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Resolution No. 83931 2 3 4 5 6 7 8 9 10 low 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 8393 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 NETWORK CATALYST 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, to facilitate the construction of the Malburg Project, the City needs to create suitable office space to house support staff and provide storage at 2670 Leonis Boulevard in the City of Vernon (the "Leonis Property"); and WHEREAS, certain building improvements are required to effectuate the relocation of the City's staff; and WHEREAS, on or about February 25, 2004, Network Catalyst ("Network Catalyst"), provided the City with a proposal to provide fiber optic cabling for the remodeling of the offices located at the Leonis Property; and WHEREAS, on February 24, 2004, the Finance Committee considered the recommendation of Bruce V. Malkenhorst, Director of Finance, to retain the services of Network Catalyst to provide the fiber optic cabling for the remodeling to facilitate the construction 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 and operation of 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 Network Catalyst. 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 Network Catalyst, 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: Network Catalyst Attn. George Carpenter 200 N. Sepulveda Blvd., Suite 850 El Segundo, CA 90245 - 2 - 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 3rd day of March, 2004. ATTEST: BRUCE V. MALKENHORST, City Clerk EONIS C. MALBURV�, Mayor - 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. 8393, was duly adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Wednesday, March 3, 2004, and thereafter was duly signed by the Mayor of the City of Vernon. (SEAL) BRUCE V. MALKENHORST, City Clerk - 4 - EXHIBIT 0 1 EQUIPMENT PURCHASE CONTRACT 2 3 THIS CONTRACT is made, entered into and executed in 4 duplicate originals, either copy of which may be considered and used 5 as the original hereof for all purposes, as of this 3rd day of March, 6 2004, in the City of Vernon, County of Los Angeles, California 7 BY AND BETWEEN THE CITY OF VERNON (hereinafter 8 referred to as "City") 4305 Santa Fe Avenue 9 Vernon, CA 90058 10 AND NETWORK CATALYST (hereinafter 11 referred to as "Network Catalyst") 12 200 N. Sepulveda Blvd, Suite 850 El Segundo, California 90245 13 RECITALS 14 15 WHEREAS, City is constructing the Malburg Generating Station 16 Combined Cycle Power Plant at 2715 E. 5Oth Street in the City of 17 Vernon (the "Malburg Project") for purposes of installing additional 18 generating capacity that is capable of yielding cost effective, 19 efficient and reliable electricity to meet its goals, while meeting 20 Federal, State and local environmental and siting requirements; and 21 WHEREAS, the Malburg Project team has determined that it 22 needs to purchase the following: one (1) Catalyst 2950, 24 10/100 with 23 2GBIC slots, enhanced image; one (1) power cord, 110V; one (1) 24 Catalyst 2950, 48 10/100 with 2 GBIC slots, enhanced image; one (1) 25 power cord, 110V; and four (4) 1000Base-LX/LH long haul GBIC 26 (singlemode or multimode) (hereinafter collectively referred to as the 27 "Fiber Optic Cabling"); and 28 WHEREAS, Network Catalyst prepared a quote dated on or I about February 25, 2004, (hereinafter referred to as the "Proposal"), 2 a copy of which is attached hereto as Exhibit "A" and made a part 3 hereof, for the Fiber Optic Cabling; and 4 WHEREAS, Network Catalyst represents that it is qualified 5 and capable of furnishing the Fiber Optic Cabling described in Exhibit 6 "A" and is willing to do so on the terms and conditions set forth 7 below; and 8 WHEREAS, the City desires to enter into an agreement with 9 Network Catalyst to provide for the purchase and delivery of the Fiber 10 Optic Cabling. 11 NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS SET 12 FORTH HEREIN: 13 1. Purchase. 14 Network Catalyst agrees to sell and deliver the Fiber Optic 15 Cabling set forth and described in detail in Exhibit "A." It is 16 understood and agreed that in the event of a conflict between the 17 Proposal and this Contract, the terms of this Contract shall prevail. 18 2. Time of Performance. 19 The performance of Network Catalyst as identified herein, 20 shall commence upon the full execution of this Contract and shall be 21 completed by Network Catalyst pursuant to the terms of the Proposal, 22 unless otherwise terminated or extended. Delivery of the equipment is 23 expected to be completed no later than fifteen (15) business days from 24 the issuance of the City's Purchase Order. If delivery of the Fiber 25 Optic Cabling is not completed within this time period, the City shall 26 have the option of canceling this Contract in order to proceed with 27 the purchase of the equipment from another vendor, if one can be 28 located. The delivery date may also be extended, at the City's sole - 2 - I discretion, for an additional fifteen (15) days, or such other time as 2 the parties may agree. 3 3. Price. 4 Network Catalyst agrees to perform the work described in its 5 Proposal for a sum not exceed Seven Thousand One Hundred Thirty 6 Dollars and Fifty Cents ($7,130.50), plus tax and any applicable 7 freight. 8 4. Payment Terms. 9 The City agrees to pay Network Catalyst one hundred percent 10 (100%) of the total purchase price, net thirty (30) days after 11 delivery and acceptance of the Fiber Optic Cabling by City FOB 12 destination and City's receipt of an invoice from Network Catalyst. 13 5. Change and Extra Services. 14 City reserves the right to make additions to or deletions 15 from the equipment purchased from Network Catalyst. All such changes 16 shall be incorporated in written change orders executed by City and 17 Network Catalyst and shall specify the changes ordered and the 18 adjustment of prices, delivery schedules and warranties. Any 19 equipment added 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 Network Catalyst commits a breach of a 25 material condition of this Contract, City shall notify Network 26 Catalyst in writing of said breach and if Network Catalyst has not 27 cured or begun reasonable efforts to cure after fifteen (15) days of 28 receipt of said notice, and fails to diligently pursue corrective - 3 - I action, City shall have the right to cancel this Contract for cause 2 based on Network Catalyst' default. Network Catalyst shall be 3 responsible for any direct costs due to City's re -procurement of 4 equipment, the equivalent of that cancelled from Network Catalyst. 5 7. Confidential Information. 6 A. Access to Confidential Information. City may 7 provide Network Catalyst and/or its subcontractors with, or allow 8 Network Catalyst access to, certain information not available to the 9 public concerning City, or businesses located in City. The 10 information may include company information, taxes, sales, value of 11 assets, or other such information. All such information shall be known 12 as "Confidential Information" and may not be used to circumvent the( 13 responsibility of either party to this Contract. 14 B. No Disclosure. Except as expressly permitted, 15 Network Catalyst and/or its subcontractors shall not disclose, permit 16 the disclosure of, release, disseminate, or transfer, whether orally 17 or by any other means, any part of such Confidential Information to 18 any other person or entity, whether corporate, governmental, or 19 individual, without the express prior written consent of an authorized 20 representative of City. Network Catalyst and/or its subcontractors 21 shall return any written Confidential Information and all copies made 22 of such items to City upon City's written request, but in any event 23 not later than the date that Network Catalyst has performed all 24 services to be performed pursuant to this Contract. Network Catalyst 25 hereby agrees that such Confidential Information and any documents 26 provided may be used by Network Catalyst and/or its subcontractors 27 only as authorized by the City. Network Catalyst shall include a 28 contract provision in its contract with subcontractors that binds the - 4 - 1 subcontractors to this non -disclosure requirement. Network Catalyst 2 shall take reasonable measures to avoid any disclosure of any such 3 Confidential Information to any unauthorized person. 4 C. Court Ordered Disclosure. Network Catalyst shall 5 immediately notify City of any court order or subpoena requiring 6 disclosure of Confidential Information, and shall cooperate with 7 City's legal counsel in responding to any such order or subpoena. 8 Network Catalyst may only disclose Confidential Information required 9 to be disclosed pursuant to court order or subpoena after legal 10 counsel has exhausted any lawful and timely appeal or challenge. 11 D. Remedies. In addition to any other remedies that 12 it may have at law or in equity, City shall be entitled to a temporary 13 and permanent injunction by a court of competent jurisdiction against 14 any breach or threatened breach of the Confidential Information 15 provisions of this Agreement. Network Catalyst acknowledges that in 16 case of such breach or threatened breach of said provisions, City 17 would have no adequate remedy at law. 18 8. Warranties. Network Catalyst warrants title to the 19 equipment purchased hereunder and any part thereof to be free of any 20 claim of any security interest, lien or any encumbrance. Network 21 Catalyst also warrants that the equipment will be delivered new and 22 shall be free from defects in material and workmanship. Network 23 Catalyst shall provide a one (1) year material and labor warranty to 24 begin upon City's acceptance of the Fiber Optic Cabling. In addition, 25 all manufacturers' warranties, any warranties typically provided by 26 Network Catalyst, and any other warranties made applicable by law 27 shall apply to the City's purchase of the materials and labor provided 28 by Network Catalyst. - 5 - 1 9. Compliance with Laws. Network Catalyst shall strictly 2 observe and comply with all applicable federal, state, and local laws, 3 ordinances and regulations governing this sale, including but not 4 limited to any permit or license requirements of the United States 5 Department of Commerce, as well as any laws of the United States of 6 America. 7 10. Governing Law. The validity, interpretation and 8 performance of this Contract shall be controlled and construed under 9 the laws of the State of California. 10 11. Forum Selection. Any action brought relating to this 11 Contract shall be brought and held exclusively in a state court in the 12 County of Los Angeles, California. 13 12. Notices. Notices to the parties, unless otherwise 14 requested in writing, shall be sent to: 15 16 City: THE CITY OF VERNON ATTN: BRUCE V. MALKENHORST 17 CITY ADMINISTRATOR 18 4305 SANTA FE AVENUE VERNON, CA 90058-0805 19 Network Catalyst: NETWORK CATALYST 20 ATTN: GEORGE CARPENTER 200 N. SEPULVEDA BLVD., SUITE 850 21 EL SEGUNDO, CA 90245 22 13. General Provisions. 23 A. Independent Contractor. At all times during the 24 term of this Contract, Network Catalyst shall be an independent 25 contractor and shall not be an employee of the City. The City shall 26 have the right to control Network Catalyst only insofar as the results 27 of Network Catalyst' services rendered pursuant to this Contract; 28 however, the City shall not have the right to control the means by - 6 - I which Network Catalyst accomplishes services rendered pursuant to the 2 Contract except to the extent that such services involve the use of 3 City property or Confidential Information. 4 B. Network Catalyst Not Agent. Except as the City 5 may specify, in writing, Network Catalyst shall have no authority, 6 express or implied, to act on behalf of the City in any capacity 7 whatsoever as an agent. Network Catalyst shall have no authority, 8 expressed or implied, pursuant to this Contract to bind the City to 9 any obligation.whatsoever. 10 C. Indemnification. Network Catalyst shall 11 indemnify, defend, protect and hold the City and its officers, agents 12 and employees, free and harmless from and against any and all claims, 13 demands, losses, damages, liabilities, fines, charges, penalties, 14 orders, judgments and all costs and expenses incurred in connection 15 therewith, including reasonable attorney's fees and costs of defense 16 arising out of or attributable to the negligent or wrongful acts of 17 Network Catalyst or its subcontractors, employees or agents in the 18 performance of services under this Contract, except to the extent 19 arising from or caused by the sole negligence or willful misconduct of 20 the City, its officers, agents or employees. 21 1 D. Assignment and Subcontracting Prohibited. No party 22 to this Contract may assign or subcontract any right or obligation 23 pursuant to this Contract, except as especially and specifically 24 provided for in the Proposal or with the express written consent of 25 the other party. Any other attempted or purported assignment of any 26 right or obligation pursuant to this Contract shall be void and of no 27 effect. 28 E. Entire Agreement. This Contract constitutes the - 7 - I complete and final expression of the agreement of the parties and is 2 intended as a complete and exclusive statement of the terms of their 3 agreement and supersedes all prior and contemporaneous offers, 4 promises, representations, negotiations, discussions, communications 5 and agreements which may have been made in connection with the subject 6 matter hereof. All exhibits are incorporated by reference. Network 7 Catalyst represents that in entering into this Contract it has not 8 relied on any previous representations or understandings of any kind 9 or nature. 10 F. Partial Invalidity. Wherever possible, each 11 provision hereof will be interpreted in such manner as to be effective 12 and valid under applicable law, but in case any one or more of the 13 provisions contained herein will, for any reason, be held to be 14 invalid, illegal or unenforceable in any respect, such provision will 15 be ineffective to the extent, but only to the extent of such 16 invalidity, illegality or unenforceability without invalidating the 17 remainder of such provision or provisions or any other provision 18 hereof, unless such a construction would be unreasonable or contrary 19 to the parties' intent as expressed in this Contract. 20 G. Time of the Essence. Time is of the essence in 21 the performance of this Contract and of each and every provision 22 hereof. 23 H. Risk of Loss. Risk of loss or damage shall pass 24 to the City upon installation and acceptance by the City. 25 I. Benefit of Agreement. This Contract shall bind 26 and benefit the parties hereto and their heirs, successors, and 27 'permitted assigns. 28 J. Waiver. The waiver by the City of any breach or 8 I breaches hereof shall not be deemed, nor shall the same constitute, a 2 waiver of any subsequent breach or breaches. Any waiver at any time 3 by either party of its rights with respect to a default under this 4 Contract, or with respect to any other matters arising in connection 5 with this Contract, shall not be deemed a waiver with respect to 6 subsequent default or other matter. 7 K. Amendment. All changes or modifications to this 8 Contract shall be in writing stating that it is an amendment to this 9 Contract and shall be signed by both parties or their duly authorized 10 agents. This Contract shall not be modified through course of 11 dealing, usage or trade. 12 L. Attorneys' Fees. 13 In the event that it becomes necessary for either party 14 to this Contract to enforce any of the provisions of this Contract, 15 the parties agree that a court of competent jurisdiction may determine 16 and fix reasonable attorney's fees to be paid to the successful 17 litigant. 18 M. Force Majeure. Neither Party shall be considered 19 to be in default in any of its obligations under this Contract when a 20 failure of performance shall be due to an uncontrollable force. The 21 term "uncontrollable force" shall mean any cause beyond the control of 22 the party affected, including, but not restricted to, flood, 23 earthquake, storm, fire, lightening, epidemic, war, riot, civil 24 disturbance or disobedience, labor dispute, labor material shortage, 25 sabotage, federal, state, or municipal action, statute, ordinance, or 26 regulation, embargoes of the United States Government or any other 27 government, which by exercise of due diligence such party could not 28 reasonably have been expected to avoid and by exercise of due - 9 - 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 diligence has been unable to overcome. Either party rendered unable to fulfill any of its obligations under this Agreement by reason of an uncontrollable force, shall give written notice within five (5) business days of such fact to the other party and shall exercise due diligence to remove such inability with all reasonable dispatch. 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 CITY OF VERNON LEONIS C. MALBURG, Mayor By: Title. By: Title. NETWORK CATALYST - 10 - EXHIBIT 0 erIN ETVW ter R K +CATA LY-4sT Buita&ng Better Networks_ Bui/a&'ng Better Business 200 N. Sepulveda Blvd, Suite 850, El Segundo, CA 90245 (800) NETCAT3 - (310) 615-2770 - Fax (310) 615-2776 Name: Ali Nourmohamadian Company: City of Vernon Address: 4305 Santa Fe Ave. Vernon, CA 90058 Phone: (323) 583-8811 x-316 Fax: (323)826-1435 Email: ANour@ci.vernon.ca.us i -15 Business Days I I Irvine, CA I Net 30 2/25/2004 30 Days 1 WJ-UZVbUC3-Z4-t1 Catalyst 2950, 24 10/100 with 2GBIC slots, Enhanced Image 1 $ 2,495.00 $ 1,621.75 $ 1,621.75 2 CAB -AC Power COFd,110V 1 $ _ _ - 3 WS-C2950G-24-El Catalyst 2950, 4810/100 with 2 GBIC slots, Enhanced Image 1 $ 4,495.00 2,921.75 2,921.75 4 CAB -AC Power Cord, 110V 1 $ _ _ - 5 WS-G5486 1000BASE-LX/LH long haul GBIC (sinalemode or multimode 4 $ 995.00 t 64r, 7s a sal nn Prepared By: George Carpenter 310.615.2770 x18 (Email: aeoraec(cbnetcat.com) his quotation is subject to Network Catalyst's standard terms and conditions which are available upon request. All prices are f.o.b. Network Catalyst's Irvine, California facility his quotation is not transferable. Any extension of credit is subject to credit approval. This offer is subject to compliance with the export control laws of the United States. his quotation may be withdrawn at any time without notice and its continued validity must be confirmed prior to placing an order. Sales tax will be added to all sales unless therwise provided by law. All orders are subject to acceptance at Network Catalyst's headquarters in Irvine, California. In no event shall this quotation be valid after the xpiration date stated above. If equipment is to be staged by Network Catalyst, customer agrees that they will be invoiced for the equipment at the beginning of staging. Men the boxes are opened and staging begins, title and liability for the equipment passes to the customer. • � t f • f • � f PAYMENT V-Tz- Subject to initial and eentinuing eredit appr-oval, payment is due aeoer-ding to the Purehase Agreement e ate .. ntfvet. e1her-wise terms ,.F.......,..ent ., et 15 ,d.. of the : e .date TAXES All taxes applicable to or arising from the sale of any product shall be paid by the Buyer in addition to the price, and at the time and in the manner of the payment of the price, unless the Buyer furnishes to Network Catalyst an effective tax exemption certificate. COSTS Buyer agrees to reimburse Network Catalyst for all applicable freight shown on the invoice. RETURN POLICIES: INCORRECT MATERIAL A. Upon determination that Network Catalyst has shipped incorrect material, a Return Authorization ("RA") will be issued which authorizes the return of the material for full credit, as well as freight charges incurred in the transaction. It is Network Catalyst's position that the Buyer has an obligation to ascertain the correctness of all material before any attempt is made to install it. Therefore, Network Catalyst will not accept the return of nor issue a credit for, any material which bears any appearance of having been installed, totally or in part, nor will freight expenses be allowed. B. Upon determination that Buyer has requisitioned incorrect material, a RA will be issued. Merchandise shipped from Network Catalyst's inventory will be accepted for return provided the material is in original re -salable condition. Once the material is received, inspected, and otherwise determined to be in original re -salable condition, a credit will be issued, with freight costs on the original invoice becoming due and payable by the Buyer. All RA's must be returned in its original packaging with all hardware, software, cords and manuals enclosed, and must not have any writing or labels on the packaging. Network Catalyst suggests packing the carton(s) inside another carton prior to shipping. DEFECTIVE MATERIAL It shall be the Buyer's responsibility to notify Network Catalyst of any possible defect by the close of business on the first business day following such discovery or within fourteen (14) days after receipt (whichever comes first). Network Catalyst reserves the right to perform any tests it deems necessary, on site or on the company's premises, on any material claimed to be defective in order to determine if the defect is: 1) the result of manufacturing deficiencies, 2) the result of physical damage inflicted by others, and/or 3) the result of faulty installation practices. Any return of such "defective" material will be subject to the following: A. If tests determine that the material is defective as the result of manufacturing deficiencies, a RA will be issued and Network Catalyst shall assume responsibility for any reasonable freight charges. B. If tests determine the defect is the result of physical damage inflicted by others or faulty installation, no credit will be issued and the invoice billed shall become due and payable. EVALUATION MERCHANDISE Evaluation merchandise are items that are "loaned" to a customer for the purpose of evaluating its use for a specific time period, and for specific needs. An invoice is generated for the cost of the item(s), with a specific evaluation expiration date noted. The Evaluator must contact Network Catalyst on or before the date noted to arrange for a RA or to submit a valid PO to purchase the equipment. Should the Evaluator submit a purchase order, a new invoice will be generated; and a credit will be issued towards the "evaluation" invoice. Should the Evaluator request a RA, the following applies: All RA's must be returned in its original packaging with all hardware, software, cords and manuals enclosed, and must not have any writing or labels on the packaging. Network Catalyst suggests packing the carton(s) inside another carton prior to shipping. If the Evaluator does not contact Network Catalyst on or before the expiration date, Network Catalyst shall consider the item(s) agreed to as sold, and the original invoice shall become due and payable, including all applicable taxes and costs. SUPPORTING DOCUMENTS 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 3Id day of March, 2004, in the City of Vernon, County of Los Angeles, California BY AND BETWEEN THE CITY OF VERNON (hereinafter referred to as "City") 4305 Santa Fe Avenue Vernon, CA 90058 AND NETWORK CATALYST (hereinafter referred to as "Network Catalyst") 200 N. Sepulveda Blvd, Suite 850 E1 Segundo, California 90245 RECITALS 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 the following: one (1) Catalyst 2950, 24 10/100 with 2GBIC slots, enhanced image; one (1) power cord, 110V; one (1) Catalyst 2950, 48 10/100 with 2 GBIC slots, enhanced image; one (1) power cord, 110V; and four (4) 1000Base-LX/LH long haul GBIC (singlemode or multimode) (hereinafter collectively referred to as the "Fiber Optic Cabling"); and WHEREAS, Network Catalyst prepared a quote dated on or about February 25, 2004, (hereinafter referred to as the "Proposal"), a copy of which is attached hereto as Exhibit "A" and made a part hereof, for the Fiber Optic Cabling; and WHEREAS, Network Catalyst represents that it is qualified and capable of furnishing the Fiber Optic Cabling described in Exhibit "A" and is willing to do so on the terms and conditions set forth below; and WHEREAS, the City desires to enter into an agreement with Network Catalyst to provide for the purchase and delivery of the Fiber Optic Cabling. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS SET FORTH HEREIN: 1. Purchase. Network Catalyst agrees to sell and deliver the Fiber Optic Cabling set forth and described in detail in Exhibit "'A." It is understood and agreed that in the event of a conflict between the Proposal and this Contract, the terms of this Contract shall prevail. 2. Time of Performance. The performance of Network Catalyst as identified herein, shall commence upon the full execution of this Contract and shall be completed by Network Catalyst pursuant to the terms of the Proposal, unless otherwise terminated or extended. Delivery of the equipment is expected to be completed no later than fifteen (15) business days from the issuance of the City's Purchase Order. If delivery of the Fiber Optic Cabling is not completed within this time period, the City shall have the option of canceling this Contract in order to proceed with the purchase of the equipment from another vendor, if one can be located. The delivery date may also be extended, at the City's sole - 2 - discretion, for an additional fifteen (15) days, or such other time as the parties may agree. 3. Price. Network Catalyst agrees to perform the work described in its Proposal for a sum not exceed Seven Thousand One Hundred Thirty Dollars and Fifty Cents ($7,130.50), plus tax and any applicable freight. 4. Payment Terms. The City agrees to pay Network Catalyst one hundred percent (100%) of the total purchase price, net thirty (30) days after delivery and acceptance of the Fiber Optic Cabling by City FOB destination and City's receipt of an invoice from Network Catalyst. 5. Change and Extra Services. City reserves the right to make additions to or deletions from the equipment purchased from Network Catalyst. All such changes shall be incorporated in written change orders executed by City and Network Catalyst and shall specify the changes ordered and the adjustment of prices, delivery schedules and warranties. Any equipment added under this section shall be executed under all applicable conditions of this Contract. No claim for additional compensation or extension of time shall be recognized unless contained in a duly executed change order. 6. Cancellation/Default. In the event that Network Catalyst commits a breach of a material condition of this Contract, City shall notify Network Catalyst in writing of said breach and if Network Catalyst has not cured or begun reasonable efforts to cure after fifteen (15) days of receipt of said notice, and fails to diligently pursue corrective - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 211 221 23 24 25 26 27 2811 action, City shall have the right to cancel this Contract for cause based on Network Catalyst' default. Network Catalyst shall be responsible for any direct costs due to City's re -procurement of equipment, the equivalent of that cancelled from Network Catalyst. 7. Confidential Information. A. Access to Confidential Information. City may provide Network Catalyst and/or its subcontractors with, or allow Network Catalyst access to, certain information not available to the public concerning City, or businesses located in City. The information may include company information, taxes, sales, value of assets, 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, Network Catalyst 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. Network Catalyst 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 Network Catalyst has performed all services to be performed pursuant to this Contract. Network Catalyst hereby agrees that such Confidential Information and any documents provided may be used by Network Catalyst and/or its subcontractors only as authorized by the City. Network Catalyst shall include a contract provision in its contract with subcontractors that binds the - 4 - I subcontractors to this non -disclosure requirement. Network Catalyst 2 shall take reasonable measures to avoid any disclosure of any such 3 Confidential Information to any unauthorized person. 4 C. Court Ordered Disclosure. Network Catalyst shall 5 immediately notify City of any court order or subpoena requiring 6 disclosure of Confidential Information, and shall cooperate with 7 City's legal counsel in responding to any such order or subpoena. 8 Network Catalyst may only disclose Confidential Information required 9 to be disclosed pursuant to court order or subpoena after legal 10 counsel has exhausted any lawful and timely appeal or challenge. 11 D. Remedies. In addition to any other remedies that 12 it may have at law or in equity, City shall be entitled to a temporary 13 and permanent injunction by a court of competent jurisdiction against 14 any breach or threatened breach of the Confidential Information 15 provisions of this Agreement. Network Catalyst acknowledges that in 16 case of such breach or threatened breach of said provisions, City 17 would have no adequate remedy at law. 18 8. Warranties. Network Catalyst warrants title to the 19 equipment purchased hereunder and any part thereof to be free of any 20 claim of any security interest, lien or any encumbrance. Network 21 Catalyst also warrants that the equipment will be delivered new and 22 shall be free from defects in material and workmanship. Network 23 Catalyst shall provide a one (1) year material and labor warranty to 24 begin upon City's acceptance of the Fiber Optic Cabling. In addition, 25 all manufacturers' warranties, any warranties typically provided by 26 Network Catalyst, and any other warranties made applicable by law 27 shall apply to the City's purchase of the materials and labor provided 28 by Network Catalyst. - 5 - 1 1 9. Compliance with Laws. Network Catalyst shall strictly 2 observe and comply with all applicable federal, state, and local laws, 3 ordinances and regulations governing this sale, including but not 4 limited to any permit or license requirements of the United States 5 Department of Commerce, as well as any laws of the United States of 6 America. 7 10. Governing Law. The validity, interpretation and 8 performance of this Contract shall be controlled and construed under 9 the laws of the State of California. 10 11. Forum Selection. Any action brought relating to this 11 Contract shall be brought and held exclusively in a state court in the 12 County of Los Angeles, California. 13 12. Notices. Notices to the parties, unless otherwise 14 requested in writing, shall be sent to: 15 16 City: THE CITY OF VERNON ATTN: BRUCE V. MALKENHORST 17 CITY ADMINISTRATOR 18 4305 SANTA FE AVENUE VERNON, CA 90058-0805 19 Network Catalyst: NETWORK CATALYST 20 ATTN: GEORGE CARPENTER 200 N. SEPULVEDA BLVD., SUITE 850 21 EL SEGUNDO, CA 90245 22 13. General Provisions. 23 A. Independent Contractor. At all times during the 24 term of this Contract, Network Catalyst shall be an independent 25 contractor and shall not be an employee of the City. The City shall 26 have the right to control Network Catalyst only insofar as the results 27 of Network Catalyst' services rendered pursuant to this Contract; 28 however, the City shall not have the right to control the means by - 6 - I which Network Catalyst accomplishes services rendered pursuant to the 2 Contract except to the extent that such services involve the use of 3 City property or Confidential Information. 4 B. Network Catalyst Not Agent. Except as the City 5 may specify, in writing, Network Catalyst shall have no authority, 6 express or implied, to act on behalf of the City in any capacity 7 whatsoever as an agent. Network Catalyst shall have no authority, 8 expressed or implied, pursuant to this Contract to bind the City to 9 any obligation whatsoever. 10 C. Indemnification. Network Catalyst shall 11 indemnify, defend, protect and hold the City and its officers, agents 12 and employees, free and harmless from and against any and all claims, 13 demands, losses, damages, liabilities, fines, charges, penalties, 14 orders, judgments and all costs and expenses incurred in connection 15 therewith, including reasonable attorney's fees and costs of defense 16 arising out of or attributable to the negligent or wrongful acts of 17 Network Catalyst or its subcontractors, employees or agents in the 18 performance of services under this Contract, except to the extent 19 arising from or caused by the sole negligence or willful misconduct of 20 the City, its officers, agents or employees. 21 D. Assignment and Subcontracting Prohibited. No party 22 to this Contract may assign or subcontract any right or obligation 23 pursuant to this Contract, except as especially and specifically 24 provided for in the Proposal or with the express written consent of 25 the other party. Any other attempted or purported assignment of any 26 right or obligation pursuant to this Contract shall be void and of no 27 effect. 28 E. Entire Agreement. This Contract constitutes the - 7 - complete and final expression of the agreement of the parties and is intended as a complete and exclusive statement of the terms of their agreement and supersedes all prior and contemporaneous offers, promises, representations, negotiations, discussions, communications and agreements which may have been made in connection with the subject matter hereof. All exhibits are incorporated by reference. Network Catalyst represents that in entering into this Contract it has not relied on any previous representations or understandings of any kind or nature. F. Partial Invalidity. Wherever possible, each provision hereof will be interpreted in such manner as to be effective and valid under applicable law, but in case any one or more of the provisions contained herein will, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective to the extent, but only to the extent of such invalidity, illegality or unenforceability without invalidating the remainder of such provision or provisions or any other provision hereof, unless such a construction would be unreasonable or contrary to the parties' intent as expressed in this Contract. G. Time of the Essence. Time is of the essence in the performance of this Contract and of each and every provision hereof. H. Risk of Loss. Risk of loss or damage shall pass to the City upon installation and acceptance by the City. I. Benefit of Agreement. This Contract shall bind and benefit the parties hereto and their heirs, successors, and permitted assigns. J. Waiver. The waiver by the City of any breach or - 8 I breaches hereof shall not be deemed, nor shall the same constitute, a 2 waiver of any subsequent breach or breaches. Any waiver at any time 3 by either party of its rights with respect to a default under this 4 Contract, or with respect to any other matters arising in connection 5 with this Contract, shall not be deemed a waiver with respect to 6 subsequent default or other matter. 7 K. Amendment. All changes or modifications to this 8 Contract shall be in writing stating that it is an amendment to this 9 Contract and shall be signed by both parties or their duly authorized 10 agents. This Contract shall not be modified through course of 11 dealing, usage or trade. 12 L. Attorneys' Fees. 13 In the event that it becomes necessary for either party 14 to this Contract to enforce any of the provisions of this Contract, 15 the parties agree that a court of competent jurisdiction may determine 16 and fix reasonable attorney's fees to be paid to the successful 17 litigant. 18 M. Force Majeure. Neither Party shall be considered 19 to be in default in any of its obligations under this Contract when a 20 failure of performance shall be due to an uncontrollable force. The 21 term "uncontrollable force" shall mean any cause beyond the control of 22 the party affected, including, but not restricted to, flood, 23 earthquake, storm, fire, lightening, epidemic, war, riot, civil 24 disturbance or disobedience, labor dispute, labor material shortage, 25 sabotage, federal, state, or municipal action, statute, ordinance, or 26 regulation, embargoes of the United States Government or any other 27 government, which by exercise of due diligence such party could not 28 reasonably have been expected to avoid and by exercise of due - 9 - diligence has been unable to overcome. Either party rendered unable to fulfill any of its obligations under this Agreement by reason of an uncontrollable force, shall give written notice within five (5) business days of such fact to the other party and shall exercise due diligence to remove such inability with all reasonable dispatch. 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 APPROVE AS TO FO t� Eric T. Fresch, ity Attorney CITY OF VERNON EONIS C. MALB RG, Ma or ETWORK CATA T By: �/ V, Title: By: C go R G E Title: - 10 - Bullk Better #-j.. f` tNetworks.f1 f Better auslness� $R i! N. SepulvedaBlvd, Su Ite 850, El Seox-odo, CA 't 245 «i a ! i t s Name: Ali Nourmohamadian Company: City of Vernon Address: 4305 Santa Fe Ave. Vernon, CA 90058 Phone: (323) 583-8811 x-316 Fax: (323)826-1435 Email: ANour@dmernon.ca.us 5 -15 Business CA Net 30 2/25/2004 30 Days 1 WS-C2950G-24-El_ Catalyst 2950, 24 10/100 with 2GBIC slots, Enhanced Image 1 $ 2,495.00 $ 1,621.75 1,621.75 2 CAB -AC Power Cord, 110V 1 $ - $ - - 3 WS-C2950G-24-El Catalyst 2950, 4810/100 with 2 GBIC slots, Enhanced Image 1 $ 4,495.00 2,921.75 2,921.75 4 CAB -AC Power Cord, 110V 1 $ - - - 5 WS-G5486 1000BASE-LX/LH long haul GBIC (sin lemode or multimode 4 $ 995.00 $ 646.75 $ 2,587.00 1 1 TOTAL $7,130.50 Prepared By: George Carpenter 310.615.2770 x18 (Email: oeoroecOnetcat.com) his quotation is subject to Network Catalysts standard terms and conditions which are available upon request. All prices are f.o.b. Network Catalyst's Irvine, California facility his quotation is not transferable. Any extension of credit is subject to credit approval. This offer is subject to compliance with the export control laws of the United States. his quotation may be withdrawn at any time without notice and its continued validity must be confirmed prior to placing an order. Sales tax will be added to all sales unless therwise provided by law. All orders are subject to acceptance at Network Catalyst's headquarters in Irvine, California. In no event shall this quotation be valid after the xpiration date stated above. If equipment is to be staged by Network Catalyst, customer agrees that they will be invoiced for the equipment at the beginning of staging. /hen the boxes are opened and staging begins, title and liability for the equipment passes to the customer. y TAXES All taxes applicable to or arising from the sale of any product shall be paid by the Buyer in addition to the price, and at the time and in the manner of the payment of the price, unless the Buyer furnishes to Network Catalyst an effective tax exemption certificate. COSTS Buyer agrees to reimburse Network Catalyst for all applicable freight shown on the invoice. RETURN POLICIES: INCORRECT MATERIAL A. Upon determination that Network Catalyst has shipped incorrect material, a Return Authorization ("RA") will be issued which authorizes the return of the material for full credit, as well as freight charges incurred in the transaction. It is Network Catalyst's position that the Buyer has an obligation to ascertain the correctness of all material before any attempt is made to install it. Therefore, Network Catalyst will not accept the return of nor issue a credit for, any material which bears any appearance of having been installed, totally or in part, nor will freight expenses be allowed. B. Upon determination that Buyer has requisitioned incorrect material, a RA will be issued. Merchandise shipped from Network Catalyst's inventory will be accepted for return provided the material is in original re -salable condition. Once the material is received, inspected, and otherwise determined to be in original re -salable condition, a credit will be issued, with freight costs on the original invoice becoming due and payable by the Buyer. All RA's must be returned in its original packaging with all hardware, software, cords and manuals enclosed, and must not have any writing or labels on the packaging. Network Catalyst suggests packing the carton(s) inside another carton prior to shipping. DEFECTIVE MATERIAL It shall be the Buyer's responsibility to notify Network Catalyst of any possible defect by the close of business on the first business day following such discovery or within fourteen (14) days after receipt (whichever comes first). Network Catalyst reserves the right to perform any tests it deems necessary, on site or on the company's premises, on any material claimed to be defective in order to determine if the defect is: 1) the result of manufacturing deficiencies, 2) the result of physical damage inflicted by others, and/or 3) the result of faulty installation practices. Any return of such "defective" material will be subject to the following: A. If tests determine that the material is defective as the result of manufacturing deficiencies, a RA will be issued and Network Catalyst shall assume responsibility for any reasonable freight charges. B. If tests determine the defect is the result of physical damage inflicted by others or faulty installation, no credit will be issued and the invoice billed shall become due and payable. EVALUATION MERCHANDISE Evaluation merchandise are items that are "loaned" to a customer for the purpose of evaluating its use for a specific time period, and for specific needs. An invoice is generated for the cost of the item(s), with a specific evaluation expiration date noted. The Evaluator must contact Network Catalyst on or before the date noted to arrange for a RA or to submit a valid PO to purchase the equipment. Should the Evaluator submit a purchase order, a new invoice will be generated, and a credit will be issued towards the "evaluation" invoice. Should the Evaluator request a RA, the following applies: All RA's must be returned in its original packaging with all hardware, software, cords and manuals enclosed, and must not have any writing or labels on the packaging. Network Catalyst suggests packing the carton(s) inside another carton prior to shipping. If the Evaluator does not contact Network Catalyst on or before the expiration date, Network Catalyst shall consider the item(s) agreed to as sold, and the original invoice shall become due and payable, including all applicable taxes and costs.