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HomeMy WebLinkAbout1992-425 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. g7.-47.'i RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING AND DIRECTING THE EXECUTION OF TWO AGREEMENTS BETWEEN CALIFORNIA SPECIAL OYMPICS, INC. AND THE CITY OF SAN BERNARDINO RELATING TO THE GREATER SAN BERNARDINO AREA SPECIAL OLYMPICS PROGRAM. SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed to execute for and on behalf of said city two agreements with California Special Olympics, Inc. copies of which agreements are attached hereto as Exhibits "A" and "B" and are incorporated herein by reference as though fully set forth at length. SECTION 2. The authorization to execute the above referenced agreement is rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage of this resolution. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the city of San Bernardino at a meeting thereof, held on the reaular 16th day of November , 1992, by the following vote to wit: 9/29/92 -1- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . RESOLUTION RE: AUTHORIZING EXECUTION OF TWO AGREEMENTS WITH CALIFORNIA SPECIAL OLYMPICS, INC. RELATING TO THE GREATER SAN BERNARDINO AREA SPECIAL OLYMPICS PROGRAM. COUNCIL MEMBERS AYES NAYS ABSTAIN ABSENT ESTRADA X REILLY ----1L HERNANDEZ ----1L MAUDSLEY ----1L MINOR ----1L POPE-LUDLUM ---1L MILLER ---<L (r;J~ ~~ ~el Clark, Cl.ty Clerk The foregoing is hereby approved this V:~ \-~~, -"\\",c,,<,,,\\:,<<'-_ , 1992. " Approved as to form and legal content: James F. Penman CitYnAttorney /) BY.1""'? 3 V~Xv'" / . 9/29/92 -2- Res 92-425 SPONSORING AGENCY AGREEMENT TIUS AGREEMENT is made and entered into as of this ~(:.l"':.\0 day of \-::.\"'~ , 1992 by and between CALIFORNIA SPECiAL OLYMPICS, INC., a California non- profit corporation ("Corporation"), and The City of San Bernardino Parks, Recreation and Community Services ("Agent"). RECITALS WHEREAS, Corporation has been granted the sole and exclusive right in the State of California to operate the activities commonly referred to as the "Special Olympics"; and WHEREAS, Corporation desires that Agent be the exclusive entity responsible for promoting, managing and operating the Special Olympics in The Greater San Bernardino, California Special Olympics ("Area"), which Area is designated on the map attached hereto as Exhibit A; and WHEREAS, Corporation and Agent both desire that this Agreement supersede and replace in its entirety, as of the date first above written, any agreement, whether written or oral, previously entered into by Corporation and Agent concerning, regarding or relating to the promoting, managing or operating of the Special Olympics in the Area. AGREEMENT NOW, THEREFORE, in consideration of the foregoing Recitals and of the promises and covenants contained herein, the parties hereto agree as follows: 1. TERM The term of this Agreement shall commence on the date first above written and shall expire on June 30, 1993, or at such earlier time as provided for by the provisions contained herein. In the event neither party gives notice of termination at least thirty (30) days prior to the expiration of any term of this Agreement, this Agreement shall be deemed renewed for an additional one year term. 2. GRANT OF RIGHTS (a) Corporation hereby grants Agent the exclusive right to promote, manage and operate the Special Olympics in the Area. If Agent exercises such rights in any manner that is objectionable to Corporation, then Agent shall cease such action upon receipt of written notice from Corporation. (b) In connection with the rights granted in subparagraph (a) above, Corporation hereby grants to Agent the right to use, without compensation, any and all names, trademarks, logos or other similar identifications or any part thereof which are depicted, described and/or represented on Exhibit B ("Corporation Marks") for the purpose of promoting, managing and operating the Special Olympics in the Area. Prior to using a Corporation Mark, Agent must obtain the written approval of Corporation, which approval may be withheld in Corporation's sole and absolute discretion. (c) It is the intention of Corporation and Agent that outside the Area, Agent shall have no rights with respect to the Special Olympics. C:\RMT\SPECIAL\DOCS\AGENCY.AG2 10/12/92 10:13am 3. COMPENSATION (a) In consideration of the rights granted by Corporation, Agent hereby agrees to promote, manage and operate Special Olympics in the Area as further described in Section 4 below. (b) It is understood by both Corporation and Agent that neither party shall pay any sums to the other party for the rights granted herein or the obligations assumed hereunder. 4. AGENCY DUTIES AND RESPONSIBILITIES (a) As the exclusive promoter, manager and operator of Special Olympics in the Area, Agent agrees to do the following: (i) appoint an Area Director and other needed staff members that meet with Corporation's approval, which approval may be withheld in Corporation's sole and absolute discretion. [Prior to assuming the position of Area Director, the person selected by Agent and approved by Corporation must enter into the Management Services Agreement attached hereto as Exhibit C and sign the Employee's Declaration attached hereto as Exhibit D. (This sentence is to be inserted only if the Area Director is paid with Special Olympics Funds)]; (ii) arrange and schedule events, activities and programs on behalf of Corporation and the Special Olympics within the Area including, but not limited to, Athletic Competitions, Public Education, Volunteer Services, Outreach, Family Involvement, Training and l'undraisers ("Events'). Agent shall submit to Corporation for Corporation's written approval, a schedule of the Events that Agent intends to conduct during the term of this Agreement ('Schedule'). Agent agrees that Corporation, in its sole and absolute discretion, shall have the final decision regarding all aspects of any and all Events; (iii) attempt to secure resources and/or funds on behalf of Corporation and the Special Olympics from donors located within the Area. Agent shall not enter into any sponsorship or other licensing arrangement in excess of $2,000 without first obtaining Corporation's written consent, which consent may be withheld in Corporation's reasonable discretion; and (Iv) arrange publicity for the Events. (b) Agent shall submit to Corporation a written budget describing in detail all expected expenditures and revenues that Agent believes it will incur or acquire in discharging its obligations under this Agreement. Agent agrees that Corporation, in its sole and absolute discretion, shall have the final decision regarding all aspects of the budget. (c) Agent agrees to provide, at a minimum, the financial and other contributions set forth on Exhibit E in order to support and fund the Events listed on the Schedule. (d) Agent agrees to deposit all funds and revenues acquired, raised or collected in the name of or on behalf of the Special Olympics or Corporation in a bank account labelled Special Olympics Trust ('Area Account'). It is the intention of the parties that both Corporation and Agent have access to the Area Account. Access for either Corporation or Agent shall be by standard procedures established by Agent as shown on Exhibit F. These procedures will require administrative review and approval of all transactions. C:\RMT\SPECIAL\DOCS\AGENCY.AG2 2 10/12/92 10:13am (e) Agent agrees to maintain complete and accurate books of account and records of the revenues received and expenses incurred with respect to Special Olympics and Corporation. On or before the fifteenth day of each month, Agency will provide Corporation with a complete written financial report of the previous month's transactions. Corporation, or a certified public accountant acting on behalf of Corporation, may examine the books and records during reasonable hours at Agent's principal place of business upon reasonable notice by Corporation to Agent. 5. INDEMNIFICATION Agent hereby agrees to indemnify and hold harmless Corporation and its agents, officers, directors, employees, affiliates, licensees and successors from and against any and all liability, damages, costs, expense (including reasonable attorney's fees) occasioned by or arising out of any negligent act or omission in the performance of or failure to perform any activities hereunder or in relation to this Agreement by Agent. Corporation agrees to give Agent notice of any action to which the foregoing indemnity applies, and Agent may participate in the defense of same, at Agent's expense, through counsel of its choosing; provided, however, the final control and disposition of same (by settlement, compromise, or otherwise) shall remain with Corporation. Corporation hereby agrees to indemnify and hold harrnless Agent, officers, directors, employees, affiliates, licensees and successors from and against any and all liability, damages, costs, expense (including reasonable attorney's fees) occasioned by or arising out of any negligent act or omission in the performance of or failure to perform any activities hereunder or in relation to this Agreement by Corporation. Agent agrees to give notice of any action to which the foregoing indemnity applies, and Corporation may participate in the defense of same, at Corporation expense, through counsel of its choosing. Final control and disposition of same (by settlement, compromise, or otherwise) shall remain with Corporation. This Section 5 shall survive the termination of this Agreement. 6. DEFAULT Corporation shall have the right to terminate this Agreement with thirty (30) days written notice to Agent in case of a breach by Agent of any of the terms of this Agreement, provided that Agent does not remedy any breach that is capable of being remedied within twenty-one (21) days of receipt of the written termination notice specifying the breach. Such termination shall be without prejudice to any rights or remedies Corporation may have against Agent which may have accrued up to the date of termination in accordance with the provisions of this Agreement. 7. CONFIDENTIAL INFORMATION Employer shall reimburse Manager for all reasonable expenses incurred in the performance of the duties required hereunder. Agent shall not, without Corporation's prior written consent, either during or after the term of this Agreement, directly or indirectly, disclose to any third person any such confidential information. This Section 7 shall survive the termination of this agreement. Manager on behalf of Employer, shall provide a detailed, written expense report, consistent with the Corporation's policies and practices (as modified from time to time by the Corporation), to the Director, Area Programs at the end of the month to which any expense is incurred and such report will not be accepted more that sixty (60) days following the end of such month. 8. MISCELLANEOUS (a) Notwithstanding anything contained herein to the contrary, neither party shall be liable to the other in damages because of any failure to perform hereunder caused by any cause beyond its control including, without limitation, fire, earthquake, flood, epidemic, explosion, casualty, C:\RMT\SPECIAL\DOCS\AGENCY.AG2 3 1D/12/92 10:13am riot, civil disturbance, act of a public enemy, embargo, war, act of God, any governmental ordinance or law or the issuance of any executive or judicial order. (b) Agent shall not have the right to assign, transfer or change any of its rights or obligations hereunder without first obtaining the written consent of Corporation, which consent may be withheld in Corporation's sole and absolute discretion. (c) The parties hereto agree that no officer, director, committee member, employee or other representative of Corporation or Agent shall incur any financial responsibility or liability whatsoever in connection with this Agreement. (d) All written notices given by either party to the other party hereunder shall be delivered in person, deposited in the United States mail or sent by telecopy as follows: Corporation: Agent: California Special Olympics, Inc. 501 Colorado Avenue, Suite 200 Santa Monica, California 90401 Attn: Executive Director Fax: (310) 458-1029 Greater San Bernardino Special Olympics 547 North Sierra Way San Bernardino, CA 92410 Attn: Patti Davis Fax: (714) 384-5467 or such other address as either party may designate in writing. Such notice shall be deemed given upon delivery, 3 days following deposit in the U.S. mail or upon receipt of electronic confirmation, as applicable. (e) Corporation and Agent agree to execute and deliver to the other party such further documents as either party may reasonably require to effectuate this Agreement. pI ~"} f J j I (I) This Agreement shall be governed by the laws of the State of California. In the event of any dispute arising between the parties, said dispute shall be referred to ,. .. ~ arbitration.} '9 f' conducted in Los A1)g~~ California according to the rules of the American Arbitration Association6" ~-~~ v.~' (g) No waiver by either party of any breach hereof shall be deemed a waiver of any preceding, continuing or succeeding breach of the same, or any other term hereof. (h) The determination that any provision of this Agreement is invalid or unenforceable shall not invalidate this Agreement, all of said provisions being inserted conditionally on their being considered legally valid, and this Agreement shall be construed and performed in all respects as if such invalid or unenforceable provision(s) were omitted. (i) The headings of the Sections of this Agreement have been inserted for convenience and reference only and shall not be construed or interpreted to restrict or modify any of the terms or provisions hereof. (j) This Agreement may be signed in one or more counterparts, each of which shall be deemed to be one and the same instrument. (k) This Agreement supersedes and cancels all prior negotiations and understandings between the parties and contains all of the term of the parties, No modification shall be valid unless in writing and executed by both parties. C:\RMT\SPECIAL\DOCS\AGENCY,AG2 4 10/12/92 10:13am IN WITNESS WIIEREOF, the parties hereto have cause this Agreement to be executed by their duly authorized officers as of the day and year first above written. CORPORATION: AGENT: California Special Olympics, Inc., a California nonprofit corporation City of San Bernardino Parks Recreation and Community Service artment By: /' '/ :-/'"lI/",,-./ ? C:\RHT\SPECIAL\DOCS\AGENCY.AG2 5 10/12/92 10: 13am EXIIIBIT A MAP - Boundaries, etc. J\- f"~'-;/ i -- ~ _ r. J~ i ! VI ( lJ i - V 0- -: · J ~ ~ I I.... ~ II P Q .-::: ~ . - ~, : I! -' = J' ~ ;~~ 8~1 . J ~ . .~,. - I ~ ~t~;'{' I ~ !I" ,,' fi. i ,; \;, ~ .<:':~( I~' i ~- ~ ~! .~ I I Rii!' ~ 81\ ~~/~l , J . Oil AID . a:., ~ .". ~ ~~ ~~~ ~f\~f ~- ~! 01 i n ~Io/ :;;"- ~~~ ,.~ * t t I:~!~ r"l,tlD' I: ~ ~ ~~ o i: . ! ~ .! ",r ~ ~ "if f f ",:3 fa ~ : R ~~'I o. = 4 > j 0 , S kC ~ / · I 1;, . I: fr;. ~~ I..: A. ~~ rJ'J - ., : I. "I := ~ ,= I /11 j~ ~ g- ) :rJ ,.!, ~ .. 8 oj i tJJl ~o ~. lit I ~ ;: i' ~ ,/ Q l '-J f"il~,l'l I ,....J . 0 ~~H'-i ,~A .r i ~"" i~ ~ !l1~' ~ t l. ~ ~1~~!~J~t~ >~ ~ .....,,~! ' t ~ 0 ~ z ~ ~ f i j' L~ ~U:/: ~~:!- {1 (~G .A;"'" w- ~'~ ~ f j ~.,; . "'J.-R ~ I ~ i \'2 f J ~). if1 ~f ~ ~'C: ~ 1i,,~ <lI f . -'j j 1I.c-: ~'tl q~~ '; . > 4 ~Ii" l:!.. ,~J::J~ ~. . I ~! J J ~ ~~l '..' -: ; II ~ .~ lJ,. ffi :I~ r'.J \!"- ~ ! ~..~ ; ~ !i ~'-{" ~~ '\9':~ i ; '\'::"''''' '- If ? ~ . ~ JIlt' '\ jJ,- ~.. l.J -;. ,r-ill 2H ~ , \ I',"" ,"" I ~ ;'81~ ~~. ~. '/ I '- ~~I C:\RMT\SPECIAL\DOCS\AGENCY.AG2 6 10/12/92 10:13am C:\RMT\SPECIAL\DOCS\AGENCY.AG2 EXHIBIT n CORPORATION MARKS 7 10/12/92 10:13am EXHIBIT C MANAGEMENT SERVICES AGREEMENT This Management Services Agreement (the "Agreement") is entered into this day of September 1, 1992 (the "Execution Date'), by and between California Special Olympics, Inc. (the "Corporation"), which is a California non-profit corporation; and The City or San Bernardino Parks, Recreation and Community Services (the "Employer'). RECITALS 1. The Corporation operates the activities of the Special Olympics in the State of California, and requires the performance of management services on an area basis. 2. Employer has in its employ an executive named Patti Davis ("Manager') who would be capable and willing to perform area management services for the Corporation. 3. Corporation desires to retain, and the Employer is willing to loan-out Manager, to serve as the Area Director for The Greater San Bernardino Area Special Olympics program of the Corporation. 4. At the same time, Manager and Employer wish to maintain Manager's status as a full-time employee of Employer. S. The parties desire to set forth the terms and conditions pursuant to which Manager will act as an Area Director for Corporation, while remaining employed solely by Employer. AGREEMENT NOW, lHEREFORE, in consideration of the foregoing recitals and mutual promises herein contained, the parties hereto agree as follows: 1. Position. Employer shall provide to Corporation the services of Manager to act as Area Director for The Greater San Bernardino Special Olympics Area program of the Corporation. In her capacity as Area Director, Manager shall report directly to the Director, Area Programs of the Corporation, as well as to the Employer. The parties agree that during the Term (as defined below) of specolym\mgmtserv.agt 08107192 9: 19... this Agreement, Manager shall devote not less than forty (40) hours per week of her work time to the performance of her duties as Area Director. 2. Duties and Resoonsibilities. Manager's duties and responsibilities as Area Director shall include, but shall not be limited to, reporting to the Director, (South) Area Programs; directing all programs in the designated geographic area; selecting and directing an Area Committee which includes the program components of Fundraising, Finance, Training, Competition, Volunteer Services, Family Involvement, Outreach, and Public Education. 3. Term. The term of this Agreement shall commence on September 1, 1992, and terminate June 30, 1993, unless earlier terminated pursuant to this Agreement. In the event neither party gives notice of termination at least sixty (60) days prior to the expiration of any term of this Agreement, this Agreement shall be deemed renewed for an additional one year term. 4. Comoensation. The parties agree that Manager is an agent and employee of the Employer, which shall pay, and be solely liable for, Manager's salary and benefits during the period of this Agreement, including the payment of all withholding and other taxes related to her employ. 5. Outside Activities. Other than as set forth in paragraph 1, above, Employer shall not permit Manager to render services of any kind to others for compensation, or engage in any other business activity that would materially interfere with the performance of his duties and responsibilities under this Agreement. 6. Termination. The Corporation may terminate this Agreement, effective immediately upon receipt by the Employer of notice of such termination, for any of the following reasons: (i) Manager's failure or refusal to adhere to the policies, practices or procedures of the Corporation in the performance of her Area Director duties, or any directive of the Executive Director or Director, Area Programs; (ii) Manager's failure to carry out any of the duties or responsibilities of the Area Director (as set forth in Section 2 hereto) in a satisfactory manner, as determined by the Director, Area Programs in her sole disctetion; (iii) Manager's commission of any willful, intentional or negligent act which could reasonably be expected materially to injure the reputation, business or business relationships of the Corporation; (iv) Manager's indictment or conviction for a felony or any specolym\mo-tserv.agt 2 08/07/92 9: 19... crime involving moral turpitude, fraud or misrepresentation; (v) Manager's andlorthe Employer's breach of any material obligation under this Agreement, if such breach is not cured within ten (10) days notice thereof; and (vi) dissolution of the Corporation, for any reason. If Manager dies during the term of this Agreement or is disabled so that she cannot perform her duties for a continuous period of over three consecutivemonths, thenthisAgreementshallimmediatelyterminate. 7. Reimbursement of Expenses. Employer shall reimburse Manager for all reasonable expenses incurred in the performance of the duties required hereunder. Any individual expense in excess of those limits set by Corporation policies and practices ( as modified from time to time by the Corporation) must be pre-approved by the Director, Area Programs , and if not pre-approved shall be reimbursed as and to the extent determined by the Director, Area Programs in his sole discretion. Manager, on behalf of Employer, shall provide a detailed, written expense report, consistent with the Corporation's policies and practices ( as modified from time to time by the Corporation), to the Director, Area Programs at the end of the month in which any expense is incurred and such report will not be accepted more than siny (60) days following the end of such month. 8. Confidential Information. In the course of her duties, Employer and Manager may have access to confidential information relating to the Corporation's business or other activities. Employer and Manager shall not, without the Corporation's prior written consent, either during or after the Term of this Agreement, directly or 1J1directly disclose to any third person any such confidential information. The provisions of this Section shall survive the termination of this Agreement. 9. Entire Aj'reement. This Agreement represents the entire agreement among the parties with respect to the subject matter hereof, and all prior agreements, written or oral, pertaining to such matter are nullified and superseded hereby. lO. Severability If any clause or provision of the Agreement shall be held inoperative by the final determination of arbitrator or a court of competent jurisdiction and all appeals therefrom shall have failed or the time for such appeals shall have expired, such clause or provision shall be deemed eliminated from this Agreement but the remaining provisions shall nevertheless be 3 given full force and effect. In the event this Agreement or any portion thereof is more restrictive than permitted by the law of the jurisdiction in which enforcement is sought, this Agreement or such portion shall be limited in that jurisdiction only, and shall be enforced in that jurisdiction as so limited to the maximum extent permitted by the law of that jurisdiction. 11. Governin2 Law. This Agreement is executed in, and shall be construed and enforced in accordance with the laws of the State of California. ~-:iJ 12. Arbitration. Any and all disputes arising under this Agreement shall be J/ ~' in Los Angeles, California bY~ binding arbitration under the Rules of the American Arbitration;j 11 r ..-yL.<. -1rt.-0t~/",~i'..,.., , /} Association. Each party lIiall bear their own expense of the arbitration, except that the arbitrator's fees;;1' and costs shall be born equally by the parties. 13. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the undersigned have executed Ihis Agreement as of the date first above written. By: L- CALIFORNIA SPECIAL OLYMP1CS, 1Ne. specolym\mgmtserv.agt 4 08/07192 9:19... Exhibit D EMPLOYEE DECLARATION I. the undersigned. declare that I have read and understand the agreement between California Special Olympics. Inc. (the "Corporation") and the City of San Bernardino Parks. Recreation and Community Services Department (the "Employer") being signed conCUlTently herewith ( the "Management Services Agreement"). I acknowledge that a material inducement for the Corporation to enter into the Management Services Agreement is my execution of the Employee's Declaration as well as my performance of all of the terms and conditions of this Employee's Declaration. the terms and conditions of the Management Services Agreement that relate to me and the terms and conditions of that certain Employment Agreement between me and the Employer ( "Employment Agreement" ). 1. Forthe express and direct benefit of the Corporation. I hereby: a. Represent and warrent to the Corporation that during the term of the Management Services Agreement it is my intention to work seriously at and pursue my career as an executive for the Employer. b. Agree to perform and to be bound by all the terms and provisions of my Employment Agreement and of the Management Services Agreement. c. Agree that if the Management Services Agreement contains terms additional to or inconsistent with my Employment Agreement. the terms of the latter shall supersede those of the former. I further agree that any notice the Corporation may give to Employer under the Management Services Agreement shall be deemed notice to me. d. Acknowledge that the rights. privileges. benefits and remedies granted by me to Employer in my Employment Agreement shall. at the Corporation's election. be deemed to be granted to the Corporation and I agree that if the Corporation does so elect. that such rights. privileges and benefits may be enforced against me directly by the Corporation in the name of the Employer or in the 110,\ - corporation's own name bYII binding arbitration in Los Angeles under the Rules of the American) 1-1 Arbitration Association, whether or not Employer is a party to such action. Such arbitration shall be the ~ I- 1/ - . . eforum for any disputes betweenme and the Corporation) 1/ e. Agree to look solely to the Employer for the payment of my fees and compensation in connection with my services under the Management Services Agreement and my Employment Agreement with Employer as the case may be, and will not assert any claim in this regard against the Corporation. f. Acknowledge that the Corporation is the exclusive owner of all rights in connection with the results and proceeds of my services under the Management Services Agreement. ,('.Jc; .H . r. .( vet J-...J':(.c~.--:) Patti Davis Area Director Greater San Bernardino Special Olympics 'r)!Ji'{ ItJ b:. L na'te ,.2(' /Cf9c. ,/ speco l ym\lt8"a8gers. dec 2 08/07192 9: 16... EXHIBIT E AGENCY'S CONTRIBUTION . Office and storage room . Two part-time staff . Phones and long distance charges . Mileage for area director . Postage . Access to Parks & Recreation Department equipment - such as stop watches, awards stands, clip boards, etc. . Full-time staff volunteer as the key volunteers atthe local Track & Field Meet. . Administrative and clerical support . Utilities . City reservation offacilities as needed . Printing and reproduction . Park Department - Equipment and labor support 10 EXHIBIT F Sections: 3.04.010 3.04.020 3.04.030 3.04.040 3.04.050 3.04.060 3.04.070 3.04.075 3.04.080 3.04.090 3.04.100 3.04.110 PURCHASING SYSTEM Chapter 3.04 PURCHASING SYSTEM1 Adoption of purchasing system. Purchasing officer. Estimates of requirements. Requisitions. Purchase orders. Encumbrance of funds. Formal contract procedure. Emergency purchases. Open market procedure Inspection and testing. Surplus supplies and equipment. Surplus vehicles and equipment. 3.04.010 Adoption of purchasing system. A. In order to establish efficient procedures for the purchase of supplies, materials and equipment, and contracted services, to secure for all departments or agencies ofthe City, except- ing the Municipal Water Department and the Free Public Library, supplies, materials and equipment at the lowest possible cost commensurate with the quality needed, to exercise positive financial control over purchases to clearly define authority for the purchasing 'functions and to assure the quality of purchases, a centralized purchasing system is adopted. There shall be no exemption from centralized pur- chasing and no agency or department shall be authorized to purchase, or contract for the purchase of supplies, services or equipment independently of the administrative office. The Board of Water Commissioners and the Board of the Free Public Library shall employ procedures substantially in compliance with the provisions of this chapter as such may be applicable. B. Exemptions. This chapter shall not apply to the following 1. Purchases from, or sales to a government or governmen- tal agency, or through any advantageous governmental contract approved by the Council, or to the purchase of election supplies; 105 (San Bernardino 7.88) REVENUE AND FINANCE , 2. Purchases from a vendor or manufacturer which, through the City's bidding procedure, or other California government or governmental agency's bidding procedure, has established a price at which such a vendor or manu- facturer is willing to sell to the City. During such a bid procedure more than one responsive bid must have been received, and the bid award must have occurred within one year at the City's issuance of a purchase order. (Ord. MC-608, 9-21-87; Ord. MC-513, 4-21-86; Ord. MC-431, 1-21- 85; Ord. 2588 ~ 1, 1964.) 3.04.020 Purchasing officer. The purchase and sale of all supplies, materials and equip- ment shall be the responsibility of the purchasing agent under the direction and supervision of the administrative officer. (Ord. 2588 ~ 2, 1964.) 3.04.030 Estimates of requirements. All using departments and agencies shall fIle detailed estimates of their requirements for supplies, materials and equipment in such manner, at such time, and for such future periods as the City administrative office shall prescribe. (Ord. 2588 ~ 3, 1964.) 3.04.040 Requisitions. Using departments and agencies shall submit requests for supplies, materials and equipment to the Purchasing Agent by standard requisition forms. (Ord. 2588 ~ 4, 1964.) 3.04.050 Purchase orders. Purchases of supplies, materials and equipment shall be made only by purchase order, and signed by either the Purchasing Agent or administrative officer. (Ord. 2588 ~ 5, 1964.) 3.04.060 Encumbrance of funds. The Purchasing Agent sh1ll not issue any purchase order for supplies, materials or equipment unless there exists an unencumbered appropriation in the account against which (San Bernardino 4-86) 106 PURCHASING SYSTEM the purchase is to be charged, and until the same has been approved by the finance division of the administrative office. COrd. 2588 ~ 6, 1964.) 3.04.070 Formal contract procedure. Except as otherwise provided in this chapter, purchases and contracts for supplies, materials and equipment of a value greater than twenty-five thousand dollars shall be by a written contract with the lowest possible and best bidder, pursuant to the procedures described in this section: COrd. MC-646, 12-5-88) A. Notice Inviting Bids. Notices inviting bids shall include a general description of the articles to be purchased, shall state where bid blanks and specifications may be secured, and the time and place for opening bids. (Ord. MC-602, 6-1-87.) 1 06-1 (San Bernardino 4-89) PURCHASING SYSTEM B. Notice. Publication and Mailing. Notice inviting bids shall be published at least ten days before the opening of bids in a newspaper of general circulation printed and published in the City. The Purchasing Agent may establish and maintain a list of prospective bidders. The prospective bidders shall be listed on said list according to the service or product pro- vided as indicated by the prospective bidder. It shall not be the responsibility of the Purchasing Agent to ensure that the list contains current information in respect to the address, service or product of the prospective bidder. The Purchasing Agent is authorized to mail invitations to bid directly to appropriate prospective bidders appearing on said list and to other prospective bidders. C. Bidder's Security. Each bid or proposal may be required by the Purchasing Agent to be accompanied by a bidder's bond, certified or cashier's check, or cash in an amount not more than ten percent of the total bid. The City Administra- tor shall establish standards for determining under what circumstances a bidder's security shall be required in order to protect the interests of the City. When deemed necessary by the City Administrator, bidder's security may be pre- scribed in the public notices inviting bids. When bid security is required, bidders shall be entitled to return of bid secu- rity, provided that a sucessful bidder shall forfeit his bid security upon refusal or failure to execute the contract within ten days after the notice of award has been mailed, unless and to the extent the City is responsible for the delay. The Common Council may, on refusal or failure of the sucessful bidder to execute the contract, award it to the next lowest and best bidder. If the Common Council awards the contract to the next lowest and best bidder, the amount of the lowest bidder's required security shall be applied by the City to the difference between the low bid and the second lowest bid, and the surplus, if any, shall be returned to the lowest bidder. D. Bid Opening Procedure. Sealed bids shall be submitted to the Purchasing Agent and shall be identified as bids on the envelope. Bids shall be opened in public at the time and 107 (San Bernardino 4-86) .. REVENUE AND FINANCE place stated in the public notices. A record of the bids received shall be available for public inspection after bids have been opened, indicating the amounts bid by the various bidders and the basis for awarding .the contract or purchase order if other than the lowest bidder. Such list shall be available for thirty days after the award has been made. E. Rejection of Bids. At its discretion, the Mayor and Common Council shall have the power to reject any and all bids presented and readvertise for bids. F. Award of Contracts. Contracts shall be awarded by the Mayor and Common Council, by resolution, to the lowest and best bidder except as otherwise provided herein. G. Tie Bids. If two or more bids received are for the same total amount or unit price, quality and service being equal and if the public interest will not permit the delay of readvertising for bids, the Mayor and Common Council may accept the one it chooses or accept the lowest bid made by negotiation with the tie bidders at the time of the bid opening. H. Performance Bonds. The Mayor and Common Council shall have authority to require a performance bond before ex- ecuting a contract in such amount as it shall find reasonably necessary to protect the best interests of the City. If the Mayor and Common Council require a performance bond, the form and amount of the bond shall be described in the notice inviting bids. 1. Negotiated Purchases. At the discretion of the City Admin- istrator, the Purchasing Agent may authorize the purchase of technical or specialized supplies or equipment by com- petitive negotiation when: 1. The supplies or equipment are such that suitable tech- nical or performance specifications are not readily available; 2. The city is not able to develop descriptive specifications; 3. The quality of the supplies and equipment cannot be accurately determined by reference to their specifica- tions alone; 4. Such a method of purchase would be more advantageous to the city; and (San Bernardino 7-88) 108 r--.....- PURCHASING SYSTEM 5. At the completion of the purchase a written report thereon is made to the City Administrator. (MC-646, 12-5-88; Ord. MC-602, 6-1-87; Ord. MC-491, 1-21-86; Ord. MC-183, 7-6-82; Ord. 3893 ~ I, 1980; Ord 3723, 1978; Ord. 3514 ~ 7,1975, Ord. 2588 ~ 7,1964.) 3.04.075 Emergency purchases. In case of an emergency, which is so urgent as to preclude advance action by the Mayor and Common Council and which requires purchase of supplies, materials, equipment or contrac- tual services, the City Administrator shall have the authority to authorize the Purchasing Agent to secure in the open market at the lowest obtainable price any such supplies, materials, equip- ment or contractual services. This emergency authority shall extend to all purchases, irrespective of the fact that the amount might exceed the authorized limitation for open market pur- chases. In all instances a full explanation of the emergency cir- cumstances shall be flIed with the Mayor and Common Council. (Ord. 3893 ~ 2, 1980; Ord. 2588 ~ 7~, 1964.) 3.04.080 Open market procedure. Purchase of supplies, materials, equipment and contractual serv- ices of a value in the amount of twenty-five thousand dollars or less may be made by the Purchasing Agent in the open market, in accQrdance with the following procedure: A. Minimum Number of Bids. Open market purchases shall wherever possible, be based on at least three bids, and shall be awarded to the lowest and best bidder. B. Notice inviting bids. The Purchasing Agent shall solicit bids by written requests or by telephone to prospective vendors. C. Written Bids. Sealed written bids shall be submitted to the Purchasing Agent who shall keep a record of all open market orders and bids for the required period of time after the sub- mission of bids or the placing of orders. This record while so kept shall be open to public inspection. D. Open Market Purchases For Which No Bids Are Required. For open market purchases not exceeding twenty-five hundred dol- lars, the Purchasing Agent shall have the authority to select a specific vendor and place an order without obtaining additional competitive bids. 108-1 (San Bernardino 4-89)