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Resolution No. 83561 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 RESOLUTION NO. 8356 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF AN EQUIPMENT PURCHASE CONTRACT BY AND BETWEEN THE CITY OF VERNON AND INSTRUMENT TRANSFORMER EQUIPMENT CORPORATION 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 eighteen (18) voltage transformers (referred to as the "Transformers") for the Malburg Project; and WHEREAS, Instrument Transformer Equipment Corporation ("ITEC") submitted a proposal dated December 11, 2003, that includes a description of the proposed Transformers; and WHEREAS, the City has determined that ITEC possesses the technical knowledge and expertise to furnish the Transformers required by the City; and WHEREAS, on January 27, 2004, the Finance Committee considered the recommendation of Bruce V. Malkenhorst, Director of Finance, dated January 8, 2004, to purchase the Transformers from ITEC to facilitate the construction and operation of the Malburg Project; land l- s 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 !i 16 17 18 19 20 21 22 23 24 25 26 27 28 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 ITEC. 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 Contract with Instrument Transformer Equipment Corporation, a copy of 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: Instrument Transformer Equipment Corporation Attn. John P. Cochran 2730 Cureton Moncure, NC 27559 - 2 - M 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 28th day of January, 2004. ATTEST: BRUCE V. MALKENHORST, City Clerk EONIS C. MALB G, 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. 8356, was duly adopted by the City Council of the City of Vernon at an adjourned regular meeting of the City Council duly held on Wednesday, January 28, 2004, and thereafter was duly signed by the Mayor of the City of Vernon. (SEAL) BRUCE V. MALKENHORST, City Clerk - 4 - EXHIBIT VA& 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 191 20 21 22 23 24 25 26 27 28 EQUIPMENT PURCHASE 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 v- day of January, 2004, in the City of Vernon, County of Los Angeles, California N BY AND BETWEEN AND RECITALS CITY OF VERNON (hereinafter referred to as "City") 4305 Santa Fe Avenue Vernon, CA 90058 INSTRUMENT TRANSFORMER EQUIPMENT CORPORATION (hereinafter referred to as "ITEC") 2730 Cureton Monroe, NC 28112 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 eighteen (18) voltage transformers for the Malburg Project (hereinafter referred to as the "Transformers"); and WHEREAS, ITEC has prepared a proposal dated on or about December 11, 2003, (the "Proposal"), a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference for the Transformers; and WHEREAS, the City desires to enter into an agreement with 052 P03 JON 28 1e4 16:13 1 ITEC to provide for the purchase and delivery of the Transformers; and 2 WHEREAS, ITEC represents that it is qualified and capable of 3 providing the Transformers described in Exhibit "A" that the City 4 requires and is willing to do so on the terms and conditions set forth 5 below. 6 NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS SET 7 FORTH HEREIN: 8 1• Purchase. 9 ITEC agrees to sell and deliver the Transformers set forth 10 and described in detail in the Proposal. It is understood and agreed 11 that in the event of a conflict between this Contract and the Proposal, 12 the terms of this Contract shall prevail. 13 2. Time of Performance. 14 The performance of ITEC as identified herein shall commence 15 upon the signing of this Contract and shall be completed by ITEC 16 pursuant to the terms of the Proposal, unless otherwise terminated or 17 extended. Delivery is expected to be completed no later than ten (10) 18 weeks from the issuance of City's purchase order. If delivery of the 19 Transformers is not completed within this time period, the City shall 20 have the option of canceling this Contract in order to proceed with the 21 purchase of the equipment from another vendor, if one can be located. 22 The delivery date may also be extended, at the City's sole discretion, 23 for an additional thirty (30) days, or such other time as the parties 24 may agree. 25 3. Price. 26 ITEC agrees to sell and deliver the Transformers described in 27 the Proposal in the total amount of Forty -Four Thousand Four Hundred 28 Fifteen Dollars ($44,415.00), excluding sales tax and shipping charges. 2 053 P01 JAN 28 '04 16:15 1 4. Payment Terms. 2 The City agrees to Pay ITEC one hundred percent (100a) of .the 3 total purchase price, net thirty (30) days after delivery and 4 acceptance of the Transformers by City FOE destination and City's 5 receipt of an invoice from ITEC. 6 S. Chan a and Extra Services. 7 The City reserves the right to make additions to or deletions 8 from the equipment purchased from ITEC. All such changes shall be 9 incorporated in written change orders executed by the City and ITEC 10 that shall specify the changes ordered and the adjustment of prices, 11 delivery schedules and warranties. Any equipment or services added to 12 this Contract, under this section, shall be executed under all 13 applicable conditions of this Contract. No claim for additional 14 compensation or extension of time shall be recognized unless contained 15 in a duly executed change order. 16 6. Cancellation/Default. 17 In the event -that ITEC commits a breach of a material 18 condition of this Contract, City shall notify ITEC in writing of said 19 breach and if ITEC has not cured or begun reasonable efforts to cure 20 after fifteen (15) days of receipt of said notice, and fails to 21 diligently pursue corrective action, then City shall have the right to 22 cancel this Contract for cause based on ITEC's default. ITEC shall be 23 responsible for any direct costs due to City's re -procurement of the 241 equivalent of the equipment cancelled from ITEC, 25 7. Confidential Information. 26 A. Access to Confidential Information. City may provide 27 ITEC, and/or its subcontractors with, or allow ITEC and/or its 28 1 subcontractor access to certain information not available to the public - 3 053 P02 JAN 28 °04 16:15 1 2 3 4 5 6 7 8 9 10 11 12 13 I 14 15 16 17 18' 19 20 21 22 23 24 25 26 27 28 Iconcerning, but not limited to City, or businesses located in City. The information may include, but is not limited to, company information, taxes, sales, value of assets, utility usage, or other such information. All such information shall be known as "Confidential Information" and may not be used to circumvent the responsibility of either party to this Contract. B. No Disclosure. Except as expressly permitted, ITEC, and/or its subcontractors, shall not disclose, permit the disclosure of, release, disseminate, or transfer, whether orally or by any other means, any part of such Confidential Information to any other person on entity, whether corporate, governmental, or individual, without the express prior written consent of an -authorized representative of City. ITEC, and/or its subcontractors, 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 ITEC and/or its subcontractors has performed all services to be performed pursuant to this Contract. ITEC hereby agrees that such Confidential Information and any documents provided may be used by ITEC, and/or its subcontractors, only as authorized by City. ITEC shall include a contract provision in its contract with subcontractors that bind the subcontractors to this non -disclosure requirement. ITEC shall take reasonable measures to avoid any disclosure of any such Confidential Information to any unauthorized person. C. Court Ordered Disclosure. ITEC 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. ITEC may only disclose Confidential Information required to be disclosed pursuant to court - 4 - 053 P03 JAN 28 '04 16:16 1 order or subpoena after legal counsel has exhausted any lawful and 2 timely appeal or challenge. 3 D. Remedies. In addition to any other remedies that it may 4 have at law or in equity, City shall be entitled to a temporary and 5 permanent injunction by a court of competent jurisdiction against any 6 breach or threatened breach of the Confidential Information provisions 7 of this Contract. ITEC.acknowledges that in case of such breach or 8 threatened breach of said provisions, City would have no adequate 9 remedy at law. 10 8. Warranties. 11 ITEC warrants title to the equipment purchased hereunder and 12 any part thereof to be free of any claim of any security interest, lien 13 or any encumbrance. ITEC also warrants that the equipment will be 14 delivered new and shall be free from defects in material and 15 workmanship for a period of one (1) year from the date of installation 16 or eighteen (18) months from the date of the City's acceptance of the 17 Transformers. All manufacturers' warranties, any warranties typically 18 provided by ITEC and any other warranties made applicable by law shall 19 apply to the City,s purchase of the Transformers. 20 9. Compliance with Laws. 21 ITEC shall strictly observe and comply with all applicable 22 federal, state, and local laws, ordinances and regulations governing 23 this sale, including but not limited to any permit or license 29 requirements of the United States Department of Commerce, as well as 25 any laws of the United States of America. 26 10. Governing Law. 27 The validity, interpretation and performance of this Contract 28 shall be controlled and construed under the laws of the State of 5 - 053 PO4 JAN 28 '04 16:16 1 to act on behalf of the City in any capacity whatsoever as an agent. 2 Except as provided for herein, ITEC shall have no authority, express or 3 implied, pursuant to this Contract to bind the City to any obligation 4 whatsoever. 5 C. Indemnification. 6 ITEC shall indemnify, defend, protect and hold the City and 7 its officers, agents and employees, free and harmless from and against 8 any and all claims, demands, losses, damages, liabilities, fines, 9 charges, penalties, orders, judgments and all costs and expenses 10 incurred in connection therewith, including reasonable attorney's fees 11 and costs of defense arising out of or attributable to the negligent or 12 wrongful acts of ITEC, or its subcontractors, employees or agents in 13 the performance of services under this Contract, except to the extent 14 arising from or caused by the sole negligence or willful misconduct of 15 the City, its officers, agents or employees. 16 D. Assignment and Subcontracting Prohibited. 17 No party to this Contract may assign or subcontract any right 18 or obligation pursuant to this Contract without the express written 19 consent of the other party. Any other attempted or purported 20 assignment of any right or obligation pursuant to this Contract shall 21 be void and of no effect. 221 E. Entire Aqreement. 23 This Contract constitutes the complete and final expression 24 of the agreement of the parties and is intended as a complete and 25 exclusive statement of the terms of their agreements and supersedes all 26 prior and contemporaneous offers, promises, representations, 27 negotiations, discussions, communications and agreements which may have 28 been made in connection with the subject matter hereof. All exhibits - 7 - 1 California. 2 11. Forum Selection. 3 Any action brought relating to this Contract shall be brought 4 and held exclusively in a State Court in the County of Los Angeles, 5 California. 6 12. Notices. 7 Notices to the parties, unless otherwise requested in 8 writing, shall be sent to: 9 City: CITY OF VERNON ATTN: BRUCE V. MALKENHORST 10 CITY ADMINISTRATOR 11 4305 SANTA FE AVENUE VERNON, CA 90058-0805 12 ITEC: INSTRUMENT TRANSFORMER EQUIPMENT CORPORATION 13 ATTN: PRESIDENT 2730 CURETON 14 Monroe, NC 28112 15 13. General Provisions. 16 17 A. Independent Contractor. 18 At all times during the term of this Contract, ITEC shall be 19 an independent contractor and shall not be an employee of the City. The 20 City shall have the right to control ITEC only insofar as the results 21 of ITEC services rendered pursuant to this Contract; however, the City 22 shall not have the right to control the means by which ITEC 23 accomplishes services rendered pursuant to the Contract except to the 24 extent that such services involve the use of City property or Confidential Information. 25 26 B. ITEC Not Agent. 27 Except as provided for herein or as the City may otherwise 28 specify in writing, ITEC shall have no authority, express or implied, - 6 - 053 P06 JAN 28 '04 16:17 1 are incorporated by reference. ITEC represents that in entering into 2 this Contract, it has not relied on. any previous representations or 3 understandings of any kind or nature. 4 F.. Partial Invalidity. 5 Wherever possible, each provision hereof will be interpreted 6 in such manner as to be effective and valid under applicable law, but 7 in case any one or more of the provisions contained herein will, for 8 any reason, be held to be invalid, illegal or unenforceable in any 9 respect, such provision will be ineffective to the extent, but only to 10 the extent, of such invalidity, illegality or unenforceability without 11 invalidating the remainder of such invalid, illegal or unenforceable 12 provision or provisions or any other provision hereof, unless such a 13 construction would be unreasonable or contrary to the intent of the 14 parties as expressed in this Contract. 15 G. Time of the Essence. 16 Time is of the essence in the performance of this Contract 17 and of each and every provision hereof. The waiver by the City of any 18 breach or breaches hereof shall not be deemed, nor shall the same 19 constitute, a waiver of any subsequent breach or breaches. 20 H. Risk of Loss. 21 Title and risk of loss or damage shall g pass to City and 22 delivery shall be deemed to be complete upon delivery FOB destination. 23 I. Attorneys' Fees. 24 In the event that it becomes necessary for either party to 25 this Contract to enforce any of the provisions of this Contract, the 26 parties agree that a court of competent jurisdiction may determine and 27 fix reasonable attorney's fees to be paid to the successful litigant. 28 - 8 - 053 PO? JAN 28 '04 16:18 1 J. Benefit of Agreement. 2 This Contract shall bind and benefit the parties hereto and 3 their heirs, successors, and permitted assigns. 4 K. Force Majeure. 5 Neither party shall be considered to be in default in any of 6 its obligations under this Contract when a failure of performance shall 7 be due to an uncontrollable force. The terms "uncontrollable force" 8 shall mean any cause beyond the control of the party affected, 9 including, but not restricted to, flood, earthquake, storm, fire, 10 lightening, epidemic, war, riot, civil disturbance or disobedience, 11 labor dispute, labor material shortage, sabotage, federal, state, or 12 municipal action, statute, ordinance, or regulation, embargoes or the 13 United States Government or any other government, which by exercise of 14 due diligence such party could not reasonably have been expected to 15 avoid and by exercise to due diligence has been unable to overcome. 16 Either party rendered unable to fulfill any of its obligations under 17 this Contract by reason of an uncontrollable force, shall give written 18 notice within five (5) business days of such fact to the other party 19 and shall exercise due diligence to remove such inability with all 20 reasonable dispatch. 21 L. Waiver. 22 Any waiver at any time by either party of its rights with 23 respect to a default under this Contract, or with respect to any other 24 matters arising in connection with this Contract, shall not be deemed a 25 waiver with respect to subsequent default or other matter. 26 M. Amendment. 27 All changes or modifications to this Contract shall be in a 28 writing stating that it is an amendment to this Contract and shall be 9 - 1 2 3 4 S 6 7 8' 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 053 P08 JAN 28 '04 16:18 signed by both parties or their duly authorized agents. This Contract shall not be modified through course of dealing, usage or trade. IN WITNESS WHEREOF, the parties have caused this Contract to i be executed by - and through their authorized, officers on the date, month and year first written above. ATTEST: BRUCE V. MALKENHORST, City Clerk APPROVED AS TO FORM: ERIC T. ERESCH, City Attorney CITY OF VERNON By: LEONIS C. MALBURG, Mayor INSTRUMENT TRANSFORMER EQUIPMENT CORPORATION By: BY Title: SEL��TA�Sr - 10 - EXHIBIT 053 P09 JAN 28 '04 16:19 Instrument Transformer 'Equipment Corporation P. O. BOX 23088. CHARLOTTE, NC 28227-027. 2 TEL 704 282 4331 FAX 704 283 3017 Date : December 11, 2003 Fwm : Jobn P.Cochran To : Ingalls Povier Products Tel: (310) 514 3522 Fax (310) 514 0992 Attn: : Fred Burkholder Ref : The City of Vernon Thank you for your inquiry. ITEC appreciates this opportunity to offer the following proposal. ITEC products are manufacittred and tested in accordance with IEEE CS7.13 standards. A more detailed description and outline drawings are in the catalog, pages Oil 5 and 6. Also, see our catalog on the internet - www.rrEC-CTVT.conl. Item Qty /6 1 .er Model Description Product LD. Unit Price VTO-SB-350 ITEC Voltage Transformer VA103500350S000 S2467.50 69 kV NSV, 350 kV BIL, 60 Hz Oil filled, single bushing, magnetic type Ratios 350/600 :1 Voltages primary 40250 volts L-G 115/67.08 secondary Accuracy 0.3 @ W,X, Y Z-ZZ Thermal Rating 6000VA Shipment &to 10 weeks ARO or Order mid January ship end of April or better. Shipping terms FOB Monroe, NC Factory, freight added to invoice. Payment terms Standard, net 30 days 78R�tg At09OOgyp2'!'70t+S UF3att 053 P10 JAN 28 '04 16:19 e t 44 Qiry ee tAo "M ad no ama.m to fn., � Were oC l6c order m 8clbrs ovro foaa. w .�.t b anew atdalslaod"1"0R ood�r wwm °W0►tioa6er�r.t�edr�Prt w4idraa�Ed�l�'r`��atxdaret hamsa�r'aaldleeotM «ac,�tan & riravbwernd -wr ly ttrprerbrearot b 1. 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It is understood and agreed 11 that in the event of a conflict between this Contract and the Proposal, 12 the terms of this Contract shall prevail. 13 2. Time of Performance. 14 The performance of ITEC as identified herein shall commence 151 upon the signing of this Contract and shall be completed by ITEC 16 pursuant to the terms of the Proposal, unless otherwise -terminated or 17 extended. Delivery is expected to be completed no later than ten (10) 18 weeks from the issuance of City's purchase order. If delivery of the 19 Transformers is not completed within this time period, the City shall 20 have the option of canceling this Contract in order to proceed with the 21 purchase of the equipment from another vendor, if one can be located. 22 The delivery date may also be extended, at the City's sole discretion, 23 for an additional thirty (30) days, or such other time as the parties 24 may agree. 25 3. Price. 26 ITEC agrees to sell and deliver the Transformers described in 27 the Proposal in the total amount of Forty -Four Thousand Four Hundred 28 Fifteen Dollars ($44,415.00), excluding sales tax and shipping charges. - 2 - AI I 1 4. Payment Terms. 2 The City agrees to pay ITEC one hundred percent (1000) of the 3 total purchase price, net thirty (30) days after delivery and 4 acceptance of the Transformers by City FOB destination and City's 5 receipt of an invoice from ITEC. 6 5. Change and Extra Services. 7 The City reserves the right to make additions to or deletions 8 from the equipment purchased from ITEC. All such changes shall be 9 incorporated in written change orders executed by the City and ITEC 10 that shall specify the changes ordered and the adjustment of prices, 11 delivery schedules and warranties. Any equipment or services added to 12 this Contract, under this section, shall be executed under all 13 applicable conditions of this Contract. No claim for additional 14 compensation or extension of time shall be recognized unless contained 15 in a duly executed change order. 16 6. Cancellation/Default. 17 In the event that ITEC commits a breach of a material 18 condition of this Contract, City shall notify ITEC in writing of said 19 breach and if ITEC has not cured or begun reasonable efforts to cure 20 after fifteen (15) days of receipt of said notice, and fails to 21 diligently pursue corrective action, then City shall have the right to 22 cancel this Contract for cause based on ITEC's default. ITEC shall be 23 responsible for' any direct costs due to City's re -procurement of the 24 equivalent of the equipment cancelled from ITEC. 25 7. Confidential Information. 26 A. Access to Confidential Information. City may provide 27 ITEC, and/or its subcontractors with, or allow ITEC and/or its 28 subcontractor access to certain information not available to the public - 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 concerning, but not limited to City, or businesses located in City. The information may include, but is not limited to, company information, taxes, sales, value of assets, utility usage, or other such information. All such information shall be known as "Confidential Information" and may not be used to circumvent the responsibility of either party to this Contract. B. No Disclosure. Except as expressly permitted, ITEC, and/or its subcontractors, shall not disclose, permit the disclosure of, release, disseminate, or transfer, whether orally or by 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. ITEC, and/or its subcontractors, 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 ITEC and/or its subcontractors has performed all services to be performed pursuant to this Contract. ITEC hereby agrees that such Confidential Information and any documents provided may be used by ITEC, and/or its subcontractors, only as authorized by City. ITEC shall include a contract provision in its contract with subcontractors that bind the subcontractors to this non -disclosure requirement. ITEC shall take reasonable measures to avoid any disclosure of any such Confidential Information to any unauthorized person. C. Court Ordered Disclosure. ITEC 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. ITEC may only disclose Confidential Information required to be disclosed pursuant to court - 4 - 1 order or subpoena after legal counsel has exhausted any lawful and 2 timely appeal or challenge. 3 D. Remedies. In addition to any other remedies that it may 4 have at law or in equity, City shall be entitled to a temporary and 5 permanent injunction by a court of competent jurisdiction against any 6 breach or threatened breach of the Confidential Information provisions 7 of this Contract. ITEC.acknowledges that in case of such breach or 8 threatened breach of said provisions, City would have no adequate 9 remedy at law. 10 8. Warranties. 11 ITEC warrants title to the equipment purchased hereunder and 12 any part thereof to be free of any claim of any security interest, lien 13 or any encumbrance. ITEC also warrants that the equipment will be 14 delivered new and shall be free from defects in material and 15 workmanship for a period of one (1) year from the date of installation 16 or eighteen (18) months from the date of the City's acceptance of the 17 Transformers. All manufacturers' warranties, any warranties typically 18 provided by ITEC and any other warranties made applicable by law.shall 191 apply to the City's purchase of the Transformers. 20 9. Compliance with Laws. 21 ITEC shall strictly observe and comply with all applicable 22 federal, state, and local laws, ordinances and regulations governing 23 this sale, including but not limited to any permit or license 24 requirements of the United States Department of Commerce, as well as 25 any laws of the United States of America. 26 10. Governing Law. 27 The validity, interpretation and performance of this Contract 28 shall be controlled and construed under the laws of the State of - 5 - 1 California. 2 11. Forum Selection. 3 Any action brought relating to this Contract shall be brought 4 and held exclusively in a State Court in the County of Los Angeles, 5 California. 6 12. Notices. 7 Notices to the parties, unless otherwise requested in 8 writing, shall be sent to: 9 City: CITY OF VERNON ATTN: BRUCE V. MALKENHORST 10 CITY ADMINISTRATOR 11 4305 SANTA FE AVENUE VERNON, CA 90058-0805 12 ITEC: INSTRUMENT TRANSFORMER EQUIPMENT CORPORATION 13 ATTN: PRESIDENT 2730 CURETON 14 Monroe, NC 28112 15 13. General Provisions. 16 A. Independent Contractor. 17 At all times during the term of this Contract, ITEC shall be 18 19an independent contractor and shall not be an employee of the City. The City shall have the right to control ITEC only insofar as the results 20 of ITEC services rendered pursuant to this Contract; however, the City 21 22 shall not have the right to control the means by which ITEC 23 accomplishes services rendered pursuant to the Contract except to the extent that such services involve the use of City property or 24 Confidential Information. 25 B. ITEC Not Agent. 26 Except as provided for herein or as the City may otherwise 27 28 specify in writing, ITEC shall have no authority, express or implied, - 6 - 1 1 to act on behalf of the City in any capacity whatsoever as an agent. 2 Except as provided for herein, ITEC shall have no authority, express or 3 implied, pursuant to this Contract to bind the City to any obligation 4 whatsoever. 5 C. Indemnification. 6 ITEC shall indemnify, defend, protect and hold the City and 7 its officers, agents and employees, free and harmless from and against 8 any and all claims, demands, losses, damages, liabilities, fines, 9 charges, penalties, orders, judgments and all costs and expenses 10 incurred in connection therewith, including reasonable attorney's fees 11 and costs of defense arising out of or attributable to the negligent or 12 wrongful acts of ITEC, or its subcontractors, employees or agents in 13 the performance of services under this Contract, except to the extent 14 arising from or caused by the sole negligence or willful misconduct of 15 the City, its officers, agents or employees. 16 D. Assignment and Subcontractinq Prohibited. 17 No party to this Contract may assign or subcontract any right 18 or obligation pursuant to this Contract without the express written 19 consent of the other party. Any other attempted or purported 20 assignment of any right or obligation pursuant to this Contract shall 21 be void and of no effect. 22 E. Entire A reement. 23 This Contract constitutes the complete and final expression 24 of the agreement of the parties and is intended as a complete and 25 exclusive statement of the terms of their agreements and supersedes all 26 prior and contemporaneous offers, promises, representations, 27 negotiations, discussions, communications and agreements which may have 28 been made in connection with the subject matter hereof. All exhibits - 7 - I are incorporated by reference. ITEC represents that in entering into 2 this Contract, it has not relied on any previous representations or 3 understandings of any kind or nature. 4 F•. Partial Invalidity. 5 Wherever possible, each provision hereof will be interpreted 6 in such manner as to be effective and valid under applicable law, but 71 in case any one or more of the provisions contained herein will, for 8 any reason, be held to be invalid, illegal or unenforceable in any 9 respect, such provision will be ineffective to the extent, but only to 10 the extent, of such invalidity, illegality or unenforceability without 11 invalidating the remainder of such invalid, illegal or unenforceable 12 provision or provisions or any other provision hereof, unless such a 13 construction would be unreasonable or contrary to the intent of the 14 parties as expressed in this Contract. 15 G. Time of the Essence. 16 Time is of the essence in the performance of this Contract 17 and of each and every provision hereof. The waiver by the City of any 18 breach or breaches hereof shall not be deemed, nor shall the same 19 constitute, a waiver of any subsequent breach or breaches. 20 H. Risk of Loss. 21 Title and risk of loss or damage shall pass to City and 22 delivery shall be deemed to be complete upon delivery FOB destination. 23 1. Attorneys' Fees. 24 In the event that it becomes necessary for either party to 25 this Contract to enforce any of the provisions of this Contract, the 26 parties agree that a court of competent jurisdiction may determine and 27 fix reasonable attorney's fees to be paid to the successful litigant. 28 - 8 - I J. Benefit of Agreement. 2 This Contract shall bind and benefit the parties hereto and 3 their heirs, successors, and permitted assigns. 4 K. force Ma'eure. 5 Neither party shall be considered to be in default in any of 6 its obligations under this Contract when a failure of performance shall 7 be due to an uncontrollable force. The terms "uncontrollable force" 8 shall mean any cause beyond the control of the party affected, 9 including, but not restricted to, flood, earthquake, storm, fire, 10 lightening, epidemic, war, riot, civil disturbance or disobedience, 11 labor dispute, labor material shortage, sabotage, federal, state, or 12 municipal action, statute, ordinance, or regulation, embargoes or the 13 United States Government or any other government, which by exercise of 14 due diligence such party could not reasonably have been expected to 15 avoid and by exercise to due diligence has been unable to overcome. 16 Either party rendered unable to fulfill any of its obligations under 17 this Contract by reason of an uncontrollable force, shall give written 18 notice within five (5) business days of such fact to the other party 19 and shall exercise due diligence to remove such inability with all 20 reasonable dispatch. 21 L. Waiver. 22 Any waiver at any time by either party of its rights with 23 respect to a default under this Contract, or with respect to any other 24 matters arising in connection with this Contract, shall not be deemed a 25 waiver with respect to subsequent default or other matter. 26 M. Amendment. 27 All changes or modifications to this Contract shall be in a 28 writing stating that it is an amendment to this Contract and shall be - 9 - 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 signed by both parties or their duly authorized agents. This Contract shall not be modified through course of dealing, usage or trade. 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: ATTEST: LEONIS C. MALBUR Mayor BRUCE V. MALKENHORST, City Clerk APPROVED AS TO FORM: ERIC T. FRESCH, Xitytorney INSTRUMENT TRANSFORMER EQUIPMENT CORPORATION By: Titl BY ,'�f iA�— Title: S ` - 10 - --•••••... -w—Ulgans YWr no oatr: 12/11/03 TRW 4:06:04 PM Instrument Transformer' Equipment Corporation P. O. BOX 23088; CHARLOTTE, NC 28227-0272 TEL 704 282 4331 FAX 704 283 3017 Date : December 11, 2003 From : John P.Cochran To : Ingalls Power Products Fred Burkholder Attn: Tel: (310.) 514 3522 Fax (310) 514 8992 : Ref : The City of Vernon Thank you for your inquiry. ITEC appreciates this opportunity to offer the following proposal. rMC products are manufactured and tested in accordance with IEEE C57.13 standards. A more detailed description and outline drawings are in the cat, internet - www.rrEC-CTVT.com. log, pages Oil 5 and 6. Also, see our catalog on the Item Qty 1 /8-� Model Description Product I.D. Unit Price VTO-SB-350 rrEC Voltage Transformer VA103500350S000 $2467.50 69 kV NSV, 350 kV BIL, 60 Hz Oil filled, single bushing, magnetic type Ratios 350/600 :1 Voltages primary 40250 volts L-G 115/67.08 secondary Accuracy 0.3 @ W,X,Y,Z-ZZ Thermal Rating 6000 VA Shipment : 8to 10 weeks ARO or Order mid January ship end of April or better. Shipping terms : FOB Monroe, NC Factory, freight added to invoice. 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