Resolution No. 8579in
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RESOLUTION NO. 8579
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 COMSERCO, INC.
WHEREAS, the Vernon Fire Department has determined that it
needs a new mobile laptop computer with all the necessary installation
hardware to be placed on the USAR vehicle plus additional sets of
hardware for installing three existing mobile laptop computers on Fire
Engine Nos. E12, E13 and the Reserve Command Vehicle (collectively the
"Equipment") in order to complete the installation of the new computer
system into all of the Fire engines; and
WHEREAS, the purchase of the Equipment is needed in order to
receive emergency information from the dispatch CAD system using Vision
Mobile software; and
WHEREAS, Comserco, Inc. installed all the mobile computers
currently in use and based on their expertise and familiarity with the
City's apparatuses and the communication industry, it should be able to
provide the Equipment and installation services now required by the
City in a more efficient and effective manner; and
WHEREAS, on June 1, 2004, the Finance Committee considered
the recommendation of Bruce V. Malkenhorst, Director of Finance, dated
May 26, 2004, that a contract be approved and executed for purchase of
the Equipment from Comserco; 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 Comserco for the purchase of
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the Equipment.
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 Comserco, in
substantially the same form as the copy which is attached hereto as
Exhibit A and incorporated by reference.
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:
Comserco
Attn. Jerry Moskal
2020 Iowa
Riveside, CA 92507
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 20th day of October, 2004.
c'' x
fLEONIS C. MALBURG, Aayor
ATTEST:
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.
8579, was duly adopted by the City Council of the City of Vernon at a
regular meeting of the City Council duly held on Wednesday, October 20,
2004, and thereafter was duly signed by the Mayor of the City of
Vernon.
(SEAL)
BRUCE V. MALKENHORST, City Clerk
- 3 -
EXHIBIT
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EQUIPMENT PURCHASE CONTRACT
THIS 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 20`h day of October, 2004, in the City of
Vernon, County of Los Angeles, State of California
BY AND BETWEEN THE CITY OF VERNON
(hereinafter referred to as "City")
4305 Santa Fe Avenue
Vernon, CA 90058
AND COMSERCO, INC.
(hereinafter referred to as "Comserco")
2020 Iowa
Riverside, CA 92507
RECITALS
WHEREAS, the City's Fire Department is requesting the purchase of one new
mobile laptop computer with all the necessary installation hardware to be placed on the USAR
Vehicle and three additional sets of hardware for installing three existing mobile laptop
computers on the new Fire Engine Nos. E12, E13 and the Reserve Command Vehicle
(collectively the "Equipment"); and
WHEREAS, Comserco has prepared a quotation dated on or about February, 13,
2004 for the sale, delivery and installation of the Equipment, a copy of which is attached hereto
as Exhibit A and incorporated by this reference (the "Proposal"); and
WHEREAS, Comserco represents that it is qualified and capable of providing the
Equipment described in Exhibit A on the terms and conditions set forth below; and
WHEREAS, the City desires to enter into an agreement with Comserco to provide
for the purchase, delivery, and installation of the Equipment on the terms and conditions set forth
below.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Purchase and Sale of the Equipment.
1.1 Equipment. Comserco shall sell and deliver, and the City shall purchase
the Equipment described in the Proposal. In the event of a conflict between the terms of this
Contract and the Proposal, the terms of this Contract shall control.
1.2 Delivery and Installation. Comserco shall obtain and sell, deliver and
install the Equipment at the City of Vernon, F.O.B. Job Site. Comserco is responsible for all
costs of full freight, including insurance, to Job Site. Risk of loss shall pass to the City upon
delivery F.O.B. Job Site.
2. Time of Performance. Comserco shall commence and complete the delivery and
installation of the Equipment as follows:
2.1 Time Schedule. Comserco shall begin to obtain the Equipment upon the
later of the full execution of this Contract and the City's issuance of a Purchase Order (the
"Commencement Date"). Comserco shall complete delivery of the Equipment no later than
weeks from the Commencement Date (the "Delivery Time"). Unless performance is
excused, as set forth in Paragraph 2.2, Comserco's failure to deliver the Equipment within the
Delivery Time shall constitute a material default of this Contract, and, among other remedies
available to it, the City shall have the option of terminating this Contract.
2.2 Force Majeure. Neither party shall be considered to be in default in any of
its obligations under this Contract when a failure of performance shall be due to an
uncontrollable force. The term "uncontrollable force" shall mean any cause beyond the control
of the party affected, including, but not restricted to, flood, earthquake, storm, fire, lightening,
epidemic, war, riot, civil disturbance or disobedience, federal, state, or municipal action, statute,
ordinance, or regulation, embargoes of the United States Government or any other government,
which by exercise of due diligence such parry could not reasonably have been expected to avoid
and by exercise of due diligence has been unable to overcome. Either party rendered unable to
fulfill any of its obligations under this Contract 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. The Delivery Time shall be
extended by Change Order by the number of days of delay caused by the uncontrollable force, as
the City may reasonably determine. An extension of the Delivery Time by reason of an
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uncontrollable force shall not justify extra compensation for Comserco for administrative or
other costs or expenses; provided, however, that if the time for achieving delivery is materially
extended by reason of uncontrollable force through no fault of Comserco, Comserco shall be
entitled to an increase in the Contract Sum, but only in any amount equal to the increase in
Comserco' direct cost resulting from such delay.
3. Contract Sum. The purchase price for the Equipment is Thirty -One Thousand
Five Hundred Fifteen Dollars and No Cents ($31,515.00), plus applicable sales tax, freight and
installation totaling the sum of Forty -Two Thousand Four Hundred Ninety -One Dollars and
Seventy -One Cents ($42,491.71) (the "Contract Sum").
4. Payment Terms.
4.1 Payment. One hundred percent (100%) of the Contract Sum shall be paid
within thirty (30) days after (a) the City's receipt, testing, and approval of the Equipment; (b) the
City's receipt of all required documentation (including, without limitation, warranties provided
by the manufacturers, and operating manuals, specifications, and other documentation necessary
and appropriate for the installation, operation, and maintenance, and repair of the Equipment;
collectively, the "Documentation"); (c) the City's receipt of an invoice in a form reasonably
acceptable to the City from Comserco; (d) the City's receipt of fully executed assignments of all
manufacturers' warranties and guarantees in favor of the City in form and substance reasonably
acceptable to the City; and (e) the City's receipt of evidence of Comserco' payment of all of its
obligations in connection with this Contract.
4.2 Billings for Change Orders. Any billings for Change Orders, as defined in
Paragraph 7 below, must be billed by separate invoice, with a copy of the applicable Change
Order signed by the City attached to the invoice.
4.3 Payment Holds. Notwithstanding anything to the contrary contained
herein, the City shall not be obligated to make any payment to Comserco if Comserco is in
default of any of its obligations under this Contract; any portion of the Equipment is defective or
not in accordance with the terms of this Contract (provided, however, that payment shall be made
as to any portion of the Equipment that is acceptable to the City); or the conditions required for
payment as set forth in Paragraph 4.1 above have not been satisfied.
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4.4 Payment is Not Acceptance. Neither payment by the City nor use of the
Equipment by the City shall constitute an acceptance of any Equipment not in accordance with
the terms of this Contract.
5. Comserco' Representations, Warranties, and Covenants.
5.1 Capability. Comserco represents to the City that it is qualified, willing,
and able to obtain, sell, deliver and install the Equipment.
5.2 Testing. Comserco shall inspect the Equipment as it is received by
Comserco for delivery to the City, and will reject any Equipment that is defective, with the cost
of repair or replacement being the responsibility of Comserco. The City reserves the right to test
the Equipment, regardless of the results of Comserco' testing.
5.3 Assignment of Warranties; Delivery of Documentation. Comserco shall
assign to the City at the time of delivery of the Equipment all manufacturers' warranties for the
Equipment and Comserco shall assemble and deliver to the City complete copies of all
warranties, guaranties, and operating and maintenance data and all other Documentation (as
defined in Paragraph 4.1) from all manufacturers whose Equipment is delivered to the City
pursuant to this Contract.
5.4 Compliance with Law. Comserco shall strictly observe and comply with
all applicable federal, state, and local laws, ordinances, and regulations governing the sale and
delivery of the Equipment, including, but not limited to any permit or license requirements of the
United States Department of Commerce.
5.5 Authorizations. Comserco is authorized to do business in California and
properly licensed and registered by all governmental authorities having jurisdiction over it.
5.6 Title to City. Comserco warrants that title to Equipment will pass to the
City either by incorporation in the construction or upon the receipt of payment by Comserco,
whichever occurs first, free and clear of all liens, claims, security interests or encumbrances, and
that no seller of any Equipment or any portion thereof will retain an interest therein or an
encumbrance thereon.
5.7 Payments to Third Parties. Comserco shall promptly pay all bills for labor
and materials furnished by others in connection with this Contract.
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5.8 Warran
5.8.1 Comserco' Warranties. Comserco warrants that all Equipment will
be new and free from defects in materials and workmanship, comply with the specifications
provided by the manufacturers, be of good quality and merchantability, and fit for their intended
purposes, and conform to all applicable governmental regulations, statutes, and ordinances. Any
Equipment not conforming to these requirements, including substitutions not properly approved
and authorized, may be considered defective. In the event that the test results obtained by either
Comserco or the City reveals that any portion of the Equipment does not meet the City's
specifications or the City identifies any defects in or damage to the Equipment, Comserco shall
promptly repair or replace any defective Equipment; provided, however, that if, in the City's
reasonable discretion, the quantity or quality of the defects are substantial, the City shall have the
option of rejecting the entire shipment of Equipment from that vendor, and obtaining another
vendor to provide that Equipment. Comserco shall be responsible for all direct and indirect costs
that may be incurred by the City in connection with the rejection and/or replacement of damaged
or defective Equipment, including any damage caused to the City's existing Equipment and the
Vernon Substation or the Malburg Project by the installation or use of defective Equipment
provided by Comserco.
5.8.2 Manufacturers' Warranties. Comserco shall obtain for the benefit
of the City, and assign to the City, commercially reasonable manufacturers' warranties for parts
and labor, which shall commence one (1) year from the date of installation of the Equipment
being purchased by the City under this Contract or the City's acceptance of the Equipment being
purchased hereunder, whichever occurs first. Comserco shall assist the City in the enforcement
of all such warranties.
5.8.3 Warran1y Period. Comserco, at its cost, shall promptly repair or
replace or cause the manufacturer to repair or replace (provided, however, that the City shall
cooperate in working with the manufacturers if the warranties have been assigned to the City)
Equipment rejected by the City as defective or as failing to conform to this Contract if reported to
Comserco within the Warranty Period. The Warranty Period shall be the period of (a) one (1)
year from the date of installation of Equipment being purchased hereunder or from the date of the
City's acceptance of the Equipment being purchased hereunder, whichever occurs first; or (b)
such longer period of time as may be prescribed by law or by the terms of the applicable
manufacturers' warranty. The City shall give such notice promptly after discovery of a defective
condition. A new one year Warranty Period shall commence for repaired or replaced Equipment
on the date the repair or replacement was made. Comserco' obligations hereunder shall include
the obligation to repair any damage to other property caused by the defective Equipment or the
repair thereof. Comserco shall indemnify the City from and hold the City harmless against any
and all claims, liabilities, liens, damages, losses, costs, and expenses, including reasonable
attorneys' fees and all costs of defense, arising out of or relating (a) to any such Equipment found
to be defective or not in accordance with this Contract, or (b) the correction of any such
Equipment.
The foregoing representations, warranties, covenants, and agreements shall survive
any termination of this Contract and final completion of the delivery of the Equipment and are in
addition to, and not in lieu of, any and all other liability imposed upon Comserco by law with
respect to Comserco' duties, obligations and performance hereunder.
6. Indemnification.
6.1 Comserco' Indemnity. To the fullest extent permitted by law, Comserco
shall defend, indemnify and hold harmless City and its elected officials, officers, agents and
employees from all claims, suits, actions, demands, damages, liabilities, expenses, judgments,
settlements and penalties, losses, fines, and all costs and expenses incurred in connection
therewith, including reasonable attorneys' fees and all costs of defense, arising out of or
attributable to the negligent or wrongful acts of Comserco or its employees or agents in the
delivery of Equipment under this Contract, except to the extent arising from or caused by the sole
negligence or willful misconduct of the City, its officers, agents or employees. The terms of this
indemnity shall survive the termination of this Contract. The obligations in this Paragraph are in
addition to Comserco'duty to provide insurance and shall not be limited by any limitation on the
amount or type of insurance coverage carried by Comserco,
6.2 Indemnity Process. The City shall notify Comserco in writing of any suits,
claims or demands covered by this indemnity. Promptly after receipt of such notice, Comserco
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shall assume the defense of such claim with counsel reasonably satisfactory to City. If Comserco
fails, within a reasonable time after receipt of such notice, to assume the defense with counsel
reasonably satisfactory to City, or if, in the reasonable judgment of City, a direct or indirect
conflict of interest exists between the parties with respect to the claim, or if in the sole judgment
of City the assumption and conduct of the defense by Comserco would materially and adversely
affect City in any manner or prejudice its ability to conduct a successful defense, then the City
shall have the right to undertake the defense, compromise and settlement of such claim for the
account and at the expense of Comserco. Notwithstanding the above, if the City in its sole
discretion so elects, City may also participate in the defense of such actions by employing
counsel at its expense, without waiving the City's obligations to indemnify or defend. Comserco
shall not settle or compromise any claim or consent to the entry of any judgment without the
prior written consent of the City and without an unconditional release of all liability by each
claimant or plaintiff to the City.
7. Change Orders. The City reserves the right to make additions to or deletions from
the Equipment being purchased under this Contract. All such changes shall be incorporated in
written change orders executed by the City. The Change Orders shall specify the changes
ordered and the adjustment of prices, delivery schedules and warranties. Any Equipment or
services added to this Contract under a Change Order shall be subject to all of the terms and
conditions of this Contract, except as otherwise set forth in the Change Order. No claim for
additional compensation or extension of time shall be valid or recognized unless contained in a
Change Order signed by the Project Manager, as defined in Paragraph 11.7 below.
8. Termination of the Contract.
8.1 Right of Termination. This Contract may be terminated by the City, with
or without cause, upon at least fifteen (15) calendar days' written notice delivered to Comserco.
8.2 Termination by City Without Cause. In the event of termination by the
City without cause, Comserco shall be compensated for all Equipment delivered prior to the date
of delivery of the termination notice, plus compensation for (i) necessary work performed during
the notice period and authorized in the termination notice, and (ii) all costs reasonably and
necessarily incurred by Comserco directly attributable to termination which could not reasonably
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have been avoided and for which Comserco is not otherwise compensated that are incurred
through the date of the termination and in effectuating the termination (the "Termination
Expenses"). Termination Expenses shall not include lost profits, lost opportunities,
consequential damages, or the like.
8.3 Termination by the City for Cause or by Comserco without Cause. If
Comserco breaches this Contract, the City shall notify Comserco in writing of said breach and if
Comserco has not cured or begun reasonable efforts to cure within fifteen (15) calendar days of
delivery of said notice, and fails to diligently pursue corrective action, the City shall have the
right to cancel this Contract on the 15th day following delivery of notice to Comserco for cause.
Comserco shall be responsible for all direct and indirect costs due to the City's re -procurement of
the equivalent of the Equipment cancelled pursuant to this Paragraph 8.3. If this Contract is
terminated by the City with cause, or terminated by Comserco without cause, the City shall pay
Comserco for all Equipment delivered prior to the date of delivery of the termination notice,
subject to the right of the City to withhold such unpaid amounts pending resolution of damages
incurred by the City as a result of Comserco's default and for any reason described as a
justification for a payment hold as set forth in Paragraph 4.3.
8.4 Actions Subsequent to Termination. Following the termination date,
regardless of whether the Contract is terminated with or without cause, and subject only to the
payments described in Paragraphs 8.2 or 8.3, as applicable, the City shall have no further rights,
duties, liabilities or obligations whatsoever under this Contract. Upon a termination of this
Contract, except for its obligations under Paragraph 12.5 below, Comserco shall have no further
rights, duties, liabilities or obligations whatsoever under this Contract. Notwithstanding anything
in this Contract, including the foregoing, to the contrary, Paragraphs 5, 6, 8, 9, 10, 11.2, 11.3,
11.4, and 11.11 shall survive the termination of this Contract.
8.5 Delivery of Work Product and Documentation. Within three (3) business
days after any termination of this Contract, Comserco shall deliver to the City all Work Product
(as defined in Paragraph 9) and all Documentation (as defined in Paragraph 4.1) pertaining to this
Contract and any and all copies thereof, whether in the possession of Comserco or a party
engaged by Comserco; provided, however, that solely for its internal auditing purposes,
Comserco may, at its sole expense, make and retain copies of Work Product materials, subject to
the confidentiality provisions of Paragraph 10. Comserco shall also furnish all such information,
take all such other action and shall cooperate with the City as the City shall reasonably require in
order to effectuate an orderly and systematic termination of Comserco's duties and activities
hereunder.
9. Work Product. All finished or unfinished documents, plans, designs, drawings,
data, databases, studies, surveys, maps, models, photographs, reports and other materials, in
whatever form or medium, prepared by or for Comserco, its officers, employees, agents in the
course of performing the obtaining, delivering, and selling to the City the Equipment sold under
this Contract (collectively, the "Work Product"), but excluding working notes and internal
documents, shall be the property of City, and City shall have the sole right to use such materials
in its discretion without further compensation to Comserco or to any other party. Work Product
materials shall be delivered to City by Comserco as they are generated.
10. Confidential Information.
10.1 Access to Confidential Information. The City may provide Comserco or
allow Comserco access to certain information not available to the public concerning the City or
businesses located in the City. The information may include information regarding companies
located in the City, tax information, utility usage, and information concerning various company's
sales, value of assets, or other confidential information about companies dealing with the City.
All such non-public information shall be known as "Confidential Information" and may not be by
Comserco for any purpose other than to perform its duties hereunder.
10.2 No Disclosure. Except as expressly permitted by prior written consent of
the City, Comserco 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, without the express prior written consent of an authorized representative of the
City. Comserco shall return any written Confidential Information and all copies made of such
items to the City upon the City's written request, but in any event not later than the date that
Comserco has delivered all Equipment to be delivered pursuant to this Contract. Comserco
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hereby agrees that such Confidential Information and any documents provided may be used by
Comserco only as authorized by the City.
10.3 Court Ordered Disclosure. Comserco shall immediately notify the City of
any court order or subpoena requiring disclosure of Confidential Information, and shall cooperate
with the City's legal counsel in responding to any such order or subpoena. Comserco 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.
10.4 Exceptions to Confidentiality. The foregoing obligations shall not apply to
any Confidential Information lawfully in Comserco's possession prior to its acquisition from the
City; received in good faith from a third party not subject to any confidential obligation to the
City; or that now is or later becomes publicly known through no breach of confidential obligation
by Comserco.
10.5 Remedies. In addition to any other remedies that it may have at law or in
equity, the City shall be entitled to a temporary and permanent injunction by a court of competent
jurisdiction against any breach or threatened breach of any of the provisions of this Paragraph 10.
Comserco acknowledges that in case of such breach or threatened breach of said provisions, the
City would have no adequate remedy at law, and the City shall not be required to post a bond or
other security or to prove damages.
11. General Provisions.
11.1 Entire Agreement. This Contract, with Exhibits A and B, each of which is
attached hereto and incorporated herein by this reference, represents the entire and integrated
agreement between the parties hereto, and supersedes and replaces all prior and contemporaneous
negotiations, representations, discussions, or agreements between the parties related to the
matters set forth in this Contract. This Contract may be amended or modified only by a written
amendment signed by the parties.
11.2 Forum Selection. Any action brought relating to this Contract shall be
brought and held exclusively in a Court in or serving the County of Los Angeles, California.
11.3 Attorneys' Fees. If either party institutes an action or legal proceeding
arising out of or related to this Contract or the relationship of the parties or their rights or duties
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in connection with the matters set forth in this Contract, whether sounding in tort, contract, or
otherwise, the prevailing party in such action or proceeding shall be entitled to recover from the
other party all costs and expenses, including all costs and reasonable attorneys' fees, in addition
to any other remedy awarded by the court.
11.4 Notices. All notices required or permitted by this Contract shall be in
writing and may be delivered in person (by hand or by messenger or courier service) or may be
sent by certified or registered mail, return receipt requested, or by facsimile transmission during
normal business hours, if delivery is confirmed and provided a copy is also delivered via delivery
or mail, and shall be deemed effective upon delivery or refusal to accept delivery, if served in a
manner specified in this Paragraph 11.4 to the recipient as set forth below. If a notice is
delivered on a Saturday, Sunday, or holiday, it shall be deemed delivered on the next business
day. Notices to the parties shall be sent to the addresses set forth below, or such other address as
is provided by one party to the other in writing.
CITY: THE CITY OF VERNON
Attn: Bruce V. Malkenhorst
City Administrator
4305 Santa Fe Avenue
Vernon, CA 90058-0805
COMSERCO: COMSERCO, INC.
2020 Iowa
Riverside, CA 92507
Attn: Jerry Moskal
11.5 Status of Comserco. At all times during the term of this Contract,
Comserco shall be an independent contractor. Except as the City may specify in writing,
Comserco shall have no authority, express or implied, to act on behalf of the City in any capacity
whatsoever as an agent. Comserco shall have no authority, expressed or implied, pursuant to this
Contract to bind the City to any obligation whatsoever.
11.6 Insurance. Comserco agrees to provide insurance in the amounts and
forms specified in Exhibit B, which is attached hereto and incorporated by reference. Comserco
shall submit to the City documentation indicating compliance with these minimum requirements
no less than one (1) day prior to the beginning of performance under this Contract. Comserco
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shall not commence performance of its work under this Contract until the above insurance has
been obtained and proof of insurance has been filed with and approved by the City.
11.7 Assignment Prohibited. No party to this Contract may assign any right or
obligation except with the express written consent of the other party; provided, however, that
Comserco may purchase from other vendors and manufacturers the Equipment to be delivered by
Comserco hereunder, and Comserco may by written request assign any right to receive monies
earned hereunder.
11.8 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 is held by a court of competent jurisdiction to be
invalid, illegal or unenforceable in any respect, such provision will be limited to the extent
required to make such provision valid and enforceable, and if necessary, severed from this
Contract. All other terms and conditions shall remain in full force and effect.
Contract.
11.9 Time of the Essence. Time is of the essence in the performance of this
11.10 Rights and Remedies. The City's rights and remedies under the Contract
are cumulative with and in addition to all other legal and equitable rights and remedies which the
City may have under applicable law.
I/%
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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
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CITY OF VERNON
By:
LEONIS C. MALBURG, Mayor
COMSERCO, INC.
By:
Typed Name:
Title:
By:
Typed Name:
Title:
EXHIBIT
_ 05/20/2004 07:02 FAX 323 581 7924 CITY OF VERNON
J LEHR 0 014
ComSerCo Coii ml= ivatimis, 1,11a
Jerty Moskal
._a
Yam~ 4,o~. `
2020 Iowa
Riverside, Ca 92507
Customer #
V388110
800-453.9880
Ext 213
Customer I Bill
to City of Vernon Rre Department
Sales Tax Code
Order Date
Address :
4305 Santa Fe Ave.
5
Q2/13/04Q
City l St. / Zip
Vernon, Ca. 90058
8.25%
Sales Order;
Contact:
Bat Chief Kirnes
Contact Title
Phone # :
(323) 583-4821 x 511
Batt. Chief
PO #
Fax #•
End User Contact
Phone Number
Company
Ultimate Dest. Zip
Address :
lCity
/ St. / zip
REV 08.06.03
Quotation Valid For 30 Days
Quote Number
Item Qt [ Model Description unn rnve cxl[. rnue
1 1 CF29CPPGZDM Panasonic CF29, 1.2Ghz Centrino, 13.3 $5,779.00 $5,779.00
Transmissive Touch Screen, 600B HD,
512 MB Ram, 56K/Lan, FDD, Intel Pro
Wireless Lan, Win 2000
1a
1
CFVKBL01M
Backlit Keyboard
$599.00
$599.00
1b
1
898-36228
Keyboard Integration
$75,00
$75.00
1c
4
CFVDL02MKBS
Panasonic PDRC w/12,1" Touch Screen
$2,350.00
$11,400.00
w/Glide Pad
ld
4
CFWE0273
Port ReplicatorwMireless Pass Thru
$799.00
$3,196.00
le
1
CFVDR282U
DVD/Rom&Cd/R/RW Drive
$355.00
$365.00
2
8
CSC256
Lind Power Adapter
$198.00
$1,584.00
3
8
NP-12
NavPak Vehicle UPS
$409.00
$3,272.OQ
4
3
CSC327
CF29 Computer Mount w/articulated arm
$481.00
$1,443.00
5
4
CSC328
PCRC Mount w/Tilt and Swivel'
$326.00
$1,304�10
6
1
CSC329
CF28 Computer Mount w/Tilt & Swivel
$335.00
$335.00
6
7
CFVZSU18BU
CF 28 Li -ion Battery
$309.00
$2,163.00
APPROVED
Equipment Total
$31,515.00
I.T. Division
Freight
$472.73
Sales Tax
$2,638.99
Installation
$7,865.00
RC # ) S $�-z�isz 5, z
Grand Total
$42,491.71
Down Payment
�> rt�� fga
Balance Due
$42,491.71
-sic rie-)n F)atP
- --.
Sales Payment Terms
Paid In Pull w/ order
C.O_D
Net 10 Days
Net 30 Days
Before signing, please read attachment 'W of this sales order and any applicable
warranties and licenses_ YOUR SIGNATURE IS AN OFFER TO PURCHASE the
products listed above which, if accepted by ComSerCo, Inc., will be a purchase
Contract with the Terms and Conditions on the attachment "A", (attached)
including warranty disclaimers and limitations of ComSerCo liability.
Authorized Customer Signature Date
EXHIBIT
EXHIBIT B
INSURANCE SCHEDULE
Comserco shall provide proof of insurance, including a standard certificate of insurance, in at
least the following amounts and coverage (combined single limit permitted):
I. Coverage and Limits
Hazards
Automobile Liability
Bodily InjurX Property Damage
Each Person Each Accident Each Accident
Owned Automobiles $ 500,000 $1,000,000 $ 500,000
Hired Automobiles $ 500,000 $1,000,000 $ 500,000
Non -Owned Automobiles $ 500,000 $1,000,000 $ 500,000
Workers' Compensation $ Statutory
Employers' Liability $1,000,000 per employer
II. Liabili
General Liability
$1,000,000
$2,000,000
$1,000,000
Premises Operations
$1,000,000
$2,000,000
$1,000,000
Independent Contractor
$1,000,000
$2,000,000
$1,000,000
Products - Completed Operations
$1,000,000
$2,000,000
$1,000,000
Contractual Liability
$1,000,000
$2,000,000
$1,000,000
Umbrella Liability
$5,000,000
$5,000,000
$5,000,000
a. The general liability policy shall contain the following special endorsements which shall
be noted on or attached to the standard certificate of insurance:
1. An endorsement naming the City of Vernon, its officers, and employees as additional
insureds under the policy.
2. An endorsement providing the City of Vernon thirty (30) days notice of cancellation or
material reduction of coverage.
3. An endorsement providing coverage for all operations under this Agreement.
4. Such other endorsement as may be required by City.
b. In addition to the above, the Consultant shall provide such further proof of insurance
documentation as the City deems necessary.
14
SUPPORTING
DOCUMENTS
IF
EQUIPMENT PURCHASE CONTRACT
•
THIS 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 3 day of , 2005, in the City of
Vernon, County of Los Angeles, State of California
BY AND BETWEEN THE CITY OF VERNON
(hereinafter referred to as "City")
4305 Santa Fe Avenue
Vernon, CA 90058
AND COMSERCO, INC.
(hereinafter referred to as "Comserco")
2020 Iowa, Suite 100
Riverside, CA 92507
RECITALS
WHEREAS, the City's Fire Department is requesting the purchase of one new
mobile laptop computer with all the necessary installation hardware to be placed on the USAR
Vehicle and three additional sets of hardware for installing three existing mobile laptop
computers on the new Fire Engine Nos. E12, E13 and the Reserve Command Vehicle
(collectively the "Equipment"); and
WHEREAS, Comserco has prepared a quotation dated on or about February 13,
2004 for the sale, delivery and installation of the Equipment, a copy of which is attached hereto
as Exhibit A and incorporated by this reference (the "Proposal"); and
WHEREAS, Comserco represents that it is qualified and capable of providing the
Equipment described in Exhibit A on the terms and conditions set forth below; and
WHEREAS, the City desires to enter into an agreement with Comserco to provide
for the purchase, delivery, and installation of the Equipment on the terms and conditions set forth
below.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
Purchase and Sale of the Equipment.
1.1 Equipment. Comserco shall sell and deliver, and the City shall purchase the
Equipment described in the Proposal. In the event of a conflict between the terms of this
Contract and the Proposal, the terms of this Contract shall control.
1.2 Delivery and Installation. Comserco shall obtain and sell, deliver and install
the Equipment at the City of Vernon, F.O.B. Job Site. Comserco is responsible for all costs of
full freight, including insurance, to Job Site_ Risk of loss shall pass to the City upon delivery
F.O.B. Job Site.
2. Time of Performance. "Comserco shall commence and complete the delivery and
installation of the Equipment as follows:
2.1 Time Schedule. Comserco shall begin to obtain the Equipment upon the
later of the full execution of this Contract and the City's issuance of a Purchase Order (the
"Commencement Date"). Comserco shall complete delivery of the Equipment no later than six
(6) weeks from the Commencement Date (the "Delivery Time"). Unless performance is excused,
as set forth in Paragraph 2.2, Comserco's failure to deliver the Equipment within the Delivery
Time shall constitute a material default of this Contract, and, among other remedies available to it,
the City shall have the option of terminating this Contract.
2.2 Force Majeure. Neither party shall be considered to be in default in any of
its obligations under this Contract when a failure of performance shall be due to an uncontrollable
force. The term "uncontrollable force" shall mean any cause beyond the control of the party
affected, including, but not restricted to, flood, earthquake, storm, fire, lightening, epidemic, war,
riot, civil disturbance or disobedience, federal, state, or municipal action, statute, ordinance, or
regulation, embargoes of the United States Government or any other government, which by
exercise of due diligence such party could not reasonably have been expected to avoid and by
exercise of due diligence has been unable to overcome. Either party rendered unable to fulfill any
of its obligations under this Contract 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. The Delivery Time shall be extended by
Change Order by the number of days of delay caused by the uncontrollable force, as the City may
reasonably determine. An extension of the Delivery Time by reason of an uncontrollable force
r
Shzlll not ,tlstltb cNtl- comllensatioll tol- 1. oInset"co lol adlllir)lstratr e or other costs or expenses;
provided, ho,vever, that if the time for achie ,ing. delivery is materially extended by reason of
uncontrollable force through no fault of Comserco, Corserco shall be entitled to an increase HI
the Contract Sum, but only 111 any amount equal to the increase In Coinserco7 direct Cost reSltltln"
from such delay.
3, rchase price for the Equipment is Thirty -One Thousand
Contract Surn. The pu
Five Hundred Fifteen Dollars and No Cents ($31,515.00), plus applicable sales tax; freight and
installation totaling the Sinn of Forty -Two Thousand Four Hundred Ninety -One Dollars and
Seventy -One Cents ($42,491.71) (the "Contract Surn").
4. Payment Terms.
4.1 Payment. One hundred percent (100%) of the Contract Sum shall be paid
within thirty (30) days after (a) the City's receipt, testing, and approval of the Equipment; (b) the
City's receipt of all required documentation (including, without limitation, warranties provided by
the manufacturers, and operating manuals, specifications, and other documentation necessary and
appropriate for the installation, operation, and maintenance, and repair of the Equipment,
collectively, the "Documentation"); (c) the City's receipt of an invoice in a form reasonably
acceptable to the City from Comserco; (d) the City's receipt of fully executed assignments of all
manufacturers' warranties and guarantees in favor of the City in form and substance reasonably
acceptable to the City.
4.2 Billings for Change Orders. Any billings for Change Orders, as defined in
Paragraph 7 below, must be billed by separate invoice, with a copy of the applicable Change
Order signed by the City attached to the invoice.
4.3 Payment Holds. Notwithstanding anything to the contrary contained
herein, the City shall not be obligated to make any payment to Comserco if Comserco is in default
of any of its obligations under this Contract; any portion of the Equipment is defective or not in
accordance with the terms of this Contract (provided, however, that payment shall be made as to
any portion of the Equipment that is acceptable to the City); or the conditions required for
payment as set foI th in Paragraph 4.1 abo\ e ha\ e not been satisfied.
3
4.4 Pnment is Not Acceptance. Neither payment by the City nor use of the
Equipment by the City shall constitute an acceptance of any Equipment not in accordance with the
terms of this Contract.
5. Comserco' Representations, Warranties, and Covenants.
5.1 Capability. Comserco represents to the City that it is qualified, willing, and
able to obtain, sell, deliver and install the Equipment.
5.2 Testing. Comserco shall inspect the Equipment as it is received by
Comserco for delivery to the City, and will reject any Equipment that is defective, with the cost of
repair or replacement being the responsibility of Comserco. The City reserves the right to test the
Equipment, regardless of the results of Comserco' testing.
5.3 Assignment of Warranties, Delivery of Documentation. Comserco shall
assign to the City at the time of delivery of the Equipment all manufacturers' warranties for the
Equipment and Comserco shall assemble and deliver to the City complete copies of all warranties,
guaranties, and operating and maintenance data and all other Documentation (as defined in
Paragraph 4.1) from all manufacturers whose Equipment is delivered to the City pursuant to this
Contract.
5.4 Compliance with Law. Comserco shall strictly observe and comply with all
applicable federal, state, and local laws, ordinances, and regulations governing the sale and
delivery of the Equipment, including, but not limited to any permit or license requirements of the
United States Department of Commerce.
5.5 Authorizations. Comserco is authorized to do business in California and
properly licensed and registered by all governmental authorities having jurisdiction over it.
5.6 Title to City. Comserco warrants that title to Equipment will pass to the
City either by incorporation in the construction or upon the receipt of payment by Comserco,
whichever occurs first, free and clear of all liens, claims, security interests or encumbrances, and
that no seller of any Equipment or any portion thereof will retain an interest therein or an
encumbrance thereon.
5.7 Payments to Third Parties. Comserco shall promptly pay all bills for labor
and materials furnished by others in connection with this Contract.
M
5.8 Warranty.
5.8.1 Comserco' Warranties. Comserco warrants that all Equipment will
be new and free from defects in materials and workmanship, comply with the specifications
provided by the manufacturers, be of good quality and merchantability, and fit for their intended
purposes, and conform to all applicable governmental regulations, statutes, and ordinances. Any
Equipment not conforming to these requirements, including substitutions not properly approved
and authorized, may be considered defective. In the event that the test results obtained by either
Comserco or the City reveals that any portion of the Equipment does not meet the City's
specifications or the City identifies any defects in or damage to the Equipment, Comserco shall
promptly repair or replace any defective Equipment; provided, however, that if, in the City's
reasonable discretion, the quantity or quality of the defects are substantial, the City shall have the
option of rejecting the entire shipment of Equipment from that vendor, and obtaining another
vendor to provide that Equipment. Comserco shall be responsible for all direct and indirect costs
that may be incurred by the City in connection with the rejection and/or replacement of damaged
or defective Equipment, including any damage caused to the City's existing Equipment and the
Vernon Substation or the Malburg Project by the installation or use of defective Equipment
provided by Comserco.
5.8.2 Manufacturers' Warranties. Comserco shall obtain for the benefit
of the City, and assign to the City, commercially reasonable manufacturers' warranties for parts
and labor, which shall commence one (1) year from the date of installation of the Equipment being
purchased by the City under this Contract or the City's acceptance of the Equipment being
purchased hereunder, whichever occurs first. Comserco shall assist the City in the enforcement of
all such warranties.
5.8.3 Warranty Period. Comserco, at its cost, shall promptly repair or
replace or cause the manufacturer to repair or replace (provided, however, that the City shall
cooperate in working with the manufacturers if the warranties have been assigned to the City)
Equipment rejected by the City as defective or as failing to conform to this Contract if reported to
Comserco within the Warranty Period. The Warranty Period shall be the period of (a) one (1)
year from the date of installation of Equipment being purchased hereunder or from the date of the
City's acceptance of the Equipment being purchased hereunder, whichever occurs first; or (b)
such longer period of time as may be prescribed by law or by the terms of the applicable
manufacturers' warranty. The City shall give such notice promptly after discovery of a defective
condition. A new one year Warranty Period shall commence for repaired or replaced Equipment
on the date the repair or replacement was made. Comserco' obligations hereunder shall include
the obligation to repair any damage to other property caused by the defective Equipment or the
repair thereof. Comserco shall indemnify the City from and hold the City harmless against any
and all claims, liabilities, liens, damages, losses, costs, and expenses, including reasonable
attorneys' fees and all costs of defense, arising out of or relating (a) to any such Equipment found
to be defective or not in accordance with this Contract, or (b) the correction of any such
Equipment.
The foregoing representations, warranties, covenants, and agreements shall survive
any termination of this Contract and final completion of the delivery of the Equipment and are in
addition to, and not in lieu of, any and all other liability imposed upon Comserco by law with
respect to Comserco' duties, obligations and performance hereunder.
6. Indemnification.
6.1 Comserco' Indemnity. To the fullest extent permitted by law, Comserco
shall defend, indemnify and hold harmless City and its elected officials, officers, agents and
employees from all claims, suits, actions, demands, damages, liabilities, expenses, judgments,
settlements and penalties, losses, fines, and all costs and expenses incurred in connection
therewith, including reasonable attorneys' fees and all costs of defense, arising out of or
attributable to the negligent or wrongful acts of Comserco or its employees or agents in the
delivery of Equipment under this Contract, except to the extent arising from or caused by the sole
negligence or willful misconduct of the City, its officers, agents or employees. The terms of this
indemnity shall survive the termination of this Contract. The obligations in this Paragraph are in
addition to Comserco'duty to provide insurance and shall not be limited by any limitation on the
amount or type of insurance coverage carried by Comserco.
6.2 Indemnity Process. The City shall notify Comserco in writing of any suits,
claims or demands covered by this indemnity. Promptly after receipt of such notice, Comserco
6
have been avoided and for which Comserco is not otherwise compensated that are incurred
through the date of the termination and in effectuating the termination (the "Termination
Expenses"). Termination Expenses shall not include lost profits, lost opportunities, consequential
damages, or the like.
8.3 Termination by the City for Cause or by Comserco without Cause. If
Comserco breaches this Contract, the City shall notify Comserco in writing of said breach and if
Comserco has not cured or begun reasonable efforts to cure within fifteen (1.5) calendar days of
delivery of said notice, and fails to diligently pursue corrective action, the City shall have the right
to cancel this Contract on the 15a' day following delivery of notice to Comserco for cause.
Comserco shall be responsible for all direct and indirect costs due to the City's re -procurement of
the equivalent of the Equipment cancelled pursuant to this Paragraph 83. If this Contract is
terminated by the City with cause, or terminated by Comserco without cause, the City shall pay
Comserco for all Equipment delivered prior to the date of delivery of the termination notice,
subject to the right of the City to withhold such unpaid amounts pending resolution of damages
incurred by the City as a result of Comserco's default and for any reason described as a
justification for a payment hold as set forth in Paragraph 4.3.
8.4 Actions Subsequent to Termination. Following the termination date,
regardless of whether the Contract is terminated with or without cause, and subject only to the
payments described in Paragraphs 8.2 or 8.3, as applicable, the City shall have no further rights,
duties, liabilities or obligations whatsoever under this Contract. Upon a termination of this
Contract, except for its obligations under Paragraph 12.5 below, Comserco shall have no further
rights, duties, liabilities or obligations whatsoever under this Contract. Notwithstanding anything
in this Contract, including the foregoing, to the contrary, Paragraphs 5, 6, 8, 9, 10, 11.2, 11.3,
11.4, and 11.11 shall survive the termination of this Contract.
8.5 Delivery of Work Product and Documentation. Within three (3) business
days after any termination of this Contract, Comserco shall deliver to the City all Work Product
(as defined in Paragraph 9) and all Documentation (as defined in Paragraph 4.1) pertaining to this
Contract and any and all copies thereof, whether in the possession of Comserco or a party
engaged by Comserco; provided, however, that solely for its internal auditing purposes,
shall not commence performance of its work under this Contract until the above insurance has
been obtained and proof of insurance has been tiled with and approved by the City.
11.7 Assignment Prohibited. No party to this Contract may assign any right or
obligation except with the express written consent of the other party; provided, however, that
Comserco may purchase from other vendors and manufacturers the Equipment to be delivered by
Comserco hereunder, and Comserco may by written request assign any right to receive monies
earned hereunder.
11.8 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 is held by a court of competent jurisdiction to be invalid,
illegal or unenforceable in any respect, such provision will be limited to the extent required to
make such provision valid and enforceable, and if necessary, severed from this Contract. All other
terms and conditions shall remain in full force and effect.
11.9 Time of the Essence. Time is of the essence in the performance of this
Contract.
1.1.10 Rights and Remedies. The City's rights and remedies under the Contract
are cumulative with and in addition to all other legal and equitable rights and remedies which the
City may have under applicable law.
I//J
I2
IN WITNESS "HEREOF, 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
ec' :Z�
Eric T. Fresch, City AORey
13
CITY OF VERNON
Bv_ =
ALE NIS C. MALAURG, mayor
'NCO-MSSERRCO, INC.
By-_4
•�'� y
Typed Nre: IVA4729i S.
Title: V14tF IQG-5 i D&x37-
By:
Typed Name: GJ�9c.T S• ft'.9Dt/
Title: Ce r�lc.�ICrIL /H�'t/�//9`'�
z
ComSerCo Conunx ttic coons, lice
Customer / Bill to
Address :
City / St. / Zip
Contact
Phone # :
Fax #:
End User Contact
Company
Address :
ern Qtyt Model
1 1 CF29EWPGEKM
1a . 4 CFVDL02MKBS
1b
4
CF-WEB2912
1c
1
CF-VDM292U
2
8
CSC256
3
8
NP-12
4
3
CSSC327
5
4
CSC328
6
1
CSC329
7
7
CF-VZSU18BU
Instructions:
Sales Payment Terms
Paid In Full w/ order
C.O.D
Lease
Net 10 Days
Net 30 Days
Cust. Terms Approval
V388110
City of Vernon Fire Department
4305 Santa Fe Ave.
Vernon, Ca. 90058
Bata Chief Kimes
(323) 583-4821 x 511
Description
Panasonic CF29, 1.3Ghz Centrino, 13.3
Transmissive Touch Screen, 60GB HD,
512 MB Ram,, FDD, Backlit Sealed Key-
board, Wireless 802.11 a,b,g, GPRS
AT&T1 and WIN XP Pro SP2
Panasonic PDRC w/12.1" Touch Screen,
Backlit Sealed Keyboard, No Gid. Pad
Port Replicator w/Wreless Pass Thru
DVD Multi DRV for CF29
Lind Power Adapter
NavPak Vehicle UPS
CF29 Computer Mount w/articulated arm
PDRC Mount w/tilt and Swivel
CF28 Computer Mount w/Tilt & Swivel
CF 28 Li -ion Battery
Jerry Moskal
2020 Iowa
Riverside, Ca 92507
800-453-9880 Ext 213
Sales Tax Code I Order Date
5 Q2/13/04Q
Contact Title
Batt. Chief
Phone Number
Ultimate Dest. Zip
REV
Quote Number
Unit Price
$6,453.00
$2,850.00
$799.00
$365.00
$198.00
$409.00
$481.00
$326.00
$335.00
$309.00
Equipment Total
Freight
Sales Tax
Installation
Grand Total
Down Payment
Balance Due
$11,400.00
$3,1
$1,584.00
$3,272.00
$1,443.00
$1,304.00
$335.00
$2,163.00
$31,615.
$472.
$7,865
$42,491
$42,491.71
Before signing, please read attachment "A" of this sales order and any applicable
warranties and licenses. YOUR SIGNATURE IS AN OFFER TO PURCHASE the
products listed above which, if accepted by ComSerCo, Inc., will be a purchase
contract with the Terms and Conditions on the attachment "A", (attached)
including warranty disclaimers and limitations of ComSerCo liability.
Authorized Customer
uate
County Code Rate
Exempt
1
0.00%
Los Angeles
2
8.00%
Kern Ventura
3
7.00%
All other So
Cal Counties
4
7.50%
Los Angeles
5
8.25%
Kern Ventura
6
7.25%
All other So
Cal Counties
7
7.75%
EXHIBIT B
INSURANCE SCHEDULE
Comserco shall provide proof of insurance, including a standard certificate of insurance, in at least
the following amounts and coverage (combined single limit permitted).
I. Coverage and Limits
Hazards
Automobile Liability
Bodily Injury Property Damage
Each Person Each Accident Each Accident
Owned Automobiles $ 500,000 $1,000,000 $ 500,000
Hired Automobiles $ 500,000 $1,000,000 $ 500,000
Non -Owned Automobiles $ 500,000 $1,000,000 $ 500,000
Workers' Compensation $ Statutory
Employers' Liability $1,000,000 per employ
II. Liabilitv
General Liability
$1,000,000
$2,000,000
$1,000,000
Premises Operations
$1,000,000
$2,000,000
$1,000,000
Independent Contractor
$1,000,000
$2,000,000
$1,000,000
Products - Completed Operations
$1,000,000
$2,000,000
$1,000,000
Contractual Liability
$1,000,000 $2 000
000 $1,000,000
Umbrella Liability
1. $2,000,000
$2,000,000
$2,000,000
a. The general liability policy shall contain the following special endorsements which shall be
noted on or attached to the standard certificate of insurance:
l . An endorsement naming the City of Vernon, its officers, and employees as additional
insureds under the policy.
2. An endorsement providing the City of Vernon thirty (30) days notice of cancellation or
material reduction of coverage.
3. An endorsement providing coverage for all operations under this Agreement.
4. Such other endorsement as may be required by City.
b. In addition to the above, the Consultant shall provide such further proof of insurance
documentation as the City deems necessary.
14