Resolution No. 8299e
r
1
2
3
4
672
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
RESOLUTION NO. 8299
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
AN EQUIPMENT PURCHASE AND PROFESSIONAL SERVICES
CONTRACT BY AND BETWEEN THE CITY OF VERNON AND SAFT
AMERICA INC. FOR THE MALBURG GENERATING STATION
PROJECT
WHEREAS, the City of Vernon ("City") is constructing a 134
MW Combined Cycle Power Plant, the Malburg Generating Station (the
"Malburg Project"), for the purpose of installing additional
generating capacity that will yield an efficient, cost-effective, and
reliable source of electric generation to the City's inhabitants; and
WHEREAS, on July 16, 2003, the City Council of the City of
Vernon adopted Resolution No. 8252 with the intention of expediting the
purchase of supplies and services for the Malburg Project; and
WHEREAS, the City has determined that it needs to purchase
two (2) 30 kVA Uninterruptible Power Supply systems together with the
necessary start-up and commissioning services for the systems (the "UPS
System") for the Malburg Project; and
WHEREAS, Saft America Inc. ("Saft") submitted a proposal
dated October 9, 2003, that includes a description of the proposed
labor and materials necessary for the UPS System; and
WHEREAS, the City has determined that Saft possesses the
technical knowledge and expertise to perform the necessary start-up and
commissioning services for the UPS System; and
WHEREAS, on October 14, 2003, the Finance Committee
considered the recommendation of Bruce V. Malkenhorst, Director of
Finance, dated October 1, 2003, to purchase equipment and services from
Saft for the UPS System to facilitate the construction and operation of
9 f 1
t
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the Malburg Project; and
WHEREAS, the City Council of the City of Vernon has
determined that, pursuant to the provisions of subsection (a) of
Section 2.27 of the Vernon City Code, it is in the public interest and
necessity to enter into a contract with Saft for the purchase of the
UPS System and setting forth the terms and conditions for the
performance of the start-up and commissioning services during
construction of the Malburg Project to enhance services provided to the
Vernon community.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the Equipment Purchase and Professional Services Contract
with Saft America Inc., a copy which is attached hereto as Exhibit "A"
and made a part hereof.
SECTION 3: The City Council of the City of Vernon hereby
authorizes the Mayor and the City Clerk to execute said Contract for,
and on behalf of, the City of Vernon.
SECTION 4: The City Council of the City of Vernon hereby
directs the City Clerk, or his designee, to send one fully executed
Contract to:
Saft Power Systems
c/o Saft America Inc.
Attn. David Reese, Inside Sales Manager -North America
643 Presidential Drive
Richardson, TX 75081
- 2 -
f 2 A
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
SECTION 5: The City Clerk of the City of Vernon shall
certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 15th day of October, 2003.
ATTEST:
—/<—, Z"-- -,'� -
BRUCE V. MALKENHORST, City Clerk
F EONIS C. MALB RG, Ma or
- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution No.
8299, was duly adopted by the City Council of the City of Vernon at a
regular meeting of the City Council duly held on Wednesday, October 15,
2003, and thereafter was duly signed by the Mayor of the City of
Vernon.
(SEAL)
BRUCE V. MALKENHORST, City Clerk
- 4 -
EXHIBIT
AM"
0
1
2
3
4
5
6
7
8
9
10
11
12
13'
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
EQUIPMENT PURCHASE AND PROFESSIONAL SERVICES CONTRACT
THIS CONTRACT is made, entered into and executed in
duplicate originals, either copy of which may be considered and used
as the original hereof for all purposes, as of this day of
, 2003, in the City of Vernon, County of Los Angeles,
California
BY AND BETWEEN
AND
RECITALS
THE CITY OF VERNON
(hereinafter referred to as
"City")
4305 Santa Fe Avenue
Vernon, CA 90058
SAFT AMERICA INC., a Delaware
Corporation
(hereinafter referred to as
"Saft")
643 Presidential Drive
Richardson, TX 75081
WHEREAS, City is constructing the Malburg Generating Station
Combined Cycle Power Plant at 2715 E. 50th Street in the City of
Vernon (the "Malburg Project") for purposes of installing additional
generating capacity that is capable of yielding cost effective,
efficient and reliable electricity to meet its goals, while meeting
Federal, State and local environmental and siting requirements; and
WHEREAS, the Malburg Project team has determined that it
needs to purchase two (2) 30 kVA Uninterruptible Power Supply systems
together with the necessary start-up and commissioning services for
the systems (hereinafter collectively referred to as the "UPS System")
for the Malburg Project; and
WHEREAS, in order to facilitate the UPS System, the Malburg
Project team requested proposals from qualified vendors to furnish the
I necessary labor and materials; and
2 WHEREAS, Saft prepared a Proposal (Quotation No. EDU-4279,
3 Revision 4) dated October 9, 2003, (hereinafter referred to as the
4 "Proposal"), a copy of which is attached hereto as Exhibit "A" and
5 made a part hereof, to provide the UPS System; and
6 WHEREAS, Saft represents that it is qualified and capable of
7 furnishing the labor, materials and expertise necessary to furnish the
8 equipment and perform the services that the City requires as set forth
9 in the Proposal and is willing to do so on the terms and conditions
10 set forth below; and
11 WHEREAS, the City desires to enter into an agreement with
12 Saft to provide for the labor and materials necessary for the UPS
13 System.
14 NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS SET
15 FORTH HEREIN:
16 1. Scope of Services.
17 Saft agrees to sell and deliver the necessary material and
18 equipment and perform the following start-up and commissioning
19 services for the UPS System: installation inspections, activation,
20 systems check, instruction to owners' operational personnel and
21 warranty validation, as set forth and described in detail in the
22 Proposal attached hereto as Exhibit "A." In the event of a conflict
23 between the Proposals and this Contract, the terms of this Contract
24 shall prevail.
25 2. Time of Performance.
26 Saft's performance as identified herein shall commence upon
27 the full execution of this Contract and shall be completed no later
28 than twelve (12) weeks from the issuance of the City's Purchase Order.
- 2 -
I If the UPS System is not completed within this time period, the City
2 shall have the option of canceling this Contract in order to proceed
3 with the purchase and installation of the equipment and services from
4 another vendor.
5 3. Testing.
6 Saft shall begin testing the UPS System promptly after the
7 system has been installed. City's acceptance of the UPS System shall
8 be contingent upon the City's verification of the test results. In
9 the event that the test results reveal that the UPS System does not
10 meet the City's preliminary specifications or the City identifies any
11 damage to the equipment, the City shall have the option of rejecting
12 the entire project, rejecting only the damaged equipment or accepting
13 the entire project. Saft shall be responsible for all costs that may
14 be incurred in connection with the rejection and/or replacement of
15 damaged equipment.
16 4. Price.
17 The total amount to be paid to Saft for the equipment and
18 services performed under the Proposal shall not exceed the sum of
19 Forty -Nine Thousand Eight Hundred Sixty -Four Dollars and No Cents
20 ($49,864.00), plus taxes and shipping and handling.
21 5. Payment Terms.
22 City agrees to pay Saft for the full amount due under the
23 Contract for the UPS System within thirty (30) days after City's
24 receipt, testing and acceptance of the UPS System and the City's
25 receipt of an invoice from Saft.
26 6. Change and Extra Services.
27 City reserves the right to request changes in the equipment
28 design, delivery dates, or additions to or deletions from the
- 3 -
I equipment purchased from Saft. All such changes shall be incorporated
2 in written change orders executed by City and Saft and shall specify
3 the changes ordered and the adjustment of prices, delivery schedules
4 and warranties. Any equipment or services added under this section
5 shall be executed under all applicable conditions of this Contract.
6 No claim for additional compensation or extension of time shall be
7 recognized unless contained in a duly executed change order.
8 7. Cancellation/Default.
9 In the event that Saft commits a breach of a material
10 condition of this Contract, City shall notify Saft in writing of said
11 breach and if Saft has not cured or begun reasonable efforts to cure
12 after fifteen (15) days of receipt of said notice, and fails to
13 diligently pursue corrective action, City shall have the right to
14 cancel this Contract for cause based on Saft's default. Saft shall be
15 responsible for any direct costs due to City's re -procurement of the
16 equivalent of the equipment or services cancelled from Saft.
17 8. Confidential Information.
18 A. Access to Confidential Information. City may
19 provide Saft and/omits subcontractor with, or allow Saft access to,
20 certain information not available to the public concerning City, or
21 businesses located in City. The information may include company
22 information, taxes, sales, value of assets, or other such information.
23 All such information shall be known as "Confidential Information"and
24 may not be used to circumvent the responsibility of either party to
25 this Contract.
26 B. No Disclosure. Except as expressly permitted,
27 Saft and/or its subcontractor shall not disclose, permit the
28 disclosure of, release, disseminate, or transfer, whether orally or by
- 4 -
1
2
3
4
5
6
7
8
9
10
11
12'I
13
141
151
16
17
18
19
201
211
22
23
24
25
Fill
271
281
any other means, any part of such Confidential Information to any
other person or entity, whether corporate, governmental, or
individual, without the express prior written consent of an authorized
representative of City. Saft and/or its subcontractor shall return any
written Confidential Information and all copies made of such items to
City upon City's written request, but in any event not later than the
date that Saft has performed all services to be performed pursuant to
this Contract. Saft hereby agrees that such Confidential Information
and any documents provided may be used by Saft and/or its
subcontractor only as authorized by the City. Saft shall include`a
contract provision in its contract with subcontractors that binds the
subcontractors to this non -disclosure requirement. Saft shall take
reasonable measures to avoid any disclosure of any such Confidential
Information to any unauthorized person.
C. Court Ordered Disclosure. Saft shall immediately
notify City of any court order or subpoena requiring disclosure of
Confidential Information, and shall cooperate with City's legal
counsel in responding to any such order or subpoena. Saft may only
disclose Confidential Information required to be disclosed pursuant to
court order or subpoena after legal counsel has exhausted any lawful
and timely appeal or challenge.
D. Remedies. In addition to any other remedies that
it may have at law or in equity, City shall be entitled to a temporary
and permanent injunction by a court of competent jurisdiction against
any breach or threatened breach of the Confidential Information
provisions of this Agreement. Saft acknowledges that in case of such
breach or threatened breach of said provisions, City would have no
adequate remedy at law.
- 5 -
1 9. Warranties. Saft warrants title to the equipment
2 purchased hereunder and any part thereof to be free of any claim of
3 any security interest, lien or any encumbrance. Saft also warrants
4 that the equipment will be delivered new and shall be free from
5 defects in material and workmanship for the warranty period of twelve
6 (12) months after being placed in operation or eighteen (18) months
7 after being received at the jobsite, whichever occurs first. Saft.
8 shall provide a one (1) year labor and material warranty to begin upon
9 City's acceptance of the UPS System. In addition, all manufacturers'
10 warranties, and any other warranties made applicable by law, shall
11 apply to City's purchase of the materials and labor provided by Saft.
12 10. Compliance with Laws. Saft shall strictly observe and
13 comply with all applicable federal, state, and local laws, ordinances
14 and regulations governing this sale, including but not limited to any
15 permit or license requirements of the United States Department of
16 Commerce, as well as any laws of the United States of America.
17 11. Governing Law. The validity, interpretation and
18 performance of this Contract shall be controlled and construed under
19 the laws of the State of California.
20 12. Forum Selection. Any action brought relating to this
21 Contract shall be brought and held exclusively in a State Court in the
22 County of Los Angeles, California.
23 13. Notices. Notices to the parties, unless otherwise
24 requested in writing, shall be sent to:
25
26
27
28
- 6 -
City: THE CITY OF VERNON
I ATTN: BRUCE V. MALKENHORST
2 CITY ADMINISTRATOR
4305 SANTA FE AVENUE
3 VERNON, CA 90058-0805
Saft: SAFT AMERICA INC.
4 ATTN: DAVID REESE, INSIDE SALES MANAGER
5 643 PRESIDENTIAL DRIVE
RICHARDSON, TX 75081
6
7 14. General Provisions.
8 A. Independent Contractor. At all times during the
9 term of this Contract, Saft shall be an independent contractor and
10 shall not be an employee of the City. The City shall have the right
11 to control Saft only insofar as the results of Saft's services
12 rendered pursuant to this Contract; however, the City shall not have
13 the right to control the means by which Saft accomplishes services
14 rendered pursuant to the Contract except to the extent that such
15 services involve the use of City property or Confidential Information.
16 B. Saft Not Agent. Except as the City may specify in
17 writing, Saft shall have no authority, express or implied, to act on
18 behalf of the City in any capacity whatsoever as an agent. Saft shall
19 have no authority, expressed or implied, pursuant to this Contract to
20 bind the City to any obligation whatsoever.
21 C. Indemnification. Saft shall indemnify, defend,
22 protect and hold the City and its officers, agents and employees, free
23 and harmless from and against any and all claims, demands, losses,
24 damages, liabilities, fines, charges, penalties, orders, judgments and
25 all costs and expenses incurred in connection therewith, including
26 reasonable attorney's fees and costs of defense arising out of or
27 attributable to the negligent or wrongful acts of Saft or its
28 subcontractors, employees or agents in the performance of services
- 7 -
I under this Contract, except to the extent arising from or caused by
2 the sole negligence or willful misconduct of the City, its officers,
3 agents or employees.
4 D. Insurance. Saft agrees to provide insurance in
5 the amounts and forms specified in Exhibit "B," which is attached
6 hereto and made a part hereof by reference. Comparable coverage shall
7 be provided for each subcontractor used in the performance of this
8 Contract. Saft shall submit to the City documentation indicating
9 compliance with these minimum requirements no less than one (1) day
10 prior to the beginning of performance under this Contract. Saft shall
11 not commence performance of its services under this Contract until the
12 above insurance has been obtained and proof of insurance has been
13 filed with and approved by the City.
14 E. Assignment Prohibited. No party to this Contract
15 may assign any right or obligation pursuant to this Contract except as
16 especially and specifically provided for in the Proposal or with the
17 express written consent of the other party. Any other attempted or
18 purported assignment of any right or obligation pursuant to this
19 Contract shall be void and of no effect.
20 F. Entire Agreement. This Contract constitutes the
21 complete and final expression of the agreement of the parties and is
22 intended as a complete and exclusive statement of the terms of their
23 agreement and supersedes all prior and contemporaneous offers,
24 promises, representations, negotiations, discussions, communications
25 and agreements which may have been made in connection with the subject
26 matter hereof. All exhibits are incorporated by reference. Saft
27 represents that in entering into this Contract it has not relied on
28 any previous representations or understandings of any kind or nature.
- 8 -
I G. Partial Invalidity. Wherever possible, each
2 provision hereof will be interpreted in such manner as to be effective
3 and valid under applicable law, but in case any one or more of the
4 provisions contained herein will, for any reason, be held to be
5 invalid, illegal or unenforceable in any respect, such provision will
6 be ineffective to the extent, but only to the extent of such
7 invalidity, illegality or unenforceability without invalidating the
8 remainder of such provision or provisions or any other provision
9 hereof, unless such a construction would be unreasonable or contrary
10 to the parties' intent as expressed in this Contract.
11 H. Risk of Loss. Risk of loss or damage shall pass
12 to the City upon installation and acceptance by the City.
13 I. Benefit of Agreement. This Contract shall bind
14 and benefit the parties hereto and their heirs, successors, and
15 permitted assigns.
16 J. Waiver. Any waiver at any time by either party of
17 its rights with respect to a default under this Contract, or with
18 respect to any other matters arising in connection with this Contract,
19 shall not be deemed a waiver with respect to subsequent default or
20 other matter.
21 K. Amendment. All changes or modifications to this
22 Contract shall be in writing stating that it is an amendment to this
23 Contract and shall be signed by both parties or their duly authorized
24 agents. This Contract shall not be modified through course of
25 dealing, usage or trade.
26 L. Force Majeure. Neither Party shall be considered
27 to be in default in any of its obligations under this Contract when a
28 failure of performance shall be due to an uncontrollable force. The
- 9 -
I term "uncontrollable force" shall mean any cause beyond the control of
2 the party affected, including, but not restricted to, flood,
3 earthquake, storm, fire, lightening, epidemic, war, riot, civil
4 disturbance or disobedience, labor dispute, labor material shortage,
5 sabotage, federal, state, or municipal action, statute, ordinance, or
6 regulation, embargoes of the United States Government or any other
7 government, which by exercise of due diligence such party could not
8 reasonably have been expected to avoid and by exercise of due
9 diligence has been unable to overcome. Either party rendered unable
10 to fulfill any of its obligations under this Agreement by reason of an
11 uncontrollable force, shall give written notice within five (5)
12 business days of such fact to the other party and shall exercise due
13 diligence to remove such inability with all reasonable dispatch.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 10 -
1
2
3
4
5
6
7'
8!
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IN WITNESS WHEREOF, the parties have caused this Contract to
be executed by and through their authorized officers on the date,
month and year first written above.
CITY OF VERNON
By:
LEONIS C. MALBURG, Mayor
ATTEST:
BRUCE V. MALKENHORST, City Clerk
APPROVED AS TO FORM:
EDUARDO OLIVO, City Attorney
By:
Title:
By:
Title.
SAFT AMERICA INC.
EXHIBIT
0
643 Presidential Drive
Richardson, TX 75081
M (972) 437-5093 A (972) 437-5094
Inside Sales Manager North America
'M (972) 437-5093 ext. 103
e-mail: david.reese caalcatel.com
b: City of Vernon, California Rep:
Curtis Kirkland
ckirkland(a)ci.vernon.ca.us
10-12 weeks
Factory
30 days
lnq•
Prepaid &
Net 30
ARO I
Toronto
I
Pfoj.
Added
I
Quotation is prepared based on our standard product.
Item Quantity
Description Unit Price
Total Price
1. 2
Protect 3.33 30kVA UPS System including Rectifier, $23,132.00
$46,264.00
Inverter, Integrated Static BP,
Rated power: 30kVA @ PF 0.8 lag
Rectifier input: 3x 480V/60Hz
Static bypass input: 3x 208 V + N/60Hz
Output voltage: 3x 208 V + N/60Hz
Dimensions: 30in W x 71.3in H x 33.3in D
Weight: 1543 lbs
UPS Battery: Mounted in matching cabinet
Rated Power: 30kVA for 60 minutes @ PF 0.8
Rated Voltage: 384VDC
Dimensions: 36in. W x 71 in. H x 29.5in. D
Weight: 3031 lbs.
4. Option
On -Site UPS Start -Up (per system)
$1,800.00
Includes installation inspections, activation of UPS, complete
Systems check of UPS, instruction to owners' operational
Personnel and warranty validation. Installation and start-up
Work is performed Monday through Friday, 8am to 5pm local
Time.
IV
643 Presidential Drive
Richardson, TX 75081
(972) 437-5093 8 (972) 437-5094
Clarifications/Exceptions:
1) Pricing is in USD
2) SAFT UPS conforms to UL 1778 standards
3) Price validity is 30 days from October 9, 2003
4) Commercial terms will be negotiated at time of award
If you have any questions, please contact David Reese at 972-437-5093 ext. 103.
We appreciate the opportunity to quote on your requirements and hope we are favored with an order.
Make Purchase Orders to: Saft Power Systems
C/o Saft America
643 Presidential Drive
Richardson, Texas 75081
Sincerely,
David Reese
Inside Sales Manager- North America
GENERAL TERMS AND CONDITIONS
In these Conditions:
2. DEFINITIONS
"AFFILIATE" shall mean any entity which controls, is controlled by or is under common control with
SAFT. "Control" shall mean the ability, directly or indirectly, to direct or cause the direction of the
activities, management and/or policies of the relevant entity and shall include, without limitation, the
holding, directly or indirectly, of more than 50 % of the capital or the voting power of the relevant
entity of SAFT, a company organized and existing under the laws of France, which is directly or
indirectly majority held by SAFT, irrespective of its geographical location.
If any AFFILIATE makes an OFFER PURCHASER and such Affiliate shall
separately negotiate the scope of work, the compensation, and other specifics, as appropriate.
"AGREEMENT" means the contract formed between SELLER and PURCHASER upon the acceptance
by SELLER of a PURCHASER's order
"OFFER" means an offer that includes a quotation for the ORDER PRICE for the purchase of
PRODUCTS by PURCHASER from SELLER which shall be kept opened for a specified period
When no specific period is mentioned, the OFFER will be
kept opened for a period of 30 calendar days starting from the date of issue.
"PRODUCTS" means the goods, materials or equipment and any part or component thereof and/or
any work or services performed by SELLER that form the subject matter of the AGREEMENT as
specified in the OFFER.
PURCHASE ORDER PRICE" or "ORDER PRICE" means the price payable by PURCHASER to
SELLER for the PRODUCTS under the AGREEMENT.
"PURCHASER" means the buyer of SELLER's PRODUCTS, being the addressee of the OFFER.
"SELLER" means the seller who is SAFT and who shall be more particularly identified in the OFFER.
The term "SAFT" shall be deemed to refer to a SAFT's AFFILIATE when an AFFILIATE makes an
OFFER. _ _ _--- — . . . --
"INTELLECTUAL PROPERTY RIGHT" includes a right in any of the following (wherever and
whenever arising and for the right's full term): any patent, TRADE MARK, design, design rights,
copyright, database right, topography rights, moral rights, know how, trade secret and other
confidential information, rights in the nature of any of the these items in any country, rights in the
nature of unfair competition rights and rights to sue for passing off or other similar Intellectual or
commercial right (in each case whether or not registered or registrable) and registrations of and
applications to register any of the these items.
"TRADE MARKS" means any trade name, trade or service mark applications or registered trade
names, trade or service marks, registered protected designations of origin and registered protected
geographic origins; re -filings, renewals or reissues of these rights; unregistered trade names, trade or
service marks, domain names, get-up and company names in each case with any and all associated
goodwill; and all rights or forms of protection of a similar or analogous nature to these rights,
including rights which protect goodwill
2. TERMS
SELLER shall not be bound by the terms of any order not subject to the OFFER
Pagc I sur 6CAMy Documents\SAFT Formsuerms and Conditions.doc
L.. to 003
All specifications, drawings and particulars of weights and dimensions submitted by SELLER with the
OFFER are approximate only. "-' - _ . ++ :- - .
uUzA_ELLER reserves the
right, at any time, to make any modifications related to technical improvements/data without an
increase in price or an alteration of the quality
3. PRICE — PAYMENT TERMS
SELLER's prices are based upon existing economic conditions and are subject to revision according to
the fluctuations In cost of their constituent elements. A revision price formula may be attached to the
OFFER. In addition, SELLER reserves the right by giving notice to PURCHASER at any time before
delivery to increase the ORDER PRICE to reflect any change in delivery date, quantity or specifications
for the PRODUCTS requested by PURCHASER or any delay caused by the instructions of PURCHASER.
shall be liable to pay all SELLER's charges In respect of carriage, freight, packaging and inPURCHASER
surance.
Where PRODUCTS are delivered at SELLER's premises they shall be delivered with standard packing
for rail or truck transportation.
The price is exclusive of any. applicable value added tax, which PURCHASER shall be additionally liable
to pay SELLER.
Unless otherwise specifically agreed in writing or in the OFFER, payment for each PRODUCT shall be
made in cash upon receipt of the Invoice by PURCHASER (the "Payment Due Date').
If PURCHASER fails to make any payment on the Payment Due Date, then without prejudice to any
other rights or remedy available to SELLER, SELLER shall be entitled to: (i) cancel the AGREEMENT or
suspend any further deliveries until payment is received, whether or not such deliveries are due under
the same AGREEMENT or other agreement; and (ii) charge PURCHASER Interest (both before and
after any judgement) on the amount unpaid: 1 1/2% on unpaid balance monthly.
4. INTELLECTUAL PROPERTY RIGHT
SELLER agrees, at its own expense and to the extent hereinafter stated, to defend and hold harmless
PURCHASER against any claim or suit based on an allegation that the use or sale of any PRODUCTS
provided hereunder by SELLER constitute an infringement of any INTELLECTUAL PROPERTY RIGHTS
of any third party (each an "Intellectual Property Claim'), provided that SELLER shall have exclusive
authority to answer each Intellectual Property Claim and exclusive control over the defense of the
same, including any settlement or resolution thereof.
In case said PRODUCTS are in such suit held to constitute an infringement and the use of said
PRODUCTS is enjoined, SELLER shall, at its own costs and at its option, either acquire a right for
PURCHASER to use such PRODUCTS, or modify the PRODUCTS or infringing parts thereof so that the
same becomes non -infringing, provided that such modification or replacement shall not impair the
operation and performance of such Product, or replace the PRODUCTS or infringing parts thereof so
with PRODUCTS of identical capability and performance, or remove said PRODUCTS and refund the
PURCHASE PRICE.
Page 2 sur 6CAMy DocumentslSAFT FormAterms and Conditions.doc
10004
PURCHASER (a) shall promptly notify SELLER of any Intellectual Property Claim and (b) shall give
SELLER such assistance and information as is available to PURCHASER and requested by SELLER for
the defense of such Intellectual Property Claim, and (c) shall not by any act (including any admission
or acknowledgement or omission) prejudice such defense, unless act was required by law. Any such
assistance or information which is provided by PURCHASER will be at SELLER's expense.
The indemnification contained in this Article 5 shall not apply to any PRODUCTS specified by
PURCHASER or manufactured to PURCHASER's design, nor shall it apply to systems or combinations in
which PURCHASER incorporates PRODUCTS supplied hereunder. As to such equipment, combinations
or systems SELLER assumes no liability whatsoever for patent infringement.
The foregoing states the entire liability of SELLER for patent infringement and such liability shall in no
event exceed the PURCHASE PRICE of the PRODUCTS supplied hereunder. The liability shall exclude
any loss of profit, loss of use and any damages of a consequential, incidental or indirect nature.
Unless otherwise specifically agreed in writing, design and project costs will be invoiced to
PURCHASER. — - - -- �t;, a_. ---
All such proprietary material and data shall at all times be treated by PURCHASER as strictly
confidential and shall not without SELLER's prior consent be used by PURCHASER except for purposes
of (i) adjudicating the tender, (Ii) the contract (if any) placed with SELLER and (III) the operation of
the PRODUCTS supplied thereunder, nor shall they without SELLER's prior written consent be
communicated to third parties save insofar as may be necessary for the permitted purposes.
SELLER agrees, with respect to all information and property, Including but not limited to equipment,
manufacturing tooling and devices, supplied by PURCHASER under ORDER or contract agreed upon:
that title to such information and property shall remain in PURCHASER.
to assume risk of loss or damage, reasonable wear and tear excepted, to such information and
property while in SELLER's possession or control
except as may otherwise be provided in the ORDER and/or contract to return such information and
property to PURCHASER upon completion of the PRODUCTS or termination of the contract agreed
upon.
S. TRADE MARKS
PURCHASER shall not in selling its products or in promoting the sale of its products make any
reference to or use SELLER's TRADEMARKS except with the previous written consent of SELLER.
Subject to such consent being given, SELLER hereby grants to PURCHASER a non-exclusive license for
the term set out in the written consent to use SELLER's Trade Marks for the purposes of reselling or
promoting the resale of the PRODUCTS, provided that PURCHASER acknowledges and agrees that:
- ownership of SELLER's TRADE MARKS and the goodwill connected with and symbolized by
SELLER's TRADE MARKS shall remain the property of SELLER and that use by PURCHASER Is use
on behalf of SELLER;
- the goodwill in SELLER's TRADE MARKS derived by reason of PURCHASER's use of SELLER's
TRADE MARKS or being connected in the course of trade with SELLER (whether arising at
common law or otherwise) shall accrue to SELLER and PURCHASER shall (before or after
termination of the AGREEMENT and this license) at the request of SELLER execute an assignment
of such goodwill In such terms as are reasonably requested by SELLER with all rights of action
then accrued to SELLER without payment; and
- it shall (before or after termination of the AGREEMENT or this license) at the request of SELLER
give SELLER all help, assistance and information reasonably requested to enable SELLER to
become or maintain itself as the registered owner of SELLER's TRADE MARKS, where applicable,
for any goods or services in any part of the world.
PURCHASER shall not make any representation or do any act which may be taken to indicate that it
has any right, title or interest in or to the ownership or use of any of SELLER's TRADE MARKS except
under the terms of these Conditions.
Page 3 sur 6CAMy DocumentsNSAFT Fomts\temts and Conditions-doc
VJ 005
6. VARIATION
SELLER is under no obligation to make any specification changes, modifications or other alterations to
the PRODUCTS prior to delivery but may, in its sole discretion, either reject or accept to carry out any
specification changes, modifications or other alterations to the PRODUCTS proposed by PURCHASER
prior to delivery provided always that any resultant increase to the ORDER PRICE and/or to the time
required for performance of the AGREEMENT shall be accepted and borne by the PURCHASER.
7. DELIVERY -ORDER )'LIigchQS cew S
_T►Xsfer of Property and Risk: Delivery takes place when PRODUCTS are made available at WNW
premises. ' - - -- --
own
Risks of all kinds incurred by or on the occasion of PRODUCTS will be borne by PURCHASER as soon
as delivery occurs.
Title of property to the PRODUCTS will pass to PURCHASER upon full payment to SELLER of the
ORDER PRICE. Risks of loss or damage In each PRODUCT will pass from SELLER to PURCHASER upon
delivery of such PRODUCT according to the applicable Incoterm. PURCHASER shall then take all
necessary insurance to cover these risks. PURCHASER shall not resale or transform the PRODUCTS
sold as long as he has not realized their complete payment.
- - — " --' --' '— U 1�- f-%%JMF-EZJ9E:1M I prior to scneauled delivery date with the
PRODUCTS that are the subject of such ORDER, PURCHASER will berequ required to pay toSELLL R aect ll the
amounts incurred by SELLER up to the termination date.
Cancellation of ha ORDER by i i FR: Any ORDER may be automatically cancelled, the property of
the PRODUCTS being immediately recovered by SELLER (i) when failure to pay due invoices by the
Payment Due Date is not cured by PURCHASER within 48 hours or any longer period agreed by
SELLER, after receipt of a formal notice from SELLER to cure such breach, or (h) in case PURCHASER
becomes insolvent or bankrupted.
Manufacturing Toolino: Unless otherwise agreed in writing between SELLER and PURCHASER the
costs of specific tooling manufactured at SELLER's expense and/or products specifically purchased by
SELLER for the purpose of performing its obligations under the ORDER shall be reimbursed by
PURCHASER at the date of cancellation of the ORDER and the tooling and products above referred to
shall be returned to PURCHASER at PURCHASER'S risk and expense.
S. FORCE MAIEURE - HARDSHIP
"Force Majeure" shall mean any event existing or future, which is beyond the reasonable control of
PURCHASER or SELLER and, which could not be foreseen or which, though foreseen, was inevitable
even after PURCHASER or the SELLER having taken all reasonable steps in order to prevent it. Such
events shall include, without limitation, war, hostilities (whether declared or not), invasion, civil war,
riots, nuclear risks, equipment accident, serious suppliers failings, stoppage or delays in transport or
any other reason leading to partial, or full unemployment of SELLER or of his suppliers, strike or any
such operation of the forces of nature as SELLER could not foresee or reasonably provide against.
As soon as and when possible, SELLER will keep PURCHASER informed of all cases and events that
may lead to a delivery delay. Should either party be prevented, in whole or in part, from keeping or
performing its obligations by reason of Force Majeure, then such party shall be excused during the
time and to the extent that the keeping or performance of such obligation is prevented.
Should the occurrence of events not contemplated by the parties fundamentally alter the equilibrium
of the AGREEMENT, placing an excessive burden on one of the parties in the performance of its
contractual obligations, that parry shall be entitled to request a revision of the AGREEMENT. Such
Page 4 sur 6CAMy Docunrents\SAFT Fonns\terms and Conditions.doc
.�.. ivncic 41]006
request shall be made to the other party within a reasonable time from the moment the requesting
party becomes aware of the event and of Its effect on the AGREEMENT. The request shall indicate the
grounds for revision. Failing such communication, the interested party shall be barred from making
any request under this clause.
9. INSPECTION & TESTS
Tests on the PRODUCTS ("TESTS'l are to be performed by SELLER at its premises. The scope of
those TESTS is the scope predefined by SELLER for the application to which the PRODUCTS have
been designed.
If PURCHASER requires TESTS other than those TESTS specified in the OFFER, or if PURCHASER
requires that the specified TESTS be carried out in the presence of PURCHASER or Its agents,
PURCHASER shall pay for the cost of those TESTS, unless stated otherwise in writing by SELLER.
SELLER shall give PURCHASER such advance notice as is reasonably necessary to allow PURCHASER
to witness the TESTS. PURCHASER shall be solely responsible for any costs incurred by PURCHASER
employees in inspecting the work or witnessing the TESTS under this Article 9. TESTS shall be
performed in the presence of PURCHASER at the date stipulated on the face of the SELLER's notice.
Should PURCHASER decide not to attend the TESTS, TESTS shall be deemed to have been successful
and made in the presence of PURCHASER. No claim whatsoever relating to the conduct and results of
the TESTS will be accepted after the PRODUCTS' delivery.
10. PACKING AND TRANSPORT
SELLER shall use commercially reasonable practices for packing and packaging the PRODUCTS to be
delivered, using SELLER' standard packaging materials which meet industry standard packaging
requirements. Unless otherwise specified on the face of the OFFER, charges for the packing and
packaging of the PRODUCTS are included In the OFFER.
Any additional or special packing and packaging realized according to PURCHASER's special
Instructions as well as transportation means other than Truck or Rail which may be requested by
PURCHASER, will be effected in the best possible conditions by SELLER on behalf of PURCHASER and
at the latter's expense and risk.
Packing is not returnable to SELLER. A deposit for packing to be invoiced at the same time as the
PRODUCTS may however be stipulated. It is PURCHASER's responsibility to make at his expense any
declaration of the value or any declaration of special interest for delivery to the carrier and/or to take
out an Insurance policy in case of loss or damage during the transport. If PURCHASER asks SELLER In
writing to do what is necessary to fulfil the above mentioned, SELLER will proceed at PURCHASER's
expense.
It is recalled that in case of damage or partial loss duly established upon arrival, PURCHASER shall
make all complaints to the carrier within the time period laid down, and shall take all the necessary
measures to safeguard his rights.
11. INSTALLATION
Unless otherwise stipulated, the setting up and the local assembly of the PRODUCTS after delivery are
carried out by PURCHASER under his own responsibility and at its own expense. If SELLER shall be
required to install the PRODUCTS supplied hereunder at the premises specified by PURCHASER,
SELLER shall be under no liability whatsoever for damage to the property of PURCHASER caused by
the negligence of SELLER or its agents or sub -contractors in installing the PRODUCTS, or for any
indirect or purely financial loss howsoever caused.
12. WARRANTY - LIABILITY
The warranty is limited to a period of one-year starting from the delivery date of the PRODUCTS (the
"Warranty Period'). The warranty covers only defects that have appeared during this one-year period
with no possibility of extension, if during such period of time SELLER has already taken any action in
Page 5 sur 6C:\My DocumentASAFT Fomisuerms and Conditions.doc
application of the present paragraph. This warranty ceases to exist if PURCHASER modifies the
PRODUCTS supplied or has any repairs or resetting done by a third party, unless SELLER has fully
agreed to them in writing.
Except where otherwise stipulated, SELLER warrants the PRODUCTS against any defect in design,
material, manufacture and construction.
The above mentioned warranty is strictly limited to the replacement or repair of admitted faulty parts.
The cost of labor required to remove or reinstall the material provided, travelling, hotel, insurance and
other incidental expenses of the staff commissioned to do the replacement shall be borne by
PURCHASER.
The cost of transport of the parts necessitating an intervention under the warranty shall be bome and
paid by PURCHASER.
This warranty does not cover: defects resulting from materials provided by PURCHASER or from
designs required by PURCHASER; incidents related to fortuitous events, force majeure or any other
reason which SELLER could not reasonably foresee or prevent; repairs or resetting required by the
normal wear and tear of the PRODUCTS; damage and accidents for which PURCHASER is liable such
as those resulting from negligence, misconnection, non observance of maintenance or operating
instructions; abnormal use through inter alia overloading or overcharging. Furthermore, this warranty
does not cover parts, even brand new, used for repairing worn supplies.
In order to benefit from SELLER's warranty, PURCHASER must immediately and before expiry of the
Warranty Period inform SELLER by means of a registered letter of the defects that PURCHASER
believes due to the PRODUCTS themselves and bring sufficient evidence to this effect. PURCHASER
must give SELLER the necessary help and assistance to establish the existence of the defects and to
intervene as warranty allows.
Replacement or repair work required by the warranty will be done at SELLER's option. As quickly as
possible and at his own expense, for the completion of these works, SELLER shall have to take care of
PRODUCTS. While the work is being done, SELLER may alter
any preliminary and accessory operations required prior to the repair or replacement of the
deems this necessary. Parts replaced free of charge become ththe characteristics of the PRODUCT if it
e property of PURCHASER.
SELLER shall not be liable to PURCHASER for any consequential or indirect damages limited to loss of profit. inducing, but not
Replaced spares will be covered by a one-year warranty period starting from date of delivery.
13. RECYCLING OF SELLER'S Ni-Cd PRODUCTS
SELLER commits to recycle at the end of their life Nickel Cadmium batteries delivered under the
AGREEMENT.. The spent Nickel Cadmium batteries shall be delivered by PURCHASER at their expense
to a national collection point approved by SELLER in order to assure proper recycling. Cost of recycling
will be at SELLER's expense.
14. INDEMNITIES & LIQUIDATED DAMAGES
Except in the case of failure of SELLER to comply with any of its commitments, PURCHASER cannot
claim any kind of indemnity whatsoever, in case of acddents to Individuals, damage to property not
related to the AGREEMENT. SELLER shall not be liable to PURCHASER in contract, in tort or otherwise
for any special, incidental, indirect or consequential damages of any nature arising out at any time or
from any cause relating in any way to the AGREEMENT, including but not limited to loss of profit or
revenue, business opportunity or anticipated saving.
isvicTlON AND CHOICE OF LAW
These GREEMENT shall be governed by, and shall be cony" with the laws of the coup SELLER (either SAFT or the yj ordance
Any disagreement or dispute which ma issued the OFFER).
of the AGREEMENT and which the parties are u eCtIO nterprement and performance
upon simple request in writing by the utual agreement, will g submitted
settlement and arbitration o Party for arbi uant to the regulations on
a 'oval Chamber of Commerce by one (1) or three
(3) arbitrators appo' er such Rules. The place of arbitration shall be the cap country
of incorpo LLER (either SAFT or the Affiliate that issued the OFFER). The awa
aibi all be conclusive and binding on the parties.
END
Page 6 stir 6CAMy Documents\SAFT FormsUerms and Conditions.doc
EXHIBIT
1000
EXHIBIT B
2 INSURANCE SCHEDULE
3 Saft shall provide proof of insurance, including a standard certificate of insurance, in at least the
following amounts and coverage (combined single limit permitted):
4
I• Coverage and Limits
5 Bodilyjury Property Damage
6 Hazards Each Person Each Accident Each Accident
7 Automobile Liability
Owned Automobiles $ 500,000 $1,000,000 $ 500,000
8 Hired Automobiles $ 500,000 $1,000,000 $ 500,000
Non -Owned Automobiles $ 500,000 $1,000,000 $ 500,000
9 Workers' Compensation $ Statutory
10 Employers' Liability $1,000,000 per employer
11 11. Liability
12 General Liability $1,000,000 $2,000,000 $1,000,000
13 Premises Operations $1,000,000 $2,000,000 $1,000,000
Elevators (if applicable) $1,000,000 $2,000,000 $1,000,000
14 Independent Contractors $1,000,000 $2,000,000 $1,000,000
Products - Completed Operations $1,000,000 $2,000,000 $1,000,000
15 Contractual Liability $1,000,000 $2,000,000 $1,000,000
16 Umbrella Liability $2,000,000 $2,000,000 $2,000,000
17 a. The general liability policy shall contain the following special endorsements which shall be noted on
or attached to the standard certificate of insurance:
18
1. An endorsement naming the City of Vernon, its officers, and employees as additional insureds
19 under the policy.
2. An endorsement providing the City of Vernon thirty (30) days notice of cancellation or material
20 reduction of coverage.
21 3. An endorsement providing coverage for all operations under this Contract.
4. Such other endorsement as may be required by addendum hereto.
22
b. In addition to the standard certificate of insurance, proof of liability coverage shall be furnished in the
23 form checked below. Only certification of the following proofs will be accepted:
24
X For each policy, a notarized letter from the underwriter or carrier certifying that the coverage and
25 statements in the standard certificate of insurance (attached thereto) are true and correct and that
26 the signator is an officer authorized to so certify.
27 — A copy of each policy certified by an officer of the underwriter or carrier and notarized.
28
EXHIBIT "B"
SUPPORTING
DOCUMENTS
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro —Ter
WM. "BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL MCCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator/City Clerk
FAX (323) 826-1438
Finance Committee
City of Vernon
Honorable Members:
EDUARDO OLIVO
City Attorney
FAX: (562) 869-1883
rC KEVIN WILSON
Director of Community Services & Water
FAX: (323) 826-1435
CITY HALL
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058
TELEPHONE (323) 583-8811
October 1, 2003
KENNETH J. DeDARIO
Director of Light & Power
FAX: (323) 826-1425
STEVEN E. PARKER
Fire Chief
FAX: (323) 826-1407
BRUCE W. OLSON
Police Chief
FAX: (323) 826-1481
b 0/
It is hereby recommended that authorization be granted to obtain
services and equipment for the Malburg Generating Station (MGS)
Project from the following vendors:
ram, �c7`
`.• Saft Power Systems - for the purchase of two (2) 30 KVA 0
'` -- '__Uninterruptible Power Supply (UPS) systems including the!Q�f'
start-up and commissioning services for a sum not to
exceed $43;:796 (plus tax and shipping charges) .
*4R, IY64
• Hampton Tedder Electric Co, Inc. - for the purchase and
�°�
installation of metal enclosed capacitor banks and
auxiliaryequipment to ether with engineering, design and).'`
g�7
testing services for the installation of three (3) 7.2 kV,�``,
Capacitor Banks for a sum not to exceed $313,530 (plus
tax) .
This has been reviewed by the Finance Administrator and it is hereby
recommended that approval be granted to obtain the services and
equipment from the selected vendors at the stated amounts and
equipment purchase agreements be prepared and executed.
Very truly yours,
v
Bruce V. Malkenhorst
Director of Finance
BVM/ng
M
A
October 14, 2003
Mr. Bruce V. Malkenhorst
City Administrator
City Of Vernon
4305 Santa Fe Avenue
Vernon, California 90058
i
h
Re: Malburg Generating Station Project: Saft Power Systems
Purchase
Dear Bruce:
This is to supplement the October 1, 2003 letter of Mr.
Fresch respecting the purchase of two 30 kVA Uninterruptible
Power Supply systems together with start-up and commissioning
services from Saft America Inc., c/o Saft Power Systems, for
a not to exceed sum of $43,790 plus tax and shipping charges.
It is necessary to increase the static bypass input and
output voltage of the UPS system, thereby increasing the cost
of each system by $3,037. Therefore, I request authorization
to purchase the equipment and services from Saft for a total
not to exceed amount of $49,864.00 plus tax and shipping
charges. A copy of the revised proposal is attached.
Sincerely
Manuel Garcia
Assistant Director of Resource Management
Enclosure
cc: Eduardo Olivo, City Attorney
Eric Fresch, Finance Administrator
2715 East 50th Street, Vernon, CA 90058
catyofvernon.org
323.583.8811