HomeMy WebLinkAboutAtel Communications Inc; 2008-06-13;AGREEMENT FOR FIRE STATION 6 RELOCATION PBX VOICE
TELECOMMUNICATION SERVICES
ATEL COMMUNICATIONS INC.
THIS AGREEMENT is made and entered into as of the y ' day of
2008, by and between the CITY OF CARLSBAD, a municipal
corporation, ("City"), and ATEL Communications Inc., a California Corporation,
hereinafter referred to as ("Contractor").
RECITALS
A. City requires the professional services of a telecommunication systems
contractor that is experienced in design, installation, and support of telephone systems.
B. Contractor has the necessary experience in providing professional
services and advice related to integration, programming, training and maintenance of
telephone systems.
C. Selection of Contractor is expected to achieve the desired results in an
expedited fashion.
D. Contractor has submitted a proposal to City and has affirmed its
willingness and ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those services (the
"Services") that are defined in attached Exhibit "A", which is incorporated by this
reference in accordance with this Agreement's terms and conditions. Contractor will
relocate the NEC Telephone Digital Remote Unit, telephones, install new Adtran CSU's,
add 4 new telephones, consulting, project management, and all other requirements
necessary for NEC system relocation at the City of Carlsbad's Fire Station 6.
The work under this Agreement will begin ten (10) calendar days after Agreement
signing and Final System Acceptance made by the City within 90 days from the date of
the Agreement signing.
Final System Acceptance means that date in which A) all hardware, software and
system components purchased under the terms of this Agreement have been
successfully installed, tested and accepted by the City; B) all integration services have
been successfully completed, tested and accepted by the City; C) all user
documentation provided to the City is verified to be complete, accurate and current with
the system installed; D) all user and system's administrator / management training has
been successfully completed to the satisfaction of the City in general accordance with
the Scope of Work mutually developed by the Contractor and the City; E) all tasks, sub-
tasks, or components thereof that related wither directly or indirectly to the Agreement
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have been successfully completed; F) that date upon which the City executes a Final
Acceptance Document which states that all terms and conditions of this Agreement
have been successfully completed by the Contractor to the satisfaction of the City.
The Information Technology Director may grant extensions of time if requested by
Contractor in writing and with stated reasons justifying why an extension of time is
warranted. Any granted extension shall be reduced to writing and signed by both
parties. The City will give allowance for documented and substantiated unforeseeable
and unavoidable delays not caused by a lack of foresight on the part of the Contractor,
or delays caused by City inaction or other agencies' lack of timely action.
When work is completed as identified in Exhibit A, Contractor shall submit to City a
written notification listing tasks completed. After receiving said notification, City shall
have five (5) working days to review the deliverable to ensure that it is working properly,
without failures.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional
care and skill customarily exercised by reputable members of Contractor's profession
practicing in the Metropolitan Southern California Area, and will use reasonable
diligence and best judgment while exercising its professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of one year from the date first
above written.
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
5. COMPENSATION
The total fee payable for the hardware, software and services to be performed will be
three thousand five hundred eighty seven dollars and seventeen cents($3,587.17)
including tax. After completion of each milestone or deliverable, as detailed in Exhibit B,
Contractor will invoice the City for the fees then due and payable. No other
compensation for the Services will be allowed except for items covered by subsequent
amendments to this Agreement.
The City reserves the right to withhold a ten percent (10%) retention until City has
accepted the work and/or Services specified in Exhibit "A".
6. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent
contractor and in pursuit of Contractor's independent calling, and not as an employee of
City. Contractor will be under control of City only as to the result to be accomplished,
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but will consult with City as necessary. The persons used by Contractor to provide
services under this Agreement will not be considered employees of City for any
purposes.
The payment made to Contractor pursuant to the Agreement will be the full and
complete compensation to which Contractor is entitled. City will not make any federal or
state tax withholdings on behalf of Contractor or its agents, employees or
subcontractors. City will not be required to pay any workers' compensation insurance or
unemployment contributions on behalf of Contractor or its employees or subcontractors.
Contractor agrees to indemnify City within thirty (30) days for any tax, retirement
contribution, social security, overtime payment, unemployment payment or workers'
compensation payment which City may be required to make on behalf of Contractor or
any agent, employee, or subcontractor of Contractor for work done under this
Agreement. At the City's election, City may deduct the indemnification amount from any
balance owing to Contractor.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval
of City. If Contractor subcontracts any of the Services, Contractor will be fully
responsible to City for the acts and omissions of Contractor's subcontractor and of the
persons either directly or indirectly employed by the subcontractor, as Contractor is for
the acts and omissions of persons directly employed by Contractor. Nothing contained
in this Agreement will create any contractual relationship between any subcontractor of
Contractor and City. Contractor will be responsible for payment of subcontractors.
Contractor will bind every subcontractor and every subcontractor of a subcontractor by
the terms of this Agreement applicable to Contractor's work unless specifically noted to
the contrary in the subcontract and approved in writing by City.
8. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
9. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the City and its officers, officials,
employees and volunteers from and against all claims, damages, losses and expenses
including attorneys fees arising out of the performance of the work described herein
caused by any negligence, recklessness, or willful misconduct of the Contractor, any
subcontractor, anyone directly or indirectly employed by any of them or anyone for
whose acts any of them may be liable.
The parties expressly agree that any payment, attorney's fee, costs or expense City
incurs or makes to or on behalf of an injured employee under the City's self-
administered workers' compensation is included as a loss, expense or cost for the
purposes of this section, and that this section will survive the expiration or early
termination of this Agreement.
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10. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property
which may arise out of or in connection with performance of the services by Contractor
or Contractor's agents, representatives, employees or subcontractors. The insurance
will be obtained from an insurance carrier admitted and authorized to do business in the
State of California. The insurance carrier is required to have a current Best's Key Rating
of not less than "A-:V".
10.1 Coverages and Limits.
Contractor will maintain the types of coverages and minimum limits indicated below,
unless City Attorney or City Manager approves a lower amount. These minimum
amounts of coverage will not constitute any limitations or cap on Contractor's
indemnification obligations under this Agreement. City, its officers, agents and
employees make no representation that the limits of the insurance specified to be
carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If
Contractor believes that any required insurance coverage is inadequate, Contractor will
obtain such additional insurance coverage, as Contractor deems adequate, at
Contractor's sole expense.
10.1.1 Commercial General Liability Insurance. $1.000.000 combined
single-limit per occurrence for bodily injury, personal injury and property damage. If the
submitted policies contain aggregate limits, general aggregate limits will apply
separately to the work under this Agreement or the general aggregate will be twice the
required per occurrence limit.
10.1.2 Automobile Liability (if the use of an automobile is involved for
Contractor's work for City). $1,000,000 combined single-limit per accident for bodily
injury and property damage.
10.1.3 Workers' Compensation and Employer's Liability. Workers'
Compensation limits as required by the California Labor Code and Employer's Liability
limits of $1,000,000 per accident for bodily injury. Workers' Compensation and
Employer's Liability insurance will not be required if Contractor has no employees and
provides, to City's satisfaction, a declaration stating this.
10.1.4 Professional Liability. Errors and omissions liability appropriate to
Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must
be maintained for a period of five years following the date of completion of the work.
10.2. Additional Provisions. Contractor will ensure that the policies of insurance
required under this Agreement contain, or are endorsed to contain, the following
provisions:
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10.2.1 The City will be named as an additional insured on General
Liability.
10.2.2 Contractor will obtain occurrence coverage, excluding Professional
Liability, which will be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and
any extensions of it and will not be canceled without thirty (30) days prior written notice
to City sent by certified mail pursuant to the Notice provisions of this Agreement.
10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution
of this Agreement, Contractor will furnish certificates of insurance and endorsements to
City.
10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these
insurance coverages, then City will have the option to declare Contractor in breach, or
may purchase replacement insurance or pay the premiums that are due on existing
policies in order to maintain the required coverages. Contractor is responsible for any
payments made by City to obtain or maintain insurance and City may collect these
payments from Contractor or deduct the amount paid from any sums due Contractor
under this Agreement.
10.5 Submission of Insurance Policies. City reserves the right to require, at anytime,
complete and certified copies of any or all required insurance policies and
endorsements.
11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of
the Agreement, as may be amended from time-to-time.
12. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred
under this Agreement. All records will be clearly identifiable. Contractor will allow a
representative of City during normal business hours to examine, audit, and make
transcripts or copies of records and any other documents created pursuant to this
Agreement. Contractor will allow inspection of all work, data, documents, proceedings,
and activities related to the Agreement for a period of three (3) years from the date of
final payment under this Agreement.
13. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors
pursuant to this Agreement is the property of City. In the event this Agreement is
terminated, all work product produced by Contractor or its agents, employees and
subcontractors pursuant to this Agreement will be delivered at once to City. Contractor
will have the right to make one (1) copy of the work product for Contractor's records.
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14. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in City
and Contractor relinquishes all claims to the copyrights in favor of City.
15. NOTICES
The name of the persons who are authorized to give written notices or to receive written
notice on behalf of City and on behalf of Contractor under this Agreement.
For City: For Contractor:
Name Gary Hornby Name Debra J. Wilson
Title System Administrator II Title Accounting Manager
Department IT Address 8447 Miramar Mall
City of Carlsbad San Diego CA 92121
/
Address 1635 Faraday Phone No. 858-646-4624
Phone No. 760-602-2479
Each party will notify the other immediately of any changes of address that would
require any notice or delivery to be directed to another address.
16. CONFLICT OF INTEREST
City will evaluate Contractor's duties pursuant to this Agreement to determine whether
disclosure under the Political Reform Act and City's Conflict of Interest Code is required
of Contractor or any of Contractor's employees, agents, or subcontractors. Should it be
determined that disclosure is required, Contractor or Contractor's affected employees,
agents, or subcontractors will complete and file with the City Clerk those schedules
specified by City and contained in the Statement of Economic Interests Form 700.
Contractor, for Contractor and on behalf of Contractor's agents, employees,
subcontractors and consultants warrants that by execution of this Agreement, that they
have no interest, present or contemplated, in the projects affected by this Agreement.
Contractor further warrants that neither Contractor, nor Contractor's agents, employees,
subcontractors and consultants have any ancillary real property, business interests or
income that will be affected by this Agreement or, alternatively, that Contractor will file
with the City an affidavit disclosing this interest.
17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and
regulations which in any manner affect those employed by Contractor, or in any way
affect the performance of the Services by Contractor. Contractor will at all times observe
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and comply with these laws, ordinances, and regulations and will be responsible for the
compliance of Contractor's services with all applicable laws, ordinances and regulations.
Contractor will be aware of the requirements of the Immigration Reform and Control Act
of 1986 and will comply with those requirements, including, but not limited to, verifying
the eligibility for employment of all agents, employees, subcontractors and consultants
that the services required by this Agreement.
18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations
prohibiting discrimination and harassment.
19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following
procedure will be used to resolve any questions of fact or interpretation not otherwise
settled by agreement between the parties. Representatives of Contractor or City will
reduce such questions, and their respective views, to writing. A copy of such
documented dispute will be forwarded to both parties involved along with recommended
methods of resolution, which would be of benefit to both parties. The representative
receiving the letter will reply to the letter along with a recommended method of
resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory
to the aggrieved party, a letter outlining the disputes will be forwarded to the City
Manager. The City Manager will consider the facts and solutions recommended by each
party and may then opt to direct a solution to the problem. In such cases, the action of
the City Manager will be binding upon the parties involved, although nothing in this
procedure will prohibit the parties from seeking remedies available to them at law.
20. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services,
City may terminate this Agreement for nonperformance by notifying Contractor by
certified mail of the termination. If City decides to abandon or indefinitely postpone the
work or services contemplated by this Agreement, City may terminate this Agreement
upon written notice to Contractor. Upon notification of termination, Contractor has five
(5) business days to deliver any documents owned by City and all work in progress to
City address contained in this Agreement. City will make a determination of fact based
upon the work product delivered to City and of the percentage of work that Contractor
has performed which is usable and of worth to City in having the Agreement completed.
Based upon that finding City will determine the final payment of the Agreement.
Either party upon tendering thirty (30) days written notice to the other party may
terminate this Agreement. In this event and upon request of City, Contractor will
assemble the work product and put it in order for proper filing and closing and deliver it
to City. Contractor will be paid for work performed to the termination date; however, the
total will not exceed the lump sum fee payable under this Agreement. City will make the
final determination as to the portions of tasks completed and the compensation to be
made.
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21. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or
person, other than a bona fide employee working for Contractor, to solicit or secure this
Agreement, and that Contractor has not paid or agreed to pay any company or person,
other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift,
or any other consideration contingent upon, or resulting from, the award or making of
this Agreement. For breach or violation of this warranty, City will have the right to annul
this Agreement without liability, or, in its discretion, to deduct from the Agreement price
or consideration, or otherwise recover, the full amount of the fee, commission,
percentage, brokerage fees, gift, or contingent fee.
22. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to
City must be asserted as part of the Agreement process as set forth in this Agreement
and not in anticipation of litigation or in conjunction with litigation. Contractor
acknowledges that if a false claim is submitted to City, it may be considered fraud and
Contractor may be subject to criminal prosecution. Contractor acknowledges that
California Government Code sections 12650 et seq.. the False Claims Act applies to
this Agreement and, provides for civil penalties where a person knowingly submits a
false claim to a public entity. These provisions include false claims made with deliberate
ignorance of the false information or in reckless disregard of the truth or falsity of
information. If City seeks to recover penalties pursuant to the False Claims Act, it is
entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges
that the filing of a false claim may subject Contractor to an administrative debarment
proceeding as the result of which Contractor may be prevented to act as a Contractor
on any public work or improvement for a period of up to five (5) years. Contractor
acknowledges debarment by another jurisdiction is grounds for City to terminate this
Agreement.
23. JURISDICTIONS AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of
enforcing a right or rights provided for by this Agreement will be tried in a court of
competent jurisdiction in the County of San Diego, State of California, and the parties
waive all provisions of law providing for a change of venue in these proceedings to any
other county.
24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and
Contractor and their respective successors. Neither this Agreement or any part of it nor
any monies due or to become due under it may be assigned by Contractor without the
prior consent of City, which shall not be unreasonably withheld.
25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated
by it, along with the purchase order for this Agreement and its provisions, embody the
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8
entire Agreement and understanding between the parties relating to the subject matter
of it. In case of conflict, the terms of the Agreement supersede the purchase order.
Neither this Agreement nor any of its provisions may be amended, modified, waived or
discharged except in a writing signed by both parties.
26. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf
of Contractor each represent and warrant that they have the legal power, right and
actual authority to bind Contractor to the terms and conditions of this Agreement.
CONTRACT'CITY OF CARLSBAD, a municipal
corporatio \Galifornia
*By:
(sign
Steven Handelman / President
(print name/title)
shandelman@atelcommunications.com
(e-mail address)
**By:
(sign here)
(print name/title)
ATTEST:
OL
LORRAINE M. WOOD
City Clerk
(e-mail address) '''//in
If required by City, proper notarial acknowledgment of execution by contractor
must be attached. If a Corporation. Agreement must be signed by one corporate
officer from each of the following two groups.
*Group A.
Chairman,
President, or
Vice-President
**Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or
assistant secretary under corporate seal empowering the officer(s) signing to bind the
corporation.
APPROVED AS TO FORM:
, City Attorney
Deputy City Attorney
City Attorney Approved Version #11.28.06
"Exhibit A"
City of Carlsbad
Scope of Work- Fire Station 6
Project: Fire Station 6 relocation, at 7201 Rancho Santa Fe Road, Carlsbad, CA 92008
Description
ATEL Communications, Inc. will be relocating an NEC DRU (Digital Remote Unit) at the Fire
Station 6 located at 7201 Rancho Santa Fe Road, Carlsbad, CA 92008.
• ATEL will be installing a DRU link to the NEC 2400 located at 2650 Orion Way for
interoffice calls and voicemail access.
• ATEL will be relocating the DRU and telephones from the existing Fire Station 6 to the
New Fire Station 6.
• ATEL will install Adtran ACE CSU's at Safety Center and new Fire Station 6.
• The City of Carlsbad will be responsible for all programming on the AVST voicemail
system.
• ATEL will use customer's existing Cat 6 cabling.
• Included in the installation of the four phones, ATEL will be installing designation
templates (desi's).
Quantity Part Description
2 Adtran CSU (required for T-l) Ace w/ power supply
4 NEC DTP 16D-1 BK Dterm Telephones
1 NEC Cordless Dterm Telephone
A!
ATEL Representative
Steven Handelman
QUOTE
Account* 8347 Reference* 2175
City of Carlsbad - Fire Station #6
3131 Levante St., Info Tech Department, Carlsbad, CA 92008
Tel: (760) 602-2487
Customer Representative
Gary Hornby
Move Existing NEC DRU and 6 phones to new Fire Station 6 (revl)
QTY DESCRIPTION
1 Id extension ports and uninstall at old locations
1 Install and tail to CPE patch panel
1 Bring on line and test
1 Connect and place 6 phones
1 Cable Tail MM 25'1 SOD
4 NEC DTERM III TEL-16 BUTTON SPK LCD
1 NEC Series "i" Cordless Digital Phone 900 MHhz 6-hrs Talk/4-days Standby, Charger, Belt Clip, Wall Mount
2 Customer Service Unit (Required for T-1)
Installation and Configuration
The DTP-16D phones are refurbished but are guaranteed as new for one-year.
Net Sale Price
7.75% Sales Tax
Total Sale
$3,406.55 Good Through Thursday, July 3, 2008
$180.62
$3,587.17
ATEL Standard Terms and Conditions apply. Customer is aware of those Terms and Conditions and agrees to them. Date:
ATEL Communications, Inc. City of Carlsbad - Fire Station #6
By By
Signature Signature
Reference# 2175 Tuesday, June 3, 2008 12:00:00 am Page 1 of 1
8447 Miramar Mall, San Diego, CA 92121 - 2522
Tel: (858) 646-4600 Fax: (858) 646-4680
Service Direct: (858) 646-4646
www.atelcommunications.com
saies@atelcommunications com
service@atelcommunications, com
COMMUNICATIONS PROPOSAL
FOR
City of Carlsbad - Fire Station #6
The content of this document is proprietary and confidential information of ATEL Communications, Inc.
It shall not be disclosed without the prior written consent of ATEL Communications, Inc.
Reference* 2175 Tuesday, June 3,2008 12:00:00 am Page 1 of 5
8447 Miramar Mall, San Diego, CA 92121 - 2522
Tel: (858) 646-4600 Fax: (858) 646-4680
Service Direct: (858) 646-4646
www. atelcommunications com
saies@atelcommunications.com
service@atelcommunications.com
i\M
June 05, 2008
City of Carlsbad - Fire Station #6
3131 Levante St., Info Tech Department, Carlsbad, CA 92008
Tel: (760) 602-2487
Dear Gary Hornby:
Thank you for the opportunity to propose a telecommunications system solution designed specifically for
your organization.
At ATEL Communications, we recognize that a telecommunications system is a mission-critical
technology. For this reason, we are committed to providing the highest level of quality, service and
support.
After determining your specific requirements, ATEL is proud to recommend the
Move Existing NEC DRU and 6 phones to new Fire Station 6 (revl)
We realize that the decision to acquire a new telecommunications system is not an easy one. We
respect the seriousness of this endeavor. By choosing ATEL Communications you can feel confident
that you have made an excellent choice. One that will provide a significant return on the investment for
many years to come.
We look forward to an early endorsement of our recommendation, a smooth implementation and superb
future service.
Sincerely,
Steven Handelman
Enclosure
Reference* 2175 Tuesday, June 3,2008 12:00:00 am Page 2 of 5
8447 Miramar Mall, San Diego, CA 92121 - 2522
Tel: (858) 646-4600 Fax: (858) 646-4680
Service Direct: (858) 646-4646
www.atelcommunications.com
sales@atelcommunications.com
service@atelcommunications.com
ATICOJMN&I&BtC.
ATEL Representative
Steven Handelman
SYSTEM ORDER AGREEMENT
Account* 8347 Reference* 2175 Customer Representative
Gary Hornby
City of Carlsbad - Fire Station #6
3131 Levante St., Info Tech Department, Carlsbad, CA 92008
Tel: (760) 602-2487
Move Existing NEC DRU and 6 phones to new Fire Station 6 (revl)
QTY DESCRIPTION
1 Id extension ports and uninstall at old locations
1 Install and tail to CPE patch panel
1 Bring on line and test
1 Connect and place 6 phones
1 Cable Tail MM 25'180D
4 NEC DTERM III TEL-16 BUTTON SPK LCD
1 NEC Series "i" Cordless Digital Phone 900 MHhz 6-hrs Talk/4-days Standby, Charger, Belt Clip, Wall Mount
2 Customer Service Unit (Required for T-1)
Installation and Configuration
The DTP-16D phones are refurbished but are guaranteed as new for one-year.
UNIT PRICE EXT. PRICE
$50.29
$136.00
$536.26
$600.00
$50.29
$544.00
$536.26
$1,200.00
$1,076.00
Reference* 2175 Tuesday, June 3,2008 12:00:00 am Page 3 of 5
8447 Miramar Mall, San Diego, CA 92121 - 2522
Tel: (858) 646-4600 Fax: (858) 646-4680
Service Direct: (858) 646-4646
wwwateicommunications.com
saies@atelcommunications.com
service@atelcommunications.com
INVESTMENT SUMMARY
Net Sale Price
7.75% Sales Tax
Total Sale
$3,406.55 Good Through Thursday, July 3, 2008
$180.62
$3,587.17
50% Due Upon Acceptance
30% Due Upon Equipment Delivery
20% Due Upon Cutover
Terms
$1,793.59
$1,076.15
$717.43
Reference* 2175 Tuesday, June 3,2008 12:00:00 am Page 4 of 5
8447 Miramar Mali, San Diego, CA 92121 - 2522
Tel: (858) 646-4600 Fax: (858) 646-4680
Service Direct: (858) 646-4646
www.atelcommunications.com
sales@atelcommunications.com
service@atelcommunications.com
This System Order Agreement is made and entered into between Atel Communications Inc., 8447 Miramar Mall, San Diego, CA 9212-2522, hereinafter referred to as "AC"
and the "CUSTOMER", whose name appears on the top of the first page of this agreement.
In consideration of the mutual agreement herein contained, AC agree' to sell to Customer and Customer agree' to buy from AC, a Communications System in accordance wi
the following terms and conditions:
1. The exact itemized configuration of the system is described in the agreement The installation of the system includes miscellaneous materials (such as cables and
jacks) and labor necessary to complete the installation. The equipment remains the property of AC until it is paid in full.
2. Subject to the provisions of this paragraph, AC warrants from the cutover date for a period specified in this document, that at the time of such cutover, the equipment w
be free from defects in material and covered by this warranty if they should appear within the prescribed paod. AC shall have the option of repairing or replacing the
equipment at its expense. Such repair or replacement shall be customer's exclusive remedy for breach of warranty or for negligence. This warranty does not extend tc
any equipment which has been (a) subject to misuse, neglect, accident or abuse; (b) installed, wired, repaired, or altered by anyone other than AC without AC'S express
and prior approval; (c) improperly installed by someone other than AC, its subcontractors or affiliates, (d) used isolation of the instructions furnished by AC. AC SHALL
NOT BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR LOSS, DAMAGE OR EXPENSE (WHETHER OR NOT CAUSED BY OR
RESULTING FROM AC'S NEGLIGENCE) DIRECTLY OR INDIRECTLY ARISING FROM THE USE OF THE BUIPMENT SOLD HEREUNDER EITHER
SEPARATELY OR IN COMBINATION WITH ANY OTHER EQUIPMENT OR FROM ANY CAUSE. THE ABOVE WARRANTY SHALL BE IN LIEU OF AND EXCLUDES
ALL OTHER EXPRESSED OR IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS OR OTHERWISE. The warranty oredditional equipment purchased from
AC shall be coterminous with original purchase / warranty.
Without limiting the generality of the foregoing, AC shall not be liable for any claims of any kind whatsoever, as to the equipment delivered or for nondelivery
equipment, whether or not based on negligence.
3. AC SHALL NOT be responsible for loss or damage to equipment installed pursuant to this Agreement for any reason whatsoever. Risk of loss shall pass to Customer
as soon as the equipment is delivered by AC b the Customer. So long as any financing hereunder remains outstanding, Customer shall insure the equipment against
fire, theft, and other perils, for its full value, naming Customer and AC, or its assignee', as Insured's, shall have a Certificate of Insance sent to AC.
4. AC shall relocate any part of the system in accordance with AC'S standard rates in effect at the time of change.
5. This agreement may be assigned by AC in whole or in part and AC may freely subcontract any or all of the work hereunder. Theustomer may not assign this
agreement in whole or in part without obtaining the prior written consent of AC, which consent shall not be unreasonably withheld.
6. Customer shall pay any municipal, state or federal sales, excise or other taxes, which may be Wed upon the sale, transfer of ownership or installation of the equipment
and will indemnify AC against any such taxes.
7. Customer shall be responsible for obtaining trunk lines and interconnecting devices from the serving telephone company. If requested^ will use reasonable efforts to
assist Customer.
8. If any Customer's obligations to AC be not paid promptly when due, or if customer becomes insolvent or ceases doing business as a going concern, or if a petition of
bankruptcy or for an arrangement is filed by or against Customer, or if any of property of Customer be attached and such an attachment is not removed within 30 days,
or if a receiver be appointed for Customer, or if Customer breaches any provision hereof, including a failure to pay any installrrrat within 10 days of receipt of notice
from AC or its assignee that any payment hereunder is overdue, Customer shall be in default. Upon Customer's default, AC shall have the right and remedies of a
secured party under the Uniform Commercial Code. AC shallbe entitled to interest at a rate of 1.50% per month as long as any part of the total unpaid balance remains
outstanding.
As long as any part of the contract price remains outstanding, Customer shall furnish such financial statements as may reasonably* requested by Seller and the
security interest granted hereby shall continue effective, and title of the equipment shall remain with Seller irrespective of any taking and redelivery of collateral to
Customer until all amounts secured hereby are fully paid If default continues for five (5) days after written or telegraphic notice thereof by Seller, Seller may enter upon
the premises of Customer, and render the equipment unusable or remove the equipment. If Customer is in default to AC then all AC warrar* described in paragraph
three (3) are waived.
9. AC shall use 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 cutover dates are appoximate and AC shall under no circumstances be liable from damages, special, consequential or otherwise, for delays or failure
to give notice of delay, whether or not caused by or resulting from AC'S negligence.
intended. Delays by the telephone company in making trunk lines available, or minor omissions in availability of certain features cfailures, which do not materially
affect the functioning of the entire system, shall not affect the date.
11. The property covered herein shall remain personal property, not become part of the freehold, regardless of the manner of affixation.
12. This System order Agreement shall be governed by and construed in accordance with the laws of the State of California.
13. Customer acknowledges that a breach or repudiation of this agreement will result in damages to AC. Therefore, in the event that the customer breaches (repudiates
this agreement before AC commences the installation of any of the equipment specified in this document, then the Customer agrees that any sums paid by Customer t
AC under pricing instructions shall not be liquidated damages but shall constitutes fund, to pay the actual damages to AC, including loss of profit. AC shall be under no
obligation to return such funds to Customer, except to the extent that they exceed AC'S actual damages. Customer further agree' that in the event he breaches or
repudiates this agreement after AC has commenced the installation of the equipment under this agreement, then any sums paid by Customer to AC under pricing
instructions shall not be liquidated damages but shall constitute a fund, to pay the actual damages of ACincluding loss of profit. AC shall be under no obligation to
return such funds to Customer, except to the extent that they exceed AC'S actual damages.
14. CUSTOMER, HAVING CAREFULLY READ ALL PROVISIONS OF THIS AGREEMENT, ACKNOWLEDGES RECEIPT OF A COPY OF THISW3REEMENT WHICH IS
THE FINAL EXPRESSION OF THE AGREEMENT OF THE PARTIES, AND THE COMPLETE AND EXCLUSIVE STATEMENT OF THE TERMS AGREED UPON, ALL
PRIOR AGREEMENTS AND UNDERSTANDINGS BEING MERGED HEREIN, AND THAT THERE ARE NO REPRESENTATIONS, WARRANTIES OR
STIPULATIONS, EITHER ORAL OR WRITTEN, NOT HEREIN CONTAINED.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be property executed intending that it shall be legally binding upon them and their respectn
heirs, estates, successors and assigns.
Desired Cutover Date:Date Of Contract:
ATEL COMMUNICATIONS INC.CUSTOMER
By
Signature
Title:
By
Signature
Title:
Reference* 2175 Tuesday, June 3,2008 12:00:00 am Page 5 of 5
8447 Miramar Mali, San Diego, CA 92121 - 2522
Tel: (858) 646-4600 Fax: (858) 646-4680
Service Direct: (858) 646-4646
www.atelcommunications.com
sales@atelcommunications.com
service@atelcommunications.com