HomeMy WebLinkAboutC-2451 - Sales Agreement for Telephone System Equipment for City Hall & Police DepartmentE
CITY OF NEWPORT BEACH
OFFICE OF THE CITY MANAGER
May 29, 1984
TO: MAYOR AND CITY COUNCIL
FROM: Executive Assistant
SUBJECT: NEW
SYSTEM
CITY COUNCIL
AGENDA N0. F -3(c)
BY THE CITY COUNCIL
CITY OF NEWPORT BEACH
MAY 2 91984
ACTION: Authorize City Manager to enter
agreements on behalf of the City
for the lease /purchase and mainte-
nance of a new telephone system
for all City facilities.
BACKGROUND: At the meeting of May 14, 1984, the City Council
approved in concept the acquisition of a NEC NEAX 2400 telephone
system at an approximate cost of $460,000. The selection of
this system followed a formal bid and evaluation process. The
selected system was found to combine good reliability and
serviceability attributes with the lowest price. A copy of the
May 14 staff report is attached.
AGREEMENTS: A sales agreement, a maintenance agreement, a
service agreement, and a lease /purchase agreement have been
drafted. The sales agreement with ASI Telesystems provides
for a cutover date of August 25, 1984, and a purchase price of
$441,883.02. The price includes all new instruments, cabling,
and switching equipment. The contract allows the price to
fluctuate somewhat depending upon the configuration of the system
after final refinements and locations.
The maintenance and service agreements are with ASI Tele-
systems, Inc. to provide repairs and changes /additions to the
system. A one year parts and labor warranty is included in
the purchase price. After that, service may be provided either
at cost or under a maintenance contract at the City's option.
A lease /purchase agreement with Security Pacific Capital
Markets Group will finance the entire project over a five year
period. $474,000 will be put in an escrow fund for use by
the City to pay ASI ($442,000), electirical and air conditioning
contractors ($8,000), Pacific Bell ($10,000), and the financing
fee ($14,000). Amounts remaining in escrow will be applied to
payments. The $474,000 will be.repaid to Security Pacific in
monthly payments of $9,834.86 over a five year period. After
that time, ownership of the telephone system will pass to the
City.
•
9
TO: MAYOR AND CITY COUNCIL - Page Two
BUDGET CONSIDERATIONS: No amendments or changes are
required either to this year's or next year's City
budgets. The current cost to the City for telephone
equipment is $140,250 per year. This amount is con-
tained throughout the budgets of all departments under
utilities. For the next five years, the cost of the
new telephone equipment will be approximately $125,000
per year. This includes approximately $118,000 for
lease payments, $2,000 for service, $1,000 for elec-
tricity,. $500 for insurance, and $3,500 to Pacific
Bell. Consequently, during the next five years a savings
of approximately $15,000 per year will be realized,
except that the savings during the first year will be
consumed by overlapping payments during escrow for both
the existing system and the lease payments. After five.
years when the lease is paid and the City owns the system,
savings should amount to approximately $130,000 per year.
KENNETH DELINO
KJD:mm
attachment
i
10CITY OF NEWPORT BEACH •
OFFICE OF THE CITY MANAGER COUNCIL AGENDA
May 14, 1984
ITEM N0, F -9(f)
TO: CITY COUNCIL
FROM: City Manager
SUBJECT: NEW TELEPHONE SYSTEM
RECOMMENDED ACTION:
Approve in concept the lease /purchase
of a NEC NEAX 2400 Telephone System from
' ASI Telesystems, Inc. to replace the
City's existing Pacific Bell and AT &T
System at an approximate cost of $460,000.
and
Approve the retention of the firm of
Earline Reeves and Associates to assist
in the preparation of contract specifi-
cations and in the installation of a new
telephone system for an approximate cost
of $11,250.00.
and
Instruct staff to develop the necessary
contracts, leasing arrangements, and
budget documents for final City Council
approval.
BACKGROUND - THE CITY'S EXISTING SYSTEM
A telephone system has three parts - switching equipment,
instruments, and cabling:
The City's existing switching equipment, which is leased
from AT &T, is in disrepair and is obsolete. The mechanical
switches, located in City Hall and the Police Department,
regularly malfunction in damp weather and constant maintenance
is required. The Public Utilities Commission classified the
equipment as "Limited Service ", and service and replacement
parts are limited and becoming unavailable. The switching
equipment must, therefore, be replaced.
The City's telephone instruments, like the switching equip-
ment, are leased from AT &T and are still serviceable. However,
many of the instruments are rotary dial and therefore incompa-
tible with new switching equipment. Also, leasing instruments
may not be economical and, consequently, the City may need to
purchase either new or used instruments.
W
TO: CIOOUNCIL
The City's telephone
simplify the cut over to
ranty to newly purchased
will need to be replaced.
- Page Two •
cabling is serviceable, but to
a new system and to extend a war -
equipment, the cabling most likely
The City's current system utilizes two switches - one
for the City Hall and another for Police and Fire. Outlying
locations are tied to each switch over Pacific Bell lines,
and the two switches are joined by tie lines. A prefix must
be dialed to call an extension on the other switch.
REPLACEMENT POSSIBILITIES
Basically, two alternatives exist. First, Pacific Bell
(PacBell), which is the regulated utility, offers the Central
Office (CO) CENTREX System with switching equipment located
in the PacBell facilities. PacBell would rent switching and
cabling but not instruments which must be obtained from another
company. AT &T will sell to the City the used instruments now
in place. The CO CENTREX System would tie all City phones
together and alleviate the need for tie lines and prefix dialing.
It would also alleviate the mileage charges for connecting
outlying locations over PacBell lines.
The second alternative is the purchase of computerized
switches, new cabling, and new instruments from a non - regulated
vendor (PABX System). Dozens of such systems are available.
Such a system would replicate the existing configuration of a
City Hall switch and a Police switch joined together by tie
lines and requiring prefix dialing. Outlying locations would
be tied to the switches over PacBell lines continuing the
mileage charges.
SELECTION OF REPLACEMENTS
A formal bid process was conducted to select the most
suitable replacement, based primarily on reliability and cost.
A consultant was employed, a detailed inventory of City equip-
ment was conducted, specifications were prepared, and the
choices of the best qualified replacements were narrowed to
three:
1. The NEAX 2400 System, manufactured by.Nippon
Electric Company (NEC). Sold and serviced
by ASI Telesystems, Inc. (ASI), based in
Woodland Hills, California.
2. The OMNI SII System, manufactured by General
Telephone and Electric (GTE). Sold and serv-
iced by an independent subsidary, General
Telephone Company (GTC), based in Cerritos,
California.
3. The CO CENTREX System offered by Pacific Bell
(PacBell), which is the regulated utility,
based in Orange, California.
7
TO: CITY CNCIL - Page Three •
A copy of the consultant's comparison report is
available. Additionally, each of the best qualified firms
were analyzed by staff for a variety of factors as explained
in the summary below.
BASIS FOR RECOMMENDATION
A summary of the rankings of the three systems for each
of six evaluative factors is as follows:
Telephone System
NEC GTE CO CENTREX
C *RV_%
Initial (leasing)
1st
2nd
3rd
over 5 years
1st
2nd
3rd
over 10 years
1st
2nd
3rd
over 20 years
1st
2nd
3rd
RELIABILITY
3rd
2nd
1st
MAINTENANCE
3rd
2nd
1st
SERVICE
2nd
3rd
1st
SIMPLICITY
OF USE
instruments
equal
equal
equal
switch
2nd
3rd
1st
ADD ON
FEATURES
2nd
1st
3rd
The recommendation for the NEC system stems primarily
from the overwhelming cost advantages. As explained on the
attachment, even though the NEC system is ranked below the
other systems on other measures, the level of adequacy is
more than sufficient. Thousands of NEC systems are opera-
ting nationwide, and local references report excellent ex-
perience with both the equipment and the service provided
by ASI.
5
TO: CITY ONCIL - Page Four •
The retention of Earline Reeves and Associates is
recommended to provide expertise and continuity to the
effort. This firm has performed exceptionally well on
the first phase and has accumulated a reserve of data
and familiarity with the City system. For example, the
firm is negotiating with AT &T a refund for the City that
should amount to enough to cover all City costs paid to
the firm. Staff lacks the necessary expertise to super-
vise installation of a telephone system, and Earline
Reeves and Associates has demonstrated exceptional
capabilities.
RLW:KJD;nun
attachments
Q.jj
ROBERT L. WYNN
0
EVALUATION
of
TELEPHONE SYSTEMS
for
THE CITY OF NEWPORT BEACH
In addition to a formal bid process which selected
the three most qualified systems (report available), City
staff visited the home offices of vendors, viewed demonstra-
tion models, inspected maintenance and service facilities,
and interviewed current users. The combined results of the
evaluations are summarized here.
COST
The consultant's report deals in detail with the
variety of costs affecting telephone service in the after-
math of the AT &T system. In place of Ma Bell, several
companies now offer parts of the telephone system. Cur-
rently, the City rents its premises equipment from AT &T
and,switching services to the outside world from Pacific
Bell. The cost for providing telephone capability (not
usage) to the City, as of July 1, 1984, will be approxi-
mately $140,250 per year.
A new system involves a variety of different costs.
As of June, 1984, an access charge of $4.68 per month for
each Direct Inward Dialing line will be levied. CO CENTREX
will necessitate this charge for nearly every City phone,
(approximately 500), while a non - regulated system (PABX)
will necessitate this charge only for the incoming trunks
(approximately 70). A PABX requires ongoing charges to
PacBell for tie lines and trunks. Maintenance, service,
and utilities are an additional cost for PABX, but in-
cluded with CO CENTREX. Many added features and capabili-
ties are inherent with PABX systems, but must be separately
purchased with CO CENTREX.
Installation charges for the two types of systems differ,
and the choice between leasing and purchasing adds many cost
Attachment Page 1
variables. Future tariffs and rates are also unknown.
A summary of these many costs are provided on the table
appearing on the next page.
Some cost considerations cannot be quantified at this
time. The unregulated telephone environment will have a
tendancy to increase rates for local calls which are the
bulk of City activity. A PABX system has the capability
to generate management reports and to limit the use of
certain telephones to help cut phone costs in the future.
Also, a PABX will allow the City to adapt easily to private
cost cutting services. The City's PABX system specifica-
tions insure the flexibility and modularity of design needed
to add new features and capabilities when introduced. Acqui-
sition of a PABX system will provide the City with all new
equipment and cabling and will replace the haphazardly in-
stalled system with a well organized and tidy operation.
CO CENTREX will not be able to lower its costs, provide more
capabilities, and compete better with the PABX systems within
the next five years. A PABX system is less expensive than
CO CENTREX over a five year period. Consequently, the acqui-
sition of a new PABX system, with a life expectancy of 20
years, is still a good decision even if the system is replaced
in five years.
Attachment Page 2
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Reliability
This factor relates to uninterrupted operation during
regular and emergency operations. During regular operations,
the CO CENTREX system is obviously superior. Constantly
maintained in a controlled environment, CO CENTREX experiences
only 3 hours of downtime in 40 years. in an emergency, CO
CENTREX has auxiliary power to maintain voice transmission
and bells, but not lights and other features, and only if
lines are not damaged.
The NEC AND GTE systems operate very well during regular
operations with some downtime usually experienced after the
cut over and until the system is completely debugged. The
City's bid specifications included complete dual processing
so that if one part of the computer goes down, a backup part
switches over automatically. The NEC system uses less power,
generates less heat, and is therefore somewhat less suscep-
tible to outages than the GTE system. Contacts with current
users (including the County of San Joaquin and the City of
Palm Springs for the NEC system, and the cities of Santa
Monica and Pomona for the GTE system) indicate little or no
downtime after the breakin period of a week of two.
The GTE and NEC systems include on site maintenance
terminals which provide constant updates on system status and
trouble spots. For emergency situations, the City's speci-
fications for NEC and GTE included battery and generator backup
for a minimum of 5 days. The backup power will operate all
equipment including telephone lights and buzzers and will
operate the City's internal communications even if outside
lines are down.
The parent companies manufacturing and supporting each
system are large and well established but have various rela-
tionships to the distributors. PacBell, which provides CO
CENTREX, is of course the regulated ulitity and can reason-
ably be expected to be in business forever. However, the future
Attachment Page 4
i
commitment of PacBell to CO CENTREX remains unclear given a
the uncertainties of the unregulated environment. Also,
the recent divestiture and reorganization has resulted in
confusion and lack of continuity of personnel, which has
been evident to City staff. While PacBell will swear other-
wise, an unprofitable CO CENTREX may someday be abandoned
or ignored. The City of Irvine uses CO CENTREX and reports
excellent, but expensive, service.
NEC is a $5 billion multi- national firm, but ASI is a
5 -1/2 year old $11.5 million dollar distributor. The fore-
runner of ASI Telesystems, Inc. is Audience Survey, incorpor-
ated, a 25 year old marketing research firm, specializing in
testing television pilot programs. ASI owns and operates
Preview House in Hollywood. The diversification to the tele-
phone interconnect business was the result of a marketing
research effort. References for ASI telephone systems,
including the City of Palm Springs, Buffum's Department Stores,
La Habra Community Hospital, and Huntington Beach School
District report excellent experience with ASI.
GTE is a $13 billion communications conglomerate and
GTC is an unregulated subsidary. The cities of Santa Monica
and Pomona, Rio Hondo Community College, and Long Beach City
College report good recent experiences with GTC and the
OMNI SII system.
Maintenance
This factor relates to the ease and speed of repairing
the system should it break down.
An unavoidable maintenance problem with all three systems
stems from the separation of responsibilities for different
parts of the phone system. PacBell provides the trunk lines
and switching to the outside world and provides tie lines
between City facilities. With CO CENTREX, PacBell will pro-
vide maintenance up to the jack where the telephone plugs
into the wall. Telephone instruments will be serviced by
another vendor or will simply be replaced. With either the
Attachment Page 5
q it
NEC or GTE systems, ASI or GTC will service the switch,
the instruments, and the cabling between the two. But
PacBell will still be responsible for tie -lines between
City facilities and trunk lines to the outside world.
Regardless of the system selected, maintenance may be
hindered while the trouble spot is located and the re-
sponsible party identified.
CO CENTREX, with technicians on- station 24 hours per
day, can repair most switch malfunctions in minutes. Re-
sponse time for other service calls is two hours, but PacBell
will not contractually commit to that limit. PacBell main-
tenance is free with the monthly service charge.
Maintenance for all parts of the GTE and NEC systems
is provided by the vendors, GTC and ASI. Each of the vendors
dispatch technicians directly from their homes, with service
centers located at Cerritos (GTC) and Woodland Hills (ASI).
Each vendor has four technicians who live near Newport Beach.
Both vendors will contractually commit to a two hour response
time, and ASI will assume a $500.00 per hour penalty should
it fail to meet the limit. Both vendors have 24 hour, 7 day
per week emergency maintenance service. References for both
vendors indicate excellent response to maintenance calls.
Overall, GTC maintenance is rated above that of ASI because
of the ready support from the GTE regulated utility mainten-
ance staff. NEC will underwrite the service of ASI, but only
to the extent of transferring the responsibility to another
NEC distributor.
Costs for maintenance are $65.00 per hour or $10,566
per year for a full parts and labor contract with GTC, and
$42.00 per hour or $8,100 per year for a full parts and labor
contract with ASI.
The maintenance terminals provided with the NEC and GTE
systems also allow City employees to do routine maintenance.
Interactive software, which interrogates the user via a CRT,
can pinpoint trouble spots and instruct corrective actions.
Similar maintenance can be done remotely by ASI and GTC from
their facilities in Woodland Hills and Cerritos.
�i2 Attachment Page 6
Service
This factor relates to the ease and speed of adding
or rearranging the features or telephones of the system.
ASI will respond within 5 working days and GTC will respond
within 10 working days for requests to add or rearrange
telephones. Reassigning of features or changing the numbers
and ringing patterns of telephones can be done by City em-
ployees via the maintenance terminal with GTE or NEC systems.
Service charges are the same as maintenance rates, $42.00
per hour for ASI and $65.00 per hour for GTC.
PacBell will respond to service requests within 5 days,
and charges $26.35 for moving one phone, $47.00 for moving
two, $53.00 for moving three, and $4.20 for each additional
during one service visit. Reassigning of features or changing
numbers and ringing patterns is accomplished within 24 hours
with a telephone call for a charge of $5.20.
Add on Features
Various electronic phones, video terminals, and other
Office -of -the- Future wizardry is available with these systems.
CO CENTREX is currently limited in the use of these features
because switching equipment is analog. Digital CO CENTREX
switching is several years away. The NEC and GTE systems
are digital and can transmit both voice and data. An assort-
ment of exotic features are or will soon.be:available. More
enhancement features are currently operable-for the GTE system
than for the NEC system, and the design of the GTE.features
provides more flexibility and convenience.
Simplicity of Use
All three systems.will use telephone instruments.virtu-
ally indistinguishable from present ones, and no changes in
basic telephone usage will be experienced. Special features
such as speed dialing, conference calling, and call.forwarding
are inherent to all three systems and-require the use of
special codes. Special training is provided during system
installation; and, face plates, depicting the codes, are
attached to telephone instruments. The CO CENTREX codes
13 Attachment Page 7
�
utilize numbers and are somewhat cumbersome. The NEC and
GTE codes use symbols and are somewhat simpler. The NEC
system allows the City to designate its own codes though
this is not recommended.
Regarding ease of use of the switches, the CO CENTREX
switch is neither seen nor heard. The GTE and NEC switches,
however, require room and board. They must be air conditioned
and fed electricity. Battery back up, generators, CRT's,
and printers will require maintenance. The NEC and GTE systems
are similar in this regard, except that the NEC system is
somewhat smaller and easier to handle with more easily inter-
changeable parts. The NEC uses building block modules, while
the GTE uses a larger cabinet. The software and CRT terminals
of the NEC and GTE systems are equally easy to use. overall,
the NEC switch would be easier to handle than the GTE switch.
Attachment Page 8
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cord. .
NAME AND ADDRESS OF AGENCY
Booth and Simpson
10850 Riverside Drive
North Hollywood, CA 91602
(213) 877 -5481
ASI Telesystems, Inc.
21150 Califa Street
Woodland Hills, CA 91367
(818) 704 -5700
of any contract or other filocurient with respect to which this certificate may be
,come a ronditinn, of ,uch mIiciec
COMPANIES AFFORDING COVERAGES
COMPANY
LETTER A Birmingham Fire Insurance Company
COMPANY
LETTER B Wausau Insurance Companies
/
COMPANY ■
LETTER V
COMPANY D
LETTER
COMPANY
LETTER 111—
med above and are in force at this time. Notwithstanding any requirement, term or condition
or may pertain, the insurance afforded by the policies described herein is subject to all the
DESCRIPTION OF OPERATIONS /LOCATIONSNEHICLES
The City of Newport Beach is named as Additional Insured as Respects work
performed by ASI Telesystems, Inc.
Cancellation: Should any of the above described policies be cancelled before the expiration date thereof. the issuing com-
pany will endeavor to mail 30 day rrtten�o . tc the below named certificate holder. but failure to
mail such notice shall impose no t do / f a kind upon the company.
NAME AND ADDRESS OF CERTIFICATE HOLDER 1,1%.w \Yr
City of Newport Beach S 6\9$4 6, ISSUED .�/g7 /R4 %
3300 Newport Blvd. — JUN Z
Newport Beach, CA 9265 v
r dqe «Nd / AUTHORIZED kEPRESENTATIVE
2 Booth and Simpson
ACORD 25 (149) - h:
Limits o Liability in Thousan S I
COMPANY
LETTER
TYPE OF INSURANCE
POLICY NUMBER
POLICY
EXPIRATION DATE
EACH AGGREGATE
OCCURRENCE
GENERAL LIABILITY
BODILY INJURY
E
$
A
®COMPREHENSIVE FORM
GLA6076449
5/1/85
® PREMISES — OPERATIONS
PROPERTY DAMAGE
E
E
® EXPLOSION AND COLLAPSE
HAZARD
®
UNDERGROUND HAZARD
® PRODUCTS /COMPLETED
OPERATIONS HAZARD
®CONTRACTUAL INSURANCE
BODILY INJURY AND
PROPERTY DAMAGE
E 500
E 500
® BROAD FORM PROPERTY
COMBINED
DAMAGE
®
INDEPENDENT CONTRACTORS
PERSONAL INJURY
E 500
® PERSONAL INJURY
AUTOMOBILE LIABILITY
BODILY INJURY
E
(EACH PERSON)
B
® COMPREHENSIVE FORM
2025 00 054000
5/1/85
BODILY INJURY
E
®
(EACH ACCIDENT)
OWNED
PROPERTY DAMAGE
E
®
HIRED
BODILY INJURY AND
® NONOVJNED
PROPERTY DAMAGE
E 500
COMBINED
EXCESS LIABILITY
BODILY INJURY AND
A
® UMBRELLA FORM
UM6072574
5/1/85
PROPERTYDAMAGE
E 10,000 110,000
❑ OTHER THAN UMBRELLA
COMBINED
I
FORM
WORKERS' COMPENSATION
srAruron,
and
EMPLOYERS' LIABILITY
E
fYaACUJEn'I
OTHER
DESCRIPTION OF OPERATIONS /LOCATIONSNEHICLES
The City of Newport Beach is named as Additional Insured as Respects work
performed by ASI Telesystems, Inc.
Cancellation: Should any of the above described policies be cancelled before the expiration date thereof. the issuing com-
pany will endeavor to mail 30 day rrtten�o . tc the below named certificate holder. but failure to
mail such notice shall impose no t do / f a kind upon the company.
NAME AND ADDRESS OF CERTIFICATE HOLDER 1,1%.w \Yr
City of Newport Beach S 6\9$4 6, ISSUED .�/g7 /R4 %
3300 Newport Blvd. — JUN Z
Newport Beach, CA 9265 v
r dqe «Nd / AUTHORIZED kEPRESENTATIVE
2 Booth and Simpson
ACORD 25 (149) - h:
n
Contract Bond
Public Work —California ,,, .,_, js'' THE HARTFORD
Hartford Plaza, Hartford, Connecticut 06115
PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:
That we,
Bond No.._ ..505 7126
......... ..... ......... .... ............. .......... .......
Premium Charge...... $1, 082 .00
t b \9�A1 1
JVN 2 r
ASI Telesystems.,,Inq.. _.. .......... ....__.._.. ...... . _, as Principal,
and the HARTFORD ACCIDENT AND INDEMNITY COMPANY, a Corporation organized and existing under the laws of the State of Connecticut
and authorized to transact surety business in the State of California, as Surety, are held and firmly bound unto,..... City Of Newport
Beach, 3300 Newport Blvd Newport Beach, CA 92658
Dollars and 79/100
n the sum of One Hundred Eighty Thousand Three Hundred Ninety One/ ,Dollars (s.._ 180.,3.9.1.79 ... ._...
lawful money of the United States of America, for the payment whereof, well and truly to be made, we hereby bind ourselves, our heirs, exec-
utors, administrators, successors and assigns, jointly and severally, firmly by these presents.
SIGNED, sealed with our seals, and dated this...__..2..2A.d ........_.. day of _.._. ___ ... ....June ............ ...._... _.......... ................... 19,..84....
The condition of the foregoing obligation is such that, whereas the above bounden Principal has entered into a contract dated ....................
,Tune 4........... _ .......... 19...84.., with said...... ....Ci.ty .of ... N.ewpor.t.- Beach .... .. ' ._.. ....... - .... .........
... ...
. ...... _....... _....._...... ...... .._ ._ ......... .. ........ ..........to do and perform the following work, to -wit:
Installation of a Telephone System
h
NOW, THEREFORE, if the above - bounden Principal shall well and truly perform, or cause to be performed, each and all of the requirements
and obligations of said contract to be performed by said Principal, as in said contract set forth, then this bond shall be null and void; other-
wise it shall remain in full force and effect.
State of Californi
County of Los AnB�le
before me, a Notary Public in and for said County and Slate, raiding
On June 22, 1984
therein, duly commissioned and sworn, personally appeared Fred A. Smith, Jr.
known to me to be Attorney -in -Fact of Hartford Accident and Indemnity Company
the corporation described in and that executed the within and foregoing instrument, and known to me to be the person who executed
the said instnrment in behalf of the said corporation, and he duly acknowledged to me that such corporation executed the same.
IN WrMfESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year stated in this certificate above.
1
My Commission Expires Notary Public
i ,
360212 -6.66
s
Contract Bond
Public Work —California ,...._,. a THE HARTFORD
Hartford Plaza, Hartford, Connecticut 06115
PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:
505
Bond No._ ........ 7125
........................ ...............................
Premium Charge . .... $1,569.
JUN 2 619841
OW,
�J
That we,
........ ASI .... elesystems..... Inc. ... ................ ................ ......................... .................... .......... ........ as Principal,
and the HARTFORD ACCIDENT AND INDEMNITY COMPANY, a Corporation organized and existing under the laws of the State of Connecticut
and authorized to transact surety business in the State of California, as Surety, are held and firmly bound unto ..... City ...of... Newpo T.t.._.
Beach, 3300 Newport Blvd., Newport Beach, CA 92658
........... ..... ......................._ -...
and 23/100
in the sum of Two Hundred Sixty One Thousand Four Hundred Ninety One/ .Dollars ($ ....61,491.23
..... _......
lawful money of the United States of America, for the payment whereof, well and truly to be made, we hereby bind ourselves, our heirs, exec-
utors, administrators, successors and assigns, jointly and severally, firmly by these presents.
SIGNED, sealed with our seals, and dated this......... 22nd .........................day of.................... June......................................... .............................., 19....84..
The condition of the foregoing obligation is such that, whereas the above bounden Principal has entered into a contract dated ....................
,,June 4,1 _..._...,._ .............. ............. I ................ ., 19..84..., with said ........ ..City...of Newport..Beach...............:
........................................................................................................................................................... .............................to do and perform the following work, to -wit:
Installation of a Telephone System
NOW, THEREFORE, if the above - bounden Principal shall well and truly perform, or cause to be performed, each and all of the requirements
and obligations of said contract to be performed by said Principal, as in said contract set forth, then this bond shall be null and void; other-
wise it shall remain in full force and effect.
slate of California
County of Los Ang er:
On June 22, 1984 before me, a Notary Public in and for said County and State, residing
therein, duly commissioned and sworn, personally appeared
Fred A. Smith, Jr.
known to me to be Attomey -in -Fact of Hartford Accident and Indemnity Company
the corporation described in and that executed the within and foregoing instrument, and known to me to be the person who executed
the said instrument in behalf of the said corporation, and he duly acknowledged to me that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year stated in this certificate above.
My Commission Expires 'r "'�— �i"t•�r-
/ Notary Public
360212 -6.66
AGENCY AGREEMENT
Dated as of JUNE 1, 1484
between
SECURITY PACIFIC CAPITAL MARKETS GROUP
and the
CITY OF NEWPORT BEACH
0 0
AGENCY AGREEMENT
THIS AGENCY AGREEMENT, dated as of 611484 , by and between the City
of Newport Beach, a municipal corporationdu y organized and existing
under the Constitution and laws of the State of California (the "City ")
and Security Pacific Capital Markets Group, a corporation duly organized
and existing under the Constitution and laws of the State of Delaware
( "Security Pacific ");
W I T N E S S E T H:
WHEREAS, the City and Security Pacific have entered into a Municipal
Lease and Option Agreement dated as of the date hereof (the "Agreement "),
whereby Security Pacific agrees to lease certain property described in
Exhibit D thereto (the "Equipment "), to the City, and the City agrees to
purchase the Equipment from Security Pacific;
NOW THEREFORE, in the joint and mutual exercise of their powers, and
in consideration of the above premises and of the mutual covenants herein
contained and for other valuable considertion, the parties hereto recite
and agree as follows:
I. The terms capitalized in this Agency Agreement shall have the
meanings given to them in the Agreement.
II. APPOINTMENT
Security Pacific hereby
all phases of the supervision
in Exhibit D, attached to the
Pacific, assumes all right
Pacific regarding supervision
limited herein.
appoints the City as its agent to carry out
and acquisition of the Equipment described
Agreement. The City, as agent of Security
s, duties and responsibilities of Security
and acquisition of such Equipment, except as
III. CONTRACTS AND PAYMENTS
A. Contracts: The City, as agent, may enter directly into any
purchase order or contract without the written approval of
Security Pacific.
B. Payments: The written approval of both parties shall be required
to authorize any payments made from the Acquisition Fund by the
Escrow Agent, in accordance with the Escrow Agreement.
IV. EQUIPMENT DESCRIPTION
The City, as agent for Security Pacific, shall have the right to make
any changes in the description of the Equipment or of any component or
components thereof, whenever the City, in its sole discretion, deems such
changes to be necessary; provided, hor:ever, that any such
0 0
change shall not alter the nature of the Equipment, and that any increase
in the Acquisition Costs resulting from such a change shall, to the extent
the increased Acquisition Costs exceed the total balance in the
Acquisition Fund, be payable solely from other funds of the City, which
shall be deposited with the Escrow Agent for deposit into the Acquisition
Fund prior to the approval of any such changes to the equipment.
V. CITY'S RIGHT TO SUPERVISE ACQUISITION AND INSTALLATION
The City, as agent of Security Pacific, shall have the right to
supervise the acquisition of the equipment related thereto and monitor the
performance by the Contractors and Vendor in whatever manner the City, in
its sole discretion, deems appropriate.
VI. CITY'S RIGHT TO ENFORCE CONTRACTS
Security Pacific hereby assigns to the City all of its rights and
powers under all such purchase orders and contracts as it enters into with
respect to the Equipment and the City shall have the right to enforce in
its own name or the name of Security Pacific such purchase orders or
contracts at law or in equity; provided, however, that the assignment of
Security Pacific shall not prevent Security Pacific from asserting said
rights and powers in its own behalf.
IN WITNESS WHEREOF, Security Pacific has caused this Agreement to be
executed in its corporate name by its duly authorized officer and sealed
with its corporate seal; and the City has caused this Agreement to be
executed in its name by its duly authorized officers, as of the date first
above written.
(SEAL)
i
CITY CLERK
SECURITY PACIFIC
CAPITAL MARKETS GROUP
By :�� //
vice Presiaent
CITY E4.PORT E H
By:
CITY MANAGER
•
s
ESCROW AGREEMENT
Dated as of JUNE 1> 1984
by and among
CITY OF NEWPORT BEACH
SECURITY PACIFIC
CAPITAL MARKETS GROUP
and
SECURITY PACIFIC NATIONAL BANK
`~l
0 •
TABLE OF CONTENTS
ARTICLE I
APPOINTMENT OF ESCROW AGENT; DEFINITIONS
Section 1.01 Appointment of Escrow Agent
Section 1.02 Definitions
Section 1.03 Authorization
ARTICLE II
ACQUISITION FUND
Section 2.01 Deposit of Moneys by Lessor
Section 2.02 Acquisition Fund
Section 2.03 Purpose
Section 2.04 Deposit of Funds; Payment of Acquisition Costs
Section 2.05 Transfers.._Upon Completion
ARTICLE III
INSURANCE; INSURANCE FUND
Section 3.01 Maintenance of Insurance
Section 3.02 Establishment and Application of Insurance Fund
ARTICLE IV
MONEYS IN FUNDS; INVESTMENT
Section
4.01
Held in Trust
Section
4.02
Investments Authorized
Section
4.03
Qualified Investments
Section
4.04
Disposition of Investments
Section
4.05
Accounting
Section
4.06
Allocation of Earnings
Section
4.07
Valuation and Disposition of Investments
Section
4.08
Deposit and Investment of Moneyy in Funds
Section
4.09
Commingling; Repurchase Agreements
(i)
ARTICLE V
THE ESCROW AGENT
1]
Section 5.01 Compensation of Escrow Agent
Section 5.02 Removal of Escrow Agent
Section 5.03 Resignation of Escrow Agent
Section 5.04 Appointment of Agent
Section 5.05 Merger or Consolidation
Section 5.06 Protection and Rights of the Escrow Agent
ARTICLE VI
TRANSFER OF TITLE TO LESSEE
Section 6.01 Discharge of Lien; Further Assurance
ARTICLE VII
Section 7.01 Assignment
Section 7.02 Amendments
ARTICLE VIII
COVENANTS; NOTICES
Section 8.01 Compliance With and Enforcement of Escrow Agreement
Section 8.02 Lessee Budgets
Section 8.03 Lease and Option Agreement
Section 8.04 Further Assurances
ARTICLE IX
Section
9.01
Events of
Default Defined
Section
9.02
Remedies
on Default
Section
9.03
No Remedy
Exclusive
Section
9.04
Agreement
to Pay Attorneys' Fees and Expenses
Section
9.05
No Additional
Waiver Implied by One Waiver
(ii)
• •
ARTICLE X
LIMITATION OF LIABILITY
Section
10.01
Limited Liability of Lessee
Section
10.02
No Liability of Lessor or Lessee for Escrow
Section
11.03
Agent Performance
Section
10.03
No Liability of Lessor or Lessee for Lease
Section
11.05
Payments by Lessee
Section
10.04
Limited Liability of Escrow Agent
Section
10.05
Indemnification
Section
10.06
Opinion of Counsel
Section
10.07
Limitation of Rights to Parties and
B - Addresses of Parties
Certificate Owners
ARTICLE XI
MISCELLANEOUS
Section
11.01
Filing; Bills of Sale
Section
11.02
Records
Section
11.03
Notices
Section
11.04
Governing Law
Section
11.05
Partial Invalidity
Section
11.06
Binding Effect; Successors
Section
11.07
Execution in Counterparts
Section
11.08
Headings
Exhibit
A - Payment Request Form
Exhibit
B - Addresses of Parties
(iii)
ESCROW AGREEMENT
THIS AGREEMENT, made and entered into as of this lst day
of JUNE , 1984, by and among Security Pacific National an , a
National Banking Corporation, (the "Escrow Agent "), SECURITY PACIFIC
CAPITAL MARKETS GROUP, a corporation duly organized and existing under
the laws of the State of Delaware ( "Lessor "), and the City of Newport
Beach duly organized and existing under the Constitution and laws of the
State of California (the "Lessee ");
WITNESSETH
WHEREAS, the Lessee and Lessor have entered into a Municipal Lease
and Option Agreement dated as of 1st of JUNE,1984(the "Lease and Option
Agreement "), a duplicate original of w is as een furnished to each of
the parties, whereby Lessor has agreed to acquire certain equipment and
related and appurtenant property described in Exhibit D attached thereto
(the "Equipment "), and to lease the Equipment from Lessor, in the manner
and on the terms set forth in the Lease and Option Agreement; and
WHEREAS, under the Lease and Option Agreement, the Lessee is
obligated to make Rental Payments to Lessor for the possession and use of
the Equipment, and Lessor has agreed to deposit moneys with the Escrow
Agent sufficient to acquire the Equipment; and
WHEREAS, the Lessee, as agent for the Lessor under an Agency
Agreement dated as of 1st of JUNE,1984 between Lessor and the Lessee (the
"Agency Agreement "), will cause the Equipment to be acquired in
accordance with the purchase orders or contracts therefor by the Vendors,
and such Agency Agreement provides that neither Lessor nor the Escrow
Agent shall be obligated to assume or perform any obligation of the
Lessee or such Vendors with respect thereto or under the Lease and Option
Agreement;
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto hereby agree as follows:
ARTICLE I
APPOINTMENT OF ESCROW AGENT; DEFINITIONS
Section 1.01. Appointment of Escrow Agent. Lessor and the Lessee
hereby appoint and employ the Escrow Agent, upon direction of the Lessee,
to receive, hold, invest and disburse the moneys to be paid to it
pursuant to the Agreement and the Lease and Option Agreement for credit
to the Acquisition established by this Agreement, and to perform certain
other functions, all as hereinafter provided. By executing and
delivering this Escrow Agreement, the Escrow Agent accepts the duties and
obligations of the Escrow Agent provided herein, but only upon the terms
and conditions herein set forth.
Section 1.02. Definitions. Unless the context otherwise
requires, the terms define id— 'n--tFiis Section shall, for all purposes of
this Escrow Agreement have the meanings herein specified.
9 0
" Acguisition. Costs" means +dith respect to the E uuippment the
contra cf -- -° to be 'paid to the Vendors �heNetor' upon
acquisition or deliver or installation of any portion of the Equipment
and related equipment, together with a certificate of completion, in
accordance with the purchase order or contract therefor, and shall be not
greater than $474,000.00; which sum may be increased if any additional
amount is due the Vendors by reason of any properly authorized change
orders. Acquisition Costs include the administrative, engineering,
legal, financial and other costs incurred by the Lessee, Lessor and the
Vendors in connection with the acquisition, delivery and financing by
Lessor of the Equipment.
"Acquisition Fund" means the fund by that name established and
held by a scrow gent pursuant to Article II of this Escrow Agreement.
"Agency Agreement" means the Agency Agreement,- dated as
Of 6/1184 by and Rerw—een Lessor and Lessee, and any duly authorized and
execute - amendment thereto.
"Certificate of Acceptance" means a certificate acceptance
attached as EXhibit F e—lei—se an Option Agreement.
"Closing Date" means the day when Lessor desposits with the Escrow
Agent the moneys required to be deposited pursuant to Article II.
"Equipment" means the equipment and related and appurtenant
property tore acquired from .the moneys held in the Acquisition Fund.
"Escrow Agent" means Security Pacific National Bank, Los Angeles,
California, or any successor thereto acting as Escrow Agent pursuant to
this Escrow Agreement.
"Escrow Agreement" or "Agreement" means this Escrow Agreement and
any duly authorized an execute amen men hereto.
"Independent Counsel" means an attorney duly admitted to the
practice of aw a ore t e highest court of the State in which he
maintains an office and who is not an employee of Lessor, the Escrow
Agent or the Lessee.
"Insurance Fund" means the fund by that name established and held
by the Lscrow Agent pursuant to Section 3.02 hereof.
"Lease and Option Agreement" or "Agreement" means the Lease and
Option Agreement, dateU—a—s--oT -6/1/84 —bYb a3between the Lessee and
Lessor, and any duly authorize an execu ed amendment thereto.
"Lessee" means the City of Newport Beach, duly organized and
existing under the Constitution and laws of the State of California.
"Lessee Representative" means the representative of the Lessee or
a person authorized y the Lessee to act on its behalf under or with
respect to this Agreement.
"Lessor" means Security Pacific Capital Markets Group, a
i •
co poration dgly f rmed and existin under the laws of the State of
De� aware, and its of icers, employees, successors and assigns.
"Lessor Representative" means the President or any Vice President
of Lessor, or any person authorized to act on behalf of Lessor under or
with respect to this Agreement, as evidenced by a certificate conferring
such authorization executed by the President or any Vice President of
Lessor, given to the Lessee or the Lessee Representative.
"Net Proceeds" means any insurance proceeds, paid with respect to
the Equipment, remaining after payment therefrom of all expenses incurred
in the collection thereof.
"Payment Date" means, with respect to Exhibit E attached to the
Lease and option Agre ement, the date upon which any Rental Payment is due
and payable.
"Permitted Encumbrances" means, as of any particular time: (i)
liens for genera a va orem taxes and assessments, if any, not then
delinquent, or which the Lessee may,pursuant to Provisions of Article V
hereof, permit to remain unpaid; (ii) the Lease and Option Agreement and
any leases, subleases and assignments superior or subordinate thereto
which are in accordance therewith; (iii) any right or claim `of any
mechanic, laborer, materialman, supplier or vendor not filed or perfected
in the manner prescribed by law, other than any lien arising through any
of the Vendors; and (iv) the Assignment Agreement.
"Prepayment Date" means any date on which the Lessee may exercise
its option to purchase the Equipment as set forth in Exhibit E attached
to the Lease and Option Agreement.
"Rental Payment" means any payment due from the Lessee to Lessor
under the Lease an p ion Agreement.
"Term of the Lease and Option Agreement" means the time during
which the Lease and option Agreement is in ettect, as provided in Article
IV of the Lease and Option Agreement.
"Unpaid Principal Balance" means the unpaid principal amount of
all Ren a aymen s.
"Vendors" means the manufacturers of the Equipment as well as the
agents o— r UeeaTers of the manufacturer from whom Lessor purchased or is
purchasing Equipment or the Lessee on behalf of Lessor has ordered or
with whom Lessor or the Lessee on behalf of Lessor has contracted for the
acquisition of the Equipment pursuant to the Agency Agreement.
Section 1.03. Authorization. Each of the parties hereby
represents and warrants a i as full legal authority and is duly
empowered to enter into this Agreement, and has taken all actions
necessary to authorize the execution of this Agreement by the officers
and persons signing it.
0 9
ARTICLE II
ACQUISITION FUND
Section 2.01 Deposit of Moneys By Lessor. At the Closing Date,
Lessor shall deposit with a Escrow gen 00.
The Escrow Agent shall deposit said money in the Acquisition Fund
to be held, applied and disbursed as hereinafter provided.
Section 2.02. Acquisition Fund. The Escrow Agent shall establish
a special fund designated as a "Equipment Acquisition Fund"
(hereinafter referred to as the "Acquisition Fund "); shall keep such Fund
separate and apart from all other funds and moneys held by it; and shall
administer such Fund as provided in this Section and Article IV hereof.
The Acquisition Fund shall be held and applied by the Escrow Agent in
accordance herewith.
Section 2.03. Purpose. Moneys in the Acquisition Fund shall be
expended for Acquisition —rosTs of the Equipment, including the
adminstrative, engineering, legal, financial and other costs incurred by
the Lessee and Lessor in connection with the acquisiton and fifrancing by
Lessor of the Equipment.
Section 2.04. Deposit of Funds; Payment of Acquisition Costs.
There shall be credited to the Acquisition Fund the moneys required to e
deposited therein pursuant to Section 2.01 hereof, and any other funds
from the to time deposited with the Escrow Agent for such purpose. The
Escrow Agent shall pay from the Acquisition Fund and Acquisition Costs,
as hereinafter provided, upon receipt of the following items with respect
thereto:
(a) in the case of payment of any Acquisition Cost
pursuant to a contract or purchase order, (1) a duly executed
Payment Request Form in substantially the form attached hereto as
Exhibit A, with a true copy of the Vendor's statement attached,
(2) where applicable, a duplicate original of any change order
approved by the Lessee increasing Acquisition Costs in an amount
in excess of the original purchase order or contract price; (3)
waivers of any liens and claims executed by the Vendors and any
subcontractor which has provided work or materials for the
Equipment, showing payment of all costs incurred in providing work
or materials for the Equipment, in an amount equal to the amount
requested for payment; and (4) bills of sale for any component of
the Equipment for which a bill of sale may be delivered; or
(b) in the case of payment of any other Acquisition
Cost, a duly executed Payment Request Form in substantially the
form attached hereto as Exhibit A.
Acquisition Costs will be paid directly to the Vendors or payee
unless the Lessee requests payment to be made to the Vendors or payee and
another party jointly, in which case such cost shall be paid jointly.
The Escrow Agent shall be responsible for the safekeeping and investment
of the moneys held in the Acquisition Fund, the payment thereof in
9
accordance with this Section, the application of amounts paid pursuant to
such Payment Request Forms, and the sufficiency of the moneys credited to
the Acquisition Fudn to make all of the payments herein required.
Section 2.05. Transfers Upon Completion. Upon payment of the
Acquisition Costs and the filing with a scrow gent of the Certificate
of Acceptance, or in any event one year from the Closing Date, the Escrow
Agent shall transfer all remaining moneys in the Acquisition Fund to the
Lessee.
ARTICLE III
INSURANCE; INSURANCE FUND
Section 3.01. Maintenance of Insurance. The Lessee shall
maintain or cause to be maintained at all imes, public liability
insurance, property damage insurance, fire and extended coverage, in the
amounts, form and the coverage required by the provisions of the Lease
and Option Agreement.
Section 3.02. Establishment and Application of Insurance Fund.
Any Net Proceeds of any such insurance against accident to or es ruction
of any property constituting any part of the Equipment collected by the
Lessee in the event of any such accident or destruction shall be
deposited with . the Escrow Agent in a special escrow fund designated as
the "Equipment Insurance Fund ", (hereinafter referred to as the
"Insurance Fund "), which shall be applied and disbursed by the Escrow
Agent a follows:
(a) If the Lessee Representative shall file a
certificate with the Escrow Agent stating that such proceeds are
to be utilized for the repair or replacement of a damaged or
destroyed portion of the Equipment, then the Lessee shall cause
such portion of the Equipment to be repaired, reconstructed or
replaced to at least the same good order, repair and condition as
it was in prior to the damage or destruction, insofar as the same
may be accomplished by the use of said Net Proceeds. The Escrow
Agent shall permit withdrawals of said Net Proceeds from time to
time upon receiving a certificate of the Lessee Representative,
stating that the Lessee has expended moneys or incurred
liabilities in an amount equal to the amount therein requested to
be paid over to it for the purpose of such repair or replacement
and specifying the items for which such moneys were expended, or
such liabilities were incurred, in such reasonable detail as the
Escrow Agent may in its discretion require.
(b) If the Lessee Representative shall file a
certificate with the Escrow Agent stating that such proceeds are
to be applied to the payment or prepayment of Rental Payments,
then the Escrow Agent shall pay such proceeds.
ARTICLE IV
MONEYS IN FUNDS; INVESTMENT
Section 4.01. Held in Trust. The moneys and investments held by
the Escrow Agent under t is greement ae irrevocably held in trust for
the benefit of the Lessee, Lessor and for the purposes herein specified,
and such moneys and any income or interest earned thereon, shall be
expended only as provided in this Agreement, and shall not be subject to
levy or attachment or lien by or for the benefit of any creditor of
either Lessor or the Lessee or either of them.
Section 4.02. Investments Authorized. Moneys held by the Escrow
Agent hereunder may be invested, an upon written order of the Lessee
Representative shall, be invested by the Escrow Agent in Qualified
Investments. Such investments shall be registered in the name of the
Escrow Agent and held by the Escrow Agent. The Escrow Agent may purchase
or sell to itself or any affiliate, as principal or agent, investments
authorized by this Section. Such investments and reinvestments shall be
made giving full consideration for the time at which funds are required
to be available. The Escrow Agent may act as purchaser or agent in the
making or. disposing of any-investment.
Section 4.03. Qualified Investments. "Qualified Investments"
consist of: (i) direct general o iga ions of the United States of
America; (ii) obligations guaranteed by the United States; (iii) general
obligations of the agencies and instrumentalities of the United States;
(iv) certificates of deposit, time deposits or demand deposits with any
bank or savings institution qualified as a depository of public funds in
the State of California, including the Escrow Agent or any affiliate
thereof, provided that such certificates of deposit, time deposits or
demand deposits, if not insured by the Federal Deposit Insurance
Corportion or the Federal Savings and Loan Insurance Corporation, are
fully secured by obligations described in Clauses (i), (ii), (iii), or
(iv) bank repurchase agreements issued by a bank described in Clause
(iv), the underlying securities of which are obligations described in
Clauses (i), (ii), or (iii) above.
Section 4.04. Disposition of Investments. Any income received on
the investment of moneys held by the Escrow Agent hereunder shall be
credited to the respective fund for which it is held, subject to any
provision of this Escrow Agreement specifying any different credit or the
transfer thereof to another fund.
Section 4.05. Accounting. The Escrow Agent shall furnish to the
Lessee, no less than quay er y, an accounting of all investments made by
the Escrow Agent. The Escrow Agent shall not be responsible or liable
for any loss suffered in connection with any investment of funds made by
it in accordance with this Section.
Section 4.06. Allocation of Earnings. Any income, profit or loss
on such investments Shall e eposi a in or charged to the respective
funds from which such investments were made, and any interest on any
deposit of funds shall be deposited in the fund from which such deposit
was made, except that as provided in Sections 4.03 and 4.04, any such
interest, income or profit from the deposits or investments of the
Reserve Fund prior to the receipt by the Escrow Agent of the Certificate
of Completion shall be transferred by the Escrow Agent to the Acquisition
Fund and any such interest, income or profit from the Reserve Fund shall
thereafter be paid to the Lessee.
Section 4.07. Valuation and Disposition of Investments. For the
purpose of determining the amount in any fund, all ua i ie Investments
credited to such fund shall be valued at cost (exclusive of accrued
interest after the first interest payments following purchase). The
Escrow Agent may sell at the best price obtainable, or present for
redemption, any Qualified Investment so purchased by the Escrow Agent,
whenever it shall be necessary in order to provide moneys to meet any
required payment, transfer, withdrawal or disbursement from the fund to
which such Qualified Investment is credited, and the Escrow Agent shall
not be liable or responsible for any loss resulting from such investment.
Section 4.08. Deposit of Moneys in Funds. All moneys held by the
Escrow Agent in any ot the tunds esta is a pursuant to this Agreement,
except such moneys which are at the time invested as herein provided,
shall be deposited in demand or time deposits (which may be represented
by time certificates of 'deposit) in any bank or trust company authorized
to accept deposits of public funds (including the banking department of
the Escrow Agent), and, as and to the extent required by law, shall be
secured at all times by obligations which are eligible by law to secure
deposits of public moneys. Such obligations shall be deposited with such
bank or banks as may be selected by the Escrow Agent, and held by or for
the account of the Escrow Agent as security for such deposits.
Section 4.09. Commingling; Repurchase Agreements. The Escrow
Agent may, and upon the written request ot the essee s a , _commingle
any of the funds held by it pursuant to this Agreement into a separate
fund or funds for investment purposes only, provided, however, that all
funds or accounts held by the Escrow Agent hereunder shall be accounted
for separately notwithstanding such commingling by the Escrow Agent.
The Escrow Agent may enter into agreements with itself or others
that provide for the repurchase of investments authorized under this
article VI at times which coincide with the times at which rwneys are
required to be expended. The investments that are the subject of such
agreements shall be held as trust funds by the Escrow Agent or by a
Federal Reserve Bank and shall be deemed at all times to be part of the
fund or account from which moneys were used to purchase Qualified
Investments. Such investments shall be held under repurchase agreements
that permit the Escrow Agent to sell such investments if the other party
to such agreement shall fail promptly to repurchase such investments on
the date required by the repurchase agreement. In such event, the Escrow
Agent shall sell such investments at the best price obtainable whenever
it shall be necessary.
0
ARTICLE V
THE ESCROW AGENT
0
compensation--
. htit not
to, and fees and expenses of, indepeAdent appraisers, eeeountant
Section 5.02. Removal of Escrow Agent. The Lessee and Lessor may
by written agreement between emse ves, may a written request, at any
time and. for any reason; remove the Escrow Agent and any successor
thereto, and shall thereupon appoint a successor or successors thereto,
but any such successor shall be a bank or trust company doing business
and having an office in Los Angeles, California, having a combined
capital (exclusive of borrowed capital) and surplus of at least One
Hundred Millions dollars ($100,000,000), and subject to supervision or
examination by .federal or state authority. If such bank or trust
publishes a report of condition at least annually, pursuant to law or to
the requirements of any supervising, or examining authority abover
referred to, then for the purposes of this Section the combined capital
and surplus of such bank or trust company shall be deemed to be its
combined .capital and surplus set forth in its most recent report of
condition so published. -
Section 5.03. Resignation of Escrow Agent. The Escrow Agent or
any successor may at any time resign by giving written notice to the
Lessee and Lessor of its intention to resign and of the proposed date of
resignation, which shall be a date not less than 60 days after such
notice, unless an earlier resignation date and the appointment of a
successor Escrow Agent shall have been or are approved.
Upon receiving such notice of resignation, the Lessee shall
promptly appoint a successor Escrow Agent by an instrument in writing;
provided however, that in the event the Lessee fails to appoint a
successor Escrow Agent within 30 days following receipt of such written
notice of resignation, Lessor may appoint a successor Escrow Agent, and
in the event that Lessor fails to appoint a successor Escrow Agent within
30 days following the expiration of such initial 30 -day period the
resigning Escrow Agent may petition the appropriate court having
jurisdiction to appoint a successor Escrow Agent. Any resignation or
removal of the Escrow Agent shall become effective upon acceptance of
appointment by the successor Escrow Agent.
Section 5.04. Appointment of Agent. The Escrow Agent may appoint
an agent to exercise any of the powers, rights or remedies granted to the
Escrow Agent under this Agreement, and to hold title to property or to
take any other action which may be desirable or necessary.
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Section r$.05. Mer er or Consolidation. A y compan into whi h
the Escrow Agent may be one -Re; Oor eenvo-.-�= wit�i which yit may �e
consolidated, or any company resulting from any merger, conversion or
consolidation to which it shall be a party, or any comapny to which the
Escrow Agent may sell or transfer all or substantially all of its
corporate trust business (provided that such company shall be eligible
under Section 7.02) shall be the successor to the Escrow Agent without
the execution or filing of any paper or further act, anything herein to
the contrary notwithstanding.
Section 5.06. Protection and Rights of the Escrow Agent. The
Escrow Agent shall be protected and shall incur no liability in acting or
proceeding in good faith upon any resolution, notice, telegram, request,
consent, waiver, certificate, statement, affidavit, voucher, bond,
requisition or otherpaper or document which it shall in good faith
believe to be genuine and to have been passed or signed by the proper
board or person or to have been prepared and furnished pursuant to any of
the provisions of this Agreement, and the Escrow Agent shall be under no
duty to make any investigation or inquiry as to any statements contained
or matters referred to in any such instrument, but may accept and rely
upon the same as conclusive evidence of the truth and accuracy of such
statements. The Escrow Agent may consult with counsel, who may be
counsel to Lessor or the Lessee, with regard to legal questions, and the
opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken or suffered by it hereunder in
good faith in accordance therewith.
. Whenever in the administration of its duties under this Agreement,
the Escrow Agent shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering any action hereunder,
such matter (unless other evidence in respect therof be herein
specifically prescribed), shall be deemed to be conclusively proved and
established by the certificate of the Lessee Representative or the Lessor
Representative and such certificat shall be full warranty to the Escrow
Agent for any action taken or suffered under the provisions of this
Agreement upon the faith thereof, but in its discretion the Escrow Agent
may, in lieu therof, accept other evidence of such matter or may require
such additional evidence as to it may seem reasonable.
The recitals, statements and representations by the Lessee and
Lessor contained in this Agreement shall be taken and construed as made
by and on the part of the Lessee and Lessor, as the case may be, and not
by the Escrow Agent, and the Escrow Agent does not assume, and shall not
have, any responsibility or obligation for the correctness of any
thereof.
The Escrow Agent may execute any of the trusts or powers hereof
and perform the duties requried of it hereunder by or through attorneys,
agents, or receivers, and shall be entitled to advice of counsel
concerning all matters of trust and its duty hereunder, and the Escrow
Agent shall not be answerable for the default or misconduct of any such
attorney, agent, or receiver selected by it with reasonable care. The
Escrow Agent shall not be answerable for the exercise of any discretion
or power under this Agreement or for anything whatever in connection with
the funds and accounts established hereunder, except only for its own
willful misconduct or gross negligence.
ARTICLE VI
DISCHARGE OF LIEN
Section 6.01. Discharge of Lien; Further Assurances. Upon the
payment by Lessee of all ren a payments or upon Lessee's exercise of its
option to purchase the equipment, the Escrow Agent and Lessor shall take
whatever action shall be necessary to discharge any lien on the
Equipment, and shall execute and deliver any and all such further
instruments and assurances as may be reasonably necessary or proper to
concummate such discharge.
ARTICLE VII
ASSIGNMENT; AMENDMENTS
Section 7.01. Assignment. Except as provided in Article V, the
rights and duties of each o'f-Tffe— parties under this Agreement shall not
be assignable to any person or entity without the written consent of all
of the other parties; provided that under no circumstances shall the
consent of the Owners be required.
Section 7.02. Amendments. This Escrow Agreement may be amended
in writing by agreement among all of the parties, but no such amendment
shall become effective until approved. Notwithstanding the foregoing,
this Escrow Agreement may also be modified or amended at any time without
consent, but only (1) for the purpose of making such provision for the
purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective provision contaned in this Escrow Agreement,
or (2) in regard to questions arising under this Escrow Agreement which
the Lessee may deem necessary or desirable and not inconsistent with this
Escrow Agreement and which shall not adversely affect the interests;
provided that Lessor, the Lessee and the Escrow Agent may rely in
entering into any such amendment hereof upon an opinion of nationally
recognized bond counsel acceptable tot he Escrow Agent stating that the
requirements of this sentence shall have been met with respect to such
amendment.
ARTICLE VIII
COVENANTS; NOTICES
Section 8.01. Compliance with and Enforcement of Escrow
Agreement. The Lessee covenants and agrees to perform a I I ob 11 gall ons
an uties imposed on it under the Lease and Option Agreement.
Section 8.02. Lessee Budgets. The Lessee agrees to furnish to
the Escrow Agent a copy of its final -budget as provided in the Lease and
Option Agreement.
Section 8.03. Lease and Option Agreement. Lessor covenants and
agrees to perform all obligations and duties imposed on it under the
Lease and Option Agreement.
Section 8.04. Further Assurances. Lessor and the Lessee will
make, execute and deliver any and all such further resolutins,
instruments and assurances as may be reasonably necessary or proper to
carry out the intention or to facilitate the performance of this
Agreement, and for the better assuring and confirming the rights and
benefits provided herein.
ARTICLE IX
EVENT OF DEFAULT
Section 9.01. Events of Default Defined. The following shall be
"events of default" under this greement an the terms "events of
default" and "default" shall mean, whenever they are used in this
Agreement, any one or more of the following events:
(a) Any event of default under the Lease and Option Agreement, as
defined therein.
(b) Failure by the Lessee or Lessor to observe and perform any
covenant, condition or agreement on its part to be observed or performed
under this Agreement, other than as such failure may constitute an event
of default under clause (a) of this Section, for a period of thirty (30)
dats after written notice specifying such failure and requesting that it
be remedied has been given to the defaulting party by any other party
hereto; provided, however, fi the failure stated in the notice cannot be
corrected withint he applicable period, such other parties will not
unreasonably withhold its consent to an extension of such time if
corrective action is instituted by the defaulting party within the
applicable period and diligently pursued until the default is corrected.
Section 9.02.
Remedies on Default.
Upon
the occurrence and
continuance of any
event of e au t specs ied
in the
Lease and Option
Agreement, Lessor may
proceed to:
(a) Take possession of the Equipment and exclude Lessee from
using it until the default is cured, holding the Lessee liable for the
Rental Payments and other amounts payable by the Lessee under and
pursuant to the Lease and Option Agreement; or
(b) Terminate the Lease and Option Agreement, take possession of
the Equipment, and (i) lease or sell (pursuant to an installment sale
agreement) the Equipment to a governmental entity so that the interest
component of the rental amounts due with respect to such lease or
installment sale agreement will not become, in the unqualified opinion of
nationally recognized bond counsel acceptable to the Escrow Agent,
subject to Federal or State of California income taxes; or (ii) sell the
Equipment other than on an installment sale basis described in clause (i)
of this sentence, but only if such lease or installment sale agreement is
not practicable; or
0 0
(c) Take whatever action at law or in equity may appear necessary
or desirable to enforce its rights as Lessor of the Equipment.
Section 9.03. No Remedy Exclusive. No remedy herein conferred
upon or reserved is intended to be exc usive and every such remedy shall
be cumulative and shall be in addition to every other remedy given under
the Lease and Option Agreement to Lessor or now or hereafter existing at
law or in equity. No delay or omission to exercise any right or power
accruing upon any default shall be construed to be a waiver thereof, but
any such right and power may be exercised from time to time and as often
as may be deemed expedient. In order to entitle Lessor to exercise any
remedy reserved to it, it shall not be necessary to give any notice other
than such notice as may be required in this Article or by law.
Section 9.04. Agreement to Pay Attorneys' Fees and Expenses. In
the event any party to this Agreement should a au t under any of the
provisions hereof and any nondefaulting party should employ attorneys or
incur other expenses for the collection of moneys on the enforcement or
performance or observance of any obligation or agreement on the part of
the defaulting party herein contained, the defaulting party agrees that
it will on demand therefor pay to such nondefaulting party. the -reasonable
fees of such attorneys and such other expenses incurred by such
nondefaulting party.
Section 9.05. No Additional Waiver Implied by One Waiver. In the
event any covenant contained in this Agreement sou a reac ed by a
party and thereafter waived by another party, such waiver shall be
limited to the particular breach so waived and shall not be deemed to
waive any other breach hereunder.
ARTICLE X
LIMITIATION OF LIABILITY
Section 10.01. Limited Liability of Lessee. Except for the
payment of Rental Payments wen due in accordance with the Lease and
Option Agreement and the performance of the other covenants and
agreements of the Lessee contained in said Agreement, the Lessee shall
have no obligation or liability to any of the other parties with respect
to this Agreement.
Section 10.03. No Liability of Lessor or Escrow Agent for Rental
Payments By Lessee. Except as provided erein, neither Lessor nor twe
Escrow Agent shall have any obligation or liability with respect to the
payment of the Rental payments by the Lessee when due, or with respect to
the performance by the Lessee of any other covenant made by it in the
Lease and Option Agreement.
Section 10.04 Limited Liability of Escrow Agent. The Escrow
Agent shall have no obligation or response > > y or providing
information for the actions or representations of any other party to this
Agreement. The Escrow Agent shall have no obligation or liability to any
of the other parties with respect to this Agreement or the failure or
refusal of any other party to perform any covenant or agreement made by
any of them under this Agreement or the Lease and Option Agreement, but
shall be responsible solely for the business -like performance of the
duties expressly imposed upon it hereunder. The recitals of facts,
covenants and agreements herein contained shall be taken as statements,
covenants and agreements of the Lessee or Lessor (as the case may be),
and the Escrow Agent assumes no responsibility for the correctness of the
same, or makes any representations as to the validity or sufficiency of
this Agreement, or shall incur any responsibility in respect thereof,
other than in connection with the duties or obligations herein imposed
upon it. The Escrow Agent shall not be liable in connection with the
performance of its duties hereunder, except for its own negligence or
willful default.
Section 10.05. Indemnification. Lessor and the Lessee agree to
indemnify and save the Escrow Agent harmless from and..aga.inst all claims,
suits and actions brought against it, or to which it is made a party, and
from all losses and damages suffered by it as a result thereof, where and
to the extent such claim, suit or action arises out of the actions of any
other party to this Agreement including but not limited to the ownership,
operation or use of the Equipment by the Lessee. Such indemnification
shall not extend to claims, suits and actions brought against the Escrow
Agent for failure to perform and carry out the duties specifically
imposed upon and to be performed by it pursuant to this Agreement. In
the event Lessor or the Lessee is required to indemnify the Escrow Agent
as herein provided, Lessor or the Lessee shall be subrogated.to he rights
of the Escrow Agent to recover such losses or damages from any other
person or entity.
Section 10.06. Opinion of Counsel. Before being required to take
any action, the Escrow Agent may require an opinion of Independent
Counsel acceptable to the Escrow Agent, which opinion shall be made
available to the other parties hereto, or a verified certificate of any
party hereto, or both, concerning the proposed action. If it does so in
good faith, Escrow Agent shall be absolutely protected in relying
thereon.
Section 10.07. Limitation of Rights to Parties. Nothing in this
Agreement, expressed or implied, is intended or shall be construed to
give any person other than the Lessee, Lessor, the Escrow Agent any legal
or equitable right, remedy or claim under or in respect of this Agreement
or any covenant, condition or provision hereof; and all such covenants,
conditions and provisions are and shall be for the sole and exclusive
benefit of the Lessee, Lessor, the Escrow Agent.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Filing; Bills of Sale. The Escrow Agent shall be
responsible for the tiling of any supp emental instruments or documents
of further assurance as may be required by law in order to perfrect the
security interests created by this Escrow Agreement, and shall hold all
financing documents and bills of sale, and transfer same, as required by
the provisions of this Agreement.
Section 11.02 Records. The Escrow Agent shall keep complete and
accurate records of aTT— moneys received and disbursed under this
Agreement, which shall be available for .inspection by the Lessee, Lessor,
or the agent of either of them, at any time during regular business
hours.
Section 11.03. Notices. All written notices to be given under
this Agreement shall —Fe—given by mail to the party entitled thereto at
its address set forth in the attached Exhibit B, or at such address as
the party may provide to the other parties in writing from time to time.
Any such notice shall be deemed to have been received 48 hours after
deposit in the United States mail in registered or certified form, with
postage fully prepaid.
Section 11.04. Governing Law. This Agreement shall be construed
and governed in accordance wi a aws of the State of California.
Section 11.05. Partial Invalidity. Any provision of this
Agreement found to be prohibited by aw s a 1 be ineffective only to the
extent of such prohibition, and shall not invalidate the r6"mbinder of
this Agreement.
Section 11.06. Binding Effect; Successors. This Agreement shall
be binding upon and inure to the . ene t o the parties and their
respective. successors and assigns. Whenever in this Agreement any party
hereto is named or referred to such reference shall be deemed to include
the successors or assigns thereof, and all covenants and agreements
contained _in this .Agreement by or on behalf of any party hereto shall
bind and inure to the benefit of the successors and assigns thereof
whether so.expressed or not.
Section 11.07. Execution in Counterparts. This Agreement may be
executed in several Counterparts, each ot which shall be an original and
all of which shall constitute but one and the same agreement.
Section 11.08. Headings. The headings or titles of the several
Articles and Sections ereo , and any table of contents appended to
copies hereof, shall be solely for convenience of reference and shall not
affect the meaning, construction or effect of this Agreement. All
references herein to "Articles ", "Sections ", and other subdivisions are
to the corresponding Articles. Sections or subdivisions of this
Agreement; and the words "herein ", "hereof ", "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any
particular Article, Section or subdivision hereof.
IN WITNESS WHEREOF the parties have executed this Agreement as of
the date and year first above written.
(SEAL)
Attest :: / �'
By: ��i
CITY CLERK
SECURITY PACIFIC NATIONAL BANK
as Escrow Agent
i
SECURITY PACIFIC CAPITAL 14ARKETS
GROUP
By
�Yi cePresi dent
:2
By
LESSE :—�ITY OF NEWPORT BEACH
By:
Title: CITY MANAGER
Date: JUNE 1, 1984
0
EXHIBIT A
Payment Request Form
0
The Escrow Agent is hereby requested to pay from the Acquisition
Fund established by the Escrow Agreement dated as of , by
and among the Escrow Agent, the Lessee and Lessor, to the person or
corporation designated below as Payee, the sum set forth below such
designation, in payment (of all / a portion) of the Acquisition Costs
described below. The amount shown below is due and payable under a
purchase order or contract with respect to the Equipment item cost
described below and has not formed the basis of any prior request for
payment.
Payee:
Amount:
Description of quipmen em Cost:
Dated: ,
City of Newport Beach
Security Pacitic Capital Marke—fs—rr—oup
(Attach duplicate original of Payee's statement)
V
EXHIBIT B
Address of Parties
1. Security Pacific National Bank
333 South Hope Street
Los Angeles, California 90071
2. Security Pacific Capital Markets Group
410 17th Street, Suite 1150
Denver, Colorado 80202
3. City of Newport Beach
P. 0. Box 1768
3300 Newport Beach
Newport Beach, CA 92658
0
Agreement No. 100
MUNICIPAL LEASE AND OPTION C.GREEMENT
Lessor: Security Pacific
410 17th Street,
Denver, Colorado
Capital Markets Group
Suite 1150
80202
Lessee: City of Newport Beach
P. 0. Box 1768
3300 Newport Blvd.
Newport Beach, California 92658
This Municipal Lease and Option Agreement (the "Agreement ") entered into
between Security Pacific Capital Markets Group, a corporation duly organized
and existing under the laws of the State of Delaware ( "Lessor "), and the City
of Newport Beach ( "Lessee "), a body corporate and politic duly organized and
existing under the laws of the State of California ( "State ");
W I T N E S S E T H:
WHEREAS, Lessor desires to lease the Equipment, as hereinafter defined,
to Lessee, and Lessee desires to lease the Equipment from Lessor, subject to
the terms and conditions of and for the purposes set forth in this Agreement;
and
WHEREAS, Lessee is authorized under the Constitution and laws of the
State to enter into this Agreement for the purposes set forth herein;
NOW, THEREFORE, for and in consideration of the premises hereinafter
contained, the parties hereby agree as follows:
ARTICLE I
COVENANTS OF LESSEE
Lessee represents, covenants and warrants, for the benefit of Lessor and
its assignees, as follows:
(a) Lessee is a public body, corporate and politic, duly organized and
existing under the Constitution and laws of t,ie State.
(b) Lessee will do or cause to be done all things necessary to preserve
and keep in full force and effect its existence as a body corporate and
politic.
(c) Lessee is authorized under the Constitution and laws of the State to
enter into this Agreement and the transaction contemplated hereby, and to
perform all of its obligations hereunder.
(d) Lessee has been duly authorized to execute and deliver this
Agreement under the terms and provisions of the resolution of its governing
1
-.
Agreement No. 100
body, attached hereto as Exhibit A, or by other appropriate official
approval, and further represents, covenants and warrants that all
requirements have been met, and procedures have occurred in order to ensure
the enforceability of this Agreement, and Lessee has complied with such
public bidding requirements as may be applicable to this Agreement and the
acquisition by Lessee of the Equipment hereunder. Lessee shall cause to be
executed an opinion of its counsel substantially in the form attached hereto
as Exhibit B.
(e) During the term of this Agreement, the Equipment will be used by
Lessee only for the purpose of performing one or more governmental or
proprietary functions of Lessee consistent with the permissible scope of
Lessee's authority and will not be used in a trade or business of any person
or entity other than the Lessee.
(f) During the period this Agreement is in force, Lessee will annually
provide Lessor with current financial statements, budgets, proof of
appropriation for the ensuing fiscal year and such other financial
information relating to the ability of Lessee to continue this Agreement as
may be reasonable requested by Lessor or its assignee.
(g) The Equipment will have a useful life in the hands of the Lessee
that is substantially in excess of the Lease Term and all Renewal Terms.
(h) The Equipment is, and during the period this Agreement is in force
will remain, personal property and when subjected to use by the Lessee under
this Agreement, will not be or become fixtures.
ARTICLE II
DEFINITIONS
The following terms will have the meanings indicated below unless the
context clearly requires otherwise:
"Agreement" means this Municipal Lease and Option Agreement, including
the Exhibits attached hereto, as the same may be supplemented or amended from
time to time in accordance with the terms hereof.
"Certificate of Acceptance" means the Certificate of Acceptance attached
hereto as Exhibit F, whereby Lessee acknowledges receipt of the Equipment is
good condition.
"Closing Date" means the date on which Lessor deposits with the Escrow
Agent the funds required to be deposited by Section 3.01 of this Agreement.
"Equipment" means the property described in Exhibit D and which is the
subject of this Agreement.
"Lease Term" means the time during which this Agreement is in effect as
provided for in this Agreement under Section 4.02.
"Lessee" means the entity which is described in the first paragraph of
this Agreement and which is leasing the Equipment from Lessor under the
provisions of this Agreement.
2
• • Agreement No. 100
"Lessor" means (i) Security Pacific Capital Markets Group a Delaware
corporation, acting as Lessor hereunder; (ii). any surviving, resulting or
transferee corporation; and (iii) except where the context requires
otherwise, any assignee(s) of Lessor.
"Purchase Price" means the amount which Lessee may, in its
discretion, pay to Lessor in order to purchase the Equipment, as set forth in
Exhibit E hereto.
"Rental Payments" means the basic rental payments payable by Lessee
pursuant to the provisions of this Agreement during the Lease Term. Rental
Payments shall be payable by Lessee to the Lessor or its assignee in the
amounts and at the times during the Lease Term, as set forth in Exhibit E of
this Agreement.
"Vendor" means the manufacturer of the Equipment as well as the agents or
dealers of the manufacturer from whom Lessor purchased or is purchasing the
Equipment.
ARTICLE III
DEPOSIT OF MONEYS; ACQUISITION OF EQUIPMENT
Section 3.01. Deposit of Moneys. On the Closing Date, Lessor shall
cause to be deposited the sum of .00 in the Acquisition Fund held by
the Escrow Agent.
Section 3.02. Acquisition of the Equipment. Lessor agrees to acquire
the Equipment pursuant to the Lessee's specifications. Lessee will supervise
and provide for, as agent for Security Pacific, the complete acquisition of
the Equipment pursuant to the terms of the Agency Agreement, dated as
Of 6/1/84 , by and between Lessor and Lessee. Failure by the Vendors to
per orf m sTall not affect Lessee's obligation to make Rental Payments under
this Agreement. Lessee agrees that the Equipment will be acquired in
accordance with the specifications therefor and on file with the Lessee.
Lessee further agrees that it will cause the acquisition of the Equipment to
be diligently performed after the deposit of funds with the Escrow Agent
pursuant to Section 3.01, and that the Equipment will be substantially
acquired in accordance with said specifications within one year from the
Closing Date.
Upon completion of acquisition of the Equipment satisfactory to the
Lessee, but in any event not later than thirty (30) days following completion
of such acquisition, Lessee shall deliver to the Escrow Agent a Certificate
of Acceptance.
Section 3.03. Payment of Acquisition Costs. Payment to the Vendors of
the cost of acquiring the Equipment Shall e maife from the moneys deposited
with the Escrow Agent as provided in Section 3.01, which shall be disbursed
for thepurpose in accordance upon compliance with Section 2 of the Escrow
Agreement.
ARTICLE IV
LEASE TERM
Section 4.01. Lease of Equipment. Lessor hereby demises, leases and
lets to Lessee, anC Lessee ren s, eases and hires from Lessor, the
Equipment, in accordance with the provisions of this Agreement, to have and
to hold for the Lease Term.
3
•
• Agreement No. 100
Section 4.02. Commencement of Lease Term. The Lease Term shall commence
on the Commencement a e as indicated in Exhibit F and shall terminate a
specified in Section 4.03.
Section 4.03. Termination of Lease Term. The Lease Term will terminate
upon the earliest of any of the tollowing events:
(a) the exercise by Lessee of the option to purchase the Equipment
granted under the provisions of Articles IX or XI of this Agreement;
(b) a default by Lessee and Lessor's election to terminate this
Agreement under Article XIII; or
(c) the payment by Lessee of all Rental Payments required to be paid by
Lessee hereunder.
ARTICLE V
ENJOYMENT OF EQUIPMENT
Lessor hereby covenants to provide Lessee during the Lease Term with
quiet use and enjoyment of the Equipment, and Lessee shall during the Lease
Term peaceably and quietly have and hold and enjoy the Equipment, without
suit, trouble or hindrance from Lessor, except as expressly set forth in this
Agreement.
Lessor shall have the right at all reasonable times during business hours
to enter into and upon the property of Lessee for the purpose of inspecting
the Equipment.
ARTICLE VI
RENTAL PAYMENTS
Section 6.01. Payment of Rental Payments. Lessee shall pay Rental
Payments, exclusively from legally avai a e un s, in lawful money of the
United States of America to Lessor or, in the event of assignment by Lessor,
to its assignee, in the amount and on the dates set forth in Exhibit E
hereto.
Section 6.02. Interest and Principal Components. A portion of each
Lease Rental Payment is paid as, and represents payment of, interest, and the
balance of each Rental Payment is paid as, and represents payment of,
principal. Exhibit E hereto sets forth the interest component of each Rental
Payment during the Lease Term.
Section 6.03. Rental Payments to be Unconditional. The obligations of
Lessee to make payment of e Ren a —Payments ---required under this Article VI
and other sections hereof, and to perform and observe the covenants and
agreements contained herein, shall be absolute and unconditional in all
events, except as expressly provided under this Agreement. Notwithstanding
any dispute between Lessee and Lessor, any Vendor or any other person, Lessee
shall make all payments of Rental Payments when due and shall not withhold
any Rental Payments pending final resolution of such dispute, nor shall
Lessee assert any right of set -off or counterclaim against its obligation to
make such payments required under t`is Agreement. Lessee's obligation to
make Rental Payments during the Lease Term shall not be abated through
accident or unforeseen circumstances.
4
_ ARTICLE VII Agree -ent ho. 100
T E TO EQUIPMENT; SECURITY INTE PT
Section 7.01. Title to the Equipment. During the term of this
Agreement, title to the Equipment and any all additions, repairs,
replacements or modifications shall vest in Lessee, subject to the rights of
Lessor under this Agreement. In the event of default as set forth in Section
13.02, title to the Equipment, shall immediately vest in Lessor, and Lessee
will reasonably surrender possession of the Equipment to Lessor.
Section 7.02. Security Interest. To secure the payment of all of
Lessee's obligations under this greement, Lessee grants to Lessor a security
interest constituting a first lien on the Equipment and on all additions,
attachments, accessions and substitutions thereto, and on any proceeds
therefrom. Lessee agrees to execute such additional documents, including
financing statements, affidavits, notices and similar instruments, in form
satisfactory to Lessor, which Lessor deems necessary or appropriate to
establish and maintain its security interest, and upon assignment, the
security interest of any assignee of Lessor, in the Equipment.
ARTICLE VIII
MAINTENANCE; MODIFICATION; TAXES;
INSURANCE AND OTHER CHARGES
Section 8.01. Maintenance of Equipment by Lessee. Lessee agrees that at
all times during the Lease lerm Lessee wi , at Lessee's own cost and
expense, maintain, preserve and keep the Equipment in good repair, working
order and condition, and that Lessee will from time to time make or cause to
be made all necessary and proper repairs, replacements and renewals. Lessor
shall have no responsibility in any of these matters, or for the making of
improvements or additions to the Equipment. If requested by Lessor, Lessee
will enter into a maintenance contract for the Equipment with Vendor.
Section 8.02. Taxes, Other Governmental Charges and Utility Charges.
The parties to this Agreement contemp I ate that the Equi pmen wi e uTeT for
a governmental or proprietary purpose of Lessee and, therefore, that the
Equipment will be exempt from all taxes presently assessed and levied with
respect to personal property. In the event that the use, possession or
acquisition of the Equipment is found to be subject to taxation in any form
(except for income taxes of Lessor), Lessee will pay during the Lease Term,
as the same respectively com- due, all taxes and governmental charges of any
kind whatsoever that may at any time be lawfully assessed or levied against
or with respect to the Equipment and any equipment or other property acquired
by Lessee in substitution for, as a renewal or replacement of, or a
modification, improvement or addition to the Equipment, as well as all gas,
water, steam, electricity, heat, poi;er, telephone, utility and other charges
incurred in the operation, maintenance, use, occupancy and upkeep of the
Equipment; provided that, with reppect to any governmental charges that may
lawfully be paid in installments over a period of years, Lessee shall be
obligated to pay only such installments as have accrued during the time this
Agreement is in effect.
Section 8.03. Provisions Regarding Insurance. At its own expense Lessee
shall cause casualty, public liabilty and property damage insurance to be
carried and maintained, or shall demonstrate to the satisfaction of Lessor
that adequate self- insurance is provided with respect to the Equipment,
sufficient to protect the Full Insurable Value (as that term is hereinafter
defined) of the Equipment, and to protect Lessor from liability in all
events. All insurance proceeds from casualty losses shall be payable as
hereinafter provided in this Agreement. Lessee shall furnish to Lessor
5
. 0 Agreement No. 100
Certificates evidencing such coverage throughout the Lease Term.
Alternatively, Lessee may insure the Equipment under a blanket insurance
policy or policies which cover not only the Equipment but other properties.
If Lessee shall insure similar properties by self - insurance, Lessee will
insure the Equipment by means of an adequate insurance fund.
The term "Full Insurable Value" as used herein shall mean the full
replacement value of the Equipment.
Any insurance policy pursuant to this Section 8.03 shall be so written or
endorsed as to make losses, if any, payable to Lessee and Lessor as their
respective interests may appear. The Net Proceeds (as defined in Section
9.01) of the insurance required in this Section 8.03 shall be applied as
provided in Article IX hereof. Each insurance policy provided for in this
Section 8.03 shall contain a provision to the effect that the insurance
company shall not cancel the policy or modify it materially and adversely to
the interest of Lessor without first giving written notice thereof to Lessor
at least 10 days in advance of such cancellation.
Section 8.04. Advances. In the event Lessee shall fail to maintain the
full insurance coverage required by this Agreement or shall fai.h,to keep the
Equipment in good repair and operating condition, Lessor may (but shall be
under no obligation to) purchase the required policies of insurance and pay
the premiums on the same or may make such repairs or replacements as are
necessary and provide for payment thereof; and all amounts so advanced
therefor by Lessor shall become additional rent, which amounts, together with
interest thereon at the rate of 12% per annum, Lessee agrees to pay.
ARTICLE IX
DAMAGE, DESTRUCTION AND CONDEMNATION:
USE OF NET PROCEEDS
Section 9.01. Damage, Destruction and Condemnation. Unless Lessee shall
have exercised its option to purchase the quipment y making payment of the
Purchase Price as provided herein, if prior to the termination of the Lease
Term (a) the Equipment or any portion therof is destroyed (in whole or in
part) or is damaged by fire or other casualty or (b) title to, or the
temporary use of, the Equipment or any part thereof or the estate of Lessee
or Lessor in the Equipment or any part thereof shall be taken under the
exercise of the power of eminent domain by any governmental body or by any
person, firm or corporation acting under governmental authority, Lessee and
Lessor will cause the Net Proceeds of any insurance claim or condemnation
award to be applied to the prompt repair, restoration, modification or
improvement of the Equipment. Any balance of the Net Proceeds remaining
after such work has been completed shall be paid to Lessee.
For purposes of Section 8.03 and this Article IX, the term "Net Proceeds"
shall mean the amount remaining from the gross proceeds of any insurance
claim or condemnation award after deducting all expenses (including
attorneys- fees) incurred in the collection of such claim or award.
Section 9.02. Insufficiency of Net Proceeds. If the Net Proceeds are
insufficient to pay in full the cost of any repair, restoration, modification
or improvement referred to in Section 9.01 hereof, Lessee shall either (a)
complete the work and pay any cost in excess of the amount of the Net
0
L
Agreement No. 100
Proceeds, and Lessee agrees that if by reason of any such insufficiency of
the Net Proceeds, Lessee shall make any payments pursuant to the provisions
of this Section 9.02, Lessee shall not be entitled to any reimbursement
therefor from Lessor nor shall Lessee be entitled to any diminution of the
amounts payable under Article VI hereof, or (b) if Lessee is not in default
hereunder, Lessee shall pay to Lessor the amount of the then applicable
Purchase Price, and, upon such payment, the Lease Term shall terminate and
Lessor's security interest in the Equipment shall terminate as provided in
Article XI of this Agreement. The amount of the Net Proceeds in excess of
the then applicable Purchase Price, if any, may be retained by Lessee.
ARTICLE X
DISCLAIMER OF WARRANTIES; VENDOR'S
WARRANTIES; USE OF THE EQUIPMENT
Section 10.01. Disclaimer of Warranties. LESSOR MAKES NO WARRANTY OR
REPRESENTATION, EIIHLR EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN,
CONDITION, MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR FITNESS FOR
USE OF THE EQUIPMENT, OR WARRANTY WITH RESPECT THERETO. In no event shall
Lessor be liable for an incidental, indirect, special or consequential damage
in connection with or arising out of this Agreement or the existence,
furnishing, functioning or Lessee's use of any item or products or services
provided for in this Agreement.
Section 10.02. Vendor's Warranties. Lessor hereby irrevocably appoints
Lessee its agent and a orney -in- act wring the Lease Term, so long as
Lessee shall not be in default hereunder, to assert from time to time
whatever claims and rights including warranties of the Equipment, which
Lessor may have against the Vendor of the Equipment. Lessee's sole remedy
for the breach of such warranty, indemnification or representation shall be
against the Vendor of the Equipment, and not against Lessor, nor shall such
matter have any effect whatsoever on the rights and obligations of Lessor
with respect to this Agreement, including the right to receive full and
timely payments hereunder. Lessee expressly acknowledges that Lessor makes,
and has made, no representation or warranties whatsoever as to the existence
or availability of such warranties of the Vendor of the Equipment.
Section 10.03. Use of the Equipment. Lessee will not install, use,
operate or maintain the Equipment improperly, carelessly, in violation of any
applicable law or in a manner contrary to that contemplated by this
Agreement. Lessee shall provide all permits and licenses, if any, necessary
for the installation and operation of the Equipment. In addition, Lessee
agrees to comply in all respects (including, without limitation, with respect
to the use, maintenance and operation of each item of the Equipment) with all
laws of the jurisdictions in which its operations involving any item of
Equipment may extend and any legislative, executive, administrative or
judicial body exercising any power or jurisdiction over the items of the
Equipment or its interest or rights under this Agreement.
7
Agreement Ho. 100
ARTICLE XI
OPTION TO PURCHASE
At the request of Lessee, Lessor's security interest in the Equipment
will be terminated and this Agreement shall terminate:
(a) at the end of the Lease Term, upon payment in full of Rental
Payments due hereunder; or
(b) during the Lease Term, upon payment by Lessee of the then applicable
Purchase Price; or
(c) if the Lease Term is terminated pursuant to Article IX of this
Agreement, in the event of total damage, destruction or condemnation of the
Equipment and, if Lessee is not on such date in default under this Agreement,
upon payment of the then applicable Purchase Price to Lessor.
ARTICLE XII
ASSIGNMENT, SUBLEASING, INDEMNIFICATION
MORTGAGING AND SELLING
Section 12.01. Assignment by Lessoi". This Agreement, and the
obligations of Lessee to make payments hereunder, may be assigned and
reassigned in whole or in part to one or more assignees or subassignees by
Lessor at any time subsequent to its execution, without the necessity of
obtaining the consent of Lessee; provided, however, that no such assignment
or reassignment shall be effective unless and until (i) Lessee shall have
received notice of the assignment or reassignment disclosing the name and
address of the assignee or subassignee, and (ii) in the event that such
assignment or reassignment is made to a bank or trust company as trustee for
holders of certificates representing interests in this Agreement, such bank
or trust company agrees to maintain, or cause to be maintained, a book -entry
system by which a record of the names and addresses of such holders as of any
particular time is kept and agrees, upon request of Lessee, to furnish such
information to Lessee. Upon receipt of notice of assignment, Lessee agrees
to reflect in a book entry the assignee designated in such notice of
assignment, and to make all payments to the assignee designated in the notice
of assignment, notwithstanding any claim, defense, setoff or counterclaim
whatsoever (whether arising from a breach of this Agreement or otherwise)
that Lessee may from time to time have against Lessor, or the assignee.
Lessee agrees to execute all documents, including notices of assignment and
chattel mortgages or financing statements which may be reasonably requested
by Lessor or its assignee to protect their interests in the Equipment and in
this Agreement.
Section 12.02. No Sale, Assignment or Subleasing by Lessee. This
Agreement and the interest of Lessee in the Lquipment may not sold,
assigned or encumbered by Lessee without the prior written consent of Lessor.
E
• • Agreement No. 100
Section 12.03. Release and Indemnification Covenants. To the extent
permitted by the laws an Constitution o tate Zessee shall protect,
hold harmless and indemnify Lessor from and against any and all liability,
obligations, losses, claims and damages whatsoever, regardless of cause
therof, and expenses in connection therewith, including, without limitation,
counsel fees and expenses, penalties and interest arising out of or as the
result of the entering into of this Agreement, the ownership of any item of
the Equipment, the ordering, acquisition, use, operation, condition,
purchase, delivery, rejection, storage or return of any item of the Equipment
or any accident in connection with the operation, use, condition, possession,
storage or return of any item of the Equipment resulting in damage to
property or injury to or death to any person. The indemnification arising
under this paragraph shall continue in full force and effect notwithstanding
the full payment of all obligations under this Agreement or the termination
of the Lease Term for any reason. Lessee agrees not to withhold or abate any
portion of the payments required pursuant to this Agreement by reason of any
defects, malfunctions, breakdowns or infirmities of the Equipment.
ARTICLE XIII
EVENTS OF DEFAULT AND REMEDIES
Section 13.01. Events of Default Defined. The following shall be
"events of default" under is greemenE an a terms "event of default" and
"default" shall mean, whenever they are used in this Agreement, any one or
more of the following events:
(a) Failure by Lessee to pay any Rental Payment or other payment
required to be paid hereunder at the time specified herein; and
(b) Failure by Lessee to observe and perform any covenant, condition or
agreement on its part to be observed or performed, other than as referred to
in Section 13.01 (a), for a period of 30 days after written notice,
specifying such failure and requesting that it be remedied as given to Lessee
by Lessor, unless Lessor shall agree in writing to an extension of such time
prior to its expiration; provided, however, if the failure stated in the
notice cannot be corrected within the applicable period. Lessor will not
unreasonably withhold its consent to an extension of such time if corrective
action is instituted by Lessee within the applicable period and diligently
pursued until the default is corrected.
If by reason of force majeure Lessee is unable in whole or in part to
carry out its agree.— on i s part herein contained, other than the
obligations on the part of Lessee contained in Article VI hereof, Lessee
shall not be deemed in default during the continuance of such inability. The
term "force majeure" as used herein shall mean, without limitation, the
following: acts of God, strikes, lockouts or other industrial disturbances;
acts of public enemies, order or restraints of any kind of the government of
the United States of America or of the state wherein Lessee is located or any
of their departments, agencies or officials, or any civil or military
authority; insurrections; riots; landslides; earthquakes; fires; storms;
droughts; floods; or explosions.
9
Ll
• Agreement No. 100
Section 13.02. Remedies on Default. Whenever any event of default
referred to in Section hereof s a ave happened and be continuing,
Lessor shall have the right, at its sole option without any further demand or
notice, to take one or any combination of the following remedial steps:
(a) With or without terminating this Agreement, retake possession of the
Equipment and sell, lease or sublease the Equipment for the account of
Lessee, holding Lessee liable for the rents and other amounts payable by
Lessee hereunder to the end of the Lease Term; and
(b) Take whatever action at law or in equity may appear necessary or
desirable to enforce its rights as the owner of the Equipment.
Section 13.03. No Remedy Exclusive. No remedy herein conferred upon or
reserved to Lessor is intended to Fe —exclusive and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity. No delay or
omission to exercise any right or power accruing upon any default shall
impair any such right or power or shall be construed to be a waiver thereof,
but any such right and power may be exercised from time to time and as often
as may be deemed expedient.
ARTICLE XIV
MISCELLANEOUS
Section 14.01. Notices. All notices, certificates or other
communications hereunder shalT�e sufficiently given and shall be deemed
given when delivered or mailed by registered mail, postage prepaid, to the
parties at their respective places of business.
Section 14.02. Binding Effect. This Agreement shall inure to the
benefit of and shall be binding upon Lessor and Lessee and their respective
successors and assigns.
Section 14.03. Severability. In thl- event any provision of this
Agreement shall be i1-1e 7cinvaTid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any
other provision hereof.
Section 14.04. Amendments. The terms of this Agreement shall not be
waived, altered, modi ief —cam s p emented or amended in any manner whatsoever
except by written instrument signed by the Lessor and the Lessee; nor shall
any such amendment that affects the rights of Lessor's assignee be effective
without such assignee's consent.
Section 14.05. Execution in Counterparts. This Agreement may be
executed in several counterparts, each of w is shall be an original and all
of which shall constitute but one and the same instrument.
Section 14.06. Applicable Law. This Agreement shall be governed by and
construed in accordance wi e aws of the State.
10
• • Agreement No. 100
Section 14.07. Captions. The captions or headings in this Agreement
are for convenience only amino way define, limit or describe the scope or
intent of any provisions or sections of this Agreement.
Section 14.08. Entire Agreement. This Agreement constitutes the
entire agreement between Lessor and Less_c_e. No waiver, consent, modification
or change of terms of this Agreement shall bind either party unless in
writing signed by both parties, and then such waiver, consent, modification
or change shall be effective only in the specific instance and for the
specific purpose given. There are no understandings, agreements, represent-
ations or warranties, express or implied, not specified herein regardng this
Agreement or the Equipment leased hereunder. Any terms and conditions of any
purchase order or other document (with the exception of Supplements)
submitted by Lessee in connection with this Agreement which are in addition
to or inconsistent with the terms and conditions of this Agreement will not
be binding on Lessor and will not apply to this Agreement. Lessee by the
signature below of its authorized representative acknowledges that it has
read this Agreement, understands it, and agrees to be bound by its terms and
conditions.
IN WITNESS WHEREOF, Lessor has executed this Agreement in its
corporate name with its corporate seal hereunto affixed and attested by its
duly authorized officers, and Lessee has caused this Agreement to be executed
in its corporate name with its corporate seal hereunto affixed and attested
by its duly authorized officers. All of the above occurred as of the date
first written below.
Attest: %
By: L - - ✓�. c.g
Title: �ut f✓i ��,,
Attes
By:
Title: CITY
LESSOR: Security Pacific Capital
Markets Group
By���.
Title: !/t A, -,i,nt ,;
LESSEE: City of Newport Beach
11
��to
Title: CITY MANAGER
Date: JUNE 1, 1984
CITY OF NEWPORT BEACH
OFFICE OF THE CITY MANAGER
May 29, 1984
TO: MAYOR AND CITY COUNCIL
FROM: Executive Assistant
SUBJECT: NEW TELEPHONE SYSTEM
ACTION: Authorize City Manager to enter
agreements on behalf_ of the City
for the lease /purchase and mainte-
nance of a new telephone system
for all City facilities.
CITY COUNCIL
AGENDA N0. F -3(c)
BY TliE CIT7 COUNCIL
CITY OF NEWPORT BEACH
MAY 291984
APPROVED
BACKGROUND: At the meeting of P-lay 14, 1984, the City Council
approved in concept the acquisition of a NEC NEAX 2400 telephone
system at an approximate cost of $460,000. The - selection of
this system followed a formal bid and evaluation process. The
selected system was found to combine good reliability and
serviceability attributes with the lowest price. A copy of the
May 14 staff report is attached.
AGREEMENTS: A sales agreement, a maintenance agreement, a
service agreement, and a lease /purchase agreement have been
drafted. The sales agreement with ASI Telesystems provides
for a cutover date of August 25, 1984, and a purchase price of
$441,883.02. The price includes all new instruments, cabling,
and switching equipment. The contract allows the price to
fluctuate somewhat depending upon the configuration of the system
after final refinements and locations.
The maintenance and service agreements are with ASI Tele-
systems, Inc. to provide repairs and changes /additions to the
system. A one year parts and labor warranty is included in
the purchase price. After that, service may be provided either
at cost or under a maintenance contract at the City's option.
A lease /purchase agreement with Security Pacific Capital
Markets Group will finance the entire project over a five year
period. $474,000 will be put in an escrow fund for use by
the City to pay ASI ($442,000), electirical and air conditioning
contractors ($8,000), Pacific Bell ($10,000), and the financing
fee ($14,000). Amounts remaining in escrow will be applied to
payments. The $474,000 will be repaid to Security Pacific in
monthly payments of $9,834.86 over a five year period. After
that time, ownership of the telephone system will pass to the
Citv.
COfIFIED AS A TRU£ 0ftKT COPT
C"T COW OF THE CITY Of NPOPORT BEACH
1i
TO: MAYOR AND CITY COUNCIL - Page Two
BUDGET CONSIDERATIONS: No amendments or changes are
required either to this year's or next year's City
budgets. The current cost to the City for telephone
equipment is $140,250 per year. This amount is con-
tained throughout the budgets of all departments under
utilities. For the next five years, the cost of the
new telephone equipment will be approximately $125,000
per year. This includes approximately $118,000 for
lease payments, $2,000 for service, $1,000 for elec-
tricity,. $500 for insurance, and $3,500 to Pacific
Bell. Consequently, during the next five years a savings
of approximately $15,000 per year will be realized,
except that the savings during the first year will be
consumed by overlapping payments during escrow for both
the existing system and the lease payments. After five
years when the lease is paid and the City owns the system,
savings should amount to approximately $130,000 per year.
���L�
KENNETH DELINO
KJD : mm
attachment
May 30, 1984
•
CITY OF NEWPORT BEACH
OFFICE OF THE CrrY ATTORNEY
1714) 640 -2201
Security Pacific Capital Markets Group
410 17th Street, Suite 1150
Denver, Colorado 80202
Gentlemen:
As counsel for the City of Newport Beach, ( "Lessee, ") I have
examined duly executed originals of the Municipal Lease and
Option Agreement (the "Agreement ") dated June 1, 1984, between
Lessee and Security Pacific Capital Markets Group ( "Lessor "), and
the proceedings taken by Lessee to authorize and execute the
Agreement. Based upon the examination and upon such other
examination as I have deemed necessary or appropriate, I am of
the opinion that:
1. Lessee is a public body corporate and politic,
legally existing under the laws of the State of California.
2. The Agreement has been duly authorized, executed
and delivered by Lessee, pursuant to Municipal Code provisions
which authorizes this transaction as shown on Exhibit "A" to the
Agreement.
3. The Agreement is a legal, valid and binding
obligation of Lessee, enforceable in accordance with its terms.
In the event the Lessor obtains a judgment against Lessee in
money damages, as a result of an event of default under the
Agreement, Lessee will be obligated to pay such judgment.
4. Applicable public bidding requirements have been
complied with.
5. To the best of my knowledge, no litigation is
pending or threatened in any court or other tribunal, State or
Federal, in any way questioning or affecting the validity of the
Agreement.
City Hall • 3300 Newport Boulevard, Newport Beach, California 92663
6. The signatures of the officers of the City
Newport Beach which appear on the Agreement are true and
genuine; I know said officers and know them to hold the
set forth below their names.
of
offices
7. The equipment leased pursuant to the Agreement
constitutes personal property and when subjected to use by Lessee
will not be or become fixtures under applicable law.
8. The Municipality is a political subdivision within
the meaning of Section 103 of the Internal Revenue Code and the
related regulations and rulings and that the portion of payments
identified as deferred interest charges to maturity, upon
receipt, will not be includable in Federal gross income under
statutes, regulations, court decisions and rulings existing on
the date of this opinion and consequently, will be exempt from
present Federal income taxes and income tax of the State of
California.
Very truly yours,
`( t
Rob bert ent Ht
City Attorney
RHB /dt
MMP /Phone
Agreement No. 100
EXIIIBIT C
CERTIFICATE AS TO ARBITRAGE
CITY OF
I, the undersigned officer of the NEWPORT BEACH (the "Lessee ") being
the person duly charged, with others, with responsibility for issuing the
Lessee's obligation in the form of that certain agroement entitled
"Municipal Lease and Option Agreement" (the "Agreement ") dated JUNE 1 ,
19 84, and issued said date HEREBY CERTIFY that:
1. The Agreement was issued by the Lessee under and pursuant to
law to finance the acquisition of certain equipment described therein.
2. Pursuant to the Agreement, the Lessee is entitled to receive said
equipment in consideration for the obligation of the Lessee under the
Agreement. Said equipment will be used in furtherance of the public
purposes of the Lessee. The Lessee does not intend to sell said equipment
or said Agreement or to otherwise dispose of said equipment during the
term of the Agreement. The Lessee will not receive any monies,'funds, or
other "proceeds" as a result of the Agreement.
3. The Lessee expects to make payments under the Agreement from its
general funds on the basis of annual appropriations in amounts equal to
the required payments under the Agreement. The remaining general funds of
the Lessee are not reasonably expected to be used to make such payments
and no other monies are pledged to the Agreement or reasonably expected to
be used to pay principal and interest on the Agreement.
4. The Lessee has not received notice that its Certificate may not be
relied upon with respect to its own issues nor has it been advised that
any adverse action by the Commissioner of Internal Revenue is
contemplated.
To the best of my knowledge, information and belief the expectation
herein expressed are reasonable and there are no facts, estimates or
circumstances other than those expressed herein that would materially
affect the expectations herein expressed.
IW WITNESS WHEREOF, I have hereunto set my hand this 1st day
of JUNE . 19 84•
LESSEE'( -N ))i ty of New port/ Beach
By:
Title: CITY MANAGER
EXHIBIT D
DESCRIPTION OF EQUIPMENT
Agreement No. 100
The Equipment which is the subject of the attached Municipal Lease and
Option Agreement is as follows:
Attached hereto as
Schedule I Telephone System
Specifications Booklet
Lessee hereby certifies that the description of the personal property
set forth above constitutes an accurate description of the "Equipment ", as
defined in the attached Municipal Lease and Option Agreement.
LESSEE: City of Newport Bleach
By: P(�A
Title: CITY MANAGER
Date: JUNE 1. 1984
Agreement 'io. wo
EXHIBIT G
O *ENTIAL USE /SOURCE OF FUNDS LET*
...,RTC
o :e.
CITY OF NEWPORT BEACH
C' P
OFFICE OF THE CITY MANAGER
(714) 640 -2151
June 1, 1984
Security Pacific Capital Markets Group
410 - 17th Street, Suite 1150
Denver, Colorado 80202
Gentlemen:
RE: LEASE PURCHASE AGREEMENT NO. 100
Reference is,made to that certain Municipal Lease and Option
Agreement, Lease Number 100, dated June 1, 1984 , between Security
Pacific Capital Markets Group and the City of Newport Beach, leasing
the personal property described in Exhibit D to such Lease. This
confirms and affirms that the Property is essential to the function
of the undersigned or to the service we provide to our citizens.
Further, we have an immediate need for, and expect to make
immediate use of, substantially all the Property, which need is not
temporary or expected to diminish in the foreseeable future. The
Property will be used by us only for the purpose of performing one
or more of our governmental or proprietary functions consistent with
the permissible scope of our authority. Specifically, the Property
was selected by us to be used as a complete telephone system for use
by all City personnel.
The estimated useful life of the Property, based upon manu-
facturer's representations and our projected needs, is 10 years.
Our source of funds for payments of rent due under the Lease
for the current fiscal year is the General fund.
LESSE City of Newport Reach
By: l C-
Title: CITY MANAGER
City Hall • 3300 Newport Boulevard, Newport Beach, California 92663
• •
Agreement No. 100
EXHIBIT F
ACCEPTANCE CERTIFICATE
The undersigned, as Lessee under the Municipal Lease and Option
Agreement (the "Agreement ") dated JUNE 1 , 19 84, with Security
Pacific Capital Markets Group ("Lessor"), ac nowledges receipt in good
condition of all of the Equipment described in the Agreement and in
Exhibit D thereto this 1st day of JUNE,1984 and certifies that Lessor
has fully and satisfac or-ily performed aTT of its covenants and
obligations required under the Agreement.
The undersigned officer of the Lessee hereby reaffirms in all respects
the Certificate as to Arbitrage attached as Exhibit C to the Agreement,
and represents that, to the best of his or her knowledge, information and
belief, the expectations therein expressed were reasonable as of the date
on which they were made, and are reasonable as of the Commencement Date,
and that there were, and are as of the Commencement Date, no facts,
estimates or circumstances other than those expressed therei6 --that would
materially affect the expectations expressed therein.
LESSEE: City of Newport Beach
By:
Title: CITY MANAGER
EXHIBIT E
LEASE r 100
6
SCHEDULE OF
PAYPIENi'S
2
PDT
PMT
PAYMENT
INTEREST
PRINCIPAL,
PURCHASE
n
DATE
AMOUNT
PORTION
PORTION
OPTION�he
IQ '
1
JUL
1
1984
9834.86
3547.10
6287.76
478438.62
2
AUG
1
1984
9834.86
3500.05
6334.81
471793.35
3
SEP
1
1984
9834.86
3452.64
6382.22
465103.78
4
OCT
1
1984
9834.86
3404.88
6429.98
458369.61
5
NOV
1
1984
9834.86
3356.76
6478.10
451590.55
6
DEC
1
1984
9834.86
3308.29
6526.57
444766.30
7
JAN
1
1985
9834.86
3259.44
6575.42
437896.54
8
FEB
1
1985
9834.86
3210.24
6624.62
430980.99
9
MAR
1
1985
9834.86
3160.66
6674.20
424019.34
10
APP.
1
1985
9834.86
3110.72
6724.14
417011.28
11
MAY
1
1985
9834.86
3060.40
6774.46
409956.49
12
JUN
1
1985
9834.86
3009.70
6825.16
402854.68
13
JUL
1
1985
9834.86
2958.63
6876.23
395705.5,
14
AUG
1
1985
9834.86
2907.17
6927.69
388508.69
15
SEP
1
1985
9834.86
2855.33
6979.53
381263.89
16
OCT
1
1985
9834.86
2803.10
7031.76
373970.79
17
NOV
1
1985
9834.86
2750.48
7084.38
366629.07
18
DEC
1
1985
9834.86
2697.46
7137.40
359238.40
19
JAN
1
1986
9834.86
2644.05
7190.81
351798.46
20
FEB
1
1986
9834.86
2590.24
7244.62
344308.93
21
MAR
1
1986
9834.86
2536.03
7298.83
336769.46
22
APR
1
1986
9834.86
2481.41
7353.45
329179.73
23
MAY
1
1986
9834.86
2426.38
7408.48
321539.40
24
JUN
1
1986
9834.86
2370.94
7463.92
313848.14
25
JUL
1
1986
9834.86
2315.08
7519.78
306105.60
26
AUG
1
1986
9834.86
2258.81
7576.05
298311.44
27
SEP
1
1986
9834.86
2202.12
7632.74
290465.33
28
OCT
1
1986
9834.86
2145.00
7689.86
282566.90
29
NOV
1
1986
9834.86
2087.45
7747.41
274615.82
30
DEC
1
1986
9834.86
2029.48
7805.38
266611.73
31
JAN
1
1987
9834.86
1971.07
7863.79
258554.28
32
FEB
1
1987
9834.86
1912.22
7922.64
250443.12
33
t?,R
1
1987
9834.86
1852.93
7981.93
242277.88
34
APR
1
1987
9834.86
1793.20
8041.66
234058.21
35
MAY
1
1987
9834.86
1733.02
8101.84
225783.74
36
JUN
1
1987
9834.86
1672.39
8162.47
217454.10
37
JUL
1
1987
9834.86
1611.31
8223.55
209068.93
38
AUG
1
1987
9834.86
1549.77
8285.09
200627.87
39
SEP
1
1987
9834.86
1487.77
8347.09
192130.53
40
OCT
1
1987
9834.80'
1425.31
8409.55
183576.54
41
NOV
1
1987
9834.86
1362.38
8472.48
174965.52
42
DEC
1
1987
9834.86
1298.97
8535.89
166297.10
43
JAN
1
1988
9834.86
1235.10
8599.76
157570.88
44
FM
1
1988
9834.86
1170.74
8064.12
148786.50
45
MAR
1
1988
-0834.86
1105.90
8728.96
139943.55
46
APR
1
1:88
9834.86
1040.58
8794.28
131041.64
47
MY
1
1988
9834.86
974.77
8860.09
122080.40
48
JUN
1
1588
9834.86
908.47
8926.39
113059.40
49
JUL
1
1988
9834.86
841.67
8993.19
103978.27
0
i
50
AUG
1
1988
9834.86
774.37
9060.49
94836.60
51
SEP
1
1988
9834.86
706.57
9128.29
85633.99
52
OCT
1
1988
9834.86
638.26
9196.60
76370.02
53
WV
1
1988
9834.86
569.44
9265.42
67044.29
54
DEIC
1
1988
9834.86
500.10
9334.76
57656.40
55
JAN
1
1989
9834.86
430.25
9404.61
48205.91
56
FEB
1
1989
9834.86
359.87
9474.99
38692.42
57
MAR
1
1989
9834.86
288.96
9545.90
29115.51
58
APR
1
1989
9834.86
217.53
9617.33
19474.76
59
MAY
1
1989
9834.86
145.56
9689.30
9769.73
60
JUN
1
1989
9834.86
73.08
9761.78
0.00
590091.60 116091.60 474000.00
C �' F34PCRT BEACH (
BY .t�uv
TITLE CITY MANAGER
DATE
JUNE 1, 1984
s CAL -S ASSOCIATES, INC. ■( \�� 3475 475 TO TORRAN BLVD.
TORRANCE,CA. A 90593
(213) 543 -1660
i INSURED
CTfr OF NEWFIT =01 ET AL.
3300 NURPM BEAM EM
i-s i• R T Y' 92660
DATE :MMIDDfYY) .
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS
NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND,
EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
COMPANIES AFFORDING COVERAGE
LETTER NY A FIFZ124MIS Ptm III OOMPANY
''.COMPANY
LETTER
B
COMPANY
C
LETTER
COMPANY
D
LETTER
UMBRELLA FORM
COMPANY E
LETTER
THIS IS TO CERTIFY THAT POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.
NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY
BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS, ANI7 CONDI-
TIONS OF SUCH POLICIES.
CO TYPE OF INSURANCE POLICY NUMBER POLICY EFFECnVE POLICY EXPIRATION LIABILITY LIMITS IN THOUSANDS
LTR DATE ^DDY1') DATE (MM /DONYI OCCURRENCE AGGREGATE
GENERAL LIABILITY
BODILY
COMPREHENSIVE FORM INJURY $ $
PREMISES /OPERATIONS PROPERTY 4.
UNDERGROUND DAMAGE $ I>
EXPLOSION 8 COLLAPSE HAZARD
PRODUCTSICOMPLETED OPERATIONS
CONTRACTUAL
INDEPENDENT CONTRACTORS
BROAD FORM PROPERTY DAMAGE
PERSONALINJURY
AUTOMOBILE LIABILITY
ANY AUTO
ALL OWNED AUTOS (PRIV. PASS.)
ALL OWNED AUTOS (OTHER P SAN)
HIRED AUTOS
NON -OWNED AUTOS
GARAGE LIABILITY
r�,•s � 19agT�
� j aEPCr,
$ 14;
PERSONAL INJURY 1$
BDUV
INJURY $
iPER PERSCNI
miD
r1NRY $
;PER ACCOENF)
PROPERTY
DAMAGE $
BI 8 PD $
COMBINED
DESCRIPTION OF OPERATIONS /LOCATIONSNEHICLES/SPECIAL ITEMS
AS RESPECTS TELEPHONE SYSTEMS A AND B
THLS cUzL*TVTrM I MUKELS PREVIOUS C,SKFg10M DARED 5/25/84
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EX-
ASI TELESYSTEMS, INC. PIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO
MAIL _����DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE
21150 CALIPA STREET LEFT, BOiFA1LURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LUBLITY
WOODLAND HILLS, CA 91367 OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES.
Mike D. Bogen, C.P.C.U.
EXCESS LIABILITY
UMBRELLA FORM
PAMBINED
$
$
OTHER THAN UM88ELLA FORM
—'
STATUTORY
WORKERS' COMPENSATION
$ (EACH ACC DENT)
AND
(DISEASE - POLICY LIMIT)
EMPLOYERS' LIABILITY
$ (DISEASE EACH EMPLOYEE)
OTHER ItA r
aw
A
Hj7IIffiG AM
M05674364
4/1/84
4/1/84
$15,208,262 RUN=
DESCRIPTION OF OPERATIONS /LOCATIONSNEHICLES/SPECIAL ITEMS
AS RESPECTS TELEPHONE SYSTEMS A AND B
THLS cUzL*TVTrM I MUKELS PREVIOUS C,SKFg10M DARED 5/25/84
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EX-
ASI TELESYSTEMS, INC. PIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO
MAIL _����DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE
21150 CALIPA STREET LEFT, BOiFA1LURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LUBLITY
WOODLAND HILLS, CA 91367 OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES.
Mike D. Bogen, C.P.C.U.
PRODUCER
CAL -S ASSOCIATES, iNC
3475 TORRANCE B LVD .
TORRANCE, CA.
90503
(233) 543 -1660
INSURED
r1w cD+•r r• .1
(MM/DD/VV)
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS
NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND,
EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
COMPANIES AFFORDING COVERAGE
COMPANY
LETTER A FTR7aMM TIIRM T►147RB": MAPAN4
COMPANY
LETTER
B
COMPANY
C
LETTER
LIABILITY LIMITS IN THOUSANDS
COMPANY
D
LETTER
COMPANY E
LETTER
THIS IS TO CERTIFY THAT POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUEDTO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.
NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY
BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS, AND CONDI-
TIONS OF SUCH POLICIES.
CO
LTR
TYPE OF INSURANCE
POLICY NUMBER
POLICY EFFECTIVE
DATE IMMIDO /YV)
POLICY EXPIRATION
DATE (MMIDON
LIABILITY LIMITS IN THOUSANDS
EACH
OCCURRENCE
AGGREGATE
GENERAL
LIABILITY
COMPREHENSIVE FORM
BODILY
INJURY
$
PROPERTY
DAMAGE
$
$
PREMISES /OPERATIONS
UNDERGROUND
EXPLOSION 8 COLLAPSE HAZARD
PRODUCTS/COMPLETED OPERATIONS
CONTRACTUAL
Ell OMBINED
$
$
INDEPENDENT CONTRACTORS
PERSONAL INJURY
$
BROAD FORM PROPERTY DAMAGE
PERSONAL INJURY
\-'
/
AUTOMOBILE
LIABILITY
ANY AUTO
\ .Y�
�qt I0��7
�--�
': :�
INJURY
(PER PERSOM
$
ALL OWNED AUTOS (PRIV, PASS.) 1
ALL OWNED AUTOS (OTHER R THAN/ �,
r` r
�Ut� l
�Q®
- -
BODILY
INJRY
(PER ACCIDENR
$
HIRED AUTOS
NON-OWNED AUTOS
GARAGE LIABILITY
2� .may
Cm O
NEwpOR�
T CA�1
?,CH. f' ^�
` \
PROPERTY
DAMAGE
$
gl a
COMBIBI PO
NED
$
EXCESS LIABILITY
UMBRELLA FORM
RI a PD
COMBIN ED
$
$
$
OTHER THAN UMBRELLA FORM
WORKERS' COMPENSATION
STATUTORY
$ (EACH ACCIDENT)
AND
EMPLOYERS' LIABILITY
$ (DISEASE POLICY LIMIT)
$ (DISEASE -EACH EMPLOYEE)'.
OTHER wiaL . a
A
KMDM AND
4364
4/1/84
4/],/87
$15,208.262 WAMW
DESCRIPTION .
AS RESPECTS TELEPHOIZ SYSTEM a B. •sl•=rv4' HOLUM IS BERM NAHED AS LOW M71
AS IaDIr INTEREST MY APPEAR
7:•0 1^I • ' MI W. W.
05,1191, 41
I• ^.'CN C' 111•
If :4,0K
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EX-
PIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO
MAIL-2n--DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE
LEFT, ADT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLJGATKXI OR UABLlTY
OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES.
UTHORI7FD REPRESENTATIVE
I"1
C.P.C.tJ.
/:, .r• /1
mw CAL -S 475 TO RANCE BLVD.
, INC.
3475 TORRANCE BLVD.
TORRANCE, CA. 90503
(213) 5431660
INSURED
CITY OF NEWPORT BEACH ET AL
3300 NEWPORT BEACH BLVD.
NEWPORT BEACH, CA 92660
THIS IS TO CERTIFY
NOTWITHSTANDING
BE ISSUED OR MAY
TIONS OF SUCH PO
ISSUE DATE (MM /DDNY)
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS
NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND,
EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
COMPANIES AFFORDING COVERAGE
COMPANY A
LETTER TWIN CITY FIRE INSURANCE COMPANY
COMPANY B
LETTER
COMPANY C
LETTER
COMPANY D
LETTER
CLETTER OMPANY E
ED ABOVE FOR THE POLICY PERIOD INDICATED,
TH RESPECT TO WHICH THIS CERTIFICATE MAY
TO ALL THE TERMS, EXCLUSIONS, AND CONDI-
CO
LTR
TYPE OF INSURANCE
POLICY NUMBER
POLICY EFFECTIVE
OATE (MM /DD /Y'✓)
POLICY EX %RATION
DATE (MM /DD/YV)
LIABILITY LIMITS IN THOUSANDS
'tA"itni ". "';P,'
Y
OCCEACH E
AGGREGATE
GENERAL
LIABILITY
BODILY
,
A
X
COMPREHENSIVE FORM
72 ECS SN 0124
4/1/84
4/1/87
INJURY
$
�6
PROPERTY
$
$
PREMISES /OPERATIONS
UNDERGROUND
DAMAGE
EXPLOSION & COLLAPSE HAZARD
PRODUCTS /COMPLETED OPERATIONS
CONTRACTUAL
COMBINED
$ 900
$ NIL
INDEPENDENT CONTRACTORS
BROAD FORM PROPERTY DAMAGE
PERSONAL INJURY
PERSONAL INJURY
$ INCL
AUTOMOBILE
LIABILITY
80DIV
LARY
$
p,
ANY AUTO
72 ECS SN 0124
4/1/84
4/1/87
PER PEGON)
Wont
ALL OWNED AUTOS (PRN PASS.)
ALL OWNED AUTOS (OTHEOTHE R THAN
CD
S
INJURY
(PER ACCIDEN)
$
PRIV PASS.
PROPERn
$
HIRED AUTOS
NON-OWNED AUTOS
eC
DAMAGE
GARAGE LIABILITY
r !4O ��` A ®
COMBINED
$
K'f, Qn
900
EXCESS LIABILITY
`;91t:L C �-
UMBRELLA FORM
'. J �' E.C�'
COMBINED
$G
G�SV �:
OTHER THAN UMBRELLA FORM
c
WORKERS' COMPENSATION
STATUTORY '
/ 'I
$ (EACH ACCIDENT)
AND
$ (DISEASE- POLICY LIMIT)
EMPLOYERS' LIABILITY
$ (DISEASE-EACH EMPLOYEE)
OTHER
;EXCESS OF $100,000 SEL
- INSURE
RETENT
ON
$500,000 Agg
agate STOP
LASS
DESCRIPTION OF OPERATIONS /LOCATIONSNEHICLES /SPECIAL ITEMS
AS RESPECTS TELEPHONE SYSTEMS A AND B CERTIFICATE HOLDER IS HEREBY
NAMED ADDITIONAL INSURED AS THEIR INTERESTS MAY APPEAR
SECURITY PACIFIC CAPITAL
MARKETS GROUP
410 17ST STREET, SUITE 1150
DENVER, COLORADO 80202
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EX-
PIRATI% DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO
MAIL__.DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE
LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LWBM.fTV
OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES.
MIS D. BOGEN, C.P.C.U.
j l
S A L E S A G R E E M E N T
SYSTEM A - CITY HALL
Ti:is Sales Agreement is made and entered into between AST
Tch. systems, Inc. ( "AST ") and The City of Newport Beach, a
!:tunicipal Corporation ( "Customer "), located at 3300 Newport
Boulevard, Newport Beach, California.
ASI agrees to sell to Customer and Customer agrees to buy from ASI
the Equipment listed and described in Schedule I attached hereto
("the Equipment "), at the purchase price and on the terms and
conditions hereinbelow set forth.
1. ASI shall install the Equipment at the Premises of the
Customer. Customer shall be responsible for timely and proper•
securinn of all. permits, licenses, consents and "approvals" in
connection with the sale and installation of the equipment.
Z. The estimated cut -over date is August ZS, 1984.
3. ASI shall furnish all necessary cable, hardware, etc.,
including labor for installation of the Equipment, unless otherwise
indicated herein or in a Schedule attached hereto. All cables,
hardware, and other equipment shall meet all applicable-,FCC
standards. All conduit and electrical outlets are to be provided
`r, Customer. ASI shall perform the installation in a workmanlike
n:arncr, but shall not be responsible for damages to the Premises
not resulting from AST's or it's subcontractors and /or affiliates
negligence.
4. ASI shall furnish to Customer before the commencement of
installation the following signed certification:
"I am aware of the provisions of Section 3700 of the Labor
Code which require every employer to be insured against
liability for wcrkers' compensaion or to undertake
self - insurance in accordance with the provisions of that code,
and I will comply with such provisions before commencing the
performance of the work of this contract."
ASI shall. also comply with Section 3800 of the Labor Code by
,:eciiring, paying for, and maintaining in full force and effect for
the duration of the contract, complete Workmen's Compensation
Insurance, and shall furnish a Certificate of Insurance to the
Customer. The Customer, its officers, or employees, will not be
responsible for any claims in law or equity occasioned by failure
i ASI to comply with this paragraph.
Page 1
is
5. Before starting installation, ASI shall designate, in
writing, a representative who shall have complete authority to..
act for it. An alternate representative may be designated. The
representative or alternate shall be present at the worksite
whenever work is in progress or whenever actions of the elements
necessitate its presence to take measures necessary to protect
the work, persons or property. Any order or communication given
to this representative shall be deemed delivered to ASI. A joint
venture shall designate only one representative and alternate.
In the absence of the designated representative, necessary or
desirable directions or instructions may be given by the Customer
to the superintendent or person having charge of the specific
work to which the order applies. Such order shall be complied
with promptly and referred to ASI or its representative.
6. Prior to start of installation, ASI shall submit to the
Customer for approval its proposed installation schedule. The
schedule shall be in the form of a tabulation, chart, or graph
and shall be in sufficient detail to show the chronological
relationship of all activities of the project including, but not
limited to, estimated starting and completion dates of various
activities, procurement or materials, and scheduling of equipment.
7. ASI shall furnish to Customer a bond for the faithful
performance of this Agreement, with the Customer named as the
beneficiary for an amount equal to the total sum of this contract.
8. One year of maintenance (pursuant to the terms and
conditions of the Maintenance Agreement attached hereto) is
included under this Agreement.
9. Risk of loss or damage to the equipment shall pass to
Customer as soon as the Equipment has been installed and deemed
working as intended. Until the entire purchase price and sales
tax have been paid, Customer shall insure the Equipment against
fire, theft and other perils by a policy and with an insurer
satisfactory to ASI and naming ASI as an insured in an amount not
less than the outstanding balance of the purchase price, and
shall furnish to ASI a certificate from the carrier that ASI will
receive at least ten (10) days' prior written notice of
cancellation or change of coverage.
10. The purchase price shall be $250,060.18
Plus Sales Tax of 11,431.05
Total $261,491.23
PAYMENT SCHEDULE
Direct Purchase from ASI:
50o With Signed Sales Agreement $130,745.62
Page 2
W W;
0% Upon Delivery of Switch and
Station Equipment $ -0-
0% Upon Completion of Station
Cabling and Main Distribu-
tion Frame $ -0-
CUTOVER: 10 -days prior to cutover, Customer will
provide to ASI a pre - cutover reconciliation.
15$ of the pre - cutover reconciliation amount
shall be paid to ASI after cutover.
ACCEPTANCE: As defined in Schedule A, paragraph 5, upon
final reconciliation and acceptance, after
cutover, Customer shall pay ASI the balance
then due and owing.
11. The terms and conditions set forth on Schedule I, II,
III, and Schedule A, attached hereto, are hereby incorporated
herein and made a part of this Agreement.
12. THIS AGREEMENT CONTAINS THE ENTIRE AGREEMENT OF THE
PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND MAY NOT BE
CHANGED EXCEPT BY A WRITING SIGNED BY CUSTOMER AND ASI. ASI
MAKES NO WARRANTIES, EXPRESS OR IMPLIED, EXCEPT AS SET FORTH IN
THIS AGREEMENT. ANY AND ALL ADDITIONAL OR DIFFERENT TERMS OR
CONDITIONS HERETOFORE OR HEREAFTER SUBMITTED BY CUSTOMER ARE
DEEMED TO BE REJECTED BY ASI AND NEITHER ASI'S COMMENCEMENT OF
PERFORMANCE NOR DELIVERY SHALL BE DEEMED OR CONSTRUED AS
ACCEPTANCE OF CUSTOMER'S ADDITIONAL OR DIFFERENT TERMS OR
CONDITIONS.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be properly executed, intending that it shall be legally
binding upon them and their respective heirs, estates, successors
and assigns.
By SIGNING BELOW, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS
CAREFULLY READ ALL PAGES OF THIS DOCUMENT AND ATTACHED SCHEDULES
AND UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS THEREOF.
Customer: The City of Newport Beach ASI TELESYSTEMS, INC.
(a Municipal Corporation) A
By: t( V BY
Title: CITY MANAGER
Date: JUNE 1, 1984
Page 3
Title: CHIEF EWCUTIVE OFFICER
Date: JUNE 4, 1984
SCHEDULE A
SALES AGREEMENT
\DDITIONAL TERMS AND CONDITIONS
Schedule A p.l
The term "Cut- Over" as used herein means the date on
which the installed Equipment is substantially operable.
"Substantially operable" means having the capability to make
outgoing and receive incoming calls and having a substantial
maiority of the features listed in Schedule I functional.
Equipment in such condition shall be deemed to be substan-
tially operable notwithstanding any unavailability of trunk
lines due to telephone company delays or any failures which do
not materially affect the functioning of the entire system.
Z.
ASI shall employ all reasonable efforts to make timely
delivery and installation but shall be excused from any delays
arising out of causes beyond its reasonable control. All
stated delivery or Cut -Over dates are approximate, and ASI
shall under no circumstances be liable for damages, special,
consequential or otherwise, for delays or failure to give
notice of delay.
s.
Customer shall be responsible for obtaining trunk lines
and inter - connecting devices from the serving telephone
company. If requested, ASI will use reasonable efforts to
assist Customer. ASI's services shall be limited to the
installation of the Equipment on the subscriber's side of the
interface equipment connecting the Equipment to the telephone
system operated by the local telephone utility. ASI shall not
be responsible in the event the utility fails to timely make
available interconnect services nor shall ASI be obligated to
pay the inter - connect tariff or other charges of the utility
with respect to such services.
4.
Customer shall at Customer's expense. on the date of
delivery of the Equipment to the Premises and at all times
thereafter during the period of installation of the Equipment:
(a) Allow employees and agents of ASI free access to the
Premises at all hours consistent with the requirements of
the installation. ASI agrees to comply with all rules
and regulations of Customer.
(b) Assure that the Premises will meet all temperature,
humidity control., air - conditioning, and other
environmental requirements set forth in the applicable
Equipment specifications, and will be dry and free from
dlest and i,r such condition as not to be injurious to the
emplovees or agents of ASI or the equipment.
Schedule A p.l
(c) Provide necessary openings and ducts for cable and
conductors in floors and walls;
(d) Provide electric current for any necessary purpose with
suitable terminals in rooms where required;
(e) Provide installed metallic ground or grounds, as required;
(f) Provide f.or the termination of any existing service
agreement with the local telephone utility and for the
removal of any existing equipment and cable, as required;
(g) Provide suitable and easily accessible floor space to
permit storing adjacent to where the Equipment will be
used, and for secure storage of tools and test sets.
S. Delivery and Acceptance: After the cut -over date,
Customer shall have 15 business days to provide ASI with a
written list, which list shall contain omissions of features
and /or other items of equipment, modifications or deviations
from this agreement.
ASI shall then have 15 business days from the date of
receipt of such deficiency list in which to correct, replace
or repair such deficiencies., After the deficiencies on said
list are corrected, repaired or replaced, ASI shall furnish a
written notice to Customer completely detailing the
correction, repair or replacement.
The system shall be deemed accepted by Customer upon
verification that deficiencies have been cured. Customer shall
use all best efforts to complete verification in a timely
After verification that deficiencies have been cured, the
warranty shall commence pursuant to Paragraph 7 of this
Schedule.
6. Up to ten business days prior to cut -over, at Customer's
request, ASI shall relocate any part of the system in
accordance with ASI's standard rates in effect at the time of
such relocation.. ASI will supply and install additional
Equipment for the system at its pre- cutover prices quoted in
the Telephone System Specifications Booklet, bid by ASI March
26, 1984. Customer shall not, without obtaining the written
consent of ASI, change the location of the Equipment or permit
equipment of any sort to be installed by anyone other than ASI.
7. Subject to the provisions of this paragraph, ASI warrants
the Equipment against defects in material and workmanship of
which it receives written notice from Customer within one year
from the Cut -Over date. ASI's sole obligation with respect to
said warranty shall be to repair or (at ASI's option) replace
the defective item. This warranty does not extend to any
Equipment which has been (i) subject to misuse, neglect,
accident or abuse, (ii) wired, repaired or altered by anyone
other than ASI, its sub - contractors and /or affiliates without
ASI's prior written approval, (iii) improperly installed by
Schedule A p.2
someone other than ASI, its subcontractors and /or affiliates,
(iv) used in violation of instructions furnished by ASI or (v)
maintained in an environment (including but not limited to
humidity, temperature, and air - conditioning) not conforming to
the specifications furnished by ASI. The foregoing warranty
shall be in lieu of and excludes all other warranties, express
or implied, of merchantability, fitness or otherwise.
g. THE SOLE REMEDY FOR BREACH OF ANY AND ALL WARRANTIES AND
SOLE REMEDY FOR ASI'S BREACH OR LIABILITY OF ANY KIND WITH
RESPECT TO THE EQUIPMENT, MATERIALS, WORK OR SERVICES PROVIDED
OR TO BE PROVIDED HEREUNDER AND ANY OTHER PERFORMANCE BY ASI
UNDER OR PURSUANT TO THIS AGREEMENT SHALL BE LIMITED TO THE
REMEDY PROVIDED IN PARAGRAPH 7. ASI SHALL NOT BE LIABLE FOR
ANY SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR LOSS, DAMAGE OR
EXPENSE (WHETHER OR NOT CAUSED BY OR RESULTING FROM ASP S
NEGLIGENCE) DIRECTLY OR INDIRECTLY ARISING FROM USE OF THE
EQUIPMENT OR ARISING FROM CUSTOMER'S INABILITY TO USE
EQUIPMENT EITHER SEPARATELY OR IN COMBINATION WITH ANY OTHER
EQUIPMENT OR FROM ANY OTHER CAUSE.
9 Customer hereby grants to ASI a security interest in the
Collateral (as hereinafter defined) to secure performance of
the Debtor Obligations (as hereinafter defined), subject to
the following terms:
(a) As used in this Paragraph, the term "Collateral"
means the Equipment and all replacements, parts, additions,
repairs and accessories incorporated therein and /or now or
hereafter affixed thereto; "Debtor Obligations" means each and
all of the obligations of Customer under this Sales Agreement,
the Maintenance Agreement, and any and all other agreements
between Customer and ASI.
(b) Customer shall execute and deliver to ASI financing
statements and other documents and instruments and perform
such acts as ASI may require in order to carry out the
provisions of this Agreement and to affirm, effectuate, or
further assure the assignment to ASI of the Collateral or
ASI's interest therein.
(c) Customer hereby warrants, represents and covenants
that:
(i) Customer shall not sell, transfer or otherwise
dispose of the Collateral; or any portion
thereof, unless the Debtor Obligations have
been fully performed and discharged;
(ii) Except for the security interest hereby created
and except as may be otherwise herein provided,
Customer is the owner of Collateral free from
anv adverse lien, and.shall at all times keep
the Collateral free from any adverse lien;
Schedule A p.3
(iii) Customer shall do all acts necessary to
maintain, preserve, protect and keep the
Collateral in good condition and repair and not
cause anv waste or unusual or unreasonable
depreciation of the Collateral, and shall
insure the Collateral at its full value for all
risks and losses, and comply with all laws,
statutes and reulations pertaining to the
Collateral and pay when due all taxes, charges
and other impositions upon the Collateral or
for its use and operation;
(iv) Customer shall promptly notify ASI of any
attachment or other legal process levied
against any of the Collateral;
(v) Customer shall not permit or cause the
impairment of the value of the Equipment or the
security intended to be afforded by this
Agreement.
(d) Any of the following shall constitute an event of
default for purposes of this Paragraph:
(i) Failure to comply with each and every one of
the covenants made hereunder by Customer;
(ii) Failure to make any payment when due under this
Agreement, or under the Maintenance Agreement,
or under any other agreement between Customer
and ASI, without deduction or setoff;
(iii) Failure to protect the Collateral, resulting in
loss, theft, damage, destruction or encumbrance
or the making of any levy, seizure or
attachment thereof or thereon;
(iv) Customer shall become insolvent or bankrupt or
make an assignment for the benefit of creditors
or consent to the appointment of a trustee or
receiver; or a trustee or receiver shall be
appointed for Customer or for a substantial
part of its property, without its consent and
shall not be dismiss6d'within a period of sixty
(60) days; or bankruptcy, reorganization or
insolvency proceedings shall be instituted by
or against Customer and shall not be dismissed
within a period of sixty (60) days;
(v) Failure to execute and deliver to ASI a
delivery and acceptance certificate within
thirty (30) days after ASI's submission thereof
to Customer and after, in the judgement of
Customer's Consultant, Earline Reeves &
Associates, all deficiencies have been
corrected by ASI.
Schedule A p.4
(e ) Upon the occurrence of an event or default under this
Agreement, or at any time thereafter, ASI may, at its
option, declare any or all of the Debtor Obligations
immediately due and payable without demand or notice
of anv kind and the same thereupon shall immediately
become and be due and payable, and ASI shall have and
may exercise from time to time any and all rights and
remedies of a secured party under the California
Uniform Commercial Code and any and all rights and
remedies available to it under any other applicable
law, including, without limitation, the right to
immediately take possession of or disable any or all
items of the Collateral, wherever same may be
located, without demand or written notice, without
any court order or other process of law, and without
liability to Customer for any damages occasioned
thereby. In the event of such taking or disabling
ASI in its sole discretion may, but without obli-
gation to do so, install upon the Premises one or
more single -line telephones to replace any one or
more items of Collateral taken or disabled. Customer
agrees to permit ASI and its duly authorized agents
to enter the Premises and to have access to the
Collateral for the purpose of exercising ASI's rights
pursuant to this Paragraph. Upon disposition of any
Collateral after the occurrence of any default
hereunder, the proceeds of the disposition shall be
applied first to expenses of retaking, holding,
preparing for sale, and selling, including ASI's
reasonable attorney's fees and legal expenses, and
then to the Debtor Obligations. Customer shall be
and remain liable for any deficiency and ASI shall
account to the Customer for any surplus.
10. If Customer has elected to Lease pursuant to Paragraph 6
hereof, title to the Equipment shall not pass to Customer
until the entire purchase price plus sales tax has been paid.
If for any reason whatsoever Customer has not executed and
delivered to ASI a delivery and acceptance certificate within
thirty (30) days after ASI's submission thereof to Customer
and after, in the judgement of Customer's consultant, Earline
Reeves 8 Associates, all deficiencies have been corrected by
ASI, ASI shall have the right at any time thereafter (until
the entire purchase price plus sales tax has been paid) to
terminate this ,greement. Thereupon, Customer shall fortht-;ith
return to ASI all of the Equipment. Customer agrees that ASI
shall have the right peaceable to enter the Premises or any
other premises at which the Equipment is
Schedule A p.5
located in oroor to take possession of and remove the
Equipment. If Customer fails to permit ASI to recover the
Equipment, AS] shall have the right to recover the same in a
claim and deliver,/ proceeding. Within fifteen (15) days :after
ASI has taken possession of all of the Equipment, ASI shall
return, to Customer all amounts theretofore paid by Customer
upon the purchase price after first offsetting ASI's costs of
installation (including both labor and nonrecoverable
materials).
i1. Customer acknowledges that the .pace of technological
change in the industry may be so rapid as to accelerate the
diminution in value of the Equipment; that therefore any delay
in AST's taking possession pending litigation would result in
special and peculiar detriment to the business of ASI; that in
the event of any default by Customer hereunder, or termination
of this Agreement pursuant to Paragraph 10, ASI's right to
recover possession of the Equipment, whether with or without
process of law, is essential to the operation of ASI's
business. Therefore, if ASI brings an action to take posses-
sion of the Equipment, whether pursuant to the provisions of
Paragraph 9 or of Paragraph 10, Customer agrees not to assert
any setoff or defense to the action, or any objection to the
issuance by the court thereof of a writ of possession of the
Equipment or to the execution of such writ, nor to object in
any way to the taking of possession by ASI. Customer hereby
forever and irrevocably waives any and all rights, now exist-
ing or hereafter arising, to file, and agrees not to file, any
undertaking or bond to prevent ASI or any levying officer from
executing such writ. Without limiting the foregoing, Customer
agrees that any claim which would otherwise be the basis of
such setoff will be asserted by it in a proceeding independent
of any action by AST for recovery of possession of the
Equipment. ASI agrees that it will not assert as a bar to any
such independent action by Customer any defenses arising from
the statutes governing compulsory cross - actions.
12. This Contract may be cancelled by the Customer without
liability for damage when ASI is not complying in good faith,
has become insolvent, or has assigned or subcontracted any
part of the work without the consent of Customer. In the
event of such cancellation, ASI will be paid the actual amount
due based on unit prices or lump sums bid and the quantity of
work completed at the time of cancellation, less damages
caused to the Customer by acts of ASI or causing the
cancellation. ASI shall waive any and all claims for damages
because of cancellation of Contract for any such reason. If
the Customer declares the Contract cancelled for any of the
above reasons, written notice to that effect shall be served
upon the Surety. The Surety shall, within S days, assume
Schedule A p.6
control and perform the work as successor to ASI.
If. (subject to the provisions of Schedule A, paragraph 2)
ASI fails to begin delivery of material and equipment, to
commence work within the time specified, to maintain the rate
of delivery or material, to execute the work in the manner and
at such locations as specified, or fails to maintain a work
program which will ensure the Customer's interest, or if the
Contractor is not carrying out the intent of the contract, the
Customer may serve upon ASI a written notice and the Surety on
its faithful performance bond demanding satisfactory com-
pliance with the Contract.
If ASI or its Surety does not comply with such notice
within 5 days after receiving it, or after starting to comply,
fails to continue, Customer may exclude it from the premises
and take possession of all material and equipment, and
complete the Work, by Customer forces or by letting the
unfinished work to another Contractor, or by a combination of
such methods. In any event, the cost of completing the Work
shall be charged against ASI and its Surety, and may be
deducted from any money due or becoming due from the Customer.
If the sums under the contract are insufficient for com-
pletion, ASI or Surety shall pay to the Customer within 5 days
after completion, all costs in excess of the Contract Price.
If the Surety assumes any part of the Work, it shall take
the place of ASI in all respects for that part, and shall be
paid by the Customer for all work performed by it in accord-
ance with the Contract. If the Surety assumes the entire
contract, all money due ASI at the time of its default shall
be payable to the surety as the work progresses, subject to
the terms of the Contract.
The provisions of this section shall be in addition to all
other rights and remedies available to the Customer under law.
13. No action arising out of this Agreement or performance
hereunder may be brought by either party more than one year
after the cause of action arises.
14. Customer shall pay ASI all costs.(including reasonable
attorney's fees to the extent permitted by law) incurred by
ASI in enforcing the provisions hereof, or in exercising any
of the rights and remedies hereunder.
ASI shall pay Customer all costs (including reasonable
attorney's fees to the extent permitted by law) incurred by
Customer in enforcing the provisions hereof, or in exercising
any of the rights and remedies hereunder.
Schedule A p.7
S. Inv notice, demand or document which either party is
required to or desires to give to the other shall be deemed
given when personally served or when deposited in the United
States mail, certified mail, postage prepaid, addressed as
follows:
TO: ASI Teiesystems, Inc., 21150 Califa Street
Woodland Hills, California 91367
TO: City Manager
3300 Newport Blvd., P.O. Box 1768
Newport Beach, California 92658 -7815
16. No waiver by either Party of any default shall operate as
a waiver of any other default or of the same default on a
future occasion. No delay or omission on the part of either
Party in exercising any right or remedy shall operate as a
waiver thereof, and no single or partial exercise by either
Party of any right or remedy shall preclude any other or
further exercise thereof or the exercise of any other right or
remedy.
17. All the provisions of this Agreement shall be considered
as separate terms and conditions and in the event any one
shall be held illegal, invalid or unenforceable, all the other
provisions hereof shall remain in full force and effect as if
the illegal, invalid or unenforceable provision were not a
part hereof.
18. The Equipment covered herein shall remain personal
property, and shall not become part of the freehold, regard-
less of the manner of affixation.
19. This Agreement shall be governed and construed in accord-
ance with the laws of the State of California.
20. Payments which are not made when due shall be subject to a
service charge of two percent (2$) per month or at the maximum
rate permitted by law, whichever is the lesser, from the first
(lst) day of the month for which due until paid.
21. Neither this Sales Agreement nor any of the prices or
terms set forth herein shall be binding on ASI until a copy
hereof duly executed by ASI is delivered to Customer. If
installation of the Equipment or Cut -Over is delayed for more
than thirty (30) days because of the fault, or at the request,
of Customer, ASI reserves the right to raise the purchase
price set forth in Paragraph 10 of the Sales Agreement by an
amount equal to increases in ASI's cost of labor, materials,
or equipment.
22. This Agreement may be assigned by ASI, in whole or in
part, and ASI may freely subcontract any or all of the work
hereunder only with written permission of the Customer. Said
permission shall not be unreasonably withheld. The Customer
may not assign this Agreement in whole or in part, without
obtaining the prior written consent of ASI, which consent
shall not be unreasonably withheld.
Schedule A p.8
Customer represents, covenants and warrants to ASI that
Customer has corporate or other power to make and perform this
Sales Agreement and that the making and performance of this
Sales Agreement by Customer has been duly authorized by all
necessary corporate or other action of the Customer and will
not violate any provision of law or of its Articles of
Incorporation or By -Laws, or result in the breach of any
agreement to which Customer is a party.
24. RE -USE OF EXISTING STATION CABLE: The telephone system
installation, shall be accomplished by the installation of all
new station cabling, thereby creating parallel services to
prevent disruption of telephone services during transition
from the existing telephone system to new telephone system.
Should any existing station cabling be deemed acceptable
for re -use for the new system, authorization for such use must
be agreed upon in writing by both Customer and ASI, and only
after an "exchange schedule" has been established for exchang-
ing telephones and wiring new stations post - cutover for all
locations to be installed on existing cable.
ASI's bid includes new cabling for the entire telephone
system and wherever existing cable is re -used, ASI agrees to
reduce its proportionate cost for cable and labor and /or add
the purchase cost of cable from AT &T for each instance where
existing cable will be utilized.
Before authorization to use existing cable, ASI must
submit a list of locations, telephone by telephone, where
existing cable will be used, showing contractual cost reduc-
tions and labor hours, time frames and personnel to be
scheduled post - cutover for exchange of telephone instruments,
and time frames for activating such locations onto the new
telephone system.
25. If at any time after executing this Agreement and up to
ten business days prior to final installation of the system,
Customer reserves the right to make additions, deletions
and /or changes in station equipment, trunking and /or other
revisions as necessary. Such revisions shall be documented by
Customer and delivered in writing to ASI. Such revisions
shall become part of the finalized installation.
25. ASI shall identify and label all cables, punchdown termi-
nals, and all line cards in the key service units. All tele-
phone instruments shall include typed pilot numbers and
station designations. All amphenol covers shall be securely
fastened to the walls by screws. All cabling shall be con-
cealed within the walls, wherever possible and ASI shall dis-
cuss such areas with Customer or its representative. All tele-
phone instrument instruction face plates shall be laminated.
Schedule A p.9
1RAIN11% In consideration of the fact that Customer may
elect to provide its own maintenance technician after the
first year warranty period, ASI agrees to screen and interview
applicants with a recommendation to the Customer at no
additional cost, provided said screening takes place no later
than month 10 of the warranty period. Additionally, ASI
agrees to provide Customer's technician with factory switch
training at such location where said training classes are
given, provided Customer shall pay all tuition, travel, food
and lodging expenses for its employee to be trained.
ASI agrees to train all station users on utilization of
the new telephone system prior to installation of the system,
providing Customer makes its personnel available for said
training at such reasonable times and places as ASI shall `
require.
28. All schedules attached to this Agreement, including ASI's
response to bid, entitled TELEPHONE SYSTEM SPECIFICATION
BOOKLET are an integral part hereof, as if fully set forth
herein.
29. AUDIT: After said cutover of the telephone system,
Customer shall audit and reconcile the telephone system
installation costs against previously quoted quantities and
corresponding prices. This Sales Agreement shall then be
amended by way of addendums to reflect all changes in
telephone equipment and costs. Customer shall pay for actual
equipment installed and be credited and /or charged for all
items of equipment added, deleted and /or not installed.
30. System software shall be deemed part of system and carry
the full effect of warranty and maintenance as outlined
elsewhere in this Agreement.
31. ASI will provide and install, at no cost to Customer, any
release of system software which has been provided to them by
manufacturer at no cost. Customer must agree in writing that
new software is to be installed. ASI shall in no case remove
system sofware without the express written permission of
Customer and must have replacement software immediately
available on Customer's premises.
Customer reserves right to require ASI to remove said
software in the event software does not meet or exceed system
features in previous release and replace with the software
previously removed at no cost to Customer within 15 working
days of installation.
32. ASI will provide Customer opportunity to purchase factory
software enhancements at sixty percent (60 %) above cost to
AST, this price shall include necessary labor and mileage.
33. AST will notify Customer of all factory software releases
within. 30 days of receipt by ASI.
Schedule A p.10
4:
1. BSI will provide Customer technical manuals to include but
not limited to (1) NEC PBX manual, (2) NEC PC 800 Maintenance
Administration Terminal, (3) Forms describing how ASI
programmed system, and (4) all other manuals necessary for
Customer to effectively manage the system and its component
parts.
Schedule A p. 11
End of Schedule A
0
SCHEDULE II
MAINTENANCE AGREEMENT
ASI Telesystems, Inc. ( "ASI "), whose address is
21150 Califa Street, Woodland Hills, California 91367
Effective Date
Customer's Name
Street Address
City and State
Upon Cut -over
, 1984
The City of Newport Beach,
a Municipal Corporation
3300 Newport Boulevard
P. 0. Box 1768
Newport Beach, CA 92658 -8915
Initial Monthly Charge $
675.00
1. SERVICE: ASI Telesystems, Inc. ( "ASI ") agrees with the
above -named customer ( "Customer ") to render repair and maintenance
service on the equipment ( "the Equipment ") listed in the attached
Schedule I in accordance with the terms and conditions set forth
herein.
2. Subject to the terms and conditions contained herein, ASI
shall furnish all necessary service, including parts and materials,
to maintain the Equipment in good working condition. Any parts
replaced by ASI shall become the property of ASI. ASI shall
dispatch qualified technicians to the above address within two (2)
hours, twenty -four (24) hours a day seven (7) days a week after
receivinla notification of a major interruption of service. For the
purposes of this Agreement, a major interruption of service means
the inability to make or receive outside calls. Minor service
requests will be responded to within twenty -four (24) hours of the
customer's request between the hours of 8:00 A.M. and 5:00 P.M.,
Monday through Friday, except holidays. Notwithstanding anything
to the contrary herein, ASI shall be excused from failure of
performance of its obligations hereunder due to strikes, fire,
flood, acts of God, or other causes beyond ASI's control.
3. EXCLUSIONS: The services provided for hereunder shall not
include:
a. The replacement of Equipment or parts thereof which
are lost of stolen.
b. The repair of Equipment or parts thereof which are
damaged by accident, neglect, misuse, or any other cause other
than ordinary use.
C. Additions to, or rearrangement or relocation of, the
Equipment.
d. Service necessitated by equipment failures for which
repair or maintenance has been obtained from persons other
than agents of AST.
Schedule II p.l
e. Service necessitated by damage resulting from failure
to maintain a proper environment for the Equipment.
f. Service necessitated by causes external to the
Equipment or by attachments, parts, supplies, or devices not
furnished by AS1.
4. Requests by Customer for service outside the scope of this
Agreement shall be furnished by ASI at its then effective rates in
accordance with Schedule III.
S. This Agreement shall commence on the Effective Date
hereinabove set forth and shall continue in effect (but in no event
for longer than _ Seven ( 7 ) years) until
terminated upon sixty (60) days' written notice. Notwithstanding
the foregoing, if Customer is in default in any of the Customer's
obligations hereunder or under any other agreement Customer may,
have with ASI, ASI may terminate this Agreement immediately upon
written notice to Customer. Customer shall be deemed to be in
default of an obligation to ASI if Customer fails to make any
pa,�^rent when due under terms of any such agreement.
6. Customer shall elect within 300 days of the Effective Date
to pay AST for maintenance services rendered in accordance with
this Agreement in one of the following two methods: 5�
a. Customer agrees to pay to ASI in advance on the
day of every month, commencing on the first anniversary of the
Effective Date, a sum equal to the Monthly Service Charge.
There shall be no Monthly Service Charge for the one -year
period commencing on the Efective Date. The Monthly Service
Charge in effect for the one -year period commencing on the .
first anniversary of the Effective Date shall be the Initial
Monthly Charge set forth above. The monthly service charge
shall be adjusted on each subsequent anniversary of the
Effective Date to an amount equal to the lesser of (i) ASI's
then effective rates for such services or (ii) the Initial
Monthly Charge multiplied by a fraction of which the numerator
shall be the Consumer Price Index -All Urban Consumers -U.S.
( "the Index ") for the calendar month preceding the adjustment
date and the denominator shall be the Index for the calendar
month preceding the Effective Date; provided that in no event
shall such amount be reduced below the Initial Monthly Charge.
b. Customer agrees to pay ASI for all parts and labor
provided by ASI pursuant to this Agreement at its then
effective rates, except that there shall be no charge for such
services during the one -year period commencing on the
Effective Date.
Schedule II p.2
Lxcept as pi in Paragraph 8 of this Agreement,
C'.`S1'OMER'S :SOLU REMEDY FOR ASPS LIABILITY WITH RESPECT TO THE
PARTS, MATERIALS, 'CORK, OR SERVICES PROVIDED HEREUNDER OR FOR ANY
OT11FR PERFORMANCE. BY ASI HEREUNDER SHALL BE LIMITED TO THE REPAIR
nR REPLACEMENT OF DEFECTIVE WORK. Without limiting the foregoing,
ASI shall not be liable for an special or consequential damages or
for any loss, damage or expense of any kind or nature caused
directly or indirectly by parts, materials, work, or services
provided hereunder, or any failure thereof, or for any delay in
providing the same.
8. Notwithstanding the exclusions contained in Paragraph 3, a
penalty of Five Hundred Dollars ($S00.00) shall be paid by ASI to
Customer for each hour or part thereof beyond the two (2) hour
maximum that ASI fails to respond to the request for emergency
service. Such penalty shall in no case exceed Three Thousand
Dollars ($3,000.00) for any single occurrence.
9. The Maintenance Agreement contains the entire agreement
between the parties hereto with respect to the subject matter
hereof, and supersedes any and all prior agreements between the
parties with respect thereto. There have been and are no
representations or warranties, whether express or implied, by
statute or otherwise, by either party hereto to the other, except
as expressly set forth herein. This agreement may not be modified
or amended except by a writing signed by both parties.
10. All notices, requests, instructions, or other writings
required or permitted hereunder or deemed by any party hereunder to
be necessary or desirable to be given to the other party shall be
in writing and shall be deemed to have been given on the date of
service if served personally on the party to whom notice is given,
or on the second day after mailing if mailed to the party to whom
notice is to be given, by first class mail, certified, postage
prepaid, and addressed to Customer at the address shown on p.l or
to ASI at 211SO Califa, Woodland Hills, California 91367; provided,
however, that either party may change the address to which notices
to it are to be sent by giving written notice of the new address to
the other party in accordance with the provisions of this paragraph.
CUSTOMER
By: FL,7f
Title: CITY MANAGER Date:June 1. 1984
AS TELE YSTEMS, INC.
By:
Title CHIEF Fx E', TIVfi/OFFLCER Date: JUNE 4, 1984
Schedule II p.3
End of Schedule II
SCHEDULE III
SERVICE AGREEMENT
ASI Telesystems, Inc. ( "ASI "), whose address is
21150 Califa Street, Woodland Hills, California 91367
Effective Date: upon Cut -over , 1984
Customer's Name: The City of Newport Beach,
a Municipal Corporation
Street Address: 3300 Newport Boulevard
P. 0. Box 1768
City and State: Newport Beach, CA 92658 -8915
Initial Monthly Charge $
1. SERVICE: ASI Telesystems, Inc. ( "ASI ") agrees with the
above -named customer ( "Customer ") to render service on the equipment
( "the Equipment ") listed in the attached Schedule I in accordance
with the terms and conditions set forth herein.
2. Subject to the terms and conditions herein, ASI shall
furnish all necessary service, including parts and materials, to
respond to requests by Customer for moves, changes, additions, and
alterations to the Equipment. Any parts replaced by ASI shall remain
the property of the Customer unless redeemed by ASI. ASI shall
dispatch qualified technicians to the above address within five (5)
business days after receiving a request for minor service from
Customer. Response to requests for major (more than ten stations or
lines) additions or reconfigurations shall be scheduled within a
reasonable period, subject to availability of parts and personnel,
after receiving a request. Notwithstanding anything to the contrary
herein, ASI shall be excused from failure of performance of its
obligations hereunder due to strikes, fire, flood, acts of God, or
other causes beyond ASI's control.
3. The services provided for hereunder shall include:
a. The replacement of Equipment or parts thereof which are
lost of stolen.
b. The repair of Equipment or parts thereof which are
damaged by accident, neglect, misuse, or any other cause other
than ordinary use.
C. Additions to, or rearrangement or relocation of, the
Equipment.
d. Service necessitated by equipment failures for which
repair or maintenance has been obtained from persons other than
agents of ASI.
e. Service necessitated by damage resulting from failure
to maintain a proper environment for the Equipment.
f. Service necessitated by causes external to the
Equipment or by attachments, parts, supplies, or devices not
furnished by ASI.
Schedule III p.l
4. This Service .Agreement shall commence on the Effective Date
hereinabove set forth and shall continue in effect (but in no event
for longer than seven years (7) years) until terminated upon sixty (60)
days' written notice. Notwithstanding the foregoing, if Customer is
in default in anv of the Customer's obligations hereunder or under
any other agreement Customer may have with ASI, ASI may terminate
this Agreement immediately upon written notice to Customer. Customer
shall be deemed to be in default of an obligation to ASI if Customer
fails to make any payment when due under terms of any such agreement.
S. Customer agrees to pay ASI for all parts and labor provided
by ASI pursuant to this Service Agreement at its then effective rates.
6. CUSTOMER'S SOLE REMEDY FOR ASPS LIABILITY WITH RESPECT TO
THE PARTS, MATERIALS, WORK, OR SERVICES PROVIDED HEREUNDER OR FOR ANY
OTHER PERFORMANCE BY ASI HEREUNDER SHALL BE LIMITED TO THE REPAIR OR
REPLACEMENT OF DEFECTIVE WORK. Without limiting the foregoing, ASI
shall not be liable for an special or consequential damages or for
any loss, damage or expense of any kind or nature caused directly or
indirectly by parts, materials, work, or services provided hereunder,
or any failure thereof, or for any delay in providing the same.
7. The Service Agreement contains the entire agreement between
the parties hereto with respect to the subject matter hereof, and
supersedes any and all prior agreements between the parties with
respect thereto. There have been and are no representations or
warranties, whether express or implied, by statute or otherwise, by
either party hereto to the other, except as expressly set forth
herein. This agreement may not be modified or amended except by a
writing signed by both parties.
8. All notices, requests, instructions, or other writings
required or permitted hereunder or deemed by any party hereunder to
be necessary or desirable to be given to the other party shall be in
writing and shall be deemed to have been given on the date of service
if served personally on the party to whom notice is given, or on the
second day after mailing if mailed to the party to whom notice is to
be given, by first class mail, certified, postage prepaid, and
addressed to Customer at the address shown on p.l or to ASI at 21150
Califa, Woodland Hills, California 91367; provided, however, that
either party may change the address to which notices to it are to be
sent by giving written notice of the new address to the other party
in accordance with the provisions of this paragraph.
CUSTO
By : LL / i
Title: CITY MANAGER Date:June 1, 1984
ASI TE",S/YSTEMS, INC.
By:
Title CHIEF EXFJFbTT,M OFFICER Date:JNNE 4, 1984
Schedule III p.2
End of Schedule III
0
S A I. E S A G R E E M E N T
SYSTEM B - POLICE DEPARTMENT
Tbis Sales Agreement is made and entered into between ASI
Telesystems, Inc. ( "ASI ") and The City of Newport Beach, a
Municipal Corporation ( "Customer "), located at 3300 Newport
Boulevard, Newport Beach, California.
ASI agrees to sell to Customer and Customer agrees to buy from ASI
the Equipment listed and described in Schedule I attached hereto
( "the Equipment "), at the purchase price and on the terms and
conditions hereinbelow set forth.
1. AST shall install the Equipment at the Premises of the
Ci, stonier. Customer shall be responsible for timely and proper
securing of all permits, licenses, consents and "approvals" in
connection with the sale and installation of the equipment.
Z. The estimated cut -over date is September 21, 1984.
3. ASI shall furnish all necessary cable, hardware, etc.,
including labor for installation of the Equipment, unless otherwise
indicated herein or in a Schedule attached hereto. All cables,
hardware, and other equipment shall meet all applicable FCC
standards. All conduit and electrical outlets are to be provided
h, customer. ASI shall perform the installation in a workmanlike
manner, but shall not be responsible for damages to the Premises
not resulting from ASI's or it's subcontractors and /or affiliates
ne.�,li.gence.
4. ASI shall furnish to Customer before the commencement of
installation the following signed certification:
"I am aware of the provisions of Section 3700 of the Labor
Code which require every employer to be insured against
liability for workers' compensaion or to undertake
self- insurance in accordance with the provisions of that code,
and I will comply with such provisions before commencing the
performance of the work of this contract."
AS "I shall also comply with Section 3800 of the Labor Code by
securing, paying for, and maintaining in full force and effect for
the duration of the contract, complete Workmen's Compensation
Insurance, and shall furnish a Certificate of Insurance to the
Customer. The Customer, its officers, or employees, will not be
responsible for any claims in law or equity occasioned by failure
of AST to comply with this paragraph.
Page 1
Before starting installation, ASI shall designate, in
ri.tine, c. representative who shall have complete authority to
act: ior it. An alternate representative may be designated. The
representative or alternate shall be present at the worksite
enever work is in progress or whenever actions of the elements
necessitate its presence to take measures necessary to protect
t1u work, persons or property. Any order or communication given
to this representative shall be deemed delivered to ASI. A joint
venture shall designate only one representative and alternate.
In the absence of the designated representative, necessary or
desirable directions or instructions may be given by the Customer
to the Superintendent or person having charge of the specific
work to which the order applies. Such order shall be complied
with promptly and referred to ASI or its representative.
6. Prior to start of installation, ASI shall submit to the
Customer for approval its proposed installation schedule. The
schedule shall be in the form of a tabulation, chart, or graph
anc: shall be in sufficient detail to show the chronological
relationship of all activities of the project including, but not
limited to, estimated starting and completion dates of various
activities, procurement or materials, and scheduling of equipment.
7. ASI shall furnish to Customer a bond for the faithful
performance of this Agreement, with the Customer named as the
beneficiary for an amount equal to the total sum of this contract.
8. One year of maintenance (pursuant to the terms and
conditions of the Maintenance Agreement attached hereto) is
included under this Agreement.
9. Risk of loss or damage to the equipment shall pass to
Customer as soon as the Equipment has been installed and deemed
corking as intended. Until the entire purchase price and sales
tax have been paid, Customer shall insure the Equipment against
fire, theft and ether perils by a policy and with an insurer
satisfactory to ASI and naming ASI as an insured in an amount not
Less than the outstanding balance of the purchase price, and
shall furnish to ASI a certificate from the carrier that ASI will
receive at least ten (10) days' prior written notice of
cancellation or change of coverage.
10. The purchase price shall be $172,506.01
Plus Sales Tax of 7,885.78
Total $180,391.79
PAYMENT SCHEDULE
Direct Purchase from ASI:
SO% with Sinned Sales Agreement $ 90,195.90
Page 2
tipor .: i l rCry 0f. Switci� nd
Stct1 Equipment
uo ljpon i't:rr.C- tetion of Station
Cahi.in.° and Main Distribu-
tion 'craRto
$ -0-
CUT OVER: 1.0 -days prior to cutover, Customer will
rnvide to ASI a pre - cutover reconciliation.
iS`J of the pre - cutover reconciliation amount
shall be paid to ASI after cutover.
ACCEPTANCE: As defined in Schedule A, paragraph 5, upon
final reconciliation and acceptance, after
cutover, Customer shall pay ASI the balance
then due and owing.
11. The terms and conditions set forth on Schedule I, II,
III, and Schedule A, attached hereto, are hereby incorporated
herein and made a part of this Agreement.
12. THIS AGREEMENT CONTAINS THE ENTIRE AGREEMENT OF THE
PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND MAY NOT BE
CHANGED EXCEPT BY A WRITING SIGNED BY CUSTOMER AND ASI. ASI
MAKES NO WARRANTIES, EXPRESS OR IMPLIED, EXCEPT AS SET FORTH IN
THIS AGREEMENT. ANY AND ALL ADDITIONAL OR DIFFERENT TERMS OR
CONDITIONS HERETOFORE OR HEREAFTER SUBMITTED BY CUSTOMER ARE
DEEMED TO BE REJECTED BY ASI AND NEITHER ASI'S COMMENCEMENT OF
PERFORMAN \CE NOR DELIV: :RY SHALL BE DEEMED OR CONSTRUED AS
ACCEPTANCE OF CUSTOMER'S ADDITIONAL OR DIFFERENT TERMS OR
CONDITIONS.
IN IiITNESS WHEREOF, the parties hereto have caused this Agreement
to be properly executed, intending that it shall be legally
binding upon them and their respective heirs, estates, successors
and assigns.
By SIGNING BELOW, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS
CAREFULLY READ ALL PAGES OF THIS DOCUMENT AND ATTACHED SCHEDULES
AND UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS THEREOF.
Customer: The City of Newport Beach
(a Municipal Corporation)
;,...
Title: CITY MANAGER
Date: June 1, 1984
Page 3
ASI TELESYSTEMS, INC.
Rm
Title: CHIEF EXECUTIVE OFFICER
Date: JUNE 4, 1994
SCHEDULE A
SALES AGREEMENT
?•.DriITIONAL TERMS AND CONDITIONS
The term "Cut- Over" as used herein means the date on
which the installed Equipment is substantially operable.
"Substantially operable" means having the capability to make
outgoing and receive incoming calls and having a substantial
maiority of the features listed in Schedule I functional.
Equipment in such condition shall be deemed to be substan-
tially operable notwithstanding any unavailability of trunk
lines due to telephone company delays or any failures which do
not materially affect the functioning of the entire system.
ASI shall employ all reasonable efforts to make timely
delivery and installation but shall be excused from any delays
arising out of causes beyond its reasonable control. All
stated delivery or Cut -Over dates are approximate, and ASI
shall under no circumstances be liable for damages, special,
consequential or otherwise, for delays or failure to give
notice of delay.
3. Customer shall be responsible for obtaining trunk lines
and inter - connecting devices from the serving telephone
company. If requested, ASI will use reasonable efforts to
assist Customer. ASI's services shall be limited to the
installation of the Equipment on the subscriber's side of the
interface equipment connecting the Equipment to the telephone
system operated by the local telephone utility. ASI shall not
be responsible in the event the utility fails to timely make
available interconnect services nor shall ASI be obligated to
pay the inter - connect tariff or other charges of the utility
with respect to such services.
4. Customer shall at Customer's expense on the date of
delivery of the Equipment to the Premises and at all times
thereafter during the period of installation of the Equipment:
(a) Allow employees and agents of ASI free access to the
Premises at all hours consistent with the requirements of
the installation. ASI agrees to "comply with all rules
and regulations of Customer.
(b) Assure that the Premises will meet all temperature,
humidity control, air - conditioning, and other
environmental requirements set forth in the applicable
Equipment specifications, and will be dry and free from
dust and in such condition as not to be injurious to the
employees or agents of ASI or the equipment.
Schedule A o.1
ci Provide necessary openings and ducts for cable and
conductorq in floors and walls;
(d) Provide electric current for any necessary purpose with
suitable terminals in rooms where required;
(e) Provide installed metallic ground or grounds, as required;
(f) Provide for the termination of any existing service
agreement :sith the local telephone utility and for the
removal of any existing equipment and cable, as required;
(g) Provide suitable and easily accessible floor space to
T
ermit storing adjacent to where the Equipment will be
used, and for secure storage of tools and test sets.
S. Delivery and Acceptance: After the cut -over date,
Customer shall have 15 business days to provide ASI with a
written list, which list shall contain omissions of features
and /or other items of equipment, modifications or deviations
from this agreement.
ASI shall then have 15 business days from the date of
receipt of such deficiency list in which to correct, replace
or repair such deficiencies., After the deficiencies on said
list are corrected, repaired or replaced, ASI shall furnish a
written notice to Customer completely detailing the
correction, repair or replacement.
The system shall be deemed accepted by Customer upon
verification that deficiencies have been cured. Customer shall
use all best efforts to complete verification in a timely
manner.
After verification that deficiencies have been cured, the
warranty shall commence pursuant to Paragraph 7 of this
Schedule.
6. Up to ten business days prior to cut -over, at Customer's
request, ASI shall relocate any part of the system in
accordance with ASI's standard rates in effect at the time of
such relocation. ASI will supply and install additional
Equipment for the system at its pre- cutover prices quoted in
the Telephone System Specifications Booklet, bid by ASI March
26, 1984. Customer shall not, without obtaining the written
consent of ASI, change the location of the Equipment or permit
equipment of any sort to be installed by anyone other than ASI.
7. Subject to the provisions of this paragraph, ASI warrants
the Equipment against defects in material and workmanship of
which it receives written notice from Customer within one year
from the Cut -over date. ASI's sole obligation with respect to
said warranty shall be to repair or (at ASI's option) replace
the defective item. This warranty does not extend to any
Equipment which has been (i) subject to misuse, neglect,
accident or abuse, (ii) wired, repaired or altered by anyone
other than ASI, its sub - contractors and /or affiliates without
ASI's prior written approval, (iii) improperly installed by
Schedule A p.2
someone other than ASI, its subcontractors and /or affiliates,
(iv) used in violation of instructions furnished by ASI or (v)
maintained in an environment (including but not limited to
humidity, temperature, and air- conditioning) not conforming to
the specifications furnished by ASI. The foregoing warranty
shall be in lien of and excludes all other warranties, express
or implied, of merchantability, fitness or otherwise.
6. THE SOLE REMEDY FOR BREACH OF ANY AND ALL WARRANTIES AND
SOLE REMEDY FOR ASI'S BREACH OR LIABILITY OF ANY KIND WITH
RESPECT TO THE EQUIPMENT, MATERIALS, WORK OR SERVICES PROVIDED
OR TO BE PROVIDED HEREUNDER AND ANY OTHER PERFORMANCE BY ASI
UNDER OR PURSUANT TO THIS AGREEMENT SHALL BE LIMITED TO THE
REMEDY PROVIDED IN PARAGRAPH 7. ASI SHALL NOT BE LIABLE FOR
ANY SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR LOSS, DAMAGE OR
EXPENSE (WHETHER OR NOT CAUSED BY OR RESULTING FROM ASI'S
NEGLIGENCE) DIRECTLY OR INDIRECTLY ARISING FROM USE OF THE
EQUIPMENT OR ARISING FROM CUSTOMER'S INABILITY TO USE
EQUIPMENT EITHER SEPARATELY OR IN COMBINATION WITH ANY OTHER
EQUIPMENT OR FROM ANY OTHER CAUSE.
9 Customer hereby grants to ASI a security interest in the
Collateral (as hereinafter defined) to secure performance of
the Debtor Obligations (as hereinafter defined), subject to
the following terms:
(a) As used in this Paragraph, the term "Collateral"
means the Equipment and all replacements, parts, additions,
repairs and accessories incorporated therein and /or now or
hereafter affixed thereto; "Debtor Obligations" means each and
all of the obligations of Customer under this Sales Agreement,
the Maintenance Agreement, and any and all other agreements
between Customer and ASI.
(b) Customer shall execute and deliver to ASI financing
statements and other documents and instruments and perform
such acts as ASI may require in order to carry out the
provisions of this Agreement and to affirm, effectuate, or
further assure the assignment to ASI of the Collateral or
ASI's interest therein.
(c) Customer hereby warrants, represents and covenants
that:
(i) Customer shall not sell, transfer or otherwise
dispose of the Collateral; or any portion
thereof, unless the Debtor Obligations have
been fully performed and discharged;
(ii) Except for the security interest hereby created
and except as may be otherwise herein provided,
Customer is the owner of Collateral free from
any adverse lien, and shall at all times keep
the Collateral. free from any adverse lien;
Schedule A p.3
(iii) G;istomer shall do all acts necessary to
eaintain, preserve, protect and keep the
Collateral in good condition and repair and not
cause any waste or unusual or unreasonable
depreciation of the Collateral, and shall
insure the Collateral at its full value for all
risks and losses, and comply with all laws,
statutes and reulations pertaining to the
Collateral and pay when due all taxes, charges
and other impositions upon the Collateral or
for its use and operation;
(fv) Customer shall promptly notify ASI of any
attachment or other legal process levied
against any of the Collateral;
(v) Customer shall not permit or cause the
impairment of the value of the Equipment or the
security intended to be afforded by this
Agreement.
(d) Any of the following shall constitute an event of
default for purposes of this Paragraph:
(i) Failure to comply with each and every one of
the covenants made hereunder by Customer;
(ii) Failure to make any payment when due under this
Agreement, or under the Maintenance Agreement,
or under any other agreement between Customer
and ASI, without deduction or setoff;
(iii) Failure to protect the Collateral, resulting.in
loss, theft, damage, destruction or encumbrance
or the making of any levy, seizure or
attachment thereof or thereon;
(iv) Customer shall become insolvent or bankrupt or
make an assignment for the benefit of creditors
or consent to the appointment of a trustee or
receiver; or a trustee or receiver shall be
appointed for Customer or for a substantial
part of its property, without its consent and
shall not be dismissed within a period of sixty
(60) days; or bankruptcy, reorganization or
insolvency proceedings shall be instituted by
or against Customer and shall not be dismissed
within a period of sixty (60) days;
(v) Failure to execute and deliver to ASI a
delivery and acceptance certificate within
thirty (30) days after ASI's submission thereof
to Customer and after, in the judgement of
Customer's Consultant, Earline Reeves $
Associates, all deficiencies have been
corrected by AST.
Schedule A p.4
:� =�
(e) upon the occurrence of an event or default under this
greemcnt, or at any time thereafter, ASI may, at its
option, declare any or all of the Debtor Obligations
immediately due and payable without demand or notice
of any kind and the same thereupon shall immediately
become and be due and payable, and ASI shall have and
may exercise from time to time any and all rights and
remedies of a secured party under the California
Uniform Commercial Code and any and all rights and
remedies available to it under any other applicable
law, including, without limitation, the right to
immediately take possession of or disable any or all
items of the Collateral, wherever same may be
located, without demand or written notice, without
any court order or other process of law, and without
liability to Customer for any damages occasioned
thereby. In the event of such taking or disabling
ASI in its sole discretion may, but without obli-
gation to do so, install upon the Premises one or
more single -line telephones to replace any one or
more items of Collateral taken or disabled. Customer
agrees to permit ASI and its duly authorized agents
to enter the Premises and to have access to the
Collateral for the purpose of exercising ASI's rights
pursuant to this Paragraph. Upon disposition of any
Collateral after the occurrence of any default
hereunder, the proceeds of the disposition shall be
applied first to expenses of retaking, holding,
preparing for sale, and selling, including ASI's
reasonable attorney's fees and legal expenses, and
then to the Debtor Obligations. Customer shall be
and remain liable for any deficiency and ASI shall
account to the Customer for any surplus.
10. If Customer has elected to Lease pursuant to Paragraph 6
hereof, title to the Equipment shall not pass to Customer
until the entire purchase price plus sales tax has been paid.
If for any reason whatsoever Customer has not executed and
delivered to ASI a delivery and acceptance certificate within
thirty (30) days after ASI's submission thereof to Customer
and after, in the judgement of Customer's consultant, Earline
Reeves 8 Associates, all deficiencies have been corrected by
ASI, ASI shall have the right at any time thereafter (until
the entire purchase price plus sales tax has been paid) to
terminate this Agreement. Thereupon, Customer shall forthwith
return to ASI all of the Equipment. Customer agrees that ASI
shall have the right peaceably to enter the Premises or any
other premises at which the Equipment is
Schedule A p.5
'..ccated :r co take possession of and remove the
quipment. Customer fails to permit AST to recover the
Gquipmcent, AS I. shall. have the right to recover the same in a
claim and deiivery proceeding. within fifteen (15) days after
ASI has taken possession of all of the Equipment, AST shall
return to Customer all amounts theretofore paid by Customer
upon the purchase price after first offsetting ASI's costs of
installation (including both labor and nonrecoverable
materials).
i. Customer acknowledges that the pace of technological
change in the industry may be so rapid as to accelerate the
diminution in value of the Equipment; that therefore any delay
in AST's taking possession pending litigation would result in
special and peculiar detriment to the business of ASI; that in
the event of any default by Customer hereunder, or termination
of this Agreement pursuant to Paragraph 10, ASI's right to
recover possession of the Equipment, whether with or without
process of law, is essential to the operation of ASI's
business. Therefore, if ASI brings an action to take posses-
sion of the Equipment, whether pursuant to the provisions of
Paragraph 9 or of Paragraph 10, Customer agrees not to assert
any setoff or defense to the action, or any objection to the
issuance by the court thereof of a writ of possession of the
Equipment or to the execution of such writ, nor to object in
any way to the taking of possession by ASI. Customer hereby
forever and irrevocably waives any and all rights, now exist-
ing or hereafter arising, to file, and agrees not to file, any
undertaking or bond to prevent ASI or any levying officer from
executing such writ. Without limiting the foregoing, Customer
agrees that any claim which would otherwise be the basis of
such setoff will be asserted by it in a proceeding independent
of any action by ASI for recovery of possession of the
Equipment. ASI agrees that it will not assert as a bar to any
such independent action by Customer any defenses arising from
the statutes governing compulsory cross - actions.
12. This Contract may be cancelled by the Customer without
liability for damage when ASI is not complying in good faith,
has become insolvent, or has assigned or subcontracted any
part of the work without the consent of Customer. In the
event of such cancellation, ASI will be paid the actual amount
due based on unit prices or lump sums bid and the quantity of
work completed at the time of cancellation, less damages
caused to the Customer by acts of ASI or causing the
cancellation. AST shall waive any and all claims for damages
because of cancellation of Contract for any such reason. If
the Customer declares the Contract cancelled for any of the
above reasons, written notice to that effect shall be served
upon the Surety. The Surety shall, within S days, assume
Schedule A p.6
AO 0
control and perform the work as successor to ASI.
If (subject to the provisions of Schedule A, paragraph 2)
ASI fails to begin delivery of material and equipment, to
commence work within the time specified, to maintain the rate
of delivery or material, to execute the work in the manner and
at such locations as specified, or fails to maintain a work
program which will ensure the Customer's interest, or if the
Contractor is not carrying out the intent of the contract, the
Customer may serve upon ASI a written notice and the Surety on
its faithful performance bond demanding satisfactory com-
pliance with the Contract.
If ASI or its Surety does not comply with such notice
within 5 days after receiving it, or after starting to comply,
fails to continue, Customer may exclude it from the premises
and take possession of all material and equipment, and
complete the Work, by Customer forces or by letting the
unfinished work to another Contractor, or by a combination of
such methods. In any event, the cost of completing the Work
shall be charged against ASI and its Surety, and may be
deducted from any money due or becoming due from the Customer.
If the sums under the contract are insufficient for com-
pletion, ASI or Surety shall pay to the Customer within S days
after completion, all costs in excess of the Contract Price.
If the Surety assumes any part of the Work, it shall take
the place of ASI in all respects for that part, and shall be
paid by the Customer for all work performed by it in accord-
ance with the Contract. If the Surety assumes the entire
contract, all money due ASI at the time of its default shall
be payable to the surety as the work progresses, subject to
the terms of the Contract.
The provisions of this section shall be in addition to all
other rights and remedies available to the Customer under law.
13. No action arising out of this Agreement or performance
hereunder may be brought by either party more than one year
after the cause of action arises.
14. Customer shall pay ASI all costs.(including reasonable
attorney's fees to the extent permitted by law) incurred by
ASI in enforcing the provisions hereof, or in exercising any
of the rights and remedies hereunder.
ASI shall pay Customer all costs (including reasonable
attorney's fees to the extent permitted by law) incurred by
Customer in enforcing the provisions hereof, or in exercising
any of the rights and remedies hereunder.
Schedule A p.7
0
i�. Any notice, demand or document which either party is
required to or ,Icsires to give to the other shall be deemed
iven when r.ersonally served or when deposited in the United
States mail, certified mail, postage prepaid, addressed as
follows:
TO: AS] Telesystems, Inc., 21150 Califa Street
Woodland Hills, California 91367
TO: City Manager
3300 Newport Blvd., P.O. Box 1768
Newport Beach, California 92658 -7815
16. No waiver by either Party of any default shall operate as
a waiver of any other default or of the same default on a
future occasion. No delay or omission on the part of either
Party in exercising any right or remedy shall operate as a
waiver thereof, and no single or partial exercise by either
Party of any right or remedy shall preclude any other or
further exercise thereof or the exercise of any other right or
remedy.
li. All the provisions of this Agreement shall be considered
as separate terms and conditions and in the event any one
shall be held illegal, invalid or unenforceable, all the other
provisions hereof shall remain in full force and effect as if
the illegal, invalid or unenforceable provision were not a
part hereof.
18. The Equipment covered herein shall remain personal
property, and shall not become part of the freehold, regard-
less of the manner of affixation.
19. This Agreement shall be governed and construed in accord-
ance with the laws of the State of California.
20. Payments which are not made when due shall be subject to a
service charge of two percent (2 %) per month or at the maximum
rate permitted by law, whichever is the lesser, from the first
(lst) day of the month for which due until paid.
21. Neither this Sales Agreement nor any of the prices or
terms set forth herein shall be binding on ASI until a copy
hereof duly executed by ASI is delivered to Customer. If
installation of the Equipment or Cut -Over is delayed for more
than thirty (30) days because of the fault, or at the request,
of Customer, ASI reserves the right to raise the purchase
price set forth in Paragraph 10 of the Sales Agreement by an
amount equal to increases in ASI's cost of labor, materials,
or equipment.
22. This Agreement may be assigned by ASI, in whole or in
part, and ASI may freely subcontract any or all of the work
hereunder only with written permission of the Customer. Said
permission shall not be unreasonably withheld. The Customer
may not assign this Agreement in whole or in part, without
obtaining the prior written consent of ASI, which consent
shall not he unreasonably withheld.
Schedule A p.8
CGistomer represents, covenants and warrants to ASI that
Customer has corporate or other power to make and perform this
Sales Agreement and that the making and performance of this
Sales Agreement by Customer has been duly authorized by all
necessary corporate or other action of the Customer and will
not violate any° provision of law or of its Articles of
Incorporation or By -Laws, or result in the breach of any
agreement to which Customer is a party.
Z-4. RE -USE OF EXISTING STATION CABLE: The telephone system
installation shall be accomplished by the installation of all
new station cabling, thereby creating parallel services to
prevent disruption of telephone services during transition
from the existing telephone system to new telephone system.
Should any existing station cabling be deemed acceptable
for re -use for the new system, authorization for such use must
be agreed upon in writing by both Customer and ASI, and only
after an "exchange schedule" has been established for exchang-
ing telephones and wiring new stations post - cutover for all
locations to be installed on existing cable.
ASI's bid includes new cabling for the entire telephone
system and wherever existing cable is re -used, ASI agrees to
reduce its proportionate cost for cable and labor and /or add
the purchase cost of cable from AT &T for each instance where
existing cable will be utilized.
Before authorization to use existing cable, ASI must
submit a list of locations, telephone by telephone, where
existing cable will be used, showing contractual cost reduc-
tions and labor hours, time frames and personnel to be
scheduled post - cutover for exchange of telephone instruments,
and time frames for activating such locations onto the new
telephone system.
ZS. If at any time after executing this Agreement and up to
ten business days prior to final installation of the system,
Customer reserves the right to make additions, deletions
and /or changes in station equipment, trunking and /or other
revisions as necessary. Such revisions shall be documented by
Customer and delivered in writing to ASI. Such revisions
shall become part of the finalized installation.
2 ASI shall identify and label all cables, punchdown termi-
nals, and all line cards in the key service units. All tele-
phone instruments shall include typed pilot numbers and
station designations. All amphenol covers shall be securely
fastened to the walls by screws. All cabling shall be con-
cealed within the walls, wherever possible and ASI shall dis-
cuss such areas ;:ith Customer or its representative. All tele-
phone instrument instruction face plates shall be laminated.
Schedule A p.9
TRAI \I \G: onsideraticr, oi: the fact that Customer ::3av
elect to provide its own maintenance technician after the
first year warranty period, ASI agrees to screen and interview
applicants with a recommendation to the Customer at no
additional cost, provided said screening takes place no later
than month 1.0 of the warranty period. Additionally, ASI
agrees to provide Customer's technician with factory switch
training at such location where said training classes are
-liven, provided Customer shall pay all tuition, travel., food
and lodging expenses for its employee to be trained.
ASI agrees to train all station users on utilization of
the new telephone system prior to installation of the system,
providing Customer makes its personnel available for said
training at such reasonable times and places as ASI shall
require.
28. All schedules attached to this Agreement, including ASI's
response to bid, entitled TELEPHONE SYSTEM SPECIFICATION
BOOKLET are an integral part hereof, as if fully set forth
herein.
29. AUDIT: After said cutover of the telephone system,
Customer shall audit and reconcile the telephone system
installation costs against previously quoted quantities and
corresponding prices. This Sales Agreement shall then be
amended by way of addendums to reflect all changes in
telephone equipment and costs. Customer shall pay for actual
equipment installed and be credited and /or charged for all
items of equipment added, deleted and /or not installed.
3u. System software shall be deemed part of system and carry
the full effect of warranty and maintenance as outlined
elsewhere in this Agreement.
31. ASI will. provide and install, at no cost to Customer, any
release of system software which has been provided to them by
manufacturer at no cost. Customer must agree in writing that
new software is to be installed. ASI shall in no case remove
system sofware without the express written permission of
Customer and must have replacement software immediately
available on Customer's premises.
Customer reserves right to require ASI to remove said
software in the event software does not meet or exceed system
features in previous release and replace with the software
previously removed at no cost to Customer within 15 working
days of installation.
32. ASI will provide Customer opportunity to purchase factory
software enhancements at sixty percent (60 %) above cost to
ASI, this price, shall include necessary labor and mileage.
3 ASI will notify Customer of all factory software releases
within 30 days of receipt by ASI.
Schedule A p.10
V t r,
'.
4. ASI will provide Customer technical manuals to include but
not limited to (L) NEC PBX manual, (2) NEC PC 800 Maintenance
Administration Terminal, (3) Forms describing how ASI
programmed system, and (4) all other manuals necessary for
Customer to effectively manage the system and its component
parts.
Schedule A p. 11
End of Schedule A
0
SCHEDULE I1
MAINTENANCE AGREEMENT
ASI Telesystems, Inc. ( "ASI "), whose address is
21150 Califa Street, Woodland Hills, California 91367
Effective Date: Upon Cut -over 1 1984
Customer's 'Jame: The City of Newport Beach,
a Municipal Corporation
Street Address: 3300 Newport Boulevard
P. 0. Box 1768
City and State: Newport Beach, CA 92658 -8915
Initial Monthly Charge $ 540.00
1. SERVICE: ASI Telesystems, Inc. ( "ASI ") agrees with the
above -named customer ( "Customer ") to render repair and maintenance
service on the equipment ( "the Equipment ") listed in the attached.
Schedule I in accordance with the terms and conditions set forth
herein.
2. Subject to the terms and conditions contained herein, ASI
shall furnish all necessary service, including parts and materials,
to maintain the Equipment in good working condition. Any parts
replaced by ASI shall become the property of ASI. ASI shall
dispatch qualified technicians to the above address within two (2)
hours, twenty -four (24) hours a day seven (7) days a week after
receiving notification of a major interruption of service. For the
purposes of this Agreement, a major interruption of service meaps
the inability to make or receive outside calls. Minor service
requests will be responded to within twenty -four (24) hours of the
customer's request between the hours of 8:00 A.M. and 5:00 P.M.,
Monday through Friday, except holidays. Notwithstanding anything
to the contrary herein, ASI shall be excused from failure of
performance of its obligations hereunder due to strikes, fire,
flood, acts of God, or other causes beyond ASI's control.
3. EXCLUSIONS: The services provided for hereunder shall not
`include:
a. The replacement of Equipment or parts thereof which
are lost of stolen.
b. The repair of Equipment or parts thereof which are
damaged by accident, neglect, misuse, or any other cause other
than ordinary use.
C. Additions to, or rearrangement or relocation of, the
Equipment.
d. Service necessitated by equipment failures for which
repair or maintenance has been obtained from persons other
than agents of AS].
Schedule II p.1
e. Service necessitated by damage resulting from failure
to maintain a proper environment for the Equipment.
f. Service necessitated by causes external to the
Equipment or by attachments, parts, supplies, or devices not
furnished by ASI.
4. Requests by Customer for service outside the scope of this
Agreement shall be furnished by ASI at its then effective rates in
accordance with Schedule III.
5. This Agreement shall commence on the Effective Date
hereinabove set forth and shall continue in effect (but in no event
for longer than seven ( 7 ) years) until
terminated upon sixty (60) days' written notice. Notwithstanding
the foregoing, if Customer is in default in any of the Customer's
obligations hereunder or under any other agreement Customer may,
have with ASI, ASI may terminate this Agreement immediately upon
written notice to Customer. Customer shall be deemed to be in
default of an obligation to ASI if Customer fails to make any
payment when due under terms of any such agreement.
6. Customer shall elect within 300 days of the Effective Date
to pay ASI for maintenance services rendered in accordance with
this Agreement in one of the following two methods:
a. Customer agrees to pay to ASI in advance on the
day of every month, commencing on the first anniversary- of the
Effective Date, a sum equal to the Monthly Service Charge.
There shall be no Monthly Service Charge for the one -year
period commencing on the Efective Date. The Monthly Service
Charge in effect for the one -year period commencing on the
first anniversary of the Effective Date shall be the Initial
Monthly Charge set forth above. The monthly service charge
shall be adjusted on each subsequent /.anniversary of the
Effective Date to an amount equal to the lesser of W ASI's
then effective rates for such services or (ii) the Initial
Monthly Charge multiplied by a fraction of which the numerator
shall be the Consumer Price Index -All Urban Consumers -U.S.
( "the Index ") for the calendar month preceding the adjustment
date and the denominator shall be the Index for the calendar
month preceding the Effective Date; provided that in no event
shall such amount be reduced below the Initial Monthly Charge.
b. Customer agrees to pay ASI for all parts and labor
provided by ASI pursuant to this Agreement at its then
effective rates, except that there shall be no charge for such
services during the one -year period commencing on the
Effective Date.
Schedule II p.2
;incept a ided in Para< *,r:iph 8 of this Agreement,
.'.'Qlf'•iEP'S SOLE. F ?1'.'!'��`� FOR ASPS LIABILITY WITH RESPECT TO THE
".`.RTS, 'MATERIALS, `;oi:K, OR SERVICES PROVIDED HEREUNDER OR FOR ANY
(' -THEP PERFORMANCE BY k.Sl HEREUNDER SHALL BE LIMITED TO THE REPAIR
PFPLACEDIF,N'I OF hLT'P,CTIVE WORK. Without limiting the foregoing,
"SI shall not be lialhle for an special or consequential damages or
For any loss, damage or expense of any kind or nature caused
directly or indirectly by parts, materials, work, or services
provided hereunder, or any failure thereof, or for any delay in
providing the same.
8. Notwithstanding the exclusions contained in Paragraph 3, a
penalty of Five Hundred Dollars ($500.00) shall be paid by ASI to
Customer for each hour or part thereof beyond the two (2) hour
maximum that ASI fails to respond to the request for emergency
service. Such penalty shall in no case exceed Three Thousand
Dollars ($3,000.00) for any single occurrence.
9. The Maintenance Agreement contains the entire agreement
between the parties hereto with respect to the subject matter
hereof, and supersedes any and all prior agreements between the
parties with respect thereto. There have been and are no
representations or warranties, whether express or implied, by
statute or otherwise, by either party hereto to the other, except
as expressly set forth herein. This agreement may not be modified
or amended except by a writing signed by both parties.
10. All notices, requests, instructions, or other writings
required or permitted hereunder or deemed by any party hereunder to
be necessary or desirable to be given to the other party shall be
in writing and shall be deemed to have been given on the date of
service if served personally on the party to whom notice is given,
or on the second day after mailing if mailed to the party to whom
notice is to be given, by first class mail, certified, postage
prepaid, and addressed to Customer at the address shown on p.l or
to AS' at 21150 Califa, Woodland Hills, California 91367; provided,
however, that either party may change the address to which notices
to it are to be sent by giving written notice of the new address to
t;;e other party in accordance with the provisions of this paragraph.
CUSTO ER
By:
�{i
Title: CITY MANAGER Date:June 1, 1984
ASI TELES,? STEMS, INC.
3-MM,
Title CHIRP EXD�VTZVE/OFPICER Date: JUNE 4, 1984
Schedule II p.3
End of Schedule II
,,,
SCHEDULE III
SERVICE AGREEMENT
ASI Telesystems, Inc. ( "ASI"), whose address is
21150 Califa Street, Woodland Hills, California 91367
Effective Date:
Customer's Name
Street Address
City and State
Cut -over
, 1984
The City of Newport Beach,
a Municipal Corporation
3300 Newport Boulevard
P. 0. Box 1768
Newport Beach, CA 92658 -8915
Initial Monthly Charge $
1. SERVICE: ASI Telesystems, Inc. ( "ASI ") agrees with the
above -named customer ( "Customer ") to render service on the equipment
( "the Equipment ") listed in the attached Schedule I in accordance
with the terms and conditions set forth herein.
2. Subject to the terms and conditions herein, ASI shall
furnish all necessary service, including parts and materials, to
respond to requests by Customer for moves, changes, additions, and
alterations to the Equipment. Any parts replaced by ASI shall remain
the property of the Customer unless redeemed by ASI. ASI shall
dispatch qualified technicians to the above address within five (5)
business days after receiving a request for minor service from
Customer. Response to requests for major (more than ten stations or
lines) additions or reconfigurations shall be scheduled within a
reasonable period, subject to availability of parts and personnel,
after receiving a request. Notwithstanding anything to the contrary
herein, ASI shall be excused from failure of performance of its
obligations hereunder due to strikes, fire, flood, acts of God, or
other causes beyond ASI's control.
3. The services provided for hereunder shall include:
a. The replacement of Equipment or parts thereof which are
lost of stolen.
b. The repair of Equipment or parts thereof which are
damaged by accident, neglect, misuse, or any other cause other
than ordinary use.
C. Additions to, or rearrangement or relocation of, the
Equipment.
d. Service necessitated by equipment failures for which
repair or maintenance has been obtained from persons other than
agents of ASI.
e. Service necessitated by damage resulting from failure
to maintain a proper environment for the Equipment.
f. Service necessitated by causes external to the
Equipment or by attachments, parts, supplies, or devices not
furnished by ASI.
Schedule III p.l
1
i �erci :. A reement shall commence on the Effective ;late
,inahove set fort': .md shall continue in effect (but in no event
r longer Char seven years(7) years) until terminated upon sixty (60)
e S' +..ritten not i.c: Notwithstandinc= the foregoing, if Customer is
in default in ante of the Customer's obligations hereunder or under
eY ether agreement Customer may have with ASI, ASI may terminate
Agreement imme- .!iately upon written notice to Customer. Customer
shall be deemed to be in default of ap obligation to ASI if Customer
Foils to make am payment when due under terms of any such agreement.
5. Customer al-rees to pay ASI for all parts and labor provided
,Y ASI pursuant to this Service Agreement at its then effective rates.
6. CUSTOMER'S SOLE REMEDY FOR ASI'S LIABILITY WITH RESPECT TO
THE FARTS, MATERIALS, WORK, OR SERVICES PROVIDED HEREUNDER OR FOR ANY
OTHER PERFORMANCE BY ASI HEREUNDER SHALL BE LIMITED TO THE REPAIR OR
REPLACEMENT OF DEFE CCTVF. WORK. Without limiting the foregoing, ASI
small not be liable fc:r an special or consequential damages or for
an. loss, damage or expense of any kind or nature caused directly or
indirectly by parts, materials, work, or services provided hereunder,
or any failure thereof, or for any delay in providing the same.
7. The Service Agreement contains the entire agreement between
`.he parties hereto with respect to the subject matter hereof, and
su^ersedes any and all prior agreements between the parties with
respect thereto. There have been and are no representations or
warranties, whether express or implied, by statute or otherwise, by
either party hereto to the other, except as expressly set fort),
herein. This agreement may not be modified or amended except oy a
�<riting signed by both parties.
8. All notices, requests, instructions, or other writings
required or permitted hereunder or deemed by any party hereunder to
be necessary or desirable to be given to the other party shall be in
writing and shall be deemed to have been given on the date of service
if served personally on the party to whom notice is given, or on the
second day after mailing if mailed to the party to whom notice is to
be given, by first class mail, certified, postage prepaid, and
addressed to Customer at the address shown on p.l or to ASI at 21150
Califa, Woodland Hills, California 91367; provided, however, that
either party may change the address to which notices to it are to be
sent by giving written notice of the new address to the other party
in accordance with the provisions of this paragraph.
CUSTrc"Ji't"U
/
By : �/ G
Title: CITY MANAGER ✓ Date: June J,1984
ASI TELFO,,fSTEMS,. INC.
Bv:
Ti tl2 CHI£F EYECAt TIVFf OFFICER Date: JI ME 4, 1984
Schedule ITI p.2
End of Schedule III
Bond Status Inquiry
F_ _1 Date -
City of Newport Beach
3300 Newport Blvd. Bond
Newport Beach, CA 92658 -8915
L Your
-2 i
The Hartford
Hartford Plaza
Hartford, Comtecticut 06115
December 26, 1984
5057126
Installation of Telephone System at Police Department
Owner
Contract
your right or affecting our
If Contract Completed, Please State:
Approximate completion date
If Contract Uncompleted, Please State:
Approximate amount completed (% or $ amount)
our
we wouia appreo
Yours very truly.
4
Hartford Accident and Indemnity Company di
Name of Surety
Thomas F. Delaney
Assistant Vice - President
acceptance date
Are there any claims, assignments or liens on file? ❑ Yes ❑ No
t,ontraa rnce
It is understood that the information contained herein is furnished as a matter of courtesy for the confidential use of the surety and is
merely an expression of opinion. It is also agreed that in furnishing this Information, no guaranty or warranty of accuracy or correctness is
made and no responsibility is assumed as a result of reliance by the surety, whether such Information is furnished by the owner or by an
architect or engineer as the agent of the owner.
Remarks:
Return this inquiry in the enclosed
self- addressed, stamped envelope to:
Hartford Accident and Indemnity Company
Attn: Bond Dept.
3435 Wilshire Blvd.
lr .. A., -11es reta,F onnin
Form S -368&6 Printed in U.S.A.
This form is acceptable to The Surety Association of America
6 0
CITY OF NEWPORT BEACH
OFFICE OF THE CITY CLERK
(714)640 -2251
TO: FINANCE DIRECTOR
EXECUTIVE ASSISTANT TO THE CITY MANAGER
FROM: CITY CLERK
DATE: June 6, 1984
SUBJECT: Contract No. 2451
Description of Contract Sales Agreement for Telephone System
Equipment for City Hall and Police Department
Effective date of Contract June 4, 1984
Authorized by Minute Action, approved on (City Manager Approval)
Contract with ASI Telesystems, Inc.
Address 21150 Califa Street
Woodland Hills. CA 91367
Amount of Contract See agreements attached
kW ` ' .
Wanda E. Andersen
City Clerk
WEA:lr
attach.
City Hall • 3300 Newport Boulevard, Newport Beach, California 92663
�
^
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�
Bond No.
Contract Bond
Public Work —California ffltai THE HARTFORD Premium
Hartford Plaza, Hartford, Connecticut Q6115
PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:
-
505 7125
�1 rro
. `.. 6 ��
^1
��
u��J����r
That we,
''''--''' 'ASl'Te}esYstems^.'Inc - ' --. '' ' '' ......... ''- ''''---.''' as Principal,
and the HARTFORD ACCIDENT AND INDEMNITY COMPANY, a Corporation organized and existing under the laws of the State of Connecticut
and authorized to transact surety business in the State of California, as Surety, are held and firmly bound unto Sity ... Pf .... Newp.ort ... -
_Deacb�_ _13O0_0cnnort_DIvd. ,_Ncnp9rt_U���b,_CA .... 91658_ ...... __ ........... .... .... _ ......... .... .... .............. ....
___
and 23/lUV
io the sum of Two _Hundred _Sixty -One -Thousand 'Four 'Hundred -Niuet%-V��/-�DoUur�Ni�--'2�6l��9l�.2J--),
lawful moneyof the United States of America, forthe paymentwhereof, well and trulyto be made, we hereby bind ourselves, our heirs, exec-
utors, aumm|mramrs,suocessorsundussigns.luint|yoouseve,aov,nrm|yuythosevrosonts.
s|uwco, sealed with our seals, and dated th|s.'''22u8. -�duyot- .... -�''Jnoo�_�_
'11'.19.'8�-
The condition o/ the foregoing obligation is such that, whereas the above bounden Principal has entered into u contract dated ........ ...........
.... 1'1 ... to do and perform the following work, to~vit:
Installation of a Telephone System
NOW, THEREFORE, if the above-bounden Principal shall well and truly perform, or cause to be performed, each and all of the requirements
and obligations of said contract to be performed by said Principal, as in said contract set forth, then this bond shall be null and void; other-
wise it shall remain in full force and effect.
_'' ... --... ... .... .... �.... �......
(SEAL)
p+mcipu|
HARTFORD ACCIDENT AND INDEM TY COYP NY
B x � '��.-�Z� -!��''' ---'(nFAL)
««* �m«"�rod A. Smith, J_
Form S-3665-1 Printed in U. S. A.
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HARTFORD ACCIDENT AND INDEMNITY COMPANY
Namnxrd, Cunnecdput
POWER OF ATTORNEY
Know all men by these Presents, That the HARTFORD ACCIDENT AND INDEMNITY COM-
PANY, a corporation duly organized under the laws of the State of Connecticut, and having its principal office in the City
of Hartford, County of Hartford, State of Connecticut, does hereby make, constitute and appoint
JOSEPH P. DOUGHERTY, J. TERRY BATES and FRED A. SMITH, JR.
of NORTH HOLLYWOOD, CALIFORNIA
its true and lawful Attomey(s) -in -Fact, with full power and authority to each of said Attomey(s) -in -Fact, in their separate
capacity if more than one is named above, to sign, execute and acknowledge any and all bonds and undertakings and
other writings obligatory in the nature thereof on behalf of the company in its business of guaranteeing the fidelity of
persons holding places of public or private trust; guaranteeing the performance of contracts other than Insurance poli-
cies; guaranteeing the performance of insurance contracts where surety bonds are accepted by states and municipal-
ifies, and executing or guaranteeing bonds and undertakings required or permitted in all actions or proceedings or by
law allowed, -
in penalties not exceeding the sum of FIVE MILLION DOLLARS ($5,000,000.00) each,
and to bind the HARTFORD ACCIDENT AND INDEMNITY COMPANY thereby as fully and to the same extent as if
such bonds and underald a and other writings obligatory in the nature thereof were signed by an Executive Officer of
the HARTFORD ACCIDENT AND INDEMNITY COMPANY and sealed and attested by one other of such Officers, and
hereby ratifies and confirms all that its said Attorney(s) -in -Fad may do in pursuance hereof.
This power of attorney is granted by and under authority of the following provisions:
(1) By -Laws adopted by the Stockholders of the HARTFORD ACCIDENT AND INDEMNITY COMPANY at a meet-
ing duly called and held on the 10th day of February, 1943.
ARTiCIE IV
SECTION 9. The Presided or any Vice- President, acting with any Secretary or Assistant Secretary. shah have power anti authority M appoint,
for purposes only of executing and sheeting bords and undertakings and Other wddNs, obligatory in the retire thereof, one or more Resident
Vice - Presidents, Rasidem Assistant Secretaries and Attwneysin -Fact and at any M1me to remare any such Resident Vice-President, ResideM Aside.
hard Secretary, or A lorneytin- Fad, and revoke the power and authority given to him.
SECTION 11. Adomeysin -Fad shah have power arch audxu", subjm M the terns and limitations of the power d atlolnay issued to Nam, m
execute and deliver on ban" of the Company and to adaeh Me seal of Me Company Meretc any and all bonds and undertalurgs and Me, writimp
obligatory in the nature hereof, and arty such indrument exaw4d by anyy such AwdeyimFact shay be as binding upon me Company as if signed
by an ExacWve OMeer and sealed an0 arrested by one ocher d such Old.,
(2) Excerpt from the Minutes of a meeting ofthe Board of Directors of the HARTFORD ACCIDENT AND INDEM-
NITY COMPANY duly called and held on the 11th day of June, 1976:
RESOLVED: Robert N. H. Senor, Assistant Vice - President and Thomas F. Delaney, Assislald ViCePresidem. snail each have as lag as he
holds such office Me same power as any Vice- Preadenl under Sections e, 7 anti a of A Cla IV of Me Sy-LBWS of Me Company.
This power of attorney is signed and sealed by facsimile under and by the authority of the following Resolution
adopted by the Directors of the HARTFORD ACCIDENT AND INDEMNITY COMPANY at a meeting duly called and
held on the 6th day of August, 1976.
RESOLVED, That, whereas Robert N. H. Sena, Assistant Yoe- President ant Thomas F. Delaney, Assistant Vice-President, acting with any
Secretary or Assistant Secretary, each have the power and authority, as lore as he holds such office, W appoint by a power of attorney, for Pudoses
only of exeoudng and adding bonds and uMerlakings and offer writings Obligatory in Me nature Mereoi one Or rare Resident VicaPresi-
cams, Assstad Secretwies and Am net's -in -Fad;
Now, therefore, Me signatures of such Officers and me sad of the Company may be affixed to any such pi wtr d attorney or to any certificate
raising thereto by facsimile, and any such power of attorney on certificate bearing ouch facsimile siggnatures or facsimile seal shall be valid flied
binding upon Me Company and any such power so executed and carded by faceimiie signatures and laeaimi a, sea! shall be valid and binding upon
the Company in the fume win hasped to any bond a urdertandng to which it is attached.
In Witness Whereof, the HARTFORD ACCIDENT AND INDEMNITY COMPANY has caused these presents to be
signed by its Assistant Vice - President, and its corporate seal to be hereto affixed, duly attested by its Secretary, this 9th
day of August, 1976.
Attest: HARTFORD ACCIDENT AND INDEMNITY COMPANY
Mary Schad, Secret" Thoopay F. Delay V
STATE OF CONNECTICUT, 1 Assistant Vice- President
93.
COUNTY OF HARTFORD,
On this 9th day of August, A.D. 1976, before me personally came Thomas F. Delaney, to me known, who being by
me duly swom, did depose and say: that he resides in the County of Hartford, State of Connecticut; that he is the
Assistant Vice - President of the HARTFORD ACCIDENT AND INDEMNITY COMPANY, the corporation described in and
which executed the above instrument; that he knows the seal of the said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation and that
he signed his name thereto by like order. t
STATE OF CONNECTICUT,) GNde scorn F s. Notary ch 31.
?? ss. My Commievon Expires Marth 31. lfia'!
COUNTY OF HARTFORD, 1 CERTIFICATE
I, the undersigned, Assistant Secretary of the HARTFORD ACCIDENT AND INDEMNITY COMPANY, a Connecti-
cut Corporation, DO HEREBY CERTIFY that the foregoing and attached POWER O TTORNEY remains in full force
and has not been revoked; and furthermore, that Article IV, Sections 8 an- 1 /, of th B -Laws of the Company, and t
Resolutions of the Board of Directors, set forth in the Power of Attorney, are now an orce.
Signed and sealed at the City of Hartford. Dated the ?� day of 19
Finer 3061X)4 Pmrosp in U.SA. �f _
i John ut Luxa
Assistant Secretary
560014
NAME AND ADDRESS OF AGENCY
Booth and Simpson
COMPANIES AFFORDING COVERAGES
10850 Riverside Drive
COMPANY
LETTER
North Hollywood, CA 91602
Birmingham Fire Insurance Company i
ETTERNY g y
(213) 877 -5481
Msowpo OKKa
Bad
EACH
COMPANY
I FTTER Wausau Insurance Companies
NAME AND ADDRESS OF INSURED
ASI Telesystems, Inc.
COMPANY
LETTER
21150 Califa Street
OCCtfRRENCE
Woodland Hills, CA 91367
COMPANY D
LETTER
(818) 704 -5700
COMPANY C
LETTER L
This is to certify that policies of insurance listed below have been issued to the insured named above and are in force at this time. Notwithstanding any requirement, term or condition
Of any contract or other document with respect to which this certificate may be issued or may pertain, the insurance afforded by the policies described herein is subject to all the
terms, exclusions and conditions of such policies.
DESCRIPTION OF OPERATIONS /LOCATIONSNEHICLES
The City of Newport Beach is named as Additional Insured as Respects work
performed by ASI Telesystems, Inc.
Cancellation: Should any of the above described policies be cancelled before the expiration date thereof, the issuing com-
pany will endeavor to mail_ days writ ice to the below named certificate holder. but failure to
mail such notice shall impose no obligati E$LjiljtRp y kind upon the company,
NAME AND ADDRESS OF CERTIFICATE H01 DER:
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92
KCIPu'~v
JUN 2 6198
Limits of Liability in Thousands ( )
COMPANY
LETTER
TYPEOF :NSURANCL
POLICYNUMBER
POLICY
EXPIRAI ION DATE
Msowpo OKKa
Bad
EACH
AGGREGATE
_
OCCtfRRENCE
GENERAL LIABILITY
BODILY INJURY
$
$
A
® COMPREHENSIVE FORM
CLA6076449
511/85
®PREMISES—OPERATIONS
PROPERTY DAMAGE
s
$
® EXPLOSION AND COLLAPSE
HAZARD
®
UNDERGROUND HAZARD
® PRODUCTS /COMPLETLO
OPERATIONS HAZARD
®CONTRACTUAL
BODILY INJURY AND
INSURANCE
PROPERTY DAMAGE
S 500
$ 5500
® BROAD FORM PROPERIY
COMBINED
DAMAGE
®
INDEPENDENT CONTRACTORS
PERSONAL INJURY"
® PERSONAL INJURY
AUTOMOBILE LIABILITY
BODILY INJURY
$
(EACH PERSON)
B
®COMPREHENSIVE V'OPM
2025 00 054000
5/1/85
BODILY INJURY
$
J500
®
LEACH ACCIDENT)
OwNFO
PROPERT Y DAMAGE
$
®
HIRFO
BODILY I 'm AND
®
NON 0VrNE(1
T
PROPERTY DAMAGE
$ 500
COMBINED
EXCESS LIABILITY
_... ,
BODILY INJURY AND
A
® UMBRELLA FORM
x16072574
5/1/85
PROPERTY DAMAGE
$ 10,000
110,000
❑ OTHER THAN UMBRELLA
COMBINED
IORM
WORKERS' COMPENSATION
STATUTORY
and
EMPLOYERS' LIABILITY
$
u.,;:II Acpocm I
OTHER
DESCRIPTION OF OPERATIONS /LOCATIONSNEHICLES
The City of Newport Beach is named as Additional Insured as Respects work
performed by ASI Telesystems, Inc.
Cancellation: Should any of the above described policies be cancelled before the expiration date thereof, the issuing com-
pany will endeavor to mail_ days writ ice to the below named certificate holder. but failure to
mail such notice shall impose no obligati E$LjiljtRp y kind upon the company,
NAME AND ADDRESS OF CERTIFICATE H01 DER:
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92
KCIPu'~v
JUN 2 6198
P
Msowpo OKKa
Bad
cm d NesD�
(1.79)
Booth and Simpson
U!
• Bond No.
Contract Bond
Public Work —California Al THE HARTFORD Premium
Hartford Plaza, Hartford, Connecticut 06115
PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:
505 7126
harge._.... $1, 082.00
_ �VN
That we,
.............I.. "... ASI Telesystems, Inca.. ................... ......... ................................... ............. ........... ......._......., as Principal,
and the HARTFORD ACCIDENT AND INDEMNITY COMPANY, a Corporation organized and existing underthe laws of the State of Connecticut
and authorized to transact surety business in the State of California, as Surety, are held and firmly bound unto...... City___ of _Newport
Beach, 3300 Newport Blvd., Newport Beach, CA 92658
...
Dollars and 79/100
in the sum of .... One Hundred Eighty Thousand Three Hundred Ninety One/ Dollars (6 ..... 180 .,3.9.1...79 .................),
lawful money of the United States of America, for the payment whereof, well and truly to be made, we hereby bind ourselves, our heirs, exec-
utors, administrators, successors and assigns, jointly and severally, firmly by these presents.
SIGNED, sealed with our seals, and dated this......... 22nd- of
,19 ....8.4....
The condition of the foregoing obligation is such that, whereas the above bounden Principal has entered into a contract dated ....................
.. .................... _. June ... 4.. .............................. .. ...... .., 19....84.., with said ................ Ci.ty. ... of ... Newpor.t ... Beach .................................................................
do and perform the following work, to -wit:
Installation of a Telephone System
NOW, THEREFORE, if the above - bounden Principal shall well and truly perform, or cause to be performed, each and all of the requirements
and obligations of said contract to be performed by said Principal, as in said contract set forth, then this bond shall be null and void; other-
wise it shall remain in full force and effect.
Form 5. 3665.1 Printed in U. S. A.
ASI Telesystems, Inc.
.......... .. ... . ............ . ............................... ...... ..... .... ... .... .. .... ......... .................................. I........
............................................................................................... ............................... (SEAL)
Principal
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HARTFORD ACCIDENT AND INDEMNITY COMPANY 560015
Hartford. Came
Ntleul
POWER OF ATTORNEY
Know all men by these Presents, That the HARTFORD ACCIDENT AND INDEMNITY COM-
PANY, a corporation duly organized under the laws of the State of Connecticut, and having its principal office in the City
of Hartford, County of Hartford, State of Connecticut, does hereby make, constitute and appoint
JOSEPH P. DOUGHERTY, J. TERRY BATES and FRED A. SMITH, JR.
of NORTH HOLLYWOOD, CALIFORNIA
its true and lawful Attomey(s) -in -Fact, with full power and authority, to each of said ANomey(s)An -Fact, in their separate
capacity if more than one is named above, to sign, execute and acknowledge any and all bonds and undertakings and
other writings obligatory in the nature thereof on behalf of the company in its business of guaranteeing the fidelity of
persons holding places of public or private trust; guaranteeing the performance of contracts other than Insurance poli-
cies; guaranteeing the performance of insurance contracts where surety bonds are accepted by states and municipal-
ises, and executing or guaranteeing bonds and undertakings required or permitted in all actions or proceedings or by
law allowed,
in penalties not exceeding the sum of FIVE MILLION DOLLARS ($5,000,000.00) each,
the HARTFORD ACC DENTS AND other DEMNITY COIMP in the
sealed and attested sted by once other f won Officers, and
hereby ratifies and confirms all that its said Attomey(s) -in -Fad may do in pursuance hereof.
This power of attorney is granted by and under authority of the following provisions:
(1) By -Laws adopted by the Stockholders of the HARTFORD ACCIDENT AND INDEMNITY COMPANY at a meet-
ing duly called and held on the 10th day of February, 1943.
ARTICLE IV
SECTION 8. The Preswem or any VicaPrewden, actnngg with any Secretary or )1m ant Secretary. shah have power and authority 10 appdM
lot purposes only al executing and attesting bonds and urMe taxi gs and inner writings onigam y in the nature eorew. one or mare Resident
Vice- Presidents. Repiimm Assistant Statements is and Attomeys -in -Fact and at any time to remove any such Resident Vice-Presidem, Resident Asais•
tant secretary m
, or Attoeyin,Fac1, and revoke the power and authority given 10 him.
SECTION 11. A6amayetin -Fact shah have power and sum", Subject to the terms and Nmimtons m me power d attorney ismre0 m drenn, t0
execute and delver on behok of to Company and to attach Ire seal of the Company thereto any and all bonds and undertakings. and other writings
obligatory in the dome moreof, and any such instrument executed by 011y such AkorngtimFact shah be as drabs upon Ins Company as it signed
by an Executive Officer and sealed and ammod by one other of such OfiMrs.
(2) Excerpt from the Minutes of a meeting of the Board of Directors of the HARTFORD ACCIDENT AND INDEM-
NITY COMPANY duly called and held on the 11th day of June, 1976:
RESOLVED: Robed N. H. Senor, Assistant Vice - President and Thomas K Delaney, Assistant Vice- Presiderd. shall each have as ding as he
hods such office Ire same power as any Vke- President under Section 6, 7 and 8 of Article IV of the Sy -Laws of the Company.
This power of attorney is signed and sealed by facsimile under and by the authority of the following Resolution
adopted by the Directors of the HARTFORD ACCIDENT AND INDEMNITY COMPANY at a meeting duly called and
held on the 6th day of August, 1976.
RESOLVED, That, whereas Robed N. H. Senor, Assistant Vice-President and Thomas F. Delaney. Assistant Vin Presdem, acting wit any
Secretary or Assistant Secretary, each have the power and summer. as long as he holds such office, m appoint by a power of attorney, for purposes
only of execubr and creating bonds and undemkimes and other wditgs obligatory in the nature tetaw, one or more Resident Vice-Presi-
tlonts. Assstanl Secretaries and AMmeys -in -Fed:
Now, therefore, the signatures of such Omcars and the seal of the Cernpany may be affixed to any such power of attorney or Is any comficate
rending terero by facsimile, and any such power of attorney or ceNfnate beading such facsimile siqnatures or facsimile seal snap be valid and
binding upon the Company and any such poser so executed and certified by facsimile signatures and facsimile seal shah be valid and binding upon
the Company in me Mum with respect many bond or undertaking m which x is adached.
In Witness Whereof, the HARTFORD ACCIDENT AND INDEMNITY COMPANY has caused these presents to be
signed by its Assistant Vice - President, and its corporate seal to be hereto affixed, duly attested by its Secretary, this 91h
day of August, 1976,
Attest: HARTFORD ACCIDENT AND INDEMNITY COMPANY
CCCOOMP�A /ANY
/ Mary Sch art, Secretary Thomas F Delaney Y
STATE OF CONNECTICUT, 1 Assists t Vice- i'moderc
99.
COUNTY OF HARTFORD, J
On this 9th day of August, A.D. 1976, before me personally came Thomas F. Delaney, to me known, who being by
me duly sworn, did depose and say: that he resides in the County of Hartford, State of Connecticut; that he is the
Assistant Vice - President of the HARTFORD ACCIDENT AND INDEMNITY COMPANY, the corporation described in and
which executed the above instrument; that he knows the seal of the said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said Corporation and that
he signed his name thereto by like order. 0
STATE OF CONNECTICUT, � Gloria Mesas, Naary, Pubic
r as . My Commission Expires March 31, 1903
COUNTY OF HARTFORD, T CERTIFICATE
I, the undersigned, Assistant Secretary of the HARTFORD ACCIDENT AND INDEMNITY COMPANY, a Connecti-
cut Corporation, DO HEREBY CERTIFY that the foregoing and attached POWER OF ATTORNEY remains in full force
and has not been revoked; and furthermore, that Article IV, Sections 8 and 11, of the By =Laws of the Company, and the
Resolutions of the Board of Directors, set forth in the Power of Attorney, are now in force.
Signed and sealed at the City of Hartford. Dated the % -y..A day of y�Gv-- ,x..E� 19 g
Farce BdOdr4 Printed In u.sA `• -n /'
JOM E. Wkdns
Assistant Secretary
Authorized to Publish Advertisements of ands including public /
notices by Decree of the Superior Court of Orange County, I /)
California, Number A -6214, dated 29 September, 1961, and
A- 24831, dated 11 June, 1963.
STATE OF CALIFORNIA
County of Orange c„aa N411. Adv ..W lovww
by IN. afllCbtl ill xt ,n I Mnl
.11h 10 P'a column wMih
I am a Citizen of the United States and a resident of
the County aforesaid; I am over the age of eighteen
years, 'and not a party to or interested in the below
entitled matter. I am a principal clerk of the Orange
Coast DAILY PILOT, with which is combined the
NEWS - PRESS, a newspaper of general circulation,
printed and published in the City of Costa Mesa,
County of Orange, State of California, and that a
Notice of Inviting Bids
CITY OF NEWPORT BEACH
or new Telephone System
of which copy attached hereto is a true and complete
copy, was printed and published in the Costa Mesa,
Newport Beach, Huntington Beach, Fountain Valley,
Irvine, the South Coast communities and Laguna
Beach issues of said newspaper for one
consecutive weeks to wit the issue(s) of
March 8
198 4
198
198^
198^
198_
I declare, under penalty of perjury, that the
foregoing is true and correct.
Executed on March a 198 4
at Costa a, Califor
S' n ure
PROOF OF PUBLICATION
S A L E S A G R E E M E N T
SYSTEM A - CITY HALL
Tl+is Sales Agreement is made and entered into between ASI
'fclf, systems, Inc. ( "ASI ") and The City of Newport Beach, a
oiunicipal Corporation ( "Customer "), located at 3300 Newport
Boulevard, Newport Beach, California.
AST agrees to sell to Customer and Customer agrees to buy from ASI
the Equipment listed and described in Schedule I attached hereto
( "the Equipment "), at the purchase price and on the terms and
conditions hereinbelow set forth.
1. ASI shall install the Equipment at the Premises of the
Customer. Customer shall be responsible for timely and proper•
sccurirm of all permits, licenses, consents and "approvals" in
connection with the sale and installation of the equipment.
2. The estimated cut -over date is August 25, 1984.
3. ASI shall furnish all necessary cable, hardware, etc.,
including labor for installation of the Equipment, unless otherwise
indicated herein or in a Schedule attached hereto. All cables,
P+ardo-:are, and other equipment shall meet all applicable•FCC
�tnrdards. 11111 conduit and electrical outlets are to be provided
Customer. ASI shall perform the installation in a workmanlike
ar.ncr, but shall not be responsible for damages to the Premises
not resulting from AST's or it's subcontractors and /or affiliates
nel,iiger.ce.
4. ASI shall. furnish to Customer before the commencement of
installation the following signed certification:
"I am aware of the provisions of Section 3700 of the Labor
Code which require every employer to be insured against
linhility for workers' compensaion or to undertake
self - insurance in accordance with the provisions of that code,
and I will comply with such provisions before commencing the
performance of the work of this contract."
ASI shall. also comply with Section 3800 of the Labor Code by
,securing, paying for, and maintaining in full force and effect for
the duration of the contract, complete Workmen's Compensation
Insurance, and shall furnish a Certificate of Insurance to the
Customer. The Customer, its officers, or employees, will not be
responsible for any claims in law or equity occasioned by failure
t ASI to comply with this paragraph.
Page. 1
S. Before starting installation, ASI shall designate, in
writing, a representative who shall have complete authority to
act for it. An alternate representative may be designated. The
representative or alternate shall be present at the worksite
whenever work is in progress or whenever actions of the elements
necessitate its presence to take measures necessary to protect
the work, persons or property. Any order or communication given
to this representative shall be deemed delivered to ASI. A joint
venture shall designate only one representative and alternate.
In the absence of the designated representative, necessary or
desirable directions or instructions may be given by the Customer
to the superintendent or person having charge of the specific
work to which the order applies. Such order shall be complied
with promptly and referred to ASI or its representative.
6. Prior to start of installation, ASI shall submit to the
Customer for approval its proposed installation schedule. The
schedule shall be in the form of a tabulation, chart, or graph
and shall be in sufficient detail to show the chronological
relationship of all activities of the project including, but not
limited to, estimated starting and completion dates of various
activities, procurement or materials, and scheduling of equipment.
7. ASI shall furnish to Customer a bond for the faithful
performance of this Agreement, with the Customer named as the
beneficiary for an amount equal to the total sum of this contract.
8. One year of maintenance (pursuant to the terms and
conditions of the Maintenance Agreement attached hereto) is
included under this Agreement.
9. Risk of loss or damage to the equipment shall pass to
Customer as soon as the Equipment has been installed and deemed
working as intended. Until the entire purchase price and sales
tax have been paid, Customer shall insure the Equipment against
fire, theft and other perils by a policy and with an insurer
satisfactory to ASI and naming ASI as an insured in an amount not
less than the outstanding balance of the purchase price, and
shall furnish to ASI a certificate from the carrier that ASI will
receive at least ten (10) days' prior written notice of
cancellation or change of coverage.
10. The purchase price shall be $250,060.18
Plus Sales Tax of 11,431.05
Total $261,491.23
PAYMENT SCHEDULE
Direct Purchase from ASI:
50% with Signed Sales Agreement $130,745.62
Page 2
It
0% Upon Delivery of Switch and
Station Equipment $ -0-
0% Upon Completion of Station
Cabling and Main Distribu-
tion Frame $ -0-
CUTOVER: 10 -days prior to cutover, Customer will
provide to ASI a pre - cutover reconciliation.
15% of the pre - cutover reconciliation amount
shall be paid to ASI after cutover.
ACCEPTANCE: As defined in Schedule A, paragraph 5,_upon
final reconciliation and acceptance, after
cutover, Customer shall pay ASI the balance
then due and owing.
11. The terms and conditions set forth on Schedule I, II,
III, and Schedule A, attached hereto, are hereby incorporated
herein and made a part of this Agreement.
12. THIS AGREEMENT CONTAINS THE ENTIRE AGREEMENT OF THE
PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND MAY NOT BE
CHANGED EXCEPT BY A WRITING SIGNED BY CUSTOMER AND ASI. ASI
MAKES NO WARRANTIES, EXPRESS OR IMPLIED, EXCEPT AS SET FORTH IN
THIS AGREEMENT. ANY AND ALL ADDITIONAL OR DIFFERENT TERMS OR
CONDITIONS HERETOFORE OR HEREAFTER SUBMITTED BY CUSTOMER ARE
DEEMED TO BE REJECTED BY ASI AND NEITHER ASI'S COMMENCEMENT OF
PERFORMANCE NOR DELIVERY SHALL BE DEEMED OR CONSTRUED AS.
ACCEPTANCE OF CUSTOMER'S ADDITIONAL OR DIFFERENT TERMS OR
CONDITIONS.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be properly executed, intending that it shall be legally
binding upon them and their respective heirs, estates, successors
and assigns.
By SIGNING BELOW, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS
CAREFULLY READ ALL PAGES OF THIS DOCUMENT AND ATTACHED SCHEDULES
AND UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS THEREOF.
Customer: The City of Newport Beach
(a Municipal Corporation)
By: �( V� BY
ASI TELESYSTEMS, INC.
Title: CITY MANAGER
Date: JUNE 1, 1984
Page 3
Title: CHIEF
Date: JUNE 4, 1984
SCHEDULE A
SALES AGREEMENT
ADDITIONAL TERMS AND CONDITIONS
1. The term "Cut- Over" as used herein means the date on
which the installed Equipment is substantially operable.
"Substantially operable" means having the capability to make
outgoing and receive incoming calls and having a substantial
:uaiority of the features listed in Schedule I functional.
Equipment in such condition shall be deemed to be substan-
tially operable notwithstanding any unavailability of trunk
lines due to telephone company delays or any failures which do
not materially affect the functioning of the entire system.
Z. ASI shall employ all reasonable efforts to make timely
delivery and installation but shall be excused from any delays
arising out of causes beyond its reasonable control. All
stated delivery or Cut -Over dates are approximate, and ASI
shall under no circumstances be liable for damages, special,
consequential or otherwise, for delays or failure to give
notice of delay.
�. Customer shall be responsible for obtaining trunk lines
and inter - connecting devices from the serving telephone
company. If requested, ASI will use reasonable efforts to
assist Customer. ASI's services shall be limited to the
installation of the Equipment on the subscriber's side of the
interface equipment connecting the Equipment to the telephone
system operated by the local telephone utility. ASI shall not
be responsible in the event the utility fails to timely make
available interconnect services nor shall ASI be obligated to
pay the inter - connect tariff or other charges of the utility
with respect to such services.
4. Customer shall at Customer's expense on the date of
delivery of the Equipment to the Premises and at all times
thereafter during the period of installation of the Equipment:
ia) Allow employees and agents of ASI free access to the
Premises at all hours consistent with the requirements of
the installation. ASI agrees to comply with all rules
and regulations of Customer.
(b) Assure that the Premises will meet all temperature,
humidity control, air - conditioning, and other
environmental requirements set forth in the applicable
Equipment specifications, and will be dry and free from
st and it such condition as not to be injurious to the
employees or agents of ASI or the equipment.
Schedule A p.l
(c) Provide necessary openings and ducts for cable and
conductors in floors and walls;
(d) Provide electric current for any necessary purpose with
suitable terminals in rooms where required;
(e) Provide installed metallic ground or grounds, as required;
(f.) Provide for the termination of any existing service
agreement with the local telephone utility and for the
removal of any existing equipment and cable, as required;
(g) Provide suitable and easily accessible floor space to
permit storing adjacent to where the Equipment will be
used, and for secure storage of tools and test sets.
S. Delivery and Acceptance: After the cut -over date,
Customer shall have 15 business days to provide ASI with a
written list, which list shall contain omissions of featurts
and /or other items of equipment, modifications or deviations
from this agreement.
ASI shall then have 1.5 business days from the date of
receipt of such deficiency list in which to correct, replace
or repair such deficiencies., After the deficiencies on said
list are corrected, repaired or replaced, ASI shall furnish a
written notice to Customer completely detailing the
correction, repair or replacement.
The system shall be deemed accepted by Customer upon
verification that deficiencies have been cured. Customer shall
use all best efforts to complete verification in a timely
manner.
After verification that deficiencies have been cured, the
warranty shall commence pursuant to Paragraph 7 of this
Schedule.
6. Up to ten business days prior to cut -over, at Customer's
request, ASI shall relocate any part of the system in
accordance with ASI's standard rates in effect at the time of
such relocation. ASI will supply and install additional
Equipment for the system at its pre- cutover prices quoted in
the Telephone System Specifications Booklet, bid by ASI March
26, 1984. Customer shall not, without obtaining the written
consent of ASI, change the location of the Equipment or permit
equipment of any sort to be installed by anyone other than ASI.
;. Subject to the provisions of this paragraph, ASI warrants
the Equipment against defects in material and workmanship of
which it receives written notice from Customer within one year
from the Cut -Over date. ASI's sole obligation with respect to
said warranty shall be to repair or (at ASI's option) replace
the defective item. This warranty does not extend to any
Equipment which has been (i) subject to misuse, neglect,
accident or abuse, (ii) wired, repaired or altered by anyone
other than ASI, its sub - contractors and /or affiliates without
ASI's prior written approval, (iii) improperly installed by
Schedule A p.2
ti
someone other than ASI, its subcontractors and /or affiliates,
(iv) used in violation of instructions furnished by ASI or (v)
maintained in an environment (including but not limited to
humidity, temperature, and air - conditioning) not conforming to
the specifications furnished by ASI. The foregoing warranty
shall be in lieu of and excludes all other warranties, express
or implied, of merchantability, fitness or otherwise.
8. THE SOLE REMEDY FOR BREACH OF ANY AND ALL WARRANTIES AND
SOLE REMEDY FOR ASI'S BREACH OR LIABILITY OF ANY KIND WITH
RESPECT TO THE EQUIPMENT, MATERIALS, WORK OR SERVICES PROVIDED
OR TO BE PROVIDED HEREUNDER AND ANY OTHER PERFORMANCE BY ASI
UNDER OR PURSUANT TO THIS AGREEMENT SHALL BE LIMITED TO THE
REMEDY PROVIDED IN PARAGRAPH 7. ASI SHALL NOT BE LIABLE FOR
ANY SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR LOSS, DAMAGE OR
EXPENSE (WHETHER OR NOT CAUSED BY OR RESULTING FROM ASI'S
NEGLIGENCE) DIRECTLY OR INDIRECTLY ARISING FROM USE OF THE
EQUIPMENT OR ARISING FROM CUSTOMER'S INABILITY TO USE
EQUIP'M'ENT EITHER SEPARATELY OR IN COMBINATION WITH ANY OTHER
EQUIPMENT OR FROM ANY OTHER CAUSE.
9 Customer hereby grants to ASI a security interest in the
Collateral (as hereinafter defined) to secure performance of
the Debtor Obligations (as hereinafter defined), subject to
the following terms:
(a) As used in this Paragraph, the term "Collateral"
means the Equipment and all replacements, parts, additions,
repairs and accessories incorporated therein and /or now or
hereafter affixed thereto; "Debtor Obligations" means each and
all of the obligations of Customer under this Sales Agreement,
the Maintenance Agreement, and any and all other agreements
between Customer and ASI.
(b) Customer shall execute and deliver to ASI financing
statements and other documents and instruments and perform
such acts as AST may require in order to carry out the
provisions of this Agreement and to affirm, effectuate, or
further assure the assignment to ASI of the Collateral or
AAST's interest therein.
(c) Customer hereby warrants, represents and covenants
that:
(i) Customer shall not sell, transfer or otherwise
dispose of the Collateral; or any portion
thereof, unless the Debtor Obligations have
been fully performed and discharged;
(ii) Except for the security interest hereby created
and except as may be otherwise herein provided,
Customer is the owner of Collateral free from
any adverse lien, and shall at all. times keep
the Collateral free from any adverse lien;
Schedule A p.3
(iii) Customer shall do all acts necessary to
maintain, preserve, protect and keep the
Collateral in good condition and repair and not
cause any waste or unusual or unreasonable
depreciation of the Collateral, and shall
insure the Collateral at its full value for all
risks and losses, and comply with all laws,
statutes and reulations pertaining to the
Collateral and pay when due all taxes, charges
and other impositions upon the Collateral or
for its use and operation;
(iv) Customer shall promptly notify ASI of any
attachment or other legal process levied
against any of the Collateral; ,
(v) Customer shall not permit or cause the
impairment of the value of the Equipment or the
security intended to be afforded by this
Agreement.
(d) Any of the following shall constitute an event of
default for purposes of this Paragraph:
(i) Failure to comply with each and every one of
the covenants made hereunder by Customer;
(ii) Failure to make any payment when due under this
Agreement, or under the Maintenance Agreement,
or under any other agreement between Customer
and ASI, without deduction or setoff;
(iii) Failure to protect the Collateral, resulting in
loss, theft, damage, destruction or encumbrance
or the making of any levy, seizure or
attachment thereof or thereon;
(iv) Customer shall become insolvent or bankrupt or
make an assignment for the benefit of creditors
or consent to the appointment of a trustee or
receiver; or a trustee or receiver shall be
appointed for Customer or for a substantial
part of its property, without its consent and
shall not be dismissed within a period of sixty
(60) days; or bankruptcy, reorganization or
insolvency proceedings shall be instituted by
or against Customer and shall not be dismissed
within a period of sixty (60) days;
(v) Failure to execute and deliver to ASI a
delivery and acceptance certificate within
thirty (30) days after ASI's submission thereof
to Customer and after, in the judgement of
Customer's Consultant, Earline Reeves $
Associates, all deficiencies have been
corrected by ASI.
Schedule A p.4
(e) Upon the occurrence of an event or default under this
Agreement, or at any time thereafter, ASI may, at its
option, declare any or all of the Debtor Obligations
immediately due and payable without demand or notice
of any kind and the same thereupon shall immediately
become and be due and payable, and ASI shall have and
may exercise from time to time any and all rights and
remedies of a secured party under the California
Uniform Commercial Code and any and all rights and
remedies available to it under any other applicable
law, including, without limitation, the right to
immediately take possession of or disable any or all
items of the Collateral, wherever same may be
located, without demand or written notice, without
any court order or other process of law, and without
liability to Customer for any damages occasioned
thereby. In the event of such taking or disabling
ASI in its sole discretion may, but without obli-
gation to do so, install upon the Premises one or
more single -line telephones to replace any one or
more items of Collateral taken or disabled. Customer
agrees to permit ASI and its duly authorized agents
to enter the Premises and to have access to the
Collateral for the purpose of exercising ASI's rights
pursuant to this Paragraph. Upon disposition of any
Collateral after the occurrence of any default
hereunder, the proceeds of the disposition shall be
applied first to expenses of retaking, holding,
preparing for sale, and selling, including ASI's
reasonable attorney's fees and legal expenses, and
then to the Debtor Obligations. Customer shall be
and remain liable for any deficiency and ASI shall
account to the Customer for any surplus.
10. If Customer has elected to Lease pursuant to Paragraph 6
hereof, title to the Equipment shall not pass to Customer
until the entire purchase price plus sales tax has been paid.
If for any reason whatsoever Customer has not executed and
delivered to ASI a delivery and acceptance certificate within
thirty (30) days after ASI's submission thereof to Customer
and after, in the judgement of Customer's consultant, Earline
Reeves � Associates, all deficiencies have been corrected by
ASI, ASI shall have the right at any time thereafter (until
the entire purchase price plus sales tax has been paid) to
terminate this Agreement. Thereupon, Customer shall forthwith
return to ASI all of the Equipment. Customer agrees that ASI
shall have the right peaceably to enter the Premises or any
other premises at which the Equipment is
Schedule A p.5
located in order to take possession of and remove the
Equipment. If Customer fails to permit ASI to recover the
Equipment, ASI shall have the right to recover the same in a
claim and delivery proceeding. Within fifteen (15) days after
ASI has taken possession of all of the Equipment, ASI shall
return to Customer all amounts theretofore paid by Customer
upon the purchase price after first offsetting ASI's costs of
installation (including both labor and nonrecoverable
materials).
11. Customer acknowledges that the ,pace of technological
change in the industry may be so rapid as to accelerate the
diminution in value of the Equipment; that therefore any delay
in AST's taking, possession pending litigation would result in
special and peculiar detriment to the business of ASI; that in
the event of any default by Customer hereunder, or termination
of this Agreement pursuant to Paragraph 10, ASI's right to
recover possession of the Equipment, whether with or without
process of law, is essential to the operation of ASI's
business. Therefore, if ASI brings an action to take posses-
sion of the Equipment, whether pursuant to the provisions of
Paragraph 9 or of Paragraph 10, Customer agrees not to assert
any setoff or defense to the action, or any objection to the
issuance by the court thereof of a writ of possession of the
Equipment or to the execution of such writ, nor to object in
any way to the taking of possession by ASI. Customer hereby
forever and irrevocably waives any and all rights, now exist-
ing or hereafter arising, to file, and agrees not to file, any
undertaking or bond to prevent ASI or any levying officer from
executing such writ. Without limiting the foregoing, Customer
agrees that any claim which would otherwise be the basis of
such setoff will be asserted by it in a proceeding independent
of any action by ASI for recovery of possession of the
Equipment. AST agrees that it will not assert as a bar to any
such independent action by Customer any defenses arising from
the statutes governing compulsory cross - actions.
12. This Contract may be cancelled by the Customer without
liability for damage when ASI is not complying in good faith,
has become insolvent, or has assigned or subcontracted any
part of the work without the consent of Customer. In the
event of such cancellation, ASI will be paid the actual amount
due based on unit prices or lump sums bid and the quantity of
work completed at the time of cancellation, less damages
caused to the Customer by acts of ASI or causing the
cancellation. ASI shall waive any and all claims for damages
because of cancellation of Contract for any such reason. If
the Customer declares the Contract cancelled for any of the
above reasons, written notice to that effect shall be served
upon the Surety. The Surety shall, within 5 days, assume
Schedule A p.6
control and perform the work as successor to ASI.
If (subject to the provisions of Schedule A, paragraph 2)
ASI fails to begin delivery of material and equipment, to
commence work within the time specified, to maintain the rate
of delivery or material, to execute the work in the manner and
at such locations as specified, or fails to maintain a work
program which will ensure the Customer's interest, or if the
Contractor is not carrying out the intent of the contract, the
Customer may serve upon ASI a written notice and the Surety on
its faithful performance bond demanding satisfactory com-
pliance with the Contract.
If ASI or its Surety does not comply with such notice
within S days after receiving it, or after starting to comply,
fails to continue, Customer may exclude it from the premises
and take possession of all material and equipment, and
complete the Work, by Customer forces or by letting the
unfinished work to another Contractor, or by a combination of
such methods. In any event, the cost of completing the Work
shall be charged against ASI and its Surety, and may be
deducted from any money due or becoming due from the Customer.
If the sums under the contract are insufficient for com-
pletion, ASI or Surety shall pay to the Customer within 5 days
after completion, all costs in excess of the Contract Price.
If the Surety assumes any part of the Work, it shall take
the place of ASI in all respects for that part, and shall be
paid by the Customer for all work performed by it in accord-
ance with the Contract. If the Surety assumes the entire
contract, all money due ASI at the time of its default shall
be payable to the surety as the work progresses, subject to
the terms of the Contract.
The provisions of this section shall be in addition to all
other rights and remedies available to the Customer under law.
13. No action arising out of this Agreement or performance
hereunder may be brought by either party more than one year
after the cause of action arises.
14. Customer shall pay ASI all costs.(including reasonable
attorney's fees to the extent permitted by law) incurred by
ASI in enforcing the provisions hereof, or in exercising any
of the rights and remedies hereunder.
ASI shall pay Customer all costs (including reasonable
attorney's fees to the extent permitted by law) incurred by
Customer in enforcing the provisions hereof, or in exercising
any of the rights and remedies hereunder.
Schedule A p.7
15. Any notice, demand or document which either party is
required to or desires to give to the other shall be deemed
given when personally served or when deposited in the United
States mail, certified mail, postage prepaid, addressed as
follows:
TO: ASI Telesystems, Inc., 21150 Califa Street
Woodland Hills, California 91367
TO: City Manager
3300 Newport Blvd., P.O. Box 1768
Newport Beach, California 92658 -7815
16. No waiver by either Party of any default shall operate as
a waiver of ant, other default or of the same default on a
future occasion. No delay or omission on the part of either
Party in exercising any right or remedy shall operate as a
waiver thereof, and no single or partial exercise by either
Party of any right or remedy shall preclude any other or
further exercise thereof or the exercise of any other right or
remedy.
17. All the provisions of this Agreement shall be considered
as separate terms and conditions and in the event any one
shall be held illegal, invalid or unenforceable, all the other
provisions hereof shall remain in full force and effect as if
the illegal, invalid or unenforceable provision were not a
part hereof.
18. The Equipment covered herein shall remain personal
property, and shall not become part of the freehold, regard-
less of the manner of affixation.
1.9. This Agreement shall be governed and construed in accord-
ance with the laws of the State of California.
20. Payments which are not made when due shall be subject to a
service charge of two percent (2 %) per month or at the maximum
rate permitted by law, whichever is the lesser, from the first
(1st) day of the month for which due until paid.
21. Neither this Sales Agreement nor any of the prices or
terms set forth herein shall be binding on ASI until a copy
hereof duly executed by ASI is delivered to Customer. If
installation of the Equipment or Cut -Over is delayed for more
than thirty (30) days because of the fault, or at the request,
of Customer, ASI reserves the right to raise the purchase
price set forth in Paragraph 10 of the Sales Agreement by an
amount equal to increases in ASI's cost of labor, materials,
or equipment.
22. This Agreement may be assigned by ASI, in whole or in
part, and ASI may freely subcontract any or all of the work
hereunder only with written permission of the Customer. Said
permission shall not be unreasonably withheld. The Customer
may not assign this Agreement in whole or in part, without
obtaining the prior written consent of ASI, which consent
shall not be unreasonably withheld.
Schedule A p.8
0
25. Customer represents, covenants and warrants to ASI that
Customer has corporate or other power to make and perform this
Sales Agreement and that the making and performance of this
Sales Agreement by Customer has been duly authorized by all
necessary corporate or other action of the Customer and will
not violate any provision of law or of its Articles of
Incorporation or By -Laws, or result in the breach of any
agreement to which Customer is a party.
24. RE -USE OF EXISTING STATION CABLE: The telephone system
installation, shall be accomplished by the installation of all
new station cabling, thereby creating parallel services to
prevent disruption of telephone services during transition
from the existing telephone system to new telephone system.
Should any existing station cabling be deemed acceptable
for re -use for the new system, authorization for such use must
be agreed upon in writing by both Customer and ASI, and only
after an "exchange schedule" has been established for exchang-
ing telephones and wiring new stations post - cutover for all
locations to be installed on existing cable.
ASI's bid includes new cabling for the entire telephone
system and wherever existing cable is re -used, ASI agrees to
reduce its proportionate cost for cable and labor and /or add
the purchase cost of cable from AT&T for each instance where
existing cable will be utilized.
Before authorization to use existing cable, ASI must
submit a list of locations, telephone by telephone, where
existing cable will. be used, showing contractual cost reduc-
tions and labor hours, time frames and personnel to be
scheduled post - cutover for exchange of telephone instruments,
and time frames for activating such locations onto the new
telephone system.
If at anv time after executing this Agreement and up to
ten business days prior to final installation of the system,
Customer reserves the right to make additions, deletions
and /or changes in station equipment, trunking and /or other
revisions as necessary. Such revisions shall be documented by
Customer and delivered in writing to ASI. Such revisions
shall become part of the finalized installation.
26. ASI shall identify and label all cables, punchdown termi-
nals, and all line cards in the key service units. All tele-
phone instruments shall include typed pilot numbers and
station designations. All amphenol covers shall be securely
fastened to the walls by screws. All cabling shall be con-
cealed within the walls, wherever possible and ASI shall dis-
cuss such areas with Customer or its representative. All tele-
phone instrument instruction face plates shall be laminated.
Schedule A p.9
27. TRAINING: In consideration of the fact that Customer may
elect to provide its own maintenance technician after the
first year warranty period, ASI agrees to screen and interview
applicants with a recommendation to the Customer at no
additional cost, provided said screening takes place no later
than month 10 of the warranty period. Additionally, ASI
agrees to provide Customer's technician with factory switch
training at such location where said training classes are
given, provided Customer shall pay all tuition, travel, food
and lodging expenses for its employee to be trained.
ASI agrees to train all station users on utilization of
the new telephone system prior to installation of the system,
providing Customer makes its personnel available for said
training at such reasonable times and places as ASI shall
require.
28. All schedules attached to this Agreement, including ASI's
response to bid, entitled TELEPHONE SYSTEM SPECIFICATION
BOOKLET are an integral part hereof, as if fully set forth
herein.
29. AUDIT: After said cutover of the telephone system,
Customer shall audit and reconcile the telephone system
installation costs against previously quoted quantities and
corresponding prices. This Sales Agreement shall then be
amended by way of addendums to reflect all changes in
telephone equipment and costs. Customer shall pay for actual
equipment installed and be credited and /or charged for all
items of equipment added, deleted and /or not installed.
3u. System software shall be deemed part of system and carry
the full effect of warranty and maintenance as outlined
elsewhere in this Agreement.
31. ASI will provide and install, at no cost to Customer, any
release of system software which has been provided to them by
manufacturer at no cost. Customer must agree in writing that
new software is to be installed. ASI shall in no case remove
system sofware without the express written permission of
Customer and must have replacement software immediately
available on Customer's premises.
Customer reserves right to require ASI to remove said
software in the event software does not meet or exceed system
features in previous release and replace with the software
previously removed at no cost to Customer within 15 working
days of installation.
32. ASI will provide Customer opportunity to purchase factory
software enhancements at sixty percent (60 %) above cost to
ASI, this price shall include necessary labor and mileage.
33. ASI will notify Customer of all factory software releases
within. 30 days of receipt by ASI.
Schedule A p.10
0
34. ASI will provide Customer technical manuals to include but
not limited to (1) NEC PBX manual, (Z) NEC PC 800 Maintenance
Administration Terminal, (3) Forms describing how ASI
programmed system, and (4) all other manuals necessary for
Customer to effectively manage the system and its component
parts.
Schedule A p. 11
End of Schedule A
• 0
SCHEDULE II
MAINTENANCE AGREEMENT
ASI Telesystems, Inc. ( "ASI "), whose address is
21150 Califa Street, Woodland Hills, California 91367
Effective Date
Customer's Name
Street Address
Citv and State
Upon Cut -over
, 1984
The City of Newport Beach,
a Nlunicipal Corporation
3300 Newport Boulevard
P. U. Box 1768
Newport Beach, CA 92658 -8915
Initial Monthly Charge $
675,00
1. SERVICE: ASI Telesystems, Inc. ( "ASI") agrees with the
above -named customer ( "Customer ") to render repair and maintenance
service on the equipment ( "the Equipment ") listed in the attached
Schedule I in accordance with the terms and conditions set forth
herein.
2. Subject to the terms and conditions contained herein, ASI
shall furnish all necessary service, including parts and materials,
tc maintain the Equipment in good working condition. Any parts
replaced by ASI shall become the property of ASI. ASI shall
dispatch qualified technicians to the above address within two (2)
hours, twenty -four (24) hours a day seven (7) days a week after
receiving notification of a major interruption of service. For the
purposes of this Agreement, a major interruption of service means
the inability to make or receive outside calls. Minor service
requests will be responded to within twenty -four (24) hours of the
customer's request between the hours of 8:00 A.M. and 5:00 P.M.,
Monday through Friday, except holidays. Notwithstanding anything
to the contrary herein, ASI shall be excused from failure of
performance of its obligations hereunder due to strikes, fire,
flood, acts of God, or other causes beyond ASI's control.
3. EYCI,USIONS: The services provided for hereunder shall not
include:
a. The replacement of Equipment or parts thereof which
are lost of stolen.
b. The repair of Equipment or parts thereof which are
damaged by accident, neglect, misuse, or any other cause other
than ordinary use.
C. Additions to, or rearrangement or relocation of, the
Equipment.
d. Service necessitated by equipment failures for which
repair or maintenance has been obtained from persons other
than agents of ASI.
Schedule II p.l
e. Service necessitated by damage resulting from failure
to maintain a proper environment for the Equipment.
f. Service necessitated by causes external to the
Equipment or by attachments, parts, supplies, or devices not
furnished by ASI.
4. Requests by Customer for service outside the scope of this
Agreement shall be furnished by ASI at its then effective rates in
accordance with Schedule III.
S. This Agreement shall commence on the Effective Date
hereinabove set forth and shall continue in effect (but in no event
for longer than ___Seven ( 7 ) years) until
terminated upon sixty (60) days' written notice. Notwithstanding
the foregoing, if Customer is in default in any of the Customer's
ohligations hereunder or under any other agreement Customer may,
have kith ASI, ASI may terminate this Agreement immediately upon
written notice to Customer. Customer shall be deemed to be in
default of an obligation to ASI if Customer fails to make any
Payment when due under terms of any such agreement.
b. Customer shall elect within 300 days of the Effective Date
to pay ASI for maintenance services rendered in accordance with
this Agreement in one of the following two methods: sj
a. Customer agrees to pay to ASI in advance on the
day of every month, commencing on the first anniversary of the
Effective Date, a sum equal to the Monthly Service Charge.
'There shall be no Monthly Service Charge for the one -year
period commencing on the Efective Date. The Monthly Service
Charge in effect for the one -year period commencing on the
first anniversary of the Effective Date shall be the Initial
Monthly Charge set forth above. The monthly service charge
shall be adjusted on each subsequent anniversary of the
Effective Date to an amount equal to the lesser of (i) ASI's
then effective rates for such services or (ii) the Initial
Monthly Charge multiplied by a fraction of which the numerator
shall be the Consumer Price Index -All Urban Consumers -U.S.
( "the Index ") for the calendar month preceding the adjustment
date and the denominator shall be the Index for the calendar
month preceding the Effective Date; provided that in no event
shall such amount be reduced below the Initial Monthly Charge.
b. Customer agrees to pay ASI for all parts and labor
provided by ASI pursuant to this Agreement at its then
effective rates, except that there shall be no charge for such
services during the one -year period commencing on the
Effective Date.
Schedule II p.2
7. Except as provided in Paragraph 8 of this Agreement,
CUSTOMER'S SOLE REMEDY FOR ASI'S LIABILITY WITH RESPECT TO THE
PARTS, MATERIALS, WORK, OR SERVICES PROVIDED HEREUNDER OR FOR ANY
OTHER PERFORMANCE BY ASI HEREUNDER SHALL BE LIMITED TO THE REPAIR
OR REPLACEMENT OF DEFECTIVE WORK. Without limiting the foregoing,
AS.I shall not be liable for an special or consequential damages or
for any loss, damage or expense of any kind or nature caused
directly or indirectly by parts, materials, work, or services
provided hereunder, or any failure thereof, or for any delay in
providing the same.
8. Notwithstanding the exclusions contained in Paragraph 3, a
penalty of Five Hundred Dollars ($S00.00) shall be paid by ASI to
Customer for each hour or part thereof beyond the two (2) hour
maximum that ASI fails to respond to the request for emergency
service. Such penalty shall in no case exceed Three Thousand
Dollars ($3,000.00) for any single occurrence.
9. The Maintenance Agreement contains the entire agreement
between the parties hereto with respect to the subject matter
I
ereof, and supersedes any and all prior agreements between the
parties with respect thereto. There have been and are no
representations or warranties, whether express or implied, by
statute or otherwise, by either party hereto to the other, except
as expressly set forth herein. This agreement may not be modified
or :mended except by a writing signed by both parties.
10. All notices, requests, instructions, or other writings
reaiiired or permitted hereunder or deemed by any party hereunder to
he necessary or desirable to be given to the other party shall be
in writing and shall be deemed to have been given on the date of
service if served personally on the party to whom notice is given,
nr on the second day after mailing if mailed to the party to whom
notice is to be given, by first class mail, certified, postage
prepaid, and addressed to Customer at the address shown on p.l or
to AST at 211S0 Calif.a, Woodland Hills, California 91367; provided,
however, that either party may change the address to which notices
to it are to be sent by giving written notice of the new address to
the other party in accordance with the provisions of this paragraph.
CUSTOMER
By: Z,±
Title: CITY MANAGER Date:June 1, 1984
ASI TELE$YSTEMS, INC.
By:
/
Title CHIEF
EXE
TIU OFFICER
Date:
JUNE 4, 1984
Schedule II p.3
End of Schedule II
.+. . ('
0 0
SCHEDULE III
SERVICE AGREEMENT
ASI Telesystems, Inc. ( "ASI "), whose address is
21150 Califa Street, Woodland Hills, California 91367
Effective Date: Upon Cut -over 1984
Customer's Name: The City of Newport Beach,
a Municipal Corporation
Street Address: 3300 Newport Boulevard
P. 0. Box 1768
City and State: Newport Beach, CA 92658 -8915
Initial Monthly Charge $
1. SERVICE: ASI Telesystems, Inc. ( "ASI ") agrees with the
above -named customer ( "Customer ") to render service on the equipment
( "the Equipment ") listed in the attached Schedule I in accordance
with the terms and conditions set forth herein.
2. Subject to the terms and conditions herein, ASI shall
furnish all necessary service, including parts and materials, to
respond to requests by Customer for moves, changes, additions, and
alterations to the Equipment. Any parts replaced by ASI shall remain
the property of the Customer unless redeemed by ASI. ASI shall
dispatch qualified technicians to the above address within five (5)
business days after receiving a request for minor service from
Customer. Response to requests for major (more than ten stations or
lines) additions or reconfigurations shall be scheduled within a
reasonable period, subject to availability of parts and personnel,
after receiving a request. Notwithstanding anything to the contrary
herein, ASI shall be excused from failure of performance of its
obligations hereunder due to strikes, fire, flood, acts of God, or
other causes beyond ASI's control.
3. The services provided for hereunder shall include:
a. The replacement of Equipment or parts thereof which are
lost of stolen.
b. The repair of Equipment or parts thereof which are
damaged by accident, neglect, misuse, or any other cause other
than ordinary use.
C. Additions to, or rearrangement or relocation of, the
Equipment.
d. Service necessitated by equipment failures for which
repair or maintenance has been obtained from persons other than
agents of ASI.
e. Service necessitated by damage resulting from failure
to maintain a proper environment for the Equipment.
f. Service necessitated by causes external to the
Equipment or by attachments, parts, supplies, or devices not
furnished by ASI.
Schedule III p.l
4. This Service Agreement shall commence on the Effective Date
hereinabove set forth and shall continue in effect (but in no event
for longer than seven years (7) years) until terminated upon sixty (60)
days' written notice. Notwithstanding the foregoing, if Customer is
in default in any of the Customer's obligations hereunder or under
any other agreement Customer may have with ASI, ASI may terminate
this Agreement immediately upon written notice to Customer. Customer
shall be deemed to be in default of an obligation to ASI if Customer
fails to make any payment when due under terms of any such agreement.
S. Customer agrees to pay ASI for all parts and labor provided
by ASI pursuant to this Service Agreement at its then effective rates.
6. CUSTOMER'S SOLE REMEDY FOR ASI'S LIABILITY WITH RESPECT TO
THE PARTS, MATERIALS, WORK, OR SERVICES PROVIDED HEREUNDER OR FOR ANY
OTHER PERFORMANCE BY ASI HEREUNDER SHALL BE LIMITED TO THE REPAIR OR
REPLACEMENT OF DEFECTIVE WORK. Without limiting the foregoing, ASI
shall not be liable for an special or consequential damages or for
any loss, damage or expense of any kind or nature caused directly or
indirectly by parts, materials, work, or services provided hereunder,
or any failure thereof, or for any delay in providing the same.
7. The Service Agreement contains the entire agreement between
the parties hereto with respect to the subject matter hereof, and
supersedes any and all prior agreements between the parties with
respect thereto. There have been and are no representations or
warranties, whether express or implied, by statute or otherwise, by
either party hereto to the other, except as expressly set forth
herein. This agreement may not be modified or amended except by a
writing signed by both parties.
S. All notices, requests, instructions, or other writings
required or permitted hereunder or deemed by any party hereunder to
he necessary or desirable to be given to the other party shall be in
vriting and shall be deemed to have been given on the date of service
if served personally on the party to whom notice is given, or on the
second day after mailing if mailed to the party to whom notice is to
he given, by first class mail, certified, postage prepaid, and
addressed to Customer at the address shown on p.1 or to ASI at 21150
Califa, Woodland Hills, California 91367; provided, however, that
either party may change the address to which notices to it are to be
sent by giving written notice of the new address to the other party
in accordance with the provisions of this paragraph.
CUSTO By: i lc :1LA11
Title: CITY MANAGER Date: June 1, 1984
ASI TEPS/YSTEMS, INC.
By: _
Title CHIEF EX UT OFFICER Date:JUNE 4, 1984
Schedule III p.2
End of Schedule III
•
S A L E S A G R E E M E N T
SYSTEM B - POLICE DEPARTMENT
This Sales Agreement is made and entered into between ASI
Telesystems, Inc. ( "ASI ") and The City of Newport Beach, a
riimicipal. Corporation ( "Customer "), located at 3300 Newport
boulevard, Newport Beach, California.
AS1 aalrees to sell to Customer and Customer agrees to buy from ASI
the Equipment listed and described in Schedule I attached hereto
( "the Equipment "), at the purchase price and on the terms and
conditions hereinbelow set forth.
1. AST shall install the Equipment at the Premises of the
C.Stnmer. Customer shall be responsible for timely and proper
securing of all permits, licenses, consents and "approvals" in
connection with the sale and installation of the equipment.
2. The estimated cut -over date is September 21, 1984.
3. ASI shall furnish all necessary cable, hardware, etc.,
including labor for installation of the Equipment, unless otherwise
indicated herein or in a Schedule attached hereto. All cables,
hardware, and other equipment shall meet all applicable FCC
standards. All conduit and electrical outlets are to be provided
;,N. Customer. ASI shall perform the installation in a workmanlike
!ranncr, but shall not be responsible for damages to the Premises
net resulting from AST's or it's subcontractors and /or affiliates
nc (,lieence.
4. ASI shall furnish to Customer before the commencement of
ir.stall.ation the following signed certification:
"I am aware of the provisions of Section 3700 of the Labor
Code which require every employer to be insured against
liability for workers' compensaion or to undertake
self:- insurance in accordance with the provisions of that code,
and I will comply with such provisions before commencing the
performance of the work of this contract."
ASI shall also comply with Section 3800 of the Labor Code by
ecuring, paying for, and maintaining in full force and effect for
the duration of the contract, complete Workmen's Compensation
Insurance, and shall furnish a Certificate of Insurance to the
Customer. The Customer, its officers, or employees, will not be
responsible for any claims in law or equity occasioned by failure
oi- AST to comply with this paragraph.
Page 1
`. Before starting installation, ASI shall designate, in
Writing, a representative who shall have complete authority to
act for it. An alternate representative may be designated. The
representative or alternate shall be present at the worksite
«I.enever work is in progress or whenever actions of the elements
necessitate its presence to take measures necessary to protect
t ??e
work., ;,ersons or property. Any order or communication given
to this representative shall be deemed delivered to ASI. A joint
venture shall designate only one representative and alternate.
In the absence of the designated representative, necessary or
desirable directions or instructions may be given by the Customer
to the superintendent or person having charge of the specific
work to which the order applies. Such order shall be complied
with promptly and referred to ASI or its representative.
G. Prior to start of installation, ASI shall submit to the
Customer for approval its proposed installation schedule. The
schedule shall be in the form of a tabulation, chart, or graph
and shall be in sufficient detail to show the chronological
relationship of all activities of the project including, but not
limited to, estimated starting and completion dates of various
activities, procurement or materials, and scheduling of equipment.
7. ASI shall furnish to Customer a bond for the faithful
performance of this Agreement, with the Customer named as the
beneficiary for an amount equal to the total sum of this contract.
8. One year of maintenance (pursuant to the terms and
conditions of the Maintenance Agreement attached hereto) is
included under this Agreement.
9. Risk of loss or damage to the equipment shall pass to
Customer as soon as the Equipment has been installed and deemed
r,orr:ing as intended. until the entire purchase price and sales
tax have been paid, Customer shall insure the Equipment against
fire, theft and other perils by a policy and with an insurer
satisfactory to ASI and naming AST as an insured in an amount not
less than the outstanding balance of the purchase price, and
shall furnish to ASI a certificate from the carrier that ASI will
receive at least ten (1.0) days' prior written notice of
cancellation or change of coverage.
10. The purchase price shall be $172,506.01
Plus Sales 'lax of 7,885.78
Total $180,391.79
PAYMENT SCHEDULE
Direct Purchase from ASI:
SOo With Signed Sales Agreement $ 90,195.90
Page 2
• •.
0% Upon Delivery of Switch and
Station Equipment $ -0-
0% Upon Completion of Station
Cahlinc and Main Distribu-
tion Frame $ -0-
CUTOVER: 10 -days prior to cutover, Customer will
provide to ASI a pre - cutover reconciliation.
iS ";, of the pre - cutover reconciliation amount
shall be paid to ASI after cutover.
ACCEPTANCE: As defined in Schedule A, paragraph S, upon
final reconciliation and acceptance, after
cutover, Customer shall pay ASI the balance
then due and owing.
11. The terms and conditions set forth on Schedule I, II,
III, and Schedule A, attached hereto, are hereby incorporated
herein and made a part of this Agreement.
12. THIS AGREEMENT CONTAINS THE ENTIRE AGREEMENT OF THE
PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND MAY NOT BE
CHANGED EXCEPT BY A WRITING SIGNED BY CUSTOMER AND ASI. ASI
MAKES NO WARRANTIES, F.XPRESS OR IMPLIED, EXCEPT AS SET FORTH IN
"PHIS AGREEMENT. ANY AND ALL ADDITIONAL OR DIFFERENT TERMS OR
CONDITIONS HERETOFORE OR HEREAFTER SUBMITTED BY CUSTOMER ARE
7.h1=)fED TO BE REJECTED, BY ASI AND NEITHER ASPS COMMENCEMENT OF
PERFORMANCE NOR DELIVERY SHALL BE DEEMED OR CONSTRUED AS
ACCEPTANCE OF CUSTOMER'S ADDITIONAL OR DIFFERENT TERMS OR
CONDITIONS.
TN hITNESS WHEREOF, the parties hereto have caused this Agreement
to be properly executed, intending that it shall be legally
binding upon them and their respective heirs, estates, successors
and assigns.
Bv SIGNING BELOW, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS
CAREFULLY READ ALL PAGES OF THIS DOCUMENT AND ATTACHED SCHEDULES
AND UNDERSTANDS AND AGREES TO ALL OF TIME PROVISIONS THEREOF.
Customer: The City of Newport Beach
(a Municipal Corporation)
Title: CITY MANAGER
1)ate: June 1, 1984
Page 3
ASI TELESYSTEMS, INC.
BY
Title: CHIEF EXECI7TIVE OFFICER
Date: JUNE 4, 1984
SCHEDULE A
SALES AGREEMENT
ADDITIONAL TERMS AND CONDITIONS
1. The term "Cut- Over" as used herein means the date on
which the installed Equipment is substantially operable.
"Substantially operable" means having the capability to make
outgoing and receive incoming calls and having a substantial
maiority of the features listed in Schedule I functional.
Equipment in such condition shall be deemed to be substan-
tially operable netwithstanding any unavailability of trunk
lines due to telephone company delays or any failures which do
not materially affect the functioning of the entire system.
ASI shall employ all reasonable efforts to make timely
delivery and installation but shall be excused from any delays
arising out of causes beyond its reasonable control. All
stated delivery or Cut. -Over dates are approximate, and ASI
shall under no circumstances be liable for damages, special,
consequential or otherwise, for delays or failure to give
notice of delay.
Customer shall be responsible for obtaining trunk lines
and inter - connecting devices from the serving telephone
company. If requested, ASI will use reasonable efforts to
assist Customer. ASI's services shall be limited to the
installation of the Equipment on the subscriber's side of the
interface equipment connecting the Equipment to the telephone
system operated by the local telephone utility. ASI shall not
be responsible in the event the utility fails to timely make
available interconnect services nor shall ASI be obligated to
pay the inter - connect tariff or other charges of the utility
with respect to such services.
4. Customer shall at Customer's expense on the date of
delivery of the Equipment to the Premises and at all times
thereafter during the period of installation of the Equipment:
(a) Allow employees and agents of ASI free access to the
Premises at all hours consistent with the requirements of
the installation. ASI agrees to "comply with all rules
and regulations of Customer.
(b) Assure that the Premises will meet all temperature,
humidity control, air- conditioning, and other
environmental requirements set forth in the applicable
Equipment specifications, and will be dry and free from
dust and in such condition as not to be injurious to the
employees or agents of ASI or the equipment.
Schedule A p.l
(c) Provide necessary openings and ducts for cable and
conductors in floors and walls;
(d) Provide electric current for any necessary purpose with
suitable terminals in rooms where required;
(e) Provide installed metallic ground or grounds, as required;
(f) Provide for the termination of any existing service
agreement with the local telephone utility and for the
removal of any existing equipment and cable, as required;
(2) Provide suitable and easily accessible floor space to
permit storing adjacent to where the Equipment will be
used, and for secure storage of tools and test sets.
S. Delivery and Acceptance: After the cut -over date,
Customer shall have 15 business days to provide ASI with a
written list, which list shall contain omissions of featurles
and /or other items of equipment, modifications or deviations
from this agreement.
ASI shall then have 15 business days from the date of
receipt of such deficiency list in which to correct, replace
or repair such deficiencies., After the deficiencies on said
list are corrected, repaired or replaced, ASI shall furnish a
written notice to Customer completely detailing the
correction, repair or replacement.
The system shall be deemed accepted by Customer upon
verification that deficiencies have been cured. Customer shall
use all best efforts to complete verification in a timely
manner.
After verification that deficiencies have been cured, the
warranty shall commence pursuant to Paragraph 7 of this
Schedule.
6. Up to ten business days prior to cut -over, at Customer's
request, ASI shall relocate any part of the system in
accordance with ASI's standard rates in effect at the time of
such relocation. ASI will supply and install additional
Equipment for the system at its pre- cutover prices quoted in
the Telephone System Specifications Booklet, bid by ASI March
26, 1984. Customer shall not, without obtaining the written
consent of ASI, change the location of the Equipment or permit
equipment of any sort to be installed by anyone other than ASI.
Subject to the provisions of this paragraph, ASI warrants
the Equipment against defects in material and workmanship of
which it receives written notice from Customer within one year
from the Cut -over date. ASI's sole obligation with respect to
said warranty shall be to repair or (at ASI's option) replace
the defective item. This warranty does not extend to any
Equipment which has been (i) subject to misuse, neglect,
accident or abuse, (ii) wired, repaired or altered by anyone
other than ASI, its sub - contractors and /or affiliates without
ASI's prior written approval, (iii) improperly installed by
Schedule A p.2
someone other than ASI, its subcontractors and /or affiliates,
(iv) used in violation of instructions furnished by ASI or (v)
maintained in an environment (including but not limited to
humidity, temperature, and air - conditioning) not conforming to
the specifications furnished by ASI. The foregoing warranty
shall be in lieu of and excludes all other warranties, express
or implied, of merchantability, fitness or otherwise.
THE SOLE REMEDY FOR BREACH OF ANY AND ALL WARRANTIES AND
SOLE REMEDY FOR ASI'S BREACH OR LIABILITY OF ANY KIND WITH
RESPECT TO THE EQUIPMENT, MATERIALS, WORK OR SERVICES PROVIDED
OR TO BE PROVIDED HEREUNDER AND ANY OTHER PERFORMANCE BY ASI
UNDER OR PURSUANT TO THIS AGREEMENT SHALL BE LIMITED TO THE
REMEDY PROVIDED IN PARAGRAPH 7. ASI SHALL NOT BE LIABLE FOR
ANY SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR LOSS, DAMAGE OR
EXPENSE (WHETHER OR NOT CAUSED BY OR RESULTING FROM ASP S
NEGLIGENCE) DIRECTLY OR INDIRECTLY ARISING FROM USE OF THE
EQUIPMENT OR ARISING FROM CUSTOMER'S INABILITY TO USE
EQUIPMENT EITHER SEPARATELY OR IN COMBINATION WITH ANY OTHER
EQUIPMENT OR FROM ANY OTHER CAUSE.
C, Customer hereby grants to ASI a security interest in the
Collateral (as hereinafter defined) to secure performance of
the Debtor Obligations (as hereinafter defined), subject to
the following terms:
(a) As used in this Paragraph, the term "Collateral"
means the Equipment and all replacements, parts, additions,
repairs and accessories incorporated therein and /or now or
hereafter affixed thereto; "Debtor Obligations" means each and
all of the obligations of Customer under this Sales Agreement,
the Maintenance .Agreement, and any and all other agreements
between Customer and ASI.
(b) Customer shall execute and deliver to ASI financing
statements and other documents and instruments and perform
such acts as ASI may require in order to carry out the
provisions of this Agreement and to affirm, effectuate, or
further assure the assignment to ASI of the Collateral or
ASI's interest therein.
(c) Customer hereby warrants, represents and covenants
that:
(i) Customer shall not sell, transfer or otherwise
dispose of the Collateral; or any portion
thereof, unless the Debtor Obligations have
beer, fully performed and discharged;
(ii) Except for the security interest hereby created
and except as may be otherwise herein provided,
Customer is the owner of Collateral free from
any adverse lien, and shall at all times keep
the Collateral free from any adverse lien;
Schedule A p.3
(iii) Customer shall do all acts necessary to
maintain, preserve, protect and keep the
Collateral in good condition and repair and not
cause any waste or unusual or unreasonable
depreciation of the Collateral, and shall
insure the Collateral at its full value for all
risks and losses, and comply with all laws,
statutes and reulations pertaining to the
Collateral and pay when due all taxes, charges
and other impositions upon the Collateral or
for its use and operation;
(iv) Customer shall promptly notify ASI of any
attachment or other legal process levied
against any of the Collateral;
(v) Customer shall not permit or cause the
impairment of the value of the Equipment or the
security intended to be afforded by this
Agreement.
(d) Any of the following shall constitute an event of
default for purposes of this Paragraph:
(i) Failure to comply with each and every one of
the covenants made hereunder by Customer;
(ii) Failure to make any payment when due under this
.Agreement, or under the Maintenance Agreement,
or under any other agreement between Customer
and ASI, without deduction or setoff;
(iii) Failure to protect the Collateral, resulting in
loss, theft, damage, destruction or encumbrance
or the making of any levy, seizure or
attachment thereof or thereon;
(iv) Customer shall become insolvent or bankrupt or
make an assignment for the benefit of creditors
or consent to the appointment of a trustee or
receiver; or a trustee or receiver shall be
appointed for Customer or for a substantial
part of its property, without its consent and
shall not be dismissed "within a period of sixty
(60) days; or bankruptcy, reorganization or
insolvency proceedings shall be instituted by
or against Customer and shall not be dismissed
within a period of sixty (60) days;
(v) Failure to execute and deliver to ASI a
delivery and acceptance certificate within
thirty (30) days after ASI's submission thereof
to Customer and after, in the judgement of
Customer's Consultant, Earline Reeves $
Associates, all deficiencies have been
corrected by ASI.
Schedule A p.4
(e) Upon the occurrence of an event or default under this
Agreement, or at any time thereafter, ASI may, at its
option, declare any or all of the Debtor Obligations
immediately due and payable without demand or notice
of any kind and the same thereupon shall immediately
become and be due and payable, and ASI shall have and
may exercise from time to time any and all rights and
remedies of a secured party under the California
Uniform Commercial Code and any and all rights and
remedies available to it under any other applicable
law, including, without limitation, the right to
immediately take possession of or disable any or all
items of the Collateral, wherever same may be
located, without demand or written notice, without
any court order or other process of law, and without
liability to Customer for any damages occasioned
thereby. In the event of such taking or disabling
ASI in its sole discretion may, but without obli-
gation to do so, install upon the Premises one or
more single -line telephones to replace any one or
more items of Collateral taken or disabled. Customer
agrees to permit ASI and its duly authorized agents
to enter the Premises and to have access to the
Collateral for the purpose of exercising ASI's rights
pursuant to this Paragraph. Upon disposition of any
Collateral after the occurrence of any default
hereunder, the proceeds of the disposition shall be
applied first to expenses of retaking, holding,
preparing for sale, and selling, including ASI's
reasonable attorney's fees and legal expenses, and
then to the Debtor Obligations. Customer shall be
and remain liable for any deficiency and ASI shall
account to the Customer for any surplus.
10. If Customer has elected to Lease pursuant to Paragraph 6
hereof, title to the Equipment shall not pass to Customer
until the entire purchase price plus sales tax has been paid.
If for any reason whatsoever Customer has not executed and
delivered to ASI a delivery and acceptance certificate within
thirty (30) days after ASI's submission thereof to Customer
and after, in the judgement of Customer's consultant, Earline
Reeves & Associates, all deficiencies have been corrected by
ASI, ASI shall have the right at any time thereafter (until.
the entire purchase price plus sales tax has been paid) to
terminate this Agreement. Thereupon, Customer shall forthwith
return to ASI all of the Equipment. Customer agrees that ASI
shall have the right peaceably to enter the Premises or any
other premises at which the Equipment is
Schedule A p.5
located in order to take possession of and remove the
Equipment. If Customer fails to permit ASI to recover the
Equipment, ASI shall have the right to recover the same in a
claim and delivery proceeding. Within fifteen (15) days after
ASI has taken nossession of all of the Equipment, ASI shall
return to Customer all amounts theretofore paid by Customer
upon the purchase price after first offsetting ASI's costs of
installation (including both labor and nonrecoverable
materials).
iJ. Customer acknowledges that the pace of technological
change in the industry may be so rapid as to accelerate the
diminution in value of the Equipment; that therefore any delay
in AS1's taking possession pending litigation would result in
special and peculiar detriment to the business of ASI; that in
the event of any default by Customer hereunder, or termination
of this Agreement pursuant to Paragraph 10, ASI's right to
recover possession of the Equipment, whether with or without
process of law, is essential to the operation of ASI's
business. Therefore, if ASI brings an action to take posses-
sion of the Equipment, whether pursuant to the provisions of
Paragraph 9 or of Paragraph 10, Customer agrees not to assert
any setoff or defense to the action, or any objection to the
issuance by the court thereof of a writ of possession of the
Equipment or to the execution of such writ, nor to object in
any way to the taking of possession by ASI. Customer hereby
forever and irrevocably waives any and all rights, now exist-
ing or hereafter arising, to file, and agrees not to file, any
undertaking or bond to prevent ASI or any levying officer from
executing such writ. Without limiting the foregoing, Customer
agrees that any claim which would otherwise be the basis of
such setoff will be asserted by it in a proceeding independent
of any action by ASI for recovery of possession of the
Equipment. ASI agrees that it will not assert as a bar to any
such independent action by Customer any defenses arising from
the statutes governing compulsory cross - actions.
12. This Contract may be cancelled by the Customer without
liability for damage when ASI is not complying in good faith,
has become insolvent, or has assigned or subcontracted any
part of the work without the consent of Customer. In the
event of such cancellation, ASI will be paid the actual amount
due based on unit prices or lump sums bid and the quantity of
work completed at the time of cancellation, less damages
caused to the Customer by acts of ASI or causing the
cancellation. ASI shall waive any and all claims for damages
because of cancellation of Contract for any such reason. If
the Customer declares the Contract cancelled for any of the
above reasons, written notice to that effect shall be served
upon the Surety. The Surety shall, within 5 days, assume
Schedule A p.6
control and perform the work as successor to ASI.
If (subject to the provisions of Schedule A, paragraph 2)
ASI fails to begin delivery of material and equipment, to
commence work within the time specified, to maintain the rate
of delivery or material, to execute the work in the manner and
at such locations as specified, or fails to maintain a work
program which will ensure the Customer's interest, or if the
Contractor is not carrying out the intent of the contract, the
Customer may serve upon ASI a written notice and the Surety on
its faithful performance bond demanding satisfactory com-
pliance with the Contract.
If ASI or its Surety does not comply with such notice
within 5 days after receiving it, or after starting to comply,
fails to continue, Customer may exclude it from the premises
and take possession of all material and equipment, and
complete the Work, by Customer forces or by letting the
unfinished work to another Contractor, or by a combination of
such methods. In any event, the cost of completing the Work
shall be charged against ASI and its Surety, and may be
deducted from any money due or becoming due from the Customer.
If the sums under the contract are insufficient for com-
pletion, ASI or Surety shall pay to the Customer within 5 days
after completion, all costs in excess of the Contract Price.
If the Surety assumes any part of the Work, it shall take
the place of ASI in all respects for that part, and shall be
paid by the Customer for all work performed by it in accord-
ance with the Contract. If the Surety assumes the entire
contract, all money due ASI at the time of its default shall
be payable to the surety as the work progresses, subject to
the terms of the Contract.
The provisions of this section shall be in addition to all
other rights and remedies available to the Customer under law.
ls. No action arising out of this Agreement or performance
hereunder may be brought by either party more than one year
after the cause of action arises.
14. Customer shall pay ASI all costs,(including reasonable
attorney's fees to the extent permitted by law) incurred by
ASI in enforcing the provisions hereof, or in exercising any
of the rights and remedies hereunder.
ASI shall pay Customer all costs (including reasonable
attorney's fees to the extent permitted by law) incurred by
Customer in enforcing the provisions hereof, or in exercising
any of the rights and remedies hereunder.
Schedule A p.7
15. Any notice, demand or document which either party is
required to or desires to give to the other shall be deemed
given when personally served or when deposited in the United
States mail, certified mail, postage prepaid, addressed as
follows:
TO: ASI Telesystems, Inc., 21150 Califa Street
Woodland Hills, California 91367
TO: City Manager
3300 Newport Blvd., P.O. Box 1768
Newport Beach, California 92658 -7815
16. No waiver by either Party of any default shall operate as
a waiver of any other default or of the same default on a
future occasion. No delay or omission on the part of either
Party in exercising any right or remedy shall operate as a
waiver thereof, and no single or partial exercise by either
Party of any right or remedy shall preclude any other or ,
further exercise thereof or the exercise of any other right or
remedy.
17. All the provisions of this Agreement shall be considered
as separate terms and conditions and in the event any one
shall be held illegal, invalid or unenforceable, all the other
provisions hereof shall remain in full force and effect as if
the illegal, invalid or unenforceable provision were not a
part hereof.
18. The Equipment covered herein shall remain personal
property, and shall not become part of the freehold, regard-
less of the manner of affixation.
1'"). This Agreement shall be governed and construed in accord-
ance with the laws of the State of California.
20. Payments which are not made when due shall be subject to a
service charge of two percent (2 %) per month or at the maximum
rate permitted by law, whichever is the lesser, from the first
(1st) day of the month for which due until paid.
�1. Neither this Sales Agreement nor any of the prices or
terms set forth herein shall be binding on ASI until a copy
hereof duly executed by ASI is delivered to Customer. If
installation of the Equipment or Cut -Over is delayed for more
than thirty (30) days because of the fault, or at the request,
of Customer, ASI reserves the right to raise the purchase
price set forth in Paragraph 10 of the Sales Agreement by an
amount equal to increases in ASI's cost of labor, materials,
or equipment.
Z This Agreement may be assigned by ASI, in whole or in
part, and ASI may freely subcontract any or all of the work
hereunder only with written permission of the Customer. Said
permission shall not be unreasonably withheld. The Customer
may not assign this Agreement in whole or in part, without
obtaining the prior written consent of ASI, which consent
shall not be unreasonably withheld.
Schedule A p.8
'3. Customer represents, covenants and warrants to ASI that
Customer has corporate or other power to make and perform this
Sales Agreement and that the making and performance of this
Sales Agreement by Customer has been duly authorized by all
necessary corporate or other action of the Customer and will
not violate any provision of law or of its Articles of
Incorporation or By -Laws, or result in the breach of any
agreement to which Customer is a party.
24. RE -USE OF EXISTING STATION CABLE: The telephone system
installation shall be accomplished by the installation of all
new station cabling, thereby creating parallel services to
prevent disruption of telephone services during transition
from the existing telephone system to new telephone system.
Should any existing station cabling be deemed acceptable
for re -use for the new system, authorization for such use must
be agreed upon in writing by both Customer and ASI, and only
after an "exchange schedule" has been established for exchang-
ing telephones and wiring new stations post - cutover for all
locations to be installed on existing cable.
ASI's bid includes new cabling for the entire telephone
system and wherever existing cable is re -used, ASI agrees to
reduce its proportionate cost for cable and labor and /or add
the purchase cost of cable from AT &T for each instance where
existing cable will be utilized.
Before authorization to use existing cable, ASI must
submit a list of locations, telephone by telephone, where
existing cable will be used, showing contractual cost reduc-
tions and labor hours, time frames and personnel to be
scheduled post - cutover for exchange of telephone instruments,
and time frames for activating such locations onto the new
telephone system.
_:.. If at any time after executing this Agreement and up to
ten business days prior to final installation of the system,
Customer reserves the right to make additions, deletions
and /or changes in station equipment, trunking and /or other
revisions as necessary. Such revisions shall be documented by
Customer and delivered in writing to ASI. Such revisions
shall become part of the finalized installation.
ASI shall identify and label all cables, punchdown termi-
nals, and all line cards in the key service units. All tele-
phone instruments shall include typed pilot numbers and
station designations. All amphenol covers shall be securely
fastened to the walls by screws. All cabling shall be con-
cealed within the walls, wherever possible and ASI shall dis-
cuss such areas iaith Customer or its representative. All tele-
phone instrument instruction face plates shall be laminated.
Schedule A p.9
•
27. TRAINING: In consideration of the fact that Customer may
elect to provide its own maintenance technician after the
first year warranty period, ASI agrees to screen and interview
applicants with a recommendation to the Customer at no
additional cost, provided said screening takes place no later
than month 10 of the warranty period. Additionally, ASI
agrees to provide Customer's technician with factory switch
training at such location where said training classes are
given, provided Customer shall pay all tuition, travel, food
and lodging expenses for its employee to be trained.
ASI agrees to train all station users on utilization of
the new telephone system prior to installation of the system,
providing Customer makes its personnel available for said
training at such reasonable times and places as ASI shall
require.
28. All schedules attached to this Agreement, including ASI's
response to bid, entitled TELEPHONE SYSTEM SPECIFICATION
BOOKLET are an integral part hereof, as if fully set forth
herein.
Z9. AUDIT: After said cutover of the telephone system,
Customer shall audit and reconcile the telephone system
installation costs against previously quoted quantities and
corresponding prices. This Sales Agreement shall then be
amended by way- of addendums to reflect all changes in
telephone equipment and costs. Customer shall pay for actual
equipment installed and be credited and /or charged for all
items of equipment added, deleted and /or not installed.
31;. System software shall be deemed part of system and carry
the full effect of warranty and maintenance as outlined
elsewhere in this Agreement.
31. ASI will provide and install, at no cost to Customer, any
release of system software which has been provided to them by
manufacturer at no cost. Customer must agree in writing that
new software is to be installed. ASI shall in no case remove
system sofware without the express written permission of
Customer and must have replacement software immediately
available on Customer's premises.
Customer reserves right to require ASI to remove said
software in the event software does not meet or exceed system
features in previous release and replace with the software
previously removed at no cost to Customer within 15 working
days of installation.
32. ASI will provide Customer opportunity to purchase factory
software enhancements at sixty percent (60 %) above cost to
ASI, this price shall include necessary labor and mileage.
33. ASI will notify Customer of all factory software releases
within. 30 days of receipt by ASI.
Schedule A p.10
34. ASI will provide Customer technical manuals to include but
not limited to (1) NEC PBX manual, (2) NEC PC 800 Maintenance
Administration Terminal, (3) Forms describing how ASI
programmed system, and (4) all other manuals necessary for
Customer to effectively manage the system and its component
parts.
Schedule A p. 11
End of Schedule A
SCHEDULE II
MAINTENANCE AGREEMENT
ASI Telesystems, Inc. ( "ASI "), whose address is
21150 Califa Street, Woodland Hills, California 91367
Effective Date:
Customer's Name:
Street Address
City and State
n Cut -over
, 1984
The City of Newport Beach,
a Municipal Corporation
3300 Newport Boulevard
P. 0. Box 1768
Newport Beach, CA 92658 -8915
Initial Monthly Charge $
540.00
1. SERVICE: ASI Telesystems, Inc. ( "ASI ") agrees with the
above -named customer ( "Customer ") to render repair and maintenance
service on the equipment ( "the Equipment ") listed in the attached.
Schedule I in accordance with the terms and conditions set forth
herein.
2. Subject to the terms and conditions contained herein, ASI
shall furnish all necessary service, including parts and materials,
to maintain the Equipment in good working condition. Any parts
replaced by ASI shall become the property of ASI. ASI shall
dispatch qualified technicians to the above address within two (2)
hours, twenty -four (24) hours a day seven (7) days a week after
receiving notification of a major interruption of service. For the
purposes of this Agreement, a major interruption of service means
the inability to make or receive outside calls. Minor service
requests will be responded to within twenty -four (24) hours of the
customer's request between the hours of 8:00 A.M. and 5:00 P.M.,
Monday through Friday, except holidays. Notwithstanding anything
to the contrary herein, ASI shall be excused from failure of
performance of its obligations hereunder due to strikes, fire,
flood, acts of God, or other causes beyond ASI's control.
3. EXCLUSIONS: The services provided for hereunder shall not
include:
a. The replacement of Equipment or parts thereof which
are lost of stolen.
b. The repair of Equipment or parts thereof which are
damaged by accident, neglect, misuse, or any other cause other
than ordinary use.
C. Additions to, or rearrangement or relocation of, the
Equipment.
d. Service necessitated by equipment failures for which
repair or maintenance has been obtained from persons other
than agents of ASI.
Schedule II p.l
e. Service necessitated by damage resulting from failure
to maintain a proper environment for the Equipment.
f. Service necessitated by causes external to the
Equipment or by attachments, parts, supplies, or devices not
furnished by ASI.
4. Requests by Customer for service outside the scope of this
agreement shall be furnished by ASI at its then effective rates in
accordance with Schedule III.
5. This Agreement shall commence on the Effective Date
hereinabove set forth and shall continue in effect (but in no event
for longer than seven ( 7 ) years) until
terminated upon sixty (60) days' written notice. Notwithstanding
the foregoing, if Customer is in default in any of the Customer's
obligations hereunder or under any other agreement Customer ma,
have with ASI, ASI may terminate this .Agreement immediately upon
written notice to Customer. Customer shall be deemed to be in
default of an obligation to ASI if Customer fails to make any
payment when due under terms of any such agreement.
6. Customer shall elect within 300 days of the Effective Date
to pay ASI for maintenance services rendered in accordance with
this Agreement in one of the following two methods:
a. Customer agrees to pay to ASI in advance on the
day of every month, commencing on the first anniversary of the
Effective Date, a sum equal to the Monthly Service Charge.
There shall be no Monthly Service Charge for the one -year
period commencing on the Efective Date. The Monthly Service
Charge in effect for the one -year period commencing on the
first anniversary of the Effective Date shall be the Initial
Monthly Charge set forth above. The monthly service charge
shall be adjusted on each subsequent^ anniversary of the
Effective Date to an amount equal to the lesser of (i) ASI's
then effective rates for such services or (ii) the Initial
Monthly Charge multiplied by a fraction of which the numerator
shall be the Consumer Price Index -All Urban Consumers -U.S.
( "the Index ") for the calendar month preceding the adjustment
date and the denominator shall be the Index for the calendar
month preceding the Effective Date; provided that in no event
shall such amount be reduced below the Initial Monthly Charge.
b. Customer agrees to pay ASI for all parts and labor
provided by ASI pursuant to this Agreement at its then
effective rates, except that there shall be no charge for such
services during the one -year period commencing on the
Effective Date.
Schedule II p.2
7. Except as provided in Paragraph 8 of this Agreement,
C!!STOMER'S SOLE REMEDY FOR ASI'S LIABILITY WITH RESPECT TO THE
FARTS, !MATERIALS, WORK, OR SERVICES PROVIDED HEREUNDER OR FOR ANY
OTHER PERFORMANCE BY ASI HEREUNDER SHALL BE LIMITED TO THE REPAIR
OR REPLACEMENT OF DEFECTIVE WORK. Without limiting the foregoing,
ASI shall not be liable for an special or consequential damages or
for any loss, damage or expense of any kind or nature caused
directly or indirectly by parts, materials, work, or services
provided hereunder, or any failure thereof, or for any delay in
Providing the same.
8. Notwithstanding the exclusions contained in Paragraph 3, a
penalty of Five Hundred Dollars ($500.00) shall be paid by ASI to
Customer for each hour or part thereof beyond the two (2) hour
maximum that ASI fails to respond to the request for emergency
service. Such penalty shall in no case exceed Three Thousand
Dollars ($3,000.00) for any single occurrence.
9. The Maintenance Agreement contains the entire agreement
between the parties hereto with respect to the subject matter
hereof, and supersedes any and all prior agreements between the
parties with respect thereto. There have been and are no
representations or warranties, whether express or implied, by
statute or otherwise, by either party hereto to the other, except
as expressly set forth herein. This agreement may not be modified
or amended except by a writing signed by both parties.
10. All notices, requests, instructions, or other writings
required or permitted hereunder or deemed by any party hereunder to
he necessary or desirable to be given to the other party shall be
in N;riting and shall be deemed to have been given on the date of
service if served personally on the party to whom notice is given,
or on the second day after mailing if mailed to the party to whom
notice is to be given, by first class mail, certified, postage
"repaid, and addressed to Customer at the address shown on p.l or
to ASI at 211S0 Califa, Woodland Hills, California 91367; provided,
however, that either party may change the address to which notices
to it are to be sent by giving written notice of the new address to
the other party in accordance with the provisions of this paragraph.
CUSTOMER
By:
Title: CITY MANAGER Date:June 1, 1984
ASI VS STEMS, INC.
By:
Title CHIEF EXE TIV OFFICER Date: JUNE 4, 1984
Schedule II p.3
End of Schedule II
• s
SCHEDULE III
SERVICE AGREEMENT
ASI Telesystems, Inc. ( "ASI "), whose address is
21150 Califa Street, Woodland Hills, California 91367
Effective Date
Customer's Name
Street Address
City and State
Cut —over
, 1984
The City of Newport Beach,
a Municipal Corporation
3300 Newport Boulevard
P. 0. Box 1768
Newport Beach, CA 92658 -8915
Initial Monthly Charge $
1. SERVICE: AST Telesystems, Inc. ( "ASI") agrees with the
above -named customer ( "Customer ") to render service on the equipment
i "the Equipment ") listed in the attached Schedule I in accordance
with the terms and conditions set forth herein.
2. Subject to the terms and conditions herein, ASI shall
furnish all necessary service, including parts and materials, to
respond to requests by Customer for moves, changes, additions, and
alterations to the Equipment. Any parts replaced by ASI shall remain
the property of the Customer unless redeemed by ASI. ASI shall
dispatch qualified technicians to the above address within five (5)
business days after receiving a request for minor service from
Customer. Response to requests for major (more than ten stations or
lines) additions or reconfigurations shall be scheduled within a
reasonable period, subject to availability of parts and personnel,
after receiving a request. Notwithstanding anything to the contrary
herein, ASI shall be excused from failure of performance of its
obligations hereunder due to strikes, fire, flood, acts of God, or
other causes beyond ASI's control.
3. The services provided for hereunder shall include:
a. The replacement of Equipment or parts thereof which are
lost of stolen.
b. The repair of Equipment or parts thereof which are
damaged by accident, neglect, misuse, or any other cause other
than ordinary use.
C. Additions to, or rearrangement or relocation of, the
Equipment.
d. Service necessitated by equipment failures for which
repair or maintenance has been obtained from persons other than
agents of ASI.
e. Service necessitated by damage resulting from failure
to maintain a proper environment for the Equipment.
f. Service necessitated by causes external to the
Equipment or by attachments, parts, supplies, or devices not
furnished by ASI.
Schedule III p.l
4. This Service Agreement shall commence on the Effective Date
herei.nabove set forth and shall continue in effect (but in no event
fnr longer than seven years (7) years) until terminated upon sixty (60)
days' written notice. Notwithstanding the foregoing, if Customer is
in default in anv of the Customer's obligations hereunder or under
gin.v other agreement Customer may have with ASI, ASI may terminate
t`'is Agreement immediately upon written notice to Customer. Customer
shall be deemed to be in default of an obligation to ASI if Customer
fails to make any payment when due under terms of any such agreement.
5. Customer agrees to pay ASI for all parts and labor provided
ASI pursuant to this Service Agreement at its then effective rates.
6. CUSTOMER'S SOLE REMEDY FOR ASI'S LIABILITY WITH RESPECT TO
'111E FARTS, MATERIALS, WORK, OR SERVICES PROVIDED HEREUNDER OR FOR ANY
OTHER PERFORMANCE BY ASI HEREUNDER SHALL BE LIMITED TO THE REPAIR OR
P'rPL_ACEMENT OF DEFECTIVE WORK. Without limiting the foregoing, ASI
small not be liable for an special or consequential damages or for
any loss, damage or expense of any kind or nature caused directly or
indirectly by parts, materials, work, or services provided hereunder,
or any failure thereof, or for any delay in providing the same.
7. The Service Agreement contains the entire agreement between
the parties hereto with respect to the subject matter hereof, and
supersedes any and all prior agreements between the parties with
r.:s;nect thereto. There have been and are no representations or
warranties, whether express or implied, by statute or otherwise, by
dither party hereto to the other, except as expressly set forth
in. 'Phis agreement may not be modified or amended except by a
writing signed by hoth parties.
8. All notices, requests, instructions, or other writings
required or permitted hereunder or deemed by any party hereunder to
he necessary or desirable to be given to the other party shall be in
i,ritina and shall be deemed to have been given on the date of service
if served personally on the party to whom notice is given, or on the
second day after mailing if mailed to the party to whom notice is to
be. given, by first class mail, certified, postage prepaid, and
addressed to Customer at the address shown on p.l or to ASI at 21150
Califa, Woodland Hills, California 91367; provided, however, that
either party may change the address to which notices to it are to be
sent by giving written notice of the new address to the other party
in accordance with the provisions of this paragraph.
CUSTO E
By:
Title: CITY MANAGER if Date: June 1T1984
ASI TELEXSSTEMS.. INC.
i
Title°CHIEF EXEWTIVIX/ OFFICER Date :JUNE 4, 1984
Schedule III p.2
End of Schedule III