16-0920_LEGEND PUMP AND WELL SERVICE, INC_Equipment Purchase AgreementCITY OF SAN JUAN CAPISTRANO
EQUIPMENT PURCHASE AGREEM ENT
This Equipment Purchase Agreement ("Agreement") is entered into this N day of
â¿pt ,2016, by and between the City of San Juan Capistrano, a municipal corporation
organized and operating under the laws of the State of California with its principal place of
business at a municipal corporation organized under the laws of the State of California with its
principal place of business at 32400 Paseo Adelanto, San Juan Capistrano, Califomia 92675
("City"), and Legend Pump & Well Service Inc., a Corporation with its principal place of
business at 1324 W. Rialto Avenue, San Bemardino, CA 92410 ("Contractor"). City and
Contractor are sometimes individually referred to as "Party" and collectively as "Parties" in this
Agreement.
Section 1. DnnInIrtoNs.
A. "Equipmento' means all machinery, equipment, items, parts, materials, labor or
other services, including design, engineering and installation services, provided by Contractor as
specified in Exhibit ooA,o' attached hereto and incorporated herein by reference.
B. "Delivery Date(s)" means that date or dates upon which the Equipment is to be
delivered to City, ready for approval, testing andlor use as specified in Exhibit "8."
Section 2. MarnRram aNn WoRruaNsurp.
When Exhibit "A" specifies machinery, equipment or material by manufacturer, model or
trade name, no substitution will be made without City's written approval. Machinery, equipment
or material installed in the Equipment without the approval required by this Section 2 will be
deemed to be defective material for purposes of Section 4. Where machinery, equipment or
materials are refened to in Exhibit "4" as equal to any particular standard, City will decide the
question of equality. When requested by City, Contractor will fumish City with the name of the
manufacturer, the performance capabilities and other pertinent information necessary to properly
determine the quality and suitability of any machines, equipment and material to be incorporated
in the Equipment. Material samples will be submitted at City's request.
Section 3. IxspncuoNs ¡Nn Tnsrs.
City shall have the right to inspect and/or test the Equipment prior to acceptance. If upon
inspection or testing the Equipment or any portion thereof are found to be nonconforming,
unsatisfactory, defective, of inferior quality or workmanship, or fail to meet any requirements or
specifications contained in Exhibit"A," then without prejudice to any other rights or remedies,
City may reject the Equipment or exercise any of its rights under Section 4.C. The inspection,
failure to make inspection, acceptance of goods, or payment for goods shall not impair City's
right to reject nonconforming goods, inespective of City's failure to notify Contractor of a
rejection of nonconforming goods or revocation of acceptance thereof or to specify with
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particularity any defect in nonconforming goods after rejection or acceptance thereof.
Section 4. W¡Rn¡¡trv.
A. Contractor warrants that the Equipment will be of merchantable quality and free
from defects in design, engineering, material and workmanship for a period of two (2) years, or
such longer period as provided by a manufacturer's warranty or as agreed to by Contractor and
City, from the date of final written acceptance of the Equipment by City as required for hnal
payment under Section 7. Contractor further warrants that any seryices provided in connection
with the Equipment will be performed in a professional and workmanlike manner and in
accordance with the highest industry standards.
B. Contractor further wanants that all machinery, equipment or process included in
the Equipment will meet the performance requirements and specif,rcations specified in Exhibit
"4" and shall be fit for the purpose intended. City's inspection, testing, approval or acceptance
of any such machinery, equipment or process will not relieve Contractor of its obligations under
this Section 4.8.
C. For any breach of the warranties contained in Section 4.4 and Section 4.8,
Contractor will, immediately after receiving notice from City, at the option of City, and at
Contractor's own expense and without cost to City:
l. Repair the defective Equipment;
2. Replace the defective Equipment with conforming Equipment, F.O.B.
City's plant, office or other location of City where the Equipment was originally performed
or delivered; or
3. Repay to City the purchase price of the defective Equipment.
If City selects repair or replacement, any defects will be remedied without cost to
City, including but not limited to, the costs of removal, repair and replacement of the
defective Equipment, and reinstallation of new Equipment. All such defective Equipment
that is so remedied will be similarly warranted as stated above. In addition, Contractor
will repair or replace other items of the Equipment which may have been damaged by
such defects or the repairing of the same, all at its own expense and without cost to City.
D. Contractor also warrants that the Equipment is free and clear of all liens and
encumbrances whatsoever, that Contractor has a good and marketable title to same, and that
Contractor owns or has a valid license for all of the proprietary technology and intellectual
property incorporated within the Equipment. Contractor agrees to indemnif', defend and hold
City harmless against any and all third party claims resulting from the breach or inaccuracy of
any of the foregoing wananties.
E. ln the event of a breach by Contractor of its obligations under this Section 4, City
will not be limited to the remedies set forth in this Section 4, but will have all the rights and
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remedies permitted by applicable law, including without limitation, all of the rights and remedies
afforded to City under the California Commercial Code.
Section 5. PRtcns.
Unless expressly provided otherwise, all prices and fees specified in Exhibit "4,"
attached hereto and incorporated herein by reference, are frrm and shall not be subject to change
without the written approval of City. No extra charges of any kind will be allowed unless
specifically agreed to in writing by City's authorized representative. The total price shall include
(i) all federal, state and local sales, use, excise, privilege, payroll, occupational and other taxes
applicable to the Equipment furnished to City hereunder; and (ii) all charges for packing, freight
and transportation to destination.
Section 6. CHI¡,{crs.
City, at any time, by a written order, and without notice to any surety, may make changes
in the Equipment, including but not limited to, City's requirements and specifications. If such
changes affect the cost of the Equipment or time required for its performance, an equitable
adjustment will be made in the price or time for performance or both. Any change in the price
necessitated by such change will be agreed upon between City and Contractor and such change
will be authorized by a change order document signed by City and accepted by Contractor.
Section 7. Ptvllpxrs.
A. Terms of payment, are net thirty (30) days, less any applicable retention, after
receipt of invoice, or completion of applicable Progress Milestones. Final payment shall be
made by City after Contractor has satisfied all contractual requirements. Payment of invoices
shall not constitute acceptance of Equipment.
B. If Progress Milestones have been specified Exhibit ooB," then payments for the
Equipment will be made as the requirements of such Progress Milestones are met. Progress
payments for the Equipment will be made by City upon proper application by Contractor during
the progress of the Equipment and according to the terms of payment as specified in Exhibit "B."
Contractor's progress billing invoice will include progress payments due for the original scope of
work and changes. Each "Item for Payment" shown in Exhibit "B" and each change order will
be itemized on the invoice. Invoices for cost plus work, whether part of Exhibit o'8" or a change
order, must have subcontractor and/or supplier invoices attached to Contractor's invoice. Other
format and support documents for invoices will be determined by City in advance of the first
invoice cycle.
C. Payments otherwise due may be withheld by City on account of defective
Equipment not remedied, liens or other claims filed, reasonable evidence indicating probable
filing of liens or other claims, failure of Contractor to make pa¡rments properly to its
subcontractors or for material or labor, the failure of Contractor to perform any of its other
obligations under the Agreement, or to protect City against any liability arising out of
Contractoros failure to pay or discharge taxes or other obligations. If the causes for which
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pa)¡ment is withheld are removed, the withheld payments will be made promptly. If the said
causes are not removed within a reasonable period after written notice, City may remove them at
Contractor's expense.
D. Payment of the final Progress Milestone payment or any retention will be made by
City upon:
1. Submission of an invoice for satisfactory completion of the requirements
of a Progress Milestone as defined in Exhibit "8" and in the amount associated with the
Progress Milestone;
4.
Agreement; and
Written acceptance of the Equipment by City;
Delivery of all drawings and specifications, if required by City;
Delivery of executed full releases of any and all liens arising out of this
5. Delivery of an affidavit listing all persons who might otherwise be entitled
to file, claim or maintain a lien of any kind or character, and containing an averment that all
of the said persons have been paid in full.
If any person refuses to furnish an actual release or receipt in full, Contractor may fumish
a bond satisfactory to City to indemnify City against any claim or lien at no cost to City.
E. Acceptance by Contractor of payment of the final Progress Milestone pa¡rment
pursuant to Section 7.D will constitute a waiver, release and discharge of any and all claims and
demands of any kind or character which Contractor then has, or can subsequently acquire against
City, its successors and assigns, for or on account of any matter or thing arising out of, or in any
manner connected with, the performance of this Agreement. However, payrnent for the final
Progress Milestone by City will not constitute a waiver, release or discharge of any claims or
demands which City then has, or can subsequently acquire, against Contractor, its successors and
assigns, for or on account of any matter or thing arising out of, or in any manner connected with,
the performance of this Agreement.
Section 8. Scunnule FoR DBt rvnRv.
A. The time of Contractor's performance is of the essence for this Agreement. The
Equipment will be delivered in accordance with the schedule set forth in Exhibit "B." Contractor
must immediately notify City in writing any time delivery is behind schedule or may not be
completed on schedule. ln addition to any other rights City may have under this Agreement or at
law, Contractor shall pay City the sum of $10 per item of Equipment for each calendar day for
which the item of Equipment is unavailable beyond the scheduled delivery date(s) specified in
Exhibit "B."
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B. ln the event that the Equipment is paft of a larger project or projects that require
the coordination of multiple contractors or suppliers, then Contractor will fully cooperate in
scheduling the delivery so that City can maximize the efficient completion of such project(s).
Section 9. Ttxns.
A. Contractor agrees to timely pay all sales and use tax (including any value added or
gross receipts tax imposed similar to a sales and use tax) imposed by any federal, state or local
taxing authority on the ultimate purchase price of the Equipment provided under this Agreement.
B. Contractor will withhold, and require its subcontractors, where applicable, to
withhold all required taxes and contributions of any federal, state or local taxing authority which
is measured by wages, salaries or other remuneration of its employees or the employees of its
subcontractors. Contractor will deposit, or cause to be deposited, in a timely manner with the
appropriate taxing authorities all amounts required to be withheld.
C. All other taxes, however denominated or measured, imposed upon the price of the
Equipment provided hereunder, will be the responsibility of Contractor. ln addition, all taxes
assessed by any taxing jurisdiction based on Contractor property used or consumed in the
provision of the Equipment such as and including ad valorem, use, personal property and
inventory taxes will be the responsibility of Contractor.
D. Contractor will, upon written request, submit to City written evidence of any
filings or payments of all taxes required to be paid by Contractor hereunder.
Section 10. Ii,,ronpnNnnNTCoNTRACToR.
Contractor enters into this Agreement as an independent contractor and not as an
employee of City. Contractor shall have no power or authority by this Agreement to bind City in
any respect. Nothing in this Agreement shall be construed to be inconsistent with this
relationship or status. All employees, agents, contractors or subcontractors hired or retained by
the Contractor are employees, agents, contractors or subcontractors of the Contractor and not of
City. City shall not be obligated in any way to pay any wage claims or other claims made against
Contractor by any such employees, agents, contractors or subcontractors or any other person
resulting from performance of this Agreement.
Sectionll. SuscoNrnlcrs.
Unless otherwise specified, Contractor must obtain City's written permission before
subcontracting any portion of the Equipment. Except for the insurance requirements in Section
13.4, all subcontracts and orders for the purchase or rental of supplies, materials or equipment,
or any other part of the Equipment, will require that the subcontractor be bound by and subject to
all of the terms and conditions of the Agreement. No subcontract or order will relieve Contractor
from its obligations to City, including, but not limited to Contractor's insurance and
indemnihcation obligations. No subcontract or order will bind City.
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Section 12. Tnlr,tnn Rrsr or Loss.
Unless otherwise agreed, City will have title to, and risk of loss of, all completed and
partially completed portions of the Equipment upon delivery, as well as materials delivered to
and stored on City property which are intended to become a part of the Equipment. However,
Contractor will be liable for any loss or damage to the Equipment and/or the materials caused by
Contractor or its subcontractors, their agents or employees, and Contractor will replace or repair
said Equipment or materials at its own cost to the complete satisfaction of City. Notwithstanding
the foregoing, in the event that the City has paid Contractor for all or a poftion of the Equipment
which remains in the possession of Contractor, then City shall have title to, and the right to take
possession of, such Equipment at any time following pa¡rment therefor. Risk of loss for any
Equipment which remains in the possession of Contractor shall remain with Contractor until such
Equipment has been delivered or City has taken possession thereof. Contractor will have risk of
loss or damage to Contractor's property used in the construction of the Equipment but which
does not become apart of the Equipment.
Section 13. INonnaNmrcATIoN.
A. Contractor shall defend, indemnify and hold the City, its elected officials, ofhcers,
employees, volunteers and agents free and harmless from any and all claims, demands, causes of
action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons,
including wrongful death, in any manner arising out of or incident to any alleged acts, omissions,
negligence or willful misconduct of Contractor, its officials, officers, employees, agents,
subcontractors and subconsultants arising out of or in connection with the Equipment or the
performance of this Agreement, including without limitation the payrnent of all consequential
damages and attomeys' fees and other related costs and expenses except such loss or damage
which was caused by the sole negligence or willful misconduct of the City.
B. Contractor's defense obligation for any and all such aforesaid suits, actions or
other legal proceedings of every kind that may be brought or instituted against the City, its
directors, officials, officers, employees, agents or volunteers shall be at Contractor's own cost,
expense and risk. Contractor shall pay and satisfr any judgment, award or decree that may be
rendered against City or its elected officials, officers, employees, agents or volunteers, in any
such suit, action or other legal proceeding. Contractor shall reimburse City and its elected
officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs
incurred by each of them in connection therewith or in enforcing the indemnity herein provided.
C. Contractor's obligation to indemnify shall not be restricted to insurance proceeds,
if any, received by the City, its elected officials, officers, employees, agents or volunteers.
Section 14. INsuRmrcn.
A. General. Contractor shall take out and maintain:
l. Commercial General Liability Insurance, of at least $1,000,000 per
occurrence/ $2,000,000 aggregate for bodily injury, personal injury and property damage, at
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least as broad as Insurance Services Office Commercial General Liability most recent
Occurrence Form CG 00 0l;
2. Automobile Liability lnsurance for bodily injury and property damage
including coverage for owned, non-owned and hired vehicles, of at least $1,000,000 per
accident for bodily injury and property damage, at least as broad as most recent Insurance
Services Office Form Number CA 00 0l covering automobile liability, Code 1 (any auto);
3. Workers' Compensation in compliance with applicable statutory
requirements and Employer's Liability Coverage of at least $1,000,000 per occumence; and
4. Pollution Liability Insurance of at least $1,000,000 per occuffence and
$2,000,000 aggregate shall be provided by the Contractor if transporting hazardous materials.
5. If Contractor is also the manufacturer of any equipment included in the
Equipment, Contractor shall carry Product Liability and/or Errors and Omissions lnsurance
which covers said equipment with limits of not less than $1,000,000.
B. Additional lnsured: Primary: Waiver of Subroeation: No Limitation on Coveraee.
The policies required under this Section shall give City, its elected officials, officers, employees,
agents or volunteers additional insured status. Such policies shall contain a provision stating that
Contractor's policy is primary insurance and that any insurance, self-insurance or other coverage
maintained by the City or any additional insureds shall not be called upon to contribute to any
loss, and shall contain or be endorsed with a waiver of subrogation in favor of the City, its
officials, officers, employees, agents, and volunteers. The limits set forth herein shall apply
separately to each insured against whom claims are made or suits are brought, except with
respect to the limits of liability. Requirements of specific coverage or limits contained in this
section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of
any coverage normally provided by any insurance. Any available coverage shall be provided to
the parties required to be named as additional insured pursuant to this Agreement.
C. Insurance Carrier. All insurance required under this Section is to be placed with
insurers with a current A.M. Best's rating no less than A-:VII, licensed to do business in
California, and satisfactory to the City.
D. Evidence of lnsurance. Contractor shall furnish City with original certificates of
insurance and endorsements effecting coverage required by the Agreement. The certificates and
endorsements for each insurance policy shall be signed by a person authorized by that insurer to
bind coverage on its behalf, and shall be on forms supplied or approved by the City. All
certificates and endorsements must be received and approved by the City before delivery
commences. The City reserves the right to require complete, certified copies of all required
insurance policies, at any time.
E. Subcontractors. All subcontractors shall meet the requirements of this Section
before commencing work. ln addition, Contractor shall include all subcontractors as insureds
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under its policies or shall fuinish separate certificates and endorsements for each subcontractor
All coverages for subcontractors shall be subject to all of the requirements stated herein.
F. Freiqht. Contractor shall ensure that third party shippers contracted by Contractor
have adequate insurance coverage for the shipped Equipment.
Section 15. LIpNs.
A. Contractor, subcontractors and suppliers will not make, file or maintain a
mechanic's or other lien or claim of any kind or character against the Equipment, for or on
account of any labor, materials, fixtures, tools, machinery, equipment, or any other things
fumished, or any other work done or performance given under, arising out of, or in any manner
connected with the Agreement (such liens or claims referred to as "Claims"); and Contractor,
subcontractor and suppliers expressly waive and relinquish any and all rights which they now
have, or may subsequently acquire, to file or maintain any Claim and Contractor, subcontractor
and suppliers agree that this provision waiving the right of Claims will be an independent
covenant.
B. Contractor will save and hold City harmless from and against any and all Claims
that may be filed by a subcontractor, supplier or any other person or entity and Contractor will, at
its own expense, defend any and all actions based upon such Claims and will pay all charges of
attorneys and all costs and other expenses arising from such Claims.
Section 16. TnRnllt,urloN oFAcRnnnrnNT By CITy.
A. Should Contractor at any time refuse or fail to deliver the Equipment with
promptness and diligence, or to perform any of its other obligations under the Agreement, City
may terminate Contractor's right to proceed with the delivery of the Equipment by written notice
to Contractor. ln such event City may obtain the Equipment by whatever method it may deem
expedient, including the hiring of another contractor or other contractors and, for that purpose,
may take possession of all materials, machinery, equipment, tools and appliances and exercise all
rights, options and privileges of Contractor. ln such case Contractor will not be entitled to
receive any further payments until the Equipment is delivered. If City's cost of obtaining the
Equipment, including compensation for additional managerial and administrative services, will
exceed the unpaid balance of the Agreement, Contractor will be liable for and will pay the
difference to City.
B. City may, for its own convenience, terminate Contractor's right to proceed with
the delivery of any portion or all of the Equipment by written notice to Contractor. Such
termination will be effective in the manner specified in such notice, will be without prejudice to
any claims which City may have against Contractor, and will not affect the obligations and duties
of Contractor under the Agreement with respect to portions of the Equipment not terminated.
C. On receipt of notice under Section 16.8, Contractor will, with respect to the
portion of the Equipment terminated, unless the notice states otherwise,
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1. Immediately discontinue such portion of the Equipment and the placing of
orders for materials, facilities, and supplies in connection with the Equipment,
2. Unless otherwise directed by City, make every reasonable effort to procure
cancellation of all existing orders or contracts upon terms satisfactory to City; and
3. Deliver only such portions of the Equipment which City deems necessary
to preserve and protect those portions of the Equipment already in progress and to protect
material, plant and equipment at the Equipment site or in transit to the Equipment site.
D. Upon termination pursuant to Section 16.B, Contractor will be paid a pro rata
portion of the compensation in the Agreement for any portion of the terminated Equipment
already delivered, including material and seruices for which it has made firm contracts which are
not canceled, it being understood that City will be entitled to such material and services. Upon
determination of the amount of said pro rata compensation, City will promptly pay such amount
to Contractor upon delivery by Contractor of the releases of liens and affidavit, pursuant to
Section 7.C.
SectionlT. MrscrluNnousPRovIsroNs.
A. Delivery of Notices. All notices permitted or required under this Agreement shall
be given to the respective parties at the following address or at such other address as the
respective parties may provide in writing for this purpose:
CITY CONTRACTOR
City of San Juan Capistrano Legend Pump & Well Service lnc.
32400 Paseo Adelanto 1324W. Rialto Avenue
San Juan Capistrano, CA 92675 San Bernardino, CA 92410
Attn: Steve May, Public Works & Utilities Director Attn: Keith Collier, President
Such notice shall be deemed made when personally delivered or when mailed, forty-eight
(48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at
its applicable address. Actual notice shall be deemed adequate notice on the date actual notice
occurred, regardless of the method of service.
B. Assisnment or Transfer. Contractor shall not assign or transfer any interest in this
Agreement whether by assignment or novation, without the prior written consent of the City,
which will not be unreasonably withheld. Provided, however, that claims for money due or to
become due Contractor from the City under this Agreement may be assigned to a financial
institution or to a trustee in bankruptcy, without such approval. Notice of any assignment or
transfer, whether voluntary or involuntary, shall be fumished promptly to the City.
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C. Successors and Assisns. This Agreement shall be binding on the successors and
assigns of the Parties.
D. Amendment: Modification. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing and signed by both Parties.
E. Waiver. No waiver of any default shall constitute a waiver of any other default or
breach, whether of the same or other covenant or condition. No waiver, benefit, privilege or
service voluntarily given or performed by a Party shall give the other Party any contractual rights
by custom, estoppel or otherwise.
F. Goveminq Law. This Agreement shall be governed by the laws of the State of
California. Venue shall be in Orange County.
G. lntemretation. Since the Parties or their agents have participated fully in the
preparation of this Agreement, the language of this Agreement shall be construed simply,
according to its fair meaning, and not strictly for or against any Party.
H. No Third Party Beneficiaries. There are no intended third party beneficiaries of
any right or obligation assumed by the Parties.
I. Authoritv to Enter Aereement. Each Party warrants that the individuals who have
signed this Agreement have the legal po\ryer, right and authority to make this Agreement and bind
each respective Party.
J. lnvalidity; Severability. If any portion of this Agreement is declared invalid,
illegal or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions
shall continue in full force and effect.
K. Counterparts. This Agreement may be signed in counterparts, each of which shall
constitute an original.
L. City's Right to Employ Other Contractors. City reserves its right to employ other
contractors in connection with the Equipment.
M. Entire Asreement. This Agreement constitutes the entire agreement between the
Parties relative to the Equipment specified herein. There are no understandings, agreements,
conditions, representations, warranties or promises with respect to this Agreement, except those
contained in or referred to in the writing.
ISTGNATURES ON FOLLOWTNG PAGEI
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Slgnrture Prge for Equipment Purchr¡e Agreement
Ectwccn the CXty of S¡n Juan Cepbtrrno
And Lagcnd Pump & Well Serdcefnc.
IN II,TINESS \ryHEREOF, tbc Partics hscûo havc orccutcd this Agrccment ae of thc day
and year first abovc writtcn.
GITY OF SA¡{ JUAN CAPISTRANO LEGEI,ID VTIELL SERVICE INC.
Approwd By:
Presldent
City Ma
4-t
Date
Approved As To
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Prlnted Name
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f-Zt^tb
Date
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Legerrd
Pump fi WeII 5erviae,n..
Lic. # 964537
City of San Juan Capistrano
34250 Paseo Adelanto
San Juan Capistrano, Ca.
April 28,2016
Attn: Tim O'Neal
Subject: Mission Well
Pursuant to our conversation regarding the subject well we would like to submit the
following.
2 Crane and Service Truck to pull pump bring into s sassemble, clean
and i mp. Steam clean Certi-Lock pipe.
Video log wellto ne condition of ca
a Mob/ Demob to wire brush NOT A PART
o Wire brush and bailwell mate 8 hrs
a
a
o Re-
San
Video log
and powder coat discharge head
men Crane and Service Truck to install pump and test.$ 15,
1324W. Rialto Ave. SanBernardino,CA924l0 Phone: (909)384-1000 Fax: (909)384-1001
EXHIBIT A
Material
o 1 - New 60hp. Grundfos B" 460v.3 phase Submersible Motor
o 1 - New Grundfos model 4755660-6 Submersible Pump.
o 1- Motorshroud.
o 130'4/3 Submersible pump cable.
o 1 - Lot misc. banding, slice kit, gaskets, tape, etc.$ 17,1 19.00
EXHIBIT ttBoo
DnlrvnRv Scsnnuln
Deliver Well Pump, Motor and Appurtenances on or before October 28,2016
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