Resolution No. 2011-045RESOLUTION NO. 2011-45
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
AN AGREEMENT WITH N R G SYSTEMS, INC. FOR THE
PURCHASE OF EQUIPMENT FOR EIGHT METEOROLOGICAL
TOWERS
WHEREAS, the City of Vernon ("City") is a chartered
municipal corporation of the State of California that owns and
operates a system for the generation, purchase, transmission,
distribution and sale of electric capacity and energy; and
WHEREAS, the City desires to purchase eight meteorological
towers (the "Equipment") to measure and record the wind potential in
connection with the Kern County wind energy project in the Tehachapi
area; and
WHEREAS, the Director of Light & Power has determined that
N R G Systems, Inc. ("NRG") is qualified and capable of providing the
Equipment; and
WHEREAS, by memo dated March 24, 2011, the_Director of Light
& Power recommends the City enter into an agreement setting forth the
terms and conditions under which NRG will provide the Equipment (the
"Agreement"); and
WHEREAS, the City Council of the City of Vernon has
determined that, pursuant to the provisions of subsection (b)(1) of
Section 2.27 of the Vernon City Code, it is in the public interest and
necessity to enter into an agreement with NRG to provide the.
specialized Equipment required for the Project.
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 does
hereby find and determine that the recitals contained hereinabove are
true and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the Agreement with N R G Systems, Inc. for the purchase of
the Equipment, in substantially the same form attached hereto as
Exhibit A.
SECTION 3: The City Council of the City of Vernon hereby.
authorizes the Mayor or Mayor Pro-Tem to execute the Agreement for,
and on behalf of, the City of Vernon and the City Clerk, or Deputy
City Clerk, is hereby authorized to attest thereto.
SECTION 4: The City Council of the City of Vernon hereby
authorizes the City Administrator, or his designee, to take whatever
action is deemed necessary or desirable for the purpose of
implementing and carrying out the purposes of this Resolution and the
transactions herein approved or authorized.
SECTION 5: The City Council of the City of Vernon hereby
directs the City Clerk, or the City Clerk's designee, to send a fully
executed Agreement to NRG.
2
SECTION 6: The City.Clerk of the City of Vernon shall
certify to the passage, approval and adoption of this resolution, and
the City Clerk of the City of Vernon shall cause this resolution and
the City Clerks certification to be entered in the File of
Resolutions of the Council of this City.
APPROVED AND ADOPTED this 5th day of April, 2011.
Name: Hilario Gonzales
Title: Mayor
_3_
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I, Willard G. Yamaguchi, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution
No. 2011-45, was duly passed, approved and adopted by the City Council
of the City of Vernon at a regular meeting of the City Council duly
held on Tuesday, April 5, 2011, and thereafter was duly signed by the
Mayor or Mayor Pro -Teem of the City of Vernon.
Executed this day of April, 2011, at Vernon, California.
City Clerk
(SEAL)
4
EXHIBIT A
AGREEMENT BETWEEN THE CITY OF VERNON AND N R G SYSTEMS, INC.
FOR THE PURCHASE OF EQUIPMENT FOR EIGHT (6) METEOROLOGICAL TOWERS
Vendor:
Notice Information - Vendor:
Notice Information - City:
Delivery Date:
COVER PAGE
N R G SYSTEMS; INC.
City of Vernon
4305 Santa Fe Avenge
Vernon; California` 9.0058
Attention: Javier Valdez, Department of Light &
Power
Telephone: 323-583-8811 Ext, 825
Facsimile: $23-826-1438
Two Weeks after written notice from the City
regarding location of jobsite.
Jobsite: To be determined by City. City will notify Vendor in
writing of the exact delivery address after a
separate agreement for installation of the
Equipment has been executed:
Compensation: $13;4,5$2.00 US Dollars and more particularly
described in Exhibit B.
Records Retention 3 Years
City of Vernon
Equipment Purchase' Agreement
March 1 20i1
AGREEMENT BETWEEN THE CITY OF VERNON AND N R G SYSTEMS, INC.
FOR. THE PURCHASE OF EQUIPMENT FOR EIGHT (8)'METEOROLOGICAL TOWERS
This equipment purchase agreement ("'Agreement") is made as of
2011 (the "Effective Date"), by and between the City of Vernon, a
California charter city and municipal corporation (the "City"), and N. R G Systems, Inc., a
Vermont corporation (the "Vendor,"' collectively with the City, the "Parties"),
RECITALS
The City desires to purchase the Equipment. listed in Exhibit:A from the Vendor.
The Vendor has advised the City that it is qualified and capable of providing the
Equipment described in Exhibit A, and is willing to do so on the terms and conditions set forth
below.
NOW, THEREFORET, the Parties agree as follows:
Section 1. Definition of Terms
1.01 Whenever used in this Agreement, the terms appearing on the Cover Page shall
have the definitions listed there, and the following terms shall have the following definitions:
(a)°Applicable Laws'' shall mean any and all laws, regulations, rules, orders, directives,
judgments, decrees, permits, approvals or other applicable requirements of any governmental
entity or.agency having jurisdiction that are applicable to any aspect of this Agreement that are
in force on the Effective Date and as they may be enacted, issued or amended. during the Term.
(b)"Confidential Information" shad mean all information, whether written or oral, which
Vendor acquires from, through or on behalf of City, directly or indirectly; or which arises out of
this Agreement, concerning performance of this Agreement or proprietary processes involved
performing under this, Agreement, 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 performance of this Agreement,
except information falling into any of the following categories:
1. information which, at the time of disclosure hereunder, is in the public'domain
1. Information which, after disclosure hereunder, enters the public domain, except
where such entry is the result of Vendor's or any entity within Vendor's control
breach of this Agreement
3. Information which, prior to disclosure hereunder, was already in Vendor's
possession without limitation regarding disclosure to others; or
4. Information which, subsequent to disclosure hereunder, is obtained by Vendor
from a third party who is lawfully in possession of such information and not
City of Vernon
Equipment Purchase Agreement
March 1, 201�1
subject to a contractual or fiduciary relationship to City with respect to said
information and who does not require Vendor to.agree to refrain from disclosing
such information to others;
(c)"Equipment" shall mean the equipment, including all materials, that is listed in Exhibit
A,and incorporated herein by this reference.
td)uPremises" shall mean any land or building under City's control or ownership to which
Vendor and its agentsand employees are given access in the performance of this Agreement,
and is inclusive of the specific Jobsite where the Equipment is to be delivered..
Section 2. Purchase of Equipment
2.01 Vendor agrees to obtain, sell,, and deliver the >Equipment and the City agrees to
purchase the Equipment.
Section 3. Delivery of equipment
101 Vendor shall deliver.the Equipment to the Jobsite. Vendor is responsible for all
costs of full freight, including ;insurance, to Jobsite. Vendor shall bear all risk of loss until
delivery of the Equipment to the Jobsite.
Section 4. Time of Performahce,
4.01 Vendor shall deliver'the Equipment on the Delivery Date, if a single date is
provided, or within the time period :specified as the Delivery Date, if a range of dates is provided.
4.02 Time is of the essence under this Agreement.
Section`5. Compensation
501 In consideration for the, Equipment to be provided by Vendor, City agrees to pay
Vendor a sum set forth on the Cover Page_ and Vendor agrees to accept in full satisfaction for
such Equipment, the sum setforth on the Cover Page.
Entire Compensation
5:02 The Compensation is full and complete compensation, and constitutes the entire
compensation due Vendor for the Equipment and any and all of Vendor's obligations hereunder,
regardless of difficulty unforeseen circumstances, hours worked or equipment, materials or
personnel required. The Compensation includes without limitation, -customs duties, delivery;
insurance, tax and all other direct and indirect costs and expenses incurred or to be incurred by
Vendor. T.he Compensationis not subject to escalation for any reason except as expressly set
forth in this Agreement. No adjustments in the Compensation shall be made as a result of
changes in the value of any currency. The Compensation shall only be adjusted by formal,
Written amendment by both Parties to this. Agreement:
Payment of Compensation
3
City of Vernon
Equipment Purchase` Agreement
March 1, 2011
5 03 City shall make payment to Vendor within thirty (30) days of acceptance of the
Equipment and .approval of an invoice prepared in accordance with City requirements,
Section'6, Indemnification
6.01 To the fullest extent permitted by law, Vendor $hall defend, indemnify and hold
harmless City and its elected officials, officers, agents, employees, and valuriteers from any and
all;clairns' suits, actions, demands, damages,, liabilities, expenses,,'judgmen s, se#tlemenis,
penalties;, losses, fines; and all costs and expense's incurred in connection therewith, including
without limitation, interest, reasonable attorhey's;fees and all costs of defense, arising out of;
resulting from, connected with or attributable to the intentional, reckless, negligent, or otherwise
wrongful acts, errors, -or omissions of Vendor or its employees or agents in the performance of
this Agreement, including without limitation: (1) a breach by Vendor of any representation or
provision contained in this Agreement, (2) any claim that,any software program or other product
used or furnished by Vendor in the. performance of this Agreement constitutes an infringement
of any United States patent or copyright, (3) fines or penalties arising out of Vendor's failure to
perform the obligations imposed upon it by. any provision in this Agreement, or (4) Equipment
found to be defective or not in accordance with this Agreement.
THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE EXPIRATION OR EARLIER
TERMINATION OF THIS AGREEMENT.
Indemnity Process
6.02 The City shall notify Vendor in writing of any suits, claims or demands covered by
any indemnity contained in this Agreement. Promptly after receipt of such notice, Vendor shall
assume the defense of such claim with counsel reasonably satisfactory to City. If Vendor 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 director 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 Vendor 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 Vendor. Notwithstanding the above, if the City in its We
discretion 'so elects, City may also participate in the defense of such- actions by,employing
counsel at.its expense, without waiuing the`Vendor's obligations to indemnify or defend. Vendor
shall not settle .or compromise any claim or consent to the entry of any judgment without the
prior written consent of`the City or an unconditional release of all liability by each claimant or
plaintiff to the City.
Section 7. Representations of Vendor'
7.01 Vendor represents that it has read and understands this Agreement.
7.02 Vendor represents that it employsor has available for employment in sufficient
numbers, at its own expense, all unskilled, skilled, administrative, supervisory,. professional and
managerial or other personnel required to obtain, sell, and deliver the Equipment as required by
this Agreement and at all times shall be responsible for the actions of such personnel.
G.
City: of Vernon
Equipment Purchase Agreement
March 1, 2011
7:03 Vendor declares and states that it has complied with and Will continue to comply
with all federal, state, and local laws regarding business permits and licenses thatmaybe
required under this Agreement:
7:.04. Vendorrepresents that it presently" has no interest and shall not have any
interest, direct or indirect, which would conflict in any, manner with the performance of this
Agreement. No person having any such interest shall be employed by or be associated with
Vendor.
7.05 The person or persons executing this Agreement on behalf of Vendor warrant.
>resent that they have the authority to execute this Agreement,on behalf of Vendor and
ie authority to bind Vendor to the performance of its obligations hereunder.
Section 8. No Assignment or Subcantractina
8.01 This Agreement may not be assigned in whole or in part by Vendor, nor may
Vendor delegate or subcontract its duties in whole or in part; without the prior written consent of
City: Any assignment or delegation or subcontract in violation of this Section shall, at City's sole
discretlon, be void and of no effect. Consent by City shall not relieve Vendor of responsibility for
performance of Vendor's obligations hereunder. Vendor is fully responsible to City for the
performance of any and all subcontractors.
Section 9. Treatment of Confidential Information
9.01 Except as otherwise required by law, for ten (10) years after the effective date of
this Agreement, Vendor shall (1) refrain from using any Confidential Information except in
connection with performance of this Agreement, (2) refrain from disclosing Confidential
Information to any third party other than to employees of Vendor who require it in performance
of this Agreement and:sueh other third persons as City may authorize in writing. If disclosure to
a third person is so authorized, Vendor shall enter into with said person a confidentiality
agreement containing provisions with respect to use and disclosure of Confidential Information
substantially the same as those contained in this Agreement.
9:02 Vendor shall take reasonable precautions to. safeguard any documents
containing Confidential Information which City may supply to Vendor hereunder. Vendor may
copy, in whole or part, such documents to the extent necessary for the performance of this
Agreement, and Vendor shall return to City upon the completion of performance of this
Agreement.or request by City all such documents and copies.
9.03 Except as
its subcontractors shall n
whether orally or by any
person or entity. Vendor
Information and all copie
any event not later than t
Agreement. Vendor herE
provided may be used by
essly permitted by prior written consent of the .City, Vendor and/or
close;; permit the disclosure of, release; disseminate; or transfer,
means, any part of such Confidential Information to any other
made of such items to the
e date that Vendor has del
ry agrees that such Confid+
in
e Equipment pursuant to
subcontractors only as
5
.but in
prized by the City.
at binds the:
City of Vernon
Equipment Purcha§e'Agreement
March 1, 2011
9'.04 All reports, plans, data,, studies, maps, drawings, models, photographs;
documents and other writings prepared by and for Vendor, its officers, employees; agents and
subcontractors in the course;of implementing this Agreement, with the exception of working
notes; niter fal documents and Confidential Information provided by businesses located in. City,
shall be delivered to the City as they are generated; however, Vendor may take land retain
copies of said documents and materials that are not Confidential Information, as desired.
9.05 All reports, information, data and exhibits prepared or assembled by'Vendor in
connection with.the performance of this Agreement are; confidential until released by the 'City to
the public and Vendor agrees that such documents shall not be available to, any individual or
organization without the written consent of the City prior to such release.
9.06 No reports, maps, or other documents produced in whole or in part under this
Agreement shall be the subject of an opplication for copyright by or on behalf of Vendor.
Section 10. Compliancewith Authority
10.01 Vendor shall Comply with all Applicable Laws, including without limitation, the Fair
Labor Standards Act, the Occupational Safiety and Health Act and all those Applicable Laws
relating in anyway to 'employment practices and protection of the environment. Vendor shall
not discririminate against any employee or any applicant for employment for reasons of race,
color, creed, religion, sex, sexual preference, age, or national origin.
10.02 Vendor 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 Vendor:
Section 11. Warranties,
11.01 Vendor shall obtain for the benefit of the City and assign to the City all
manufacturers' warranties for the Equipment. Vendor shall assemble and deliver to the City
complete copies of all warranties, guarantees; and operating and maintenance data and all
other documentation from all manufacturers pursuant to this Agreement. Vendor shall assist the
City in the enforcement of all such warranties;.
1 t.02 Vendor warrants that title to Equipment will pass to the City upon delivery at the
Jobsite, 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.
11.03 Vendor warrants that all Equipment will be FREE FROM DEFECTS.IN
MATERIALS AND WORKMANSHIP, COMPLY WITH THE SPECIFICATIONS PROVIDED BY
THE MANUFACTURERS, BE OF GOOD QUALITY AND MERCHANTABILITY, FIT FOR
THEIR INTENDED PURPOSES, AND CONFORM TO ALL APPLICABLE OOVERNMENTAL
REGULATIONS, STATUTES, AND ORDINANCES; The Vendor's warranty shall last fora'
period, _herein referred to as the "Warranty Period," of (a) one year from the date the Equipment
is successfully commissioned or (b) .such longer period of time as may be prescribed by law or
by'the'terms of the applicable manufacturers' warranty. Any Equipment not conforming to these;
requirements, including substitutions not approved in writing by City, may be considered
6'
City of Vernon
Equipment Purchase Agreement
March 1;, 2011
defective. In the event that the test results obtained by'either Vendor or the City reveals that
any portion of the Equiprnent:does not rneet.the City's specifications or the City identifies any
defects in or damage to the Equipment, Vendor shah 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 Vendor, and obtaining another vendor to provide. the. Equipment, Vendor 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 Vendor:
11.04 VENDOR, AT ITS COST, SHALL PROMPTLY REPAIR OR REPLACE OR
CAUSE THE MANUFACTURER TO REPAIR OR REPLACE EQUIPMENT REJECTED BY THE
CITY AS. DEFECTIVE=OR A$ FAILING, TO CONFORM TO THIS AGREEMENT IF REPORTED
TO VENDOR WITHIN THE WARRANTY PERIOD. The City`shafl give notice promptly after
discovery of a defective condition. A new Warranty Period shall commence for replaced
Equipment on the date the replacement was made. Vendor's obligations hereunder shall
include the obligation to repair any damage to. other property caused by the defective
Equipment or the repair thereof.
11.05 Vendor.shall provide any software upgrades that become available during the
Warranty Period and that are supportable. by the Equipment purchased under this Agreement,
at no additional charge. to the City.
11.06 The foregoing warranties shall survive any termination of this Agreement and
delivery of the Equipment, and are in addition to, and not in lieu of, any and all other liability
imposed upon Vendor by lawwith respect to Vendor's duties, obligations and performance
hereunder.
Section.12. Termination of Agreement
Non -Default Termination
12.01 City, at its, sole discretion, may terminate this Agreement upon three (3) days
written notice to Vendor 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 three (3) day period after such notice, it sent, the parties shall, continue to act toward
each other in good faith. In this instance, Vendor agrees that City shall be liable only for costs
of labor actually expended and materials actually used. In the event of any termination -of this
Agreement, Vendor shall not be entitled to damages for loss of profits for the unexecuted
portion of theAgreement,or any other damages because of such termination or reduction,
Termination on Occurrence of Stated Events
12.02 This Agreement will;terminate automatically on the occurrence of any oflhe
following events:
A. Bankruptcy or insolvency, of either party; or
City.of Vernon
Equipment Purchase Agreement
Match 1, 2011
Sale of the Vendor; or
C, Assignment of this Agreement by Vendor without City's written consent.
Termination for Default
12.03 ,If Vendor defaults in the performance of this Agreement ormaterially breaches
any of its provisions, City may immediately terminate this Agreement by giving written
notification to Vendor indicating the effective date of such termination. Termination will take
effect immediateiy upon the date specified in the notification.
13.01 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 whether of the same or other covenant or
condition, 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. No waiver, benefit, privilege, or service voluntarily given or performed by a
party shall give the other party any contractual rights by custom, estoppel,, or otherwise.
Notices
13.02 All notices, approvals, consents and other communications between the parties,
shall be in writing, and shall be .sent by certified mail (return receipt requested) or other delivery
service which provides: evidence of delivery using the address sot forth on the Cover Page
under"Notice Information - City" or "notice Information Vendor," as appropriate, car at such
other address as may be furnished by either party to the other in writing. Mailed notices will be
deemed communicated as of the dayof receipt.
City of Vernon
EquipmentPurchase: Agreement
March 1, 201�1
Entire Agreement of the Parties
, .03 This Agreement supersedes any and all agreements, either oral or written,
between the parties with respect to the Equipment to be provided by Vendor under this
Agreement. and contains all of the representations, covenants, and agreements between the
parities with respect to the subject matter of this Agreement. 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 amendmont.or change order, shall be valid or binding.
Exhibits; Precedence
13.04 All documents referenced as exhibits. or as: the Cover Page in this Agreement are
hereby incorporated in this Agreement. In the event of any material discrepancy between this
Agreement and any of the exhibits incorporated by reference, the provisions of this Agreement
shall prevail.
Partial Invalidity
13.05 If any provision of this Agreement is held by an arbitrator or 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.
Arbitration and Venue
13.06 Any dispute, claim or controversy arising out of or relating to this Agreement or
the breach, termination, enforcement, interpretation or validity thereof, including the
determination of the scope or applicability of this Agreement to arbitrate, shall be determined by
arbitration in Los Angeles, California. The arbitrator shall be a'retired judge. The arbitration`
shall be administered. by JAMS pursuant to its Streamlined Arbitration Rules and Procedures.
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.
Judgment on the award may entered in any court having jurisdiction pursuant to this'
Agreement. This clause shall not preclude Parties from seeking provisional remedies in, aid of
arbitration from a court'having jurisdiction pursuant to this Agreement. The exclusive jurisdiction
and rvenue under this Agreement shall be the Superior Court of California, Los Angeles County.
13.07 Allocation of Fees and Costs: The arbitrator may, in the award, allocate all or part
of the costs of the arbitration, including_ the fees of the arbitrator and the reasonable attorneys'
fees of the prevailing party,
Attorney's tees
13.08 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.
City of:Vemon
Equipment Purchase Agreement
March 1, 2011
Force Majeure
13.09 Neither party shall be' considered in default of any of its obligations underths
Agreement when a failure ofperforrnance shell be due to an uncontrollable force; The term
"uncontrollable force" shall mean 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 porty could not reasonably have been expected to avoid and by
exercise of due diligence has been una"ble to overcome. Either party rendered unable to fulfill
any of its obligations under this Agreement by reason of an uncontro'Ilable 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,
Modification
13.10 Except as may otherwise be specifically provided herein, this Agreement may be
modified or amended only by a written document executed by both Vendor and the City and
approved as to form by the City Attorney, Vendor ex'', waives all claims for compensation
based upon quantum meruit, implied contract or oral contract,
City Not Obligated to Third Parties
13,11 City shall not be obligated or liable under this Agreement to any party other than
Vendor.
Headings and Captions
13.12 The headings and 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.
Counterparts
1313 This Agreemen# maybe executed in counterpart originals, each of which: is
deemed to be an original for all purposes.
Duplicate Originals
13.14 This Agreement maybe executed in duplicate originals, each of which is deemed
to be an original for all purposes.
Reservation of Rights
13.15 City reserves the right to award similar contracts to multiple Vendors to ensure
the City has adequate services.
TO
C[tyof Vernon
Equipment Purchase Agreement
March 1, 2011
[Signatu►`es begin next page.]
11
City of Vernon
Equipment Purchase Agreement
March 1, 2011
IN WITNESS WHEREOF, the parties have executed the Agreement as of the date and
year first written above.
City:
City of Vernon
Mayor / Mayor Pro -Tern
ATTEST:
Willard G; Yamaguchi, City Clerk
APPROVED AS TO FORM
Willard G. Yamaguchi., Interim
City Attorney
Vendor:
Name: '-,
Titlecx
12
City of Vemon
Equipment Purchase Agreement
March 1, 2011
Esc>h i b it "A"
Equipment to be purchased
Equipment:
(5) 4066 TfRG-NOW System 60m XHD -r Symphonie Tall Tower Kit (Pallet)
(5) 4292 NRG-NOW System 60m XHD, Calibrated-Symphonie PLUS Logger Kit
(5) 4200 NRG-NOW System 60m XHD, Calibr-SymphonieSensor Kit, Long Booms
(5) 4721 Symphonie !Pack GPS (Indium) - WindLinx Ready w/PV
(2) 2046 NRG # BP20 Barometric Pressure Sensor
(2) 3155 Symphonie SCM Card for BP20
(2)1948_Li-Car L1200SZ, Pyranometer
(2) 3902 Boom-Pyranometer/Antenna, .52m(20.5"), Galvanized with Clamps-
(2) 3164 Symphonie SCM Card for LI-Cor L1200SZ Pyranometer
(2) 1906 NRG # 110S Temperature Sensor with Radiation shield
(2) 3153.Symphonie SCM'Card for # 110S
(2) 2430 Sensor Cable, 3C, 20Ga,,67m (219.8'), for 60m level
(3) 4291 NRG-NOW System 34m Symphonie PLUS Logger Kit
(3) 4258 NRG-NOW System 34 Meter, with anchors and ginpole
(3) 4259 NRG-NOW System 34m Sensor Kit
(3) 4721 Symphonie !Pack GPS (Iridium) - WindLinx Ready-w/PV
(1) 2000 Freight, Handling, Insurance -Domestic
EXHIBIT "B"
NRG Systems, Inc.
110 Riggs Road
Hinesburg, VT 05461 USA
Tel:802.482.2255 Fax:802.482.2272
info@nrgsystems.com
Sales Quotation
Bill To: City of Vernon
Address: 4305 Santa Fe Ave
Warehouse closed on Fridays
Vernon, CA 90058 USA
invoices@ci.vernon.ca.us
Your final invoice will be sent to the above email
address. Paper invoices are available upon reoi
Item
4066
4292
4200
4721
2046
3155
1948
3902
3154
1906
3153
2430
4291
4256
4259
4721
2000
Description
NRG-NOW System 60m XHD - Symphonie TallTower Kit
(Pallet)
NRG-NOW System 60m XHD,Calibrated-SymphoniePLUS
Logger Kit
NRG-NOW System 60m XHD,Calibr-Symphonie Sensor
Kit,Long Booms
Symphonie iPackGPS (Iridium) - WindLinx Ready w/PV
NRG #BP20 Barometric Pressure Sensor
Symphonie SCM Card for BP20
LI-Cor L1200SZ, Pyranometer
Boom-Pyranometer/Antenna, .52m(20.5"), Galvanized, with
Clamps
Symphonie SCM Card for LI-Cor L1200SZ Pyranometer
NRG #110S Temperature Sensor with Radiation Shield
Symphonie SCM Card for #1108
Sensor Cable, 3C, 20Ga, 67m (219.8'), for 60m level
NRG-NOW System 34m SymphoniePLUS Logger Kit
NRG-NOW System 34 Meter, with anchors and ginpole
NRG-NOW System 34m Sensor Kit
Symphonie iPackGPS (Iridium) - WindLinx Ready w/PV
Freight, Handling, Insurance -Domestic
Quote Number Q0024653
Date: 02/15/2011
Customer ID: 6753
Purchase Order No: Feb 2011
Salesperson: Evan G. Osler
Shipping Method: CON -WAY
Payment Terms: Prepayment'
Expiration Date 4/16/2011
Page 1 of 2
Ship To: City of Vernon
Attn. To: Dolores'Janzemis
Address: 4305 Santa Fe Ave
Warehouse closed on Fridays
Vernon, CA 90058 USA
(323) 583-881 1x234
Unit
Quantity
Unit Price
Adj. Price
($) Ext. Price ($)
Each
5
11,000.00
10,450.00
52,250.00
Each
5
1,490.00
1,415.50
7,077.50
Each
5
4,590.00
4,360.50
21,802.50
Each
5
3,450.00
3,277.50
16,387.50
Each
2
330.00
330.00
660.00
Each
2
39.00
39.00
78.00
Each
2
485.00
485.00
970.00
Each
2
95.00
95.00
190.00
Each
2
39.00
39.00
78.00
Each
2
205.00
205.00
410.00
Each
2
39.00
39.00
78.00
Each
2
144.00
144.00
288.00
Each
3
1,340.00
1,340.00
4,020.00
Each
3
4,995.00
4,995.00
14,985.00
Each
3
1,825.00
1.,825.00
5,475.00
Each
3
3,450.00
3,277.50
9,832.50
Each
1
0.00
0.00
NRG Systems, Inc
110 Riggs Road
Hinesburg, VT 05461
Phone: (802) 482-2255 Fax: (802)482-2272
Subtotal: $134,582.00
Tax: $0.00
Grand Total: $134,582.00
Currency: US Dollars only
NRG Systems, Inc
110 Riggs Road
Hinesburg, VT 05461
Phone: (802) 482-2255 Fax: (802)482-2272
OFFICE OF THE CITY CLERK
4305 Santa Fe Avenue, Vernon, California 90058
Telephone (323) 583-8811
April 6, 2011
N R G Systems, Inc.
ATTN: Paul Dawson
110 Riggs Road
P.O. Box 509
Hinesburg, VT 05461
Re: Equipment Purchase Agreement Meteorological Towers
Dear Mr. Dawson:
Transmitted herewith is a fully executed agreement as referenced above, approved by City
Council on April 5, 2011, through Resolution No. 2011-45.
If you have any questions regarding this matter, please call Carlos Fandino, at (323) 583-8811
ext. 834.
Ver ruly yours,
C
WILLARD G. Y GU I
City Clerk
WGY:dj
Enclosure
c: Carlos Fandino
Purchasing Department
Resolution No. 2011-45
Agreement No. 11-036
Exchtsivefy Industriaf
AGREEMENT BETWEEN THE CITY OF VERNON AND N R G SYSTEMS, INC.
FOR THE PURCHASE OF EQUIPMENT FOR EIGHT (8) METEOROLOGICAL TOWERS
COVER PAGE
Vendor:
N R G SYSTEMS, INC.
Notice Information - Vendor:
110 RIGGS ROAD
PO BOX 509
HINESBURG, VT 05461
Attention: Mr. Paul Dawson
Phone: 802-482-2255
Facsimile: 802-482-2272
Notice Information - City:
City of Vernon
4305 Santa Fe Avenue
Vernon, California 90058
Attention: Javier Valdez, Department of Light &
Power
Telephoner 323-583-8811 Ext. 825
Facsimile: 323-826-1438
Delivery Date:
Two Weeks after written notice from the City
regarding location of jobsite.
Jobsite:
To be determined by City. City will notify Vendor in
writing of the exact delivery address after a
separate agreement for installation of the
Equipment has been executed.
Compensation:
$134,582.00 US Dollars and more particularly
described in Exhibit B
Records Retention
3 Years
RECEIVED
MAR 3 ® 2011 J
LIGHT & POWER DEPT
City of Vernon
Equipment Purchase Agreement
March 1, 2011
AGREEMENT BETWEEN THE CITY OF VERNON AND N R G SYSTEMS, INC.
FOR THE PURCHASE OF EQUIPMENT FOR EIGHT (8) METEOROLOGICAL TOWERS
/ This equipment purchase agreement ("Agreement") is made as of
S/�_41! __ T 2011 (the "Effective Date"), by and between the City of Vernon, a
California charter city and municipal corporation (the "City"), and N R G Systems, Inc., a
Vermont corporation (the "Vendor," collectively with the City, the "Parties").
RECITALS
The City desires to purchase the Equipment listed in Exhibit A from the Vendor.
The Vendor has advised the City that it is qualified and capable of providing the
Equipment described in Exhibit A, and is willing to do so on the terms and conditions set forth
below.
NOW, THEREFORET, the Parties agree as follows:
Section 1. Definition of Terms
1.01 Whenever used in this Agreement, the terms appearing on the Cover Page shall
have the definitions listed there, and the following terms shall have the following definitions:
(a)"Applicable Laws" shall mean any and all laws, regulations, rules, orders, directives,
judgments, decrees, permits, approvals or other applicable requirements of any governmental
entity or agency having jurisdiction that are applicable to any aspect of this Agreement that are
in force on the Effective Date and as they may be enacted, issued or amended during the Term
(b)"Confidential Information" shall mean all information, whether written or oral, which
Vendor acquires from, through or on behalf of City, directly or indirectly, or which arises out of
this Agreement, concerning performance of this Agreement or proprietary processes involved
performing under this Agreement, 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 performance of this Agreement,
except information falling into any of the following categories:
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 Vendor's or any entity within Vendor's control
breach of this Agreement;
3. Information which, prior to disclosure hereunder, was already in Vendor's
possession without limitation regarding disclosure to others; or
4. Information which, subsequent to disclosure hereunder, is. obtained by Vendor
from a third party who is lawfully in possession of such information and not
2
City of Vernon
Equipment. Purchase Agreement
March 1, 2011
subject to a contractual or fiduciary relationship to City with respect to said
information and who does not require Vendor to agree to refrain from disclosing
such information to others.
(c)"Equipment" shall mean the equipment, including all materials, that is listed in Exhibit
A and incorporated herein by this reference.
(d)"Premises" shall mean any land or building under City's control or ownership to which
Vendor and its agents and employees are given access -in the performance of this Agreement,
and is inclusive of the specific Jobsite where the Equipment is to be delivered.
Section 2. Purchase of Equipment
2.01 Vendor agrees to obtain, sell, and deliver_ the Equipment and the City agrees to
purchase the Equipment.
Section 3. Delivery of Equipment
3.01 Vendor shall deliver the Equipment to the Jobsite. Vendor is responsible for all
costs of full freight, including insurance, to Jobsite. Vendor shall bear all risk of loss until
delivery of the Equipment to the Jobsite.
Section 4. Time of Performance
4.01 Vendor shall deliver the Equipment on the Delivery Date, if a single date is
provided, or within the time period specified as the Delivery Date, if a range of dates is provided.
4.02 Time is of the essence under this Agreement.
Section 5. Compensation
5.01 In cons.ideration.for the Equipment to be provided by Vendor, City agrees to pay
Vendor a sum set forth on the Cover Page and Vendor agrees to accept in full satisfaction for
such Equipment, the sum set forth on the Cover Page.
Entire Compensation
5.02 The Compensation is full and complete compensation, and constitutes the entire
compensation due Vendor for the Equipment and any and all of Vendor's obligations hereunder,
regardless of difficulty, unforeseen circumstances, hours worked or equipment, materials or
personnel required. The Compensation includes without limitation, customs duties, delivery„
insurance, tax and all other direct and indirect costs and expenses incurred or to be incurred by
Vendor. The Compensation is not subject to escalation for any reason except as expressly set
forth in this Agreement. No adjustments in the Compensation shall be made as a result of
changes in the value of any currency. The Compensation shall only be adjusted by formal,
written amendment by both Parties to this Agreement.
Payment of Compensation
3
City of Vernon
Equipment Purchase Agreement
March 1, 2011
5.03 City shall make payment to Vendor within thirty (30) days of acceptance of the
Equipment and approval of an invoice prepared in accordance with City requirements.
Section 6. Indemnification
6.01 To the fullest extent permitted by law, Vendor shall defend, indemnify and hold
harmless City and its elected officials, officers, agents, employees, and volunteers from any and
all claims, suits, actions, demands, damages, liabilities, expenses, judgments, settlements,
penalties, losses, fines, and all costs and expenses incurred in connection therewith, including
without limitation, interest, reasonable attorney's fees and all costs of defense, arising out of,
resulting from, connected with or attributable to the intentional, reckless, negligent, or otherwise
wrongful acts, errors, or omissions of Vendor or its employees or agents in the performance of
this Agreement, including without limitation: (1) a breach by Vendor of any representation or
provision contained in this Agreement, (2) any claim that any software program or other product
used or furnished by Vendor in the performance of this Agreement constitutes an infringement
of any United States patent or copyright, (3) fines or penalties arising out of Vendor's failure to
perform the obligations imposed upon it by any provision in this Agreement, or (4) Equipment
found to be defective or not in accordance with this Agreement.
THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE EXPIRATION OR EARLIER
TERMINATION OF THIS AGREEMENT.
Indemnity Process
6.02 The City shall notify Vendor in writing of any suits, claims or demands covered by
any indemnity contained in this Agreement.- Promptly after receipt of such notice, Vendor shall
assume the defense of such claim with counsel reasonably satisfactory to City. If Vendor 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 Vendor 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 Vendor. 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 Vendor's obligations to indemnify or defend. Vendor
shall not settle or compromise any claim or consent to the entry of any judgment without the
prior written consent of the City or an unconditional release of all liability by each claimant or
plaintiff to the City.
Section 7. Representations of Vendor'
7.01 Vendor represents that it has read and understands this Agreement.
. 7.02 Vendor represents that it employs or has available for employment in sufficient
numbers, at its own expense, all unskilled, skilled, administrative, supervisory, professional and
managerial or other personnel required to obtain, sell, and deliver the Equipment as required by
this Agreement and at all times shall be responsible for the actions of such personnel.
4
City of Vernon
Equipment Purchase Agreement
March 1, 2011
7.03 Vendor declares and states that it has complied with and will continue to comply
with all federal, state, and local laws regarding business permits and licenses that may be
required under this Agreement.
7.04 Vendor represents that it presently has no interest and shall not have any
interest, direct or indirect, which would conflict in any manner with the performance of this
Agreement. No person having any such interest shall be employed by or be associated with
Vendor.
7.05 The person or persons executing this Agreement on behalf of Vendor warrant
and represent that they have the authority to execute this Agreement on behalf of Vendor and
have the authority to bind Vendor to the performance of its obligations hereunder.
Section 8. No Assignment or Subcontracting
8.01 This Agreement may not be assigned in whole or in part by Vendor, nor may
Vendor delegate or subcontract its duties in whole or in part, 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 and of no effect. Consent by City shall not relieve Vendor of responsibility for
performance of Vendor's obligations hereunder. Vendor is fully responsible to City for the
performance of any and all subcontractors.
Section 9. Treatment of Confidential Information
9.01 Except as otherwise required by law, for ten (10) years after the effective date of
this Agreement, Vendor shall (1) refrain from using any Confidential Information except in
connection with performance of this Agreement, (2) refrain from disclosing Confidential
Information to any third party other than to employees of Vendor who require it in performance
of this Agreement and such other third persons as City may authorize in writing. If disclosure to
a third person is so authorized, Vendor shall enter into with said person a confidentiality
agreement containing provisions with respect to use and disclosure of Confidential Information
substantially the same as those contained in this Agreement.
9.02 Vendor shall take reasonable precautions to safeguard any documents
containing Confidential Information which City may supply to Vendor hereunder. Vendor may
copy, in whole or part, such documents to the extent necessary for the performance of this
Agreement, and Vendor shall: return to City upon the completion of performance of this
Agreement or request by City all such documents and copies.
9.03 Except as expressly permitted by prior written consent of the City, Vendor 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. Vendor 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 Vendor has delivered the Equipment pursuant to this
Agreement. Vendor hereby agrees that such Confidential Information and any documents
provided may be used by Vendor and/or its subcontractors only as authorized by the City.
Vendor shall include a provision in its agreements with subcontractors that binds the
subcontractors to this non -disclosure requirement.
5
City of Vernon
Equipment Purchase Agreement
March 1, 2011
9.04 All reports, plans, data, studies, maps, drawings, models, photographs,
documents and other writings prepared by and for Vendor, 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 delivered to the City as they are generated; however, Vendor may take and retain
copies of said documents and materials that are not Confidential Information, as desired.
9.05 All reports, information, data and exhibits prepared or assembled by Vendor in
connection with the performance of this Agreement are confidential until released by the City to
the public and Vendor agrees that such documents shall not be available to any individual or
organization without the written consent of the City prior to such release.
9.06 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 Vendor.
Section 10. Compliance with Authority
10.01 Vendor shall comply with all Applicable Laws, including without limitation, the Fair
Labor Standards Act, the Occupational Safety and Health Act and all those. Applicable Laws
relating in any way to employment practices and protection of the environment. Vendor shall
not discriminate against any employee or any applicant for employment for reasons of race,
color, creed, religion, sex, sexual preference, age or national origin.
10.02 Vendor 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 Vendor.
Section 11. Warranties
11.01 Vendor shall obtain for the benefit of the City and assign to the City all
manufacturers' warranties for the Equipment. Vendor shall assemble and deliver to the City
complete copies of all warranties, guarantees, and operating and maintenance data and all
other documentation from all manufacturers pursuant to this Agreement. Vendor shall assist the
City in the enforcement of all such warranties.
11.02 Vendor warrants that title to Equipment will pass to the City upon delivery at the
Jobsite, 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.
11.03 Vendor warrants that all Equipment will be FREE FROM DEFECTS IN
MATERIALS AND WORKMANSHIP, COMPLY WITH THE SPECIFICATIONS PROVIDED BY
THE MANUFACTURERS, BE OF GOOD QUALITY AND MERCHANTABILITY, FIT FOR
THEIR INTENDED PURPOSES, AND CONFORM TO ALL APPLICABLE GOVERNMENTAL
REGULATIONS, STATUTES, AND ORDINANCES. The Vendor's warranty shall last for a
period, herein referred to as the "Warranty Period," of (a) one year from the date the Equipment
is successfully commissioned or (b) such longer period of time as may be prescribed by law or
by the terms of the applicable manufacturers' warranty. Any Equipment not conforming to these
requirements, including substitutions not approved in writing by City, may be considered
6
City of Vernon
Equipment Purchase Agreement
March 1, 2011
defective. In the event that the test results obtained by either Vendor or the City reveals that
any portion of the Equipment does not meet the City's specifications or the City identifies any
defects in or damage to the Equipment, Vendor 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 Vendor, and obtaining another vendor to provide the Equipment. Vendor 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 Vendor.
11.04 VENDOR, AT ITS COST, SHALL PROMPTLY REPAIR OR REPLACE OR
CAUSE THE MANUFACTURER TO REPAIR OR REPLACE EQUIPMENT REJECTED BY THE
CITY AS DEFECTIVE OR AS FAILING TO CONFORM TO THIS AGREEMENT IF REPORTED
TO VENDOR WITHIN THE WARRANTY PERIOD, The City shall give notice promptly after
discovery of a defective condition. A new Warranty Period shall commence for replaced
Equipment on the date the replacement was made. Vendor's obligations hereunder shall
include the obligation to repair any damage to other property caused by the defective
Equipment or the repair thereof.
11.05 Vendor shall provide any software upgrades that become available during the
Warranty Period and that are supportable by the Equipment purchased under this Agreement,
at no additional charge to the City.
11.06 The foregoing warranties shall survive any termination of this Agreement and
delivery of the Equipment, and are in addition to, and not in lieu of, any and all other liability
imposed upon Vendor by law with respect to Vendor's duties, obligations and performance
hereunder.
Section 12. Termination of Agreement
Non -Default Termination
12.01 City, at its sole discretion, may terminate this Agreement upon three (3) days
written notice to Vendor 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 three (3) day period after such notice is sent, the parties shall continue to act toward
each other in good faith. In this instance, Vendor agrees that City shall be liable only for costs
of labor actually expended and materials actually used. In the event of any termination of this
Agreement, Vendor shall not be entitled to damages for loss of profits for the unexecuted
portion of the Agreement or any other damages because of such termination or reduction.
Termination on Occurrence of Stated Events
12.02 This Agreement will terminate automatically on the occurrence of any of the
following events:
A. Bankruptcy or insolvency of either party; or
7
City of Vernon
Equipment Purchase Agreement
March 1, 2011
B. Sale of the Vendor; or
C. Assignment of this Agreement by Vendor without City's written consent.
Termination for Default
12.03 If Vendor 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 Vendor indicating the effective date of such termination. Termination will take
effect immediately upon the date specified in the notification.
12.04 In the event of any termination of this Agreement, Vendor shall not be entitled to
damages for loss of profits for the unexecuted portion of the Agreement or any other damages
because of such termination or reduction.
Section 13. General Provisions
Waiver
13.01 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 whether of the same or other covenant or
condition; 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. No waiver, benefit, privilege, or service voluntarily given or performed by a
party shall give the other party any contractual rights by custom, estoppel, or otherwise.
Notices
13.02 All notices, approvals, consents and other communications between the parties
shall be in writing, and shall be sent by certified mail (return receipt requested) or other delivery
service which provides evidence of delivery using the address set forth on the Cover Page
under "Notice Information - City" or "Notice Information = Vendor," as appropriate, or at such
other address as may be furnished by either party to the other in writing. Mailed notices will be
deemed communicated as of the day of receipt.
8
City of Vernon
Equipment Purchase Agreement
March 1, 2011
Entire Agreement of the Parties
13.03 This Agreement supersedes any and all agreements, either oral or written,
between the parties with respect to the Equipment to be provided by Vendor under this
Agreement and contains all of the representations, covenants, and agreements between the
parties with respect to the subject matter of this Agreement. 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.
Exhibits; Precedence
13.04 All documents referenced as exhibits or as the Cover Page in this Agreement are
hereby incorporated in this Agreement. In the event of any material discrepancy between this
Agreement and any of the exhibits incorporated by reference, the provisions of this Agreement
shall prevail.
Partial Invalidity
13.05 If any provision of this Agreement is held by an arbitrator or 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.
Arbitration and Venue
13.06 Any dispute, claim or controversy arising out of or relating to this Agreement or
the breach, termination, enforcement, interpretation or validity thereof, including the
determination of the scope or applicability of this Agreement to arbitrate, shall be determined by
arbitration in Los Angeles, California. The arbitrator shall be a retired judge. The arbitration
shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures.
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.
Judgment on the award may be entered in any court having jurisdiction pursuant to this
Agreement. This clause shall not preclude Parties from seeking provisional remedies in aid of
arbitration from a court having jurisdiction pursuant to this Agreement. The exclusive jurisdiction
and venue under this Agreement shall be the Superior Court of California, Los Angeles County.
13.07 Allocation of Fees and Costs: The arbitrator may, in the award, allocate all or part
of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys'
fees of the prevailing party.
Attorney's Fees
13.08 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 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.
9
City of Vernon
Equipment Purchase Agreement
March 1, 2011
Force Majeure
13.09 Neither party shall be considered in default of 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 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.
Modification
13.10 Except as may otherwise be specifically provided herein, this Agreement maybe
modified or amended only by a written document executed by both Vendor and the City and
approved as to form by the City Attorney. Vendor expressly waives all claims for compensation
based upon quantum meruit, implied contract or oral contract.
City Not Obligated to Third Parties
13.11 City shall not be obligated or liable under this Agreement to any party other than
Vendor.
Headings and Captions
13.12 The headings and captions used in this Agreement are for convenience only and
shall in noway define, limit or describe the scope or intent of the Agreement or any part thereof.
Counterparts
13.13 This Agreement may be executed in counterpart originals, each of which is
deemed to be an original for all purposes.
Duplicate Originals
13.14 This Agreement may be executed in duplicate originals, each of which is deemed
to be an original for all purposes.
Reservation of Rights
13.15 City reserves the right to award similar contracts to multiple Vendors to ensure
the City has adequate services.
10
City of Vernon
Equipment Purchase Agreement
Mach 1, 2011
[Signatures begin next page]
11
City of Vernon
Equipment Purchase Agreement
March 1, 2011
IN WITNESS WHEREOF, the parties have executed the Agreement as of the date and
year first written above.
City: Vendor:
City of Vernon N R G Sys em ,�4n
Mayor / Mayor Pro-Tem Name:
"G.Ya
, Clerk
AP OVED AS TO FORM:
F
Wi and G. Ya a u i, Int ri
City Attorney
Name: 'DArt4s6 N
Title: 6LoQ,4,L. 6^cg-5 r-t mac j;�
12
City of Vernon
Equipment Purchase Agreement
March 1, 2011
EXHIBIT A
Exhibit "A"
Equipment to be Purchased
Equipment:
(5) 4066 NRG-NOW System 60m XHD — Symphonie Tall Tower Kit (Pallet)
(5) 4292 NRG-NOW System 60m XHD, Calibrated-Symphonie PLUS Logger Kit
(5) 4200 NRG-NOW System 60m XHD, Calibr-Symphonie Sensor Kit, Long Booms
(5) 4721 Symphonie iPack GPS (Iridium) — WindLinx Ready w/PV
(2) 2046 NRG # BP20 Barometric Pressure Sensor
(2) 3155 Symphonie SCM Card for BP20
(2) 1948 Li-Cor Li200SZ, Pyranometer
(2) 3902 Boom-Pyranometer/Antenna, .52m(20,5"), Galvanized with Clamps
(2) 3154 Symphonie SCM Card for LI-Cor L1200SZ Pyranometer
(2) 1906 NRG # 110S Temperature Sensor with Radiation shield
(2) 3153 Symphonie SCM Card for # 110S
(2) 2430 Sensor Cable, 3C, 20Ga, 67m (219.8'), for 60m level
(3) 4291 NRG-NOW System 34m Symphonie PLUS Logger Kit
(3) 4258 NRG-NOW System 34 Meter, with anchors and ginpole
(3) 4259 NRG-NOW,System 34m Sensor Kit
(3) 4721 Symphonie iPack GPS (Iridium) — WindLinx Ready w/PV
(1) 2000 Freight, Handling, Insurance -Domestic
NRG Systems, Inc.
110 Riggs Road
Hinesburg, VT 05461 USA
Tel:802.482.2255 Fax:802.482.2272
info@nrgsystems.com
Sales Quotation
Bill To: City of Vernon
Address: 4305 Santa Fe Ave
Warehouse closed on Fridays
Vernon, CA 90058 USA
invoices@ci.vernon.ca.us
Your final invoice will be sent to the above email
nddrass Pnnar invniraa ara availahla unnn rani
Quote Number Q0024653
Date: 0211612011
Customer ID: 6753
Purchase Order No: Feb 2011
Salesperson: Evan G. Osler
Shipping Method: CON -WAY
Payment Terms: Prepayment
Expiration Date 4/16/2011
Page 1 of 2
Ship To: City of Vernon
Attn. To: Dolores Janzemis
Address: 4305 Santa Fe Ave
Warehouse closed on Fridays
Vernon, CA 90058 USA
(323) 583-8811x234
Item
Description
Unit
Quantity
Unit Price
Adj. Price
($) Ext. Price ($)
4066
NRG-NOW System 60m XHD - Symphonie TallTower Kit
Each
5
11,000.00
10,450.00
52,250.00-
(Pallet)
4292
NRG-NOW System 60m XHD,Calibrated-SymphoniePLUS
Each
5
1,490.00
1,415.50
7,077.50
Logger Kit
4200
NRG-NOW System 60m XHD,Calibr-Symphonie Sensor
Each
5
4,590.00
4,360.50
21,802.50
Kit,Long Booms
4721
Symphonie iPackGPS (Iridium) - WindLinx Ready w/PV
Each
5
3,450.00
3,277.50
16,387.50
2046
NRG #BP20 Barometric Pressure Sensor
Each
2
330.00
330,00
660.00
3155
Symphonie SCM Card for BP20
Each
2
39.00
39.06
78.00
1948
LI-Cor L1200SZ, Pyranometer
Each
2
485.00
485.00
970.00
3902
Boom-Pyranometer/Antenna, .52m(20.5"), Galvanized, with
Each
2
95.00
95.00
190.00
Clamps
3154
Symphonie SCM Card for LI-Cor L1200SZ Pyranometer
Each
2
39.00
39.00
78.00
1906
NRG #110S Temperature Sensor with Radiation Shield
Each
2
205.00
205.00
410.00
3153
Symphonie SCM Card for #1105
Each
2
39.00
39.00
78.00
2430
Sensor Cable, 3C, 20Ga, 67m (219.8'), for 60m level
Each
2
144.00
144.00
288.00
4291
NRG-NOW System 34m SymphoniePLUS Logger Kit
Each
3
1,340.00
1,340.00
4,020.00
4258
NRG-NOW System 34 Meter, with anchors and ginpole
Each
3
4,995.00
4,995.00
14,985.00
4259
NRG-NOW System 34m Sensor Kit
Each
3
1,825.00
1,825.00
5,475.00
4721
Symphonie iPackGPS (Iridium) - WindLinx Ready w/PV
Each
3
3,450.00
3,277.50
9,832.50
2000
Freight, Handling, Insurance -Domestic
Each
1
0.00
0.00
NRG Systems, Inc
110 Riggs Road
Hinesburg, VT 05461
Phone: (802) 482-2255 Fax: (802)482-2272
Subtotal: $134,582.00
Tax: $0.00
Grand Total: $134,582.00
Currency: US Dollars only
NRG Systems, Inc
110 Riggs Road
Hinesburg, VT 05461
Phone: (802) 482-2255 Fax: (802)482-2272
RECEIVED
DECEIVED MAR 2 4 2011
MAR 2 4 2011 CITY ADMINISTRATION
CITY CLEK'S OFFICE
STAFF REPORT
LIGHT & POWER
DATE: March 24, 2011
TO: Honorable Mayor and City Council
FROM: Carlos Fandino Jr., Director of Light & Power
RE: NRG Systems, Inc. Purchase Agreement
The Department of Light & Power would like to engage NRG System, Inc. to provide for
the supply of eight (8) each meteorological towers for the retained wind lands in
Tehachapi. The lump sum contract is for supply and delivery of such towers to the
installation contractors warehouse located near Bakersfield, California. Erection and
commissioning services is by others. These towers are required in order to measure
and record the wind potential of the City owned lands. The data will be evaluated by V
Bar, the City wind consultant, for determination of land output capacity. The lump sum
cost is $134,582.00.
The details of the services to be provided by NRG Systems, Inc. are the following:
1 Supply eight (8) each meteorological towers and equipment per the attached
sales quotation;
3. Commissioning of the eight (8) each towers in accordance with NRG and V-bar
requirements, including the installation of AnaBat detectors and bird flight
diverters purchased separately by the City.
Recommendation:
am recommending the City Council approve the attached Purchase Agreement with
NRG Systems at the next Council meeting which is Tuesday, April 5, 2011.
Fiscal Impact:
It is anticipated the cost of these purchase will not exceed $134,582.00.
CF: jv
Attachment
C: Document Control
A&
INTEROFFICE MEMORANDUM
Light & Power Department
DATE: March 24, 2011
TO: Carlos Fandino Jr.
Director of Light and Power
FROM: Javier Valdez
Business & Accoun Supervisor
SUBJECT: NRG Systems, Inc. Purchase Agreement
The Department of Light & Power would like to engage NRG System, Inc. to provide for
the supply of eight (8) each meteorological towers for the retained wind lands in
Tehachapi. The lump sum contract is for supply and delivery of such towers to the
installation contractor warehouse located near Bakersfield, California. Erection and
commissioning services is by others. These towers are required in order to measure
and record the wind potential of the City owned lands. The data will be evaluated by V-
Bar, the City wind consultant, for determination of land output capacity. The lump sum
cost is $134,582.00.
The details of the services to be provided by NRG Systems, Inc. are the following:
1. Supply eight (8) each meteorological towers and equipment per the attached
sales quotation;
3. Commissioning of the eight (8) each towers in accordance with NRG and V-bar
requirements, including the installation of AnaBat detectors and bird flight
diverters purchased separately by the City.
Recommendation:
am recommending the City Council approve the attached Purchase Agreement with
NRG Systems at the next Council meeting which is Tuesday, April 5, 2011.
Fiscal Impact:
It is anticipated the cost of these purchase will not exceed $134,582.00.
CF: jv
C: Document Control
RECEIVED
MAR 2 2.2011
LIGHT & POPPER DEPT
J �
CITY ATTORNEY'S OFFICE
INTER -DEPARTMENT MEMORANDUM
DATE: March 22, 2011
TO: Javier Valdez, Business & Accounts Supervisor
FROM: Willard G. Yamaguchi; Interim City Attorney
RE: N R G Systems, Inc. Purchase Agreement
I have received and reviewed your Memorandum dated March 1, 201_1,
regarding and the attachments thereto. I have the following
suggested changes:
Agreement - Reformat to the City's standard agreement format.
Cover Page - Please add: Records Retention Period - 3 years
Page 10, Section 13.06 - Law and Arbitration should read:
Arbitration and Venue
Any dispute, claim or controversy arising out of or relating to
this Agreement or the breach, termination, enforcement,
interpretation or validity thereof, including the determination
of the scope or applicability of this Agreement to arbitrate,
shall be determined by arbitration in Los Angeles, California.
�The,arbitrator' shall be a retired judgo. The arbitration shall
be administered. by JAMS pursuant to its Streamlined Arbitration
Rules and Procedures. All decisions of the arbitrator shall be
in writing, and the arbitrator shall provide written reasons
for their decision. The arbitration decision shall.be final
and binding on the Parties. Judgment on the award may be
entered in any court having jurisdiction Ipursuant to this
Agreement. This clause shall not preclude Parties from seeking
provisional remedies in aid of arbitration from a court having
jurisdiction pursuant to this Agreement. The exclusive
jurisdiction and venue under this Agreement shall be the
Superior Court of California, Los Angeles County.
Page 13, Signatures - The contractor should follow the signature
requirements when executing the agreement.
Otherwise the Purchase Agreement is approved as to form.
WY:em