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Home My WebLink About1996-142 1 RESOLUTION NO. 96-142 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING AN AGREEMENT BETWEEN THE CITY OF SAN 3 BERNARDINO AND OUR TOWN RELATING TO THE RETAIL SALE OF CITY SURPLUS GOODS. 4 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 5 OF SAN BERNARDINO AS FOLLOWS: 6 SECTION 1. The Mayor is hereby authorized and directed to execute, on behalf of the City 7 of San Bernardino, an Agreement with Our Town which is attached hereto as Exhibit "A" and 8 incorporated herein by reference as though fully set forth at length. 9 SECTION 2. The authorization to execute the above-referenced Agreement is rescinded 10 if the parties to the Agreement fail to execute it within sixty (60) days of the passage of this Resolution. 11 1// 12 1// 13 1// 14 1// 15 1// 16 1// 17 1// 18 1// 19 1// 20 1// 21 1// 22 1// 23 1// 24 /1/ 25 1// 26 /1/ 27 1// 28 1// 1 ~ RES 96-142 , 1 2 RESOLUTION... APPROVING AN AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND OUR TOWN RELATING TO THE RETAIL SALE OF CITY SURPLUS 3 GOODS. 4 5 1 HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a regularmeeting thereof, held on the 20th day 6 of May , 1996, by the following vote, to wit: 7 Council Members: AYES NAYS ABSTAIN ABSENT 8 NEGRETE x 9 CURLIN x 10 ARIAS x 11 OBERHELMAN x 12 DEVLIN x 13 ANDERSON x 14 MILLER x 15 18 ~0ivJ.J~~ fu. \Arm cIJ, Q... rWl(lur/f;U -0' ~City Clerk The foregoing Resolution is hereby approved this33~ay 16 17 19 of May ,1996. 20 ~1}jiu~ 21 22 23 Tom Minor, Mayor City of San Bernardino Approved as to form 24 and legal content: 25 JAMES F. PENMAN, City Attorney 261 .~ 27 By ~7. ,~ 28 rJ 2 ,- RES 96-142 96-142 1 AGREEMENT 2 THIS AGREEMENT is made and entered this .4 day of j" 10 e.. , 1996, by and 3 between the City of San Bernardino, a Charter City of the State of California ("CITY") and Vivian and 4 Ed Foster, doing business as Our Town ("OUR TOWN") with respect to the following facts: 5 WHEREAS, OUR TOWN desires to market surplus goods of the CITY in its retail store to 6 be located within the Carousel Mall in the City of San Bernardino. 7 WHEREAS, the parties hereto wish to enter into an Agreement pursuant to which the CITY 8 will make available to OUR TOWN surplus goods as permitted by the San Bernardino Municipal Code. 9 WHEREAS, OUR TOWN desires to utilize the CITY Seal or insignia on merchandise to be 10 sold within its retail store within the Carousel Mall in the City of San Bernardino. 11 WHEREAS, the sale of surplus items relating to and connected to the CITY and the retail use 12 of the CITY Seal or insignia benefits the public by increasing public pride for the community as well 13 as promoting positive publicity for the CITY 14 NOW, THEREFORE, in consideration of the above premises and of the covenants and 15 representations herein contained, the parties covenant and represent as follows: 16 1. CITY agrees to allow OUR TOWN to obtain from the CITY, when available, surplus 17 goods with an estimated value of$I,OOO or less as allowed under San Bernardino Municipal Code 18 Section 3.04.105. Parties further agree that the CITY has the right to withhold certain surplus items 19 that may have some historical value to the CITY 20 2. OUR TOWN agrees that all surplus goods obtained from the CITY will be sold in its 21 retail store located in the Carousel Mall in the City of San Bernardino at a price predetermined by OUR 22 TOWN and the CITY It is further agreed that the predetermined price may be discounted by OUR 23 TOWN from time to time in keeping with retail practices. Any items not sold within a reasonable time 24 shall be returned to the Purchasing Agent for the CITY for disposal according to normal procedures 25 as provided in the applicable sections of the San Bernardino Municipal Code. 26 3. OUR TOWN agrees to sell CITY's surplus goods to the public "as is" and "with all 27 faults," along with disclaimers as to warranties of merchantability and fitness for a particular purpose. 28 III 1 EXHIBIT" A" RES 96-142 1 4. OUR TOWN further agrees to post a sign in its retail store informing the public that 2 OUR TOWN is not owned by, operated by, or affiliated with the CITY 3 5. The risk of loss or damage to the surplus goods shall pass to OUR TOWN upon its 4 receipt of physical possession of such goods from the CITY and shall remain with OUR TOWN until 5 the goods are sold or returned to the physical possession of the CITY 6 6. The parties agree that OUR TOWN will retain forty percent (40%) of all amounts 7 received in the marketing and sale of CITY surplus goods. The remaining sixty percent (60%) of the 8 proceeds from the sale of CITY surplus shall be the property of, and held in trust for, the CITY and 9 shall be remitted to the CITY by the 5th of each month, not to exceed thirty (30) calendar days from 10 the sale of such goods, by check drawn on an account established in a bank located within the CITY 11 7. OUR TOWN shall maintain records, in such form and in such detail as CITY shall 12 request, with respect to I) CITY surplus goods received, 2) sales made of such surplus goods, and 3) 13 inventories from time to time on hand. OUR TOWN shall furnish CITY from time to time as requested 14 by CITY, detailed reports concerning such receipts, sales and inventories and CITY shall have the right 15 to inspect and audit the records, accounts and inventories of CITY surplus goods in the possession of 16 OUR TOWN at any time during the term of the Agreement or within ninety (90) days after termination 17 thereof 18 8. OUR TOWN shall submit payments of the CITY's percentage of the proceeds received 19 by OUR TOWN by the sale of CITY surplus goods, as well as any notices to the CITY under this 20 Agreement, by personal service or by depositing with the United States Postal Service, postage prepaid RES 96-142 1 9. Parties further agree that there are no oral written understandings, agreements or 2 representations, express or implied, not specified herein respecting this agreement, and this instrument 3 contains the entire agreement between the parties, and is binding on both parties. Parties further agree 4 that this Agreement may only be amended or modified by a formal amendment in writing approved by 5 the Mayor and Common Council of the City of San Bernardino 6 10. OUR TOWN agrees to defend, indemnity, save and hold CITY, its officers, agents and 7 employees harmless from any claims or suits that may be brought by third persons on account of 8 personal injury, death, or damage to property, or a property or business or personal interest, arising 9 from its performance under this agreement 10 11. In any action at law or in equity by OUR TOWN or CITY for recovery of any sum due 11 under this agreement, or to enforce any of the terms, covenants or conditions contained herein, the 12 prevailing party shall be entitled to reasonable attorney's fees in addition to costs and necessary 13 disbursements incurred in such action. 14 12. The number of original texts of the Agreement shall be equal to the number of the 15 parties hereto, one text being retained by each party. In the event of a conflict between the two original 16 texts, the copy maintained by the City Clerk of the City of San Bernardino shall control 17 13. If any portion of the Agreement is held to be invalid by a court oflaw, such provisions 18 shall be considered severable, and the remainder of this Agreement or any provision hereof shall not 19 be affected. 20 14. Each party's performance hereunder shall comply with all applicable laws of the United 21 States of America, the State of California, and the CITY This Agreement shall be enforced and 22 interpreted under the laws of the State of California and the CITY and any action brought to enforce 23 this Agreement or pursuant thereto shall be brought in the Superior Court of the County of San 24 Bernardino or in a competent Municipal Court located in said county. 25 15. Except for excusable delays, if any party fails to perform, in whole or in part, any 26 promise, covenant, or agreement set forth herein, or should any representation made by it be untrue, 27 an aggrieved party may avail itself of all rights and remedies, at law or equity, in the courts oflaw. 28 III 3 RES 96-142 1 16. The provisions of this Agreement shall be binding upon and inure to the benefit of the 2 heirs, executors, administrators, successors and assigns of the parties hereto. OUR TOWN shall not 3 assign, transfer or in any manner hypothecate any or all of its rights and obligations under this 4 agreement without the prior written approval and consent of the Mayor and Common Council of the 5 City of San Bernardino. 6 17. The terms of this Agreement shall commence on its effective date. The effective date 7 is the date this Agreement is approved by the Mayor and Common Council of the City of San 8 Bernardino as indicated on the first page. 9 18. Parties to the agreement shall have the right to terminate this Agreement, for any 10 reason, at any time, by giving thirty (30) days written notice 11 12 IN WITNESS WHEREOF, the parties have executed this agreement, on the day and date first CITY OF SAN BERNARDINO ~~YVu~ 10m Minor, Mayor ATTEST: ~i~