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Resolution No. 83581 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 r RESOLUTION NO. 8358 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 SOUTHERN STATES, 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 sixteen (16) Cole switches with a swing handle operator and 33" tall polymer insulators (collectively referred to as the ""Disconnect Switches") for the Malburg Project; and WHEREAS, Southern States, Inc. ("Southern States") submitted a proposal dated December 23, 2003, that includes a description of the proposed Disconnect Switches; and WHEREAS, the City has determined that Southern States possesses the technical knowledge and expertise to furnish the Disconnect Switches 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 Disconnect Switches from Southern States to facilitate the construction and operation of i 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 Southern States. 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 Southern States, Inc., 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: Southern States, Inc. Attn. Sherry Jones 30 Georgia Avenue Hampton, GA 30228 e/e - 2 - L } 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. MALBUI, MayotF - 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. 8358, 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 0 1 2 3 4 5 6 7 8' 9I 10 11 12 13 14 15 16 17 18 19 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 day of January, 2004, in the City of Vernon, County of Los Angeles, California BY AND BETWEEN CITY OF VERNON (hereinafter referred to as "City") 4305 Santa Fe Avenue Vernon, CA 90058 AND SOUTHERN STATES, INC. (hereinafter referred to as "Southern States") 30 Georgia Avenue Hampton, GA 30228 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 sixteen (16) L-691200 69 kV, 1200 AMP, 61 kA momentary, three pole group operated copper Cole switches with a swing handle operator and 33" tall polymer insulators for the Malburg Project (hereinafter referred to as the "Disconnect Switches"); and WHEREAS, Southern States has prepared a proposal dated on or about December 23, 2003, (the "Proposal"), a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference for the 1 Disconnect Switches; and 2 WHEREAS, the City desires to enter into an agreement with 3 Southern States to provide for the purchase and delivery of the 4 Disconnect Switches; and 5 WHEREAS, Southern States represents that it is qualified and 6 capable of providing the Disconnect Switches described in Exhibit "A" 7 that the City requires and is willing to do so on the terms and 8 conditions set forth below. 9 NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS SET 10 FORTH HEREIN: 11 1. Purchase. 12 Southern States agrees to sell and deliver the Disconnect 13 Switches set forth and described in detail in the Proposal. It is 14 understood and agreed that in the event of a conflict between this 15 Contract and the Proposal, the terms of this Contract shall prevail. 16 2. Time of Performance. 17 The performance of Southern States as identified herein shall 18 commence upon the signing of this Contract and shall be completed by 19 Southern States pursuant to the terms of the Proposal, unless otherwise 20 terminated or extended. Drawings are to be submitted approximately six 21 (6) to eight (8) weeks after Southern States receives a purchase order 22 and mounting information. Delivery of the Disconnect Switches is 23 expected to be completed no later than twelve (12) weeks after Southern 24 States receives a purchase order and mounting information. If delivery 25 of the Disconnect Switches is not completed within this time period, 26 the City shall have the option of canceling this Contract in order to 27 proceed with the purchase of the equipment from another vendor, if one 28 can be located. The delivery date may also be extended, at the City's - 2 - 1 sole discretion, for an additional thirty (30) days, or such other time 2 as the parties may agree. 3 3. Price. 4 Southern States agrees to sell and deliver the Disconnect 5 Switches described in the Proposal in the total amount of One Hundred 6 Seven Thousand Four Hundred Forty Dollars ($107,440.00), excluding 7 sales tax and shipping charges. 8 4. Payment Terms. 9 The City agrees to pay Southern States one hundred percent 10 (1000) of the total purchase price, net thirty (30) days after delivery 11 and acceptance of the Disconnect Switches by City FOB destination and 12 City's receipt of an invoice from Southern States. 13 5. Change and Extra Services. 14 The City reserves the right to make additions to or deletions 15 from the equipment purchased from Southern States. All such changes 16 shall be incorporated in written change orders executed by the City and 17 Southern States that shall specify the changes ordered and the 18 adjustment of prices, delivery schedules and warranties. Any equipment 19 added to this Contract, under this section, shall be executed under all 20 applicable conditions of this Contract. No claim for additional 21 compensation or extension of time shall be recognized unless contained 22 in a duly executed change order. 23 6. Cancellation/Default. 24 In the event that Southern States commits a breach of a 25 material condition of this Contract, City shall notify Southern States 26 in writing of said breach and if Southern States has not cured or begun 27 reasonable efforts to cure after fifteen (15) days of receipt of said 28 notice, and fails to diligently pursue corrective action, then City - 3 - 1 shall have the right to cancel this Contract for cause based on 2 Southern States' default. Southern States shall be responsible for any 3 direct costs due to City's re -procurement of the equivalent of the 4 equipment cancelled from Southern States. 5 7. Confidential Information. 6 A. Access to Confidential Information. City may provide 7 Southern States, and/or its subcontractors with, or allow Southern 8 States and/or its subcontractor access to certain information not 9 available to the public concerning, but not limited to City, or 10 businesses located in City. The information may include, but is not 11 limited to, company information, taxes, sales, value of assets, utility 12 usage, or other such information. All such information shall be known 13 as "Confidential Information" and may not be used to circumvent the 14 responsibility of either party to this Contract. 15 B. No Disclosure. Except as expressly permitted, Southern 16 States, and/or its subcontractors, shall not disclose, permit the 17 disclosure of, release, disseminate, or transfer, whether orally or by 18 any other means, any part of such Confidential Information to any other 19 person or entity, whether corporate, governmental, or individual, 20 without the express prior written consent of an authorized 21 representative of City. Southern States, and/or its subcontractors, 22 shall return any written Confidential Information, and all copies made 23 of such items, to City upon City's written request, but in any event 24 not later than the date that Southern States and/or its subcontractors 25 has performed all services to be performed pursuant to this Contract. 26 Southern States hereby agrees that such Confidential Information and 27 any documents provided may be used by Southern States, and/or its 28 subcontractors, only as authorized by City. Southern States shall - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15I 16 17 18 19 20 21 22 23 24 25 26 27 28 include a contract provision in its contract with subcontractors that bind the subcontractors to this non -disclosure requirement. Southern States shall take reasonable measures to avoid any disclosure of any such Confidential Information to any unauthorized person. C. Court Ordered Disclosure. Southern States 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. Southern States 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 Contract. Southern States acknowledges that in case of such breach or threatened breach of said provisions, City would have no adequate remedy at law. 8. Warranties. Southern States warrants title to the equipment purchased hereunder and any part thereof to be free of any claim of any security interest, lien or any encumbrance. Southern States also warrants that the equipment will be delivered new and shall be free from defects in material and workmanship for a period of five (5) year from the date of the City's acceptance of the Disconnect Switches. All manufacturers' warranties, any warranties typically provided by Southern States and any other warranties made applicable by law shall apply to the City's purchase of the Disconnect Switches. - 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 171' 18 19 20 21 22 23 24 25 26 27 28 9. Compliance with Laws. Southern States shall strictly observe and comply with all applicable federal, state, and local laws, ordinances and regulations governing this sale, including but not limited to any permit or license requirements of the United States Department of Commerce, as well as any laws of the United States of America. 10. Governing Law. The validity, interpretation and performance of this Contract shall be controlled and construed under the laws of the State of California. 11. Forum Selection. Any action brought relating to this Contract shall be brought and held exclusively in a State Court in the County of Los Angeles, California. 12. Notices. Notices to the parties, unless otherwise requested in writing, shall be sent to: City: CITY OF VERNON ATTN: BRUCE V. MALKENHORST CITY ADMINISTRATOR 4305 SANTA FE AVENUE VERNON, CA 90058-0805 Southern States: SOUTHERN STATES, INC. ATTN: SHERRY JONES 30 GEORGIA AVENUE HAMPTON, GA-30228 13. General Provisions. - A. Independent Contractor. At all times during the term of this Contract, Southern States shall be an independent contractor and shall not be an employee of the City. The City shall have the right to control Southern States - 6 - 1 only insofar as the results of Southern States services rendered 2 pursuant to this Contract; however, the City shall not have the right 3 to control the means by which Southern States accomplishes services 4 rendered pursuant to the Contract except to the extent that such 5 services involve the use of City property or Confidential Information. 6 B. Southern States Not Agent. 7 Except as provided for herein or as the City may otherwise 8 specify in writing, Southern States shall have no authority, express or 9 implied, to act on behalf of the City in any capacity whatsoever as an 10 agent. Except as provided for herein, Southern States shall have no 11 authority, express or implied, pursuant to this Contract to bind the 12 City to any obligation whatsoever. 13 C. Indemnification. 14 Southern States shall indemnify, defend, protect and hold the', 15 City and its officers, agents and employees, free and harmless from and 16 against any and all claims, demands, losses, damages, liabilities, 17 fines, charges, penalties, orders, judgments and all costs and expenses 18 incurred in connection therewith, including reasonable attorney's fees 19 and costs of defense arising out of or attributable to the negligent or 20 wrongful acts of Southern States, or its subcontractors, employees or 21 agents in the performance of services under this Contract, except to 22 the extent arising from or caused by the sole negligence or willful 23 misconduct of the City, its officers, agents or employees. 24 D. Assignment and Subcontracting Prohibited. 25 No party to this Contract may assign or subcontract any right 26 or obligation pursuant to this Contract without the express written 27 consent of the other party. Any other attempted or purported 28 assignment of any right or obligation pursuant to this Contract shall - 7 - 1 be void and of no effect. 2 E. Entire Agreement. 3 This Contract constitutes the complete and final expression 4 of the agreement of the parties and is intended as a complete and 5 exclusive statement of the terms of their agreements and supersedes all 6 prior and contemporaneous offers, promises, representations, 7 negotiations, discussions, communications and agreements which may have 8 been made in connection with the subject matter hereof. All exhibits 9 are incorporated by reference. Southern States represents that in 10 entering into this Contract, it has not relied on any previous 11 representations or understandings of any kind or nature. 12 F. Partial Invalidity. 13 Wherever possible, each provision hereof will be interpreted 14 in such manner as to be effective and valid under applicable law, but 15 in case any one or more of the provisions contained herein will, for 16 any reason, be held to be invalid, illegal or unenforceable in any 17 respect, such provision will be ineffective to the extent, but only to 18 the extent, of such invalidity, illegality or unenforceability without 19 invalidating the remainder of such invalid, illegal or unenforceable 20 provision or provisions or any other provision hereof, unless such a 21 construction would be unreasonable or contrary to the intent of the 22 parties as expressed in this Contract. 23 G. Time of the Essence. 24 Time is of the essence in the performance of this Contract 25 and of each and every provision hereof. The waiver by the City of any 26 breach or breaches hereof shall not be deemed, nor shall the same 27 constitute, a waiver of any subsequent breach or breaches. 28 - 8 - 1 H. Risk of Loss. 2 Title and risk of loss or damage shall pass to City and 3 delivery shall be deemed to be complete upon delivery FOB destination. 4 I. Attorneys' Fees. 5 In the event that it becomes necessary for either party to 6 this Contract to enforce any of the provisions of this Contract, the 7 parties agree that a court of competent jurisdiction may determine and 8 fix reasonable attorney's fees to be paid to the successful litigant. 9 J. Benefit of Agreement. 10 This Contract shall bind and benefit the parties hereto and 11 their heirs, successors, and permitted assigns. 12 K. Force Majeure. 13 Neither party shall be considered to be in default in any of 14 its obligations under this Contract when a failure of performance shall 15 be due to an uncontrollable force. The terms "uncontrollable force" 16 shall mean any cause beyond the control of the party affected, 17 including, but not restricted to, flood, earthquake, storm, fire, 18 lightening, epidemic, war, riot, civil disturbance or disobedience, 19 labor dispute, labor material shortage, sabotage, federal, state, or 20 municipal action, statute, ordinance, or regulation, embargoes or the 21 United States Government or any other government, which by exercise of 22 due diligence such party could not reasonably have been expected to 23 avoid and by exercise to due diligence has been unable to overcome. 24 Either party rendered unable to fulfill any of its obligations under 25 this Contract by reason of an uncontrollable force, shall give written 26 notice within five (5) business days of such fact to the other party 27 and shall exercise due diligence to remove such inability with all 281 reasonable dispatch. - 9 - 6 7 8 9 10 11 12 13 14 15 16 17 1 18 19 20 21 22 23 24 25 26 27 28 L. Waiver. Any waiver at any time by either party of its rights with respect to a default under this Contract, or with respect to any other matters arising in connection with this Contract, shall not be deemed a waiver with respect to subsequent default or other matter. M. Amendment. All changes or modifications to this Contract shall be in a writing stating that it is an amendment to this Contract and shall be 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. ATTEST: BRUCE V. MALKENHORST, City Clerk APPROVED AS TO FORM: ERIC T. FRESCH, City Attorney By: CITY OF VERNON LEONIS C. MALBURG, Mayor SOUTHERN STATES, LLC By: Title: lLN/'G By Title. - 10 - EXHIBIT 0 1 r-QSouthem Statues - + SOUTHERN STATES, LLc GENERAA. CONAI.1'IONS OF SALE (Effective 1211/02) 1• 811mtlJtt_1erm6. By accepting delivery of the Southe„ States, Inc. ("SSLLC") products (the `Product'), you nme to pay SSLLC the $>11 invoice price within thirty (30) days of receipt of the Product, less a one-fourth of on, percent (0.0025Y•) cash discount !br payments made within ten (10) days of receipt of the Product All shipmeab ate freight alloyed and prepaid within the CCmtiaental United States Theinvoice atnouat willinclude the Deice of the Product, all applicable takes. insurance, freight and other 62gm, however, shipping ebatges are pavpaid and invoiced separately and ba addition to the pried of rho Product for orders of less than u,000. Interest clinges of one and one-half peacent (l S%) per month or partial month will accrue on all past flue amounts. 2. MC-- Published prices for the product are subject to change without notice. Price quQtzdona are valid for thirty (30) days unless specifically eadcWcd by SSI LC. commitment, by aganb sure subject to write, acccptaace by SSLLC. The minintum. charge for nay siuBlc aura of the Product is S250. 3. Sales Tux. UAIM apecifirft stated Otherwise responsibility of the purchase., sales and other siwaibtr oxen are not included is the puke of the Pzvdrrct and are the 4. *tt_ClassiAcatloas. The term -cl tdcal switches^ shall be used to indicate that insulatm air a3scWblod with swhohea. If the switches and roar jdm sure shipped separably, the tcoah `ae ctdcal switches- shall be used to indicate tize switch podion of the appaartis, and the term '+ -trical insulators (Potreiaw shill used for the insulator portion of the apparatus. • Frais U equalization -M be made for government nt bills oflading 3. Ddlverv. The Pmduct will be delivered to the deewadon designated by the customer, with all fimirance and shipping obargea to be paid by the custmw on orders under S5.000.00. - ' • .sr .. LAss or damage to the Prod= which is apparent at the time of ",;zy shall be noted out Me ddivay copy of the fteight brill and the carrier sball be 110011ed of same The Product Shari be shipped with the route of shipment and method both st SSLLC's frcitdut discretion;, unless the customer supplies explicit instructions to the contrary e. and pays for same. No allowwm will be made in lien of 6. Secarhy Interest Until the full invoice amount has been paid for the Product, SSJ I.0 reserves a purchase money security, iutm=t in the F-duct un4a the Uniform Co nw=cW C,odej and if requested, the customer will execute one or mare fiaaneing statements to be recorded by SSLLC 7. limited Wap�ga jY. SSLLC w2waats that the Product will, Upon shipment. be fire of defects in wmictnatift and "a weal under normal usage and service fora period of five cm years SSLLC shall, upon prompt written notice hone the customer, correct defective part(s) by repair of replaccat at the discretion of SSLLC. Any trUmportation chatges, labor for reanoving, reinstalling the equipment, and/or costs related to providing access to the equipment shall be the responsibility of the customer. Correction in this msaner shall consdtute a fulfillment of all liabtltties of SSLLC with respect to the quality of the Product if SSLLC does not rnelce such repair or replacement, SSLLC's liability for damages on account of any claimed defect shall in no event exceed the purchase price of the Product. No Other' %mv"CAY is mado with respect to the Product or the purchase price Uhtzwl'. Nu wammEy is made with respect to any product or part not manufactured by SSLLC, such product of part being subject only to the warranties made by the manafaaturear thereof. TMS LtMMI) WARRANTY IS ExCLUSWE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMMUD OA STATUTORY. ALL A�KPI.AED WARRANTIES WHICH MAY ARISE BY IMPLICATION OF LA,W, OR APPLI- CATION OF COU"K OF DEALING OR USAGE OF TRADE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FATNESS FOR A PARTICULAR PURPOSE, NONVGMMCEbMNT OR OTHERWISE ARE K)UTXS3LY EXCLUDED. IN NO EVENT SHALL SSLLC BE LIABLE OR RESPONSIBLE FOAL ANY COKSXQUSMAL DAMAGES, EVEN lY SSLLC HAS BEEN ADVISED OF THE POSSi HMy OF SAME. THE CU..VMMFR IS SOLELY RESPONSIBLE FOR THE SMA13UMT OF TRB PRODUCE FOR ANY PARTICULAR AMJCATiON. 8. Force Maleu 1. SSLLC " rat be liable for arty lots or damage arising froor delay in or 9rlure to sayresulting from any ci ncea P�fm um, of iron Lodi tia r, beyond its reasonable control, iAehrding, without limitation, true, elcploaioa. power iailtrre, ants of Cod, war, riots, sttilm, inability to obWjA necessary labor or materials or other Catastrophes. Roccipt of delivery of dw Product by the c uM ma constihitcs a waiver of all claims against SSLLC for delay in or fads, to Deform any of its obligations. 10. Field .- • . _, - - , v1ex An SSLLC Field Fngtnexr is available to assist the customer with Product installation, sWc rvisiM smiling or other Purposes. Refer to Domestic do iuteo"Onal Field Service Tama & Conditions for the cost of these services. 11. h2lL.t- Any notice required of permitted hereunder shall be sufficient if in W&ia& courier m flee customer at the address shown on SSLLC's records. and to SSLLC at >��y delivered, sent gi mail or by overalight - - _ _ � �rgia Avenue, Hampton, Georgia 3022E. TELECOPY �3 12/4fit2003 Fax #3235831983 Vernon Utility Dept. Vernon, CA Attention: Otis Smith Subject: Disconnect Switches Southern States Proposal #600113 R elf . � I Your RFQ# Telephone request for quote 9$011b(0 $tates,lnc. 30 Georgia Avenue Hampton, Ga 30228 Phone (770) 946-4562 FAX (770) 946-8106 Gentlemen: We are pleased to submit our quotation as indicated on the attached page. The following information should be considered a part of our bid: `Estimated shipment is 12 weeks after receipt of order and mounting information. * Switches will be shipped completely assembled on insulators. * Drawings can be submitted approximately 6-8 weeks after receipt of order and mounting information. " Our proposal is valid for 30 days. `The proposed switches are covered by Southern States standard five year warranty. `The equipment listed in this proposal is subject to Southern States standard terms and conditions. * Prices are FOB Hampton, GA freight allowed on orders over $5,000. `Prices are firm for shipment through May2004. * Payment terms are net 30 days after receipt of invoice. Switches will be furnished with 33" tall polymer insulators. *Quoted switches are SCE approved. Your consideration of Southern states equipment is much appreciated. We trust you will find our bid favorable and look forward to working with you on this requirement. Sincerely, Sherry Jo s CC: Bern SUPPORTING DOCUMENTS 10 11 12 13 14 15 16 17 18 19 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 AIA day of January, 2004, in the City of Vernon, County of Los Angeles, California BY AND BETWEEN w�w RECITALS CITY OF VERNON (hereinafter referred to as "City") 4305 Santa Fe Avenue Vernon, CA 90058 SOUTHERN STATES, LLC. (hereinafter referred to as "Southern States") 30 Georgia Avenue Hampton, GA 30228 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 sixteen (16) t-691200 69 kV, 1200 AMP, 61 kA momentary, three pole group operated copper Cole switches with a swing handle operator and 33" tall polymer insulators for the Malburg Project (hereinafter referred to as the "Disconnect Switches"); and WHEREAS, Southern States has prepared a proposal dated on or about December 23, 2003, (the "Proposal"), a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference for the 1 Disconnect Switches; and 2 WHEREAS, the City desires to enter into an agreement with 3 Southern States to provide for the purchase and delivery of the 4 Disconnect Switches; and 5 WHEREAS, Southern States represents that it is qualified and 6 capable of providing the Disconnect Switches described in Exhibit "A" 7 that the City requires and is willing to do so on the terms and 8 conditions set forth below. 9 NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS SET 10 FORTH HEREIN: 11 1. Purchase. 12 Southern States agrees to sell and deliver the Disconnect 13 Switches set forth and described in detail in the Proposal. It is 14 understood and agreed that in the event of a conflict between this 15 Contract and the Proposal, the terms of this Contract shall prevail. 16 2. Time of Performance. 17 The performance of Southern States as identified herein shall 18 commence upon the signing of this Contract and shall be completed by 19 Southern States pursuant to the terms of the Proposal, unless otherwise 20 terminated or extended. Drawings are to be submitted approximately six 21 (6) to eight (8) weeks after Southern States receives a purchase order 22 and mounting information. Delivery of the Disconnect Switches is 23 expected to be completed no later than twelve (12) weeks after Southern 24 States receives a purchase order and mounting information. If delivery 25 of the Disconnect Switches is not completed within this time period, 26 the City shall have the option of canceling this Contract in order to 27 proceed with the purchase of the equipment from another vendor, if one 28 can be located. The delivery date may also be extended, at the City's - 2 - 1 sole discretion, for an additional thirty (30) days, or such other time 2 as the parties may agree. 3 3. Price. 4 Southern States agrees to sell and deliver the Disconnect 5 Switches described in the Proposal in the total amount of One Hundred 6 Seven Thousand Four Hundred Forty Dollars ($107,440.00), excluding 7 sales tax and shipping charges. 8 4. Payment Terms. 9 The City agrees to pay Southern States one hundred percent 10 (1000) of the total purchase price, net thirty (30) days after delivery 11 and acceptance of the Disconnect Switches by City FOB destination and 12 City's receipt of an invoice from Southern States. 13 5. Change and Extra Services. 14 The City reserves the right to make additions to or deletions 15 from the equipment purchased from Southern States. All such changes 16 shall be incorporated in written change orders executed by the City and 17 Southern States that shall specify the changes ordered and the 18 adjustment of prices, delivery schedules and warranties. Any equipment 19 added to this Contract, under this section, shall be executed under all 20 applicable conditions of this Contract. No claim for additional 21 compensation or extension of time shall be recognized unless contained 22 in a duly executed change order. 23 6. Cancellation/Default. 24 In the event that Southern States commits a breach of a 25 material condition of this Contract, City shall notify Southern States 26 in writing of said breach and if Southern States has not cured or begun 27 reasonable efforts to cure after fifteen (15) days of receipt of said 28 notice, and fails to diligently pursue corrective action, then City - 3 - 1 shall have the right to cancel this Contract for cause based on 2 Southern States' default. Southern States shall be responsible for any 3 direct costs due to City's re -procurement of the equivalent of the 4 equipment cancelled from Southern States. 5 7. Confidential Information. 6 A. Access to Confidential Information. City may provide 7 Southern States, and/or its subcontractors with, or allow Southern 8 States and/or its subcontractor access to certain information not 9 available to the public concerning, but not limited to City, or 10 businesses located in City. The information may include, but is not 11 limited to, company information, taxes, sales, value of assets, utility 12 usage, or other such information. All such information shall be known 13 as "Confidential Information" and may not be used to circumvent the 14 responsibility of either party to this Contract. 15 B. No Disclosure. Except as expressly permitted, Southern 16 States, and/or its subcontractors, shall not disclose, permit the 17 disclosure of, release, disseminate, or transfer, whether orally or by 18 any other means, any part of such Confidential Information to any other 19 person or entity, whether corporate, governmental, or individual, 20 without the express prior written consent of an authorized 21 representative of City. Southern States, and/or its subcontractors, 22 shall return any written Confidential Information, and all copies made 23 of such items, to City upon City's written request, but in any event 24 not later than the date that Southern States and/or its subcontractors 25 has performed all services to be performed pursuant to this Contract. 26 Southern States hereby agrees that such Confidential Information and 27 any documents provided may be used by Southern States, and/or its 28 subcontractors, only as authorized by City. Southern States shall - 4 - 1 include a contract provision in its contract with subcontractors that 2 bind the subcontractors to this non -disclosure requirement. Southern 3 States shall take reasonable measures to avoid any disclosure of any 4 such Confidential Information to any unauthorized person. 5 C. Court Ordered Disclosure. Southern States shall 6 immediately notify City of any court order or subpoena requiring 7 disclosure of Confidential Information, and shall cooperate with City's 8 legal counsel in responding to any such order or subpoena. Southern 9 States may only disclose Confidential Information required to be 10 disclosed pursuant to court order or subpoena after legal counsel has 11 exhausted any lawful and timely appeal or challenge. 12 D. Remedies. In addition to any other remedies that it may 13 have at law or in equity, City shall be entitled to a temporary and 14 permanent injunction by a court of competent jurisdiction against any 15 breach or threatened breach of the Confidential Information provisions 16 of this Contract. Southern States acknowledges that in case of such 17 breach or threatened breach of said provisions, City would have no 18 adequate remedy at law. 19 8. Warranties. 20 Southern States warrants title to the equipment purchased 21 hereunder and any part thereof to be free of any claim of any security 22 interest, lien or any encumbrance. Southern States also warrants that 23 the equipment will be delivered new and shall be free from defects in 24 material and workmanship for a period of five (5) year from the date of 25 the City's acceptance of the Disconnect Switches. All manufacturers' 26 warranties, any warranties typically provided by Southern States and 27 any other warranties made applicable by law shall apply to the City's 28 purchase of the Disconnect Switches. - 5 - 1 9. Compliance with Laws. 2 Southern States shall strictly observe and comply with all 3 applicable federal, state, and local laws, ordinances and regulations 4 governing this sale, including but not limited to any permit or license 5 requirements of the United States Department of Commerce, as well as 6 any laws of the United States of America. 7 10. Governing Law. 8 The validity, interpretation and performance of this Contract 9 shall be controlled and construed under the laws of the State of 10 California. 11 11. Forum Selection. 12 Any action brought relating to this Contract shall be brought 13 and held exclusively in a State Court in the County of Los Angeles, 14 California. 15 12. Notices. 16 Notices to the parties, unless otherwise requested in 17 writing, shall be sent to: 18 City: CITY OF VERNON ATTN: BRUCE V. MALKENHORST 19 CITY ADMINISTRATOR 20 4305 SANTA FE AVENUE VERNON, CA 90058-0805 21 Southern States: SOUTHERN STATES,LLC. 22 ATTN: SHERRY JONES 30 GEORGIA AVENUE 23 HAMPTON, GA 30228 24 13. General Provisions. 25 A. Independent Contractor. 26 At all times during the term of this Contract, Southern 27 States shall be an independent contractor and shall not be an employee 28 of the City. The City shall have the right to control Southern States - 6 - 1 only insofar as the results of Southern States services rendered 2 pursuant to this Contract; however, the City shall not have the right 3 to control the means by which Southern States accomplishes services 4 rendered pursuant to the Contract except to the extent that such 5 services involve the use of City property or Confidential Information. 6 B. Southern States Not Agent. 7 Except as provided for herein or as the City may otherwise 8 .specify in writing, Southern States shall have no authority, express or 9 implied, to act on behalf of the City in any capacity whatsoever as an 10 agent. Except as provided for herein, Southern States shall have no 11 authority, express or implied, pursuant to this Contract to bind the 12 City to any obligation whatsoever. 13 C. Indemnification. 14 Southern States shall indemnify, defend, protect and hold the 15 City and its officers, agents and employees, free and harmless from and 16 against any and all claims, demands, losses, damages, liabilities, 17 fines, charges, penalties, orders, judgments and all costs and expenses 18 incurred in connection therewith, including reasonable attorney's fees 19 and costs of defense arising out of or attributable to the negligent or 20 wrongful acts of Southern States, or its subcontractors, employees or 21 agents in the performance of services under this Contract, except to 22 the extent arising from or caused by the sole negligence or willful 23 misconduct of the City, its officers, agents or employees. 24 D. Assignment and Subcontracting Prohibited. 25 No party to this Contract may assign or subcontract any right 26 or obligation pursuant to this Contract without the express written 27 consent of the other party. Any other attempted or purported 28 assignment of any right or obligation pursuant to this Contract shall - 7 - 1 be void and of no effect. 2 E. Entire Agreement. 3 This Contract constitutes the complete and final expression 4 of the agreement of the parties and is intended as a complete and 5 exclusive statement of the terms of their agreements and supersedes all 6 prior and contemporaneous offers, promises, representations, 7 negotiations, discussions, communications and agreements which may have 8 been made in connection with the subject matter hereof. All exhibits 9 are incorporated by reference. Southern States represents that in 10 entering into this Contract, it has not relied on any previous 11 representations or understandings of any kind or nature. 12 F. Partial Invalidity. 13 Wherever possible, each provision hereof will be interpreted 14 in such manner as to be effective and valid under applicable law, but 15 in case any one or more of the provisions contained herein will, for 16 any reason, be held to be invalid, illegal or unenforceable in any 17 respect, such provision will be ineffective to the extent, but only to 18 the extent, of such invalidity, illegality or unenforceability without 19 invalidating the remainder of such invalid, illegal or unenforceable 20 provision or provisions or any other provision hereof, unless such a 21 construction would be unreasonable or contrary to the intent of the 22 parties as expressed in this Contract. 23 G. Time of the Essence. 24 Time is of the essence in the performance of this Contract 25 and of each and every provision hereof. The waiver by the City of any 26 breach or breaches hereof shall not be deemed, nor shall the same 27 constitute, a waiver of any subsequent breach or breaches. 28 - 8 - 1 H. Risk of Loss. 2 Title and risk of loss or damage shall pass to City and 3 delivery shall be deemed to be complete upon delivery FOB destination. 4 I. Attorneys' Fees. 5 In the event that it becomes necessary for either party to 6 this Contract to enforce any of the provisions of this Contract, the 7 parties agree that a court of competent jurisdiction may determine and 8 fix reasonable attorney's fees to be paid to the successful litigant. 9 J. Benefit of Agreement. 10 This Contract shall bind and benefit the parties hereto and 11 their heirs, successors, and permitted assigns. 12 K. Force Majeure. 13 Neither party shall be considered to be in default in any of 14 its obligations under this Contract when a failure of performance shall 15 be due to an uncontrollable force. The terms "uncontrollable force" 16 shall mean any cause beyond the control of the party affected, 17 including, but not restricted to, flood, earthquake, storm, fire, 18 lightening, epidemic, war, riot, civil disturbance or disobedience, 19 labor dispute, labor material shortage, sabotage, federal, state, or 20 municipal action, statute, ordinance, or regulation, embargoes or the 21 United States Government or any other government, which by exercise of 22 due diligence such party could not reasonably have been expected to 23 avoid and by exercise to due diligence has been unable to overcome. 24 Either party rendered unable to fulfill any of its obligations under 25 this Contract by reason of an uncontrollable force, shall give written 26 notice within five (5) business days of such fact to the other party 27 and shall exercise due diligence to remove such inability with all 28 reasonable dispatch. - 9 - 1 L. Waiver. 2 Any waiver at any time by either party of its rights with 3 respect to a default under this Contract, or with respect to any other 4 matters arising in connection with this Contract, shall not be deemed a 5 waiver with respect to subsequent default or other matter. 6 M. Amendment. 7 All changes or modifications to this Contract shall be in a 8 writing stating that it is an amendment to this Contract and shall be 9 signed by both parties or their duly authorized agents. This Contract 10 shall not be modified through course of dealing, usage or trade. 11 IN WITNESS WHEREOF, the parties have caused this Contract to 12 be executed by and through their authorized officers on the date, month 13 and year first written above. 14 CITY OF VERNON 15 By: LEONIS C. MAM�GM�or�� 16 ATTEST: / 17`- 18 BRUCE V. MALKENHORST, City Clerk APPROVED AS TO FORM: 19 20 ERIC T. FRES H, City Attorney 21 SOUTHERN STATES, LLC 22 23 24 By: i 25 Title: 26 By 27 Title: 28 - 10 - TELECOPY .:;(3 12/17 O03 Fax #3235831983 Vernon Utility Dept. Vernon, CA Attention: Otis Smith Subject: Disconnect Switches Southern States Proposal #600113 RP-V. I Your RFQ# Telephone request for quote Gentlemen: 30 Georgia Avenue ' Hampton, Ga 30228 Phone (770) 9464562 FAX (770) 946-8106 We are pleased to submit our quotation as indicated on the attached page. The following information should be considered a part of our bid- * Estimated shipment is 12 weeks after receipt of order and mounting information. *Switches will be shipped completely assembled on insulators. Drawings can be submitted approximately 6-8 weeks after receipt of order and mounting information. ' Our proposal is valid for 30 days. The proposed switches are covered by Southern States standard five year warranty. "The equipment listed in this proposal is subject to Southern States standard terms and conditions. "Prices are FOB Hampton, GA freight allowed on orders over $5,000. `Prices are firm for shipment through May2004. "Payment terms are net 30 days after receipt of invoice. Switches will be furnished with 33" tall polymer insulators. *Quoted switches are SCE approved. Your consideration of Southern states equipment is much appreciated. We trust you will find our bid favorable and look forward to working with you on this requirement. Sincerely, Sherry Jo s CC: Bern Southem States SOUTIIOLRN STATES, LLc GENERAJ- CONDITIONS OF SALE (Effective IZ"2) I. Terms. By accepting delivery of the SOWAOrn St*tes, Inc. ("SSLLC*) Products (the "Picften. You agree to pay SSLLC the full invoice puke Within thirty (30) days of receipt of the PmdW4 less a onafourth of me percent %M25%) cash discount for payments made within ten (10) days of receipt of the Product. All shipment are fivi E6t allowed and prepaid tvirbtiuo fire Continental tJmitatd States. The invoice amount wdri include the price of the Product, all applicable takes, msurairee, fivight end Other chaasmi however, shipping ebatges are pavpaid and invoiced separately and fan addition to dhe price of the Product for orders of less Man S5,000. Intemst ebnzSes of one and ontobalf peacoat (1.3y) per mom& or partial month Will accrue on an past due:remounts. 2. P ces. Published prices for the Product ere subject to change Widwut notic& price gooeaslons are valid for thirty (30) days unless sPmfiaW =*Wed by SSLLC. Cammddwats by agents ace subject to written acceptance by SSLLC. The miuniatsem charge for any single ardor of the Pwdtux Is =Q. 3. Sales Tau. Unless ape' rmft stated otherwise, sales and other amula taxes sire not included in the price of the Pxg&wt and we {tie responsibility of the parobmsar. 4. F01dt_9asslAat1oss. The germ "cl=bocal switches" shell be need to indicate that msuiatoss axe anembled with SwhtFhtd. if tie switches and are fly, tee "elechwat switches" shall be used to nWicate the switch portiom of the appaeatus, and the term. `400trical insulators (poc+cc%w sbsall rood for the wsulator portion of the apperatns. • Frefjitt "mlization will be made for governmerA bills of lading, S•Rdivery, The Pwxhmt will be delivered m the de aw;won designated by the customer, with all fiwwance crud shipping ohwgw to be paid by the matome r on orders under S5.000.00. .. --- - — - Loss or damage tothe Product which la apparent at the time of ddivsxy "be noted an the delivery COPY of the feigbt bill and the courier shop be notMed of same The Product"be ahippod with the mute of shipment and rnoebod boot at SSLLC'S discretion, unless the customer supplies explicit instructions to the contrary and pays for saute: No allowances will be made in liar of fi vigArt 6. See des Intel est. Until the full invoice MOM has bees paid for the Product. SSLI.0 reserves a purchase money security bAmmet in the Ovdnot under the Uniform Commis W Code, and if requested, the customer will -K--te sae or mime tieing statements to be recorded by SSLLC. *-- = - - rent . — _ _ _.._ -'— -- — _ -. _.� _ " - - - - _ . . /. LAMMQ waMathty. SSLLC wan-anu ibat the Product wiR upon Shipment, be free of defects in w mkmansbip surd •>vaate W hinder normal usage and service for ■ pgaod of five (S) SSI.LC shall, upon V.vrnpt %Mitts. notice from at customer, correct defective pext(s) by repair or repiaeemerrt at the discretion of SSILC. Any haasp-ftdon cbsrjM, labor for removing, mi talling the o4uiPmsaat. and/or its related to p vvwimg access 10 the equipment Shari be the i 'brit st tee. Correction im this mannashall caosthMe a felfiliment of an lsabtilities of SSTLC with to the ..ry of tine ca replacement, SSxLC'a lie qualitty of the Product If SSLi.0 flocs not ihualce: such repair eu Y for damages our account of any claimed defect shalt in no event exceed the purchase price of the Product No other wMMw is mado with respect to the Product of the purchase price nicety- No wm mry- is made with respect to any pr o&xX or part not naanufacnued by SSLT.C, sucb prodtrct Of part beix-S subject only to the Warranties made by the maAnAm*m thereof. THIS LIMITED WARRANTY IS EXCLUSM AND IN LMU OF ALL OTKER WAIiRANMS, WHETHER EXPRESSEO, Ih IZED OA STATUTORY. ALi. IMPLIED WARRANTIES W1311CH MAY ARISE BY IMPLICATION OF LAW, OR APPLI- CATION OF COUlti3t5 OF DLrALTNG OR USAGE OF TRADE, INCLUDING, ]BUT NOT LIMITED TO, IMPLIED WARRANTIES OF bMCHAN'ABILITY OR FITNESS FOR A PARTXCULAR PURPOSE, NONINFRINCZbO MI. OR OTITERVIM ARE ff"N7R)ESBLY EXCLUDED. IN 140 XVENT SHALL SSLLC BE LXAl3L E OR RESPONSIBLE FOR ANY CONSEQUENTIAL DAMAGES, EVEN IF SSLLC HAS BEEN ADVISED OF THE POSSIBILITY OF SAME THE CU..STOMF,R IS SOT.SI.Y MPONSTBLE FOR Tin SUITABILITY OF TM PRODUCT FOR ANY PARTICULAR AMJCATION. 8. Force MILUUM SSLLC shall mot be liable for arty loss or damage arising from delay in or &&= to perform spy of its obligations t%Wn from my circucatitom beyond its reasonable control, bowdimg, igw limitation, ft explosim power failure, acts of God, war, rills, strikes, inability to obtain necessary labor or materials or Other catastrophes. Roecipt of delivery of the Product by the customer cottStih a waiver of all claims *Pb* SSI.I.G for delay in or farlrae to perfoxph XW of its oblisations. 10. Fidel Se Met- An SSL.L C Field Fagimeer is availabtt to assist the custom4 withProduct installation. supervision, Graining or other Purposes, Refer to Domestic do bateau utionul Field Serviex TOM &- Conditions for the cost of these services. I L h9ft+. Any notice rem or permitted hereunder shall be suffi'iciew if in Writing, personally delivered, scot by mail or by mmAght ootmier to the custotshgr at dke address shown On SST,I C's records, and to SSLLC at 30 Georgia Avenue, Hampton, Georgia 30223.