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HomeMy WebLinkAbout24-Public Services ORIGINAL CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION From: Ken Fischer, Director Subject: Resolution of the Mayor and Common Council of the City of San Dept: Public Services Bernardino authorizing the execution of an Agreement and issuance of a Date: May 1, 2008 Purchase Order in the amount of $300,000 to American Asphalt South, Inc. for the slurry seal program. Meeting Date: May 19, 2008 Synopsis of Previous Council Action: Recommended Motion: Adopt Resolution. Signature Contact Contact person: Ken Fischer, Director Phone: 5140 Supporting data attached: Ward: All Staff Report, Resolution, City of Vista's Contract, Vendor Service Agreement, List of Streets (Attachment "1") FUNDING REQUIREMENTS: Amount: $300,000 From Proposition 1B grant funds Source: FY 07-08 258-359-5504-7603 (SSD) Finance: Council Notes: Agenda Item No. 57 3/19 m CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION Staff Report SUBJECT: Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of an Agreement and issuance of a Purchase Order in the amount of $300,000 to American Asphalt South, Inc. for the slurry seal program. BACKGROUND: The City of Vista completed a bid and contract award for application of rubberized slurry seals on March 25, 2008 (see attached). Staff has received a copy of this bid, and determined that the bidding process completed by the City of Vista conforms to the requirements of the City of San Bernardino Municipal Code Section 3.04.010 B-2, which allows the City to accept bidding from another governmental agency for goods and services. Slurry seal application involves a high level of care, warm weather conditions and requires several hours to dry. It is important to start the slurry seal application as soon as possible in order to benefit from the current warm weather conditions. All slurry seal work was assessed based upon street conditions. Staff anticipates the work to be completed by the close of FY 07-08. American Asphalt South, Inc. has provided the City of San Bernardino with several years of slurry seal service and has proven to be reliable. American Asphalt South, Inc. has scheduled the work and has handled the public notification aspects of the process without any problems. Since there are no local contractors who apply this rubberized material per the Green Book standards, staff would like to piggyback on the City of Vista's bid. Staff recommends that American Asphalt South, Inc. be awarded a purchase order in the amount of $300,000 in order to start the next group of streets for FY 07-08 slurry seal program (see attached list of streets). FINANCIAL IMPACT: Funds are now available via Prop. 1 B funds (Local Street and Road Improvements) and has been budgeted in the FY 07-08 CIP Budget under Project Number SS-D Account No. 258-359-5504-7306 (Slurry Seal) in the amount of$300,000. RECOMMENDATION: Adopt Resolution. • city of Vista. March 26,2008 American Asphalt South,Inc. Attn: Lyle Stone,Secretary F.O.Box 310036 Fontana,CA 92331 RE: Agireerneat between the City of Vista and American Asphalt South,Inc.,for the 2007/2008 Slurry Seal Project Dear Mr. Stone: At its meeting of N4arcb 25, 3008, the City Council adopted Resolution Igo. 2008-72, approving the above-referenced agreement. Enclosed are one executed.original of the agreement, and a signed copy of the resolution,for your file. Should you have any questions,please contact Marisa Soto,Management Analyst, at(760)639-5176. Sincerely, Rita R.Turnbull Administrative Secretary Office of the City Cleric ezl.c c: Rarisa Soto,Management Analyst 600 Eucalyptus Avenue Vista,California 92084•.(760)726-1340_--www.cityomstaxom.. . --- - ••- AGREEMENT THIS AGREEMENT,made and entered into this 25th_day of larch ,2008,by and between the City of Vista, a chartered municipal corporation, orgatlzed and existing in the County of San Diego, under and by virtue of the laws of the State of California, herein after designated as the "City", party of the first part, and American Asphalt South, Inc,, a California Corporation_,hereinafter designated as the "C:ontractor",party of the scc:,;�d pa.-t. WIT7VESSETH- That the parties hereto have mutually covenanted and agreed,and by these presents to covenant and agree,with each other as follows. ARTICLE I The Contract Documents consisting of the Specifications,including the Notice inviting Bids,the Instructions to Bidders,the accepted Proposal,Bid Sheet(,),Cozrtraetor's Licensing Statement,List of Subcontractors,Bid Security Form for check or bond,the Agreement,Faithful Performance Band, Payment Bond, Contractor's Certificate, Non-Collusion Affidavits, Supplementary General Provisions,Special Provisions,Technical Specifications,the Standard Specifications,the Standard Plans and the drawings(if any),together with all additions,deletions,modifications and appendices, and all.addenda(1 of 1)as prepared prior to the date of bid opening setting forth any modifications or interpretations of any said documents,are hereby incorporated in and made a part of this Agreement as fully as if set forth herein. ARTICLE U For and in consideration of the payments and ag-reernents to be zzxade and pert ormed by the City as set forth in said Contract Documents,the Contractor'agrees with the City to construct STREET IMPROVEMENTS As specifically set forth in said Contract Documents entitled 2007/2008 SLURRY SEAL PROJECT for which award of the Contract was made,to furnish at his own proper cost and expense all plant, labor,services,materials,tools,equipment,supplies,transportation,utilities and all other items and facilities necessary therefor,as provided in the Contract Documents,and to do Everything required the reiti. In accordance with the provisions of Section 3700 ofthe Labor Code,the Contractor will be required to secure the payment of compensation of his employees. 1 ARTICLE III For furnishing all said services and materials,payment of premiums on insurance policies,obtaining, all permits and licenses of a temporary nature,furnishing and removing all plant,tenoEpor�S'work or structures, tools, and equipment, and for doing of the work contemplated and embraced in this Agreement, also for all loss and damage arising out of the nature of the aforesaid work during its progress or prior to acceptance from the actions of the elements and from any unforeseen difficulties which may arise or be encountered in, the prosecution of the work, and for all other risks of any description connected with the work, also for all expenses incurred by or in consequence of the suspension of discontinuance of woFk,except such as izn the said Contract Documents are expressly stipulated to be borne by the City, and for well and£aithfnlly completing the work and the whole thereof within the stipulated time and in the manner shown and described in the said documents,and n in accordance with the requirements of the Public Works Director under them,the City will pay,and the Contractor shall receive in full compensation therefor,the prices set forth by him in the accepted in bad. The total compensation will be computed on the basis rune tsthe units o for r k actually stipulated p ped es accordance with the requirements of.the Contract named in the Bid Sheet(s)for completion of the work. A.RTTCLE IV The City hereby promises and agrees with the said Contractor to employ,and does hereby employ the said Contractor to provide the materials and to do the work according to the terms and conditions herein contained and referred to,for the price aforesaid,and hereby contracts to pay the same at the time, in the manner, and upon the conditions set forth in the Contract Documents, and the said parties for themselves,their heirs,executors,administrators,successors and assigns do hereby agree to the full performance of the covenants herein contained. If any litigation,arbitration or other legal proceeding should arise regarding the interpretation or enforcement of this Contract,the prevailing party shall.be entitled to the award of attorneys' fees,cost, and expert witness fees, ARTICLE V Contractor shall hold harmless, defend and irndemnify the City of Vista and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorney'fees arising out of the performance of the work described herein,caused in whole or in part by any negligent or willful acts or omission 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, except where caused by the active negligence,sole negligence, or willful,:misconduct of the City of Vista- (Signatures on following page) 2 IN WITNESS WHEREOF,the parties bereto have caused this contract to be executed the day and year first above written,and hezeunto have set our hands and seals. THE CITY OF VISTA, AMERICAN ASPHALT SOUTH,INC. a chartered municipal corporation a Cal.ifomia corporation. By, By: RRIS B. ANCE, "Sipaturc/� J #r Aell Name(printe or typed) ATTEST: Marci Kilian,City Clerk Title tx�4 By: By:t!�_n Signature APPROVED AS TO FORM: � le X,40e Darold Pie ex, City Attorney Name(printed or typed) By: e7r Title RISK MANAGEMENT REVIEW By: W� DATE OF AWARD OF CONTRACT BY T14E VISTA CITY COUNCIL: March 25, 2008 3 APPENDIX B 1007-2008 SLURRY SEAL PROGRAM Street From To Sq-Ft ?'rash (Thomas Guide) Activi±y nr: Specialty Dx.NIS 725'N/Specialty Dr. 52,813 X (1108-8-6) Ahmu Terr. Goodwin Dz.W/S 500' W/Goodwin Dr. 19,2_91 W (1087-G-2) Alderwood Cir. White Birch DT. W/S 400'S/Vvhite BirchDz. 15,902 F (1107-0-5) Appiewood La. • Sequoia Crest NIS 190'lv/Sequoia Crest 8.448 F (1107-0-7) Saco, St. Melrose Dr.W/S 210'W/Melrose Dr. 7,573 W Bonair Rd, Palomar A.NIS 300'N/Palomar Pl. 8,512 M (1088:4-3) Bonita Dr. alive Ave. SIS Bluegrass Rd.NIS 11,862 (xOS7-E-6} Buena Vista Dr. Melrose Dr.NIS 840'N/IvEelrase Dr. 29,E00 F (1 107-H-4) Burke Rd. Caren Rd.NIS Olive Ave. S/S 22,231 (1087-E-6) Calera St, Cananea St.NIS 720' N/Cananea St. 25,402 T (1087-G-3) Canauea St Indian Rock Rd W/S Santa Fe E/S 38,593 T (1087-G-3) Carmel Cir. Anna Ave_ W/S 500' W/Anza Ave. 19,124 T (1087-J-3) Cherrywood.St. White Birch Dr.E/S Al.derwood Cir. 55,849 F (1107-0-5) Cielita Linda Dr. Judilyn 13x. E/S Highland Dr.E/S 10,439 W (1087-E-6) Cielita Linda Dr. 865' W/BoTdta Dr. Olive Ave:.N/S 32,190 W (1087-8-6) Citrus Ave. California Ave. S/S Vista Village pr.NIS 29,518 T •(1087-H-6) _ Citrus A.ve. Townsite Dr. S/S Indian Rock Rd NIS 18,938 T (1087-H-6) Clearwater Ridge Melrose Dr.NIS Ridgeline Ave. VS 25.635 F (I 107-H-6) Cocapab,St Melrose Dr.W/S 0n)ey Dr. E/S 26.811 �V (1087-F`-5) Street From To �.1�'t. Trash (Thomas Guide) Co Sall St, Calera St. W/S 87' W/Calera St. 4,300 T (1087,G-3) Cfluntry Squire Countryside Dr.1LT/S 450'N/Cauzztryside Dr.16,956 F (iIv7-ii-f) Crest View Pl. Crestview Rd.EIS 225' E/Creestview Ad, 9,242 Th (1107-7-1) Donnan Pl. Tlenmere Rd.EIS 175' ElGlezautere 8,624 M (1087-J-4) El Vallecito Dr. East Dr. S/S 275' S/East Dr. 10,964 W (1087-H-4) ]Eucalyptus Ave. 550' Escondido Ave,300' W/Alestar St. 44,965 M (10$7-H-6) Glenmere Oak Dr. Meadow Lane Dr.N/S 31,$81 A4 (1487-J-4) Green Oak Rd. Sycamore Ave.EIS a30` EiSycasrtore Ave_ 21,167 F (1108-B-5) W Hidden Vale Dr. Valeview Dr. (I W/�aleview Dr. 11,481 T (1,107-H-1) Hilo Dr. 1rI O Way 510' S Hilo Way 19,994 Tit (]107-J-2) II 10 -J- Copper Dr. S/S 635' S/Copper Dr. 24,146 W (1087-F-7) Jonathon St. Grapevine Rd,EIS 510' E/Grapevine Rd. 22,037 W (1487-D-7) Knoll Rd. Plymouth Dr. W/S Capper Dr. 19,105 W (1087-F-6) 180' W Louie Pl. Rhea Pl.W/S /Rhea Pl. 7,992 T (i 087-H-4) Lymnar Ln. Coventry Rd.EIS 175' E/Covantry Rd- 7,597 N2 (1088-A-6) Marabou Tin. Moa Dr.N/S Bobier Dz. S/S 19,190 T (1087-F-3) Michigan Ave. Main St.NIS Vista Village Dr. S/S 14,595 x (1087-H-6) moa Dr. Waxwing Dr. EIS 985'NlWaxwing Dr. 34,352 W (1087-F-3) Monte -3) Rd. Independence W/S 720' Wllndependemce 16,563 Ivf (1D88-C Mynah ) Marabort In.W/S 230' W/Marabou Ln. 9,500 W (1087=F-3) Street From To Sq.ft Trash (Thomas Guide) North Dr. 1.515' W/Melrose Dr. 1847' W/Melrose Dr. 20,460 W (1087-F-3) vpul TU . Clearwater Ridge W/S Dawson Dr.E/S 2$,729 F (1107-H-6) Part6dge Cir. North Dr.NIS 200'Wartzidge Cir. 6.996 W (109 F (1087-- -4) F Cir- Phillips St. S/S .370' S/PlOips St. 15.1.73 Th .- (1107-J-1) Poinsettia Ave. Business Park S/S 265' S/$usizxess Park 17,461 r (1108-GAF) Pom.elo Dr. Hacienda Dr- E S/S 1010' S/Via Angelica 101,998 '� (1107- -I) Rhea E- Indian Rock Rd.N/S 375'N/Indian Rock Rd. 12,860 T (1087-H-4) Sandra Cir. Phillips St.BIS 620' E/Phillips St_ 20,301 n (1107-3-1) Silvala$Way San.Luis Rey W/S 200' W/San Luis Rey 9,146 T (10$7-G-3) Steen Cir. Phillips St. S/S 425' S/Phillips St. 16,403 Th (1107-J-1) Stiles J-1 PEghlaxld Dr_W/S 590' W/f Tighland Dr. 23,988 W (I 1$7-I'-4) Valley View Pl, Phillips St.E/S 185' ENhillips 5t. 3,420 Th (1107-J-1) Walker Plymouth Plymouth Dr. W/S 875'N/Piymouth Dr_ 241054 W (1087-F-6) Waxwing Dr, North Dr.N/S 1875'N/Nmth Dr. 54,549 W (1087_p-3) Westwood Rd. Cedar Ave.W/S 870' W/Cedar Ave. 30,904 W (1107-C-1) TOM OF SOUARE FOO AGE. 1,200,029 Sq. Ft. X- Commercial trash pick-ups are done inside the facilities. BED SBFXT Pursuant to and izt compliance with the Natice Inviting Bids and other Contract Documents relating to the proposal fvr the construction of p P,kA..LP�ROPEitTY I ROVEMENT`S as='pecifically set fvrt1 em i;de d 2007-2000 Slurry Seat Project all in accordance with the.Drawings aid Project Specifications on file at the Office of Public Works of the City of Vista,California,the undersigned bidder,having familiarized himself with the terms of the Contract,the local conditions affecting the performance of the Contract and the cost of the work at the place the world is to be done,and with the Drawings,l't'oject Specifications and other Contract Documents,hereby stipulated;the Contractor agrees to complete the Coxrtract, including all of its component parts and everything required to be performed,and to provide and furnish any and all labor,matm-1als,tools,expendable equipment,and all utility and trausportation secvims necessary to perform the Contram and complete in a workmanlike mantra all of the work required in connection with the Contract, all in strict conformauce with the drawings and specifications on file at the Public Works Office,City of Vista.CA,for the following swu: Base Bid Item Bid Item Description Units Unit Amount Item Total I Type TI Slurry Seal(Flex-seal or equal) f 1,2001029 Square q Feet Note: 3nctudo removal of pav=.ent markers + and placcmeut Tad removal of temporary xttRrl�ems soc Part III—SecUon IT 0 A 2 Signing,barricades and traffic control 1 Lump r uiremetns Sure � r "�' TOTAL PR.ICV OF BID (in figures): �©✓• !� per total project 7240 d t .�a.•t y�AaW�+ �" '�{ TO'T'AL PRICE OF BID (in words): 114� AW a1*174AV MW 01*4�1+� per total project ce*tr '> ETM IS ONE ALTERNATE RM TTY,.M ON THE 2007-2008 Slun 'Seal Pro ect Alterttate Bid Items(see description next page): TOTAL PRICE(la figures): cost per square foot TOTAL PRICE (in words): *e jjo � �"�ii f cost per square foot NOTE: Bids will be evaluated based on the total atneunt of the Base Bid Items,and will not include the Alternate Bid Items in determining the lowest responsive bidder- Alternate Bid Item: For the purpose of calculating the amount of work required to be performed by the Couttactor with its oven farces,the following items are identified as-�Vciak items". 1.The City of Vim parks and Qommuni ervices ent may require the services of the lowest resnotxsible bidder. The amount o servir, roject Qriorit3,r r sEz� ec needed. not known at this time Howevertthe Parks and Cgmmunity Services De=ent would like rn utilize the services oftlte lowest re a ible bidder to u seal 'nterior ds on several parks. The t=am� wili�te the seal Type I lex--seIi-Or u aimiTtg,barriq es and traffic control needs er nare foot that the Parks and Cozntr ni services Deyar urgent will cbamed. 17 C (DPV 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND 3 ISSUANCE OF A PURCHASE ORDER IN THE AMOUNT OF $300,000 TO 4 AMERICAN ASPHALT SOUTH, INC. FOR THE SLURRY SEAL PROGRAM. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 6 WHEREAS, The City of San Bernardino has accepted American Asphalt 7 8 South, Inc.'s offer to piggyback on the City of Vista's purchase price for the FY 07-08 9 slurry seal program; 10 SECTION 1. That the City Manager of the City of San Bernardino is hereby 11 authorized to execute on behalf of said City an Agreement between the City of San 12 Bernardino and American Asphalt South, Inc., a copy of which is attached hereto, 13 marked Exhibit "A" and incorporated herein by reference as fully as though set forth at 14 15 length; 16 SECTION 2. This agreement conforms to the requirements of the City of San 17 Bernardino Municipal Code Section 3.04.010 B-2. 18 SECTION 3. Pursuant to this determination, the Finance Director or his/her 19 designee is hereby authorized to issue a purchase order to American Asphalt South, 20 Inc., in the amount of $300,000; said Purchase order shall reference this Resolution 21 22 No. 2008 and shall read, "American Asphalt South, Inc., for additional FY 07- 23 08 slurry seal services throughout the City of San Bernardino." 24 SECTION 4. The authorization to execute the above referenced Agreement and 25 Purchase Order is rescinded if it is not issued within sixty (50) days of the passage of 26 this resolution. 27 28 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND 2 ISSUANCE OF A PURCHASE ORDER IN THE AMOUNT OF $300,000 TO AMERICAN ASPHALT SOUTH, INC. FOR THE SLURRY SEAL PROGRAM. 3 4 1 HEREBY CERTIFY that the foregoing Resolution was duly adopted by the 5 Mayor and Common Council of the City of San Bernardino at a 6 meeting thereof, held on the day of 2008, by the 7 following vote, to wit: 8 Council Members: AYES NAYS ABSTAIN ABSENT 9 ESTRADA 10 BAXTER 11 12 BRINKER 13 DERRY 14 KELLEY 15 JOHNSON 16 MCCAMMACK 17 18 19 Rachel G. Clark, City Clerk 20 21 The foregoing resolution is hereby approved this day of , 2008. 22 23 Patrick J. Morris, Mayor City of San Bernardino 24 Appro ed as to form: 25 By: 2-/�—� es F. Penman 26 ity Attorney 27 28 1 VENDOR SERVICE AGREEMENT 2 This Vendor Service Agreement is entered into this 19th day of May 2008, by and 3 between American Asphalt South, Inc. ("VENDOR") and the City of San Bernardino ("CITY" 4 or"San Bernardino"). 5 WITNESSETH: 6 7 WHEREAS, the Mayor and Common Council has determined that it is advantageous 8 and in the best interest of the CITY to execute an agreement and purchase order for the FY 07- 9 08 slurry seal program; and 10 WHEREAS, the City of San Bernardino has accepted American Asphalt South, Inc's., 11 offer to piggyback on the City of Vista's purchase price for the FY 07-08 slurry seal program. 12 NOW, THEREFORE, the parties hereto agree as follows: 13 1. SCOPE OF SERVICES. 14 15 For the remuneration stipulated, San Bernardino hereby engages the services of 16 VENDOR to provide 1,130,019 square feet of rubberized slurry seal at a cost of 20 cents per 17 square foot per the proposed 2007-2008 Slurry Seal list, attached hereto as Attachment "1" and 18 incorporated herein by this reference. The parties may agree to modify said Attachment "1," in 19 writing, if said modification is in the best interests of the City. 20 2. COMPENSATION AND EXPENSES. 21 22 a. For the services delineated above, the CITY, upon presentation of an invoice, shall 23 pay the VENDOR up to the amount of $300,000 for the FY 07-08 slurry seal 24 program as set forth in Attachment"1." 25 b. No other expenditures made by VENDOR shall be reimbursed by CITY. 26 3. TERM. 27 The term of this Agreement shall be for a period of one year. 28 Exhibit "A" t 1 This Agreement may be terminated at any time by thirty (30) days' written notice by 2 either party. The terms of this Agreement shall remain in force unless mutually amended. The 3 duration of this Agreement may be extended with the written consent of both parties. 4 4. INDEMNITY. 5 CITY agrees to indemnify and hold harmless VENDOR, its officers, agents and 6 7 volunteers from any and all claims, actions, or losses, damages and/or liability resulting from 8 CITY's negligent acts or omissions arising from the CITY's performance of its obligations 9 under the Agreement. 10 VENDOR agrees to indemnify and hold harmless the CITY, its officers, agents, and 11 volunteers from any and all claim, actions, or losses, damages and/or liability resulting from 12 VENDOR's negligent acts or omissions arising from the VENDOR's performance of its 13 14 obligations under the agreement. 15 In the event the CITY and/or the VENDOR is found to be comparatively at fault for any 16 claim, action, loss, or damage which results from their respective obligations under the 17 Agreement, the CITY and/or VENDOR shall indemnify the other to the extent of this 18 comparative fault. 19 5. INSURANCE. 20 While not restricting or limiting the foregoing, during the term of this Agreement, 21 22 VENDOR shall maintain in effect policies of comprehensive public, general and automobile 23 liability insurance, in the amount of $1,000,000.00 combined single limit, and statutory 24 worker's compensation coverage, and shall file copies of said policies with the CITY's Risk 25 Manager prior to undertaking any work under this Agreement. CITY shall be set forth as an 26 additional named insured in each policy of insurance provided hereunder. The Certificate of 27 28 Exhibit"A" 77� 1 Insurance furnished to the CITY shall require the.insurer to notify CITY of any change or 2 termination in the policy. 3 6. NON-DISCRIMINATION. 4 In the performance of this Agreement and in the hiring and recruitment of employees, 5 VENDOR shall not engage in, nor permit its officers, employees or agents to engage in, 6 7 discrimination in employment of persons because of their race, religion, color, national origin, 8 ancestry, age, mental or physical disability, medical conditions, marital status, sexual gender or 9 sexual orientation, or any other status protected by law, except as permitted pursuant to Section 10 12940 of the California Government Code. 11 7, INDEPENDENT CONTRACTOR 12 VENDOR shall perform work tasks provided by this Agreement, but for all intents and 13 purposes VENDOR shall be an independent contractor and not an agent or employee of the 14 15 CITY. VENDOR shall secure, at its expense, and be responsible for any and all payment of 16 Income Tax, Social Security, State Disability Insurance Compensation, Unemployment 17 Compensation, and other payroll deductions for VENDOR and its officers, agents, and 18 employees, and all business licenses, if any are required, in connection with the services to be 19 performed hereunder. 20 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. 21 22 VENDOR warrants that it possesses or shall obtain, and maintain a business registration 23 certificate pursuant to Chapter 5 of the Municipal Code, and any other licenses, permits, 24 qualifications, insurance and approval of whatever nature that are legally required of VENDOR 25 to practice its business or profession. 26 27 28 Exhibit "A" 1 9. NOTICES. 2 Any notices to be given pursuant to this Agreement shall be deposited with the United 3 States Postal Service, postage prepaid and addressed as follows: 4 TO THE CITY: Public Services Director 5 300 North "D" Street San Bernardino, CA 92418 6 Telephone: (909) 384-5140 7 TO THE VENDOR: American Asphalt South, Inc. 8 14436 Santa Ana Avenue Fontana, CA 92337 9 Telephone: (909)427-8276 Contact: Jeff Petty 10 11 10. ATTORNEYS' FEES. 12 In the event that litigation is brought by any party in connection with this Agreement, 13 the prevailing party shall be entitled to recover from the opposing party all costs and expenses, 14 including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of 15 its rights or remedies hereunder or the enforcement of any of the terms, conditions or 16 provisions hereof. The costs, salary and expenses of the City Attorney and members of his 17 18 office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' 19 fees" for the purposes of this paragraph. 20 11. ASSIGNMENT. 21 VENDOR shall not voluntarily or by operation of law assign, transfer, sublet or 22 encumber all or any part of the VENDOR's interest in this Agreement without CITY's prior 23 written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void 24 25 and shall constitute a breach of this Agreement and cause for the termination of this 26 Agreement. Regardless of CITY's consent, no subletting or assignment shall release VENDOR 27 28 Exhibit"A" 1 of VENDOR's obligation to perform all other-obligations to be performed by VENDOR 2 hereunder for the term of this Agreement. 3 12. VENUE. 4 The parties hereto agree that all actions or proceedings arising in connection with this 5 Agreement shall be tried and litigated either in the State courts located in the County of San 6 7 Bernardino, State of California or the U.S. District Court for the Central District of California, 8 Riverside Division. The aforementioned choice of venue is intended by the parties to be 9 mandatory and not permissive in nature. 10 13. GOVERNING LAW. 11 This Agreement shall be governed by the laws of the State of California. 12 14. SUCCESSORS AND ASSIGNS. 13 14 This Agreement shall be binding on and inure to the benefit of the parties to this 15 Agreement and their respective heirs, representatives, successors, and assigns. 16 15. HEADINGS. 17 The subject headings of the sections of this Agreement are included for the purposes of 18 convenience only and shall not affect the construction or the interpretation of any of its 19 provisions. 20 16. ENTIRE AGREEMENT; MODIFICATION. 21 22 This Agreement constitutes the entire agreement and the understanding between the 23 parties, and supercedes any prior agreements and understandings relating to the subject manner 24 of this Agreement. This Agreement may be modified or amended only by a written instrument 25 executed by all parties to this Agreement. 26 27 111 28 Exhibit"A" 1 VENDOR SERVICE AGREEMENT AMERICAN ASPHALT SOUTH, INC. 2 3 IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day 4 and date set forth below. 5 Dated: 52008 VENDOR 6 By: 7 Its: 8 Dated 92008 CITY OF SAN BERNARDINO 9 By: 10 Fred Wilson, City Manager 11 12 Approved as to Form: 13 14 By: 15 James F. Penman, City Attorney 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit"A"