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Resolution No. 84252 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25, 26 27 28 RESOLUTION NO. 8425 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF AN EQUIPMENT PURCHASE AND PROFESSIONAL SERVICES CONTRACT BY AND BETWEEN THE CITY OF VERNON AND MOTOROLA, INC. WHEREAS, the City's Police Department has requested that the City purchase two (2) Motorola Quantar Family Model Repeaters #T5365 with accessories (collectively referred to as the "Repeaters") to replace equipment that is old and does not have digital capability; and WHEREAS, the acquisition of the Repeaters would improve the effectiveness of the Vernon Police Department's operation and enhance the services provided to citizens, residents and businesses within the Vernon community; and WHEREAS, the Police Department selected Motorola, Inc. ("Motorola") to provide the Repeaters based upon Motorola's past performance and dependability and believes Motorola, through K. R. Nida Corporation, to be the only vendor that can provide the necessary Repeaters meeting the Police Department's specifications and requirements; and WHEREAS, on March 24, 2004, the Finance Committee considered the recommendation of Bruce V. Malkenhorst, Director of Finance, dated March 18, 2004, that the Repeaters be purchased from Motorola, through the Nida Corporation; 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 Motorola, Inc. for the 1purchase of the Repeaters to enhance services provided to the Vernon 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 community. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby approves the Equipment Purchase and Professional Services Contract with Motorola, 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: Motorola, Inc. Attn. David Little, Contracts Manager 6450 Sequence Drive San Diego, CA 92121 - 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 7th day of April, 2004. ATTEST: f BRUCE V. MALKENHORST, City Clerk ONIS C. MAL URG, Ma or - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 8425, was duly adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Wednesday, April 7, 2004, and thereafter was duly signed by the Mayor of the City of Vernon. (SEAL) v BRUCE V. MALKENHORST, City Clerk - 4 - EXHIBIT 1 EQUIPMENT PURCHASE AND PROFESSIONAL SERVICES 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 day of April, 2004, 6 in the City of Vernon, County of Los Angeles, California 7 BY AND BETWEEN THE CITY OF VERNON, a municipal corporation (hereinafter 8 referred to as "City") 9 4305 Santa Fe Avenue Vernon, CA 90058 10 AND MOTOROLA, INC., a Delaware 11 corporation (hereinafter (referred to as "Motorola") 12 6450 Sequence Drive San Diego, CA 92121 13 14 RECITALS 15 WHEREAS, the City's Police Department has requested the 16 purchase and installation of two (2) Motorola Quantar Family Model 17 Repeaters #T5365 with accessories (hereinafter collectively referred to 18 as the "Repeaters") to replace equipment that is old and does not have 19 digital capability; and 20 WHEREAS, the City desires to upgrade its equipment to improve 21 the effectiveness of its operation and enhance the services provided to 22 citizens, residents and businesses within the Vernon community; and 23 WHEREAS, Motorola, through K.R. Nida Corporation (hereinafter 24 "Nida"), a vendor the City has used in the past, has submitted a 25 quotation (referred to hereinafter as the "Quotation"), a copy of which 26 is attached hereto as Exhibit "A" and incorporated herein by reference; 27 and 28 WHEREAS, the Quotation specifies that the prices, discounts, 1 terms and conditions of the quotation are based upon Motorola's Los 2 Angeles County Contract #40856 which is valid through June 30, 2005; 3 and 4 WHEREAS, Motorola has advised the City that it can furnish 5 the Repeaters, as set forth in the Quotation, and is willing to do so 6 on'the terms and conditions set forth below; and 7 WHEREAS, City desires to enter into an agreement with 8 Motorola to provide for the purchase, delivery, installation and 9 testing of the Repeaters. 10 NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS SET 11 FORTH HEREIN: 12 1. Scope of Services. 13 Motorola agrees to sell, deliver, furnish the necessary 14 equipment, install and test the Repeaters at the City water tower and 15 basement of City Hall, as described in detail in the Quotation. In the 16 event of a conflict between the Quotation and this Contract, the terms 17 of this Contract shall prevail 18 2. Time of Performance. 19 Motorola's performance as identified herein shall commence 20 upon the full execution of this Contract and shall be completed by 21 Motorola pursuant to the terms of the Quotation, unless otherwise 22 terminated or extended. Delivery of the equipment is expected no later 23 than 45 days from the issuance of the City's Purchase Order. If 24 delivery of the Repeaters is not completed within this time period, the 25 City shall have the option of canceling this Contract in order to 26 proceed with the purchase and installation of the equipment from 27 another vendor, if one can be located. The delivery date may also be 28 extended at the City's sole discretion for an additional thirty (30) - 2 - 1 days, or such other time as the parties may agree. 2 3. Price. 3 The City shall compensate Motorola for the actual equipment 4 purchased under the Quotation. The cost for each of the two (2) 5 Repeaters is Nineteen Thousand Five Hundred Ninety -Two Dollars and 6 Forty -Seven Cents ($19,592.47). The total compensation shall not 7 exceed Thirty -Nine Thousand One Hundred Eighty -Four Dollars and Ninety- 8 Four Cents ($39,184.94). Installation, shipping and tax are included 9 in this price. 10 4. Method of Payment. 11 The City agrees to pay Motorola for the full amount of the 12 Repeaters within thirty (30) days after the City's testing and 13 acceptance of the equipment and the City's receipt of an invoice from 14 Motorola. 15 Purchase orders shall be made out to Motorola and faxed to 16 Nida at (818) 957-0719 for processing. 17 Motorola shall be responsible for paying any subcontractors 18 used in the performance of this Agreement. Subcontractors shall not 19 bill the City directly. 20 5. Change and Extra Services. 21 City reserves the right to request changes in the equipment 22 or additions to or deletions from the equipment purchased from 23 Motorola. All such changes shall be incorporated in written change 24 orders executed by City and Motorola and shall specify the changes 25 ordered and the adjustment of prices, delivery schedules and 26 warranties. Any equipment or services added under this section shall 27 be executed under all applicable conditions of this Contract. No claim 28 for additional compensation or extension of time shall be recognized - 3 - 1 unless contained in a duly executed change order. 2 6. Cancellation/Default. 3 A. This Contract may be terminated by the City for its 4 convenience upon fifteen (15) days prior written notice and upon 5 payment of reasonable and proper termination charges, including, but 6 not limited to, all costs incurred or committed prior to the effective 7 date of notice of termination and all charges incurred by Motorola in 8 connection with the termination. 9 B. In the event that Motorola commits a breach of a 10 material condition of this Contract, the City shall notify Motorola in 11 writing of said breach and if Motorola has not cured or begun 12 reasonable efforts to cure after fifteen (15) days of receipt of said 13 notice, and fails to diligently pursue corrective action, then the City 14 shall have the right to cancel this Contract. Motorola shall be 15 responsible for any direct costs due to the City's re -procurement of 16 the equivalent of the equipment or services cancelled from Motorola. 17 7. Confidential Information. 18 A. Access to Confidential Information. The City may 19 provide Motorola and/or its subcontractor with, or allow Motorola 20 access to, certain information not available to the public concerning, 21 but not limited to the City, or businesses located in the City. The 22 information may include, but is not limited to, company information, 23 taxes, sales, value of assets, utility usage, or other such 24 information. All such information shall be known as "Confidential 25 Information" and may not be used to circumvent the responsibility of 26 either party to this Contract. 27 B. No Disclosure. Except as expressly permitted, Motorola 28 and/or its subcontractor shall not disclose, permit the disclosure of, - 4 - 1 release, disseminate, or transfer, whether orally or by any other 2 means, any part of such Confidential Information to any other person or 3 entity, whether corporate, governmental, or individual, without the 4 express prior written consent of an authorized representative of the 5 City. Motorola and/or its subcontractor shall return any written 6 Confidential Information, and all copies made of such items, to the 7 City upon the City's written request, but in any event not later than 8 the date that Motorola has performed all services to be performed 9 pursuant to this Contract. Motorola hereby agrees that such 10 Confidential Information and any documents provided may be used by 11 Motorola and/or its subcontractor only as authorized by the City. 12 Motorola shall include a contract provision in its contract with 13 subcontractors that binds the subcontractors to this non -disclosure 14 requirement. Motorola shall take reasonable measures to avoid any 15 disclosure of any such Confidential Information to any unauthorized 16 person. 17 C. Court Ordered Disclosure. Motorola shall immediately 18 notify the City of any court order or subpoena requiring disclosure of 19 Confidential Information, and shall cooperate with legal counsel in the 20 appeal or challenge of any such order or subpoena. Recipient may only 21 disclose Confidential Information required to be disclosed pursuant to 22 court order or subpoena after legal counsel has exhausted any lawful 23 and timely appeal or challenge. 24 D. Remedies. In addition to any other remedies that it may 25 have at law or in equity, the City shall be entitled to a temporary and 26 permanent injunction by a court of competent jurisdiction against any 27 breach or threatened breach of the Confidential Information provisions 28 of this Contract. Motorola acknowledges that in case of such breach or - 5 - I threatened breach of said provisions, the City would have no adequate 2 remedy at law. 3 8. Warranties. 4 Motorola warrants title to the equipment purchased hereunder 5 and any part thereof to be free of any claim of any security interest, 6 lien or any encumbrance. Motorola also warrants that the equipment 7 will be delivered new and shall be free from defects in material and 8 workmanship and will provide a one year labor and material warranty for 9 the warranty period of twelve months from operation. All 10 manufacturers' warranties provided by Motorola, and any other 11 warranties typically provided by Motorola or made applicable by law 12 shall apply to the parts and labor provided by hereunder. THESE 13 WARRANTIES ARE THE COMPLETE WARRANTIES FOR THE REPEATERS PROVIDED UNDER 14 THIS AGREEMENT AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. MOTOROLA 15 DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, 16 INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND 17 FITNESS FOR A PARTICULAR PURPOSE. 18 9. Compliance with Laws. 19 Motorola shall strictly observe and comply with all 20 applicable federal, state, and local laws, ordinances and regulations 21 governing this sale, including but not limited to any permit or license 22 requirements of the United States Department of Commerce, as well as 23 any laws of the United States of America. 24 10. Governing Law. 25 The validity, interpretation and performance of this Contract', 26 shall be controlled and construed under the laws of the State of 27 California. 28 - 6 - 1 11. Forum Selection. 2 Any action brought relating to this Contract shall be brought 3 and held exclusively in a State Court in the County of Los Angeles, 4 California. 5 12. Notices. 6 Notices to the parties, unless otherwise requested in 7 writing, shall be sent to: 8 City: THE CITY OF VERNON ATTN: BRUCE V. MALKENHORST 9 CITY ADMINISTRATOR 10 4305 SANTA FE AVENUE VERNON, CA 90058-0805 11 12 Motorola: MOTOROLA, INC. ATTN: VICE PRESIDENT SALES 13 6450 SEQUENCE DRIVE SAN DIEGO, CA 92121 14 15 13. General Provisions. 16 A. Independent Contractor. 17 At all times during the term of this Contract, Motorola shall) 18 be an independent contractor and shall not be an employee of City. 19 City shall have the right to control Motorola only insofar as the 20 results of Motorola's services rendered pursuant to this Contract; 21 however, City shall not have the right to control the means by which 22 Motorola accomplishes services rendered pursuant to the Contract except 23 to the extent that such services involve the use of City property or 24 Confidential Information. 25 B. Motorola Not Agent. 26 Except as City may specify in writing, Motorola shall have no 27 authority, express or implied, to act on behalf of City in any capacity 28 whatsoever as an agent. Motorola shall have no authority, express or - 7 - 1 implied, pursuant to this Contract to bind City to any obligation 2 whatsoever. 3 C. Limitation of Liability. 4 This limitation of liability provision shall apply 5 notwithstanding any contrary provision in this Agreement. Except for 6 personal injury or death, Motorola's total liability, whether for 7 breach of contract, warranty, negligence, strict liability in tort, 8 indemnification, or otherwise, will be limited to the direct damages 9 recoverable under law, but not to exceed the price of the Repeaters 10 with respect to which losses or damages are claimed. ALTHOUGH THE 11 PARTIES ACKNOWLEDGE THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, THEY 12 AGREE THAT MOTOROLA WILL NOT BE LIABLE FOR ANY COMMERCIAL LOSS; 13 INCONVENIENCE; LOSS OF USE, TIME, DATA, GOOD WILL, REVENUES, PROFITS OR 14 SAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL 15 DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT, THE SALE 16 OR USE OF THE REPEATERS, OR THE PERFORMANCE OF SERVICES BY MOTOROLA 17 PURSUANT TO THIS AGREEMENT. This limitation of liability will survive 18 the expiration or termination of this Agreement. No action for breach 19 of this Agreement or otherwise relating to the transactions 20 contemplated by this Agreement may be brought more than one (1) year 21 after the accrual of such cause of action, except for money due upon an 22 open account. 23 D. Insurance. 24 Motorola agrees to provide insurance in the amounts and forms 25 specified in Exhibit "B," which is attached hereto and made a part 26 hereof by reference. Comparable coverage shall be provided for each 27 subcontractor used in the performance of this Contract. Motorola shall 28 submit to City documentation indicating compliance with these minimum - 8 - 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 requirements no less than one (1) day prior to the beginning of performance under this Contract. Motorola shall not commence performance of its services under this Contract until the above insurance has been obtained and proof of insurance has been filed with and approved by City. E. Entire Agreement. This Contract constitutes the 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. Motorola represents that in entering into this Contract it has not relied on any previous representations or understandings of any kind or nature. F. Partial Invaliditv. 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. Risk of Loss. Title and risk of loss or damage shall pass to City and delivery shall be deemed to be complete upon delivery FOB 4305 Santa Fe - 9 - 1 Avenue, Vernon, California. 2 H. Benefit of Agreement. 3 This Contract shall bind and benefit the parties hereto and 4 their heirs, successors, and permitted assigns. 5 I. Force Majeure. 6 Neither party shall be considered to be in default in any of 7 its obligations under this Contract when a failure of performance shall 8 be due to an uncontrollable force. The terms "uncontrollable force" 9 shall mean any cause beyond the control of the party affected, 10 including, but not restricted to, flood, earthquake, storm, fire, 11 lightening, epidemic, war, riot, civil disturbance or disobedience, 12 labor dispute, labor material shortage, sabotage, federal, state, or 13 municipal action, statute, ordinance, or regulation, embargoes or the 14 United States Government or any other government, which by exercise of 15 due diligence such party could not reasonably have been expected to 16 avoid and by exercise to due diligence has been unable to overcome. 17 Either party rendered unable to fulfill any of its obligations under 18 this Contract by reason of an uncontrollable force, shall give written 19 notice within five (5) business days of such fact to the other party 20 and shall exercise due diligence to remove such inability with all 21 reasonable dispatch. 22 J. Waiver. 23 Any waiver at any time by either party of its rights with 24 respect to a default under this Contract, or with respect to any other 25 matters arising in connection with this Contract, shall not be deemed a', 26 waiver with respect to subsequent default or other matter. 27 K. Amendment. 28 All changes or modifications to this Contract shall be in a - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 2: 21 2' 2 2 2 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. L. Attorneys' Fees. In the event that it becomes necessary for either party to this Contract to enforce any of the provisions of this Contract, the parties agree that a court of competent jurisdiction may determine and fix reasonable attorney's fees to be paid to the successful litigant. 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. =1, i 7 8 ATTEST: BRUCE V. MALKENHORST, City Clerk APPROVEDAST FO ERIC T. FRESCH, City Attorney CITY OF VERNON By: LEONIS C. MALBURG, Mayor RIOT OLA, INC . By: T it BP$ERT SCHASSLER MCEI, I E PRESIDENT AND DIRECTOR, SALES By: WEST N P 01 Title: ✓ 4J 6 � S' /%tip i ,,MEWED AND A RDVED AS 0,41t , ?ABDO MOTO OLA r:;�T" a:ClS AisD C0�P11AI�CE pEPT�" EXHIBIT It N w 0 g-1 ,0: 0 O W U W D Q K g Z IL UJ 00 o O < o O h Go C CD ° 0 N 1 a dj O .G 0 0 0 0 d o F Q ti a U a w¢a>a c m N G. m c m > N O CN p C ¢o m mONi 0 m 00 0 U¢ C LL - c n' U c c)E w ca¢ p o c m m m c U U v- O R R O OD 0UaZ Oln UJMv>iiYY�c�oU') 0 Q. -- N N H 'O CL A N CIO) N O L m o U U 3 ui y, U M }a n. m 3 3 a C C Z Q zf0z E E 0 E O O m .2 .2 O N w j R U¢ U w 2 d a ri0ioo�o r- M N O O O O O O O N O� l0 riuivvai000 O CO GoU.) 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CelGficationBid Response Manual Motorola Internal Use only Page 8 Gt91�4 t ��r11 4D21 N0.978 P.3` certification/Bid Response Manual Motorola Internal Use OMy Page 9 EXHIBIT 1 EQUIPMENT PURCHASE AND PROFESSIONAL SERVICES 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 day of April, 2004, 6 in the City of Vernon, County of Los Angeles, California 7 BY.AND BETWEEN THE CITY OF VERNON, a municipal corporation (hereinafter 8 referred to as "City") 9 4305 Santa Fe Avenue Vernon, CA 90058 10 AND MOTOROLA, INC., a Delaware 11 corporation (hereinafter (referred to as "Motorola") 12 6450 Sequence Drive San Diego, CA 92121 13 14 RECITALS 151 WHEREAS, the City's Police Department has requested the 16 purchase and installation of two (2) Motorola Quantar Family Model 17 Repeaters #T5365 with accessories (hereinafter collectively referred to 18 as the "Repeaters") to replace equipment that is old and does not have 191 digital capability; and 201 WHEREAS, the City desires to upgrade its equipment to improve 21 the effectiveness of its operation and enhance the services provided to 22 citizens, residents and businesses within the Vernon community; and 23 WHEREAS, Motorola, through K.R. Nida Corporation (hereinafter 24 "Nida"), a vendor the City has used in the past, has submitted a 25 quotation (referred to hereinafter as the "Quotation"), a copy of which 26 is attached hereto as Exhibit "A" and incorporated herein by reference; 27 and 28 WHEREAS, the Quotation specifies that the prices, discounts, 1 terms and conditions of the quotation are based upon Motorola's Los 2 Angeles County Contract #40856 which is valid through June 30, 2005; 3 and 4 WHEREAS, Motorola has advised the City that it can furnish 5 the Repeaters, as set forth in the Quotation, and is willing to do so 6 on'the terms and conditions set forth below; and 7 WHEREAS, City desires to enter into an agreement with 8 Motorola to provide for the purchase, delivery, installation and 9 testing of the Repeaters. 10 NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS SET 11 FORTH HEREIN: 12 1. Scope of Services. 13 Motorola agrees to sell, deliver, furnish the necessary 14 equipment, install and test the Repeaters at the City water tower and 15 basement of City Hall, as described in detail in the Quotation. In the 16 event of a conflict between the Quotation and this Contract, the terms 17 of this Contract shall prevail. 18 2. Time of Performance. 19 Motorola's performance as identified herein shall commence 20 upon the full execution of this Contract and shall be completed by 21 Motorola pursuant to the terms of the Quotation, unless otherwise 22 terminated or extended. Delivery of the equipment is expected no later 23 than 45 days from the issuance of the City's Purchase Order. If 24 delivery of the Repeaters is not completed within this time period, the', 25 City shall have the option of canceling this Contract in order to 26 proceed with the purchase and installation of the equipment from 27 another vendor, if one can be located. The delivery date may also be 28 extended at the City's sole discretion for an additional thirty (30) - 2 - 23 24 25 26 27 28 days, or such other time as the parties may agree. 3. Price. The City shall compensate Motorola for the actual equipment purchased under the Quotation. The cost for each of the two (2) Repeaters.is Nineteen Thousand Five Hundred Ninety -Two Dollars and Forty -Seven Cents ($19,592.47). The total compensation shall not exceed Thirty -Nine Thousand One Hundred Eighty -Four Dollars and Ninety - Four Cents ($39,184.94). Installation, shipping and tax are included in this price. 4. Method of Payment. The City agrees to pay Motorola for the full amount of the Repeaters within thirty (30) days after the City's testing and acceptance of the equipment and the City's receipt of an invoice from Motorola. Purchase orders shall be made out to Motorola and faxed to Nida at (818) 957-0719 for processing. Motorola shall be responsible for paying any subcontractors used in the performance of this Agreement. Subcontractors shall not bill the City directly. 5. Change and Extra Services. City reserves the right to request changes in the equipment or additions to or deletions from the equipment purchased from Motorola. All such changes shall be incorporated in written change orders executed by City and Motorola and shall specify the changes ordered and the adjustment of prices, delivery schedules and warranties. Any equipment or services 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 - 3 - 1 unless contained in a duly executed change order. 2 6. Cancellation/Default. 3 A. This Contract may be terminated by the City for its 4 convenience upon fifteen (15) days prior written notice and upon 5 payment of reasonable and proper termination charges, including, but 6 not limited to, all costs incurred or committed prior to the effective 7 date of notice of termination and all charges incurred by Motorola in 8 connection with the termination. 9 B. In the event that Motorola commits a breach of a 10 material condition of this Contract, the City shall notify Motorola in 11 writing of said breach and if Motorola has not cured or begun 12 reasonable efforts to cure after fifteen (15) days of receipt of said 13 notice, and fails to diligently pursue corrective action, then the City 14 shall have the right to cancel this Contract. Motorola shall be 15 responsible for any direct costs due to the City's re -procurement of 16 the equivalent of the equipment or services cancelled from Motorola. 17 7. Confidential Information. 18 A. Access to Confidential Information. The City may 19 provide Motorola and/or its subcontractor with, or allow Motorola 20 access to, certain information not available to the public concerning, 21 but not limited to the City, or businesses located in the City. The 221 information may include, but is not limited to, company information, 23 taxes, sales, value of assets, utility usage, or other such 24 information. All such information shall be known as "Confidential 25 Information" and may not be used to circumvent the responsibility of 26 either party to this Contract. 27 B. No Disclosure. Except as expressly permitted, Motorola 28 and/or its subcontractor shall not disclose, permit the disclosure of, - 4 - 1 release, disseminate, or transfer, whether orally or by any other 2 means, any part of such Confidential Information to any other person or 3 entity, whether corporate, governmental, or individual, without the 4 express prior written consent of an authorized representative of the 5 City. Motorola and/or its subcontractor shall return any written 6 Confidential Information, and all copies made of such items, to the 7 City upon the City's written request, but in any event not later than 8 the date that Motorola has performed all services to be performed 9 pursuant to this Contract. Motorola hereby agrees that such 10 Confidential Information and any documents provided may be used by 11 Motorola and/or its subcontractor only as authorized by the City. 12 Motorola shall include a contract provision in its contract with 131 subcontractors that binds the subcontractors to this non -disclosure 14 requirement. Motorola shall take reasonable measures to avoid any 15 disclosure of any such Confidential Information to any unauthorized 16 person. 17 C. Court Ordered Disclosure. Motorola shall immediately 18 notify the City of any court order or subpoena requiring disclosure of 19 Confidential Information, and shall cooperate with legal counsel in the 20 appeal or challenge of any such order or subpoena. Recipient may only 21 disclose Confidential Information required to be disclosed pursuant to 22 court order or subpoena after legal counsel has exhausted any lawful 23 and timely appeal or challenge. 24 D. Remedies. In addition to any other remedies that it may 25 have at law or in equity, the City shall be entitled to a temporary and 26 permanent injunction by a court of competent jurisdiction against any 27 breach or threatened breach of the Confidential Information provisions 28 of this Contract. Motorola acknowledges that in case of such breach or - 5 - 1 threatened breach of said provisions, the City would have no adequate 2 remedy at law. 3 8. Warranties. 41 Motorola warrants title to the equipment purchased hereunder 5 and any part thereof to be free of any claim of any security interest, 6 lien or any encumbrance. Motorola also warrants that the equipment 7 will be delivered new and shall be free from defects in material and 8 workmanship and will provide a one year labor and material warranty for 9 the warranty period of twelve months from operation. All 10 manufacturers' warranties provided by Motorola, and any other 111 warranties typically provided by Motorola or made applicable by law 12 shall apply to the parts and labor provided by hereunder. THESE 13 WARRANTIES ARE THE COMPLETE WARRANTIES FOR THE REPEATERS PROVIDED UNDER 14 THIS AGREEMENT AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. MOTOROLA 15 DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED,, 16 INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND 17 FITNESS FOR A PARTICULAR PURPOSE. 18 9. Compliance with Laws. 19 Motorola shall strictly observe and comply with all 20 applicable federal, state, and local laws, ordinances and regulations 21 governing this sale, including but not limited to any permit or license 22 requirements of the United States Department of Commerce, as well as 23 any laws of the United States of America. 24 10. Governing Law. 25 The validity, interpretation and performance of this Contract 26 shall be controlled and construed under the laws of the State of 27 California. 28 - 6 - 1 11. Forum Selection. 2 Any action brought relating to this Contract shall be brought 3 and held exclusively in a State Court in the County of Los Angeles, 4 California. 5 12. Notices. 61 Notices to the parties, unless otherwise requested in 7 writing, shall be sent to: 8 City: THE CITY OF VERNON ATTN: BRUCE V. MALKENHORST 9 CITY ADMINISTRATOR 10 4305 SANTA FE AVENUE VERNON, CA 90058-0805 11 12 Motorola: MOTOROLA, INC. ATTN: VICE PRESIDENT SALES 13 6450 SEQUENCE DRIVE SAN DIEGO, CA 92121 14 15 13. General Provisions. 16 A. Independent Contractor. 17 At all times during the term of this Contract, Motorola shall 18 be an independent contractor and shall not be an employee of City. 19 City shall have the right to control Motorola only insofar as the 20 results of Motorola's services rendered pursuant to this Contract; 21 however, City shall not have the right to control the means by which 22 Motorola accomplishes services rendered pursuant to the Contract except 23 to the extent that such services involve the use of City property or 24 Confidential Information. 25 B. Motorola Not Agent. 26 Except as City may specify in writing, Motorola shall have no 27 authority, express or implied, to act on behalf of City in any capacity 28 whatsoever as an agent. Motorola shall have no authority, express or - 7 - 1 implied, pursuant to this Contract to bind City to any obligation 2 whatsoever. 3 C. Limitation of Liability. 4 This limitation of liability provision shall apply 5 notwithstanding any contrary provision in this Agreement. Except for 61 personal injury or death, Motorola's total liability, whether for 7 breach of contract, warranty, negligence, strict liability in tort, 8 indemnification, or otherwise, will be limited to the direct damages 9 recoverable under law, but not to exceed the price of the Repeaters 10 with respect to which losses or damages are claimed. ALTHOUGH THE 11 PARTIES ACKNOWLEDGE THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, THEY 12 AGREE THAT MOT©ROLA WILL NOT BE LIABLE FOR ANY COMMERCIAL LOSS; 13 INCONVENIENCE; LOSS OF USE, TIME, DATA, GOOD WILL, REVENUES, PROFITS OR 14 SAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL 15 DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT, THE SALE 16 OR USE OF THE REPEATERS, OR THE PERFORMANCE OF SERVICES BY MOTOROLA 17 PURSUANT TO THIS AGREEMENT. This limitation of liability will survive 18 the expiration or termination of this Agreement. No action for breach 19 of this Agreement or otherwise relating to the transactions 20 contemplated by this Agreement may be brought more than one (1) year 21 after the accrual of such cause of action, except for money due upon an 22 open account. 23 D. Insurance. 24 Motorola agrees to provide insurance in the amounts and forms 25 specified in Exhibit "B," which is attached hereto and made a part 26 hereof by reference.. Comparable coverage shall be provided for each 27 subcontractor used in the performance of this Contract. Motorola shall 28 submit to City documentation indicating compliance with these minimum - 8 - t II 1 requirements no less than one (1) day prior to the beginning of 2 performance under this Contract. Motorola shall not commence 3 performance of its services under this Contract until the above 4 insurance has been obtained and proof of insurance has been filed with 5 and approved by City. 6 E. Entire Agreement. 7 This Contract constitutes the complete and final expression 8 of the agreement of the parties and is intended as a complete and 9 exclusive statement of the terms of their agreement and supersedes all 10 prior and contemporaneous offers, promises, representations, 11 negotiations, discussions, communications and agreements which may have 12 been made in connection with the subject matter hereof. All exhibits 13 are incorporated by reference. Motorola represents that in entering 14 into this Contract it has not relied on any previous representations or 15 understandings of any kind or nature. 16 F. Partial Invalidity. 17 Wherever possible, each provision hereof will be interpreted 18 in such manner as to be effective and valid under applicable law, but 19 in case any one or more of the provisions contained herein will, for 20 any reason, be held to be invalid, illegal or unenforceable in any 21 respect, such provision will be ineffective to the extent, but only to 22 the extent of such invalidity, illegality or unenforceability without 23 invalidating the remainder of such provision or provisions or any other 24 provision hereof, unless such a construction would be unreasonable or 25 contrary to the parties' intent as expressed in this Contract. 26 G. Risk of Loss. 27 Title and risk of loss or damage shall pass to City and 28 delivery shall be deemed to be complete upon delivery FOB 4305 Santa Fe - 9 - 1 Avenue, Vernon, California. 2 H. Benefit of Agreement. 3 This Contract shall bind and benefit the parties hereto and 4 their heirs, successors, and permitted assigns. 5 I. Force Majeure. 6 Neither party shall be considered to be in default in any of 71 its obligations under this Contract when a failure of performance shall 8 be due to an uncontrollable force. The terms "uncontrollable force" 9 shall mean any cause beyond the control of the party affected, 10 including, but not restricted to, flood, earthquake, storm, fire, 11 lightening, epidemic, war, riot, civil disturbance or disobedience, 12 labor dispute, labor material shortage, sabotage, federal, state, or 13 municipal action, statute, ordinance, or regulation, embargoes or the 14 United States Government or any other government, which by exercise of 15 due diligence such party could not reasonably have been expected to 16 avoid and by exercise to due diligence has been unable to overcome. 17 Either party rendered unable to fulfill any of its obligations under 18 this Contract by reason of an uncontrollable force, shall give written 19 notice within five (5) business days of such fact to the other party 20 and shall exercise due diligence to remove such inability with all 21 reasonable dispatch. 22 J. Waiver. 23 Any waiver at any time by either party of its rights with 241 respect to a default under this Contract, or with respect to any other 25 matters arising in connection with this Contract, shall not be deemed a 26 waiver with respect to subsequent default or other matter. 27 K. Amendment. 28 All changes or modifications to this Contract shall be in a - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 2.4 25 26 27 28 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. L. Attorneys' Fees. In the event that it becomes necessary for either party to this Contract to enforce any of the provisions of this Contract, the parties agree that a court of competent jurisdiction may determine and fix reasonable attorney's fees to be paid to the successful litigant. 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: z2-:7 1,- , ERIC T. FRES ity Attorney M Titl By: Title: 1/14 qAd REVIEWED AND .A ...-- Mp-i (aKu C61?i�' as Pilo CCU'? CITY OF VERNON EONIS C. MAL URG, ayor MCEI, VICE PRESIDENT AND DIRECTOR, ! I Ma- R W 0,�WF. wC Om0 Z 0 bi Z p Z j W �0 d W rc o0 O j o tt v�i � M O O Q t a V o orb U A O a O N ❑ coaai O A N 'i7 C m t to a m m m.- > N n. ¢ to 0 0 0) O 1.0) �U a41 to0 a c >— Co m-- @ m CO 0 oN d -0 otn ro 1- o E m Z� 0� 0 Uiv>iiYYmt(vo0 0 a -- 01 rn � m a v a 0 0 0 � a O m m 4 B m m U 42 }a CL L E a to a rn a 0 N R m to E o m to m .Q E o o m V) ca ;sow 0 7 U Q U O. 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C m ix a d� t0 > a c-5 o o a v 'Ccgma3�g�mm C y•O o`o -+ m O OE o$m�C.03 - o2g�a�mc83- g c)0 o c -5 m F- r t m m S-0ui10mamrso C O m � T 4) Q Y O O C r .k S lO m 0 N N q m a i a a E W -wo O U O COc) m °p C t IL .O O> N ,:5 °mom m m > o to 2` 3 ct,D o c o fn ma T€� o E R q wa2a Y co a) > () d U m O C-0 .0. tZj to E p. '�. Q d to d Y fd Co >,nn� n Ca 0 C N o a.a tLna coi�co as 3 a m N m 'o V iti �o m > Q. E O E a N a E t + U rn 0 m mCL F-CO ~ O L � m otS C N •�• E O V to as a Hai o U U c N M V' to t0 to a E 0 U R V Z PRODUCER Ann R= SERVICES. INC. OF I1. MIS Aon CWTBR 200 EAST RANDOLPH STREET CMCAGO.IIddNOM 60601 INSURED MOTOROLA INC. AND ITS SUBSIDARIES 1303 LAST ALGONGUIN ROAD SMKUMBURG IL 60196 This JUMORANDUM IS A MATTER OF INFORiVIATION ONLY. TiiI,S AUMOBAN EN DOES NOT AMFND. JOCI D OR ALTRR TEM COVERAGT(S AFFORDED BY THE POUc= BELOW. COMPANIES ,AFFORDING COVERAGE COWANYA LIBMTY MLrY'CTAG iNSL)RANCE COMPANY COMPANY B LIBERTY MUTUAL FM INSURANCE COMPANY COMPANY C LIBERTY INSURANCE COP"RA'TION COMPANY D 7HI3I8ToC.BSTtBY'iSATTFj6p�r� C� ANCgLrST�UBELONvHA1+SBg�1s9[r�Tatipn1s�NAtr®ABova�nR POLiCYpR&IODR�ICA'it0� CRM&TPJMTADIIQQ g� UORCONDt97W09ANY C�CrcRoumnocammgwrII� rTo�VomTmCHRTWAT4MAYDISU M NAYP�TAIlQ.7DF31N9[11tAMCRAVPOMX D BY TM pOL.TC''=EgSCRM=Emtm IS BEMMCTTO M.L nm Rm9. tcm A1-m TONS 0P3um(POLIC= LIIvIT!'S siOWNMAYHAYEBF�N RFaUM YPAM M AD& A H. A -camurdd GUM71 R02-C41-00516M73 GENERAL Lishlity 7/01/2003 7/Ol/2M AGGRWAn -0xurtmpa PRODiKRtS - CM&/OPAW jra L& ADY V=Y EMU OCCUREmm LIAWLM j 169-013 (Domes& Auto. A:n Odw LikaT -Afty Alto 7/01R003 7/01/2004 ��aidretnim A8i-C41-005169-023 (0610) DODMYIN= CerUfiwUonBid Response Manual Motorola Internal Use Only Page 8 CaMfication/Bid Response Manual Motorola Internal use Only Page 9