Resolution No. 8755
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RESOLUTION NO. 8755
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
AN EQUIPMENT PURCHASE AND SERVICES CONTRACT BY AND
BETWEEN THE CITY OF VERNON AND GACELA GROUP FOR
DIGITAL VOICE RECORDERS FOR POLICE DEPARTMENT
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7 WHEREAS, the Vernon Police Department has determined that it
8 needs digital voice recorders for its officers and staff to accurately
9 record interactions with the public; and
10 WHEREAS, the Vernon Police Department has requested that the
11 City purchase the sixty (60) digital recorders together with audio
12 system, licenses, software, support and installation and training
13 services (collectively, the "Recorders") from Gacela Group ("Gacela")
14 because it believes Gacela to be the only vendor that can provide the
15 necessary Recorders meeting the Department's specifications and
16 requirements; and
17 WHEREAS, the acquisition of the Recorders would improve the
18 effectiveness of the Vernon Police Department's operation and enhance
19 the services provided to citizens, residents and businesses within the
20 Vernon community; and
21 WHEREAS, on May 17, 2005, the Finance Committee considered
22 the recommendation of Bruce V. Malkenhorst, Director of Finance, dated
23 May 11, 2005, that the Recorders be purchased from Gacela; and
24 WHEREAS, the City Council of the City of Vernon has
25 determined that, pursuant to the provisions of subsection (a) of
26 Section 2.27 of the Vernon City Code, it is in the public interest and
27 necessity to enter into a contract with Gacela for the purchase of the
28 Recorders to enhance services provided to the Vernon community.
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1 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
2 CITY OF V~RNON AS FOLLOWS:
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SECTION 1:
The City Council of the City of Vernon hereby
4 finds and determines that the recitals contained hereinabove are true
5 and correct.
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SECTION 2:
The City Council of the City of Vernon hereby
7 approves the Equipment Purchase and Services Agreement with Gacela, in
8 substantially the same form as the copy which is attached hereto as
9 Exhibit A and incorporated by reference.
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SECTION 3:
The City Council of the City of Vernon hereby
11 authorizes the Mayor to execute said Agreement for, and on behalf of,
12 the City of Vernon and the City Clerk is hereby authorized to attest
13 thereto.
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SECTION 4:
The City Council of the City of Vernon hereby
directs the City Clerk, or his designee, to send one fully executed
Agreement to:
Gacela Group
Attn. Laird McIntyre, President
4585 S. Palo Verde Rd., Ste 413
Tucson, AZ 85714
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SECTION 5:
The City Clerk of the City of Vernon shall
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certify to the passage of this resolution, and thereupon and
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thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 18th day of May, 2005.
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ATTEST:
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BRUCE V. MALKENHORST, City Clerk
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1 STATE OF CALIFORNIA
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COUNTY OF LOS ANGELES
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I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution No.
8755, was duly adopted by the City Council of the City of Vernon at a
regular meeting of the City Council duly held on Wednesday, May 18,
2005, and thereafter was duly signed by the Mayor of the City of
Vernon.
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BRUCE V. MALKENHORST, City Clerk
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EXHIBIT
A
EQUIPMENT PURCHASE AND SERVICES AGREEMENT
THIS 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 18th day of May, 2005, in the City of Vernon, County of Los Angeles, California
BY AND BETWEEN
THE CITY OF VERNON, a municipal
corporation, hereinafter
referred to as the "City,"
4305 Santa Fe Avenue
Vernon, California 90058
AND
GACELA GROUP, hereinafter referred as
the "Gacela,"
4585 S. Palo Verde Rd., Ste. 413
Tucson, AZ 85714
RECITALS
WHEREAS, the City's Police Department has determined that it needs digital
voice recorders for its officers and staff to accurately record interactions with the public
(hereinafter collectively referred to as the "Recorders"); and
WHEREAS, the purchase of the Recorders will improve the effectiveness of the
Police Department's operation and enhance the services provided to citizens, residents and
businesses within the Vernon community; and
WHEREAS, Gacela submitted a proposal for the purchase of the Recorders and
services for installation and training dated February 22, 2005 (hereinafter the "Proposal"), a copy
of which is attached hereto as Exhibit A and incorporated by reference; and
WHEREAS, the Proposal includes a description of the equipment and services to
be performed by Gacela and the attendant costs; and
WHEREAS, Gacela has advised the City that it is qualified and capable of
providing the Recorders 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 Gacela to provide
for the purchase and delivery of the Recorders and the labor to install the equipment and provide
the necessary training.
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NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1.0 Purchase and Sale of the Recorders and Scope of Services
1.1 Gacela agrees to sell, deliver and install the Recorders, provide training and support
services, and the City agrees to purchase the Recorders and services as identified in Exhibit A.
1.2 Delivery. Gacela shall obtain and sell and deliver the Recorders at the City of
Vernon, F.O.R Job Site. Gacela is responsible for all costs of full freight, including insurance,
to Job Site. Risk ofloss shall pass to the City upon delivery F.O.R Job Site.
It is understood and agreed that in the event of a conflict between the Proposal and this
Agreement, the terms of the Agreement shall prevail.
2.0 Time of Performance
The performance of Gacela shall commence upon the signing of the Agreement by both
parties and. shall end when Gacela has completed the work according to the Proposal, unless the
Agreement is otherwise terminated or extended upon written agreement of both parties to this
Agreement. Delivery is expected to be completed no later than forty-five (45) days from the
issuance of City's purchase order. Completion of the services to be performed by the Gacela is
expected to be no later than sixty (60) days.
3.0 Contract Price
As full and complete compensation to Gacela for the timely, proper and complete
performance of all obligations relating to this Agreement, City shall pay Gacela, subject to the
additions and deletions expressly provided for in this Agreement, the Contract Price set forth in
Exhibit B.
4.0 Notices
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.
Fax:
Telephone:
520-382-0661
888-879-7704
City - City of Vernon, California
Attn: Bruce V. Malkenhorst,City
Administrator/City Clerk
4305 Santa Fe Avenue
Vernon, California 90058
Fax: 323-826-1438
Telephone: 323-583-8811 ext 260
Gacela Group
Attn: Laird McIntyre, President
4585 S. Palo Verde Rd., Ste. 413
Tucson, AZ 85714
5.0 Law and Arbitration
This Agreement shall be governed by the laws of the State of California. The parties
agree that any and all disputes arising out of or in relation to this Agreement, including without
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limitation any action in tort, shall be resolved exclusively, finally and conclusively by arbitration
in Los Angeles County, California under the auspices of and pursuant to the rules of the Judicial
Arbitration & Mediation Services Inc. (JAMS). Each party will select an arbitrator. Those two
arbitrators will then select a third. The three member panel will make the final decision. All
decisions of the arbitrators shall be in writing, and the arbitrators shall provide written reasons
for their decision. The arbitration decision shall be final and binding on the parties.
Notwithstanding the foregoing, the parties shall be permitted to access the court system to
enforce any arbitration award or to obtain injunctive relief. The exclusive jurisdiction and venue
for any such action shall be the Superior Court of California, Los Angeles County. Any and all
contracts between Gacela and any subcontractor shall include the same arbitration clause.
6.0 Entire Agreement
This Agreement shall be comprised of these signed business terms (Business Terms),
together with Exhibit A - The Proposal; Exhibit B - Compensation and Payment; Exhibit C -
Insurance; Exhibit D - General Provisions; and Exhibit E - Change Orders, which are all
attached. In the event of conflict between this Agreement and any of the exhibits, this
Agreement shall prevail. In the event of conflict between exhibits, the exhibits shall be
prioritized in the following order: Exhibit D first, then Exhibits C, B, A and E. This agreement is
the entire agreement of the parties, and supersedes all prior written and/or verbal
communications, proposals, notices of award, negotiations, understandings and agreements,
whether written or verbal, between the parties with respect to the subject matter dealt with in this
Agreement. Gacela expressly waives all claims for compensation based upon quantum merit,
implied contract or oral contract. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, verbally or otherwise, have been made by
any party, or anyone acting on behalf of any party, which are not embodied 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
Gacela and a corporate officer of City, or in a written change order. 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.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by and through their authorized officers on the date, month and year first written above.
Gacela Group
City of Vernon
Name:
Title:
Name: Leonis C. Malburg, Mayor
Date:
Date:
Name:
Title:
Date:
ATTEST:
Bruce V. Malkenhorst, City Clerk
APPROVED AS TO FORM:
Eric T. Fresch, City Attorney
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EXHIBIT
A
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4585 S. Palo Verde F<d., Suite 413. Tucson. AZ 85714, 888.879-7704 520.3820661 fax
Audioworxs System Proposal (22 February 2005) - OM2200/4000
~ Part # Description Unit Price ~
1 AW2DP Audioworxs Server - Not ReQuired
1 002021004 Audioworxs System OP 10 $1,295 $1,295.00
(Includes10 Author and 10 Trans/Admin
licenses)
3 002404304 User License (one required per $299 $897.00
AdminlTrans user)
1 002404008 100 Bulk Author Licenses (one $895 $895.00
reQuired for each author)
7 Olympus OM 2200 recorder Includes $325 $2,275.00
128MB memory (23-44) hrs recording,
remote control microohone
23 Olympus OS 4000 recorder Includes $389 $8,947.00
32MB memory (5-11) hrs recording,
with download cradle and recharge
batteries
30 Olympus OS 4000 recorder Includes $349 $10,470.00
32MB memory (5-11) hrs recording. .
Download cable onlv, no recharae batt.
1 003001039 File Transfer Assistant -- moves voice $1,495 $1,495.00
files from PC to the server
007001701 Transcribe Kit Includes (USB Foot $150
007001702 Pedal & Head Set)- Not Required
already have a kit
Total $26,274.00
1 yr Year Audioworxs Software Support & $1,020
Enhancement Program Provides 5
days X 8 hours remote diagnostic
support (includes all program patches
and uodates)
3 Dav Installation and Training $990 $2,970
Grand Total for Audioworxs System $30,264.00
The above installation and training charges are an only an estimate. Any additional hours, beyond the estimate, will be billed at
the hourly rate of $90/hour. Please note that although we make every effort to anticipate installation problems, due to the
variety of PC's being used and their unique configurations and/or intemal components and possible conflicts with various
software programs installed on a PC, some conflicts may still occur. All efforts will be made to work with client personnel and
the manufacturer of the hardware and software to solve the unforeseen problem. Prices valid until 30 June 2005.
EXHIBIT
B
EXHIBIT B
Compensation and Payment
1.0 Contract Price.
1.1 Not to Exceed Value
As Compensation for Gacela's delivery of the equipment andperformance ofthe
services in accordance with the terms and conditions of this Agreement, City shall
pay Gacela a maximum Contract Price (Contract Price) of Thirty Thousand Two
Hundred Sixty-Four Dollars and No Cents ($30,264.00) plus tax. The actual
amount will be based on the time and materials required to furnish the equipment
and perform the services, billed in accordance with Gacela' s rates identified in the
Proposal attached as Exhibit A.
1.2 Entire Compensation
Except as provided below in Exhibit D, the Contract Price is full and complete
compensation, and constitutes the entire compensation due Gacela for the
equipment and services and any and all of Gacela' s obligations hereunder,
regardless of difficulty, unforeseen circumstances, hours worked or equipment,
materials or personnel required. The Contract Price includes without limitation
compensation for all applicable taxes, freight, customs duties, fees, overheads,
profit, travel time to and from the Work Site and all other direct and indirect costs
incurred or to be incurred by Gacela hereunder, except as noted in Section 1.0 of
the Agreement. The Contract Price set forth above and the rates set forth in any
attachment incorporated into this exhibit are not subject to escalation for any
reason. 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 a formal,
written Change Order or amendment to this Agreement.
2.0 Compensation for Changes
The compensation due Gacela, or the credit due City, for "Changes" (as that term is
defined in Exhibit D) may not be established verbally, and shall be established in a
written change order signed by City as described in Exhibit E. 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) on a time and materials basis based on employee rates established in
Exhibit A, or ( c) such lower rates as are otherwise agreed in the applicable Change Order.
Once established, the amount of the compensation due Gacela or credit due City for a
change shall not be subject to adjustment for any reason, including changes in the value
of any currency.
3.0 Invoicing and Payment
Gacela shall submit invoices acceptable to City, and City shall make payment to Gacela
in accordance with the terms set forth in Exhibit D.
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Payment of the invoices shall be made after acceptance and approval by City within 30
days of receipt. Gacela shall be responsible for paying any subcontractors used in the
performance of this Agreement. Subcontractors shall not bill the City directly.
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EXHIBIT
C
ExmBIT C
Insurance
Gacela 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.
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 and.Owner all the rights and privileges of an additional insured.
Gacela shall cause its insurers to issue 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.
Gacela shall ensure its Subcontractor (s), if any, maintain those insurance requirements as
specified in this Schedule C and are endorsed as additional insured(s) on all required Gacela'
insurance coverages. Gacela 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 and, if necessary, Longshoremen and
Harbor Workers and Jones Act, including occupational illness or disease coverage in
accordance with the laws of the nation, state, territory, or province exercising jurisdiction
over the Employees. Workers Compensation and Employers Liability Insurance shall
have a minimum limit of $ 1,000,000 per occurrence.
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, Collapse and Underground Liability, with a
minimum combined single limit of $1,000,000 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 Liability Insurance with limits of $2,000,000. Such evidence of insurance can
either by 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.
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EXHIBIT
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EXHIBIT D
General Conditions
1.0 Definitions and Responsibilities
1.1 Defmitions
Whenever used in the Agreement of which these General Provisions are a part,
the following terms shall mean:
a. "Agreement" shall mean that formally executed Agreement or Contract which
includes the Contract Documents to which this Exhibit D is attached. The
Agreement constitutes the entire agreement between the parties relating to its
subject matter.
b. "Gacela" shall mean Gacela Group and where applicable, its affiliated
companies, directors, officers, employees, agents and representatives.
c. "Contract Documents" shall include any inquiry, invitation to bid, or proposal
which may have, but not necessarily, preceded execution of the Agreement, the
General Provisions and all exhibits and schedules attached to the Agreement and
all plans and specifications identified in the Contract Documents.
d. "Contract Price" shall have the meaning given it in Section 3.1.
e. "City" shall mean the entity which has executed the Agreement and, where
applicable, its affiliated companies, and its officers, directors, employees,
representatives and agents.
f. "General Provisions" or "General Conditions" shall mean these General
Conditions of this Exhibit D.
g. "Equipment" shall mean the equipment identified in Exhibit A.
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 and/or Owner's
control or ownership where work hereunder is to be performed.
j. "Proprietary Information" shall mean all information, whether written or oral,
which Gacela 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
Work, except information falling into any of the following categories:
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(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 Gacela' or any entity
within Gacela' control or breach of this Agreement;
(3) Information which prior to disclosure hereunder, was already in
Gacela' possession without limitation regarding disclosure to others; or
(4) Information which subsequent to disclosure hereunder, is obtained by
Gacela 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 Gacela to
agree to refrain from disclosing such information to others.
k. "Subcontractor(s)" shall mean any first or lower-tier Subcontractor(s) and its
employees, representatives, agents, Subcontractor(s) or other personnel who have
been approved in the manner required by the Agreement.
1. "Work" or "Services" shall mean the work performed by Gacela and required
to be performed from time to time by City under the Agreement.
1.2 City's and Gacela's Representations
Gacela and City represents that it has read and understands the Agreement and
Contract Documents. Gacela represents it understands the Owner's regulations
concerning premises access, badges, parking, security, safety, fire, prohibited
drugs and alcohol, and smoking and other rules, and that Gacela has visited the
Premises .where the Work is to be done and is familiar with the local conditions
under which it is to be done. Gacela also represents that it is experienced in
providing the equipment and 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 the Agreement.
1.3 Representatives of the Parties
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.
2.0 Scope of Work: Division of Responsibility
2.1 Description of the Work
A description of the Work is set forth in this Agreement and the attachments
thereto. City may at any time, by written change order by City's authorized
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representative identified in the Agreement, make changes only to extend the work
duration and total compensation of Gacela's work. Changes in the scope of work,
or duties and obligations, shall be authorized only by the City.
2.2 Gacela's Responsibilities
Unless otherwise specified in the Agreement, Gacela shall furnish the equipment
and perform the duties as outlined in the Agreement between the Gacela and the
City.
2.3 Work Injury
The treatment and care of injuries sustained by Gacela's employees,
Subcontractor(s), representatives or other personnel shall be and remain the
responsibility of Gacela. City's and/or Owner's first aid facilities, ifany,
however, will be made available to Gacela's employees in emergency cases which
are the direct result of accidents occurring on the Premises. City shall incur no
liability for, and Gacela hereby agrees to indemnify Owner against, any causes of
action, claim, liability or costs, including attorneys' fees, arising in whole or part
out of the furnishing of such first aid facilities or assistance to Gacela' s
employees, Subcontractor(s), representatives or other personnel, or out of the
failure to furnish such facilities or assistance.
3.0 Compensation and Payment
3.1 Contract Price
The compensation set forth or provided for in the Agreement is the Contract
Price. Whether it expressly provides for the reimbursement of costs incurred by
Gacela or simply for the payment of a lump sum of money, it is intended to be the
full and complete payment forsatisfac~ory delivery of the equipment and
completion of the Work and, unless otherwise stated, to cover all costs whether
for materials, equipment, tools, labor, services, freight and taxes and all overhead,
rentals and profit or fee, if any.
3.2 Reimbursables and Other Expenses
Expenses may only be billed if advance written approval has been obtained from
the City Administrator.
3.3 Terms of Payment
Gacela shall be entitled to receive payment for materials on delivery and the
balance due at the completion of Work at each fire station. Gacela shall submit
progress payment requests, prepared in accordance with City requirements, upon
completion of the Work. City will make payment to Gacela within thirty (30)
days after acceptance and approval of the invoice received from Gacela.
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3.4 Records, Inspection and Audit
During the course of the equipment being furnished and the Work being
performed, Gacela and any of its Subcontractor(s), shall maintain and retain, not
less than three years after completion thereof, complete and accurate records of
the Gacela's costs which are chargeable to City under this Agreement. City or its
designated, authorized representatives, shall have the right during this three year
period, upon written reasonable notice, to inspect and audit those records. Such
records to be maintained and retained by the Gacela shall include: (a) payroll
record accounting for the total time distribution ofthe Gacela's employees
working full or part time on the Work (to permit tracing to payrolls and related
tax returns) as well as canceled checks or signed receipts for payroll payments in
cash; (b) invoices for purchases, receiving and issuing documents, and all the
other unit-inventory records for the Gacela'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.
3.5 Corporate Conduct
Gacela, its employees, agents or representatives shall not offer or give to an
officer, official, or employee of City or Owner, gifts, entertainment, payments,
loans or other gratuities to influence the award of a contract or obtain favorable
treatment under a contract.
4.0 Termination of Contract
4.1 Non-Default Termination
City, at its sole discretion, may terminate this Contract upon fifteen (15) days
written Notice to Gacela 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.
4.2 Termination Payment
In the event of any such termination, in full and complete settlement for the
equipment furnished and termination of the Work, City shall pay Gacela for the
equipment and services performed prior to the date of delivery of the termination
notice, plus compensation for (i) necessary equipment furnished and work
performed during the notice period and authorized in the termination notice, and
(ii) all costs reasonably and necessarily incurred by Gacela directly attributable to
termination which could not reasonably have been avoided and for which Gacela
is not otherwise compensated that are incurred through the date of the termination
and in effectuating the termination (the "Termination Expenses"). Termination
Expenses shall not include lost profits, lost opportunities, consequential damages,
or the like. In no event shall total payment exceed the Contract Price.
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4.3 Loss of Profits
In the event of any termination of this Contract or reduction in equipment or
scope of the Work, Gacela shall not be entitled to damages for loss of profits for
the unexecuted portion of the equipment and Work or any other damages because
of such termination or reduction.
5.0 General provisions
5.1 Independent Contractor
Gacela shall be an independent contractor with respect to all the services to be
performed hereunder and shall have responsibility for and control over the details
and means for performing the Work. Neither Gacela nor any of those employed
in furnishing such services shall be deemed the agents, representatives, employees
or servants of City. Gacela shall have complete and sole control over its
employees, the details ofthe services and the methods by which the services are
accomplished, it being understood that City is interested only in the results to be
obtained by Gacela.
5.2 Insurance
Gacela agrees to provide insurance in the amounts and forms specified in Exhibit
C, which is attached hereto and incorporated by reference. Gacela shall submit to
the City documentation indicating compliance with these minimum requirements
no less than one (I) day prior to the beginning of performance under this
Agreement. Gacela 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.
Gacela 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 Gacela employs
subcontractors as part of the services rendered, Gacela' protective coverage is
required. Gacela may include all subcontractors as insureds under its own policy
or shall furnish separate insurance for each subcontractor, meeting the
requirements set forth herein.
5.3 Standard of Care
Gacela agrees that all services provided will be conducted by the principal and
competent staff members, if any, under the supervision of the prin((ipal, and that
services will be performed and rendered diligently. Gacela represents that it has,
or shall secure, at its own expense, all personnel required to perform Gacela's
services under this Agreement, but at all times shall be responsible for the
services of such personnel. Gacela may not employ any subcontractor(s) without
the prior written approval of the City.
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5.4 Indemnification
Gacela's Indemnity. To the fullest extent permitted by law, Gacela shall defend,
indemnify and hold harmless City and its elected officials, officers, agents and
employees from all claims, suits, actions, demands, damages, liabilities, expenses,
judgments, settlements and penalties, losses, fines, and all costs and expenses
incurred in connection therewith, including reasonable attorneys' fees and all
costs of defense, arising out of or attributable to the negligent or wrongful acts of
Gacela 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 ofthis indemnity shall survive the
termination of this Agreement. The obligations in this Paragraph are in addition
to Gacela' duty to provide insurance and shall not be limited by any limitation on
the amount or type of insurance coverage carried by Gacela.
Indemnity Process. The City shall notify Gacela in writing of any suits, claims or
demands covered by this indemnity. Promptly after receipt of such notice, Gacela
shall assume the defense of such claim with counsel reasonably satisfactory to
City. If Gacela 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 Gacela 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 Gacela.,
Notwithstanding the above, if the City in its sole discretion so elects, City may
also participate in the defense of such actions by employing counsel at its
expense, without waiving the City's obligations to indemnify or defend. Gacela
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.
5.5 Treatment of Confidential and Proprietary Information
a. For ten years after the effective date of this Agreement, Gacela 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
Gacela who require it in performance of the Work and except to such other third
persons as City may otherwise authorize in writing. If disclosure to such an
employee or other third person is so authorized, Gacela 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 General Condition.
b. Gacela shall take reasonable precautions to safeguard any documents containing Proprietary Information which City may supply to Gacela hereunder.
Gacela may copy, in whole or part, such documents to the extent necessary for the
D-6
performance of the Work and Gacela shall return to. City upon the completio.n of
the Work o.r request by City all such documents and copies.
c. Except as expressly permitted by prior written consent of the City, Gacela
and/o.r 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, without the express prior
written consent of an authorized representative of the City. Gacela and/or its
subcontractors shall return any written Confidential Information and all copies
made o.f such items to the City upon the City's written request, but in any event
no.t later than the date that Gacela has delivered all equipment and performed all
Work to be performed pursuant to this Agreement. Gacela hereby agrees that
such Confidential Information and any documents provided may be used by
Gacela and/or its subcontractors only as authorized by the City. Gacela shall
include a provisio.n in its agreements with subcontractors that binds the
subcontractors to this non-disclosure requirement.
5.6 Compliance with City's and Owner's Regulations
Gacela shall observe, and shall cause its Subcontractor(s) and the employees of
each of them to observe, all of City's .and Owner's regulations as they may be
revised fro.m time to time concerning the safety and security of perso.ns and
property, housekeeping and Premises or plant work hours.
5.7 Compliance with Authority
Gacela shall comply with all laws, regulations, executive orders and other
applicable requirements of any governmental agencies havingjurisdictio.n
including the Fair Labor Standards Act, the Occupational Safety and Health Act
and all those relating in any way to emplo.yment practices and protection of the
environment. Gacela shall not discriminate against any employee or any
applicant for employment for reasons of race, color, creed, sex, age or national
ongm.
Gacela shall make timely payment of all employment taxes and of all social
security and o.ther co.ntributions of every kind required to be made with respect to
o.r measure by the wages and salaries of persons employed by Gacela.
Gacela shall indemnify City and Owner against, and hold City and Owner
harmless from, any liability or loss including liability o.r loss from fines or
penalties arising out of Gacela' failure to perform the obligations imposed upon it
by this section.
5.8 Assignments and Subcontractors
Gacela's rights under this Agreement may not be assigned nor may its duties be
delegated o.r subcontracted without the prior written consent of City. Any
assignment or delegation or subcontract in violatio.n of this section shall, at City's
discretion, be Vo.id. Consent by City shall no.t relieve Gacela of responsibility for
D-7
performance of Gacela' obligations hereunder. City may assign all or any part of
this Agreement at any time effective immediately upon written notification to
Gacela.
5.9 Waiver
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 asa waiver of
any breach or default or of such right.
5.10 Applicable Law
This Agreement shall be governed by and construed under the laws of the State of
California.
5.11 Captions
The captions used in this Agreement are for convenience only and shall in no way
define, limit or describe the scope or intent of this Agreement or any part thereof.
5.12 Notices
All notices required or permitted hereunder shall be in writing and shall be
delivered to the entity or person identified in the Contract Documents under
Notices. Notice sent by properly addressed mail, certified or registered with
return receipt requested and postage prepaid, shall be effective three days after
deposit in the mail or when received, whichever is earlier. Notice sent by
facsimile, telegraph, telex or cable and confrrmed by copy thereof sent by
registered or certified mail shall be effective upon the date of such facsimile,
telegraph, telex or cable. Notices sent in any other manner shall be effective only
if and when received.
5.13 Entire Agreement
The Agreement, and the attached Exhibits, constitute the entire Agreement by the
parties and it may not be altered, amended or changed without a duly executed
document by all parties.
5.14 Attorneys' Fees
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.
D- 8
5.15 Changes in the Work
City may make "Changes" by increasing, reducing or deviating from the
requirements of the equipment or scope of Work. A form of Change Order is set
forth in Exhibit E attached hereto and incorporated by reference.
5.16 Forum
Any dispute related to this Agreement shall be adjudicated in a state court serving
the County of Los Angeles, California.
5.17 Force Majeure
Neither party shall be considered to be 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, lightening, epidemic, war, riot, civil disturbance or disobedience, federal,
state, or municipal action, statute, ordinance, or regulation, embargoes of the
United States Government or any other government, which by exercise of due
diligence such party could not reasonably have been expected to avoid and by
exercise of due diligence has been unable to overcome. Either party rendered
unable to fulfill any of its obligations under this 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.
- End of Exhibit D -
D-9
EXHIBIT
E
... ,) ..
EXHmIT E
Form Chaoe:e Order
CHANGE
Contract Number:
Change Number:
The requirements ofthe above designated Agreement are changed as follows:
City and Gacela agree that Gacela's compensation shall be adjusted as follows:
City and Gacela agree that Gacela'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.
Gacela (Gacela Group)
City (City of Vernon, California)
By
By
Date
Date
E - I
..
.
, .
... I 1 .
INSTRUCTIONS TO GACELA
Contract Number:
Instruction to Gacela Number:
Date:
Specific Instructions to Gacela:
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 Gacela, 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, Gacela 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 Gacela 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
(Gacela shall, within 10 days of the receipt of these instructions, furnish City a statement of its
proposal for adjustment in contract compensation occasioned hereby. Gacela 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 Gacela 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
Date
Please acknowledge receipt of this instruction by returning one copy signed in the space
provided below. Gacela's signature hereon does not indicate his acceptance of the classification
assigned hereto by City.
Gacela's Representative
Date
- End of Exhibit E -
E-2
SUPPORTING
DOCUMENTS
..
..
EQU~MENTPURCHASEANDSERVICESAGREEMENT
THIS AGREEMENT is made, entered into and executed in duplicate originals,
either co.Jl of which may be considered and used as the original hereof for all purposes, as of
this ~ day Of~, 2005, in the City of Vernon, County of Los Angeles, California
BY AND BETWEEN THE CITY OF VERNON, a municipal
corporation, hereinafter
referred to as the "City,"
4305 Santa Fe Avenue
Vernon, California 90058
AND
GACELA GROUP, hereinafter referred as
the "Gacela,"
4585 S. Palo Verde Rd., Ste. 413
Tucson, AZ 85714
RECITALS
WHEREAS, the City's Police Department has determined that it needs digital
voice recorders for its officers and staff to accurately record interactions with the public
(hereinafter collectively referred to as the "Recorders"); and
WHEREAS, the purchase of the Recorders will improve the effectiveness of the
Police Department's operation and enhance the services provided to citizens, residents and
businesses within the Vernon community; and
WHEREAS, Gacela submitted a proposal for the purchase of the Recorders and
services for installation and training dated February 22,2005 (hereinafter the "Proposal"), a copy
of which is attached hereto as Exhibit A and incorporated by reference; and
WHEREAS, the Proposal includes a description of the equipment and services to
be performed by Gacela and the attendant costs; and
WHEREAS, Gacela has advised the City that it is qualified and capable of
providing the Recorders 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 Gace1a to provide
for the purchase and delivery of the Recorders and the labor to install the equipment and provide
the necessary training.
/1/
/1/
I
~
...
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1.0 Purchase and Sale of the Recorders and Scope of Services
1.1 Gace1a agrees to sell, deliver and install the Recorders, provide training and support
services, and the City agrees to purchase the Recorders and services as identified in Exhibit A.
1.2 Delivery. Gacela shall obtain and sell and deliver the Recorders at the City of
Vernon, F.O.B. Job Site. Gacela is responsible for all costs of full freight, including insurance,
to Job Site. Risk ofloss shall pass to the City upon delivery F.O.B. Job Site.
It is understood and agreed that in the event of a conflict between the Proposal and this
Agreement, the terms of the Agreement shall prevail.
2.0 Time of Performance
The performance of Gacela shall commence upon the signing of the Agreement by both
parties and shall end when Gacela has completed the work according to the Proposal, unless the
Agreement is otherwise terminated or extended upon written agreement of both parties to this
Agreement. Delivery is expected to be completed no later than forty-five (45) days from the
issuance of City's purchase order. Completion of the services to be performed by the Gacela is
expected to be no later than sixty (60) days.
3.0 Contract Price
As full and complete compensation to Gacela for the timely, proper and complete
performance of all obligations relating to this Agreement, City shall pay Gacela, subject to the
additions and deletions expressly provided for in this Agreement, the Contract Price set forth in
Exhibit B.
4.0 Notices
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.
Fax:
Telephone:
520-382-0661
888-879-7704
City - City of Vernon, California
Attn: Bruce V. Malkenhorst, City
Administrator/City Clerk
4305 Santa Fe Avenue
Vernon, California 90058
Fax: 323-826-1438
Telephone: 323-583-8811 ext 260
Gacela Group
Attn: Laird McIntyre, President
4585 S. Palo Verde Rd., Ste. 413
Tucson, AZ 85714
5.0 Law and Arbitration
This Agreement shall be governed by the laws of the State of California. The parties.
agree that any and all disputes arising out of or in relation to this Agreement, including without
2
...
"
limitation any action in tort, shall be resolved exclusively, finally and conclusively by arbitration
in Los Angeles County, California under the auspices of and pursuant to the rules of the Judicial
Arbitration & Mediation Services Inc. (JAMS). Each party will select an arbitrator. Those two
arbitrators will then select a third. The three member panel will make the final decision. All
decisions of the arbitrators shall be in writing, and the arbitrators shall provide written reasons
for their decision. The arbitration decision shall be final and binding on the parties.
Notwithstanding the foregoing, the parties shall be permitted to access the court system to
enforce any arbitration award or to obtain injunctive relief. The exclusive jurisdiction and venue
for any such action shall be the Superior Court of California, Los Angeles County. Any and all
contracts between Gacela and any subcontractor shall include the same arbitration clause.
6.0 Entire Agreement
This Agreement shall be comprised of these signed business terms (Business Terms),
together with Exhibit A - The Proposal; Exhibit B - Compensation and Payment; Exhibit C -
Insurance; Exhibit D - General Provisions; and Exhibit E - Change Orders, which are all
attached. In the event of conflict between this Agreement and any of the exhibits, this
Agreement shall prevail. In the event of conflict between exhibits, the exhibits shall be
prioritized in the following order: Exhibit D first, then Exhibits C, B, A and E. This agreement is
the entire agreement of the parties, and supersedes all prior written and/or verbal
communications, proposals, notices of award, negotiations, understandings and agreements,
whether written or verbal, between the parties with respect to the subject matter dealt with in this
Agreement. Gacela expressly waives all claims for compensation based up0c[9uantum ~~!iC' 11d"~1.L ,t"'"
. implied contract or oral contract. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, verbally or otherwise, have been made by
any party, or anyone acting on behalf of any party, which are not embodied 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
Gacela and a corporate officer of City, or in a written change order. 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.
III
III
III
III
III
III
III
III
3
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by and through their authorized officers on the date, month and year first written above.
Gacela Group
CityofVemon
Name:~~ L'M ~
Title: y~ (?AjA:U."L.....-t- m-T-
~
Date: c:; ~ 6>5
ff~~ ·
Date:
b-/tf-oo
Name:
Title:
Date:
ATTEST:
L~~
Bruce V. Malkenhorst, City Clerk
APPROVED AS TO FORM:
c~
Eric T. Frosch, ity Attothey
4
'*' W 'M.. .. ~. ., b . , It. <0 ... fa .. .'
4585 S. Palo Verde Hd., Suite 413. Tucson, AZ 85714, 888-879-7704 520.382.0661 fax
Audioworxs System Proposal (22 February 2005) - OM2200/4oo0
Quantity Part # Description Unit Price Price
1 AW2DP Audioworxs Server - Not ReQuired
1 002021004 Audioworxs System OP 10 $1,295 $1,295.00
(Includes10 Author and 10 Trans/Admin
licenses)
3 002404304 User License (one required per $299 $897.00
AdminlTrans user)
1 002404008 100 Bulk Author Licenses (one $895 $895.00
required for each author)
7 Olympus OM 2200 recorder Includes $325 $2,275.00
128MB memory (23-44) hrs recording,
remote control microDhone
23 Olympus OS 4000 recorder Includes $389 $8,947.00
32MB memory (5-11) hrs recording,
with download cradle and recharge
batteries
30 Olympus OS 4000 recorder Includes $349 $10,470.00
32MB memory (5-11) hrs recording.
Download cable onlv, no recharoe batt.
1 003001039 File Transfer Assistant - moves voice $1,495 $1,495.00
files from PC to the server
007001701 Transcribe Kit Includes (USB Foot $150
007001702 Pedal & Head Set)- Not Required
alreadv have a kit
Total $26,274.00
1 yr Year Audioworxs SOftware Support & $1,020
Enhancement Program Provides 5
days X 8 hours remote diagnostic
support (includes all program patches
and uodates) .
3 Dav Installation and Training $990 $2,970
Grand Total for Audioworxs System $30,264.00
The above installation and training charges are an only an estimate. Any additional hours, beyond the estimate, will be billed at
the hourly rate of $90/hour. Please note that although we make every effort to anticipate installation problems. due to the
variety of PC's being used and their unique configurations and/or internal components and possible conflicts with various
software programs installed on a PC. some conflicts may still occur. All efforts will be made to worK with client personnel and
the manufacturer of the hardware and software to solve the unforeseen problem. Prices valid until 30 June 2005.
EXHIBIT B
Compensation and Pavment
1.0 Contract Price.
1.1 Not to Exceed Value
As Compensation for Gacela's delivery of the equipment and.performance of the
services in accordance with the terms and conditions of this Agreement, City shall
pay Gacela a maximum Contract Price (Contract Price) of Thirty Thousand Two
Hundred Sixty-Four Dollars and No Cents ($30,264.00) plus tax. The actual
amount will be based on the time and materials required to furnish the equipment
and perform the services, billed in accordance with Gacela's rates identified in the
Proposal attached as Exhibit A.
1.2 Entire Compensation
Except as provided below in Exhibit D, the Contract Price is full and complete
compensation, and constitutes the entire compensation due Gacela for the
equipment and services and any and all ofGacela's obligations hereunder,
regardless of difficulty, unforeseen circumstances, hours worked or equipment,
materials or personnel required. The Contract Price includes without limitation
compensation for all applicable taxes, freight, customs duties, fees, overheads,
profit, travel time to and from the Work Site and all other direct and indirect costs
incurred or to be incurred by Gacela hereunder, except as noted in Section 1.0 of
the Agreement. The Contract Price set forth above and the rates set forth in any
attachment incorporated into this exhibit are not subject to escalation for any
reason. 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 a formal,
written Change Order or amendment to this Agreement.
2.0 Compensation for Changes
The compensation due Gacela, or the credit due City, for "Changes" (as that term is
defined in Exhibit D) may not be established verbally, and shall be established in a
written change order signed by City as described in Exhibit E. 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) on a time and materials basis based on employee rates established in
Exhibit A, or (c) such lower rates as are otherwise agreed in the applicable Change Order.
Once established, the amount of the compensation due Gacela or credit due City for a
change shall not be subject to adjustment for any reason, including changes in the value
of any currency.
3.0 Invoicing and Payment
Gacela shall submit invoices acceptable to City, and City shall make payment to Gacela
in accordance with the terms set forth in Exhibit D.
B-1
Payment of the invoices shall be made after acceptance and approval by City within 30
days of receipt. Gacela shall be responsible for paying any subcontractors used in the
performance of this Agreement. Subcontractors. shall not bill the City directly.
- End of Exhibit B -
B-2
EXHIBIT C
Insurance
Gacela 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.
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 and Owner all the rights and privileges of an additional insured.
Gacela shall cause its insurers to issue 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..
Gacela shall ensure its Subcontractor (s), if any, maintain those insurance requiremenlSas
specified in this Schedule C and are endorsed as additional insured(s) on all required Gacela'
insurance coverages. Gacela 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 and, if necessary, Longshoremen and
Harbor Workers and Jones Act, including occupational illness or disease coverage in
accordance with the laws of the nation, state, territory, or province exercising jurisdiction
over the Employees. Workers Compensation and Employers Liability Insurance shall
have a minimum limit of $1,000,000 per occurrence. .
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, Collapse and Underground Liability, with a
minimum combined single limit of $1,000,000 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 Liability Insurance with limits of $2,000,000. Such evidence of insurance can
either by 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.
- End of Exhibit C -
C -1
EXHIBIT D
General Conditions
1.0 Definitions and Responsibilities
1.1 Definitions
Whenever used in the Agreement of which these General Provisions are a part,
the following terms shall mean:
a. "Agreement" shall mean that formally executed Agreement or Contract which
includes the Contract Documents to which this Exhibit D is attached. The
Agreement constitutes the entire agreement between the parties relating to its
subject matter.
b. "Gacela" shall mean Gacela Group and where applicable, its affiliated
companies, directors, officers, employees, agents and representatives.
c. "Contract Documents" shall include any inquiry, invitation to bid, or proposal
which may have, but not necessarily, preceded execution of the Agreement, the
General Provisions and all exhibits and schedules attached to the Agreement and
all plans and specifications identified in the Contract Documents.
d. "Contract Price" shall have the meaning given it in Section 3.1.
e. "City" shall mean the entity which has executed the Agreement and, where
applicable, its affiliated companies, and its officers, directors, employees,
representatives and agents.
f. "General Provisions" or "General Conditions" shall mean these General
Conditions of this Exhibit D.
g. "Equipment" shall mean the equipment identified in Exhibit A.
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 and/or Owner's
control or ownership where work hereunder is to be performed.
j. "Proprietary Information" shall mean all information, whether written or oral,
which Gacela 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
Work, except information falling into any of the following categories:
D -1
(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 Gacela' or any entity
within Gacela' control or breach of this Agreement;
(3) Information which prior to disclosure hereunder, was already in
Gacela' possession without limitation regarding disclosure to others; or
(4) Information which subsequent to disclosure hereunder, is obtained by
Gacela 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 Gacela to
agree to refrain from disclosing such information to others.
k. "Subcontractor(s)" shall mean any first or lower-tier Subcontractor(s) and its
employees, representatives, agents, Subcontractor(s) or other personnel who have
been approved in the manner required by the Agreement.
1. "Work" or "Services" shall mean the work performed by Gacela and required
to be performed from time to time by City Wlder the Agreement.
1.2 City's and Gacela's Representations
Gacela and City represents that it has read and understands the Agreement and
Contract Documents. Gacela represents it understands the Owner's regulations
concerning premises access, badges, parking, security, safety, fire, prohibited
drugs and alcohol, and smoking and other rules, and that Gacela has visited the
Premises where the Work is to be done and is familiar with the local conditions
under which it is to be done. Gacela also represents that it is experienced in
providing the equipment and 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 the Agreement.
1.3 Representatives of the Parties
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.
2.0 Scope of Work: Division of Responsibility
2.1 Description of the Work
A description of the Work is set forth in this Agreement and the attachments
thereto. City may at any time, by written change order by City's authorized
D-2
representative identified in the Agreement, make changes only to extend the work
duration and total compensation of Gacela' s work. Changes in the scope of work,
or duties and obligations, shall be authorized only by the City.
2.2 Gacela's Responsibilities
Unless otherwise specified in the Agreement, Gacela shall furnish the equipment
and perform the duties as outlined in the Agreement between the Gacela and the
City.
2.3 Work Injury
The treatment and care of injuries sustained by Gacela's employees,
Subcontractor(s), representatives or other personnel shall be and remain the
responsibility of Gacela. City's and/or Owner's first aid facilities, if any,
however, will be made available to Gacela's employees in emergency cases which
are the direct result of accidents occurring on the Premises. City shall incur no
liability for, and Gacela hereby agrees to indemnify Owner against, any causes of
action, claim, liability or costs, including attorneys' fees, arising in whole or part
out of the furnishing of such first aid facilities or assistance to Gacela' s
employees, Subcontractor(s), representatives or other personnel, or out of the
failure to furnish such facilities or assistance.
3.0 Compensation and Payment
3.1 Contract Price
The compensation set forth or provided for in the Agreement is the Contract
Price. Whether it expressly provides for the reimbursement of costs incurred by
Gacela or simply for the payment of a lump sum of money, it is intended to be the
full and complete payment for satisfactory delivery of the equipment and
completion of the Work and, unless otherwise stated, to cover all costs whether
for materials, equipment, tools, labor, services, freight and taxes and all overhead,
rentals and profit or fee, if any.
3.2 Reimbursables and Other Expenses
Expenses may only be billed if advance written approval has been obtained from
the City Administrator.
3.3 Terms of Payment
Gacela shall be entitled to receive payment for materials on delivery and the
balance due at the completion of Work at each fire station. Gacela shall submit
progress payment requests, prepared in accordance with City requirements, upon
completion of the Work. City will make payment to Gacela within thirty (30)
days after acceptance and approval of the invoice received from Gacela.
1//
D-3
3.4 Records, Inspection and Audit
During the course of the equipment being furnished and the Work being
performed, Gacela and any of its Subcontractor(s), shall maintain and retain, not
less than three years after completion thereof, complete and accurate records of
the Gacela's costs which are chargeable to City under this Agreement. City or its
designated, authorized representatives, shall have the right during this three year
period, upon written reasonable notice, to inspect and audit those records. Such
records to be maintained and retained by the Gacela shall include: (a) payroll
record accounting for the total time distribution of the Gacela's employees
working full or part time on the Work (to permit tracing to payrolls and related
tax returns) as well as canceled checks or signed receipts for payroll payments in
cash; (b) invoices for purchases, receiving and issuing documents, and all the
other unit-inventory records for the Gacela'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.
3.5 Corporate Conduct
Gacela, its employees, agents or representatives shall not offer or give to an
officer, official, or employee of City or Owner, gifts, entertainment, payments,
loans or other gratuities to influence the award of a contract or obtain favorable
treatment under a contract.
4.0 Termination of Contract
4.1 Non-Default Termination
City, at its sole discretion, may terminate this Contract upon fifteen (15) days
written Notice to Gacela 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.
4.2 Termination Payment
In the event of any such termination, in full and complete settlement for the
equipment furnished and termination of the Work, City shall pay Gacela for the
equipment and services performed prior to the date of delivery of the termination
notice, plus compensation for (i) necessary equipment fufnished and work
performed during the notice period and authorized in the termination notice, and
. (ii) all costs reasonably and necessarily incurred by Gacela directly attributable to
termination which could not reasonably have been avoided and for which Gacela
is not otherwise compensated that are incurred through the date of the termination
and in effectuating the termination (the ''Termination Expenses"). Termination
Expenses shall not include lost profits, lost opportunities, consequential damages,
or the like. In no event shall total payment exceed the Contract Price.
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4.3 Loss of Profits
In the event of any termination of this Contract or reduction in equipment or
scope of the Work, Gacela shall not be entitled to damages for loss of profits for
the unexecuted portion of the equipment and Work or. any other damages because
of such termination or reduction.
5.0 General provisions
5.1 Independent Contractor
Gacela shall be an independent contractor with respect to all the services to be
performed hereunder and shall have responsibility for and control over the details
and means for performing the Work. Neither Gacela nor any of those employed
in furnishing such services shall be deemed the agents, representatives, employees
or servants of City. Gacela shall have complete and sole control over its
employees, the details of the services and the methods by which the services are
accomplished, it being understood that City is inte~sted only in the results to be
obtained by Gacela.
5.2 Insurance
Gacela agrees to provide insurance in the amounts and forms specified in Exhibit
C, which is attached hereto and incorporated by reference. Gacela sh~llsubmit 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. Gacela 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.
Gacela 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 Gacela employs
subcontractors as part of the services rendered, Gacela' protective coverage is
required. Gacela may include all subcontractors as insureds.under its own policy
or shall furnish separate insurance for each subcontractor, meeting the
requirements set forth herein.
5.3 Standard of Care
Gacela agrees that all services provided will be conducted by the principal and
competent staff members, if any,under the supervision of the principal, and that
services will be performed and rendered diligently. Gacela represents that it has,
or shall secure, at its own expense, all personnel required to perform Gacela's
services under this Agreement, but at all times shall be responsible for the
services of such personnel.. Gacela may not employ any subcontractor(s) without
the prior written approval of the City.
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5.4 Indemnification
Gacela's Indemnity. To the fullest extent permitted by law, Gacela shall defend,
indemnify and hold harmless City and its elected officials, officers, agents and
employees from all claims, suits, actions, demands, damages, liabilities, expenses,
judgments, settlements and penalties, losses, fines, and all costs and expenses
incurred in connection therewith, including reasonable attorneys' fees and all
costs of defense, arising out of or attributable to the negligent or wrongful acts of
Gacela 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 ternis ofthis indemnity shall survive the
termination of this Agreement. The obligations in this Paragraph are in addition
to Gacela' duty to provide insurance and shall not be limited by any limitation on
the amount or type of insurance coverage carried by Gacela.
Indemnity Process. The City shall notify Gacela in writing of any suits, claims or
demands covered by this indemnity. Promptly after receipt of such notice, Gacela
shall assume the defense of such claim with counsel reasonably satisfaCtory to
City. If Gacela 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 Gacela 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 Gacela.
Notwithstanding the above, if the City in its sole discretion so elects, City may
also participate in the defense of such actions by employing counsel at its
expense, without waiving the City's obligations to indemnify or defend. Gacela
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.
5.5 Treatment of Confidential and Proprietary Information
a. For ten years after the effective date of this Agreement, Gacela 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
Gacela who require it in performance of the Work and except to such other third
persons as City may otherwise authorize in writing. If disclosure to such an
employee or other third person is so authorized, Gacela 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 General Condition.
b. Gacela shall take reasonable precautions to safeguard any documents
containing Proprietary Information which City may supply to Gacela hereunder.
Gacela may copy, in whole or part, such documents to the extent necessary for the
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performance of the Work and Gacela shall return to City upon the completion of
the Work or request by City all such documents and copies.
c. Except as expressly permitted by prior written consent of the City, Gacela
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, without the express prior
written consent of an authorized representative of the City. Gacela 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 Gacela has delivered all equipment and performed all
Work to be performed pursuant to this Agreement. Gacela hereby agrees that
such Confidential Information and any documents provided may be used by
Gacela and/or its subcontractors only as authorized by the City. Gacela shall
include a provision in its agreements with subcontractors that binds the
subcontractors to this non-disclosure requirement.
5.6 Compliance with City's and Owner's Regulations
Gacela shall observe, and shall cause its Subcontractor(s) and the employees of
each of them to observe, all of City's and Owner's regulations as they may be
revised from time to time concerning the safety and security of persons and
property, housekeeping and Premises or plant work hours.
5.7 Compliance with Authority
Gacela 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. Gacela shall not discriminate against any employee or any
applicant for employment for reasons of race, color, creed, sex, age or national
ongm.
Gacela 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 measure by the wages and salaries of persons employed by Gacela.
Gacela shall indemnify City and Owner against, and hold City and Owner
harmless from, any liability or loss Including liability or loss from fines or
penalties arising out of Gacela' failure to perform the obligations imposed upon it
by this section.
5.8 Assignments and Subcontractors
Gacela'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
discretion, be void. Consent by City shall not relieve Gacela of responsibility for
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performance of Gacela' obligations hereunder. City may assign all or any part of
this Agreement at any time effective immediately upon written notification to
Gacela.
5.9 Waiver
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 asa waiver of
any breach or default or of such right.
5.10 Applicable Law
This Agreement shall be governed by and construed under the laws of the State of
California.
5.11 Captions
The captions used in this Agreement are for convenience only and shall in no way
defme, limit or describe the scope or intent of this Agreement or any part thereof.
5.12 Notices
All notices required or permitted hereunder shall be in writing and shall be
delivered to the entity or person identified in the Contract Documents under
Notices. Notice sent by properly addressed mail, certified or registered with
return receipt requested and postage prepaid, shall be effective three days after
deposit in the mail or when received, whichever is earlier. Notice sent by
facsimile, telegraph, telex or cable and confirmed by copy thereof sent by
registered or certified mail shall be effective upon the date of such facsimile,
telegraph, telex or cable. Notices sent in any other manner shall be effective only
if and when received.
5.13 Entire Agreement
The Agreement, and the attached Exhibits, constitute the entire Agreement by the
parties and. it may not be altered, amended or changed without a duly executed
document by all parties.
5.14 Attorneys' Fees
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.
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'. .
5.15 Changes in the Work
City may make "Changes" by increasing, reducing or deviating from the
requirements of the equipment or scope of Work. A form of Change Order is set
forth in Exhibit E attached hereto and incorporated by reference.
5.16 Forum
Any dispute related to this Agreement shall be adjudicated in a state court serving
the County of Los Angeles, California.
5.17 Force Majeure
Neither party shall be considered to be 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, lightening, epidemic, war, riot, civil disturbance or disobedience, federal,
state, or municipal action, statute, ordinance, or regulation, embargoes of the
United States Government or any other government,. which by exercise of due
diligence such party could not reasonably have been expected to avoid and by
exercise of due diligence has been unable to overcome. Either party rendered
unable to fulfill any of its obligations under this 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.
- End of Exhibit D -
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.i.,&;: ....
EXHIBIT E
Form Chanee Order
CHANGE
Contract Number:
Change Number:
The requirements of the above designated Agreement are changed as follows:
City and Gacela agree that Gacela's compensation shall be adjusted as follows:
City and Gacela agree that Gacela'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.
Gacela (Gacela Group)
City (City of V ernon, California)
By
By
Date
Date
E - I
. .~. ....
, .
INSTRUCTIONS TO GACELA
Contract Number:
Instruction to Gacela Number:
Date:
Specific Instructions to Gacela:
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 ofGacela, 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, Gacela 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 Gacela 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
(Gacela shall, within 10 days of the receipt of these instructions, furnish City a statement of its
proposal for adjustment in contract compensation occasioned hereby. Gacela 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 Gacela fail to agree on
the classification of these instructions or resulting adjustments in contract compensation, if any,
refer to the Changes Sections ofthe Agreement.
City Representative
Date
Please acknowledge receipt of this instruction by returning one copy signed in the space
provided below. Gacela's signature hereon does not indicate his acceptance of the classification
assigned hereto by City.
Gacela's Representative
Date
- End of Exhibit E -
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