of purchase or release for Total: 84,435.00 manufacture. $0 Estimated Shipping (Non -Discountable) $0/day Startup Services Per Day (Non -Discountable) Clarifications Unless specifically mentioned in our detailed offer for each item listed, the following are NOT included in our price whether specified or not: Anchor Bolts, Gauges, Panels, Seal or Packing Flush Hardware, Controls, Contacts, VFDs, Starters (AC Motors), Tools, Valves, Video Equipment/Taping, Lubricants, Pressure Switches, Special Paint or Paint Preparation, Timers, Taxes and Noise & Vibration Testing. Additional Comments/Notes P"� 5-9�-n ORIGINAL '::0 ununuuuon0r■.i,3r■m.�nnnum1n•n�•■:u...___--rv■..0Eu■1550100,10u■„ -- nnoounnuuouuuuuua.._ uu5•:.nounuuenn._ I'1 :1'/■t■//n/rrt000rr5ur5nt55otrto■■t._-••�tn5o■■tnr\C•1 fir :.A i■.r■■55,1„55515555,■1551115511551511!./■L_■r511tt■n.!t•�.■115■ --v----------------•■uuuunuv :.mn/sn!/c�rr..iunu 7Guwn,r__-5+�.uouu.....__c_ ■un�nur_�n'.nunum uuunmuu..r=unuv-.ou■..._ __-■+ �.wuo -.rnno ■,1555555,1,5050,■i�,■r■._r-+:.15555,5,5t55G•-.■■..___- ■nurrr ■uouunuouuuuuv .._a IMM"r1•-..i5555nnur■.._- ■1151555155t51151155115r-./i55„5r..1r•:.11i151505u050u ■0551155 ■nunuuuuuuu.• .iuunnn.-.■.�vpmnnuuu.ruu rn�uuuuouuvain■n5ur.'..inu5�_-uounlr\r-lvaav- YL5Y1E5t11n:::5m.�A,nnnSV'.■51t,55OnOJ5■1r ^i �,7 Y+- A■ ..i■■1rr5�1•'�■��511r000115■oto■?1'Jt�■•'..111115■ ■.iL='7P.■■r•d■lu..._ '- Vrt■uu■/5:ii■�Yr•-.r/our/Orr ■nn�15■•r ..--_1�■n.�An��r�■u...____ - d1■■Holtrt/t1 ■nou•'.uum►-._,-■rnuuruunv-..■..__--- .auon�rr nur•aiouv^.nuu5r._`0■nur•-_.nGunuout■■..=_-- n �1..5551rr•-.11/511111515111r. --■5■11151111515115511155t15r.. �iun•-./innnuu0u•--.■rGr■nnnonnnnr1nn05 ■ion•-.rinuunn■■• ..nGuunno._lr/rrlm",no, \arta n n• _. 7A�rn1t155nv-..1�,,,t5nnu51555Or.,-55575 •lhri1�9W1.+• ri1------tr•_-.__a ------- ob--- -4J1.�_...-....� KAY Scope#: MIP026669-01 Customer: City of Bakersfield Project: WWTP Plant 3 Moyno Pump Replacement Contact: David Weatherly Jonathan Dorland Application Engineer 5870 Poe Avenue Dayton, OH 45414 Phone: Email: Jonathan. Dorland@nov.com Date: 08/15/2019 NOV Process & Flow Technologies US, Inc.AND ITS AFFILIATES TERMS AND CONDITIONS FOR THE PROVISION OF EQUIPMENT, PARTS, SERVICES OR RENTAL 1. ACCEPTANCE PAGE 1 OF 3 Orders or other requests, whether oral or written, for the supply or sale o1 machinery or ejuipment ('Equipment;, or for the supply or sale of spare or replacement parts ('Parts'), or for the= of services ('Services:, or for the rental of machinery or equipment ('Rental ) to be provided by N V Process 8 Flow Technologies US, Inc., on behalf of itself and Its divisions and subsidiaries, or by its affiliates ('Seiler) to Its customers (each a "Buyer*) (the'Order(s)') are subject to Seller's written acceptance by an authorized representative o1 Seller and any Orders so accepted will be governed by (a) the terms and conditions stated in these ttarms and Conditions for provision or Equipment, Parts, Services or Rental (the 'Temps and Conditions'); (b) the written proposal submitted by Seller to Buyer ('Proposal:, if any; (c) the written order acknowledgment issued by Seller to Buyer ('Acknowledgmenr), ff any; and, (d) any change orders Identified as such and agreed to in writing by Seller the Order, Terms and Conditions, Proposal, Acknowledgment, and any such change order, and any such additional terms as agreed to In wdlingg by an authorized representative of Seller collectivelyy referred to herein as the'Agreement`7. Buyer's submission of a purchase order (or other similar document) shall be deemed to be an express acceptance of these Terms and Conditions notwithstanding language in Buyer's purchase order (or other similar document) inconsistent herewith, and any inconsistent language in Buyer's purchase order (or other similar document) is hereby rejected. Buyers purchase order (or other similar document) is incorporated in this Agreement, only to the extent of specifying the nature and description of the Equipment, Parts, Services or Rental and then only to the extent consistent with the Proposal orAcknowledgment. In the event of any conflict between a Proposal and an Acknowledgement, the Acknowledgment shall prevail. 2. PRICES Prices of Equipment, Parts, Services or Renta) shall be as stated in the Proposal or Acknowledgment, or if mere is no Proposal or Acknowledgment, as otherwise agreed to in writing by Seller. Unless otherwise specified, all prices contained in a Proposal are valid for thirty (30) days from date of issue of the Proposal. All price quotations are EXW Sellers premises (INCOTERMS 2010), oras agreed per the Proposal or Acknowledgement and are subject to change without notice. Seller bears no responsibility for any consular fees, fees for Iegallzing invoices, certificates of Digin, stain ng bilis of lading, or other charges required by the laws of any country of destination, or any fines, penalties or interest imposed due to Incorrect dectaratlons. Charges will be added for factory pmparation and packaging for shipment Minimum fretghl and Invoice charges In effect at me time of the Order shall appy. If by reason of any act of government, the cost to Seller of performing its obligations hereunder is increased, such increase shall be added to the quoted price. 3. TAXES Transaction Taxes. In addition to the charges due under this Agreement, the Buyer shall be responsible for, and shall protect, indemnify, defend and save harmless Seller from and against the reporting, firing and payment of curry taxes, duties, charges, licenses, or fees (and any related fines, penalties or Interest and the like) imposed directly on Buyer as a result of this Agreement and all liabilities, costs, and associated expenses (including lawyers' and experts' fees) which may be Incurred in connection therewith. Such taxes, duties, charges, licenses, or fees include but are not limited to any local, state, federal, foreign, or international sales, use, value added tax ('VAT,, goods and services tax ('GST°), rental, import, exportI personal property, stamp, excise and like taxes and duties. If Seller pays any such tax, Buyer shall, within thirty (30) days of Sellers demand, reimburse Seller for the tax including interest, fines, and penalties, paid by the Seller. It shall be Buyers sole obligation after payment to Seller to challenge the applicability of any tax. Notwithstanding the foregoing, the Buyer shall provide Seller with a copy of all exporting documents and any other documents reasonably requested by Seller to prove or substantiate to the appropriate tax authorities the goods were timely exported. Withholdina Taxes. if Buyer is required by any appropriate government department or agency to withhold compensation due Seller to satisfy any obligation of Seller for taxes due, Buyer shall give at least 30 days' notice to Seller that Buyer will withhold. Buyer agrees to pay on a time:y basis the amounts so wlthheld over to the appropriate government department or agency, on behalf of Seller, and to provide Seller with any tax receipts (originals, if possible)) or other reliable evidence of payment issued by such government department or agency within 30 days of the date required for withholding. Buyer shall not withhold compensation due Seller if Sever produces evidence, acceptable to Buyer, that Seller is not subject to the withholding of such taxes. Buyer agrees that it shall not unreasonably withhold such acceptance. Buyer shall reimburse Seller for any taxes withheld for which receipts or other reliable evidence substantiating the remittance of taxes to the appropriate government department or agency are not provided to Seller. Buyers obligation to deliver to Seller tax receipts or other refrable evidence issued by the taxing authority shall not apply If Buyer establishes to the reasonable satisfaction of Seller that the apppropriate government department or agency does not provide such documentation. Notwithstanding the above, if Buyer is required to pay any such taxes or amounts that Buyer belleves lo directly attributable to Seller. Buyer shag first provide notice to Seller and give Seller an opportunity to Intervene to protect its interest before Buyer makes any payment. Proles RRicL� If the 13er receives any demand or request for payment of any levies, charges, taxes or contributions for which it would seek indemnity or reimbursement from Seller, Buyer h_ia If and timely notfly the Seller in writing of such demand or request. 'Promptly and timety' as used in this sub clause means that Buyer must notify Seller so that Seller has enough time and a reasonable opportunity to appeal, protest or litigate the levies, charges, taxes or contributions in an appropriate venue. To the extent that Buyer falls to give prompt and timety notice, Seller has no obligation to, and will not, reimburse Buyer for these levies, charges, taxes or contributions. At Sellers request and cost, Buyer shall initiate an appeal, protest or litigation in Buyers own name if Buyer is the only party that can legally initiate this appeal, protest or litigation. The Buyer shall allow the Seller to control the response to such demand or request and the Buyer shall use its best a orts to appeal against such demand or request. If Buyer is required to pay any levies, charges, taxes or contributions in order to pursue an appeal, protest or litigation, Seller shall reimburse Buyer for [hat amount promptly upon receipt of a written request from Buyer. Seller shall not be responsible for any compromise made by Buyer without Sellers prior written consent Cooperation. Buyer shall cooperate with Seller, and at the request of Seller. Buyer shall use its best efforts to supply to Seller such information (including documentary Information) in connection with its activities as may be required by Seller for any of the following purposes: a) To enable Seller to comply with the lawful demand or requirement for such information by any appropriate government authority or to ensure that all requirements of the applicable taw are being complied with: b) To enable Seller to conduct, defend, negotiate or settle any claim arising out o1, or in connection with, such activities, whether or not such claim shall have become the subject of arbitration or judicial proceedings; c) To enable Seller to make any application (including, but without limitation, any claim for any allowances or relief) or representation in connection with, or to contest any assessment on, or liability of Seller to any taxes, duties, levies, charges and contributions (and any interest or penalties thereon); or d) To scare for Seller any beneficial tax treatrnenl and legally minimae any tax obligations in connection with this Agreement. Seller's request for such information and documents shall allow Buyer a reasonable time to prepare, provitle and submit that Informa0on requestetl. The obligations set forth above shall exist for a period o1 six (a) ears commencing with the date of agreement by Buyer of Se!'. final statement of account under me Agreement and the Buyer shall retain and shall procure any subcontractor hereunder to retain, all Intortnaron and documents in connection with its activities under or pursuant to me Agreement as shall enable the Buyer to comply cart the above obligations. 4. PAYMENTTERMS Unless alternate payment terms are specified and agreed to by Seller in writing, all charges, including applicable packing and transportation costs, billed by Seller are payable within net 30 daayys of the date o1 invoice. Seger reserves the right to mod or withdraw credit terms at any time without notice. Unless otherwise specified, all payments are due in the currency specified in Sellers Proposal, Acknawledgment anchor invoice. interest shall be due from Buyer to Seller on overdue accounts at the maximum rate allowed by law. When partial shipments are made, the goods will be invoiced as shipped and each invoice will be treated as a separate account and be payable accordingly. m Payent for goods is due whether or not technical documentation andlor any third party certifications are complete at the time of shipment. Seller shall be entitled to recover all reasonable attorneys' fees and other costs incurred in the collection of overdue accounts. Seller reserves the right, where a genuine doubt exists as to Buyers financial position or if Buyer is in default of any payment obligation, to suspend delivery or performance of arty Agreement or any part thereof without liability and without prejudice to, and without limitation of, any other remedy available to Seller until Buyer ares the default or satisfactory security for payment has Deen provided. Seller shall have the option to extend the delivery date by a time at least equal to the period of such suspension. In the event of Rental, should Buyer datautt in meeting any of the terms hereunder for any reason, Seller has the right to reNeve all Rentals as detailed in the Proposal and also to collect rental paymenls due. If Buyer elects to exercise a Purchase option for Rental equfpmen., rental charges will be incurred and will be invoiced until the later of; (i) the end of rre agreed rental period; or pi) 30 days prior to the receipt of total purchase price and all other rental amounts due. 5. DELIVERY Unless otherwise agreed to by Seller in writing, delivery terms shall be EXW Seller's premises (INCOTERMS 2010), except to the extent modified by these Terms and Conditions. Where goods are to be supplied from stock, such supply is subject to availability of stocks at the date of delivery. Partial shipments may be made as agreed to by Buyer and Seller. Stated delivery dates are approximate only and cannot be guaranteed. Seller shall have no liability for damages arising out of the failure to keep a projected delivery date, irrespective of the length of the delay. In the event Buyer Is unable to accept delivery of goods when tendered. Seller may, at its option, arrange for storage of the goods at Buyers sole risk and Buyer shall be liable to Seller for the reasonable cost of such storage. This provision is without prejudice to any other, ghis which Seller may have with respect to Buyers failure to take delivery of goods, which includes the right to invoice Buyer for the goods. Buyer agrees that title to the stored goads will transfer to Buyer upon Invoicing notwithstanding Buyers inability to accept delivery and that Buyer assumes all risk of loss or damage to the goods from the date title passes to Buyer. Buyer is responsible for all shipping costs from Sellers premises to the location as designated by the Buyer. All shipping costs for the return of goods from the location specified by Buyer to Sellers premises shall also a for Buyer's account 0. FORCE MAJEURE If either party is unable by reason of Force Majeure to carry out any of its obligations under this Agreement other than the obligations to pay money when due and indemnification obligations assumed hereunder, then on such party giving notice and particulars in writing to the other party within a reasonable time after the occurrence of the cause relied upon, such obligations shall be suspended. 'Force Majeure' shall Include acts of God, laws and regulations, government action, war, civil disturbances, strikes and labor problems, delays of vendors, carriers. I'ghtening, fire, flood, washout, storm, breakage or accident to equipment or machinery, shortage of raw materials, and any other causes that are not reasonably within the control of the parry so affected. Seller shall be paid Its applicable standby rate, if any, during any such Force Majeure event 7. CANCELLATION Orders placed by Buyer and accepted by Seller may be canceled only with the consent of Seller and will subject Buyer to cancellation charges. All of Sellers documents, drawings and like Information shall be returned to Seller upon Buyers request for cancellation. No Orders may be canceled subsequent to delivery or shipment, whichever occurs earlier. As estimated actual damages, Buyer agrees to pay Seller the greater of Sellers actual costs incurred prior to cancellation plus a reasonable profit, or the following minimum cancellation charges: a) 20% of Agreement value if canceled 30 or more days prior to the original deliverylshipment date; b) 50% of the Agreement value if canceled thereafter; or C) 100% of the value of any non-standard items (which are Items not built for stock or built to customer specifications). In the event el Rental, minimum rental charges as stated in the Proposal will apply. Buyer shall verify the amount of the cancellation charges prior to canceling an order. yAKF9 �) 7 s-0 )_ m U Ij ORIGINAL Key Scope#: MIP026669-01 Customer: City of Bakersfield Project: WWTP Plant 3 Moyno Pump Replacement Contact: David Weatherly Jonathan Dorland Application Engineer 5870 Poe Avenue Dayton, OH 45414 Phone: Email: Jonathan. Dorland@nov.com Date: 08/15/2019 NOV Process & Flow Technologies US, Inc. AND ITS AFFILIATES TERMS AND CONDITIONS FOR THE PROVISION OF EQUIPMENT, PARTS, SERVICES OR RENTAL PAGE 2 OF 3 8. TITLE AND RISK OF LOSS For purchased goods, ownership and risk of loss pass to Buyer upon the earlier of (a) Seller's delivery of the goods, or (b) invoicing by Seller for the goods where Buyer is unable to accept delivery on the scheduled date. Seller retains a security interest in the goods until the purchase price has been paid, and Buyer agrees to perform upon request all acts required to secure Sellers interest Seller accepts no responsibility for any damage, shortage or loss in transit. Seller will attempt to pact or prepare all shipments so that they will not break, rust or deteriorate in shipment, but Seller does not guarantee against such damage. Claims for any damage, shortage or loss in transit must be made by Buyer on the canter. In the event of Rental, Buyer assumes all risk and liability whether or not covered by insurance, for loss or damage m the Rental machinery or equipment Risk and Ilabllit passes to Buyer upon delivery by Seller. Title to Rental machinery or equipment shall remaln with Seller at all times. Buyer acquires no ownership, title or property rights to the Rental machinery or equipment except the right to use the Rental machinery or equipment subject to the terms of this Agreement 9. LIMBED WARRANTY New Eauloment'Parts. In the rase of the purchase of new EquipmenVParts, and solely for the benefit of the original user. Seller warrants, for a period of eighteen (18) months from delivery or twelve (12) months from installation, whichever la eariier, that new EquipmenVParts of its own manufacture shall rAnform to the material and technical speafications set forth in the Agreement. Goods manufactured by others are sold "as is" except to the extent the manufacturer honors any applicable warranly made by the manufacturer. Secondhand goads are sold "as is". If the new Equipment/Parts fail to conform with such specifications upon inspection by Seller, Setter will, at its option and as Buyer's sole remedy, either repair or replace such defective EquipmentfParts with the type originally furnished. Remanufactured to 'As New' EquipmenVParts Seller warrants to Buyer, that for a period of six (6) months from the date of delivery by Seller or installation of the Equipment/Parts, whichever is earlier, that reconditioned to 'as neve Equipment/Parts will be free from defects in material and workmanship. If the reconditioned to *as new' EquipmenVParts fail to conform with such warranty upon inspection by Seller, Seller will, at its option and as Buyers sole remedy, either repair or replace such defective Equipment/Parts with the type originally furnished. Overhauled EtnomenUParts. Seller warrants that for a period of four (4) months from the date of delivery by Seller or three (3) months from installation, whichever is earlier, that overhauled Equipment/Parts will be free from defects in workmanship. If the overhauled EquipmentfParts fail to conform with such warranty upon inspection by Seller, Seller will, at its option and as Buyer's sole remedy, either repair or replace such defective EquipmenVParts with theNpe originally furnished. This warranty expressly assumes that parts normally considered consumables (including, but not limited to rubber goods, seals (rubber, polymer and/or metallic) and/or bearings, are replaced during overhaul. If Buyer requests that such parts not be replaced, Seller hereby disclalms any warranty for said overhauled EquipmenVParts. Service, Seller warrants that the Services to be provided pursuant to this Agreement shall conform to the material aspects of the specifications set forth in the Agreement. Seller shall re -perform that pan of the non -conforming Services, provided Seller is notified by Buyer prior to Sellers departure from the worksite. Rental- Seller warrants that the Rental equipPment to be provided pursuant to this Agreement shall conform to the material aspects of the specifications set forth in the Agreement. Provided Seller is notified by Buyer prior to Sellers departure from the worksite, Seller shall repair or replace non -conforming Rental equipment In the event of failure or other non- performance of Sellers Rental equipment's contributing to loss of hole, rental rates will apply during re -drill to equivalent TD. Seller's warranty obligations hereunder shall not apply if non -conformity or failure was caused by (a) Buyer's failure to property store or maintain the equipment or parts; (b) the unauthorized modification. repair or service of the equipment or parts by Buyer, (c) utilization of replacement parts not manufacbrred by Seller; or (d) use or handling of the equipment by Buyer In a manner Inconsistent with Seller's recommendations. Further, Sellers warranty obligations under this Article 9 shall terminate if (a) Buyer fails to perform its obligations under this or any other Agreement between the parties, or (b) if Buyer fails to pay any charges due Seller. Any third party warranties provided on equipment or parts not manufactured by Seller are assigned to Buyer, without recourse, at the time of delivery, provided such warranties are assignable. THIS ARTICLE 9 SETS FORTH BUYER'S SOLE REMEDY AND SELLER'S EXCLUSIVE OBLIGATION WITH REGARD TO NON -CONFORMING EQUIPMENT, PARTS, SERVICES OR RENTAL. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED PURSUANT TO THE PROVISIONS OF THIS ARTICLE 9, SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, AND SELLER DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE. 10. CHANGES Seller expressly reserves the right to change, discontinue or modify the design and manufacture of its products without obligation to furnish, retrofit or install products previously or subsequently sold. 11. RETURN OF MAKE TO STOCK GOODS With Seller's written approval, unused, incorrectly shipped or'Made to StocM goods ordered incorrectly, in new condition and of current manufacture and catalog specifications may be returned by Buyer for credit (subject to a restocking fee), provided written request is received within one (1) year after the purchase date. Non-standard goods are not returnable for credit and such goods shall only be accepted for return with the prior written agreement of Seller. Requests for return of goods must show the original purchase order number, invoice number, description of material, and date of purchase. Return of goods does not relieve Buyer of the obligation to make payment against sellers Invoice, and any credit or refund allowed will be issued following Sellers receipt of the goods. The credit allowed on return etl goods, if any, is a merchandise credit and is applicable only against future purchases of Seller goods. The credit given will be solely in Sellers discretion and may be based on the original or a subsequently adjusted price. A charge will be assessed to clean-up, refinish and restock the goods, if applicable. No rubber or electronic products or components may be returned for credit after six (6) months from date of purchase. 12. LIABILITIES, RELEASES AND INDEMNIFICATION For purpose of this Article12, the following definitions shall apply: 'Seller Group' shall mean () Seller, its parent, subsidiary or related companies, n its and their working interest owners, oo4essees, co-owners, partners, joint venturers, if any, and their respective parents, subsidiary or related companies and (Ill) the officers, directors, employees, consultants, agents and Invitees of all of the foregoing. 'Buyer Group' shall mean () Buyer, Its parent, subsidiary or related companies, (i) its and their working interest owners, co -lessees, co-owners, partners, joint venturers, If any, and their respective parents, subsidiary or related companies and lilt) the officers, directors, employees, consultants, agents and Invitees of all of the foregoing. 'Claims' shall mean all calms, demands, causes of action, liabilities, damages, Judgments, fries, penalties, awards, losses, costs, expenses (including, without Iimltation, attorneys' fees and costs of litigation) of any kind or character arising out of, or related to, the performance of or subject matter of this Agreement (including, without limitation, property loss or damage, personal or bodiy injury, sickness, disease or death, loss of services and/or wages, or loss of consortium or society). a) Seller shall release, indemnify, defend and hold Buyer Group harmless from and against any and all Claims in respect of personal or bodily injury to, sickness, disease or death of any member of Seller Group or Seller Group's subcontractors or their employees, agents or invitees, and all Claims in respect of damage to or loss or destruction of property awned, leased, rented or hired by any member of Seller Group cr Seller Groups subcontractors or their employees, agents or Invitees. b) Buyer shall release, indemnify, defend and hold Seller Group harmless from and against arty and all Claims in respect of personal or bodily injury to, sickness, disease or death of any member of Buyer Group or Buyer Group's other contractors or their employees, agents or invitees, and all Claims in respect of damage to or loss or destruction of property owned leased, rented or hired by any member of Buyer Group or Buyer Group's other contractors or their employees, agents or Invitees. c} Each party covenants and agrees to support the mutual indemnity obligations contained in Paragraphs (a) and (b) above, by carrying equal amounts of insurance (or qualified self insurance) In an amount not less than U.S. ,000,000.00. d) Notwithstanding anything contained in this Agreement to the contrary, in all instances where Seller is providing Services at a well site, Buyer, to the maximum extent permitted under applicable law, shall release, indemnify, defend and hold Seller Group and Seller Group subcontractors harmless from and against any and all Claims asserted by or In favor of any person or party, including Seller Group, Buyer Group or any other person or party, resulting from: () loss of or damage to any well or hole (including but not limited to the costs of re -drill), (i) blowout, fire, explosion, cratering or any uncontrolled well condition (including but not limited to the costs to control a wild well and the removal of debris), (ill) damage to any reservoir, geological formation or underground strata or the loss of oil, water or gas therefrom, (iv) pollution or contamination o1 any kind (other than surface spillage of fuels, lubricants, rig sewage or garbage, to the extent attributable to the negligence of Seller Group, including but not limited to the cost of control, removal and clean-up, or (v) damage to, or escape of any substance from, any pipeline, vessel or storage facility. e) NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER AND EACH PARTY RELEASES THE OTHER FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSSES (WHETHER FORESEEABLE AT THE DATE OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PRODUCTION, LOST REVENUE, LOST PRODUCT, LOST PROFIT. LOST f) Sellers total liability for all claims, damages, causes of action, demands, judgments, lines, penalties, awards, Imes, costs and expenses (including allomey's fees and cost of lifigatlo,n shall be limited to and shall not exceed the value of the Equipment, Parts, Services or Rental purchased under the Agreement. g) THE EXCLUSIONS OF LIABILITY, RELEASES AND INDEMNITIES SET FORTH IN PARAGRAPHS A. THROUGH F. OF THIS ARTICLE 12 SHALL APPLY TO ANY CLAIM(S), LOSSES OR DAMAGES WITHOUT REGARD TO THE CAUSE(S) THEREOF, INCLUDING BUT NOT LIMBED TO PRE-EXISTING CONDITIONS, WHETHER SUCH CONDITIONS BE PATENT OR LATENT. THE UNSEAWORTHINESS OF ANY VESSEL OR VESSELS, IMPERFECTION OF MATERIAL, DEFECT OR FAILURE OF BREACH OF CONTRACT, BREACH OF DUTY (STATUTORY OR OTHERWISE), BREACH OF ANY SAFETY REQUIREMENT OR REGULATION, OR THE NEGLIGENCE OR OTHER LEGAL FAULT OR RESPONSIBILITY OF ANY PERSON (INCLUDING THE INDEMNIFIED OR RELEASED PARTY), WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, ACTIVE OR PASSIVE. AK h) Redress under the indemnity provisions set forth In this Article 12 shall be the exclusive remedy(les) available to the parties hereto for the matters, claims, damages and losses qC{ covered by such provisions. No 9�� I_— m U � O ORIGINAL Key Scope#: M I P026669-01 Customer: City of Bakersfield Project: WWTP Plant 3 Moyno Pump Replacement Contact: David Weatherly Jonathan Dorland Application Engineer 5870 Poe Avenue Dayton, OH 45414 Phone: Email: Jonathan. Dorland@nov.com Date: 08/15/2019 NOV Process & Flow Technologies US, Inc.AND ITS AFFILIATES TERMS AND CONDITIONS FOR THE PROVISION OF EQUIPMENT, PARTS, SERVICES OR RENTAL PAGE 3 OF 3 13. INSURANCE Upon written request. each party shall furnish to the other parry certificates of insurance evidencing the fact that the adequate insurance to support each party's obligations hereunder has been secured. To the extent of each party's release and Indemnity obligations expressly assumed by each party hereunder, each party agrees that alit such Insurance policies shall, (a) be primary to the other party's insurance; (b) include the other party, its parent, subsidiary and affiliated or related companies, and its and their respective officers, directors, emFloyees, consultants and a ents as additional insured; and, (c) be endorsed to waive subrogation against the other party, its parent- subsidiary and affiliated or related companies, and its and their respective offrcxrs, directors, employees, consultants and agents. 14. GOVERNING LAW Except for Equipment, Parts, Services or Rental provided, or to be provided, by Seller in North or South America (the °America's7, this Agreement shall be governed by and interpreted in accordance with the laws of England and Wales, excluding conflicts and choice of law principles. All disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with said rules. Arbitration shall be held in London, England and shall be conducted in the English language. For Equipment, Parts, Services or Rental provided, or to be provided, by Seller in the Amerlca's, this Agreement shall be governed by and interpreted in accordance with the substantive laws of the State of Texas, excluding conflicts and choice of law principles. Any dispute, action or proceeding arising out of or relatingg to this Agreement must be brought in a state or federal court sitting in Harris County, Texas, and each of the rdles hereby agrees to Irrevocably submit Itself to the exclusive judsdicUon of each such court in any such action or proceeding and waives any objection it may now or hereafter have to venue or convenience of forum. Seller retains the right to arbitrate any all disputes that may arise in connection with the provision of the Equipment, Parts, Services or Rental. 15. OWNERSHIP AND PATENT INDEMNITY All software used in connection with the Equipment, Parts, Services or Rental, either purchased or rented from Seller, is copyrighted and owned by Seller and licensed to Buyer. Seller warrants that the use or sale of Equipment or Parts hereunder will not infringe patents of others by reason of the use or sale of such Equipment or Parts per se, and hereby agrees to hold Buyer harmless against judgment for damages for infringement of any such patent, provided that Buyer shall promptly notify Seller In writing upon receipt of any claim for infringement, or upon the filing of any such suit for Infingement, whichever first occurs, and shall afford Seller full opportunity, at Sellers option and expense, to answer such claim or threat of suit, assume the control of the defense of such suit, and settle or compromise same in anyway Seller sees fit Seller does not warrant that such Equipment or Parts: (a) will not infringe any such patent when not of Seller's manufacture, or specially made, in whole or in part to the Buyer's design specifications; or (b) if used or sold in combination with other materials or apparatus or used in the practice of processes, will not, as a result of such combination or use, infringe any such paten, and Seller shall not be liable and does not indemn�'{y Buyer for damages w losses of any nature whatsoever resulting from actual or alleged patent infringement arising pursuant to (a) and (b) above. THIS ARTICLE STATES THE ENTIRE RESPONSIBILITY OF SELLER CONCERNING PATENT INFRINGEMENT. 16. REGULATORY COMPLIANCE By acceptance of delivery under this Agreement, Buyerwarrants it has complied with all applicable governmental, statutory and regulatory requirements and will furnish Sellerwith such documents as may be required. Seller warrants and certifies that In the performance of this Agreement it will comply with all applicable statutes, rules, regulations and orders in effect at the time of Agreement execution, including laws and regulations pertaining to labor, wages, hours and other conditions of employment, and applicablepdce ceilings if any. Seller All not provide any certification or other documentation nor agree to any contract provision or otherwise act in any manner which may cause Seller to be in violation of applicable United States law, Including but not limited to the Export Administration Act of 1979 and regulations issued pursuant thereto. No provision in this Agreement shall be Interpreted or applied which would require any pparty to do or refrain from doing any ad which would constitute a violation of, or result In a loss of economic benefit under, any anti -bo colt including but not limited to any such law of the United States. All Orders shall be conditional upon granting of export licenses or Import permits which may be required. Buyer shall obtain at its own risk any required export license and import permits and Buyer shall remain liable to accept and pay for material if licenses are not granted Or are revoked, 17. CONFIDENTIAL INFORMATION Each party recognizes and acknowledges that it shall maintain all data, information, disclosures, documents, drawings, specifications, patterns, calculations, technical information and other documents (collectively, "Confidential Information') obtained from the other party in strict confidence. However, nothing hereinabove contained shall deprive the party receiving the Confidential Information of the right to use or disclose any information: (a) which is, at the time of disclosure, known to the trade or public; (b) which becomes at a later date known to the trade or the public through no fault of the parry receiving the Confidential Information and then only after said later date; (c) which is possessed by the party receiving the Confidential Information, as evidenced by such party's written records, before receipt thereof from the party disclosing the Confidential Information; (d) which is disclosed to the party receiving the Confidential Information in good faith by a third party who has an independent right to such information; (e) which Is developed by the party receiving the Confidential Information as evidenced by documentation, independently of the Confidential Information; or, (1) which is required to be disclosed by the party receiving the Confidential Information Patiursuant to an order of a court of competent Jurisdiction or other governmental agency having the power to order such disclosure, provided that the party receiving the Confidentiat n€ormon uses its best efforts to provide timely notice to the party disclosing the Confidential Information of such order to permit such party an opportunity to contest such order. In the event that Seller owns copyrights to, patents to or has filed patent applications on, any technology related to the Equipment, Pans, Services or Rental furnished by Seller hereunder, and if Seller makes any improvements on such technology, then Seller shall own all such improvements, including drawings, specifications, patterns, calculations, technical information and other documents. 16. INDEPENDENT CONTRACTOR It is expressly understood that Seller is an independent contractor, and that neither Seller nor its principle, partners, employees or subcontractors are servants, agents or employees of Buyer. In all cases where Seller's employees (defined to include Seller's and its subcontractors, direct borrowed, special, or statutory employees) are covered by the Louisiana Worker's Compensation Act. La. R.S. 23:102 et seg , Seller and B er agreed that all Equipment, Parts, Services or Rental provided by Seller and Seller's employees pursuant to this Agreement are an Integral part of and are essential to the ability of Buyer to generate Buyer's goods. products, and services for the purpose of La. R.S. 23:106(A) (1). Furthermore, Seller and Buyer agree that Buyer is the statutory employer of all of Seller's employees for the purpose of La. R.S. 23:1061(A) (3). 19. ADDITIONAL RENTAL TERMS AND CONDITIONS Unless otherwise indicated, the rental rates contained in Seller's Proposal are on a per day basis and such rates shall apply to each piece of equipment or part rented. Seller represents that it has fully inspected the Rental equipment and parts as detailed in the Agreement and that said equipment and parts are in good condition and repair, and are fully acceptable for use as speafietl m the Agreement Furthermore, Seller represents that the Rental equipment and parts are not subject to any encumbrances or liens, and that Seller has full title to the equipment antl parts, and Ilius, Seller is authorized to enter into and execute this Agreement. Buyer represents that it shall use the Rental equipment and pans in a careful and proper manner and shall comply with all laws, ordinances and regulations relafing to the possession, use and maintenance of the equipment and parts in accordance with Seller's approved procedures. In the event the parties agree that the Buyer shall operate the Rental equipment and parts, Buyer further represents that the Rental equipment and parts will be operated by skilled employees trained in the use of the Rental equipment and parts. Buyer shall keep the Rental equipment and parts free and dear of all liens and encumbrances arising in connection with Buyer's operations andfor use of the Rental equipment and parts. Buyer, at Its sole cost, shall provide and maintain insurance against the loss, theft, damage or destruction of the Rental equipment and parts. The coverage shall be in an amount not less then the new replacement price of the Rental equipment and parts. NOV shall provide equipment and parts prices at execution of this Agreement. At the expiration of the applicable rental term, Buyer will at its sole cost return the Rental equipment to the facility designated by Seller, in working condition (reasonable wear and tear excepted). Upon receipt of the returned Rental equipment Seller will service and inspect the Rental equipment. In the event Seller determines that the Rental equipment is materially damaged or not In working condition (reasonable wear and tear excepted), any service work required to bring the Rental equipment to good working condition will be charged back to the Buyer. Such charges may include service, inspection, and spare parts. 20. GENERAL Failure of Buyer or Seller to enforce any of the terms and conditions of this Agreement shall not prevent a subsequent enforcement of such terms and conditions or be deemed a waiver Of any subsequent breach. Should any provisions of this Agreement, or portion thereof, be unenforceable or in conflict with applicable governing country, state, province, or local laws, then the validity of the remaining provisions, and portions thereof, shall not be affected by such unenforceability or conflict, and this Agreement shall be construed as If such provision supersedes all prior oral or written agreements or representations. Buyer acknowledges that it hast not relied on any representations other than those contained in this Agreement. This Agreement shall not be varied, supplemented, qualified, or interpreted by any prior course of dealing between the parties or by any usage of trade and may only be amended by an agreement executed by an authorized representative of each party. �,�N 49 s� m r— U O ORIGINAL