Resolution No. 8407f
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RESOLUTION NO. 8407
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 TOM MALLOY CORPORATION DBA
TRENCH SHORING COMPANY
WHEREAS, the City's Community Services & Water Department
requested the purchase of welded non-skid surface trench tops in
various sizes (hereinafter referred to as the Trench Tops") in order to
cover excavation sites located in and under City streets; and
WHEREAS, the City sought informal quotes from three vendors
for the purchase of the Trench Tops; and
WHEREAS, based upon the past performance and dependability of
existing equipment from Tom Malloy Corporation dba Trench Shoring
Company (hereinafter "Trench Shoring"), the fact that the Trench Tops
have the appropriate non-skid surface and that the Department's
existing equipment can only be used on Trench Shoring products, the
Community Services & Water Department has determined that Trench
Shoring is the only vendor that can provide the Trench Tops meeting the
Department's specifications and requirements; and
WHEREAS, on March 23, 2004, the Finance Committee considered
the recommendation of Bruce V. Malkenhorst, Director of Finance, dated
March 18, 2004, that the Trench Tops be purchased from Trench Shoring;
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 Trench Shoring for the purchase
of the Trench Tops to enhance services provided to the Vernon
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community.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the Equipment Purchase Contract with Tom Malloy Corporation
dba Trench Shoring Company, 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:
Tom Malloy Corporation dba Trench Shoring Company
Attn. Ernie Padilla
636 E. Rosecrans Avenue
Los Angeles, CA 90059
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 24th day of March, 2004.
kLEONIS C. MAL$URG, Mayor
ATTEST: �V
BRUCE V. MALKENHORST, City Clerk
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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.
8407, 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,
March 24, 2004, and thereafter was duly signed by the Mayor of the City
of Vernon.
(SEAL)
BRUCE V. MALKENHORST, City Cler
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EXHIBIT
AV
1 EQUIPMENT PURCHASE CONTRACT
2
3 THIS CONTRACT is made, entered into and executed in duplicate
4 originals, either copy of which may be considered and used as the
5 original hereof for all purposes, as of this 24th day of March, 2004, in
6 the City of Vernon, County of Los Angeles, California
7 BY AND BETWEEN CITY OF VERNON (hereinafter
referred to as "City")
8 4305 Santa Fe Avenue
9 Vernon, CA 90058
10 AND TOM MALLOY CORPORATION dba
TRENCH SHORING COMPANY
11 (hereinafter referred to as
"Trench Shoring")
12 636 E. Rosecrans Avenue
Los Angeles, CA 90059
13
RECITALS
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15 WHEREAS, the City's Community Services & Water Department has
16 requested the purchase of welded non-skid surface trench tops in various
17 sizes (hereinafter referred to as the "Trench Tops"); and
18 WHEREAS, the Trench Tops will be used to cover excavation
19 sites located in and under City streets; and
20 WHEREAS, Trench Shoring has prepared a quote dated on or
21 about March 2, 2004, (the "Proposal"), a copy of which is attached
22 hereto as Exhibit "A" and incorporated herein by reference for the
23 Trench Tops; and
24 WHEREAS, the City desires to enter into an agreement with
25 Trench Shoring to provide for the purchase and delivery of the Trench
26 Tops; and
27 WHEREAS, Trench Shoring represents that it is qualified and
28 capable of providing the Trench Tops described in Exhibit "A" that the
1 City requires and is willing to do so on the terms and conditions set
2 forth below.
3 NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS SET
4 FORTH HEREIN:
5 1. Purchase.
6 Trench Shoring agrees to sell and deliver the Trench Tops set
7 forth and described in detail in the Proposal. It is understood and
8 agreed that in the event of a conflict between this Contract and the
9 Proposal, the terms of this Contract shall prevail.
10 2. Time of Performance.
11 The performance of Trench Shoring as identified herein shall
12 commence upon the full execution of this Contract and shall be
13 completed by Trench Shoring pursuant to the terms of the Proposal,
14 unless otherwise terminated or extended. Delivery of the Trench Tops
15 is expected to be completed no later than two (2) weeks from the
16 issuance of City's purchase order. If delivery of the Trench Tops is
17 not completed within this time period, the City shall have the option
18 of canceling this Contract in order to proceed with the purchase of the
19 equipment from another vendor, if one can be located. The delivery
20 date may also be extended, at the City's sole discretion, for an
21 additional fifteen (15) days, or such other time as the parties may
22 agree.
23 3. Delivery. Trench Shoring agrees to deliver the Trench
24 Tops to the Pipe Yard located at 4355 Downey Road, Vernon, California.
25 Trench Shoring shall notify the City's warehouse personnel prior to
26 delivery of plates to allow access into the Pipe Yard.
27 4. Price.
28 Trench Shoring agrees to sell and deliver the Trench Tops
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1 described in the Proposal in the total not to exceed amount of Twenty-
2 Six Thousand Two Hundred Twenty -Eight Dollars and Ninety -Eight Cents
3 ($26,228.98). This price includes tax, delivery charges and lifting
4 nut in center with customer initials welded in plates.
5 5. Payment Terms.
6 The City agrees to pay Trench Shoring one hundred percent
7 (1000) of the total purchase price, net thirty (30) days after delivery''
8 and acceptance of the Trench Tops by City FOB destination and City's
9 receipt of an invoice from Trench Shoring.
10 6. Change and Extra Services.
11 The City reserves the right to make additions to or deletionsl'i
12 from the equipment purchased from Trench Shoring. All such changes
13 shall be incorporated in written change orders executed by the City and
14 Trench Shoring that shall specify the changes ordered and the
15 adjustment of prices, delivery schedules and warranties. Any equipment
16 added to this Contract, under this section, shall be executed under all
17 applicable conditions of this Contract. No claim for additional
18 compensation or extension of time shall be recognized unless contained
19 in a duly executed change order.
20 7. Cancellation/Default.
21 In the event that Trench Shoring commits a breach of a
22 material condition of this Contract, City shall notify Trench Shoring
23 in writing of said breach and if Trench Shoring has not cured or begun
24 reasonable efforts to cure after fifteen (15) days of receipt of said
25 notice, and fails to diligently pursue corrective action, then City
26 shall have the right to cancel this Contract for cause based on Trench
27 Shoring's default. Trench Shoring shall be responsible for any direct
28 costs due to City's re -procurement of the equivalent of the equipment
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1 cancelled from Trench Shoring.
2 8. Confidential Information.
3 A. Access to Confidential Information. City may provide
4 Trench Shoring, and/or its subcontractors with, or allow Trench Shoring
5 and/or its subcontractor access to certain information not available to
6 the public concerning, but not limited to City, or businesses located
7 in City. The information may include, but is not limited to, company
8 information, taxes, sales, value of assets, utility usage, or other
g such information. All such information shall be known as "Confidential
10 Information" and may not be used to circumvent the responsibility of
11 either party to this Contract.
12 B. No Disclosure. Except as expressly permitted, Trench
13 Shoring, and/or its subcontractors, shall not disclose, permit the
14 disclosure of, release, disseminate, or transfer, whether orally or by
15 any other means, any part of such Confidential Information to any other
16 person or entity, whether corporate, governmental, or individual,
17 without the express prior written consent of an authorized
18 representative of City. Trench Shoring, and/or its subcontractors,
19 shall return any written Confidential Information, and all copies made
20 of such items, to City upon City's written request, but in any event
21 not later than the date that Trench Shoring and/or its subcontractors
22 has performed all services to be performed pursuant to this Contract.
23 Trench Shoring hereby agrees that such Confidential Information and any
24 documents provided may be used by Trench Shoring, and/or its
25 subcontractors, only as authorized by City. Trench Shoring shall
26 include a contract provision in its contract with subcontractors that
27 bind the subcontractors to this non -disclosure requirement. Trench
28 Shoring shall take reasonable measures to avoid any disclosure of any
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such Confidential Information to any unauthorized person.
C. Court Ordered Disclosure. Trench Shoring 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. Trench
Shoring 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. Trench Shoring acknowledges that in case of such
breach or threatened breach of said provisions, City would have no
adequate remedy at law.
9. Warranties.
Trench Shoring 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. Trench Shoring also warrants that
the equipment will be delivered new and shall be free from defects in
material and workmanship. All manufacturers' warranties, any
warranties typically provided by Trench Shoring and any other
warranties made applicable by law shall apply to the City's purchase of
the Trench Tops.
10. Compliance with Laws.
Trench Shoring 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
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1 requirements of the United States Department of Commerce, as well as
2 any laws of the United States of America.
3 11. Governing Law.
4 The validity, interpretation and performance of this Contract
5 shall be controlled and construed under the laws of the State of
6 California.
7 12. Forum Selection.
8 Any action brought relating to this Contract shall be brought
9 and held exclusively in a state court in the County of Los Angeles,
10 California.
11 13. Notices.
12 Notices to the parties, unless otherwise requested in
13 writing, shall be sent to:
14 City: CITY OF VERNON
ATTN: BRUCE V. MALKENHORST
15 CITY ADMINISTRATOR
4305 SANTA FE AVENUE
16 VERNON, CA 90058-0805
17 Trench Shoring: TOM MALLOY CORPORATION dba TRENCH SHORING COMPANY
18 ATTN: ERNIE PADILLA
636 E. ROSECRANS AVENUE
19 LOS ANGELES, CA 90059
20
14. General Provisions.
21
A. Independent Contractor.
22
At all times during the term of this Contract, Trench Shoring
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shall be an independent contractor and shall not be an employee of the
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City. The City shall have the right to control Trench Shoring only
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insofar as the results of Trench Shoring services rendered pursuant to
26
this Contract; however, the City shall not have the right to control
27
the means by which Trench Shoring accomplishes services rendered
28
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1 pursuant to the Contract except to the extent that such services
2 involve the use of City property or Confidential Information.
3 B. Trench Shoring Not Agent.
4 Except as provided for herein or as the City may otherwise
5 specify in writing, Trench Shoring shall have no authority, express or
6 implied, to act on behalf of the City in any capacity whatsoever as an
7 agent. Except as provided for herein, Trench Shoring shall have no
8 authority, express or implied, pursuant to this Contract to bind the
9 City to any obligation whatsoever.
10 C. Indemnification.
11 Trench Shoring shall indemnify, defend, protect and hold the
12 City and its officers, agents and employees, free and harmless from and
13 against any and all claims, demands, losses, damages, liabilities,
14 fines, charges, penalties, orders, judgments and all costs and expenses
15 incurred in connection therewith, including reasonable attorney's fees
16 and costs of defense arising out of or attributable to the negligent or
17 wrongful acts of Trench Shoring, or its subcontractors, employees or
18 agents in the performance of services under this Contract, except to
19 the extent arising from or caused by the sole negligence or willful
20 misconduct of the City, its officers, agents or employees.
21 D. Assignment and Subcontracting Prohibited.
22 No party to this Contract may assign or subcontract any right
23 or obligation pursuant to this Contract without the express written
24 consent of the other party. Any other attempted or purported
25 assignment of any right or obligation pursuant to this Contract shall
26 be void and of no effect.
27 E. Entire Agreement.
28 This Contract constitutes the complete and final expression
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1 of the agreement of the parties and is intended as a complete and
2 exclusive statement of the terms of their agreements and supersedes all
3 prior and contemporaneous offers, promises, representations,
4 negotiations, discussions, communications and agreements which may have
5 been made in connection with the subject matter hereof. All exhibits
6 are incorporated by reference. Trench Shoring represents that in
7 entering into this Contract, it has not relied on any previous
8 representations or understandings of any kind or nature.
9 F. Partial Invalidity.
10 Wherever possible, each provision hereof will be interpreted
11 in such manner as to be effective and valid under applicable law, but
12 in case any one or more of the provisions contained herein will, for
13 any reason, be held to be invalid, illegal or unenforceable in any
14 respect, such provision will be ineffective to the extent, but only to
15 the extent, of such invalidity, illegality or unenforceability without
16 invalidating the remainder of such invalid, illegal or unenforceable
17 provision or provisions or any other provision hereof, unless such a
18 construction would be unreasonable or contrary to the intent of the
19 parties as expressed in this Contract.
20 G. Time of the Essence.
21 Time is of the essence in the performance of this Contract
22 and of each and every provision hereof. The waiver by the City of any
23 breach or breaches hereof shall not be deemed, nor shall the same
24 constitute, a waiver of any subsequent breach or breaches.
25 H. Risk of Loss.
26 Title and risk of loss or damage shall pass to City and
27 delivery shall be deemed to be complete upon delivery FOB destination.
28
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1 I. Attorneys' Fees.
2 In the event that it becomes necessary for either party to
3 this Contract to enforce any of the provisions of this Contract, the
4 parties agree that a court of competent jurisdiction may determine and
5 fix reasonable attorney's fees to be paid to the successful litigant.
6 J. Benefit of Agreement.
7 This Contract shall bind and benefit the parties hereto and
g their heirs, successors, and permitted assigns.
9 K. Force Majeure.
10 Neither party shall be considered to be in default in any of
11 its obligations under this Contract when a failure of performance shall
12 be due to an uncontrollable force. The terms "uncontrollable force"
13 shall mean any cause beyond the control of the party affected,
14 including, but not restricted to, flood, earthquake, storm, fire,
15 lightening, epidemic, war, riot, civil disturbance or disobedience,
16 labor dispute, labor material shortage, sabotage, federal, state, or
17 municipal action, statute, ordinance, or regulation, embargoes or the
18 United States Government or any other government, which by exercise of
19 due diligence such party could not reasonably have been expected to
20 avoid and by exercise to due diligence has been unable to overcome.
21 Either party rendered unable to fulfill any of its obligations under
22 this Contract by reason of an uncontrollable force, shall give written
23 notice within five (5) business days of such fact to the other party
24 and shall exercise due diligence to remove such inability with all
25 reasonable dispatch.
26 L. Waiver.
27 Any waiver at any time by either party of its rights with
28 respect to a default under this Contract, or with respect to any other
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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
JIM
By
Ti
By
Title.
CITY OF VERNON
LEONIS C. MALBURG, Mayor
TOM MALLOY CORPORATION dba
TRENCH SHORING COMPANY
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EXHIBIT
03/08/2004 12:58 FAX 323 581 7924 _ CITY OF VERNON J L.EHR
Sent•ey: Trench Shoring; 310327 6521; Mar-3-04 7:34AM;
Tom Malloy Corp. me
Cnmlfhuent to ;ZM91 ffi SWiw
Shea 1973
638*E. ROSF_CRANS AVE
LOS ANGIrI-ES CA. 90059
PHONE 800-423-4411
QUOTE
Oita:
&WIX
To:
DEBBME NICKENS
CITY OF VERNON
-ftx:
323 8264 433
Job:
SALE QUOTE
f@ 004
Page .1 / 1
Qty
Description
EACH
5
6' XIO' TRENCH TOP WMEt:D£D NON SKD SURIPACE
$1,790io.a
4
8' X 10' TRENCH TOP W/ WELDED NON SKID SURFACE
$2,370.00
4
W X 8'' TRENCH TOP W / wr=LDED NON SKID SURFACE.
S1 A5&'00
�P1LrQ l MA-YYILL 13C j%UU=U. 11-l1�•1*a /°1 U�LIVtI"iCU
PRICE TO V6RNON. INCLUDES LIFTII4G NUT IN
CENTER AND CUSTOMER INITIALS WELDED IN
PLATES. AVAILAB,ILiTY 5 DAYS ARO OR LESS
SINCERELY
ERNI•E PADILLA 310 327-5554
'oue4e�+e �.. � � •
03/03
8,950.001-
9, 4r80. 00+
5,800.00+
003
24,230-00o
24-9230.00x
8.25%
1 y998.93+
2-6,228. 98 �
751 9 001
SUPPORTING
DOCUMENTS
1 EQUIPMENT PURCHASE CONTRACT
2
3 THIS CONTRACT is made, entered into and executed in duplicate
4 originals, either copy of which may be considered and used as the
5 original hereof for all purposes, as of this 24th day of March, 2004, in
6 the City of Vernon, County of Los Angeles, California
7 BY AND BETWEEN CITY OF VERNON (hereinafter
referred to as "City")
8 4305 Santa Fe Avenue
9
Vernon, CA 90058
10 AND TOM MALLOY CORPORATION dba
TRENCH SHORING COMPANY
11 (hereinafter referred to as
"Trench Shoring")
12 636 E. Rosecrans Avenue
Los Angeles, CA 90059
13
14 RECITALS
15 WHEREAS, the City's Community Services & Water Department has
16 requested the purchase of welded non-skid surface trench tops in various
17 sizes (hereinafter referred to as the "Trench Tops"); and
18 WHEREAS, the Trench Tops will be used to cover excavation
19 sites located in and under City streets; and
20 WHEREAS, Trench Shoring has prepared a quote dated on or
21 about March 2, 2004, (the "Proposal"), a copy of which is attached
22 hereto as Exhibit "A" and incorporated herein by reference for the
231 Trench Tops; and
24 WHEREAS, the City desires to enter into an agreement with
25 Trench Shoring to provide for the purchase and delivery of the Trench
26 Tops; and
271 WHEREAS, Trench Shoring represents that it is qualified and
28 capable of providing the Trench Tops described in Exhibit "A" that the
1 City requires and is willing to do so on the terms and conditions set
2 forth below.
3 NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS SET
4 FORTH HEREIN:
5 1. Purchase.
6 Trench Shoring agrees to sell and deliver the Trench Tops set
7 forth and described in detail in the Proposal. It is understood and
8 agreed that in the event of a conflict between this Contract and the
9 Proposal, the terms of this Contract shall prevail.
10 2. Time of Performance.
11 The performance of Trench Shoring as identified herein shall
12 commence upon the full execution of this Contract and shall be
13 completed by Trench Shoring pursuant to the terms of the Proposal,
14 unless otherwise terminated or extended. Delivery of the Trench Tops
15 is expected to be completed no later than two (2) weeks from the
16 issuance of City's purchase order. If delivery of the Trench Tops is
17 not completed within this time period, the City shall have the option
18 of canceling this Contract in order to proceed with the purchase of the
19 equipment from another vendor, if one can be located. The delivery
20 date may also be extended, at the City's sole discretion, for an
21 additional fifteen (15) days, or such other time as the parties may
22 agree.
23 3. Delivery. Trench Shoring agrees to deliver the Trench
24 Tops to the Pipe Yard located at 4355 Downey Road, Vernon, California.
25 Trench Shoring shall notify the City's warehouse personnel prior to
26 delivery of plates to allow access into the Pipe Yard.
27 4. Price.
28 Trench Shoring agrees to sell and deliver the Trench Tops
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1 described in the Proposal in the total not to exceed amount of Twenty-
2 Six Thousand Two Hundred Twenty -Eight Dollars and Ninety -Eight Cents
3 ($26,228.98). This price includes tax, delivery charges and lifting
4 nut in center with customer initials welded in plates.
5 5. Payment Terms.
6 The City agrees to pay Trench Shoring one hundred percent
7 (100%) of the total purchase price, net thirty (30) days after delivery
8 and acceptance of the Trench Tops by City FOB destination and City's
9 receipt of an invoice from Trench Shoring.
10 6. Change and Extra Services.
11 The City reserves the right to make additions to or deletions
12 from the equipment purchased from Trench Shoring. All such changes
13 shall be incorporated in written change orders executed by the City and
14 Trench Shoring that shall specify the changes ordered and the
15 adjustment of prices, delivery schedules and warranties. Any equipment
16 added to this Contract, under this section, shall be executed under all
17 applicable conditions of this Contract. No claim for additional
18 compensation or extension of time shall be recognized unless contained
19 in a duly executed change order.
20 7. Cancellation/Default.
21 In the event that Trench Shoring commits a breach of a
22 material condition of this Contract, City shall notify Trench Shoring
23 in writing of said breach and if Trench Shoring has not cured or begun
24 reasonable efforts to cure after fifteen (15) days of receipt of said
25 notice, and fails to diligently pursue corrective action, then City
26 shall have the right to cancel this Contract for cause based on Trench
27 Shoring's default. Trench Shoring shall be responsible for any direct
28 costs due to City's re -procurement of the equivalent of the equipment
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11 cancelled from Trench Shoring.
8. Confidential Information.
A. Access to Confidential Information. City may provide
Trench Shoring, and/or its subcontractors with, or allow Trench Shoring
and/or its subcontractor access to certain information not available to
the public concerning, but not limited to City, or businesses located
in City. The information may include, but is not limited to, company
information, taxes, sales, value of assets, utility usage, or other
such information. All such information shall be known as "Confidential
Information" and may not be used to circumvent the responsibility of
either party to this Contract.
B. No Disclosure. Except as expressly permitted, Trench
Shoring, 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. Trench Shoring, 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 Trench Shoring and/or its subcontractors
has performed all services to be performed pursuant to this Contract.
Trench Shoring hereby agrees that such Confidential Information and any
documents provided may be used by Trench Shoring, and/or its
subcontractors, only as authorized by City. Trench Shoring shall
include a contract provision in its contract with subcontractors that
bind the subcontractors to this non -disclosure requirement. Trench
Shoring shall take reasonable measures to avoid any disclosure of any
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such Confidential Information to any unauthorized person.
C. Court Ordered Disclosure. Trench Shoring 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. Trench
Shoring 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. Trench Shoring acknowledges that in case of such
breach or threatened breach of said provisions, City would have no
adequate remedy at law.
9. Warranties.
Trench Shoring 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. Trench Shoring also warrants that
the equipment will be delivered new and shall be free from defects in
material and workmanship. All manufacturers' warranties, any
warranties typically provided by Trench Shoring and any other
warranties made applicable by law shall apply to the City's purchase ofl
the Trench Tops.
10. Compliance with Laws.
Trench Shoring 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
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requirements of the United States Department of Commerce, as well as
any laws of the United States of America.
11. Governing Law.
The validity, interpretation and performance of this Contract
shall be controlled and construed under the laws of the State of
California.
12. 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.
13. 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
Trench Shoring: TOM MALLOY CORPORATION dba TRENCH SHORING COMPANY
ATTN: ERNIE PADILLA
636 E. ROSECRANS AVENUE
LOS ANGELES, CA 90059
14. General Provisions.
A. Independent Contractor.
At all times during the term of this Contract, Trench Shoring
shall be an independent contractor and shall not be an employee of the
City. The City shall have the right to control Trench Shoring only
insofar as the results of Trench Shoring services rendered pursuant to
this Contract; however, the City shall not have the right to control
the means by which Trench Shoring accomplishes services rendered
- 6 -
1 I. Attorneys' Fees.
2 In the event that it becomes necessary for either party to
3 this Contract to enforce any of the provisions of this Contract, the
4 parties agree that a court of competent jurisdiction may determine and
5 fix reasonable attorney's fees to be paid to the successful litigant.
6 J. Benefit of Agreement.
7 This Contract shall bind and benefit the parties hereto and
8 their heirs, successors, and permitted assigns.
9 K. Force Majeure.
10 Neither party shall be considered to be in default in any of
11 its obligations under this Contract when a failure of performance shall
12 be due to an uncontrollable force. The terms "uncontrollable force"
13 shall mean any cause beyond the control of the party affected,
14 including, but not restricted to, flood, earthquake, storm, fire,
15 lightening, epidemic, war, riot, civil disturbance or disobedience,
16 labor dispute, labor material shortage, sabotage, federal, state, or
17 municipal action, statute, ordinance, or regulation, embargoes or the
18 United States Government or any other government, which by exercise of
19 due diligence such party could not reasonably have been expected to
20 avoid and by exercise to due diligence has been unable to overcome.
21 Either party rendered unable to fulfill any of its obligations under
22 this Contract by reason of an uncontrollable force, shall give written
23 notice within five (5) business days of such fact to the other party
24 and shall exercise due diligence to remove such inability with all
25 reasonable dispatch.
26 L. Waiver.
27 Any waiver at any time by either party of its rights with
28 respect to a default under this Contract, or with respect to any other
- 9 -
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11 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
II 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.
CITY OF VERNON
By:
LEONIS C. MALBUR Mayor
ATTEST:
BRUCE V. MALKENHORST, City Clerk
APPROVED AS TO FO
ERIC T. FRESCH, City kttorney
TOM MALLOY CORPORATION dba
TRENCH SHORING COMPANY
By:
Title
By
Title: (mod
- 10 -
-- - - — -- . sis ur v>,xivu�v ► J LEHR I�404
;ent-By. Trench Sharing; 310327 6521; Mar-3-04 7.34AM; Page 1/1
To:
-Fait:
Job:
3f2/04
DEBBIE MC ENS
CITY OF VERNON
323 =64433
SALE QUOTE
Ton mabN cww
IN, - I
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cowmaw" abSeAy SWiw
acme ten
638'E. ROSECRANS AVE
LOS ANGELES CA. 9D059
PHONE 800-423-4411
QUOTE
Y
Description
EACH
5
6' X10' TENCH TOP wMELDkb NON SKM SURFACE
S1,i9Q:OQ
4
S' X IV TRENCH TOP W! WELDED NON SKID SURFACE
$2,370:00
4
w X SwTR.9Nf:Ft TOP W / wj LDED NON SKID SURFACE
51,450:00
--- I rv^• TV IL- uc rti.ivcv. l nl%3• 1Q ^ UMLlv=r(CU
PRICE TO VERNON. INCLUDES LIFTING NUT IN
CENTER AND CUSTOMER INITIALS WELDED IN
PLATES. AVAILABILITY 5 DAYS ARO OR LESS
SMCERELY
ERNI•E PADR.LA 310 327-SWA
8,950-00+
9,480.00+
5,800.00+
003
24,230.00o
249230.00x
8.25x
12998.98*+
1,998.•93+
2-6, 2 2 B- 9 8 F
03/03
751 16001