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HomeMy WebLinkAbout2008-124 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. 2008-124 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE VENDOR SERVICE AGREEMENTS TO EWING IN SAN BERNARDINO, CALIFORNIA, AND TO HYDROSCAPE IN SAN BERNARDINO, CALIFORNIA, AND AUTHORIZING THE DIRECTOR OF FINANCE TO INCREASE PURCHASE ORDER NO. 208185 ISSUED TO EWING FROM $24,500 TO $39,500, AND TO INCREASE PURCHASE ORDER NO. 208188 TO HYDROSCAPE FROM $24,000 TO $39,000 FOR IRRIGATION PARTS AND SUPPLIES. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That the City Manager is authorized to execute Vendor Service Agreements with Ewing (attached hereto and marked Exhibit "A") and Hydroscape (attached hereto and marked Exhibit "B"); and SECTION 2. That the Director of Finance is authorized to increase Purchase Order No. 208185 to Ewing in the amount of$15,000, from $24,500 to $39,500; and SECTION 3. That the Director of Finance is authorized to increase Purchase Order No. 208188 to Hydroscape in the amount of$15,000, from $24,000 to $39,000; and SECTION 4. That the authorization granted herein is void and of no effect if the increases to the above-mentioned Vendor Service Agreements and Purchase Orders are not executed within ninety days of the date that this Resolution is adopted. III III III III III III III III III 2008-124 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 OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE VENDOR SERVICE AGREEMENTS TO EWING IN SAN BERNARDINO, CALIFORNIA, AND TO HYDROSCAPE IN SAN BERNARDINO, CALIFORNIA, AND AUTHORIZING THE DIRECTOR OF FINANCE TO INCREASE PURCHASE ORDER NO. 208185 ISSUED TO EWING FROM $24,500 TO $39,500, AND TO INCREASE PURCHASE ORDER NO. 208188 TO HYDROSCAPE FROM $24,000 TO $39,000 FOR IRRIGATION PARTS AND SUPPLIES. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the joint Mayor and Common Council of the City of San Bernardino at aregular meeting thereof, held on the ~ day of April , 2008, by the following vote, to wit: NAYS ABSTAIN ABSENT Council Members: AYES ESTRADA x X BAXTER BRINKER x - DERRY X KELLEY X JOHNSON x McCAMMACK x /"- j ~ ..~~-,-I.. .) (~ /~/-- Rachel Clark, City Clerk The foregoing resolution is hereby approved thiE,d.3?R day of _~y_::~l 2008. ~- --. . k J. 110rris, Mayor City of San Bernardino Approved as to Form: ;a gj~" / ~- /",~ James F. Pe an, City Attorney 2008-124 EXH/B)rA. VENDOR SERVICE AGREEMENT This Vendor Service Agreement is entered into this ~ day of April 2008, by and between Ewing ("VENDOR") and the City of San Bernardino ("CITY" or "San Bernardino"). WITNESSETH: WHEREAS, the Mayor and Common Council has determined that it is advantageous and in the best interest of the CITY to purchase irrigation parts and supplies; and WHEREAS, it is in the best interests of the CITY to utilize the vendors approved and authorized by the City of San Bernardino to provide such purchase of irrigation parts and supplies. NOW, THEREFORE, the parties hereto agree as follows: 1. SCOPE OF SERVICES. The CITY hereby engages the services of VENDOR to provide those irrigation parts and supplies. 2. COMPENSATION AND EXPENSES. For the services delineated above, the CITY, upon presentation of an invoice, shall pay the VENDOR for purchase of irrigation parts and supplies in an amount not to exceed $39,500. 3. TERM; TERMINATION. This Agreemellt may be terminated at any time by thirty (30) d!lYs written notice by either party. The terms of this Agreement shall remain in force unless mutually amended. III III 1 2008-124 4. INDEMNITY. Vendor agrees to and shall indemnify and hold the City, its elected officials, employees, agents or representatives, free and harmless from all claims, actions, damages and liabilities of any kind and nature arising from bodily injury, including death, or property damage, based or asserted upon any actual or alleged act or omission of Vendor, its employees, agents, or subcontractors, relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement, unless the bodily injury or property damage was caused by the sole negligence of the City, its elected officials, employees, agents or representatives. As part of the foregoing indemnity, Vendor agrees to protect and defend at its own expense, including attorney's fees, the City, its elected officials, employees, agents or representatives from any and all legal actions based upon such actual or alleged acts or omISSIons. Vendor hereby waives any and all rights to any types of express or implied indemnity against the City, its elected officials, employees, agents or representatives, with respect to third party claims against the Vendor relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement. 5. INSURANCE. While not restricting or limiting the foregoing, during the term of this Agreement, VENDOR shall maintain in effect policies of comprehensive public, general and automobile liability insurance, in the amount of $1,000,000.00 combined single limit, and statutory worker's compensation coverage, and shall file copies of said policies with the CITY's Risk Manager prior to undertaking any work under this Agreement. CITY shall be set forth as an additional named insured in each policy of insurance provided hereunder. The Certificate of Insurance furnished to the CITY shall require the insurer to notify CITY of any change or termination in the policy. 2 2008-124 6. NON-DISCRIMINATION. In the performance of this Agreement and in the hiring and recruitment of employees, VENDOR shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law, except as permitted pursuant to Section 12940 of the California Government Code. 7. INDEPENDENT CONTRACTOR. VENDOR shall perform work tasks provided by this Agreement, but for all intents and purposes VENDOR shall be an independent contractor and not an agent or employee of the CITY. VENDOR shall secure, at its expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for VENDOR and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. VENDOR warrants that it possesses or shall obtain, and maintain a business registration certificate pursuant to Chapter 5 of the Municipal Code, and any other licenses, permits, qualifications, insurance and approval of whatever nature that are legally required of VENDOR to practice its business or profession. III III III III 3 2008-124 9. NOTICES. Any notices to be given pursuant to this Agreement shall be deposited with the United States Postal Service, postage prepaid and addressed as follows: TO THE CITY: Director of Parks, Recreation and Community Services 201-A North "E" Street, Suite #103 San Bernardino, CA 92401 Telephone: (909)384-5233 o THE VENDOR: Ewing 1560 E. Victoria Avenue San Bernardino, CA 92408 Telephone: (909) 796-5898 10. ATTORNEYS' FEES In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this paragraph. 11. ASSIGNMENT. VENDOR shall not voluntarily or by operation of law assIgn, transfer, sublet or encumber all or any part of the VENDOR's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for the termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release VENDOR of VENDOR's obligation to perform all other obligations to be performed by VENDOR hereunder for the term of this Agreement. 4 2008-124 12. VENUE. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State Courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 13. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. 14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the parties to this Agreement and their respective heirs, representatives, successors, and assigns. 15. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes ~f convenIence only and shall not affect the construction or the interpretation of any of its prOVIsIons. 16. SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 17. ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the entire agreement and the understanding between the parties, and supersedes any prior agreements and understandings relating to the subject manner 5 .. . 2008-124 of this Agreement. This Agreement may be modified or amended only by a written instrument executed by all parties to this Agreement. IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated~, 2008 Dated 12fV'4 & f , 2008 By: Approved as to Form: James F. Penman, City Attorney By: ~;!M6k;;J 6 ACORD... CERTIFICA TE OF LIABILITY INSURANCE DATE (MM/DDIYYYY) 5/19/2008 PRODUCER (602)635-4848 FAX: (480)991-0634 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Aims Insurance Program Managers, Inc. dba Aims ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR Program Managers Ins Agency #OF49713 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. 15230 North 75th Street #1002 Scottsdale AZ 85260 INSURERS AFFORDING COVERAGE NAIC# INSURED INSURERA:Hartford Casual tv 29424 Ewing Irrigation Products, Inc. INSURER B:Hartford Midwest dba Ewing Irrigation INSURER c: Hartford Fire 3441 East Harbour Drive INSURER D: Phoenix AZ 85034 INSURER E: THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. IMIT~ -. .. I.HI.\I!: A!:l: M RV PAin r.1 AIM~ I~~ ~~~~ TYPE OF INSURANCE POLICY NUMBER P8k~~~~8~~ Pg~!fJI~:~J!gN LIMITS GENERAL LIABILITY EACH nr.r.URRENr.E $ 1,000,000 I-- ~~~g~J9F~~~;~nce) X ~MERCIAL GENERAL LIABILITY $ 300,000 I-- CLAIMS MADE ~ OCCUR A 59UUNAE6127 1/1/2008 1/1/2009 MED EXP IAnv one oerson) $ 10,000 I-- I-- PERSONAL & ADV INJURY $ 1,000,000 - GENERAL AGGREGATE $ 2,000,000 ~'L AGGREnE LIMIT APPLIES PER: PRODUCTS. COMP/OP AGG $ 2,000,000 PRO- n X POLICY JECT LOC ~TOMOBILE L1ABIUTY COMBINED SINGLE LIMIT $ 1,000,000 ~ ANY AUTO (Ea acddent) C - ALL OW'JED AUTOS 59CSEC7860 1/1/2008 1/1/2009 BODILY INJURY $ SCHEDULED AUTOS (Per person) - ~ HIRED AUTOS BODILY INJURY $ X NON~\M'JED AUTOS (Per accident) - - PROPERlY DAMAGE $ (Per accident) GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ R ANY AUTO OTHER THAN EA ACC $ AUTO ONLY: AGG $ EXCESS/UMBRELLA LIABILITY FAr.H nr.r.lIRRFNr.F $ ~ OCCUR D CLAIMS MADE AGr.REr.ATE $ $ R DEDUCllBLE $ RETENTlnN S $ B WORKERS COMPENSATION AND X I WC STATU- I OJ~- EMPLOYERS' LIABILITY 1,000,000 ANY PROPRIETORlPARTNERIEXECUTIVE E.L. EACH ACCIDENT $ OFFICERIMEMBER EXCLUDED? 59WNC78600 1/1/2008 1/1/2009 E.L. DISEASE - EA EMPLOYEE $ 1,000,000 If yes, desaibe under 1,000,000 SPECIAL PROVISIONS below E.L. DISEASE - POLICY LIMIT $ OTHER DESCRIPTION OF OPERATlONS/LOCATlONSNEHICLEs/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS *Except for ten (10) days cancellation for non-pay. All policy forms apply. This certificate is only a representation and mayor may not comply with any written contract. Holder (municipality) is afforded additional insured status only per attached HG 0001 (06/05) with respects to general liability for this insured. City of San Bernardino Parks, Recreation 201-A North E Street #103 San Bernardino, CA 92401 CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL * 30 DAYS WRITTEN NOTICE TO THE CERllFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE Peter Godfrey / JENNAB.2:.....~?~::.:~~~:~==.~~'.~~..:.. --:> @ ACORD CORPORATION 1988 CERTIFICATE HOLDER ACORD 25 (2001/08) INQn?1; minll' nll~ P~"A 1 nf? IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001/08) INS025 (0108).08a Page 20f2 NAME (First Named & Other Named Insureds) California Irrigation Ewing Irrigation NSHE Mission Hills, LLC OFAPPINF ADDITIONAL NAMED INSUREDS Additional Named Insured Doing Business As Limited Liability Company, Additional Named Insured COPYRIGHT 2000, AMS SERVICES INC have all your rights and duties under this Coverage Part e. Unnamed Subsidiary Any subsidiary, and subsidiary thereof, of yours which is a legally incorporated entity of which you own a financial interest of more than 50% of the voting stock on the effective date of the Coverage Part. The insurance afforded herein for any subsidiary not named in this Coverage Part as a named insured does not apply to injury or damage with respect to which an insured under this Coverage Part is also an insured under another policy or would bean insured under such policy but for its termination or the exhaustion of its limits of insurance. 3. Newly Acquired or Formed Organization Any organization you newly acquire or form, other than a partnership, joint venture or limited liability company, and over which you maintain financial interest of more than.50% of the voting stock, will qualify as a Named Insured if there is no other similar insurance available to that organization. However: a. Coverage under this provision is afforded only until the 180th day after you acquire or form the organization or the end of the policy period, whichever is earlier; b. Coverage A does not apply to "bodily injury'l or "property damage" that occurred before you acquired or formed the organization; and c. Coverage B does not apply to otpersonal and advertising injury" arising out of an offense committed before you acquired or formed the organization. 4. Mobile Equipment With respect to "mobile equipment" registered in your name under any motor vehicle registration law, any person is an insured while driving such equipment along a public highway with your permission. Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the equipment, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to: a. "Bodily injury" to a co-"employee" of the person driving the equipment; or b. "Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. Page 10 of 18 5. Nonowned Watercraft With respect to watercraft you do not own that is less than 51 feet long and is not being used to carry persons for a charge, any person is an insured while operating such watercraft with your permission. Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the watercraft, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to: a. "Bodily injury" to a co-Hemployee" of the person operating the watercraft; or b. "Property damage" to property owned by, rented to. in the charge of or occupied by you or the employer of any person who is an insured under this provision. 6. Additional Insureds When Required By Written Contract, Written Agreement Or Permit The following person(s) or organization(s) are an additional insured when you have agreed, in a written contract, written agreement or because of a permit issued by a state or political subdivision, that such person or organization be added as an additional insured on your policy, provided the injury or damage occurs subsequent to the execution of the contract or agreement A person or organization is an additional insured under this provision only for that period of time required by the contract or agreement. However,no such person or organization is an insured under this provision if such person or organization is included as an insured by an endorsement issued by us and made apart of this Coverage Part. a. Vendors Any person(s) or organization(s) (referred to below as vendor), but only with respect to "bodily injury" or "property damage" arising out of "your products" which are distributed or sold in the regular course of the vendor's business and only if this Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products- completed operations hazard", (1) The insurance afforded the vendor is subject to the following additional exclusions: This insurance does not apply to: (a) "Bodily injury" or "property damage" for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; HG 0001 06 05 (b) Any express warranty unauthorized by you; (c) Any physical or chemical change in the product made intentionally by the vendor; (d) Repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; (eJ Any failure to make such inspections, adjustments. tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business. in connection with the distribution or sale of the products; (f) Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product; (g) Products which, after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing Or substance by or for the vendor; or (h) "Bodily injury" or "property damage" arising out of the sole negligence of the vendor for its own acts or omissions or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to: (i) The exceptions contained in Sub- paragraphs (d) or (f); or (ii) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course . of business. in connection with the distribution or sale of the products. (2) This insurance does not apply to any insured person or organization, from whom you have acquired such products, or any ingredient part or container, entering into, accompanying or containing such products. b. Lessors of Equipment (1) Any person or organization from whom you lease equipment; but only with respect to their liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part. by your maintenance, operation or use of equipment leased to you by such person or organization. (2) With respect to the insurance afforded to these additional insureds this insurance does not apply to any "occurrence" which takes place after the equipment lease expires. HG00010605 c. Lessors of land or Premises Any person or organization from whom you lease land or premises, but only with respect to liability arising out of the ownership, maintenance or use of that part of the land or premises leased to you. With respect to the insurance afforded these additional insureds the following additional exclusions apply: This insurance does not apply to: 1. Any "occurrence\! which takes place after you cease to tease that land; or 2. Structural alterations. new construction or demolition operations performed by or on behalf of such person or organization, d. Architects, Engineers or Surveyors Any architect. engineer, or surveyor, but only with respect to liability for "bodily injury". "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: (1) In connection with your premises; or (2) In the performance of your ongoing operations performed by you or on your behalf. With respect to the insurance afforded these additional insureds, the following additional exclusion appHes: This insurance does not apply to "bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of or the failure to render any professional services by or for you, including: 1. The preparing, approving, or failing to prepare or approve, maps, Shop drawings, opinions, reports, surveys. field orders, change orders or drawings and specifications; or 2. Supervisory, inspection, architectural or engineering activities. e. Permits Issued By State Or Political Subdivisions Any state or political subdivision, but only with respect to operations performed by you or on your behalf for which the state or political subdivision has issued a permit. With respect to the insurance afforded these additional insureds, this insurance does not apply to: (1) "Bodily injury", "property damage" or "personal and advertising injury" arising out of operations performed for the state or municipality; or (2) "Bodily injuryll or "property damage" included within the "products-completed operations hazard", Page 11 of 18 f. Any Other Party Any other person or organization who is not an insured under Paragraphs a. through e. above, but only with respect to liability . for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part. by your acts or omissions or the acts or omissions of those acting on your behalf: (1) In the performance of your ongoing operations; (2) In connection with your premises owned by or rented to you; or (3) In connection with Hyour work" and included within the "products-completed operations hazard", but only jf (a) The written contract or agreement requires you to provide such coverage to such additional insured; and (b) This Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products-completed operations hazard". With respect to the insurance afforded to these additional insureds, this insurance does not apply to: "Bodily injury'!. "property damage" or upersonal and advertising injury" arising out of the rendering of,or the failure to render, any professional architectural, engineering or surveying services, including: (1) The preparing, approving, or failing to prepare or approve, maps, shOp drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; or (2) Supervisory, inspection. architectural or engineering activities. The limits of insurance that apply to additional insureds under this provision is described in Section III - Limits Of Insurance. How this insurance applies when other insurance is available to the additional insured is described in the Other Insurance Condition in Section IV - Commercial General Liability Conditions. No person or organization is an insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations. SECTION III - LIMITS OF INSURANCE 1. The Most We will Pay The Limits of Insurance shown in the Declarations and the rules below fix the most we will pay regardless of the number of: a. Insureds; b. Claims made or "suits" brought; or Page 12 of 18 c. Persons or organizations making claims or bringing IIsuits" . 2. General Aggregate Limit The General Aggregate Limit is the most we will pay for the sum of: a. Medical expenses under Coverage C; b. Damages under Coverage A, except damages because of "bodily injury" or "property damage" included in the "products-completed operations hazard"; and c. Damages under Coverage B. 3. Products-Completed Operations Aggregate Limit The Products-Completed Operations Aggregate Limit is the most we will pay under Coverage A for damages because of "bodily injury" and "property damage" included in the "products-completed operations hazard" , 4. Personal and Advertising Injury Limit Subject to 2. above, the Personal and Advertising Injury Limit is the most we will pay under Coverage B for the sum of all damages because of all "personal and advertising injury" sustained by anyone person or organization. 5. Each Occurrence Limit Subject to 2. or 3. above, whichever applies. the Each Occurrence Limit is the most we will pay for the sum of: a. Damages under Coverage A; and b. Medical expenses under Coverage C because of all "bodily injury" and "property damage" arising out of anyone "occurrence". 6. Damage To Premises Rented To You Limit Subject to 5. above. the Damage To Premises Rented To You Limit is the mostwe will pay under Coverage A for damages because of IIproperty damage" to anyone premises, while rented to you, or in the case of damage by fire. lightning or explosion, while rented to you or temporarily occupied by you with permission of the owner. In the case of damage by fire, lightning or explosion, the Damage to Premises Rented To You Limit applies to all damage proximately caused by the same event, whether such damage results from fire, lightning or explosion or any combination of these, 7. Medical Expense Limit Subject to 5. above, the Medical Expense Limit is the most we will pay under Coverage C for all medical expenses because of "bodily injury" sustained by any one person. 8. How Limits Apply To Additional Insureds If you have agreed in a written contract or written agreement that another person or organization be HG 0001 06 05 2008-124 Gfilt3/'T .,B VENDOR SERVICE AGREEMENT This Vendor Service Agreement is entered into this ~ day of April 2008, by and between Hydroscape ("VENDOR") and the City of San Bernardino ("CITY" or "San Bernardino"). WITNESSETH: WHEREAS, the Mayor and Common Council has determined that it is advantageous and in the best interest of the CITY to purchase irrigation parts and supplies; and WHEREAS, it is in. the best interests of the CITY to utilize the vendors approved and authorized by the City of San Bernardino to provide such purchase of irrigation parts and supplies. NOW, THEREFORE, the parties hereto agree as follows: 1. SCOPE OF SERVICES. The CITY hereby engages the services of VENDOR to provide those irrigation parts and supplies. 2. COMPENSATION AND EXPENSES. For the services delineated above, the CITY, upon presentation of an invoice, shall pay the VENDOR for purchase of irrigation parts and supplies in an amount not to exceed $39,000. 3. TERM; TERMINATION. This Agreement may be terminated at any time by thirty (30) days written notice by either party. The terms of this Agreement shall remain in force unless mutually amended. III III 1 2008-124 4. INDEMNITY. Vendor agrees to and shall indemnify and hold the City, its elected officials, employees, agents or representatives, free and harmless from all claims, actions, damages and liabilities of any kind and nature arising from bodily injury, including death, or property damage, based or asserted upon any actual or alleged act or omission of Vendor, its employees, agents, or subcontractors, relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement, unless the bodily injury or property damage was caused by the sole negligence of the City, its elected officials, employees, agents or representatives. As part of the foregoing indemnity, Vendor agrees to protect and defend at its own expense, including attorney's fees, the City, its elected officials, employees, agents or representatives from any and all legal actions based upon such actual or alleged acts or omISSIons. Vendor hereby waives any and all rights to any types of express or implied indemnity against the City, its elected officials, employees, agents or representatives, with respect to third party claims against the Vendor relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement. S. INSURANCE. While not restricting or limiting the foregoing, during the term of this Agreement, VENDOR shall maintain in effect policies of comprehensive public, general and automobile liability insurance, in the amount of $1,000,000.00 combined single limit, and statutory worker's compensation coverage, and shall file copies of said policies with the CITY's Risk Manager prior to undertaking any work under this Agreement. CITY shall be set forth as an additional named insured in each policy of insurance provided hereunder. The Certificate of Insurance furnished to the CITY shall require the insurer to notify CITY of any change or termination in the policy. 2 2008-124 6. NON-DISCRIMINATION. In the performance of this Agreement and in the hiring and recruitment of employees, VENDOR shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law, except as permitted pursuant to Section 12940 of the California Government Code. 7. INDEPENDENT CONTRACTOR. VENDOR shall perform work tasks provided by this Agreement, but for all intents and purposes VENDOR- shall be an independent contractor and not an agent or employee of the CITY. VENDOR shall secure, at its expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for VENDOR and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. VENDOR warrants that it possesses or shall obtain, and maintain a business registration certificate pursuant to Chapter 5 of the Municipal Code, and any other licenses, permits, qualifications, insurance and approval of whatever nature that are legally required of VENDOR to practice its business or profession. III III III III 3 2008-124 9. NOTICES. Any notices to be given pursuant to this Agreement shall be deposited with the United States Postal Service, postage prepaid and addressed as follows: TO THE CITY: Director of Parks, Recreation and Community Services 201-A North "E" Street, Suite #103 San Bernardino, CA 92401 Telephone: (909)384-5233 TO THE VENDOR: Hydroscape 1548 So. Mt. View San Bernardino, CA 92408 Telephone: (909) 824-3612 10. ATTORNEYS' FEES In the event "that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this paragraph. 11. ASSIGNMENT. VENDOR shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of the VENDOR's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void ------- and shall constitute a breach of this Agreement and cause for the termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release VENDOR of VENDOR's obligation to perform all other obligations to be performed by VENDOR hereunder for the term of this Agreement. 4 2008-124 12. VENUE. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State Courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 13. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. 14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the parties to this Agreement and their respective heirs, representatives, successors, and assigns. 15. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convenIence only and shall not affect the construction or the interpretation of any of its provisions. 16. SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 17. ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the entire agreement and the understanding between the parties, and supersedes any prior agreements and understandings relating to the subject manner 5 2008-124 of this Agreement. This Agreement may be modified or amended only by a written instrument executed by all parties to this Agreement. IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and daf. et fO; below. Dated ., , 2008 .. Hydroscape ,(~ By: Its: Dated ~ d2 (2008 By: Approved as to Form: James F. Penman, City Attorney By: j{)~~:4J 6