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Resolution No. 89031 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 8903 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 ALLSTAR FIRE EQUIPMENT, INC. FOR BREATHING APPARATUS, CYLINDERS AND RELATED EQUIPMENT FOR THE FIRE DEPARTMENT WHEREAS, the City of Vernon has obtained funds from a 2004 Urban Areas Security Initiative Grant Number 2004 -0014 for USAR and HazMat equipment for the Vernon Fire Department; and WHEREAS, the Vernon Fire Department desires to use the funds received for the purchase of six (6) Scott 4.5 -45 Minute Carbon Fiber Cylinders and Valve Assemblies (breathing apparatus and spare bottles for hazardous material response vehicle), seven (7) Scott Air -Pak, 4.5 with EBSS Less Mask Cylinder Cases, seven (7) Scott AV3000 Masks, seven (7) Scott 4.5 -45 min. Carbon Fiber Cylinders and Valve Assemblies, seven (7) Scott Pak -Alert SEs and Integrated Pass Devices, seven (7) Scott Extended Duration Hoses and fifty (50) spare Scott 4.5 -45 min. Carbon Fiber Cylinders and Valve Assemblies (breathing apparatus and spare bottles for hazardous materials response vehicle) (collectively, the "Equipment "); and WHEREAS, the Equipment are self - contained breathing apparatus for respiratory protection; and WHEREAS, the purchase of the Equipment would enhance the Fire Department's operation, thereby enhancing the services provided to citizens, residents and businesses within the Vernon community; and WHEREAS, the Vernon Fire Department obtained three informal quotes and determined that Allstar Fire Equipment, Inc. ( "Allstar ") can provide the Equipment that meet the specifications and requirements of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Department; and WHEREAS, on November 8, 2005, the Finance Committee considered the request for the purchase of the Equipment from Allstar using grant funds; 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 Allstar for the purchase of the Equipment to enhance services provided to the Vernon community. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby approves the Equipment Purchase Contract with Allstar Fire Equipment, Inc., in substantially the same form as Exhibit A which attached hereto and incorporated herein by reference. SECTION 3: The City Council of the City of Vernon hereby authorizes the Mayor to execute said Contract for, and on behalf of, the City of Vernon and the Acting City Clerk is hereby authorized to attest thereto. SECTION 4: The City Council of the City of Vernon hereby directs the Acting City Clerk, or his designee, to send one fully executed Contract to: ALLSTAR FIRE EQUIPMENT, INC. Attn: Joseph A. Sposato, President 12328 Lower Azusa Road Arcadia, CA 91006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECTION 5: The Acting 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 16th day of November 16, 2005. ATTEST: BRUCE V. MALKENHORST, JR. Acting City Clerk NIS C. MA BURG, Mayor 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA ss COUNTY OF LOS ANGELES I, BRUCE V. MALKENHORST, JR., Acting City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 8903, was duly adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Wednesday, November 16, 2005, and thereafter was duly signed by the Mayor of the City of Vernon. (SEAL) BRUCE V. MALKENHORST, JR. Acting City Clerk EXHIBIT A 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 16th day of November, 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 ALLSTAR FIRE EQUIPMENT CO., INC. (hereinafter referred to as "ALLSTAR ") 12328 Lower Azusa Road Arcadia, CA 91006 RECITALS WHEREAS, City's Fire Department has obtained funds from a 2004 Urban Areas Security Initiative Grant Number 2004 -0014 for USAR and HazMat equipment for the Vernon Fire Department; and WHEREAS, the Fire Department desires to use the funds received for six (6) Scott 4.5 -45 Minute Carbon Fiber Cylinders and Valve Assemblies (breathing apparatus and spare bottles for hazardous material response vehicle), seven (7) Scott Air -Pak, 4.5 with EBSS Less Mask Cylinder Cases, seven (7) Scott AV3000 Masks, seven (7) Scott 4.5 -45 min. Carbon Fiber Cylinders and Valve Assemblies, seven (7) Scott Pak -Alert SEs and Integrated Pass Devices, seven (7) Scott Extended Duration Hoses and fifty (50) spare Scott 4.5 -45 min. Carbon Fiber Cylinders and Valve Assemblies (breathing apparatus and spare bottles for hazardous materials response vehicle) (collectively, the "Equipment "); and WHEREAS, the Scott Air -Paks are self - contained breathing apparatus for respiratory protection; and WHEREAS, the City's Fire Department obtained three informal quotes and determined that ALLSTAR can provide the necessary Equipment meeting the specifications and requirements of the Department; and WHEREAS, ALLSTAR has prepared two (2) quotes dated May 24, 2005, (collectively, the 1 "Proposal "), a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference for the Equipment; and WHEREAS, there are a limited number of companies that can provide the Equipment needed and ALLSTAR has provided a bid at a competitive price; and WHEREAS, ALLSTAR represents that it is qualified and capable of furnishing the Equipment 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 ALLSTAR to provide for the Equipment, as defined below, 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. ALLSTAR 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. ALLSTAR shall obtain, sell and deliver the Equipment at the City of Vernon, F.O.B. Job Site. ALLSTAR 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. ALLSTAR shall commence and complete the delivery of the Equipment as follows: 2.1 Time Schedule. ALLSTAR 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 "). ALLSTAR shall complete delivery of the Equipment no later than ten (10) days from the Commencement Date (the "Delivery Time "). Unless performance is excused, as set forth in Paragraph 2.2, ALLSTAR'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, 2 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 ALLSTAR 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 ALLSTAR, ALLSTAR shall be entitled to an increase in the Contract Sum, but only in any amount equal to the increase in ALLSTAR's direct cost resulting from such delay. 3. Contract Sum. The total purchase price for the Equipment is a sum not to exceed Sixty -Nine Thousand Seven Hundred Seventeen Dollars and Seventeen Cents ($69,717.17), which includes tax (no charge for freight) (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 Equipment and (b) the City's receipt of an invoice in a form reasonably acceptable to the City from ALLSTAR Invoices shall contain an itemization of services rendered and other directly related job expenses and subcontract charges incurred by ALLSTAR and for which compensation is due. ALLSTAR 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 ALLSTAR if ALLSTAR is in default of any of its obligations under 3 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. 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. ALLSTAR's Representations, Warranties, and Covenants. 5.1 Capability. ALLSTAR represents to the City that it is qualified, willing, and able to obtain, sell, and deliver the Equipment. 5.2 Assignment of Warranties; Delivery of Documentation. ALLSTAR shall assign to the City at the time of the Equipment delivery all manufacturers' warranties and ALLSTAR 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. ALLSTAR 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. 5.4 Authorizations. ALLSTAR 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. ALLSTAR warrants that title to Equipment will pass to the City either by . incorporation in the construction or upon the receipt of payment by ALLSTAR, 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. 5.6 Payments to Third Parties. ALLSTAR shall promptly pay all bills for labor and materials furnished by others in connection with this Contract. 5.7 Warranty. 5.7.1 ALLSTAR's Warranties. ALLSTAR 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 4 test results obtained by either ALLSTAR 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, ALLSTAR 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. ALLSTAR 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 and all damages caused to the City's existing equipment, storage and/or system by the use of defective Equipment provided by ALLSTAR 5.7.2 Manufacturers' Warranties. ALLSTAR shall obtain for the benefit of the City, and assign to the City, commercially reasonable manufacturers' warranties, which shall commence from the date the City receives the Equipment under this Contract or the City's acceptance of the Equipment being purchased hereunder, whichever occurs first. ALLSTAR shall assist the City in the enforcement of all such warranties. 5.7.3 Warranty Period. ALLSTAR, 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 ALLSTAR within the Warranty Period. The Warranty Period shall be the period of and commence from the date Equipment delivered 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 Warranty Period shall commence for replaced Equipment on the date the replacement was made. ALLSTAR's obligations hereunder shall include the obligation to repair any damage to other property caused by the defective Equipment or the repair thereof. ALLSTAR 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 ALLSTAR by law with respect to ALLSTAR's duties, 5 obligations and performance hereunder. 6. Indemnification. 6.1 ALLSTAR's Indemnity. To the fullest extent permitted by law, ALLSTAR 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 ALLSTAR 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 ALLSTAR's duty to provide insurance and shall not be limited by any limitation on the amount or type of insurance coverage carried by ALLSTAR 6.2 Indemnity Process. The City shall notify ALLSTAR in writing of any suits, claims or demands covered by this indemnity. Promptly after receipt of such notice, ALLSTAR shall assume the defense of such claim with counsel reasonably satisfactory to City. If ALLSTAR 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 ALLSTAR 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 ALLSTAR 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. ALLSTAR 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 6 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. 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 ALLSTAR 8.2 Termination by City Without Cause. In the event of termination by the City without cause, ALLSTAR 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 ALLSTAR directly attributable to termination which could not reasonably have been avoided and for which ALLSTAR 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 ALLSTAR without Cause. If ALLSTAR breaches this Contract, the City shall notify ALLSTAR in writing of said breach and if ALLSTAR 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 ALLSTAR for cause. ALLSTAR 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 ALLSTAR without cause, the City shall pay ALLSTAR 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 ALLSTAR'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 duties, liabilities or obligations whatsoever under this Contract. Upon a termination of this Contract, except for its obligations under Paragraph 12.5 below, 7 ALLSTAR 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. 8.5 Delivery of Work Product and Documentation. Within three (3) business days after any termination of this Contract, ALLSTAR 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 ALLSTAR or a party engaged by ALLSTAR; provided, however, that solely for its internal auditing purposes, ALLSTAR may, at its sole expense, make and retain copies of Work Product materials, subject to the confidentiality provisions of Paragraph 10. ALLSTAR 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 ALLSTAR'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 ALLSTAR, 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 ALLSTAR or to any other party. Work Product materials shall be delivered to City by ALLSTAR as they are generated. 10. Confidential Information. 10.1 Access to Confidential Information. The City may provide ALLSTAR or allow ALLSTAR 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 ALLSTAR 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, ALLSTAR 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 8 written consent of an authorized representative of the City. ALLSTAR 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 ALLSTAR has delivered all Equipment to be delivered pursuant to this Contract. ALLSTAR hereby agrees that such Confidential Information and any documents provided may be used by ALLSTAR only as authorized by the City. 10.3 Court Ordered Disclosure. ALLSTAR 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. ALLSTAR 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 ALLSTAR'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 ALLSTAR 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. ALLSTAR 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 9 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 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. 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 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. 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, Jr. Acting City Clerk 4305 Santa Fe Avenue Vernon, CA 90058 -0805 ALLSTAR: ALLSTAR FIRE EQUIPMENT, INC. 12328 Lower Azusa Road Arcadia, CA 91006 Attn: Joseph A. Sposato, President 10 11.6 Status of ALLSTAR At all times during the term of this Contract, ALLSTAR shall be an independent contractor. Except as the City may specify in writing, ALLSTAR shall have no authority, express or implied, to act on behalf of the City in any capacity whatsoever as an agent. ALLSTAR shall have no authority, expressed or implied, pursuant to this Contract to bind the City to any obligation whatsoever. 11.7 Insurance. ALLSTAR agrees to provide insurance in the amounts and forms specified in Exhibit B, which is attached hereto and incorporated by reference. ALLSTAR 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. ALLSTAR 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. ALLSTAR 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. ALLSTAR employs subcontractors as part of the services rendered, ALLSTAR's protective coverage is required. ALLSTAR 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 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. 11.10 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. 11 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 ATTEST: Bruce V. Malkenhorst, Jr., Acting City Clerk APPROVED AS TO FORM Eric T. Fresch, City Attorney By: LEONIS C. MALBURG, Mayor ALLSTAR FIRE EQUIPMENT, INC. By: Typed Name: Title: By: Typed Name: Title: 12 EXHIBIT A Q5/24i2005 14:34 ALLSTAR FIRE -> 13232623695 ALLSTAR FIRE EQUIPMENT, INC SALES QUOTE 12328 Lower Azusa Road Arcadia, California 91006 Phone (626) 652 -0900 Fax: (626) 652 -0919 Date: May 24, 2005 To: VERNON FIRE DEPT. Attn: CAPT. MIKE LANGER FAX 323 - 262 -3695 Per your request, we are pleased to quote on the following: DESCRIPTION PRICE EXTENSION EA 804722 -01 SCOTT 4.5 - 45. MIN. CARBON FIBER $684.00 $4,104.0 CYLINDER AND VALVE ASSEMBLY TERMS NET 30 DAYS FOB POINT DESTINATION DELIVERY 6 WEEKS ARO Quoted By: d T. Patterson - Sales Subtotal 8.25% SHIPPING TOTAL S4,104.00 $338.58 .. $0.00 $4,442.58 05/24/2005 16:37 ALLSTAR FIRE 4 13232623695 ALLSTAR FIRE EQUIPMENT, INC SALES QUOTE 12328 Lower Azusa Road Arcadia, California 91006 Phone (626) 652 -0900 Fax: (626) 652 -0919 Date: May 24, 2005 To: CITY OF VERNON FIRE DEPT. Attn: CAPT. MIKE LANGER FAX 323- 262 -3695 Per your request, we are pleased to quote on the following: QTY UNIT ! DESCRIPTION 7 7 7 50 EA EA EA EA EA 804935 -0603 SCOTT AIR -PAK 4.5 KIT, CBRN HUD, RIC, Q.D REG., EMS LESS MASK, CYLINDER, CASE. NFPA 1981 -2002 COMPLIANT UNIT 805773 -01 SCOTT AV3000 MASK, SMALL 804722 -01 SCOTT 4.5 - 45 MIN. CARBON FIBER CYLINDER AND VALVE ASSEMBLY 805796 -02 SCOTT PAK -ALERT SE+ INTERGRATED PASS DEVICE FACTORY INSTALLED 27537 -01 SCOTT EXTENDED DURATION HOSE HANSEN FITTING 804722 -01 SCOTT 4.5 - 45 MIN. CARBON FIBER CYLINDER AND VALVE ASSEMBLY TERMS NET 30 DAYS FOB POINT DESTINATION DELIVERY 12 WEEKS ARO PRICE EXTENSION 53,045.55 INCL INCL $463.00 5220.00 5684.00 Ouoted By: T. Patterson - Sales Subtotal 8.25% SHIPPING TOTAL $21,318.85 $3,241.00 $1,540.00 $34,200.00 $60,299.85 $4,974.74 $65,2759 •� Home > Self Contained Breathing Apparatus > Air -Pak Fifty e u; 1— o 2 t Tr, E 0 0 1 03 0 .13 x .0 0 0 = E E E E -le O D a a os u w a- R En tu, S. V- Mk*.ll• 0- • 16. 0. 1 STRUM ENIS and Industrial professionals worldwide. • Cutting edge respiratory protection for first responders, municipal and Industrial firefighters • Time - tested record of reliable performance and rugged dependability • Redundant safeguards promote an added margin of safety • Tactile feel end of service Indicator • Includes Scott's workhorse regulator, the E -Z Flo® • • Available In 2216, 3000 and 4500 psi operating pressures 11.3 c E 0 0 to 0 c 10 40 c 0 tO L. 'O (1) c • • TOP DOWN CONVERTIBILITY with AV- 2000® facepiece • AV -2000 allows for interface with Scott's full range of communication devices • A lightweight, ergonomically designed harness system • Places bulk of weight on hips instead of the shoulders / § $ / .� . . @ VI / % k § m 4 ch . . 0) 7 0 = @ \ 2 E m $ { :11rsi cr 6 \ � 2 . § 8 2 § c e = a in E �k f£ 00 • • q / 0 E E $ 0 /�. k EXHIBIT B EXHIBIT B INSURANCE SCHEDULE ALLSTAR 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 Owned Automobiles Hired Automobiles Non -Owned Automobiles Workers' Compensation Employers' Liability II. Liability Bodily Injury Property Damage Each Person Each Accident Each Accident $ 500,000 $ 500,000 $ 500,000 $1,000,000 $1,000,000 $1,000,000 $ 500,000 $ 500,000 $ 500,000 $ Statutory $1,000,000 per employer General Liability Premises Operations Elevators (If Applicable) Independent Contractor Products - Completed Operations Contractual Liability Umbrella Liability $1,000,000 $1,000,000 $1,000,000 $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 $2,000,000 $2,000,000 $1,000,000 $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 original 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 and specifying the activities covered. 4. Such other endorsement as may be required by City. 5. A copy of your general and umbrella insurance policy declarations page. 6. A copy of schedule of forms of endorsement. b. In addition to the above, the Contractor shall provide such further proof of insurance documentation as the City deems necessary. EXHIBIT "B" SUPPORTING DOCUMENTS 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 16th day of November, 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 ALLSTAR FIRE EQUIPMENT CO., INC. (hereinafter referred to as "ALLSTAR ") 12328 Lower Azusa Road Arcadia, CA 91006 RECITALS WHEREAS, City's Fire Department has obtained funds from a 2004 Urban Areas Security Initiative Grant Number 2004 -0014 for USAR and HazMat equipment for the Vernon Fire Department; and WHEREAS, the Fire Department desires to use the funds received for six (6) Scott 4.5 -45 Minute Carbon Fiber Cylinders and Valve Assemblies (breathing apparatus and spare bottles for hazardous material response vehicle), seven (7) Scott Air -Pak, 4.5 with EBSS Less Mask Cylinder Cases, seven (7) Scott AV3000 Masks, seven (7) Scott 4.5 -45 min. Carbon Fiber Cylinders and Valve Assemblies, seven (7) Scott Pak -Alert SEs and Integrated Pass Devices, seven (7) Scott Extended Duration Hoses and fifty (50) spare Scott 4.5-45 min. Carbon Fiber Cylinders and Valve Assemblies (breathing apparatus and spare bottles for hazardous materials response vehicle) (collectively, the "Equipment "); and WHEREAS, the Scott Air -Paks are self - contained breathing apparatus for respiratory protection; and WHEREAS, the City's Fire Department obtained three informal quotes and determined that ALLSTAR can provide the necessary Equipment meeting the specifications and requirements of the Department; and WHEREAS, ALLSTAR has prepared two (2) quotes dated May 24, 2005, (collectively, the "Proposal "), a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference for the Equipment; and WHEREAS, there are a limited number of companies that can provide the Equipment needed and ALLSTAR has provided a bid at a competitive price; and WHEREAS, ALLSTAR represents that it is qualified and capable of furnishing the Equipment 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 ALLSTAR to provide for the Equipment, as defined below, 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. ALLSTAR 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. ALLSTAR shall obtain, sell and deliver the Equipment at the City of Vernon, F.O.B. Job Site. ALLSTAR 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. ALLSTAR shall commence and complete the delivery of the Equipment as follows: 2.1 Time Schedule. ALLSTAR 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 "). ALLSTAR shall complete delivery of the Equipment no later than twelve (12) weeks from the Commencement Date (the "Delivery Time "). Unless performance is excused, as set forth in Paragraph 2.2, ALLSTAR'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, 2 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 ALLSTAR 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 ALLSTAR, ALLSTAR shall be entitled to an increase in the Contract Sum, but only in any amount equal to the increase in ALLSTAR's direct cost resulting from such delay. 3. Contract Sum. The total purchase price for the Equipment is a sum not to exceed Sixty -Nine Thousand Seven Hundred Seventeen Dollars and Seventeen Cents ($69,717.17), which includes tax (no charge for freight) (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 Equipment and (b) the City's receipt of an invoice in a form reasonably acceptable to the City from ALLSTAR Invoices shall contain an itemization of services rendered and other directly related job expenses and subcontract charges incurred by ALLSTAR and for which compensation is due. ALLSTAR 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 ALLSTAR if ALLSTAR is in default of any of its obligations under 3 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. 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. ALLSTAR's Representations, Warranties, and Covenants. 5.1 Capability. ALLSTAR represents to the City that it is qualified, willing, and able to obtain, sell, and deliver the Equipment. 5.2 Assignment of Warranties; Delivery of Documentation. ALLSTAR shall assign to the City at the time of the Equipment delivery all manufacturers' warranties and ALLSTAR 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. ALLSTAR 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. 5.4 Authorizations. ALLSTAR 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. ALLSTAR warrants that title to Equipment will pass to the City either by incorporation in the construction or upon the receipt of payment by ALLSTAR, 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. 5.6 Payments to Third Parties. ALLSTAR shall promptly pay all bills for labor and materials furnished by others in connection with this Contract. 5.7 Warranty. 5.7.1 ALLSTAR's Warranties. ALLSTAR 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 4 test results obtained by either ALLSTAR 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, ALLSTAR 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. ALLSTAR 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 and all damages caused to the City's existing equipment, storage and/or system by the use of defective Equipment provided by ALLSTAR 5.7.2 Manufacturers' Warranties. ALLSTAR shall obtain for the benefit of the City, and assign to the City, commercially reasonable manufacturers' warranties, specifically, ALLSTAR warrants the following: the pressure reducer warranty is fifteen (15) years; a bumper -to- bumper warranty for the bottles is ten (10) years; and the Air -Pak warranty with the exception of the pressure reducer is eight (8) years. All manufacturers' warranties, any warranties typically provided by ALLSTAR and any other warranties made applicable by law shall apply to the City's purchase of the Equipment. Warranties shall commence from the date the City receives the Equipment under this Contract or the City's acceptance of the Equipment being purchased hereunder, whichever occurs first. ALLSTAR shall assist the City in the enforcement of all such warranties. 5.7.3 Warranty Period. ALLSTAR, 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 ALLSTAR within the Warranty Period. The Warranty Period shall commence from the date Equipment delivered 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 Warranty Period shall commence for replaced Equipment on the date the replacement was made. ALLSTAR's obligations hereunder shall include the obligation to repair any damage to other property caused by the defective Equipment or the repair thereof. ALLSTAR 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 5 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 ALLSTAR by law with respect to ALLSTAR's duties, obligations and performance hereunder. 6. Indemnification. 6.1 ALLSTAR's Indemnity. To the fullest extent permitted by law, ALLSTAR 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 ALLSTAR 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 ALLSTAR's duty to provide insurance and shall not be limited by any limitation on the amount or type of insurance coverage carried by ALLSTAR 6.2 Indemnity Process. The City shall notify ALLSTAR in writing of any suits, claims or demands covered by this indemnity. Promptly after receipt of such notice, ALLSTAR shall assume the defense of such claim with counsel reasonably satisfactory to City. If ALLSTAR 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 ALLSTAR 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 ALLSTAR 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. ALLSTAR 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 Chief Executive Officer of the Light & Power Department. 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 ALLSTAR 8.2 Termination by City Without Cause. In the event of termination by the City without cause, ALLSTAR 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 ALLSTAR directly attributable to termination which could not reasonably have been avoided and for which ALLSTAR 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 ALLSTAR without Cause. If ALLSTAR breaches this Contract, the City shall notify ALLSTAR in writing of said breach and if ALLSTAR 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 ALLSTAR for cause. ALLSTAR 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 ALLSTAR without cause, the City shall pay ALLSTAR 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 7 ALLSTAR'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 duties, liabilities or obligations whatsoever under this Contract. Upon a termination of this Contract, except for its obligations under Paragraph 12.5 below, ALLSTAR 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. 8.5 Delivery of Work Product and Documentation. Within three (3) business days after any termination of this Contract, ALLSTAR 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 ALLSTAR or a party engaged by ALLSTAR; provided, however, that solely for its internal auditing purposes, ALLSTAR may, at its sole expense, make and retain copies of Work Product materials, subject to the confidentiality provisions of Paragraph 10. ALLSTAR 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 ALLSTAR'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 ALLSTAR, 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 ALLSTAR or to any other party. Work Product materials shall be delivered to City by ALLSTAR as they are generated. 10. Confidential Information. 10.1 Access to Confidential Information. The City may provide ALLSTAR or allow ALLSTAR 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 8 information about companies dealing with the City. All such non - public information shall be known as "Confidential Information" and may not be by ALLSTAR 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, ALLSTAR 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. ALLSTAR 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 ALLSTAR has delivered all Equipment to be delivered pursuant to this Contract. ALLSTAR hereby agrees that such Confidential Information and any documents provided may be used by ALLSTAR only as authorized by the City. 10.3 Court Ordered Disclosure. ALLSTAR 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. ALLSTAR 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 ALLSTAR'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 ALLSTAR 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. ALLSTAR 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, 9 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 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. 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 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. 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. /1/ I/I 10 CITY: THE CITY OF VERNON Attn: Bruce V. Malkenhorst, Jr. Acting City Clerk 4305 Santa Fe Avenue Vernon, CA 90058 -0805 ALLSTAR: ALLSTAR FIRE EQUIPMENT, INC. 12328 Lower Azusa Road Arcadia, CA 91006 Attn: Joseph A. Sposato, President 11.6 Status of ALLSTAR At all times during the term of this Contract, ALLSTAR shall be an independent contractor. Except as the City may specify in writing, ALLSTAR shall have no authority, express or implied, to act on behalf of the City in any capacity whatsoever as an agent. ALLSTAR shall have no authority, expressed or implied, pursuant to this Contract to bind the City to any obligation whatsoever. 11.7 Insurance. ALLSTAR agrees to provide insurance in the amounts and forms specified in Exhibit B, which is attached hereto and incorporated by reference. ALLSTAR 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. ALLSTAR 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. ALLSTAR 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. ALLSTAR employs subcontractors as part of the services rendered, ALLSTAR's protective coverage is required. ALLSTAR 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 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 11 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. 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 ATTEST: Bruce V. rst, Jr., Acting City Clerk APPROVED AS TO FORM Eric T. Fresch, City ALLSTAR FIRE EQUIPMENT, INC. By: Typed Name: _ Title: P By: Joseph A. Sposato T Jill A. Hopper Title: �/� °� 1-1"0/1e41-0"- f3z.vD 12 Co ' po to S c 't 95/24/2005 14:34 ALLSTAR FIRE * 13232623695 NO.669 PO3 ALLSTAR FIRE EQUIPMENT, INC SALES QUOTE 12328 Lower Azusa Road Arcadia, California 91006 Phone (626) 652 -0900 Fax: (626) 652 -0919 Date: May 24, 2005 To: VERNON FIRE DEPT. Attn: CAPT. MIKE LANGER FAX 323 - 262 -3695 Per your request, we are pleased to quote on the following: DESCRIPTION PRICE EXTENSION EA 804722 -01 SCOTT 4.5 45. MIN. CARBON FIBER 5684.00 54,104.00 CYLINDER. AND VALVE ASSEMBLY TERMS NET 30 DAYS FOB POINT DESTINATION DELIVERY 6 WEEKS ARO Subtotal 8.25% SHIPPING TOTAL Quoted By: 54,104.00 $338.58 .. $0.00 $4,442.58 d T. Patterson - Sales 05/24/2005 16:37 ALLSTAR FIRE 3 13232623695 NO.677 901 ALLSTAR FIRE EQUIPMENT, INC SALES QUOTE 12328 Lower Azusa Road Arcadia, California 91006 Phone (626) 652 -0900 Fax: (626) 652 -0919 Date: May 24, 2005 To: CITY OF VERNON FIRE DEPT. Attn: CAPT. MIKE LANCER FAX 323- 262 -3695 Per your request, we are pleased to quote on the following: QTY 7 7 7 7 50 EA EA EA EA EA DESCRIPTION 804935 -0603 SCOTT AIR -PAK 4.5 KIT, CBRN HUD,1UC, Q.D REG., EMS LESS MASK, CYLINDER, CASE. NFPA 1981 -2002 COMPLIANT UNIT 805773 -01 SCOTT AV3000 MASK, SMALL 804722 -01 SCOTT 4.5 - 45 MIN. CARBON FIBER CYLINDER AND VALVE ASSEMBLY 805796 -02 SCOTT PAK -ALERT SE+ INTERGRATED PASS DEVICE FACTORY INSTALLED 27537 -01 SCOTT EXTENDED DURATION HOSE HANSEN FITTING 804722 -01 SCOTT 4.5 - 45 MIN. CARBON FIBER CYLINDER AND VALVE ASSEMBLY TERMS NET 30 DAYS FOB POINT DESTINATION DELIVERY 12 WEEKS ARO PRICE $3,045.55 INCL INCL Quoted By: T. Patterson • Sales $463.00 $220.00 $684,00 EXTENSION 521,318.85 $3,241.00 $1,540.00 534,200.00 $60,299.85 $4,974.74 $O�,�Q Subtotal 8.25% SHIPPING TOTAL 565,27 Scott Health & Safety - Air -Pak® FiftyTM Home > Self Contained Breathing Apparatus > Air -Pak Fifty i- ce E ,:§ x 13 1 9 E la t '43 2 cc LI-t Mobile Air Cart Leading edge technology and reliable time tested performance are just two of the many reasons the Scott Air -Pak Fifty SCBA is the choice of fire and industrial professionals worldwide. COMMUNICATIONS • Cutting edge respiratory protection for first responders, municipal and industrial firefighters Time- tested record of reliable performance and rugged dependability Redundant safeguards promote an added margin of safety Tactile feel end of service indicator Includes Scott's workhorse regulator, the E -Z Flo® Available in 2216, 3000 and 4500 psi operating pressures Cylinder duration available In 30,45, and 60 minutes TOP DOWN CONVERTIBILITY with AV -2000® facepiece AV -2000 allows for interface with Scott's full range of c tL • • View Produ • communication devices •r Scott Health & Safety - Air -Pak® FiftyTM • A lightweight, ergonomically designed harness system a) 0' 4, y M .0 L to N es L L to a) ea 3 '0 O. 01 O Y cL to 3 0 11.1 0. ti. 4,, ,� N O Y W ., t, Ai al H c C c a0) o to a I 0 c U 5 • 3 0' o or m vi �t, .c o (f) co ,.+ CO y 1/3 W • °a 0 w 1.. 'a O o 0 c c 0 to to ta to tu c 0 R • L. 0. a S t 0 • • Charge, Airline pigtail, and integrated PASS 1 aD E. N U c o! ig v ci '8 N u • m! © Copyright 2002 -2005 Scott Health & Safety All Rights Reserved. about scoff 1 site map 1 contact us r.r EXHIBIT B INSURANCE SCHEDULE ALLSTAR 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 Owned Automobiles Hired Automobiles Non -Owned Automobiles Workers' Compensation Employers' Liability II. Liability Bodily Injury Property Damage Each Person Each Accident Each Accident $ 500,000 $ 500,000 $ 500,000 $ Statutory $1,000,000 per employer General Liability Premises Operations Elevators (If Applicable) Independent Contractor Products - Completed Operations Contractual Liability Umbrella Liability $1,000,000 $1,000,000 $1,000,000 $ 500,000 $ 500,000 $ 500,000 $1,000,000 $1,000,000 $1,000,000 $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 $2,000,000 $2,000,000 $1,000,000 $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 original 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 and specifying the activities covered. 4. Such other endorsement as may be required by City. 5. A copy of your general and umbrella insurance policy declarations page. 6. A copy of schedule of forms of endorsement. b. In addition to the above, the Contractor shall provide such further proof of insurance documentation as the City deems necessary. EXHIBIT "B"