Resolution No. 8752
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RESOLUTION NO. 8752
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A
PRODUCT PURCHASE CONTRACT BY AND BETWEEN THE CITY
OF VERNON AND FRANCE COMPRESSOR PRODUCTS FOR ENGINE
PACKING SYSTEM FOR LIGHT AND POWER DEPARTMENT
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7 WHEREAS, the light and Power Department has determined that
8 it needs to purchase sixteen (16) packing cases with packing and nose
9 gasket installed and sixteen (16) Packing System water glands with
10 wiper packing installed (collectively, the ~Packing System") to be used
11 on the Power Plant's turbines; and
12 WHEREAS, the City's diesel maintenance provider, Thomason
13 Mechanical, has recommended that the City use a new metal type of
14 packing that will sustain a lengthy period of non-use and not crack,
15 thereby reducing the risk of engine damage; and
16 WHEREAS, the Light and Power Department sought informal
17 quotes for the purchase of the Packing System and determined that
18 France Compressor Products (~France") is the lowest responsible bidder
19 meeting the Department's specifications and requirements; and
20 WHEREAS, on May 17, 2005, the Finance Committee considered
21 the recommendation of Bruce V. Malkenhorst, Director of Finance, dated
22 May 11, 2005, that the Packing System be purchased from France; and
23 WHEREAS, the City Council of the City of Vernon has
24 determined that, pursuant to the provisions of subsection (a) of
25 Section 2.27 of the Vernon City Code, it is in the public interest and
26 necessity to enter into a contract with France for the purchase of the
27 Packing System.
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1 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
2 CITY OF VERNON AS FOLLOWS:
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SECTION 1:
The City Council of the City of Vernon hereby
4 finds and determines that the recitals contained hereinabove are true
5 and correct.
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SECTION 2:
The City Council of the City of Vernon hereby
7 approves the Product Purchase Contract with France, in substantially
8 the same form as the copy which is attached hereto as Exhibit A and
9 incorporated by reference.
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SECTION 3:
The City Council of the City of Vernon hereby
11 authorizes the Mayor to execute said Contract for, and on behalf of,
12 the City of Vernon and the City Clerk is hereby authorized to attest
13 thereto.
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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:
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France Compressor Products
Attn. Kirk Fovaleff
4410 Greenbriar Drive
Stafford, TX 77477
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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 18th day of May, 2005.
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LEONIS C. MALBG, Mayor
26 ATTEST:
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BRUCE V. MALKENHORST, City Clerk
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1 STATE OF CALIFORNIA
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COUNTY OF LOS ANGELES
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I, BRUCE V. MALKENHORST, City Clerk of the City of .Vernon, do
hereby certify that the foregoing Resolution, being Resolution No.
8752, was duly adopted by the City Council of the City of Vernon at a
regular meeting of the City Council duly held on Wednesday, May 18,
2005, and thereafter was duly signed by the Mayor of the City of
Vernon.
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BRUCE V. MALKENHORST, City Clerk
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EXHIBIT
A
PRODUCT PURCHASE CONTRACT
THIS PRODUCT 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 18th day of May, 2005, in the City of Vernon, County of Los Angeles, State of California
AND
THE CITY OF VERNON
(hereinafter referred to as "City")
4305 Santa Fe Avenue
Vernon, CA 90058
FRANCE COMPRESSOR PRODUCTS
(hereinafter referred to as "France")
4410 Greenbriar Drive .
Stafford, TX 77477
BY AND BETWEEN
RECITALS
WHEREAS, the City's Light & Power Department is requesting the purchase of sixteen (16)
packing cases with packing and nose gasket installed and sixteen (16) Packing System water glands ,with wiper
packing installed (collectively the "Packing System"), to be used on the Power Plant's turbines; and
WHEREAS, the City's diesel maintenance provider, Thomason Mechanical, has recommended a
new metal type of packing which will sustain a lengthy period of non-use and not crack as the current
wood/leather packing has in order to alleviate problems that are occurring and reduce the high risk of engine
damage;' and
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System, as defined below, on the terms and conditions set forth below.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Purchase and Sale of the Packing System.
1.1 Packing System. France shall sell and deliver, and the City shall purchase the Packing
System 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. France shall obtain, sell and deliver the Packing System at 2715 E. 50th Street
in the City of Vernon, F.O.B. Job Site. France 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. France shall commence and complete the delivery of the Packing System
as follows:
2.1 Time Schedule. France shall begin to obtain the Packing System upon the later of the full
execution of this Contract and the City's issuance of a Purchase Order (the "Commencement Date"). France
shall complete delivery of the Packing System no later than eight (8) weeks from the Commencement Date (the
"Delivery Time"). Unless performance is excused, as set forth in Paragraph 2.2, France's failure to deliver the
Packing System 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 Maieure. 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 exte~sion of the
Delivery Time by reason of an uncontrollable force shall not justify extra compensation for France for
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5.2 Assignment of Warranties: Delivery of Documentation. France shall assign to the City at
the time of the Packing System delivery all manufacturers' warranties and France shall assemble and deliver to
the City complete copies of all warranties, guaranties, and operating and maintenance data and all other
documentation from all manufacturers pursuant to this Contract.
5.3 Comnliance with Law. France shall strictly observe and comply with all applicable
federal, state, and local laws, ordinances, and regulations governing the sale and delivery of the Packing System,
including, but not limited to any permit or license requirements of the United States Department of Commerce.
5.4 Authorizations. France is authorized to do business in California and properly licensed
and registered by all governmental authorities having jurisdiction over it.
5.5 Title to City. France warrants that title to Packing System will pass to the City either by
incorporation in the construction or upon the receipt of payment by France, whichever occurs first, free and
clear of all liens, claims, security interests or encumbrances, and that no seller of any Packing System or any
portion thereof will retain an interest therein or an encumbrance thereon.
5.6 Payments to Third Parties. France shall promptly pay all bills for labor and materials
furnished by others in connection with this Contract.
5.7 Warranty.
5.7.1 France's Warranties. France warrants that all Packing System 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 Packing System 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 France or the City reveals that any portion of the Packing System does not meet
the City's specifications or the City identifies any defects in or damage to the Packing System, France shall
promptly repair or replace any defective Packing System; 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 Packing System from that vendor, and obtaining another vendor to provide that Packing
System. France 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 Packing System, including any and all
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damages caused to the City's existing equipment, storage and/or system and the Vernon Substation or the
Malburg Project by the use of defective Packing System provided by France.
5.7.2 Manufacturers' Warranties. France shall obtain for the benefit of the City, and
assign to the City, commercially reasonable manufacturers' warranties, which shall commence for a period of
ten (10) years from the date the City receives the Packing System under this Contract or the City's acceptance of
the Packing System being purchased hereunder, whichever occurs first. France shall assist the City in the
enforcement of all such warranties.
5.7.3 Warranty Period. France, 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) Packing System rejected by the City as defective
or as failing to conform to this Contract if reported to France within the Warranty Period. The Warranty Period
shall be the period from the date of Packing System being delivered hereunder or from the date of the City's
acceptance of the Packing System being purchased hereunder, whichever occurs ftrst; 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 Warranty Period shall commence for
replaced Packing System on the date the replacement was made. France's obligations hereunder shall include
the obligation to repair any damage to other property caused by the defective Packing System or the repair
thereof. France 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 Packing System found to be defective or not in accordance with this Contract,
or (b) the correction of any such Packing System.
The foregoing representations, warranties, covenants, and agreements shall survive any
termination of this Contract and final completion of the delivery of the Packing System and are in addition to,
and not in lieu of, any and all other liability imposed upon France by law with respect to France's duties,
obligations and performance hereunder.
6. Indemnification.
6.1 France's Indemnity. To the fullest extent permitted by law, France 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, fmes, and all
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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 France or its employees 'or agents in
the delivery of Packing System 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 France's duty to
provide insurance and shall not be limited by any limitation on the amount or type of insurance coverage carried
by France.
6.2 Indemnity Process. The City shall notify France in writing of any suits, claims or
demands covered by this indemnity. Promptly after receipt of such notice, France shall assume the defense of
such claim with counsel reasonably satisfactory to City. If France 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 France 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
France 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 ordefend. France 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 Packing
System 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 Packing System 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 Chief Executive Officer of the Light & Power Department.
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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 (IS) calendar days' written notice delivered to France.
8.2 Termination by City Without Cause. In the event of termination by the City without
cause, France shall be compensated for all Packing System delivered prior to the date of delivery ofthe
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 France directly attributable to
termination which could not reasonably have been avoided and for which France 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 France without Cause. If France breaches this
Contract, the City shall notify France in writing of said breach and if France has not cured or begun reasonable
efforts to cure within fifteen (IS) 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 France for cause. France shall be responsible for all direct and indirect costs due to the City's re-procurement
of the equivalent ofthe Packing System cancelled pursuant to this Paragraph 8.3. If this Contract is terminated
by the City with cause, or terminated by France without cause, the City shall pay France for all Packing System
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 France's default and for any
reason described as ajustification 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 duties, liabilities or obligations whatsoever
under this Contract. Upon a termination of this Contract, except for its obligations under Paragraph 12.5 below,
France shall have no further rights, duties, liabilities or obligations whatsoever under this Contract.
Notwithstanding anything in this Contract, includingthe foregoing, to the contrary, Paragraphs 5, 6, 8, 9, 10,
11.2, 11.3, 11.4, 11.5 and 11.11 shall survive the tennination of this Contract.
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agrees that such Confidential Information and any documents provided may be used by France only as
authorized by the City.
10.3 Court Ordered Disclosure. France shall immediately notify the City of any court order or
subpoena requiring disclosure ofConfidentia.1 Information, and shall cooperate with the City's legal counsel in
responding to any such order or subpoena. France 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 France'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 France.
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. France 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 Arbitration. The parties agree that any and all disputes arising out of or in relation to this
Agreement, including without limitation any action in tort, shall be resolved exclusively, finally and
conclusively by arbitration in Los Angeles County, California under the auspices of and pursuant to the rules of
the Judicial Arbitration & Mediation Services Inc. (JAMS). Each party will select an arbitrator. Those two
arbitrators will then select a third. The three member panel will make the final decision. All decisions of the
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arbitrators shall be in writing, and the arbitrators shall provide written reasons for their decision. The arbitration
decision shall be final and binding on the parties. Notwithstanding the foregoing, the parties shall be permitted
to access the court system to enforce any arbitration award or to obtain injunctive relief. The exclusive
jurisdiction and venue for any such action shall be the Superior Court of California, Los Angeles County.
1104 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 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.
11.5 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 1104 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. If there is any change in a party's address, that party shall give notice, in writing,
to the other party indicating the address change within five (5) business days.
CITY:
THE CITY OF VERNON
Attn: Bruce V. Malkenhorst
City Administrator
4305 Santa Fe Avenue
Vernon, CA 90058-0805
FRANCE:
FRANCE COMPRESSOR PRODUCTS
4410 Greenbriar Drive
Stafford, TX 77477-3802
Attn: President
11.6 Status of France At all times during the term of this Contract, France shall be an
independent contractor. Except as the City may specify in writing, France shall have no. authority, express or
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implied, to act on behalf of the City in any capacity whatsoever as an agent. France shall have no authority,
expressed or implied, pursuant to this Contract to bind the City to any obligation whatsoever.
11.7 Insurance. France agrees to provide insurance in the amounts and forms specified in
Exhibit B, which is attached hereto and incorporated by reference. France 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. France 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. France shall not permit a subcontractor or vendor to perform work on City premises unless and
until a certificate of insurance is obtained showing that such subcontractor or vendor has
worker's compensation coverage. France employs subcontractors as part of the services rendered, France's
protective coverage is required. France may include all subcontractors as insureds under its own policy or shall
furnish separate insurance for each subcontractor, meeting the requirements set forth herein.
11.8 Assignment and Subcontracting Prohibited. No party to this Agreement may assign or
subcontract any right or obligation pursuant to this Agreement except with the express written consent of the
other party. Any other attempted or purported assignment of any right or obligation pursuant to this Agreement
shall be void and of no effect.
11.9 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 anyone or more ofthe 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.
11.10 Time of the Essence. Time is of the essence in the performance of this Contract.
11.11 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.
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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.
CITY OF VERNON
By:
LEONIS C. MALBURG, Mayor
ATTEST:
Bruce V. Malkenhorst, City Clerk
APPROVED AS TO FORM
Eric T. Fresch, City Attorney
FRANCE COMPRESSOR PRODUCTS
By:
Typed Name:
Title:
By:
Typed Name:
Title:
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EXHIBIT
A
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.','u ~p, .. ...........
QUeSTro... OR OkDlI!1lS RElATING TO
mil QUOTA'nON SHOULD.~ 8ENT TO:
.
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tulTE Of' QUOTATIOH 6!11WJlS
YOUR gpEReNOR PACkINO CA~f:8
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.AU!,....~ KIRK kOVALaFr
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$2,040.60
-'1-0182-58001--200. PACIONG CASES WITH. PACKING
NO NOSe GA8l<I!T 1N8T~LED.
32.648,00
18
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4a.D1ez.52OO1-18'O. OIL WIPER GLANOS WITH WIPER
~CI<ING tNSTAUSC
"1.040.'0
OVE QUANTme& ARE TO COMPLeTe ONE SNOfNE.
TOTAl. LBS8 SHIPPING.. TAXes
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IaJ..t. Ol_~ ICCllIle" by SELLEADllnnDt~ot'lIcelle(Jlty BUYCnetct(l'wltfl SEIiER'S~l~,"~,~~upon t~NitI ''''1''''1111148'''''''>' 6&El\ IVIII1l'
. i OUlHTlrt VUtlAller~, SELLER r..Nt" tfl, fltht 10 rHp INl eweA .... to.~ 11\ loIIldIlr-at-OVet-lIIl1"D' any quallltry L/IlIO IlIIf Inctudln; 1 O~.
{ .IIM.....; IlithelV/ll\uampleun furnlshld BUYER, SELLEAWlIII\OlallllJlIlt't\Y lIall.IIV III conntCtllln'wltllltle tumlmfng 11(1.1I0 1111*'811(1 lhlflwlll be
~ Illr.llnlC1nl 01 W.tI'llnIY l:olI.,c:rIIIO. Of llf/utlng, lhI funIiII\lIClV 01 8I/Gh lIM1pto.. :' - , ,
~. 'Ille.. UP '''.'''ENT " '" ,_,
! ., UlllcsS O1I*wIse statllS \r:DlI dllMtl)' ilia pl'i&:lll "I F08 8ELLER'S pllnf illlG ptlctt GO nm-,.Inc!,ude Ull\&PllrtlUOn chtt~r.
, I b. '!'lUles lVallntfudtdln ,ifoe: I:1lCCvpl.wnere CltA8llNl8t ptaNblttd by ~,eU ul... tltclP. un <<,.lmll. [exCl ar _ON by ltlt "dflrll.ln~"<<IIgn.O'
~ ~~l'lIf 10000,!l-rnmeAt,lof/tlch SellER ITlItf ~t IlqUir'd to pay'o' oaneol,thlltbe In .ddltlon to prlt'fsla"llllld 11I._ blllald I)y OUVeR, UII!CSS valId
eltlmJltlQII ctr1lflGEllt i.IUflllabtld \h8"IOIe.' ", .
: ,. payment: A116t<:OIl"" ....Pu'. ""tllla tItttv (30) d;or;. SfLUill may IJefNIItl p~m.n'lI\ IdIlJAO' of atllPIl'tfll If, lit SfLLCfi'S o~1IIOn. tl\e credit Dr
1i~~1 ~OftdJtIon tit 8UYEA Ill, ar Is ..~t to '*orn., Imll.f'ed. , ' -.
~ do PII~m',.,rs wnft,Shipmenl. .,. Dlllayed: Whlre llVYI;A fctql/lrG'Cdel&)' 1/1.hIDnltnt. SeLl.ER I"illll~ Ih, option ~I bilUno IorOWdll whan ...et)' tQr
'~Dm'I'l. II nUll'etiallf nol "<<14 OlIL wllhIn S\~tY (6D) . ater goad. ate tellSy, 5fUfR will have lIIe Dpllon III blll/flll stD!a!l1l cl1argIs.
to 1S1I~EA"i . ' ", . .
j I. Shl~~In~ 0.\": ShipJllng data. are apurmdmDfI Oftly attClIUlljKt Ie tI11l101. . .':' :. .
; Q UnlotWlltI o.,.~: SEl.lER ."1111II1 bel/ablt III damagM 0( otflefW"rs. fO( t1e1lya Ir fahre In pltrD.(tl!anei WPIt" a1UC1 bV CIroIlh\&tanllM, or IIIl1ry
lilt"" '1I(I(IUctl~t1on aitd ~\ter arising, beyond SELLeR'S rilSO/Wlbt, coni"", tn lhe .",.m lhll\ SeLLERJ'unablti:lue lQ allY tlHlIloccutrtIQor OI".",Iet, .
10 (1JIrlllIlr> tQllh:qlMl~ts to III C11llM1Oltr, eUYERI,nlcn''''I,M kIN.1Id Ca.~Ill\petf.,..ftlfl(;t W,BeLI:&Fl. delivllfiesltl ICDDI/WlCIwllllluehplal\
, Irpr~.lIll1\ as SELLER rlray atI111)I,' . '': .' :. ':' . .
'. , : ,t:, PackIVIng: S ELLER'M1Illtovldt commlrclal PlIClca. Dino adIlllUl'lt.lfWr nolmal conclltlol\$, to IIlottel lb. Q00d5 iii shll'menllllO InGtnlilv the 00. IIlBnls.
ShOuld Bt1VF.R I'tqlll~\ any .pedal petttoJnl, \I wUI be do". at aUY9'S ..pel\o.,. :,' .'
. 'd. Aolrtll'U' All gOlJdll will bt ahipplll Via the ClIupllllllrlllllllllllJ)ldlllou! "1'11I19 01 t"llIport"'~ \/* ,lie eifClirnlilil"nl, unln. eUVER itlclit1t'.
,olhel'\\llll. If lOVER \lI'Dvl4tli no l!lutlnG il1WllcllM5. SELLER IlId be I". _GlI Judt. 01 \he lleat rnel~d 'i" ,rw\ln9 shlpmttlt.
III 0&111111: Clelms fill' Ion or darl1llDe In 1r11l$1C rtlUIt III amelCll W pl'OIICIlIelt IIYtbtIUYEfl. . \' , " .
.t SI'mllL IOOLfHO. AlIsptlhlloallllll r8Cl\.ll,aclla prorluco 1110 good, 8111_ r.m'lrl th. property lIf 1IELl.!ft jlnl." ~f1~ciflt: .tnlt'lO~,..tll~ an:lIllillwiIo marJl:,
rn Dflr CIII, SELLER'S rppDNlbllltV I:L llmlled la pmplr dNlglt. ptApal' l\allldllg in mll1llllohre IIIId ttofJa', and IdltLIII. illlutlflet. Tilt liNER "
.,~ for mIl 'ISUIIIIlQ tRll1l~(') llIe;iltlolltlt(lllellteClby 1liIn.(!Jmal~'~.rStl/'l8PllellllCN ~~dllY normllwtar, (31ll1dilfOlllt coats irlcurted
IN~~ Mw flelOf1llrl.Jll\rodut:ld 5UO\t 110 chorw latd tlmt Ind/O( Incrallld tat. IIf dellY.I}', ,. :, .'...
. The tetm "SD8ctell Tcloli~" 11'IiI.l1041udl: sucfllroms u molcIl, diB. brmI, b. tll8llClrelt, flXUCllttd othtr 'plClaIIQlliJWl'tllt. nupt rnacnln.fY ....,Netl "
RQIIirlld to u.c/u::. Ihll QOOtl" , . " , ',' .'
.; 'I RSrEGTfDlt SfU ~A wiltjrtlfPtCl411 {lOOd1 pmt tos-'nt and SudI /f'lGpCCllOll wiN b.lldlllua" to'inut SElI.EA~S ttand.v1J flit dlmlMl~ Ind ~jSlJlIl
characterfstics.' . .. ,;
I, WeCTIDlI1 AHD HEN.Nt " 'i'" .
.' " II, Noli"c;-~Ikn fa S6\.lEft: SUyeA will DI dfll'Mtl to "'VI IIlSp.ctta.1nI1 flC1cePl.il Iny 5/lIprilen\ linGer tflIs contrm IL within tI'Ilrty (30) "IVa alllr
BUVER'S fOCGflIIl ot ~. BUYER hIlS not noIltlec1 SliLLI!/t In wrItllll t/l&t 51lCI' 0004' ... feINted"lld 11'M.00QlJMa 1"'1ef01'.
. ,b, R&lum 01 Goads; No ooodr l111Y tit retUrned by Bll't'ill tor .I1Y r..lOft WlUlDllt SilLER' & prior;wfltfin Illllrova/, ' . ,
, . J 0, '1'I!{I1At Q~"Ala Nellller GUYER 1101 SELLlS~ Shall IlIake 'Jtf etl. for special or IlilM$<<III e"ll~ OJlllOtIl, ,Whtil warlC I:Il>efforlNd " euVSlt'S sltll
IIIlCt'I ,a~ agrtHlD In'-.mn"~ atld sav.Il.vrnr."l~ Dine, trom illY II'Id II! ;I.'ml ,..1IItlng troJn IlIjurla 10 ill" d~of ill'If1lll)ye. a,ut lot 4!llfIIogse to Il!
lIINR IItOPl'IY, " ~ ..'" ;
II. rATENT INFRI"CfMJ:RT., . ':" ,.:" '
, 6, Sflllllllll~ DOOd' furlll.hlld by StiLLER bll III QJ~' ".Iure thaI the alsn (1Ie..lo" Illuppllill ~y. 8UrER::ar llIOI1ld tIlI,gOOdlDe I.bllled at Inllrkca
with .lraao/l1tlrR 01' Ir. MmII r'QIlesledb)l auvEI\ llIfl\ 8UYEA IGNIS 'lIdeftlldSEll.IR IlIIlIy aeU_.llitl1wcivll or I:I""in".brourlhllllllllllll SIiLLllR by
any lIVId IIdlty fClrVlalntr.lllClmttlll lII'lrisu.,ol all)' ClJetlpatenlllOfttldel..,ltsallld "UVEft fllf1hllr ~UA'totJalll SELLER hatmle5. flom Ill)'CfJII18Qt4lllllls
. '1$1I1linv tlltrl'ffVfll,' , :',' "
, b. AI 10 fIIY oIlJ1'!lOCIdll fIIlhutar...1ured KC\lIdlng tOllldtslgflOt./ltciftcadoanDtfuml&htdby 1ll1V.f~ SELLER."l1llnrHfltIlift alldta"aharm'etl eUVER
, f/'tlfl1l11\Y chlllntllel tfV( use or res.IUfth. SIIlll (1l1ll\d ot It...lnrrlnges IBY U.S.pa'.nl Otp.llM r(DIItS It \~lI8UVER within Inlrtv ISD) dQys lIotJGts SE1.LER '
, ,/nwrltln; 01 al,y Jue:" elllm and Divots seLL!:" Illlllttlly,lnfolmaUon Ihl1 "SillInG. (It SEu.ER'S ~."s.I'\\l'd,\Solllltof.&Id1 elalrl\ bd ta~'lIl1d an~ .ull
. that IMY be DIIllIGIII agallltt thlt ElUYER.Ot 9U~Il's cuarllMlt Ulelllll\ In tIlll 611I11\ SELLeR wI".t blI t:XPilW, dll"ul any IlJOfl GIJ1t Md'itlsty 111'/
Judgment IIl.reln 10 .11 lmovnll\Ol'JtGlItd'n; 11\1 J1rlc~ Dtkl SELLER tor Mid IIOOds "lilt III Inftillff' 1f,'1l .IIY ~r:Il.ull,.!llf\.iullctlon '.le8<d IQIIIl"'thlfut\1ItlI
an. III aid Itctll or N\tOM thIIreof, S!:LLER Will at II, "Iltioll lIlld '1qlI(III...ftlltl,IOllUR flIrlhtteul{o";,, ttlt {ieI'llcr conllnueuling nhtllOGds. or flplle.lllt
Dille With nDll-jllltilllJinQ Vob41. or tllGdffy IIIIIl'I so mat f!lev btc&lfrl.llGftooinflinatllll,tI I'enllM old t/CIOlf- If\lf ~III rid tha pllICtI1I81 prk:a 'M ltlllllpll/U.tlGn aI\G
1l18(lllatlan cast!! rMrllfJ', ~e"LeR '/taM flOI III fllall In an~ "IDIO' IllCIIIl .a olar=lld, IlIlIIualllll Wfttlou.l l~lrlllll'l\j few 411)' el.I", of """~"I"llll.'ll.d by
$UYfA wi,haut S EL LEI\'S CCltIsent. 111a lorl(lQl1lll 4DlpttUll all Df aeL.l.!I\'& obI/fIIlions Met llabUKI... 'tll ,p6t'"II., ..
. U.-.IJilIl__t ,tgYIIIIN' . . ... , ~ ': -.~ '. - .
, J, Mn4Ii1ir.aIJorlSof Cal\tIulI:tJ i5ltJrttd (1'111 tMtt it no ~l/lCr cannel In fo,Oli "ltw'l" IUYCnilf1lt..SiLLEI\ tftd:no alterAtlanshatl b. blltt1lt1llunleu '
. ",reed tllll! wrltlno by SelleR. Sh.lIIc1 ~!l:!;ER ~ any words. Uti, Gl'wrltlng; Wa/Y, 4t be dlM1t4 to navoWlivtlllny 1i11/tI(KDIIlslDftI ot lIIla 19'8tmtnt, 0/ .
. . ; IJlould,$'LL~A f.1 to J9IlllIpoIUIJ"1il'~tIy 8UVEFt Of on.lltmortlattlltlftl1l.IIlIf'IJn..I'Char:lltln!4rf~DI)SEUfR'a partwlUlnnomytladMm~ato
, 'Imjll)/ dt crmtlM. It wllver a( IllY '6l1l1lnttm. ,cOnralll8d In Ihl, IS'Hrnenl. ' : .. ." . '.' '~. ." ..-
, b. CCll1lDNance ",1111 LaWl; SELLE" CNllfj.. ClOnlP1larree wldl all teIa~nt FcdlIr81. SgEl and lllCilljWl~lfdIl\D Pa;rlgrapns 6, 1 ar;'d 12.of tha,Falr Labo,r ' .
Stlllll.rdl ACt 01' Amtndeo, IM:.my /'~Dn. _lid OIdl'l fJllIlt4 Vtl4.f hrllllllDb 1& thereof.',' 0' '" ' ".,' -
. . c. RIObls in Data: 1t\eaCclOtm oUhl& uldarbv SELlERlJOKnolamveyaltyl'Riohl1!A ()11;\"ai'llesCJihedjnA9~P.9.202cd..203Qrtlly IflItndl!l&l\\a' .'
llllllllO/, II "1U;lIIs In Otdl" all desired, they mwt ho lll. .)vet or wpltll' 1\'IO\I~iOI\I. . :. " :..'. : ': " ;
':' .:.' ".. ."'~'..;.i"./
;I!III:1Ul",,, . . ,\':..: ',:~ ' , y. aC8.:""
05/18/05 WED 07:33 [TX/IU NO 5986] IgJ003
EXHIBIT
B
.. '..
EXHmIT B
INSURANCE SCHEDULE
. --.".....
France 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
Bodily Injury Property Damage
Each Person Each Accident Each Accident
Automobile Liability
Owned Automobiles
Hired Automobiles
Non-Owned Automobiles
. Workers' Compensation
Employers' Liability
$ 500,000
$ 500,000
$ 500.000
$ Statutory
$1.000.000 per employer
n. Liability
General Liability
Premises Operations
Independent Contractor
Products - Completed Operations
Contractual Liability
Umbrella Liability
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1.000.000
$2.000.000
$1,000,000
$1,000,000
$1.000.000
$2,000,000
$2,000,000
$2,000,000
$2,000,000
$2.000.000
$2.000.000
$ 500,000
$ 500,000
$ 500.000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1.000.000
$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:
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.
EXHIBIT "B"
SUPPORTING
DOCUMENTS
'>
PRODUCT PURCHASE CONTRACT
THIS PRODUCT 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 ofthis!iJ!!.. day Of~ 2005, in the City of Vernon, County of Los Angeles, State of California
BY AND BETWEEN
AND
THE CITY OF VERNON
(hereinafter referred to as "City")
4305 Santa Fe Avenue
Vernon, CA 90058
FRANCE COMPRESSOR PRODUCTS
(hereinafter referred to as "France")
4410 Greenbriar Drive
Stafford, TX 77477
RECITALS
WHEREAS, the City's Light & Power Department is requesting the purchase of sixteen (16)
packing cases with packing and nose gasket installed and sixteen (16) Packing System water glands with wiper
packing installed (collectively the "Packing System"), to be used on the Power Plant's turbines; and
WHEREAS, the City's diesel maintenance provider, Thomason Mechanical, has recommended a
new metal type of packing which will sustain a lengthy period of non-use and not crack as the current
wood/leather packing has in order to alleviate problems that are occurring and reduce the high risk of engine
damage; and
WHEREAS, France has prepared Quotation No. 46-510-05 dated on or about May 10, 2005, (the
"Proposal"), a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference, for a
Packing System to complete one engine; and
WHEREAS, there are a limited number of companies that can provide the Packing System
needed and France has provided a bid at a competitive price; and
WHEREAS, France represents that it is qualified and capable of furnishing the Packing System
that the City requires, as set forth in this Contract and the Proposal and is willing to do so on the terms and
conditions set forth below; and
WHEREAS, the City desires to enter into an agreement with France to provide for the Packing
I
System, as defined below, on the terms and conditions set forth below.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
I. Purchase and Sale of the Packing System.
1.1 Packing System. France shall sell and deliver, and the City shall purchase the Packing
System 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. France shall obtain, sell and deliver the Packing System at 2715 E. 50ih Street
in the City of Vernon, F.O.B. Job Site. France is responsible for all costs of full freight, including insurance, to
Job Site. Risk of loss shall pass to the City upon delivery F.D.B. Job Site.
2. Time of Performance. France shall commence and complete the delivery of the Packing System
as follows:
2.1 Time Schedule. France shall begin to obtain the Packing System upon the later of the full
execution of this Contract and the City's issuance ofa Purchase Order (the "Commencement Date"). France
shall complete delivery of the Packing System no later than eight (8) weeks from the Commencement Date (the
"Delivery Time"). Unless performance is excused, as set forth in Paragraph 2.2, France's failure to deliver the
Packing System 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 hot
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 shall not justify extra compensation for France for
2
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 France, France shall be entitled to an increase in
the Contract Sum, but only in any amount equal to the increase in France's direct cost resulting from such delay.
3. Contract Sum. The purchase price for the Packing System is a sum of Forty-Three Thousand Six
Hundred Eighty-Eight Dollars and Eighty Cents ($43,688.80) plus taxes and shipping (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 and approval of the Packing System and (b) the City's receipt of an invoice
in a form reasonably acceptable to the City from France. Invoices shall contain an itemization of services
rendered and other directly related job expenses and subcontract charges incurred by France and for which
compensation is due. France shall be responsible for paying any subcontractors used in the performance of this
Agreement. Subcontractors shall not bill the City directly. Payment of the invoice shall be made after
acceptance and approval by the City within thirty (30) days of receipt. The City's approval of the invoice shall
not be unreasonably withheld.
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 France if France is in default of any of its obligations under this
Contract; any portion of the Packing System is defective or not in accordance with the terms of this Contract
(provided, however, that p~yment shall be made as to any portion of the Packing System that is acceptable to the
. City); or the conditions required for payment as set forth in Paragraph 4.1 above have not been satisfied.
4.4 Payment is Not Acceptance. Neither payment by the City nor use of the Packing System
by the City shall constitute an acceptance of any Packing System not in accordance with the terms of this
Contract.
5. France's Representations. Warranties. and Covenants.
5.1 Caoability.France represents to the City that it is qualified, willing, and able to obtain,
sell, and deliver the Packing System.
3
5.2 Assignment of Warranties: Delivery of Documentation. France shall assign to the City at
the time of the Packing System delivery all manufacturers' warranties and France shall assemble and deliver to
the City complete copies of all warranties, guaranties, and operating and maintenance data and all other
documentation from all manufacturers pursuant to this Contract.
5.3 Compliance with Law. France shall strictly observe and comply with all applicable
federal, state, and local laws, ordinances, and regulations governing the sale and delivery ofthe Packing System,
including, but not limited to any permit or license requirements of the United States Department of Commerce.
5.4 Authorizations. France is authorized to do business in California and properly licensed
and registered by all governmental authorities having jurisdiction over it.
5.5 Title to City. France warrants that title to the Packing System will pass to the City either
by incorporation in the construction or upon the receipt of payment by France, whichever occurs first, free and
clear of all liens, claims, security interests or encumbrances, and that no seller of any Packing System or any
portion thereof will retain an interest therein or an encumbrance thereon.
5.6 Payments to Third Parties. France shall promptly pay all bills for labor and materials
furnished by others in connection with this Contract.
5.7 Warranty.
5.7.1 France's Warranties. France, warrants that the Packing System 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 Packing System 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 France or the City reveals that any portion of the Packing System does not meet
the City's specifications or the City identifies any defects in or damage to the Packing System, France shall
promptly repair or replace any defective Packing System; 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 Packing System from that vendor, and obtaining another vendor to provide that Packing
System. France 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 Packing System, including any and all
4
damages caused to the City's existing equipment, storage and/or system and the Vernon Substation or the
Malburg Project by the use of defective Packing System provided by France.
5.7.2 Manufacturers' Warranties. France shall obtain for the benefit of the City, and
assign to the City, commercially reasonable manufacturers' warranties, which shall commence for a period of
one (1) year from the date the City receives the Packing System under this Contract or the City's acceptance of
the Packing System being purchased hereunder, whichever occurs first. France shall assist the City in the
enforcement of all such warranties.
5.7.3 Warranty Period. France, 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) Packing System rejected by the City as defective .
or as failing to conform to this Contract if reported to France within the Warranty Period. The Warranty Period
shall be t~~ri~from the date of Packing System being delivered hereunder or from the date of the City's
acceptance of the Packing System 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 Warranty Period shall commence for
replaced Packing System on the date the replacement was made. France's obligations hereunder shall include
the obligation to repair any damage to other property caused by the defective Packing System or the repair
thereof. France 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 Packing System found tobe defective or not in accordance with this Contract,
or (b) the correction of any such Packing System.
The foregoing representations, warranties, covenants, and agreements shall survive any
termination of this Contract and fmal completion of the delivery of the Packing System and are in addition to,
and not in lieu of, any and all other liability imposed upon France by law with respect to France's duties,
obligations and performance hereunder.
6. Indemnification.
6.1 France's Indemnity. To the fullest extent permitted by law, France 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
5
costs and expenses incurred in connection therewith, including reasona?le attorneys' fees and all costs of
defense, arising out of or attributable to the negligent or wrongful acts of France or its employees or agents in
the delivery of Packing System 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 ofthis Contract. The obligations in this Paragraph are in addition to France's duty to
provide insurance and shall not be limited by any limitation on the amount or type of insurance coverage carried
by France.
6.2 Indemnity Process. The City shall notify France in writing of any suits, claims or
demands covered by this indemnity. Promptly after receipt of such notice, France shall assume the defense' of
such claim with counsel reasonably satisfactory to City. If France 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 France 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
France. 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. France 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 Packing
System 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 Packing System 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 Chief Executive Officer of the Light & Power Department.
/1/
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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 France.
8.2 Termination by City Without Cause. In the event of termination by the City without
cause, France shall be compensated for the Packing System 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 France directly attributable to
termination which could not reasonably have been avoided and for which France 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 France without Cause. If France breaches this
Contract, the City shall notify France in writing of said breach and if France 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 France for cause. France shall be responsible for all direct and indirect costs due to the City's re-procurement
of the equivalent of the Packing System cancelled pursuant to this Paragraph 8.3. If this Contract is terminated
by the City with cause, or terminated by France without cause, the City shall pay France for the Packing System
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 France's default and for any
reason described as ajustification 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 duties, liabilities or obligations whatsoever
under this Contract. Upon a termination ofthis Contract, except for its obligations under Paragraph 8.5 below,
France 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, 11.5 and 11.11 shall survive the termination of this Contract.
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8.5 Delivery of Work Product and Documentation. Within three (3) business days after any
termination of this Contract, France shall deliver to the City all Work Product (as defined in Paragraph 9) and
all documentation pertaining to this Contract and any and all copies thereof, whether in the possession of France
or a party engaged by France; provided, however, that solely for its internal auditing purposes, France may, at its
sole expense, make and retain copies of Work Product materials, subject to the confidentiality provisions of
Paragraph 10. France 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
France'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 fomi or medium, prepared
by or for France, its officers, employees, agents in the course of performing the obtaining, delivering, and selling
to the City the Packing System sold under this Contract (collectively, the "Work Product"), but excluding
worlcing 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 France or to any other party. Work Product
materials shall be delivered to City by France as they are generated.
10. Confidential Information.
10.1 Access to Confidential Information. The City may provide France or allow France 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 France 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, France
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 authorizect representative of the City. France 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 France has delivered the Packing System to be delivered pursuant to this Contract. France hereby
8
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agrees that such Confidential Information and any documents provided may be used by France only as
authorized by the City.
10.3 Court Ordered Disclosure. France 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. France 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 France'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 Qr later becomes
publicly known through no breach of confidential obligation by France.
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. France 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 Arbitration. The parties agree that any and all disputes arising out of or in relation to this
Agreement, including without limitation any action in tort, shall be resolved exclusively, fmallyand
conclusively by arbitration in Los Angeles County, California under the auspices of and pursuant to the rules of
the Judicial Arbitration & Mediation Services Inc. (JAMS). Each party will select an arbitrator. Those two
arbitrators will then select a third. The three member panel will make the final decision. All decisions of the
9
arbitrators shall be in writing, and the arbitrators shall provide written reasons for their decision. The arbitration
decision shall be final and binding Qn the parties. Notwithstanding the foregoing, the parties shall be permitted
to access the court system to enforce any arbitration award or to obtain injunctive relief. The exclusive
jurisdiction and venue for any such action shall be the Superior Court of California, Los Angeles County.
11.4 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 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.
11.5 Notices. All notices required or permitted by thi$ 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, ~r by facsimile transmission during normal business h~urs, 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 11.5 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. If there is any change in a party's address, that party shall give notice, in writing,
to the other party indicating the address change within five (5) business days.
CITY:
THE CITY OF VERNON
Attn: Bruce V. Malkenhorst
City Administrator
4305 Santa Fe Avenue
Vernon, CA 90058-0805
FRANCE:
FRANCE COMPRESSOR PRODUCTS
4410 Greenbriar Drive
Stafford, TX 77477-3802
Attn: President .
11.6 Status of France. At all times during the term of this Contract, France shall be an
independent contractor. Except as the City may specify in writing, France shall have no authority, express or
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IN WIlNESS WHEREOF, the parties have caused this Contract to be executed by and through
their authorized officers on the date, month and year first written above.
CITY OF VERNON
ft--'
Bruce V. Malkenhorst, City Clerk
J/
B}"~~/'
~ ~9NIS C. MAL URG, Mayor
ATTEST:
APPROVED AS TO FORM
L~
Eric T. Fresch, ity Attorney
FRANCE COMPRESSOR PRODUCTS
I '
BY./?~~~.
. Typed Name:XC4BGer::f. &J/ze'~
Title: o/~,e,- mARrEvAt; .6-AGtS .
By. ~f;l~~ .
Typed Name: 41hfOJiv/ 12. 6,0!f?t;{f 1
Title: JJp f GFJ./~L J'I{.4N46fYl
12
< OSi10/0S TUE 11:0,') FAX 310 7611718
FRANCE COMPRESSOR
~OOl
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~
~ it: .iA N C -E
Compre$$or Products
Manufacturer's Representativ.
19520 Rancho Way . Suite 206' Rancho Dominguez. CA 90220
Office: 310/223-1100 . Fax: 3101761-1718
QUOTATION
EASE REFER TO THIS ORDER
UMBER ON YOUR ORDeR
46-510-05 .
CITY OF VEHNON
2715 E. 50TH STREET.
Aii~Eb6~Ai;.jj'Q'Ui'ROZ"'"
QUESTIONS OR ORDERS RELATING TO
THIS QUOTATION SHOUlD BE SENT TO:
DATE Of QUOTATION
YOUR REFERENCE
SHIPMENT
SALfSMAN
>1 ().05
PACKING CASES
EIGHT WEEKS
taRK KOVALEFf
We are
auANnTY
MOUNT
DESCRP1lON
32,648.00
16
$2,0040.50
149-0162-56001-206, PACKING CASes WITH PACKING
NO NOSE GASKET INSTAllED.
16
$690.05
14g.o162-52OO1-150, OIL WIPER GLANDS WITH WIPER
ACKlNG INSTAUED
11.040.80
OVE QUANTmES ARE TO COMPLETE ONE ENGINE.
TOTAL LESS SHIPPING & TAXES
43,68&.80
Thank you for your inquiry
QuGIIecl plicit$ :we ~ubjed .. ~ ~ onler ;" i.at oeceivcd wilhi" ~
~ "'... of quolllion
PAYMeNT TERMS: Net SO ~ from date gf service
FRBGHT TERMS; FOB SNppIrtJ Point unIe$$ ufheIwise~.
PLEASE SEE TERMS AND CONDIllONS ON REFERSE SIDE
BY;
..
~ f~~~,~~
STANDARD TERMS AND CONDITIONS OF SALE
UNLESS OTHERWISE AGREED TO IN WRITING, THE FOLLOWING PROVISIONS APPLY TO ALL SALES:
1. WARRANTY.
" Sel~ warrants that if any product of its manuf<lClure upon examination is found by a seller's representative to be defective in either workmanship or material under normal
use and service of seller, at its option. WIll repair or replace same free of charge. including lowest transportation charges. but not cost of installation or removal, or will refund
the purchase price thereof. provided that seller receives written claim specifying the defect within ninety (90) days from date of distributor sale, or one (1) year from date of
factory shipment, whichever occurs first' In no event shall seller be 6able for any claims. whether arising from breach of contract or warranty or claims of negligence or
negligent manufacture. in excess of the purchase price. ALL OTHER WARRANTIES EXPRESSED AND IMPLIED, INCLUDING ANY WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR PARTICULAR USE ARE HEREBY DISCLAIMED. The foregoing expresses all of selIer's obligations and liabilities with respect to
the quality of items fumished by it and shall, under no circumstances, be liable for consequential. collateral or special losses or damages.
2. ORDER ACCEPTANCE BY SELLER. .
a. All orders received from BUYER are subject to acceptance by SELLER. unless quotation specifies that it is a bid in response to an invitation for bids. in which event the
order or award shall constitute acceptance of the bid in accordance with bid terms,
b. Terms and conditions on the BUYER'S order fonn. at variance with tenns and conditions stated herein. are binding upon SELLER. only if specifically accepted by SELLER
in writing.
c. Orders accepted by SelLER cannot be canceled by BUYER, except with SELLER'S written consent and upon terms that will indemnify SELLER against loss.
3. QUANTITY VARIANCES.
SELLER receives the right to ship and BUYER agrees to accept an under-or-over-run of any quantity, up to and including 10%.
4. SAMPLES.
In the event samples are furnished to BUYER. SELLER will not assume any liability in connection with the furnishing or use thereof and there will be no agreement of
warranty collateral to. or affec/ing, the furnishing of such samples.
5. . PRICE AND PAYMENT. .
a. Unless otherwise stated, legal delivery and prices are FOB SELLER'S plant and do not include transportation charges.
b. Taxes Not Included in Price: Except where otheIwise prohibited by law, all sales. excise. use or similar taXes or charges by the federal. any foreign, or any state or local
government, which SELLER may be required to pay of collect, shall be in addition to price stated and shall be paid by BUYER, unless valid exemption certificate is
furnished therefore.
c. Payment All accounts are payable within thirty (30) days, SELLER may demand payment in advance of shipment if, in SEllER'S opinion, the credit or financial condition of
Buyer is, or is about to become. impaired.
d. Payments Where Shipments are DeIa~: Where BUYER requests delay in shipment. SELLER shall have the option of billing for goods when ready for shipment. If
material is not ordered out within sixty (60) days after goods are ready. SEllER will have the option of billing storage charges.
6. DEUVERY.
a. Shipping Dales: Shipping dates are approximate only and subject to change.
b. Unforeseen Delays: SELLER shall not be Iiabte in damages or othetwise for delays or failure in performance when caused by circumst3nces, of every nature and
description and however arising. beyond SEllER'S reasonable control. In tne event that SelLER is unable due to any such occurrence or othefWise, to fulfiR its total
commitments to all customers. BUYER agrees to accept. as full and complete petformance by SELlER. deliveries in accordance with such plan or proration as SEllER
may adopt
c. Packaging: SELlER will provide commercial packaging adequate. under normal circumstances, to protect the goods in shipment and identify !he contents. Should BUYER
request any special packaging, it will be done at BUYER'S expense..
d. Routing: All goods will be shipped via !he cheapest or most expeditious means of transportation under the circumstances, unless BUYER incflCates othetwise. If BUYER
provides no routing inslructions,SELLER shall be the sole judge of the best method of routing shipment
e. Claims: Claims for loss or damage in transit must be entered and prosecuted by the BUYER.
7. SPECIAL TOOLING.
All special tooling required to produce !he goods shall remain !he properly of SELLER unless specific arrangements are otherwise made. In any case. SEllER'S
responsibility is limited to proper design, proper handling in manufacture and storage. and adequate insurance. The BUYER is responsible for costs resulting from: (1)
alterations requested by him, (2) major repairs or replacement caused by normal wear, (3) additional costs incurred when new factors are inlroduced. such as shorter lead
time and/or increased rate of delivery. The term .SpeciaI Tooling' shall include such items as molds, OIe5, forms, jigs. mandrels. fixtures and other special equipment.
except machinery which is required to produce the goods.
8. INSPECTION.
SEllER will inspect all goods prior to shipment and such inspection will be adequate to meet SEllER'S standard for dimensional and visual characteristics.
9. REJECTIONS AND RETURNS.
a. Notification to SELLER: BUYER will be deemed to have inspected and accepted any shipment under this contract if, within thirty (30) days after BUYER'S receipt of goods,
BUYER has not notified SELLER in writing that such goods are rejected and the grounds therefore.
b. Return of Goods: No goods may be returned by BUYER for any reason without SELLER'S prior written approval.
10. SPECIAL DAMAGES.
Neither BUYER or SELLER shall make any claims for special or consequential dall!8ges. When work is performed at BUYER'S site, each party agrees to indemnify and
save hannless the other from any and all claims resulting from injuries or death of its employees and for damages to its own property.
11. PATENT INFRINGEMENT. , .
a. Should the goods furnished by SEllER be of such a nature tttat the design therefore is supplied by BUYER. or should the goods be labeled or marked with a trademark or
trade name requested by BUYER, then BUYER agrees to defend SELLER in any action, either civil or criminal, brought against SELLER by any third party. for the
infringement or misuse of any such patents or trademarks. and BUYER further agrees to hold SEllER harmless from any damages or loss resulting therefrom.
b. As to any of the goods manufactured according to a design or specification not furnished by BUYER, SELLER shall indelmify and save hannless BUYER from any claim
that any use or resale of the same In and of itself infringes any U.S. patent or patent rights, if the BUYER within thirty (30) days, notifies SELLER in writing of any such claim
and gives SELLER authority, infOfll\8tion and assistance (at SEllER'S expense) to dispose of such claim and to defend any suit that may be brought against the BUYER
OR BUYER'S customer thereon. In that event SELLER will, at its expense. defend any such suit and satisfy any judgment therein to an amount not exceeding the price paid
SELLER for said goods held to infringe. If, In any such suit, an injunction is issued against the further use of said item or any part thereof, SELlER wiD. at its option and
expense, either procure for the customer the right to continue using said goods, or to replace the same with non-infringing goods or modify them so that they become non-
infringing. or remove said goods and refund the purchase price and transportation. and installation costs thereof. SELLER shall not be liable in any respect, except as
aforesaid, including without 6mitation. for any claim of infringement settled by BUYER without SELLER'S consent. The foregoing expres5flS" all of SEllER'S obligations and
6abilities as to patents.
12. GENERAL PROVISIONS.
a. Modifications of Contract: It is agreed that there is no other contract in force between BUYER and SELLER and no alteration shall be binding unless agreed to in writing by
SELLER. Should SELLER by any words, acts or writing waive or be deemed to have waived any of the provisions of this agreement, or should SELLER fail to insist upon
performance by BUYER of one or more items herein, such action or failure on SELLER'S part will in no way be deemed to imply or constitute a waiver of any other terms
contained in this Agreement
b. Compliance with Laws: SELLER certifies compflance with all relevant Federal. State and focal laws, including Paragraphs 6,7, and 12 of the Fair Labor Standard Act as
amended, and any regulations and orders issued under Paragraph 14 thereof.
c. Rights in Data: The acceptance of this order by SELLER does not convey any 'Rights in Data' as described in ASPP9-202 or 9-203, or any amendments thereof. If'Rights
in Data" are desired. they must be the subject of separate negotiations.
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EXHIBIT B
INSURANCE SCHEDULE
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France 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
Bodily Iniury Property Damage
Each Person Each Accident Each Accident
Automobile Liability
Owned Automobiles
Hired Automobiles
Non-Owned Automobiles
Workers'. Compensation
Employers' Liability
$ 500,000
$ 500,000
$ 500.000
$ 'Statutory
$1.000.000 per employer
II. Liability
General Liability
Premises Operations
Independent Contractor
Products - Completed Operations
Contractual Liability
Umbrella Liability
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1.000.000
$2.000.000
$1,000,000
$1,000,000
$1.000.000
$2,000,000
$2,000,000
$2,000,000
$2,000,000
$2.000.000
$2.000.000
$ 500,000
$ 500,000
$ 500.000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1.000.000
$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:
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 V ernon 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.
EXHffiIT "B"