Resolution No. 94151
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RESOLUTION NO. 9415
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
AN EQUIPMENT PURCHASE AND SERVICES AGREEMENT BY AND
BETWEEN THE CITY OF VERNON AND AFS, INC., AKA
IRONMAN PARTS & SERVICE, FOR THE RETROFITTING OF
DIESEL VEHICLES
WHEREAS, the Department of Community Services & Water
desires to purchase and have installed Cleaire Horizon M Electric
Regeneration Diesel Particulate Filter units together with parts,
brackets, tubing and hardware (collectively, the Equipment") to
retrofit fourteen (14) diesel vehicles in the City's fleet in order to
reduce diesel emissions to permissible levels in compliance with the
Diesel Particulate Control Measure for on -road heavy-duty diesel -
fueled vehicles owned or operated by public agencies and utilities to
meet the Best Available Control Technology requirement of Title 13,
California Code of Regulations, Sections 2022 and 2022.1; and
WHEREAS, Section 2022.1 of Title 13 of California Code of
Regulations requires that a percentage of public fleet diesel engine
vehicles comply with deadlines for the installation of the Equipment
by December 31, 2007 (200 of the fleet), December 31, 2009 (600 of the
fleet) and December 31, 2011 (1000 of the fleet) in order not to incur
civil penalties; and
WHEREAS, the purchase of the Equipment will improve the
effectiveness of the Department of Community Services & Water's
operation and enhance the emergency services provided to citizens,
residents and businesses within the Vernon community; and
WHEREAS, AFS, Inc., aka Ironman Parts & Service ("Ironman")
11is the only vendor that can provide the necessary Equipment meeting the
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specifications and requirements of the Department of Community Services
& Water; and
WHEREAS, on September 25, 2007, the Finance Committee Section
of the City Council recommended that the City purchase the Equipment
from Ironman at a cost of approximately Two Hundred Two Thousand Three
Hundred Forty Dollars and Twenty -Five Cents ($202,340.25); and
WHEREAS, the City and Ironman desire to enter into an
Equipment Purchase and Services Agreement setting forth the terms and
conditions under which the City shall purchase the Equipment and
installation services from Ironman; 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 Ironman for the Equipment and
services 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
Ifinds and determines that the recitals contained hereinabove are true
land correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the Equipment Purchase and Services Agreement with Ironman,
in substantially the same form as the copy which is attached hereto as
Exhibit A and incorporated by reference.
SECTION 3: The City Council of the City of Vernon hereby
authorizes the Mayor or Mayor Pro-Tem to execute the Agreement with
Ironman for, and on behalf of, the City of Vernon and the City Clerk
is hereby authorized to attest thereto.
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SECTION 4: The City Council of the City of Vernon hereby
directs the City Clerk, or her designee, to give one fully executed
Agreement to:
AFS, Inc. aka Ironman Parts & Service
Attn. Sandra Fetters, Project Coordinator
2535 Anselmo Drive
Corona, CA 92879
SECTION 5: The City Council of the City of Vernon hereby
uthorizes the City Administrator, or his designee, to make whatever
.onsubstantive, administrative and/or text changes, upon advice of
ounsel, to the Agreement.
SECTION 6: The City Clerk of the City of Vernon shall
:ertify to the passage of this resolution, and thereupon and
.hereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 2nd day of October, 2007.
AT SST:
i
MA UELA GIRON, City tlerk
Name: Leonis C. Malburg
Title: Mayor /- Myg- Dr^
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STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I, MANUELA GIRON, City Clerk of the City of Vernon, do hereby
certify that the foregoing Resolution, being Resolution No. 9415, was
duly adopted by the City Council of the City of Vernon at an adjourned
regular meeting of the City Council duly held on Tuesday, October 2,
2007, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of
the City of Vernon.
MANUELA ON City Clerk
I(SEAL)
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EXHIBIT
0
EQUIPMENT PURCHASE AND SERVICES AGREEMENT
This AGREEMENT ("Agreement") 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 1 st day of October, 2007, in the City of Vernon,
County of Los Angeles, California
BY AND BETWEEN CITY OF VERNON, a municipal
corporation, hereinafter referred to as
the "City"
4305 Santa Fe Avenue
Vernon, California 90058
AND AFS, INC., hereinafter referred as
"Contractor,"
2535 Anselmo Drive
Corona, CA 92879
RECITALS
WHEREAS, the City desires to purchase and install Cleaire Horizon M
Electric Regeneration DPF units together with parts, brackets, tubing and hardware
(hereinafter collectively referred to as the "Equipment") to retrofit fourteen (14) diesel
vehicles in the City's fleet in order to reduce diesel emissions to permissible levels in
compliance with the Diesel Particulate Control Measure for on -road heavy-duty diesel -
fueled vehicles owned or operated by public agencies and utilities to meet the Best
Available Control Technology requirement of Title 13, California Code of Regulations,
Sections 2022 and 2022.1; and
WHEREAS, Section 2022.1 of Title 13 of California Code of Regulations
requires that a percentage of public fleet diesel engine vehicles comply with the following
deadlines for installation of the Equipment: twenty percent (20%) of fleet by December 31,
2007, sixty percent (60%) of fleet by December 31, 2009 and one hundred percent (100%)
of fleet by December 31, 2011; and
WHEREAS, noncompliance with the reporting and retrofitting requirements
may subject the City to civil penalties of $100.00 per day per infraction for every day past
the required record keeping dates as well as $1,000.00 or more per day per engine; and
WHEREAS, Contractor submitted a proposal dated April 23, 2007 for the
purchase of the Equipment and installation services (hereinafter collectively referred to
as the "Proposal"), a copy of which is attached hereto as Exhibit A and incorporated by
reference; and
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WHEREAS, the Proposal includes a description of the Equipment and
services to be performed by Contractor and the attendant costs; and
WHEREAS, the Contractor is the only vendor that can provide the
necessary equipment and services meeting the specifications and requirements of the
Department of Community Services & Water; and
WHEREAS, Contractor has advised the City that it is qualified and
capable of providing the Equipment and services described in Exhibit A, 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 Contractor to
provide for the purchase and delivery of Equipment, material and the labor to install the
Equipment on a contractual basis as defined in the terms and conditions set forth below.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
SECTION 1. PURCHASE OF EQUIPMENT
1.01. Contractor agrees to self, deliver, install and test the Equipment, including all
material, and the City agrees to purchase the Equipment and services as identified in
Exhibit A. Contractor also agrees to perform a three (3) day diagnosis of the condition of
each vehicle on Job Site prior to the installation of the Equipment in order to determine the
condition of the exhaust system and to outfit each device with a CARB reporting tool.
1.02. Delivery. Contractor shall obtain and sell, deliver and test the Equipment at the
City of Vernon, F.O.B. Job Site. Contractor 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.
SECTION 2. TERM OF CONTRACT
2.01. This Agreement will become effective upon issuance of a Purchase Order, and
will continue in effect until such time as the City approves the scope of work
completed pursuant to the Proposal or until terminated as provided in this
Agreement.
SECTION 3. DEFINITION OF TERMS
3.01. Whenever used in the Agreement, the following terms shall mean:
A. "Agreement" shall mean that formally executed Agreement or Contract
which includes the Contract Documents attached. The Agreement
constitutes the entire agreement between the parties relating to its subject
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matter.
B. "City" shall mean the City of Vernon, California, the entity which has
executed the Agreement and, where applicable, its affiliated companies,
and its officers, directors, employees, representatives and agents.
C. "Contractor' shall mean AFS, Inc., doing business as Ironman Parts &
Service and/or Ironman Parts and where applicable, its affiliated
companies, and its officers, directors, employees, representatives and
agents.
D. "Contract Documents" shall include any inquiry, invitation to bid, or
proposal which may have, but not necessarily, preceded execution of the
Agreement, and including the General Provisions and all exhibits and
schedules attached to the Agreement and all plans and specifications
identified in the Contract Documents.
E. "Contract Price" shall mean the compensation set forth or provided for in
Section 5.01 of this Agreement. Whether it expressly provides for the
reimbursement of costs incurred by Contractor or simply for the payment
of a lump sum of money, it is intended to be the full and complete payment
for satisfactory completion of the Work and, unless otherwise stated, to
cover all costs whether for materials, equipment, tools, labor, services and
taxes and all overhead, rentals and profit or fee, if any.
F. "Equipment" shall mean the equipment identified in Exhibit A.
G. "General Provisions" or "General Conditions" shall mean the General
Provisions as set forth in this Agreement.
H. "Owner" shall mean City of Vernon, California, and where applicable, their
affiliated companies, directors, officers, employees, agents, and
representatives.
"Premises" shall mean the physical premises under City's control or
ownership where Work hereunder is to be performed.
J. "Proprietary Information" and "Confidential Information" shall mean all
information, whether written or oral, which Contractor acquires from,
through or on behalf of City, directly or indirectly, or which arises out of the
Work, concerning the Work or proprietary processes involved in the Work
including, without limitation, information concerning past, present or future
business plans of City, information about the operations of City's
Premises, and other City information or know-how obtained during the
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Work, except information falling into any of the following categories:
1. Information which, at the time of disclosure hereunder, is in the
public domain;
2. Information which, after disclosure hereunder, enters the public
domain, except where such entry is the result of Contractor's or any
entity within Contractor's control breach of this Agreement;
3. Information which, prior to disclosure hereunder, was already in
Contractor's possession without limitation regarding disclosure to
others; or
4. Information which, subsequent to disclosure hereunder, is obtained
by Contractor from a third party who is lawfully in possession of
such information and not subject to a contractual or fiduciary
relationship to City with respect to said information and who does
not require Contractor to agree to refrain from disclosing such
information to others.
K. "Subcontractor" shall mean any first or lower -tier subcontractor and its
employees, representatives, agents, subcontractors or other personnel
who have been approved in the manner required by this Agreement.
L. "Work" or "Services" shall mean the work performed by Contractor and
required to be performed from time to time by City under this Agreement.
SECTION 4. SERVICES TO BE PERFORMED BY
CONTRACTOR
Specific Services
4.01. Contractor's Services shall include, but will not be limited to, installing and testing
the Equipment. The Contractor's Services are more specifically detailed in the
Proposal attached hereto as Exhibit "A" and incorporated herein by this
reference.
4.02. Contractor shall be responsible for traffic control on the Work site when
necessary and shall take all precautions to ensure the safety of pedestrians,
vehicular traffic, and personnel.
Change of Services
4.03. City may at any time, by written change order executed by the City, make
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changes in the scope of Work, to extend the Work duration and/or total
compensation of Contractor's Work.
4.04. City may make "Changes" by increasing, reducing or deviating from the
requirements of the scope of Work. A form of Change Order is set forth in
Exhibit B attached hereto and incorporated by reference.
Timing of Services
4.05. Contractor's Services shall commence upon the execution of this Agreement by
both parties and award by the City Council and shall end when Contractor has
completed the work according to the Proposal, unless this Agreement is
otherwise terminated according to Section 7 of this Agreement or extended
according to the conditions and terms set forth in this Agreement. Delivery is
expected to be completed no later than nine (9) weeks from the issuance of
City's Purchase Order. Completion of the services to be performed by
Contractor is expected to be no later than sixty (60) days after delivery.
4.06. Time is of the essence for all Work contemplated by this Agreement. Contractor
shall start performing Services under this Agreement only after notification by the
City.
Method of Performing Services
4.07. Contractor will determine and is responsible for the method, details, and means
of performing the above -described Services.
Status of Contractor
4.08. Contractor enters into this Agreement, and will remain throughout the term of this
Agreement, as an independent contractor. Contractor agrees that it is not and
will not become an employee, partner, agent, or principal of City while this
Agreement is in effect. Contractor agrees it is not entitled to the rights or benefits
afforded to City's employees, including disability or unemployment insurance,
workers' compensation, medical insurance, sick leave, or any other employment
benefit. Contractor is responsible for providing, at its own expense, disability,
unemployment, and other insurance, worker's compensation, training, permits,
and licenses for itself and for its employees and subcontractors. Contractor shall
have complete and sole control over its employees, the details of the Services
and methods by which the Services are accomplished, it being understood that
City is interested only in the results to be obtained by Contractor.
4.09. Contractor has no authority to enter contracts or agreements on behalf of City.
This Agreement does not create a partnership or joint venture between the
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parties.
Payment of Taxes
4.10. Contractor is responsible for paying when due all income taxes, including
estimated taxes, incurred as a result of the compensation paid by City to the
Contractor for Services under this Agreement. Contractor agrees to indemnify
City for any claims, costs, losses, fees, penalties, interest, or damages suffered
by City resulting from Contractor's failure to comply with this provision.
4.11. Payroll taxes including federal, state and local taxes shall not be withheld or paid
by City on behalf of Contractor or for the employees of the Contractor.
Contractor shall not be treated as an employee with respect to the Services
performed hereunder for federal or state tax purposes. Contractor shall be
responsible to pay taxes mandated by law.
4.12. Since Contractor is not an employee of City, Contractor is not eligible for and
shall not participate in any employee benefit of City, including pension, health or
other fringe benefits.
SECTION 5. COMPENSATION
5.01. In consideration for the Equipment and Services to be performed by Contractor,
described in this Agreement, City agrees to pay Contractor a sum not to exceed
Two Hundred Two Thousand Three Hundred Forty Dollars and Twenty -Five
Cents ($202,340.25), which includes applicable sales tax, parts, labor, delivery,
installation, and testing (the "Contract Price"). The actual amount will be based
on the amount required to furnish the Equipment and perform the services, billed
in accordance with Contractor's Proposal attached as Exhibit A.
Entire Compensation
5.02. The Contract Price is full and complete compensation, and constitutes the entire
compensation due Contractor for the Equipment and Services and any and all of
Contractor's obligations hereunder, regardless of difficulty, unforeseen
circumstances, hours worked or equipment, materials or personnel required.
The Contract Price includes without limitation compensation for applicable taxes,
customs duties, fees, overhead, profit, travel time to and from the Premises and
all other direct and indirect costs incurred or to be incurred by Contractor
hereunder. The Contract Price set forth above is not subject to escalation for any
reason except as expressly set forth in this Agreement. No adjustments in
compensation shall be made as a result of changes in the value of any currency.
The Contract Price shall only be adjusted by formal, written Change Order or
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amendment to this Agreement.
Payment of Compensation
5.03. For Equipment and Services rendered under this Agreement, City agrees to pay
Contractor the sum set forth in Paragraph 5.01 of this Agreement in increments
upon completion of the retrofit of each vehicle. Contractor shall submit to City a
monthly invoice and statement of Services, prepared in accordance with City
requirements, by the fifteenth (15t') of each month, for the prior calendar month's
completed Work. City shall make payment to Contractor within thirty (30) days of
acceptance and approval of an invoice prepared in accordance with City
requirements.
5.04. Contractor shall be responsible for paying any subcontractors used in the
performance of this Agreement. Subcontractors shall not bill the City directly.
Expenses
5.05. City shall not be liable to Contractor for any expenses paid or incurred by
Contractor. Expenses may only be billed if advance written approval has been
obtained from the City.
Compensation for Changes
5.06. The compensation due Contractor, or the credit due City, for changes may not be
established verbally, and shall be established in a written change order signed by
City as described in Sections 4.03 and 4.04 of this Agreement. Compensation
adjustments in each such change order shall be established by one or more of
the following bases, as determined by City: (a) a lump sum price to be negotiated
between the parties; or (b) Work unit rates to be negotiated between the parties.
Once established, the amount of the compensation due Contractor or credit due
City for a change shall not be subject to adjustment for any reason, including
changes in the value of any currency.
SECTION 6. OBLIGATIONS OF THE PARTIES
6.01. Contractor is responsible for meeting all conditions of this Agreement and City
Standards & Details for all Work performed. Substandard Work, as determined
solely by the City, shall be redone at the expense of the Contractor.
Products of Consulting
6.02. All products of consulting services including, but not limited to, manuals,
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documents and/or computer software, shall become the property of the City and
shall be delivered to the City before the end of the performance of this
Agreement. Basic notes and sketches, charts, computations and other data shall
be made available to City without restriction or limitation on their use.
Liability Insurance
6.03. Contractor and its subcontractor(s), if any, shall, prior to commencement of any
Work and for the duration of this Agreement, obtain and maintain at its own
expense, those minimum levels of insurance coverage as set forth below. Prior
to commencing Work hereunder, Contractor shall provide the City with proof of
insurance providing and maintaining the coverages and endorsements set forth
below. Said proof of insurance shall also provide that said policy or policies shall
not be canceled or materially reduced in coverage without giving at least thirty
(30) days prior written notice to the City.
6.04. The insurance coverage as listed herein, shall be properly endorsed to include
those contractual obligations which may be identified further within this
Agreement and shall be endorsed to provide City all the rights and privileges of
an additional insured.
6.05. Contractor shall cause its insurers to issue, including but not limited to,
Certificates of Insurance or, upon request, certified copies of the insurance
policies evidencing that the coverages and policy endorsements required under
this Agreement, are maintained in force.
6.06 Contractor shall ensure its subcontractor(s), if any, maintain those insurance
requirements as specified in this Agreement and are endorsed as additional
insured(s) on all required Contractor insurance coverages. Contractor and its
subcontractor(s), if any, shall maintain in effect the following minimum insurance
coverages on an Occurrence Form Policy:
A. Workers Compensation within the statutory limits, including occupational
illness or disease coverage in accordance with the laws of the nation,
state, territory, or province exercising jurisdiction over Contractor's
employees. Workers Compensation and Employers Liability Insurance
shall have a minimum limit of $1,000,000 per occurrence. Contractor
further agrees to hold harmless and indemnify City for any and all claims
arising out of an injury, disability, or death of any of Contractor's
employees or agents.
B. Comprehensive General Liability Insurance, including, but not limited to,
Contractual Liability, Products and Completed Operations Liability, Broad
Form Property Damage and Bodily Injury Liability, and Explosion,
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Collapse and Underground Liability, with a minimum combined single limit
of $2,000,000 per occurrence.
C. Comprehensive Automobile Insurance, including, but not limited to, all
owned, non -owned or hired vehicles with a minimum combined single limit
of $1,000,000 per occurrence for bodily injury and property damage.
D. Umbrella or Excess Liability Insurance with limits of $2,000,000. Such
evidence of insurance can either be through the primary insurance
coverages or through an excess liability policy. Such insurance shall at all
times be on an occurrence form and provide policy conditions as broad as
those required in the primary insurance.
6.07. Contractor agrees to provide insurance in the amounts and forms specified
above. Contractor 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 Agreement. Contractor shall not commence
performance of its Work under this Agreement until the above insurance has
been obtained and proof of insurance has been filed with and approved by the
City.
6.08. Contractor 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. If Contractor
employs subcontractors as part of the Services rendered, Contractor's protective
coverage is required. Contractor may include all subcontractors as insureds
under its own policy or shall furnish separate insurance for each subcontractor,
meeting the requirements set forth above.
Representations
6.09. To the fullest extent permitted by law, Contractor 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 attorney's fees and all costs of
defense, arising out of or attributable to the negligent or wrongful acts of
Contractor or its employees or agents under this Agreement, 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 Agreement. The obligations in this Paragraph are in addition
to Contractor's duty to provide insurance and shall not be limited by any limitation
on the amount or type of insurance coverage carried by Contractor.
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6.10. Contractor and City represent that each has read and understands the
Agreement and Contract Documents. The Contractor represents it understands
the City's regulations concerning Premises access, badges, parking, security,
safety, fire, prohibited drugs and alcohol, and smoking and other rules, and that
Contractor has visited Premises where the Work is to be done and is familiar with
the local conditions under which it is to be done. Contractor also represents that
it is experienced in performing and competent and qualified to perform the kind of
tasks or assignments included in the Work and employs or has available for
employment in sufficient numbers all unskilled, skilled, administrative,
supervisory, professional and managerial or other personnel required to perform
the Work as required by this Agreement.
6.11. Contractor represents that it has the qualifications and skills necessary to
perform the Services under this Agreement in a competent, professional manner,
without the advice or direction of City. This means Contractor is able to fulfill the
requirements of this Agreement. Failure to perform all the Services required
under this Agreement constitutes a material breach of the Agreement.
Contractor has complete and sole discretion for the manner in which the Work
under this Agreement will be performed.
6.12. Contractor declares and states that it has complied with and will continue to
comply with all federal, state, local air pollution control laws and regulations
applicable to the Contractor pursuant to Section 2022.1 of Title 13 of California
Code of Regulations and local laws regarding business permits and licenses that
may be required to carry out the Services to be performed under this Agreement.
6.13. Contractor agrees to indemnify, defend, and hold City free and harmless from all
claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries and deficiencies, including interest, penalties, attorney's fees and
costs, that City may incur as a result of a breach by Contractor of any
representation or provision contained in this Agreement or any negligent or
intentional acts or omissions by Contractor, it subcontractors, agents, and
employees or based on any claim that any software program or other product
used or furnished by Contractor in the performance of this Agreement constitutes
an infringement of any United States patent or copyright.
6.14. Contractor's rights under this Agreement may not be assigned nor may its duties
be delegated or subcontracted without the prior written consent of City. Any
assignment or delegation or subcontract in violation of this Section shall, at City's
sole discretion, be void. Consent by City shall not relieve Contractor of
responsibility for performance of Contractor's obligations hereunder. City may
assign all or any part of this Agreement at any time effective immediately upon
written notification to Contractor.
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6.15. At all times while Work is being performed on the Premises each party shall be
represented thereon by a designated representative. Each party may notify the
other in writing of the identity of such persons from time to time.
Work Injury
6.16. The treatment and care of injuries sustained by Contractor's employees,
subcontractors, representatives or other personnel shall be and remain the
responsibility of Contractor. City's first aid facilities, if any, however, will be made
available to Contractor's employees in emergency cases which are the direct
result of accidents occurring on the Premises. City shall incur no liability for, and
Contractor hereby agrees to indemnify City against, any causes of action, claim,
liability or costs, including attorney's fees, arising in whole or part out of the
furnishing of such first aid facilities or assistance to Contractor's employees,
subcontractors, representatives or other personnel, or out of the failure to furnish
such facilities or assistance.
Records, Inspection and Audit
6.17. During the course of Work being performed, Contractor and any of its
subcontractors, shall maintain and retain, not less than three (3) years after
completion thereof, complete and accurate records of the Contractor's costs
which are chargeable to the City under this Agreement. City or its designated,
authorized representatives, shall have the right during this three (3) year period,
upon written reasonable notice, to inspect and audit those records. Such records
to be maintained and retained by the Contractor shall include: (a) payroll record
accounting for the total time distribution of the Contractor's employees working
full or part time on the Work (to permit tracing to payroll payments in cash); (b)
invoices for purchases, receiving and issuing documents, and all the other unit -
inventory records for the Contractor's stores, stock or capital items; (c) paid
invoices and canceled checks for material purchased and for the subcontractor's
and any other third parties' charges; and (d) any other documentation City deems
necessary to support costs and charges under this Agreement.
Corporate Conduct
6.18. Contractor, its employees, agents or representatives shall not offer or give to an
officer, official or employee of City gifts, entertainment, payments, loans or other
gratuities to influence the award of a contract or obtain favorable treatment under
this Agreement or any other contract.
Standard of Care
6.19. Contractor agrees that all Services provided will be conducted by the principal
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and competent staff members, if any, under the supervision of the principal, and
that Services will be performed and rendered diligently. Contractor represents
that it has, or shall secure, at its own expense, all personnel required to perform
Contractor's Services under this Agreement, but at all times shall be responsible
for the Services of such personnel. Contractor may not employ any
subcontractor without the prior written approval of the City.
Indemnity Process
6.20. The City shall notify Contractor in writing of any suits, claims or demands
covered by any indemnity contained in this Agreement. Promptly after receipt of
such notice, Contractor shall assume the defense of such claim with counsel
reasonably satisfactory to City. If Contractor 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 Contractor
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 Contractor. 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 Contractor's obligations to
indemnify or defend. Contractor 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.
Treatment of Confidential and Proprietary Information
6.21. For ten (10) years after the effective date of this Agreement, Contractor shall
refrain from using any Confidential or Proprietary Information except in
connection with the Work or from disclosing it to any third party other than to
employees of Contractor who require it in performance of the Work and except to
such other third persons as City may authorize in writing. If disclosure to such an
employee or to other third persons is so authorized, Contractor shall enter into
with said party a confidentiality agreement containing provisions with respect to
use and disclosure of Proprietary Information substantially the same as those
contained in this Agreement.
6.22. Contractor shall take reasonable precautions to safeguard any documents
containing Proprietary Information which City may supply to Contractor
hereunder. Contractor may copy, in whole or part, such documents to the extent
necessary for the performance of the Work, and Contractor shall return to City
Page 12 of 21
upon the completion of the Work or request by City all such documents and
copies.
6.23. Except as expressly permitted by prior written consent of the City, Contractor
and/or its subcontractors shall not disclose, permit the disclosure of, release,
disseminate, or transfer, whether orally or by any other means, any part of such
Confidential Information to any other person or entity. Contractor and/or its
subcontractors 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 Contractor has performed all Work to be performed
pursuant to this Agreement. Contractor hereby agrees that such Confidential
Information and any documents provided may be used by Contractor and/or its
subcontractors only as authorized by the City. Contractor shall include a
provision in its agreements with subcontractors that binds the subcontractors to
this non -disclosure requirement.
6.24. All reports, plans, data, studies, maps, drawings, models, photographs,
documents and other writings prepared by and for Contractor, its officers,
employees, agents and subcontractors in the course of implementing this
Agreement, with the exception of working notes, internal documents and
Confidential Information provided by businesses located in City, shall be
considered the property of City. Contractor shall deliver such documents and
materials to the City as they are generated; however, Contractor may take and
retain copies of said documents and materials that are not Confidential
Information, as desired.
6.25. All reports, information, data and exhibits prepared or assembled by Contractor
in connection with the performance of its Services pursuant to this Agreement
are confidential until released by the City to the public and Contractor agrees that
such documents shall not be available to any individual or organization without
the written consent of the City prior to such release.
6.26. No reports, maps, or other documents produced in whole or in part under this
Agreement shall be the subject of an application for copyright by or on behalf of
Contractor.
Compliance with Authority
6.27. Contractor shall comply with all laws, regulations, executive orders and other
applicable requirements of any governmental agencies having jurisdiction
including the Fair labor Standards Act, the Occupational Safety and Health Act
and all those relating in any way to employment practices and protection of the
environment. Contractor shall not discriminate against any employee or any
applicant for employment for reasons of race, color, creed, religion, sex, sexual
Page 13 of 21
preference, age or national origin.
6.28. Contractor shall make timely payment of all employment taxes and of all social
security and other contributions of every kind required to be made with respect to
or measured by the wages and salaries of persons employed by Contractor.
6.29. Contractor shall indemnify City against, and hold City harmless from, any liability
or loss including liability or loss from fines or penalties arising out of Contractor's
failure to perform the obligations imposed upon it by Sections 6.27 and 6.28 of
the Agreement.
Progress Reports
6.30. Contractor shall meet with City staff, upon City's request, or as needed, in order
to provide reports or information concerning the Services being performed by
Contractor under this Agreement.
Contractor's License Classification
6.31. Contractor shall possess all appropriate licenses for the duration of this
Agreement.
Warranties
6.32. Contractor shall assign to the City at the time the Equipment is delivered all
manufacturers' warranties and Contractor 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
Agreement.
6.33. Contractor warrants that title to Equipment will pass to the City either by
incorporation in the construction or upon the receipt of payment by Contractor,
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.
6.34. Contractor warrants that all Equipment will be new and free from defects in
materials and workmanship, comply with the specifications provided by the
manufacturers, be of good quality and merchantability, and fit for their intended
purposes, and conform to all applicable governmental regulations, statutes, and
ordinances. Any Equipment not conforming to these requirements, including
substitutions not properly approved and authorized, may be considered
defective. In the event that the test results obtained by either Contractor or the
City reveals that any portion of the Equipment does not meet the City's
Page 14 of 21
specifications or the City identifies any defects in or damage to the Equipment,
Contractor 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 Contractor, and obtaining another vendor to provide
the Equipment. Contractor 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 Contractor.
6.35. Contractor shall obtain for the benefit of the City, and assign to the City,
commercially reasonable manufacturers' warranties, specifically, Contractor
warrants the following: parts and labor is five (5) years or 150,000 miles for each
diesel particulate reduction device installed. All manufacturers' warranties, any
warranties typically provided by Contractor 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 Agreement or the City's acceptance of the Equipment being purchased
hereunder, whichever occurs first. Contractor shall assist the City in the
enforcement of all such warranties.
6.36. Contractor, 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
Agreement if reported to Contractor within the Warranty Period. The Warranty
Period shall commence from the date Equipment is 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. Contractor's obligations hereunder shall include the
obligation to repair any damage to other property caused by the defective
Equipment or the repair thereof. Contractor 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 Agreement, or (b) the correction of any
such Equipment.
The foregoing representations, warranties, covenants, and agreements shall
survive any termination of this Agreement and final completion of the delivery of
Page 15 of 21
the Equipment and are in addition to, and not in lieu of, any and all other liability
imposed upon Contractor by law with respect to Contractor's duties, obligations
and performance hereunder.
SECTION 7. TERMINATION OF AGREEMENT
7.01. Unless otherwise terminated as provided in this Section, this Agreement will
continue in effect until such time as the City receives a final comprehensive
report summarizing the Services, analysis of tests and results, unless otherwise
extended according to the terms and conditions set forth in this Agreement.
Non -Default Termination
7.02. City, at its sole discretion, may terminate this Agreement upon thirty (30) days
written notice to Contractor and such termination shall be effective in the manner
specified in such notice and shall be without prejudice to any claim that either
party may have against the other. During the thirty (30) day period after such
notice is sent, the parties shall continue to act toward each other in good faith.
7.03. In the event of any such termination, in full and complete settlement for the
termination of the Work, City shall pay Contractor for those Services performed
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
Contractor directly attributable to termination which could not reasonably have
been avoided and for which Contractor is not otherwise compensated that are
incurred through the date of termination and effectuating the termination
("Termination Expenses"). Termination Expenses shall not include lost profits,
lost opportunities, consequential damages, or the like. In no event shall total
payment exceed the Contract Price.
Termination on Occurrence of Stated Events
7.04. This Agreement will terminate automatically on the occurrence of any of the
following events:
A. Bankruptcy or insolvency of either party; or
B. Sale of the Contractor; or
C. Assignment of this Agreement by Contractor without City's written
consent.
Page 16 of 21
Termination for Default
7.05. If Contractor defaults in the performance of this Agreement or materially
breaches any of its provisions, City may immediately terminate this Agreement
by giving written notification to Contractor indicating the effective date of such
termination. Termination will take effect immediately upon the date specified in
the notification. For the purposes of this paragraph, material breach of this
Agreement includes, but is not limited to, the following:
A. Contractor's failure to perform, in a manner satisfactory to the City
in its sole discretion, the Services specified in Section 3 of this
Agreement; or
B. Contractor's material breach of any obligation or provision
contained in Section 5 of this Agreement.
7.06. The waiver by either party of a breach or default by the other party shall not be
deemed a waiver of any different or later breach; nor shall any delay or omission
by either party to exercise any right it may have hereunder operate as a waiver of
any breach or default of such a right. The failure of either party to this
Agreement to exercise any of its rights under this Agreement does not constitute
a breach thereof and shall not be deemed to be a waiver of such rights or a
waiver of any subsequent breach.
7.07. In the event of any termination of this Agreement or reduction in the scope of the
Work, Contractor shall not be entitled to damages for loss of profits for the
unexecuted portion of the Work or any other damages because of such
termination or reduction.
SECTION 8. GENERAL PROVISIONS
Notices
8.01. All notices, approvals, consents and other communications between the parties
shall be in writing, and shall be sent by fax or by certified mail (return receipt
requested) to the respective addresses set forth below, or at such other address
as may be furnished by either party to the other in writing. Faxed notices,
confirmed by copy thereof, shall be deemed communicated as of the day the
facsimile was sent. Mailed notices will be deemed communicated as of the day
of receipt or the third (3rd) day after mailing, whichever occurs first.
Page 17 of 21
Contractor — AFS, Inc.
City - City of Vernon
Attn: Craig Phillips, President
Attn: City Administrator
2535 Anselmo Drive
4305 Santa Fe Avenue
Corona, CA 92879-8092
Vernon, CA 90058
Fax: 951-520-2978 Fax: 323-826-1438
Telephone: 951-520-2921 Telephone: 323-583-8811 ext 260
Entire Agreement of the Parties
8.02. This Agreement supercedes any and all agreements, either oral or written,
between the parties with respect to the rendering of Services by Contractor for
City and contains all of the representations, covenants, and agreements between
the parties with respect to the subject matter of this Agreement and the rendering
of those Services. Each party to this Agreement acknowledges that no
representations, inducements, promises, or agreements, orally or otherwise,
have been made by any party, or anyone acting on behalf of any party, which are
not contained in this Agreement, and that no other agreement, statement, or
promise not contained in this Agreement or a subsequent amendment or change
order shall be valid or binding. No amendment or change in the provisions of this
Agreement shall be made, except in a formal written amendment signed by
Contractor and an authorized representative of the City, or in a written change
order. Contractor expressly waives all claims for compensation based upon
quantum merit, implied contract or oral contract. Each party represents and
warrants that it has read and fully familiarized itself with this Agreement, and that
such party has been fully authorized to sign this Agreement.
8.03. This Agreement shall be comprised of these included provisions, together with
Exhibits A and B, which are all attached. In the event of conflict between this
Agreement and any of the exhibits, including the Proposal, this Agreement shall
prevail.
Partial Invalidity
8.04. If any provision of this Agreement is held by a court of competent jurisdiction to
be invalid, void, or unenforceable, the remaining provisions will continue in full
force and effect without being impaired or invalidated in any way.
Law and Arbitration
8.05. All disputes arising out of or related to this Agreement, the conduct of either party
in connection with this Agreement, and the relationship and rights of the parties
in connection with this Agreement, whether characterized as breach of contract,
tort, or otherwise (except for those requesting injunctive relief) shall be
Page 18 of 21
determined by binding arbitration in accordance with the terms of this Section.
The submittal of all matters to arbitration in accordance with the terms of this
Section is the sole and exclusive method, means and procedure to resolve any
and all claims, disputes or disagreements arising under this Agreement, except
for claims by either party which seek injunctive relief, which claims shall be
resolved by suit filed in the Superior Court of Los Angeles County, California, the
decision of which court shall be subject to appeal pursuant to applicable law.
The parties hereby irrevocably waive any and all rights to the contrary and shall
at all times conduct themselves in accordance with the terms of this Section,
relying on arbitration as the sole means of resolution of disputes. Arbitration of
all matters required to be arbitrated hereunder shall take place before a panel of
three retired judges of the Superior Court of the State of California (the
"Arbitrators") under the auspices of Judicial Arbitration & Mediation Services, Inc.
("JAMS"). Such arbitration shall be initiated by the parties, or either of them,
within ten (10) calendar days after either party sends notice of a demand to
arbitrate (the "Arbitration Notice") to the other party and to JAMS. The Arbitration
Notice shall contain a description of the subject matter of the arbitration, the
dispute with respect thereto, the amount involved, if any, and the remedy or
determination sought. Each party shall select a retired judge from the JAMS
panel, and the two selected judges shall mutually agree on the third retired judge
from the JAMS panel. If one of the parties does not select a retired judge from
the JAMS panel within fourteen (14) calendar days after receipt of the Arbitration
Notice, JAMS will select the second judge, and the judge selected by JAMS and
the judge selected by the other party will select the third judge for the panel. The
third judge is to be selected within ten (10) calendar days following the selection
of the first two judges. The three judges will together serve as the Arbitrators.
The arbitration shall be conducted in Los Angeles, California. Any party may be
represented by counsel and/or other authorized representative. In rendering a
decision(s), the Arbitrators shall determine the rights and obligations of the
parties according to the substantive and procedural laws of the State of California
and the terms of this Agreement. The decision of the Arbitrators shall be based
on the evidence introduced at the hearing and accompanied by a written
statement of decision as to each of the principal controverted issues. The
agreement of two of the three Arbitrators as to the resolution of the dispute shall
be a conclusive resolution. The Arbitrators shall deliver the written decision to
the parties within thirty (30) calendar days following the date of the selection of
the last of the Arbitrators. The decision shall be conclusive and binding, and it
may thereafter be confirmed as a judgment by the Superior Court of the State of
California, subject only to challenge on the grounds set forth in the
California Code of Civil Procedure Section 1286.2. The validity and
enforceability of the decision of the Arbitrators is to be determined exclusively by
the California courts.
Page 19 of 21
Attorney's Fees
8.06. In the event a dispute, claim or litigation arises regarding this Agreement, the
prevailing party shall be entitled to reimbursement for reasonable attorneys' fees
and actual costs, which may be set by the arbitrators or the court in the same
action or in a separate action brought for that purpose, in addition to any other
relief which is obtained.
8.07. Neither party shall be considered in default in any of its obligations under this
Agreement 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,
lightning, 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 Agreement 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.
8.08. Except as may otherwise be specifically provided herein, this Agreement may be
modified or amended only by a written document executed by both Contractor
and the City and approved as to form by the City Attorney.
8.09. The captions used in this Agreement are for convenience only and shall in no
way define, limit or describe the scope or intent of the Agreement or any part
thereof.
Page 20 of 21
8.10. City reserves the right to award similar contracts to multiple contractors to ensure
the City has adequate services.
IN WITNESS WHEREOF, the parties have executed the Agreement on the dates
shown below.
City:
City of Vernon
Name:
Title:
Date:
ATTEST:
Manuela Giron, City Clerk
APPROVED AS TO FORM:
Jeff A. Harrison, City Attorney
Contractor:
AFS, Inc.
Name: Craig Phillips
Title: President
Date:
Name: Peggy Miller
Title: Corporate Secretary
Date:
Page 21 of 21
EXHIBIT A
{I.-- Quote# 61709
PARTS & SERVICE - S
Estimated Pricing intonnatirn
Customer City of Vemon
Name
Richard Ste ovich
Address
4305 Sente Fe Avenue
City
Vernon State Ca ZFF 90058
Phone
Fax 323 826-1432
cloche Horizon M Electrical Regenerated DPF
Installation of above
Mbc. installation parts, brackets, tubing, hardware
Cloaks Horizon M Electrical Regenerated DPF
Installation of above
Misc. Installation parts, brackets, tubing, hardware
Clealre Horizon M Electrical Regenerated DPF
Installation of above
Misc. Installation parts, brackets, tubing, hardware
Clealre Horizon M Electrical Regenerated DPF
Installation of above
Misc. Installation parts, brackets, tubing, hardware
Cloalre Horizon M Electrical Regenerated DPF
Installation of above
Misc. Installation parts, brackets, tubing, hardware
Clealre Horizon M Electrical Regenerated DPF
Installation of above
Misc. Installation parts, brackets, tubing, hardware
Clooke Horizon M Electrical Regenerated DPF
Installation of above
Misc. installation parts, brackets, tubing, hardware
Clsaire Horizon M Electrical Regenerated DPF
Installation of above
Misc. installation parts, brackets, tubing, hardware
Cloake Horizon M Electrical Regenerated DPF
Installation of above
Misc. installation parts, brackets, tubing, hardware
Closire Horizon M Electrical Regenerated DPF
Installation of above
Misc. installation parts, brackets, tubing, hardware
Clealre Horizon M Electrical Regenerated DPF
Installation of above
Misc. Installation parts, brackets, tubing, hardware
Cloaks Horizon M Electrical Regenerated DPF
Installation of above
Misc. Installation parts, brackets, tubing, hardware
Clsalre Horizon M Electrical Regenerated DPF
Installation of above
Misc. installation parts, brackets, tubing, hardware
Cloaks, Horizon M Electrical Regenerated DPF
Installation of above
Miser Installation parts, brackets, tubing, hardware
(11) Group 1 and 2, (1) Group 3
20% of Group 1 and 2 to be completed by December 2007
BILL FOR 1 AC RECEPTACLE WITH SHUNT - SEE JAYNE
The Horizon's eisehica demand Is 2000 seep. VaHsgs requlremerit: 205+1.5 volts
(order bad) afnglep oss AC a 90 Hz. Circuit Waster: 20 amp per plug. Each Horizon
connected atnugensousy requires its own ehdrkei ouNat. The cannecbr plug Is
supplied. The cord to the outlet Is orators es rosporWNWy. AN other electrical is part
or fro Hortron system and contained on Vie vehicle. This quote does not inside any
elsotrkN WVft at customer allo.
Lead time on Clealre MuNlare Is approximately 6-5 weeks ARO.
Pricing information is based on current "Best Available
Pa mint Other Tax Rates)
Comments Net 30 on approved credit
Name
CC #
Expires
Miss
Date 4/2312007
Order No.
Rep Mike
FOB
$ 1,950.00
$
1,950.00
$ 600.00
$
600.00
$10,950.00
$
10,950.00
$ 1,950.00
$
1,950.00
$ 600.00
$
600.00
$10,950.00
$
10,950.00
$ 1,930.00
$
11950.00
$ 600.00
$
600.00
$10.950.00
$
10.950.00
$ 1,950.00
$
1,950.00
$ 600.00
$
600.00
$10,950.00
$
10,950.00
$ 1,950.00
$
1,950.00
$ 600.00
$
600.00
$10,950.00
$
10.950.00
$ 1,950.00
$
1,950.00
$ 600.00
$
600.00
$10,950.00
$
10,950.00
$ 1,050.00
S
1,950.00
$ 600.00
$
600.00
$10,950.00
$
10,950.00
$ 1,950.00
S
1,950.00
$ 600.00
$
600.00
$10,950.00
$
10,950.00
$ 1,950.00
$
1,950.00
$ 600.00
$
600.00
$10,950.00
$
10,950.00
$ 1,950.00
$
1,950.00
$ 600.00
$
600.00
$10,95O.D0
9
10,950.00
$ 1,950.00
$
1,950.00
$ 600.00
$
600.00
$10,950.00
$
10,950.00
S 1,950.00
$
1,950.00
$ 600.00
$
600.00
$10.950.00
$
10,950.00
$ 1,950.00
$
11950.00
$ 600.00
$
600.00
$10,950.00
$
10,950.00
$ 1,950.00
$
1,950.00
$ 600.00
$
600.00
Lead time to be tlelemdned alter receipt of purchase order. Pricing is hosed on current BACT.
Thank you foryou time and consideration, we look forward to fete opportunity to be of
continued service.
EXHIBIT B
EXHIBIT B
Form Change Order
CHANGE
Contract Number:
Change Number:
The requirements of the above -designated Agreement are changed as follows:
City and Contractor agree that Contractor's compensation shall be adjusted as follows:
City and Contractor agree that Contractor's schedule shall be adjusted as follows:
This adjustment covers the entire compensation for the Change set forth above and includes, but
is not limited to compensation for all engineering, material, equipment, subcontracts, labor,
overhead, profit, changes in scheduling and delays resulting, directly or indirectly, from the
Change, as further detailed in the Agreement.
Contractor:
AFS, Inc.
By
Date
City:
City of Vernon
By
Date
B-1
INSTRUCTIONS TO CONTRACTOR
Contract Number:
Instruction to Contractor:
Date:
Specific Instructions to Contractor:
In accordance with the Terms and Conditions of the Agreement, the City classifies these
instructions as:
Supplementary instructions, not involving a Change
(Should these instructions be, in the opinion of Contractor, a "Change", written notice thereof
must be given to City within 10 days of the receipt of these instructions. If such written notice is
given, Contractor shall not commence with the work so ordered until written agreement is
reached on the classification of these instructions and on the resulting adjustment in contract
compensation, if any.) In the event that City and Contractor fail to agree on the classification of
these instructions or resulting adjustment in contract compensation, if any, refer to the Changes
Section of the Agreement.
A Change
(Contractor shall, within 10 days of the receipt of these instructions, furnish City a statement of
its proposal for adjustment in contract compensation occasioned hereby. Contractor shall not
commence with the work so ordered until written agreement is reached on the resulting
adjustment in contract compensation, if any.) In the event that City and Contractor fail to agree
on the classification of these instructions or resulting adjustments in contract compensation, if
any, refer to the Changes Sections of the Agreement.
City Representative
Please acknowledge receipt of this instruction by returning one copy signed in the space
provided below. Contractor's signature hereon does not indicate his acceptance of the
classification assigned hereto by City.
Contractor's Representative
Date
Date
SUPPORTING
DOCUMENTS
of
,?
r ��q4*AF F
p+��'ELT.lt�4�te.
4305 Santa Fe Avenue, Vernon, California 90058
Telephone (323) 583-8811
October 17, 2007
AFS, Inc. aka Ironman Parts & Service
Attn: Sandra Fetters, Project Coordinator
2535 Anselmo Drive
Corona, CA 92879
Re: Equipment Purchase and Services Agreement
Dear Ms. Fetters:
The insurance requirements have been met. Transmitted herewith is a
fully executed agreement, as referenced above, approved by City
Council on October 2, 2007, through Resolution No. 9415.
If you have any questions regarding this matter, please call Mr. Kevin
Wilson at 323/583-8811 ext. 245.
Very truly yours,
k,
N
el y �Gon'"-'r
City Clerk
NG:dr
c: S. Kevin Wilson
Dolores Jaunzemis
Resolution No. 9415
Agreement File No. 07-109
E ,cfusively Industria(
EQUIPMENT PURCHASE AND SERVICES AGREEMENT
This AGREEMENT ("Agreement") 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 1st day of October, 2007, in the City of Vernon,
County of Los Angeles, California
BY AND BETWEEN CITY OF VERNON, a municipal
corporation, hereinafter referred to as
the "City"
4305 Santa Fe Avenue
Vernon, California 90058
AND AFS, INC., hereinafter referred as
"Contractor,"
2535 Anselmo Drive
Corona, CA 92879
RECITALS
WHEREAS, the City desires to purchase and install Cleaire Horizon M
Electric Regeneration DPF units together with parts, brackets, tubing and hardware
(hereinafter collectively referred to as the "Equipment") to retrofit fourteen (14) diesel
vehicles in the City's fleet in order to reduce diesel emissions to permissible levels in
compliance with the Diesel Particulate Control Measure for on -road heavy-duty diesel -
fueled vehicles owned or operated by public agencies and utilities to meet the Best
Available Control Technology requirement of Title 13, California Code of Regulations,
Sections 2022 and 2022.1; and
WHEREAS, Section 2022.1 of Title 13 of California Code of Regulations
requires that a percentage of public fleet diesel engine vehicles comply with the following
deadlines for installation of the Equipment: twenty percent (20%) of fleet by December 31,
2007, sixty percent (60%) of fleet by December 31, 2009 and one hundred percent (100%)
of fleet by December 31, 2011; and
WHEREAS, noncompliance with the reporting and retrofitting requirements
may subject the City to civil penalties of $100.00 per day per infraction for every day past
the required record keeping dates as well as $1,000.00 or more per day per engine; and
WHEREAS, Contractor submitted a proposal dated April 23, 2007 for the
purchase of the Equipment and installation services (hereinafter collectively referred to
as the "Proposal"), a copy of which is attached hereto as Exhibit A and incorporated by
reference; and
Page 1 of 21
WHEREAS, the Proposal includes a description of the Equipment and
services to be performed by Contractor and the attendant costs; and
WHEREAS, the Contractor is the only vendor that can provide the
necessary equipment and services meeting the specifications and requirements of the
Department of Community Services & Water; and
WHEREAS, Contractor has advised the City that it is qualified and
capable of providing the Equipment and services described in Exhibit A, 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 Contractor to
provide for the purchase and delivery of Equipment, material and the labor to install the
Equipment on a contractual basis as defined in the terms and conditions set forth below.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
SECTION 1. PURCHASE OF EQUIPMENT
1.01. Contractor agrees to sell, deliver, install and test the Equipment, including all
material, and the City agrees to purchase the Equipment and services as identified in
Exhibit A. Contractor also agrees to perform a three (3) day diagnosis of the condition of
each vehicle on Job Site prior to the installation of the Equipment in order to determine the
condition of the exhaust system and to outfit each device with a CARB reporting tool.
1.02. Delivery. Contractor shall obtain and sell, deliver and test the Equipment at the
City of Vernon, F.O.B. Job Site. Contractor 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.
SECTION 2. TERM OF CONTRACT
2.01. This Agreement will become effective upon issuance of a Purchase Order, and
will continue in effect until such time as the City approves the scope of work
completed pursuant to the Proposal or until terminated as provided in this
Agreement.
SECTION 3. DEFINITION OF TERMS
3.01. Whenever used in the Agreement, the following terms shall mean:
A. "Agreement" shall mean that formally executed Agreement or Contract
which includes the Contract Documents attached. The Agreement
constitutes the entire agreement between the parties relating to its subject
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matter.
B. "City" shall mean the City of Vernon, California, the entity which has
executed the Agreement and, where applicable, its affiliated companies,
and its officers, directors, employees, representatives and agents.
C. "Contractor" shall mean AFS, Inc., doing business as Ironman Parts &
Service and/or Ironman Parts and where applicable, its affiliated
companies, and its officers, directors, employees, representatives and
agents.
D. "Contract Documents" shall include any inquiry, invitation to bid, or
proposal which may have, but not necessarily, preceded execution of the
Agreement, and including the General Provisions and all exhibits and
schedules attached to the Agreement and all plans and specifications
identified in the Contract Documents.
E. "Contract Price" shall mean the compensation set forth or provided for in
Section 5.01 of this Agreement. Whether it expressly provides for the
reimbursement of costs incurred by Contractor or simply for the payment
of a lump sum of money, it is intended to be the full and complete payment
for satisfactory completion of the Work and, unless otherwise stated, to
cover all costs whether for materials, equipment, tools, labor, services and
taxes and all overhead, rentals and profit or fee, if any.
F. "Equipment" shall mean the equipment identified in Exhibit A.
G. "General Provisions" or "General Conditions" shall mean the General
Provisions as set forth in this Agreement.
H. "Owner" shall mean City of Vernon, California, and where applicable, their
affiliated companies, directors, officers, employees, agents, and
representatives.
I. "Premises" shall mean the physical premises under City's control or
ownership where Work hereunder is to be performed.
J. "Proprietary Information" and "Confidential Information" shall mean all
information, whether written or oral, which Contractor acquires from,
through or on behalf of City, directly or indirectly, or which arises out of the
Work, concerning the Work or proprietary processes involved in the Work
including, without limitation, information concerning past, present or future
business plans of City, information about the operations of City's
Premises, and other City information or know-how obtained during the
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Work, except information falling into any of the following categories:
1. Information which, at the time of disclosure hereunder, is in the
public domain;
2. Information which, after disclosure hereunder, enters the public
domain, except where such entry is the result of Contractor's or any
entity within Contractor's control breach of this Agreement;
3. Information which, prior to disclosure hereunder, was already in
Contractor's possession without limitation regarding disclosure to
others; or
4. Information which, subsequent to disclosure hereunder, is obtained
by Contractor from a third party who is lawfully in possession of
such information and not subject to a contractual or fiduciary
relationship to City with respect to said information and who does
not require Contractor to agree to refrain from disclosing such
information to others.
K. "Subcontractor" shall mean any first or lower -tier subcontractor and its
employees, representatives, agents, subcontractors or other personnel
who have been approved in the manner required by this Agreement.
L. "Work" or "Services" shall mean the work performed by Contractor and
required to be performed from time to time by City under this Agreement.
SECTION 4. SERVICES TO BE PERFORMED BY
CONTRACTOR
Specific Services
4.01. Contractor's Services shall include, but will not be limited to, installing and testing
the Equipment. The Contractor's Services are more specifically detailed in the
Proposal attached hereto as Exhibit "A" and incorporated herein by this
reference.
4.02. Contractor shall be responsible for traffic control on the Work site when
necessary and shall take all precautions to ensure the safety of pedestrians,
vehicular traffic, and personnel.
Change of Services
4.03. City may at any time, by written change order executed by the City, make
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changes in the scope of Work, to extend the Work duration and/or total
compensation of Contractor's Work.
4.04. City may make "Changes" by increasing, reducing or deviating from the
requirements of the scope of Work. A form of Change Order is set forth in
Exhibit B attached hereto and incorporated by reference.
Timing of Services
4.05. Contractor's Services shall commence upon the execution of this Agreement by
both parties and award by the City Council and shall end when Contractor has
completed the work according to the Proposal, unless this Agreement is
otherwise terminated according to Section 7 of this Agreement or extended
according to the conditions and terms set forth in this Agreement. Delivery is
expected to be completed no later than nine (9) weeks from the issuance of
City's Purchase Order. Completion of the services to be performed by
Contractor is expected to be no later than sixty (60) days after delivery.
4.06. Time is of the essence for all Work contemplated by this Agreement. Contractor
shall start performing Services under this Agreement only after notification by the
City.
Method of Performing Services
4.07. Contractor will determine and is responsible for the method, details, and means
of performing the above -described Services.
Status of Contractor
4.08. Contractor enters into this Agreement, and will remain throughout the term of this
Agreement, as an independent contractor. Contractor agrees that it is not and
will not become an employee, partner, agent, or principal of City while this
Agreement is in effect. Contractor agrees it is not entitled to the rights or benefits
afforded to City's employees, including disability or unemployment insurance,
workers' compensation, medical insurance, sick leave, or any other employment
benefit. Contractor is responsible for providing, at its own expense, disability,
unemployment, and other insurance, worker's compensation, training, permits,
and licenses for itself and for its employees and subcontractors. Contractor shall
have complete and sole control over its employees, the details of the Services
and methods by which the Services are accomplished, it being understood that
City is interested only in the results to be obtained by Contractor.
4.09. Contractor has no authority to enter contracts or agreements on behalf of City.
This Agreement does not create a partnership or joint venture between the
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parties.
Payment of Taxes
4.10. Contractor is responsible for paying when due all income taxes, including
estimated taxes, incurred as a result of the compensation paid by City to the
Contractor for Services under this Agreement. Contractor agrees to indemnify
City for any claims, costs, losses, fees, penalties, interest, or damages suffered
by City resulting from Contractor's failure to comply with this provision.
4.11. Payroll taxes including federal, state and local taxes shall not be withheld or paid
by City on behalf of Contractor or for the employees of the Contractor.
Contractor shall not be treated as an employee with respect to the Services
performed hereunder for federal or state tax purposes. Contractor shall be
responsible to pay taxes mandated by law.
4.12. Since Contractor is not an employee of City, Contractor is not eligible for and
shall not participate in any employee benefit of City, including pension, health or
other fringe benefits.
SECTION 5. COMPENSATION
5.01. In consideration for the Equipment and Services to be performed by Contractor,
described in this Agreement, City agrees to pay Contractor a sum not to exceed
Two Hundred Two Thousand Three Hundred Forty Dollars and Twenty -Five
Cents ($202,340.25), which includes applicable sales tax, parts, labor, delivery,
installation, and testing (the "Contract Price"). The actual amount will be based
on the amount required to furnish the Equipment and perform the services, billed
in accordance with Contractor's Proposal attached as Exhibit A.
Entire Compensation
5.02. The Contract Price is full and complete compensation, and constitutes the entire
compensation due Contractor for the Equipment and Services and any and all of
Contractor's obligations hereunder, regardless of difficulty, unforeseen
circumstances, hours worked or equipment, materials or personnel required.
The Contract Price includes without limitation compensation for applicable taxes,
customs duties, fees, overhead, profit, travel time to and from the Premises and
all other direct and indirect costs incurred or to be incurred by Contractor
hereunder. The Contract Price set forth above is not subject to escalation for any
reason except as expressly set forth in this Agreement. No adjustments in
compensation shall be made as a result of changes in the value of any currency.
The Contract Price shall only be adjusted by formal, written Change Order or
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amendment to this Agreement.
Payment of Compensation
5.03. For Equipment and Services rendered under this Agreement, City agrees to pay
Contractor the sum set forth in Paragraph 5.01 of this Agreement in increments
upon completion of the retrofit of each vehicle. Contractor shall submit to City a
monthly invoice and statement of Services, prepared in accordance with City
requirements, by the fifteenth (15th) of each month, for the prior calendar month's
completed Work. City shall make payment to Contractor within thirty (30) days of
acceptance and approval of an invoice prepared in accordance with City
requirements.
5.04. Contractor shall be responsible for paying any subcontractors used in the
performance of this Agreement. Subcontractors shall not bill the City directly.
Expenses
5.05. City shall not be liable to Contractor for any expenses paid or incurred by
Contractor. Expenses may only be billed if advance written approval has been
obtained from the City.
Compensation for Changes
5.06. The compensation due Contractor, or the credit due City, for changes may not be
established verbally, and shall be established in a written change order signed by
City as described in Sections 4.03 and 4.04 of this Agreement. Compensation
adjustments in each such change order shall be established by one or more of
the following bases, as determined by City: (a) a lump sum price to be negotiated
between the parties; or (b) Work unit rates to be negotiated between the parties.
Once established, the amount of the compensation due Contractor or credit due
City for a change shall not be subject to adjustment for any reason, including
changes in the value of any currency.
SECTION 6. OBLIGATIONS OF THE PARTIES
6.01. Contractor is responsible for meeting all conditions of this Agreement and City
Standards & Details for all Work performed. Substandard Work, as determined
solely by the City, shall be redone at the expense of the Contractor.
Products of Consulting
6.02. All products of consulting services including, but not limited to, manuals,
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documents and/or computer software, shall become the property of the City and
shall be delivered to the City before the end of the performance of this
Agreement. Basic notes and sketches, charts, computations and other data shall
be made available to City without restriction or limitation on their use.
Liability Insurance
6.03. Contractor and its subcontractor(s), if any, shall, prior to commencement of any
Work and for the duration of this Agreement, obtain and maintain at its own
expense, those minimum levels of insurance coverage as set forth below. Prior
to commencing Work hereunder, Contractor shall provide the City with proof of
insurance providing and maintaining the coverages and endorsements set forth
below. Said proof of insurance shall also provide that said policy or policies shall
not be canceled or materially reduced in coverage without giving at least thirty
(30) days prior written notice to the City.
6.04. The insurance coverage as listed herein, shall be properly endorsed to include
those contractual obligations which may be identified further within this
Agreement and shall be endorsed to provide City all the rights and privileges of
an additional insured.
6.05. Contractor shall cause its insurers to issue, including but not limited to,
Certificates of Insurance or, upon request, certified copies of the insurance
policies evidencing that the coverages and policy endorsements required under
this Agreement, are maintained in force.
6.06 Contractor shall ensure its subcontractor(s), if any, maintain those insurance
requirements as specified in this Agreement and are endorsed as additional
insured(s) on all required Contractor insurance coverages. Contractor and its
subcontractor(s), if any, shall maintain in effect the following minimum insurance
coverages on an Occurrence Form Policy:
A. Workers Compensation within the statutory limits, including occupational
illness or disease coverage in accordance with the laws of the nation,
state, territory, or province exercising jurisdiction over Contractor's
employees. Workers Compensation and Employers Liability Insurance
shall have a minimum limit of $1,000,000 per occurrence. Contractor
further agrees to hold harmless and indemnify City for any and all claims
arising out of an injury, disability, or death of any of Contractor's
employees or agents.
B. Comprehensive General Liability Insurance, including, but not limited to,
Contractual Liability, Products and Completed Operations Liability, Broad
Form Property Damage and Bodily Injury Liability, and Explosion,
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Collapse and Underground Liability, with a minimum combined single limit
of $2,000,000 per occurrence.
C. Comprehensive Automobile Insurance, including, but not limited to, all
owned, non -owned or hired vehicles with a minimum combined single limit
of $1,000,000 per occurrence for bodily injury and property damage.
D. Umbrella or Excess Liability Insurance with limits of $2,000,000. Such
evidence of insurance can either be through the primary insurance
coverages or through an excess liability policy. Such insurance shall at all
times be on an occurrence form and provide policy conditions as broad as
those required in the primary insurance.
6.07. Contractor agrees to provide insurance in the amounts and forms specified
above. Contractor 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 Agreement. Contractor shall not commence
performance of its Work under this Agreement until the above insurance has
been obtained and proof of insurance has been filed with and approved by the
City.
6.08. Contractor 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. If Contractor
employs subcontractors as part of the Services rendered, Contractor's protective
coverage is required. Contractor may include all subcontractors as insureds
under its own policy or shall furnish separate insurance for each subcontractor,
meeting the requirements set forth above.
Representations
6.09. To the fullest extent permitted by law, Contractor 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 attorney's fees and all costs of
defense, arising out of or attributable to the negligent or wrongful acts of
Contractor or its employees or agents under this Agreement, 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 Agreement. The obligations in this Paragraph are in addition
to Contractor's duty to provide insurance and shall not be limited by any limitation
on the amount or type of insurance coverage carried by Contractor.
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6.10. Contractor and City represent that each has read and understands the
Agreement and Contract Documents. The Contractor represents it understands
the City's regulations concerning Premises access, badges, parking, security,
safety, fire, prohibited drugs and alcohol, and smoking and other rules, and that
Contractor has visited Premises where the Work is to be done and is familiar with
the local conditions under which it is to be done. Contractor also represents that
it is experienced in performing and competent and qualified to perform the kind of
tasks or assignments included in the Work and employs or has available for
employment in sufficient numbers all unskilled, skilled, administrative,
supervisory, professional and managerial or other personnel required to perform
the Work as required by this Agreement.
6.11. Contractor represents that it has the qualifications and skills necessary to
perform the Services under this Agreement in a competent, professional manner,
without the advice or direction of City. This means Contractor is able to fulfill the
requirements of this Agreement. Failure to perform all the Services required
under this Agreement constitutes a material breach of the Agreement.
Contractor has complete and sole discretion for the manner in which the Work
under this Agreement will be performed.
6.12. Contractor declares and states that it has complied with and will continue to
comply with all federal, state, local air pollution control laws and regulations
applicable to the Contractor pursuant to Section 2022.1 of Title 13 of California
Code of Regulations and local laws regarding business permits and licenses that
may be required to carry out the Services to be performed under this Agreement.
6.13. Contractor agrees to indemnify, defend, and hold City free and harmless from all
claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries and deficiencies, including interest, penalties, attorney's fees and
costs, that City may incur as a result of a breach by Contractor of any
representation or provision contained in this Agreement or any negligent or
intentional acts or omissions by Contractor, it subcontractors, agents, and
employees or based on any claim that any software program or other product
used or furnished by Contractor in the performance of this Agreement constitutes
an infringement of any United States patent or copyright.
6.14. Contractor's rights under this Agreement may not be assigned nor may its duties
be delegated or subcontracted without the prior written consent of City. Any
assignment or delegation or subcontract in violation of this Section shall, at City's
sole discretion, be void. Consent by City shall not relieve Contractor of
responsibility for performance of Contractor's obligations hereunder. City may
assign all or any part of this Agreement at any time effective immediately upon
written notification to Contractor.
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6.15. At all times while Work is being performed on the Premises each party shall be
represented thereon by a designated representative. Each party may notify the
other in writing of the identity of such persons from time to time.
Work Injury
6.16. The treatment and care of injuries sustained by Contractor's employees,
subcontractors, representatives or other personnel shall be and remain the
responsibility of Contractor. City's first aid facilities, if any, however, will be made
available to Contractor's employees in emergency cases which are the direct
result of accidents occurring on the Premises. City shall incur no liability for, and
Contractor hereby agrees to indemnify City against, any causes of action, claim,
liability or costs, including attorney's fees, arising in whole or part out of the
furnishing of such first aid facilities or assistance to Contractor's employees,
subcontractors, representatives or other personnel, or out of the failure to furnish
such facilities or assistance.
Records, Inspection and Audit
6.17. During the course of Work being performed, Contractor and any of its
subcontractors, shall maintain and retain, not less than three (3) years after
completion thereof, complete and accurate records of the Contractor's costs
which are chargeable to the City under this Agreement. City or its designated,
authorized representatives, shall have the right during this three (3) year period,
upon written reasonable notice, to inspect and audit those records. Such records
to be maintained and retained by the Contractor shall include: (a) payroll record
accounting for the total time distribution of the Contractor's employees working
full or part time on the Work (to permit tracing to payroll payments in cash); (b)
invoices for purchases, receiving and issuing documents, and all the other unit -
inventory records for the Contractor's stores, stock or capital items; (c) paid
invoices and canceled checks for material purchased and for the subcontractor's
and any other third parties' charges; and (d) any other documentation City deems
necessary to support costs and charges under this Agreement.
Corporate Conduct
6.18. Contractor, its employees, agents or representatives shall not offer or give to an
officer, official or employee of City gifts, entertainment, payments, loans or other
gratuities to influence the award of a contract or obtain favorable treatment under
this Agreement or any other contract.
Standard of Care
6.19. Contractor agrees that all Services provided will be conducted by the principal
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and competent staff members, if any, under the supervision of the principal, and
that Services will be performed and rendered diligently. Contractor represents
that it has, or shall secure, at its own expense, all personnel required to perform
Contractor's Services under this Agreement, but at all times shall be responsible
for the Services of such personnel. Contractor may not employ any
subcontractor without the prior written approval of the City.
Indemnity Process
6.20. The City shall notify Contractor in writing of any suits, claims or demands
covered by any indemnity contained in this Agreement. Promptly after receipt of
such notice, Contractor shall assume the defense of such claim with counsel
reasonably satisfactory to City. If Contractor 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 Contractor
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 Contractor. 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 Contractor's obligations to
indemnify or defend. Contractor 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.
Treatment of Confidential and Proprietary Information
6.21. For ten (10) years after the effective date of this Agreement, Contractor shall
refrain from using any Confidential or Proprietary Information except in
connection with the Work or from disclosing it to any third party other than to
employees of Contractor who require it in performance of the Work and except to
such other third persons as City may authorize in writing. If disclosure to such an
employee or to other third persons is so authorized, Contractor shall enter into
with said party a confidentiality agreement containing provisions with respect to
use and disclosure of Proprietary Information substantially the same as those
contained in this Agreement.
6.22. Contractor shall take reasonable precautions to safeguard any documents
containing Proprietary Information which City may supply to Contractor
hereunder. Contractor may copy, in whole or part, such documents to the extent
necessary for the performance of the Work, and Contractor shall return to City
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upon the completion of the Work or request by City all such documents and
copies.
6.23. Except as expressly permitted by prior written consent of the City, Contractor
and/or its subcontractors shall not disclose, permit the disclosure of, release,
disseminate, or transfer, whether orally or by any other means, any part of such
Confidential Information to any other person or entity. Contractor and/or its
subcontractors 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 Contractor has performed all Work to be performed
pursuant to this Agreement. Contractor hereby agrees that such Confidential
Information and any documents provided may be used by Contractor and/or its
subcontractors only as authorized by the City. Contractor shall include a
provision in its agreements with subcontractors that binds the subcontractors to
this non -disclosure requirement.
6.24. All reports, plans, data, studies, maps, drawings, models, photographs,
documents and other writings prepared by and for Contractor, its officers,
employees, agents and subcontractors in the course of implementing this
Agreement, with the exception of working notes, internal documents and
Confidential Information provided by businesses located in City, shall be
considered the property of City. Contractor shall deliver such documents and
materials to the City as they are generated; however, Contractor may take and
retain copies of said documents and materials that are not Confidential
Information, as desired.
6.25. All reports, information, data and exhibits prepared or assembled by Contractor
in connection with the performance of its Services pursuant to this Agreement
are confidential until released by the City to the public and Contractor agrees that
such documents shall not be available to any individual or organization without
the written consent of the City prior to such release.
6.26. No reports, maps, or other documents produced in whole or in part under this
Agreement shall be the subject of an application for copyright by or on behalf of
Contractor.
Compliance with Authority
6.27. Contractor shall comply with all laws, regulations, executive orders and other
applicable requirements of any governmental agencies having jurisdiction
including the Fair labor Standards Act, the Occupational Safety and Health Act
and all those relating in any way to employment practices and protection of the
environment. Contractor shall not discriminate against any employee or any
applicant for employment for reasons of race, color, creed, religion, sex, sexual
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preference, age or national origin.
6.28. Contractor shall make timely payment of all employment taxes and of all social
security and other contributions of every kind required to be made with respect to
or measured by the wages and salaries of persons employed by Contractor.
6.29. Contractor shall indemnify City against, and hold City harmless from, any liability
or loss including liability or loss from fines or penalties arising out of Contractor's
failure to perform the obligations imposed upon it by Sections 6.27 and 6.28 of
the Agreement.
Progress Reports
6.30. Contractor shall meet with City staff, upon City's request, or as needed, in order
to provide reports or information concerning the Services being performed by
Contractor under this Agreement.
Contractor's License Classification
6.31. Contractor shall possess all appropriate licenses for the duration of this
Agreement.
Warranties
6.32. Contractor shall assign to the City at the time the Equipment is delivered all
manufacturers' warranties and Contractor 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
Agreement.
6.33. Contractor warrants that title to Equipment will pass to the City either by
incorporation in the construction or upon the receipt of payment by Contractor,
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.
6.34. Contractor warrants that all Equipment will be new and free from defects in
materials and workmanship, comply with the specifications provided by the
manufacturers, be of good quality and merchantability, and fit for their intended
purposes, and conform to all applicable governmental regulations, statutes, and
ordinances. Any Equipment not conforming to these requirements, including
substitutions not properly approved and authorized, may be considered
defective. In the event that the test results obtained by either Contractor or the
City reveals that any portion of the Equipment does not meet the City's
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specifications or the City identifies any defects in or damage to the Equipment,
Contractor 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 Contractor, and obtaining another vendor to provide
the Equipment. Contractor 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 Contractor.
6.35. Contractor shall obtain for the benefit of the City, and assign to the City,
commercially reasonable manufacturers' warranties, specifically, Contractor
warrants the following: parts and labor is five (5) years or 150,000 miles for each
diesel particulate reduction device installed. All manufacturers' warranties, any
warranties typically provided by Contractor 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 Agreement or the City's acceptance of the Equipment being purchased
hereunder, whichever occurs first. Contractor shall assist the City in the
enforcement of all such warranties.
6.36. Contractor, 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
Agreement if reported to Contractor within the Warranty Period. The Warranty
Period shall commence from the date Equipment is 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. Contractor's obligations hereunder shall include the
obligation to repair any damage to other property caused by the defective
Equipment or the repair thereof. Contractor 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 Agreement, or (b) the correction of any
such Equipment.
The foregoing representations, warranties, covenants, and agreements shall
survive any termination of this Agreement and final completion of the delivery of
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the Equipment and are in addition to, and not in lieu of, any and all other liability
imposed upon Contractor by law with respect to Contractor's duties, obligations
and performance hereunder.
SECTION 7. TERMINATION OF AGREEMENT
7.01. Unless otherwise terminated as provided in this Section, this Agreement will
continue in effect until such time as the City receives a final comprehensive
report summarizing the Services, analysis of tests and results, unless otherwise
extended according to the terms and conditions set forth in this Agreement.
Non -Default Termination
7.02. City, at its sole discretion, may terminate this Agreement upon thirty (30) days
written notice to Contractor and such termination shall be effective in the manner
specified in such notice and shall be without prejudice to any claim that either
party may have against the other. During the thirty (30) day period after such
notice is sent, the parties shall continue to act toward each other in good faith.
7.03. In the event of any such termination, in full and complete settlement for the
termination of the Work, City shall pay Contractor for those Services performed
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
Contractor directly attributable to termination which could not reasonably have
been avoided and for which Contractor is not otherwise compensated that are
incurred through the date of termination and effectuating the termination
("Termination Expenses"). Termination Expenses shall not include lost profits,
lost opportunities, consequential damages, or the like. In no event shall total
payment exceed the Contract Price.
Termination on Occurrence of Stated Events
7.04. This Agreement will terminate automatically on the occurrence of any of the
following events:
A. Bankruptcy or insolvency of either party; or
B. Sale of the Contractor; or
C. Assignment of this Agreement by Contractor without City's written
consent.
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Termination for Default
7.05. If Contractor defaults in the performance of this Agreement or materially
breaches any of its provisions, City may immediately terminate this Agreement
by giving written notification to Contractor indicating the effective date of such
termination. Termination will take effect immediately upon the date specified in
the notification. For the purposes of this paragraph, material breach of this
Agreement includes, but is not limited to, the following:
A. Contractor's failure to perform, in a manner satisfactory to the City
in its sole discretion, the Services specified in Section 3 of this
Agreement; or
B. Contractor's material breach of any obligation or provision
contained in Section 5 of this Agreement.
7.06. The waiver by either party of a breach or default by the other party shall not be
deemed a waiver of any different or later breach; nor shall any delay or omission
by either party to exercise any right it may have hereunder operate as a waiver of
any breach or default of such a right. The failure of either party to this
Agreement to exercise any of its rights under this Agreement does not constitute
a breach thereof and shall not be deemed to be a waiver of such rights or a
waiver of any subsequent breach.
7.07. In the event of any termination of this Agreement or reduction in the scope of the
Work, Contractor shall not be entitled to damages for loss of profits for the
unexecuted portion of the Work or any other damages because of such
termination or reduction.
SECTION 8. GENERAL PROVISIONS
Notices
8.01. All notices, approvals, consents and other communications between the parties
shall be in writing, and shall be sent by fax or by certified mail (return receipt
requested) to the respective addresses set forth below, or at such other address
as may be furnished by either party to the other in writing. Faxed notices,
confirmed by copy thereof, shall be deemed communicated as of the day the
facsimile was sent. Mailed notices will be deemed communicated as of the day
of receipt or the third (3rd) day after mailing, whichever occurs first.
Page 17 of 21
Contractor — AFS, Inc.
City - City of Vernon
Attn: Craig Phillips, President
Attn: City Administrator
2535 Anselmo Drive
4305 Santa Fe Avenue
Corona, CA 92879-8092
Vernon, CA 90058
Fax: 951-520-2978 Fax: 323-826-1438
Telephone: 951-520-2921 Telephone: 323-583-8811 ext 260
Entire Agreement of the Parties
8.02. This Agreement supercedes any and all agreements, either oral or written,
between the parties with respect to the rendering of Services by Contractor for
City and contains all of the representations, covenants, and agreements between
the parties with respect to the subject matter of this Agreement and the rendering
of those Services. Each party to this Agreement acknowledges that no
representations, inducements, promises, or agreements, orally or otherwise,
have been made by any party, or anyone acting on behalf of any party, which are
not contained in this Agreement, and that no other agreement, statement, or
promise not contained in this Agreement or a subsequent amendment or change
order shall be valid or binding. No amendment or change in the provisions of this
Agreement shall be made, except in a formal written amendment signed by
Contractor and an authorized representative of the City, or in a written change
order. Contractor expressly waives all claims for compensation based upon
quantum merit, implied contract or oral contract. Each party represents and
warrants that it has read and fully familiarized itself with this Agreement, and that
such party has been fully authorized to sign this Agreement.
8.03. This Agreement shall be comprised of these included provisions, together with
Exhibits A and B, which are all attached. In the event of conflict between this
Agreement and any of the exhibits, including the Proposal, this Agreement shall
prevail.
Partial Invalidity
8.04. If any provision of this Agreement is held by a court of competent jurisdiction to
be invalid, void, or unenforceable, the remaining provisions will continue in full
force and effect without being impaired or invalidated in any way.
Law and Arbitration
8.05. All disputes arising out of or related to this Agreement, the conduct of either party
in connection with this Agreement, and the relationship and rights of the parties
in connection with this Agreement, whether characterized as breach of contract,
tort, or otherwise (except for those requesting injunctive relief) shall be
Page 18 of 21
determined by binding arbitration in accordance with the terms of this Section.
The submittal of all matters to arbitration in accordance with the terms of this
Section is the sole and exclusive method, means and procedure to resolve any
and all claims, disputes or disagreements arising under this Agreement, except
for claims by either party which seek injunctive relief, which claims shall be
resolved by suit filed in the Superior Court of Los Angeles County, California, the
decision of which court shall be subject to appeal pursuant to applicable law.
The parties hereby irrevocably waive any and all rights to the contrary and shall
at all times conduct themselves in accordance with the terms of this Section,
relying on arbitration as the sole means of resolution of disputes. Arbitration of
all matters required to be arbitrated hereunder shall take place before a panel of
three retired judges of the Superior Court of the State of California (the
"Arbitrators") under the auspices of Judicial Arbitration & Mediation Services, Inc.
("JAMS"). Such arbitration shall be initiated by the parties, or either of them,
within ten (10) calendar days after either party sends notice of a demand to
arbitrate (the "Arbitration Notice") to the other party and to JAMS. The Arbitration
Notice shall contain a description of the subject matter of the arbitration, the
dispute with respect thereto, the amount involved, if any, and the remedy or
determination sought. Each party shall select a retired judge from the JAMS
panel, and the two selected judges shall mutually agree on the third retired judge
from the JAMS panel. If one of the parties does not select a retired judge from
the JAMS panel within fourteen (14) calendar days after receipt of the Arbitration
Notice, JAMS will select the second judge, and the judge selected by JAMS and
the judge selected by the other party will select the third judge for the panel. The
third judge is to be selected within ten (10) calendar days following the selection
of the first two judges. The three judges will together serve as the Arbitrators.
The arbitration shall be conducted in Los Angeles, California. Any party may be
represented by counsel and/or other authorized representative. In rendering a
decision(s), the Arbitrators shall determine the rights and obligations of the
parties according to the substantive and procedural laws of the State of California
and the terms of this Agreement. The decision of the Arbitrators shall be based
on the evidence introduced at the hearing and accompanied by a written
statement of decision as to each of the principal controverted issues. The
agreement of two of the three Arbitrators as to the resolution of the dispute shall
be a conclusive resolution. The Arbitrators shall deliver the written decision to
the parties within thirty (30) calendar days following the date of the selection of
the last of the Arbitrators. The decision shall be conclusive and binding, and it
may thereafter be confirmed as a judgment by the Superior Court of the State of
California, subject only to challenge on the grounds set forth in the
California Code of Civil Procedure Section 1286.2. The validity and
enforceability of the decision of the Arbitrators is to be determined exclusively by
the California courts.
Page 19 of 21
Attorney's Fees
8.06. In the event a dispute, claim or litigation arises regarding this Agreement, the
prevailing party shall be entitled to reimbursement for reasonable attorneys' fees
and actual costs, which may be set by the arbitrators or the court in the same
action or in a separate action brought for that purpose, in addition to any other
relief which is obtained.
8.07. Neither party shall be considered in default in any of its obligations under this
Agreement 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,
lightning, 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 Agreement 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.
8.08. Except as may otherwise be specifically provided herein, this Agreement may be
modified or amended only by a written document executed by both Contractor
and the City and approved as to form by the City Attorney.
8.09. The captions used in this Agreement are for convenience only and shall in no
way define, limit or describe the scope or intent of the Agreement or any part
thereof.
Page 20 of 21
8.10. City reserves the right to award similar contracts to multiple contractors to ensure
the City has adequate services.
IN WITNESS WHEREOF, the parties have executed the Agreement on the dates
shown below.
City:
City of Vernon
Name. Leonis C. Ma burg
Title: Mayor
Date:
ATTEST:
anuela Giron, City'C erk
APPROVED AS TO FORM:
J
n, City Attorney
Contractor:
AFS, Inc.
Name: Craig Philliob
Title: President
Date:
a PeMiller
Title: Corporate Secretary
Date: L6ZI11 b7
Page 21 of 21
EXHIBIT A
i Quote # 61709
N,
M li
PARTS &SERVICES"'
Estimated Pricing information
Customer City of Vernon
Name
Richard Stoykovich
Address
4305 Santa Fe Avenue
city
Vernon State Ca ZIP 90068
Phone
Fax 323 826-1432
aleairs Horizon M Electrical Regenerated DPF
Installation of above
Misc. Installation parts, brackets, tubing, hardware
Clealre Horizon M Electrical Regenerated DPF
Installation of above
Misc. Installation parts, brackets, tubing, hardware
Clealre Horizon M Electrical Regenerated DPF
Installation of above
Misc. Installation parts, brackets, tubing, hardware
Clealre Horizon M Electrical Regenerated DPF
Installation of above
Misc. installation parts, brackets, tubing, hardware
Clealre Horizon M Electrical Regenerated DPF
Installation of above
Misc. installation parts, brackets, tubing, hardware
Clealre Horizon M Electrical Regenerated DPF
Installation of above
Misc. installation parts, brackets, tubing, hardware
Cloaks Horizon M Electrical Regenerated DPF
Installation of above
Misc. installation parts, brackets, tubing, hardware
Clealre Horizon M Electrical Regenerated DPF
Installation of above
Misc. installation parts, brackets, tubing, hardware
Clealre Horizon M Electrical Regenerated DPF
Installation of above
Misc. installation parts, brackets, tubing, hardware
Cloaks Horizon M Electrical Regenerated DPF
Installation of above
Misc. Installation parts, brackets, tubing, hardware
Clealre Horizon M Electrical Regenerated DPF
Installation of above
Misc. Installation parts, brackets, tubing, hardware
Clealre Horizon M Electrical Regenerated DPF
Installation of above
Misc. installation parts, brackets, tubing, hardware
Cleake Horizon M Electrical Regenerated DPF
Installation of above
Misc. Installation parts, brackets, tubing, hardware
Cloaks Horizon M Electrical Regenerated DPF
Installation of above
Misc, installation parts, brackets, tubing, hardware
(11) Group 1 and 2, (1) Group 3
20% of Group 1 and 2 to be completed by December 2007
BILL FOR 1 AC RECEPTACLE WITH SHUNT - SEE JAYNE
The HorlaWs electrical demand is 2aoo want. Voltage rowiremerll: 206+/-5 veils
(under load) singWPhese AC 6 60 Hz. Ckcul braakx; 20 amp per ft. Each Horizon
mnecbd sinnibneowly requires Na Wte electrical outlet The connector plug Ya
aWOB& The cmd to Iha outlet Is cWtbmara resporulbWty. All other elactrleal is pan
oI the Horizon "am and conlained on the vehicle. This quole does not Include any
aiact*Al wiNng at wslomer are.
Lead time on Clealre Mufflers Is approximately 6.8 weeks ARO.
Pricing information Is based on current "Best Available
Paymentj Other Tax Rate(s)
Comments Net 30 on approved credit
Name
CC #
Expires
Misc
Date 4/23/2007
Order No.
Rep Mike --
FOB
$ 1,950.00
$
1,950.00
$ 600.00
$
600.00
$10,950.00
$
10,950.00
$ 1,950.00
$
1,950.00
$ 600.00
$
600.00
s110,950.00
$
10,950.00
$ 1,950.00
$
1,950.00
$ 600.00
$
600.00
$10,950.00
$
10,950.00
$ 1,950.00
$
11950.00
$ 600.00
$
600.00
$10,950.00
$
10,950.00
$ 1,950.00
$
1'950.00
$ 600.00
$
600.00
$10,950.00
$
10,950.00
$ 1,950.00
$
1,950.00
$ 600.00
$
600.00
610,950.00
$
10,950.00
$ 11950.00
$
11950.00
$ 600.00
$
600.00
$10,950.00
$
10,950.00
$ 11950.00
$
1,950.00
$ 600.00
$
600.00
$10,950.00
$
10,950.00
$ 1,950.00
$
1,950.00
$ 600.00
$
600.00
$10,950.00
$
10,950.00
$ 11950.00
$
1,950.00
$ 600.00
$
600.00
$10,950.00
$
10,950.00
$ 1,950.00
$
1,950.00
$ 600.00
$
600.00
$10,950.00
$
10,950.00
$ 1,950.00
$
1,950.00
$ 800.00
$
600.00
$10,950.0o
s
10,950.00
S 1,950.00
$
1,950.00
$ 600.00
$
600.00
$10,950.00
$
10,950.00
S 1,950.00
S
1,950.00
$ 600.00
$
600.00
Lead time to be determined after receipt ofpurohase order. Pricing is based on current BACT.
Thank you for you time and consideration, we look forward to the opportunity to be of
continued service.
EXHIBIT B
EXHIBIT B
Form Change Order
CHANGE
Contract Number:
Change Number:
The requirements of the above -designated Agreement are changed as follows:
City and Contractor agree that Contractor's compensation shall be adjusted as follows:
City and Contractor agree that Contractor's schedule shall be adjusted as follows:
This adjustment covers the entire compensation for the Change set forth above and includes, but
is not limited to compensation for all engineering, material, equipment, subcontracts, labor,
overhead, profit, changes in scheduling and delays resulting, directly or indirectly, from the
Change, as further detailed in the Agreement.
Contractor:
AFS, Inc.
By
Date
City:
City of Vernon
By
Date
B-1
INSTRUCTIONS TO CONTRACTOR
Contract Number:
Instruction to Contractor:
Date:
Specific Instructions to Contractor:
In accordance with the Terms and Conditions of the Agreement, the City classifies these
instructions as:
Supplementary instructions, not involving a Change
(Should these instructions be, in the opinion of Contractor, a "Change", written notice thereof
must be given to City within 10 days of the receipt of these instructions. If such written notice is
given, Contractor shall not commence with the work so ordered until written agreement is
reached on the classification of these instructions and on the resulting adjustment in contract
compensation, if any.) In the event that City and Contractor fail to agree on the classification of
these instructions or resulting adjustment in contract compensation, if any, refer to the Changes
Section of the Agreement.
A Change
(Contractor shall, within 10 days of the receipt of these instructions, furnish City a statement of
its proposal for adjustment in contract compensation occasioned hereby. Contractor shall not
commence with the work so ordered until written agreement is reached on the resulting
adjustment in contract compensation, if any.) In the event that City and Contractor fail to agree
on the classification of these instructions or resulting adjustments in contract compensation, if
any, refer to the Changes Sections of the Agreement.
City Representative
Please acknowledge receipt of this instruction by returning one copy signed in the space
provided below. Contractor's signature hereon does not indicate his acceptance of the
classification assigned hereto by City.
Contractor's Representative
Date
Date