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HomeMy WebLinkAboutAgenda Report - January 6, 2016 C-05TM CITY OF LODI COUNCIL COM MUNICATION AGENDA ITEM C5 AGENDA TITLE: Adopt Resolution Authorizing Purchase of Megger Relay Test System from Megger USA, of Dallas, Texas ($50,200) MEETING DATE: January 6, 2016 PREPARED BY: Electric Utility Director RECOMMENDED ACTION: BACKGROUND INFORMATION: Adopt a resolution authorizing the purchase of a Megger Relay Test System, from Megger USA, of Dallas, Texas, in an amount not to exceed $50,200. The Electric Utility (EU) utilizes several protective measures to ensure high reliability and safety, while at the same time protecting power transformers and the distribution system from catastrophic failure. Power transformers are large units within the EU substations that transform electricity from 60,000 Volts, to 12,000 Volts, which is then distributed to end-users. Power transformers are also the threshold for determining EU's largest contingency component of the capital reserve target. To safeguard this investment against catastrophic failure, the EU utilizes standard industry practice by installing relays that perform protective tasks. The utility industry has not standardized on a specific type of relay or test equipment; however, the EU uses relays that include antiquated technology in the form of an electro -mechanical design as well as modem microprocessor -based technology. The EU utilizes test equipment that is incapable of testing all relays in the system; in addition, it is technology stale, requiring the use of antiquated computers and operating systems that are no longer supported. Testing relays is an industry best practice, as well as a regulatory requirement. The Megger SMRT36 will enable staff to test all relays within EU's system, including relays that will be required for a future transmission system expansion. The Megger SMRT36, operates as a stand-alone unit which does not require a computer interface. This stand-alone design avoids the drawback of obsolete operating systems and additional computers that are needed to operate the test system. In evaluating options, due diligence resulted in an opportunity to purchase a demonstration Megger SMRT36, with a 90 -day manufacturer warranty, at a 25 -percent discount from retail price. This unit is sold on a first -come -first -serve basis. Consistent with Lodi Municipal Code Section 3.20.070(5), "Bidding shall be dispensed when the city council determines that the purchase or method of purchase would be in the best interest of the city." APPROVED: Stephen Schwabay Manager Adopt Resolution Authorizing Purchase of Megger Relay Test Set from Megger USA, of Dallas, Texas ($50,200) January 6, 2016 Page 2of2 Staff recommends the purchase of a demonstration Megger Relay Test System SMRT36, for the negotiated price as indicated on Exhibit A. Megger Relay Test Set SMRT36 Retail $61,865.00 Estimated Tax Demo $46,398.75 $4,949.20 $3,711.90 Estimated Shipping Grand Total $50.00 $66,864.20 $50.00 $50,160.65 FISCAL IMPACT: The total cost is estimated at $50,160.65. FUNDING AVAILABLE: Included in FY2015/16 Budget Account No. 50064200. Jordan Ayers Deputy City Manager/Intemal Service Director Elizabeth A. Kirkley Electric Utility Director PREPARED BY: Charles J. Berry, Electric Utility Superintendent EAK/CJ B/ke Megger0 QUOTATION Lodi Electric 1331 S Ham Lane Lodi CA 95242 United States (209)333-3141 (Ph) (209)339-0851 (Fax) Attn: Chuck Thompson Megger Quote No: Date: Your Ref: Quotation Validity: Payment Terms: Currency: Freight Terms: Destination: ISDQ56524-03 Dec 16, 2015 RFQ - SMRT36 30 Days NET 30 Days US Dollars EXW: Factory: Dallas, TX United States Shipment subject to change due to demand. Payment Terms are subject to credit verification. If Tax-exempt, certificate is required with purchase Please reference our Quote No. on all correspondence Thank you for your inquiry. We are pleased to submit the following Quotation subject to Megger Terms and Conditions. Item Qty Part Number Description Unit Price 1 1 XFSMRT36-30P1 F1A1 Like New Megger Relay Test System SMRT36 - includes: T1 30 Ampere continuous,60 Ampere max output capability per channel, 3 Voltage / Current Channels, STVI, with Extra Binary I/O and BAT SIM, Bluetooth, IEC 61850, Standard American 15 -Amp Power Cord, and test leads. Also includes Transducer Test Feature and AVTS Basic Software. ***Includes 90 Day Warranty*** DA -FRT Ground freight cost, shipping from postal code 75237 to 95242 $46,398.75 Total Price Lead Time $46,398.75 $50.00 $50.00 ***Please note our annual factory shutdown is from Dec 25th through Jan 4th. Lead times for product(s) do not include this shutdown time *** *Freight will be prepaid and added to your invoice, unless you choose to supply Megger with your collect account information, at the time of order. Notes: - Cancellations are subject to a minimum 20% restocking fee. - One instruction manual included when applicable; additional copies are subject to charge. - Minimum order amount: $125.00 USD. - Any test reports or other special documentation required must be requested at time of inquiry and may be subject to charge. - Delivery lead times quoted by Megger are ex -factory unless otherwise noted. Megger will not be responsible for late delivery penalties unless Megger has been advised in the quotation stage that such a condition exist and it has been agreed to in writing. - Inspections by client representatives or third party contractors add to the delivery time and should be documented in the bid stage. Once you've reviewed the enclosed information, should you have any questions or require additional information, please call me or contact our Technical Sales Representative in your area, Sierra Utility Sales Inc, Santa Cruz CA, at 831-464-2250 On behalf of Megger Antonio Plascencia Inside Sales Representative 214-330-3552 antonio.plascencia@megger.com Megger 4271 Bronze Way Dallas, Texas 75237 Tel: Main: 800-723-2861 Fax:(Sales) 214-331-7399 Interneieww.me.ger.com TERMS AND CONDITIONS OF SALE 1. DEFINITIONS: In these terms and conditions Megger will be referred to as the "Seller," the materials, goods and services to be furnished will be referred to as the "Goods," and the person or firm purchasing the Goods will be referred to as the "Buyer ," and the Customer Acknowledgment or Invoice to which these Terms and Conditions of Sale are attached will be referred to as the "Agreement." These Terms and Conditions of Sale shall supersede the terms of the Buyer's purchase order or contract in the event of contradiction or inconsistency herewith, and no other terms, agreements, or customs inconsistent herewith shall be binding upon the Seller . All orders are subject to acceptance by Seller at its principal place of business, 4271 Bronze Way, Dallas, Texas. 2. PRICES AND TERMS: (A) Domestic -Terms of payment for domestic shipments are net 30 days from the date of shipment. In the event shipment is delayed by the Buyeithe terms of payment are net 30 days from the date of notification to the Buyer that equipment is ready for shipment. (B) Export -Acceptance of export sales cannot be made unless the Buyer (regardless of nationality) provides an irrevocable Letter of Credit drawn on a United States bank as specified by the Seller except where other arrangements have been accepted in writing by Seller, and payable in U.S. funds upon presentation of original invoice and Bill of Lading noting shipment from plant facility NOTE 1: Buyer shall pay interest on all past due amounts at the lower of (a) one and one-half percent (1-1/2%) per month, or (b) the maximum nonusurious rate permitted by applicable law. Buyer agrees to pay all agency or attorney fees and court costs should it become necessary in the collection of delinquent payments. NOTE 2: Unless otherwise agreed by Seller in writing, Buyer may not retain payment of any portion of the sales price. If Buyer disputes the accuracy of any portion of any invoice, Buyer may not withhold payment of the disputed amount, but shall promptly notify Sellespecifying the amount in dispute and the reason thereforBuyer will make timely payment of all amounts, including those in dispute. The parties will promptly attempt to resolve the dispute and, upon resolution, Seller will promptly pay any amounts due Buyer. NOTE 3. Partial shipment and payment therefore will be allowed unless specifically excluded by the Buyer and agreed to by the Seller. 3. PAYM ENT: (A) Payments are made in United States currency to Seller at the of fice of the corporation in Dallas County, Texas. (B) Payments of each invoice covering partial shipments shall become due in accordance with this Agreement. If Seller shall be delayed in shipment of the contract by action or inaction of the Buyer, Seller may store the Goods for Buyers account and risk. See Paragraph No. 10. (Material Storage). 4. TAXES: Prices do not include sales, use, excise, added value, or any other direct tax of a similar nature of federal, state, county, or municipal origin, nor do prices include any such tax imposed by government units outside the United States. If Seller should be required to collect and/or pay such taxes, the Buyer shall reimburse the Seller for full amount. 5. DELIVERY: Prices are quoted Ex -Factory of Origin, unless otherwise agreed in writing, and delivery to a transportation company properly consigned, shall constitute delivery to the Buyer 6. CRATING: PASSAGE OF TITLE, AND INSPECTION: Unless otherwise specified Goods for domestic shipment will not be crated. Title to the Goods covered by this Agreement will pass to the Buyer at the time of delivery of the shipment to the transportation company, subject to the security interest therein reserved in Paragraph No. 12 hereof, and inspection of such Goods will be at destination unless otherwise specified herein. Unless otherwise agreed in writing, Buyer and carrier are responsible for Goods lost or damaged in transit. 7. DELAYS: Seller shall not be liable for any loss, delay default or damage resulting from any cause beyond its reasonable control, including without limitation, war, governmental regulation or interference, act of God, fires, floods, accident, damage to its plants, epidemics, quarantine restrictions, strikes, lockouts, insurrection, riot, embargoes, interruption of transportation facilities, and failure of suppliers to meet delivery schedules, 8. CHANGES: Changes requested of this Agreement will be reviewed for price adjustment and will be subject to acceptance by Seller. 9. CANCELLATION: This order may be canceled only upon written request and must be with Seller's consent. Cancellation charges are calculated as a percentage of the invoice price as follows: 5.0% 6 weeks or more prior to confirmed ship date. 10.0% 4-6 weeks prior to confirmed ship date. 15.0% 2-4 weeks prior to confirmed ship date. 20.0% 2 weeks or less prior to confirmed ship date. 10. M ATERIAL STORAGE: In the event Buyer is not in position to receive shipment of the Goods by the previously requested or agreed upon shipping date, Seller will not be required to hold or store such Goods for a period of more than fifteen (15) days unless a charge of 1 % of the selling price is authorized per month of storage thereafter. 11. RETURNED GOODS: Authority to return Goods (must be obtained) from and authorized official of the Seller. All return shipments must have transportation charges prepaid. Any Items returned by the Buyer for reason of his own is subject to a 20% restocking charge. Additional charges for reworking or replacement of parts will be assessed where necessary. 12. CREDIT: Seller reserves the right to require adequate security from the Buyer before continuing work whenever Seller believes the Buyer's credit is (in the Sellers opinion) impaired. It is agreed that to better secure payment of the amounts hereon, Seller shall have and retain a security interest in all Goods sold to the Buyer pursuant this Agreement, and Buyer agrees to sign Financing Statements and other notices to establish the security interest held by Seller in accordance with the Uniform Commercial code or such other requirements for the perfection of a security interest in all such goods. The Buyer hereby agrees that this order may be filed as a financing statement pursuant to the Uniform Commercial Code. It is further agreed that until the entire purchase price has been paid, the Goods shall remain personal property and shall not become a part of the real estate or a fixture thereon and shall be subject to all statutory rights regarding personal property. 13. ASSIGNM ENT: This Agreement shall be binding upon and inure to the benefit of the parties, their successors and assigns, provided that the Buyer may not assign its rights under the Agreement without prior written consent of the Seller. 14. PATENTS: Seller does not warrant that the use by the Buyer of Goods sold, or articles or materials made therefrom alone or in combination with other materials will not infringe a patent. 15. DESIGN AND DRAWINGS: All data, drawings, designs, ideas, etc. furnished by Seller shall remain property of the Seller . All information pertaining to Seller' s design and drawings is proprietary, confidential and not to be disclosed, disseminated or used for any purpose except as provided by Seller. 16. UM ITATIONS: This Agreement includes and shall constitute the sole and entire agreement between the parties hereto with respect to the sale and purchase of the Goods hereunder; that no promises, agreements, or obligations other than those expressly contained and set forth herein have been made or created by either party thereto; that terms of this Agreement, shall be independent of, and independently enforced from, this Agreement, and any breach thereof shall not affect the rights, duties or obligations of the parties hereunder; and further, that this Agreement cannot and shall not be changed or modified in any particular whatsoever by any officer, employee, or representative of the Seller in any capacity , unless such change or modification shall be in writing and signed by both parties hereto. This Agreement shall not be amended in any manner by a course of dealing in contravention thereto. The provisions of the Agreement are severable, and, if any of its provisions shall be held invalid, such provisions shall not affect or impair any of the remaining provisions of this Agreement. It is hereby agreed between the parties hereto that this Agreement would have been entered into had such invalid provisions not been included herein. 17. ENFORCEM ENT: In the event the Buyer is adjudged bankrupt or files a voluntary assignment for the benefit of creditors, a receiver is appointed or if it becomes necessary for the Seller to employ an attorney for the collection of the amounts due hereunder or the enforcement of their rights hereby, Buyer agrees lo pay a reasonable fee of not less than fifteen percent (15%) of the amount due hereon to Seller for the legal services required. 18. WARRANTY: SELLER SHALL HAVE NO LIABILITY TO BUYER OR ANY OTHER PERSON FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE OF ANY KIND CAUSED, IN WHOLE OR INART, DIRECTLY OR INDIRECTLY, BY THE INADEQUACY OF THE GOODS FOR ANY PURPOSE WHETHER OR NOT KNOWN OR DISCLOSED TO SELLER, AND ITIS SPECIFICALLY AGREED AND UNDERSTOOD THAT THERE ARE NO W ARRANTIES EXPRESS OR IMPLIED, INCLUDING IMPLIED W ARRANTIES OF MERCHANTABILITY AND FITNESS FOR A BaRTICULAR PURPOSE, MADE BY SELLER WITH RESPECT TO THE GOODS EXCEPT AS PROVIDED BY SELLER TO BUYER SPECIFICALLY IN WRITING. 19. REM EDIES: BUYER'S EXCLUSIVE REMEDY AND SELLER'S SOLE LIABILITY HEREUNDER, WHETHER AS TO GOODS DELIVERED OR FOR NON-DELIVERY OF GOODS, WHETHER RELATING TO QUANTITY, QUALITY, WEIGHT, CONDITION, LOSS OR DAMAGE AND WHETHER OR NOT BASED ON CONTRACT, NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE, SHALL BE LIMITED, ASELLER'S OPTION, TO A REFUND OF THE PURCHASE PRICE P AID FOR, OR A REPLACEMENT OF , THE PARTICULAR DELIVERY OF GOODS SHOWN TO BE OTHER THAN AS W ARRANTED OR, IN THE CASE OF DEFICIENCY IN QUANTITY, AT SELLER'S OPTION, A REFUND OF THE PURCHASE PRICE PAID FOR, OR A REPLACEMENT OF, THE QUANTITY SHOWN TO BE DEFICIENT, AND FAILURE TO GIVE WRITTEN NOTICE OF SUCH A CLAIM WITHIN THIRTY (30) DAYS FROM DATE OF DELIVERY, OR THE DATE FIXED FOR DELIVER Y (IN THE CASE OF NON -DELIVER Y), SHALL CONSTITUTE A WAIVER BY BUYER OF ALL CLAIMS IN RESPECT OF SUCH GOODS. SELLER SHALL NOT BE LIABLE ON ANY CLAIM UNDER OR ARISING OUT OF OR FOR BREACH OF THIS AGREEMENT UNLESS ACTION THEREON SHALL BE BROUGHT AGAINST SELLER WITHIN ONE (1) YEAR FROM THE DM OF DELIVERY OR BREACH. NO CHARGE OR EXPENSE INCIDENT TO ANY CLAIMS WILL BE ALLOWED UNLESS APPROVED BY AN AUTHORIZED REPRESENWTIVE OF THE SELLER. THE REMEDY HEREBY PROVIDED SHALL BE THE EXCLUSIVE AND SOLE REMEDY OF BUYER, AND IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGE, WHETHER OR NOT CAUSED BY OR RESUIEING FROM THE NEGLIGENCE OF SUCH (ARTY. 20. GOVERNING LAW: The transaction contemplated hereby , and the interpretation and enforcement of this Agreement shall be governed by the internal laws of the State of Wxas and the execution and delivery of this Agreement shall be deemed to be the transaction of business within Texas for the purposes of conferring jurisdiction upon courts located within such State. The parties hereto consent and agree that the District Court of Dallas Count7exas, or, at Seller's option, the United States District Court for the Northern District of Texas, Dallas Division, shall have sole and exclusive jurisdiction to hear and determine any claims or disputes between Seller and Buyer pertaining to this Agreement or to any matter arising out of or relating to this Agreement. Buyer hereby irrevocably waives any objection that Buyer may now or hereafter have to the laying of venue in such courts, including without limitation any claim based upon improper venue or forum non conveniens. Nothing in this Agreement shall be deemed or operate to preclude the enforcement by Seller of any judgment or order obtained in such forum or the taking of any action under this agreement to enforce same in any other appropriate forum or jurisdiction. 21. ARBITRATION: Any controversy or claim between or among the parties hereto including but not limited to those arising out of or relating to this Agreement or any related agreements, including any claim based on or arising from an alleged tort, shall be determined by binding arbitration in accordance with the Federal Arbitration Act (or if applicable, applicable State law), the rules of practice and procedure for the arbitration of commercial disputes of Judicial Arbitration and Mediation Services, Inc. ("J.A.M.S."), and the "Special Rules" set forth belowln the event of any inconsistency, the Special Rules shall control. Judgement upon any arbitration award may be entered in any court having jurisdiction. Any party to this Agreement may bring an action, including a summary or expedited proceeding, to compel arbitration of any controversy or claim to which this Agreement applies in any court having jurisdiction over such action. A. Special Rules: The arbitration shall be conducted in the City of Dallas, T exas and administered by J.A.M.S. who will appoint an arbitrator , if J.A.M.S. is unable or legally precluded from administering the arbitration, then the American Arbitration Association will serve. All arbitration hearings will be commenced within 90 days of the demand for arbitration; further, the arbitrator shall, only upon a showing of cause, be permitted to extend the commencement of such hearing for up to an additional 60 days. B. Reservation of Rights: Nothing in this Agreement shall be deemed to limit the applicability of any otherwise applicable statutes of limitation or repose and any waivers contained in this Agreement; or limit the right of the Seller (a) to exercise self help remedies or (b) to foreclose against any real or personal property collateral, or (a) to obtain from a court provisional or ancillary remedies such as (but not limited to) injunctive relief, writ of possession or the appointment of a receiverSeller may exercise such self help rights, foreclose upon such property, or obtain such provisional or ancillary remedies before, during or after the pendency or any arbitration proceeding brought pursuant to this Agreement. Neither the exercise of self help remedies nor the institution or maintenance of an action for foreclosure or provisional or ancillary remedies shall constitute a waiver of the right of any party, including the claimant in any such action, to arbitrate the merits of the controversy or claim occasioning resort to such remedies. 22. TEXAS DTPA: BUYER HEREBY WAIVES ANY RIGHTS THAT BUYER MAY HAVE UNDER THE TEXAS DECEPTIVE TRADE PRACTICES ACT AS SET OUT IN THE TEXAS Business & COMMERCE CODE SECTION 17.41.et sea. OR ANY SUCCESSOR STATUTE, To THE FULLEST EXTENT THE BUYER MAY LAWFULLY SO DO. 23. WAIVER: Failure of the Seller to enforce any of these terms or conditions or to exercise any right accruing through the default of the Buyer shall not of fect or impair the Seller's rights, if such default continues or if any subsequent default of the Buyer occurs, and such failure on the part of Seller shall not constitute a waiver of other or future defaults of the Buyer. RESOLUTION NO. 2016-01 A RESOLUTION OF THE LODI CITY COUNCIL APPROVING AND AUTHORIZING THE CITY MANAGER TO PURCHASE A MEGGER RELAY TEST SYSTEM FROM MEGGER USA, OF DALLAS, TEXAS WHEREAS, the Electric Utility (EU) utilizes several protective measures to ensure high reliability and safety, while at the same time protecting power transformers and the distribution system from catastrophic failure; and WHEREAS, power transformers are large units within the EU substations that transform electricity from 60,000 Volts, to 12,000 Volts, which is then distributed to end- users; and WHEREAS, power transformers are also the threshold for determining EU's largest contingency component of the capital reserve target; and WHEREAS, to safeguard this investment against catastrophic failure, EU utilizes standard industry practice by installing relays that perform many protective tasks; and WHEREAS, the utility industry has not standardized on a specific type of relay; however, the EU uses relays that include antiquated technology in the form of an electro -mechanical design as well as modern microprocessor -based technology, and staff does not have the equipment needed to test all relays in the system; and WHEREAS, testing relays is an industry best practice, as well as a regulatory requirement; and WHEREAS, staff recommends purchasing a Megger Relay Test System SMRT36, that will enable staff to test all relays within EU's system, including relays that will be required for a future transmission system expansion; and WHEREAS, the Megger system operates as a stand-alone unit which does not require computer interface; and WHEREAS, utilizing a stand-alone system avoids the drawback of obsolete operating systems and additional computers that are needed to operate the test system; and WHEREAS, EU would be required to purchase several different test sets at a great cost that require computer interface, to meet the same testing capabilities of a Megger Relay Test System SMRT36; and WHEREAS, in evaluating options, due diligence resulted in an opportunity to purchase a demonstration Megger Relay Test System SMRT36, at a 25 percent discount from retail price, which is a single unit, sold on a first -come -first -serve basis; and WHEREAS, consistent with Lodi Municipal Code 3.20.070(5), bidding shall be dispensed...when the City Council determines that the purchase or method of purchase would be in the best interest of the City; and WHEREAS, staff recommends the purchase of a like -new demonstration model Megger Relay Test System SMRT36, for the negotiated price shown on Exhibit A, attached hereto and made a part of this Resolution. NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby waive the bidding process and authorize the City Manager to purchase a like -new demonstration model Megger Relay Test System SMRT36, in an amount not to exceed $50,200. Dated: January 6, 2016 I hereby certify that Resolution No. 2016-01 was passed and adopted by the City Council of the City of Lodi in a regular meeting held January 6, 2016, by the following vote: AYES COUNCIL MEMBERS — Johnson, Kuehne, Mounce, Nakanishi, and Mayor Chandler NOES: COUNCIL MEMBERS — None ABSENT: COUNCIL MEMBERS — None ABSTAIN: COUNCIL MEMBERS — None (74,1Aivia2,. ')EQAALui,2reb NIFER . FERRAIOLO City Clerk 2016-01 EXHIBIT A Lodi Electric 1331 S Ham Lane Lodi CA United States (209)333-3141 (Ph) (209)339-0851 (Fax) Attn: Chuck Thompson QUOTATION 95242 Megger0 Megger Quote No: Date: Your Ref: Quotation Validity: Payment Terms: Currency: Freight Terms: Destination: ISDQ56524-03 Dec 16, 2015 RFQ - SMRT36 30 Days NET 30 Days US Dollars EXW: Factory: Dallas, TX United States Shipment subject to change due to demand. Payment Terms are subject to credit verification. If Tax-exempt, certificate is required with purchase Please reference our Quote No. on all correspondence Thank you for your inquiry. We are pleased to submit the following Quotation subject to Megger Terms and Conditions. Item Qty Part Number Description Unit Price XFSMRT36-30P1 F1 Al Like New Megger Relay Test System SMRT36 - includes: T1 30 Ampere continuous,60 Ampere max output capability per channel, 3 Voltage / Current Channels, STVI, with Extra Binary I/O and BAT SIM, Bluetooth, IEC 61850, Standard American 15 -Amp Power Cord, and test leads. Also includes Transducer Test Feature and AVTS Basic Software. ***Includes 90 Day Warranty*** 1 DA -FRT Ground freight cost, shipping from postal code 75237 to 95242 $46,398.75 Total Price Lead Time $46,398.75 $50.00 $50.00 ***Please note our annual factory shutdown is from Dec 25th through Jan 4th.,Lead times for product(s) do not include this shutdown time *** *Freight will be prepaid and added to your invoice, unless you choose to supply Megger with your collect account information, at the time of order. Notes: - Cancellations are subject to a minimum 20% restocking fee. -One instruction manual included when applicable; additional copies are subject to charge. -Minimum order amount: $125.00 USD. -Any test reports or other special documentation required must be requested at time of inquiry and may be subject to charge. - Delivery lead times quoted by Megger are ex -factory unless otherwise noted. Megger will not be responsible for late delivery penalties unless Megger has been advised in the quotation stage that such a condition exist and it has been agreed to in writing. -Inspections by client representatives or third party contractors add to the delivery time and should be documented in the bid stage. Once you've reviewed the enclosed information, should you have any questions or require additional information, please call me or contact our Technical Sales Representative in your area, Sierra Utility Sales Inc, Santa Cruz CA, at 831-464-2250 On behalf of Megger ii Approved as to form_ Deputy City Attorney G am- �--�-�,7 Antonio Plascencia Inside Sales Representative 214-330-3552 antonio.plascencia@megger.com Megger 4271 Bronze Way Dallas, Texas 75237 Tel: Main: 800-723-2861 Fax:(Sales) 214-331-7399 InterneWww me•gercam TERMS AND CONDITIONS OF SALE 1. DEFINITIONS: In these terms and conditions Megger will be referred to as the "Seller," the materials, goods and servlcef td be furnished will be referred to as the "Goods," and the person or firm purchasing the Goods will be referred to as the "Buyer " and the Customer Acknowledgment Or Invoice t0 which these Terms and Conditions of Sale are attached will be referred to as the "Agreement." These Terms and Conditions of Sale shall supersede the terms of the Buyer's purchase order or contract in the event of Contradiction or inconsistency herewith, and no other terms, agreements, or customs inconsistent herewith shall be binding upon the Seller . All orders are subject to acceptance by Seller at its principal place of business, 4271 Bronze Way, Dallas, Texas. 2. PRICES AND TERMS: (A) Domestic -Terms of payment for domestic shipments are net 30 days from the date of shipment. In the event shipment is delayed by the Buyenhe terms of payment are net 30 days from the date of notification to the Buyer that equipment is ready for shipment. (B) Export -Acceptance of export sales cannot be made unless the Buyer (regardless of nationality) provides an irrevocable Letter of Credit drawn on a United States bank M specified by the Seller except where other arrangements have been accepted In writing by Seller, and payable in U.S. funds upon presentation of original invoice and Bili of Lading noting shipment from plantfacllLty NOTE 1: Buyer shall pay interest on all past due amounts at the tower of (a) one and one-half percent (1-112%) per month, or (b) the maximum nonusurious rate permitted by applicable law. Buyer agrees to •pay all agency or attorney fees and court costs should €t become necessary in the collection of delinquent payments. NOTE 2: Unleaa otherwise agreed by Seller in writing, Buyer may not retain payment of any portion of the sales price. If Buyer disputes the accuracy of any portion of any Invoice, Buyer may not withhold payment of the disputed amount, but shall promptly notify 5eliespecifying the amount In dispute and the reason thereforBuyer will make timely payment of all amounts, including those In dispute. The parties will promptly attempt to resolve the dispute and, upon resolution, Seller will promptly pay any amounts due Buyer. NOTE 3. Partial shipment and payment therefore will be allowed unless specifically excluded by the Buyer and agreed to by the Seller. 3. PAYMENT: (A) Payments are made In United States currency to Seller at the of Tice of the corporation in Dallas County, Texas. (8) Payments of each invoice covering partial shipments shall become due in accordance with this Agreement. If Seller shall be delayed in shipment of the contract by action or Inaction of the Buyer, Seller may store the Goods for Buyers account and risk. See Paragraph No. 10. (Material Storage). 4.TAXES: Prices do not Include sales, we, excise, added value, or any other direct tax of a similar nature of federal, state, county{ or municipal origin, nor do prices include any such tax imposed by government units outside the United States. If Seller should be required to collect and/or pay such taxes, the Buyer shall reimburse the Seller for full amount. 5. f7ELIVERY: Prices are quoted Ex -Factory of Origin, unless otherwise agreed in writing, and dellveryto a transportation company properly consigned, shall constitute delivery 50 the Buyer 8, CRATING: PASSAGE OF TITLE, AND INSPECTION: Unless Otherwise specified Goods for domestic shipment will not be crated. Title to the Goods covered by this Agreement will pass to the Buyer at the time of delivery of the shipment to the transportation company , subject to the security interest therein reserved In Paragraph No. 12 hereof. and Inspection of such Goods will be at destination unless otherwise specified herein. Unless otherwise agreed in writing, Buyer and carrier are responsible for Goods lost or damaged in transit. 7. DELAYS; Seller shall not be liable for any loss, delay default or damage resulting from any cause beyond its reasonable control, including without limitation, war, governmental regulation or interference, act of God, fires, floods, accident, damage to its plants. epidemics, quarantine restrictions, strikes, Iockouls, insurrection, riot. embargoes, interruption of transportation facilities, and failure of suppliers to meet delivery schedules, 8. CHANGES: Changes requested of this Agreement will be reviewed for price adjustment and will be subject to acceptance by Seller. 9. CANCELLATION: This order may be canceled only upon written request and must be with Seller's consent. Cancellation charges are calculated as a percentage.of the invoice price as follows: 5.0% 6 weeks or more prior to confirmed ship date. 10.0% 4-6 weeks prior to confirmed ship date. 15.0% 2-4 weeks prior to confirmed ship date. 20.0% 2 weeks or less prior to confirmed ship date. 10. MATERIAL STORAGE in the event Buyer is not In position to receive shipment of the Goods by the previously requested or agreed upon shipping date; Seller will not be required to hold or store such Goods fora period of mere than fifteen (15) days unless a charge of 1 % of the selling price is authorized per month of storage thereafter. 11. RETURNED GOLDS: Authority to return Goods (must be obtained) from and authorized official of the Seiler. All return shipments must have transportation charges prepaid. Any Items returned by the Buyer for reason of hisOwn is subject to a 20% restocking charge. Additional charges for reworking or replacement of parts will be assessed where necessary. 12. CREDIT: Seller reserves the right to require adequate security from the Buyer before continuing work whenever Seller believes the Buyer9 credit €s (in the Sellers opinion) Impaired. It is agreed that to bener secure payment of the amounts hereon, Seller shall have and retain a security Interest Inall Goods sold to the Buyer pursuant this Agreement, and Buyer agrees to sign Financing Statements and other notices to establish the security interest held by Seller in accordance with the Uniform Commercial code or such other requirements for the perfection of a security Interest in all such goods. The Buyer hereby agrees that this order may be filed as a financing statement pursuant to the Uniform Commercial Code, It is further agreed that until the entire purchase price has been paid, the Goods shall remain personal property and shall not become a part 'of the real estate or a fixture thereon and shall be subject to all statutory rights regarding personal property. 13. ASSIGNMENT: This Agreement shall be binding upon and inure to the benefit of the parties, their successors and assigns, provided that the Buyer may not assign its rights under the Agreement without prior written consent of the Seller. 14. PATENTS: Seller does not warrant that the use by the Buyer of Goods sold, or articles or materials made therefrom alone or in combination with other materials will not infringe a patent. 15. DESIGN AND DRAWINGS: All data, drawings, designs, Ideas. etc. furnished by Seiler shall remain property of the Seller . All information pertaining to Seiler' s design and drawings is proprietary, confidential and not to be disclosed, disseminated or used for any purpose except as provided by Seller. 16. LIMITATIONS; This Agreement Includes and shalt constitute the sole and entire agreement between the parties hereto with respect to the sale and purchase of the Goods hereunder, that no promises, agreements, or obligations other than those expressly contained and set forth herein have been made or created by either party thereto: that terms of this Agreement, shall be independent of, and independently enforced from, this Agreement. and any breach thereof shall not affect the rights, duties or obligations of the parties hereunder; and further, that this Agreement cannot and shall not be changed or modified in any particular whatsoever by any Officer, employee, or representative of the Seller in any capacity,unless such change or modification shall be In writing and signed by both parties hereto. Tis Agreement shall not be amended in any manner by a course of dealing in contravention thereto. The provisions of the Agreement are severable, and. if any of its provisions shall be held invalid, such provisions shall not affect or impair any of the remaining provisions of this Agreement. it is hereby agreed between the parties hereto that this Agreement would have been entered into had such invalid provisions not been included herein. 17. ENFORCEMENT: to the event the Buyer is adjudged bankrupt or files a voluntary assignment for the benefit of creditors, a receiver is appointed or if it becomes necessary for the Seller to employ an attorney for the collection of the amounts due hereunder or the enforcement of their rights hereby, Buyer agrees to pay a reasonable fee of not less than fifteen percent (1545) of the amount due hereon to Seller for the legal services required. 18. WARRANTY: SELLER SHALL HAVE NO LIABILITY TO BUYER OR ANY OTHER PERSON FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE OF ANY KIND CAUSED, IN WHOLE OR IN RT, DIRECTLY OR INDIRECTLY, BY THE INADEQUACY OF THE GOODS FOR ANY PURPOSE WHETHER OR NOT KNOWN 0R DISCLOSED TO SELLER, AND 1715 SPECIFICALLY AGREED AND UNDERSTOOD THAT THERE ARE NO W ARRANTIES EXPRESS OR IMPLIED, INCLUDING IMPLIED W ARRANTIES OF MERCHANTABILITY AND FITNESS FOR A [ARTICULAR PURPOSE, MADE BY SELLER WITH RESPECT TO THE GOODS EXCEPT AS PROVIDED BY SELLER TO BUYER SPECIFICALLY IN WRITING. 19. REMEDIES: BUYER'S EXCLUSIVE REMEDY AND SELLER'S SOLE LIABILITY HEREUNDER, WHETHER AS TO GOODS DELIVERED OR FOR NON-DELIVERY OF GOODS, WHETHER RELATING TO. QUANTITY. QUALITY, WEIGHT, CONDITION, LOSS OR DAMAGE AND WHETHER OR NOT BASED ON CONTRACT NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE, SHALL. BE UMITEO, ASELLER'S OPTION, TO A REFUND OF THE PURCHASE PRICE P AID FOR, OR A REPLACEMENT OF , THE PARTICULAR DELIVERY OF GOODS SHOWN TO BE OTHER THAN ASW ARRANTED OR, iN THE CASE OF DEFICIENCY IN QUANTITY, AT SELLER'S OPTION, A REFUND OF THE PURCHASE PRICE PAID FOR, OR A REPLACEMENT OF, THE QUANTITY SHOWN TO BE DEFICIENT, AND FAILURE TO GIVE WRITTEN NOTICE OF SUCH A CLAIM WITHIN THIRTY (30) DAYS FROM DATE OF DELIVERY, OR THE DATE FIXED FOR DELIVER Y (IN THE CASE OF NON -DELIVER Y), SHALL CONSTITUTE A WAIVER BY BUYER OF ALL CLAIMS IN RESPECT OF SUCH GOODS. SELLER SHALL NOT BE LIABLE ON ANY CLAIM UNDER OR ARISING OUT OF OR FOR BREACH OF THIS AGREEMENT UNLESS ACTION THEREON SHALL BE BROUGHT AGAINST SELLER WITHIN ONE (1) YEAR FROM THE DALE OF DELIVERY OR BREACH. NO CHARGE OR EXPENSE INCIDENT TO ANY CLAIMS WILL BE ALLOWED UNLESS APPROVED BY AN AUTHORIZED REPRESENTATIVE OF THE SELLER. THE REMEDY HEREBY PROVIDED SHALL BE THE EXCLUSIVE AND SOLE REMEDY OF BUYER, AND IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL INCIDENTAL PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGE, WHETHER OR NOT CAUSED BY OR RESU1[ING FROM THE NEGLIGENCE OF SUCH !ARTY. 20. GOVERNING LAW: The transaction contemplated hereby , and the Interpretation and enforcement of this Agreement shall be governed by the Internal laws of the State of oxas and the execution and delivery of this Agreement shall be deemed to be the transaction of business within Texas for the purposes of conferring jurisdiction upon courts located within such State. The parties hereto consent and agree that the District Court of Oailas CauntyTexas, or. at Seller's option, the United States District Court for the Northern District of Texas, Dallas Division, shall have sole and exclusive jurisdiction to hear and determine any claims or disputes between Seller and Buyer pertaining to this Agreement or to any matter arising out of or relating to this Agreement. Buyer hereby Irrevocably waives any objection that.Buyer may now Or hereafter have to the laying of venue in such courts, including without limitation any claim based upon improper venue or forum non convenlens. Nothing in this Agreement shall be deemed or operate to preclude the enforcement by Seller of any judgment or order obtained in such forum ar the taking of any action under this agreement to enforce same in any other appropriate forum or jurisdiction. 21. ARBITRATION: Any controversy Or claim between or among the parties hereto including but not [msted to those arising out of or relating to this Agreement or any related agreements, including any claim based on or arising from an alleged tort, shall be determined by binding arbitration in accordance with the Federal Arbitration Act for if.applicable, applicable State law), the rules of practice and procedure for the arbitration of commercial disputes of Judicial Arbitration and Mediation Services, Inc. ("1.A.M,S."), and the "special Rules" set forth belawin the event of any inconsistency, the Special Rules shall control. Judgement upon any arbitration award may be entered in any court having jurisdiction. Any party to this Agreement may bring en action, including a summary or expedited proceeding, to compel arbitration of any controversy or claim to which this Agreement applies in any court having jurisdiction over such action. A. Special Rules: The arbitration shall be conducted in the City of Dallas, T exas and administered by 1.A.M.S. who will appoint an arbitrator , if I.A.M.S. Is unable or legally precluded from administering the arbitration. then the American Arbitration Association will serve. All arbitration hearings will be commenced within 90 days 01 the demand for arbitration; further, the arbitrator shall, only upon a showing of cause, be permitted to extend the commencement of such hearing for up to en additlonai60 days. B peservatinn or Rights: Nothing in this Agreement Shall be deemed to limit the applicability of any otherwise applicable statutes of limitation or repose and any waivers contained in this Agreement; or limit the right of the Seiler (a) to exercise self hep remedies or fb) to foreclose against any real or personal property collateral, or (a) to obtain from a court provisional or ancillary remedies such as (but not limited to) Injunctive relief. writ of possession or the appointment of a receiverSeller may exert lse such self help rights, foreclose upon such property. or obtain such provisional or ancillary remedies before, during or after the pendency or any arbitration proceeding brought pursuant to this Agreement. Neither the exercise of self help remedies nor the institution or maintenance of an action for foreclosure or provisional or ancillary remedies shall constitute a waiver of the right of any party, including the claimant In any such action, to arbitrate the merits of the controversy or claim occasioning resort to such remedies. 22. TEXAS DTPA: BUYER HEREBY WAIVES ANY RIGHTS THAT BUYER MAY HAVE UNDER THE TEXAS DECEPTIVE TRADE PRACTICES ACT AS SET OUT IN THE TEXAS Business & COMMERCE CODE SECTION 17.41.et sea. OR ANY SUCCESSOR STATUTE, To THE FULLEST EXTENT THE BUYER MAY LAWFULLY 50 DO. 23. WAIVER: Failure of the Seller to enforce any of these terms or conditions or to exercise any right accruing through the default of the Buyer shall not of lett or impair the Seller's rights, if such default continues or if any subsequent default of the Buyer occurs. and such failure on the part of Seiler shall not constitute a waiver of other or future defaults of the Buyer.