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HomeMy WebLinkAbout2008-445 IMPORTANT NOTE: RESOLUTION IS NULL AND VOID BECAUSE IT WAS NOT EXECUTED WITHIN THE TIME SPECIFIED 1 RESOLUTION NO. 2008-445 2 A RESOLUTION AUTHORIZING THE EXECUTION OF AN AGREEMENT 3 AND ISSUANCE OF A PURCHASE ORDER IN THE AMOUNT OF $73,248.61 TO COOK EQUIPMENT COMPANY PURSUANT TO SECTION 3.04.010-B3 OF THE 4 MUNICIPAL CODE FOR A JCB 3CX14 4WD BACKHOE / LOADER TO BE UTILIZED BY THE PUBLIC SERVICES DEPARTMENT STREET DIVISION SEWER 5 MAINTENANCE CREW. 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 7 OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Manager of the City of San Bernardino is hereby 8 9 authorized to execute on behalf of said City an Agreement between the City of San 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Bernardino and Cook Equipment Company for the purchase of one JCB 3CX14 4WD backhoe/loader to be utilized by the Public Services Department Street Division Sewer Maintenance Crew, a copy of which is attached hereto, marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length. SECTION 2. This purchase is exempt from the formal contract procedures of Section 3.04.010 of the Municipal Code, pursuant to Section 3.04.010. B.3 of said Code "Purchases approved by the Mayor and Common Council". SECTION 3. That Cook Equipment Company has offered a purchase price of $73,248.61 for the purchase of one (1) JCB 3CX14 4WD Backhoe / Loader. Pursuant to this determination the Finance Director is hereby authorized to issue a purchase order to Cook Equipment Company of Riverside, in the amount of $73,248.61, which will facilitate the procurement of the JCB 3CX14 4WD Backhoe I Loader. SECTION 4. The Purchase Order shall reference this Resolution No. 2008-"'4'5 25 and shall read, "Purchase of one (1) JCB 3CX14 4WD Backhoe I Loader, P.O. not to 26 exceed $73,248.61" and shall incorporate the terms and conditions of the Agreement. 27 28 -1- 2008-445 1 A RESOLUTION AUTHORIZING THE EXECUTION OF AN AGREEMENT 2 AND ISSUANCE OF A PURCHASE ORDER IN THE AMOUNT OF $73,248.61 TO 3 COOK EQUIPMENT COMPANY PURSUANT TO SECTION 3.04.010-B3 OF THE MUNICIPAL CODE FOR A JCB 3CX14 4WD BACKHOE I LOADER TO BE 4 UTILIZED BY THE PUBLIC SERVICES DEPARTMENT STREET DIVISION SEWER MAINTENANCE CREW. 5 6 SECTION 5. The authorization to execute the above referenced Purchase 7 Order and agreement is rescinded if not issued within sixty (60) days of the passage of 8 9 this resolution. //I 10 11 III 12 //I 13 //I 14 //I 15 //I 16 17 18 III 19 III 20 //I 21 //I 22 III 23 III III 24 25 III 26 III 27 III 28 - 2- 2008-445 1 A RESOLUTION AUTHORIZING THE EXECUTION OF AN AGREEMENT AND ISSUANCE OF A PURCHASE ORDER IN THE AMOUNT OF $73,248.61 TO 2 COOK EQUIPMENT COMPANY PURSUANT TO SECTION 3.04.010-B3 OF THE MUNICIPAL CODE FOR A JCB 3CX14 4WD BACKHOE I LOADER TO BE 3 UTILIZED BY THE PUBLIC SERVICES DEPARTMENT STREET DIVISION SEWER 4 MAINTENANCE CREW. 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the joint 6 Mayor and Common Council of the City of San Bernardino at a regular 7 meeting thereof, held on the 1st day of December , 2008, by the 8 9 following vote, to wit: Council Members: 10 11 12 13 14 AYES ABSTAIN ABSENT NAYS ESTRADA x BAXTER x BRINKER x VACANT 15 KELLEY 16 17 x x JOHNSON 18 MCCAMMACK 19 20 21 22 23 24 x The foregoing resolution is December , 2008. (2~ r!J.~ Raa;-el G. Clark, City Clerk hereby approved this c:<",ae. day of 25 26 Approved as to form: 27 Eo 'f ft. '7. ,t..:..-. James F. Penman, City Attorney 28 ""- ~- ~ . ~atri ~k J. MorriS, Mayor "1 f San Bernardino - 3- 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 VENDOR SERVICE AGREEMENT This Vendor Service Agreement is entered into this 1st day of December 2008, by and between Cook Equipment Company ("VENDOR") and the City of San Bernardino ("CITY" or "San Bernardino"). WITNESSETH: WHEREAS, the Mayor and Common Council have determined that it is in the best interest of the CITY to contract for the purchase of one (1) JCB 3CX14 4WD Backhoe I Loader; and WHEREAS, the City of San Bernardino has determined that vendor possesses the professional skills and ability to provide said services for the City; NOW, THEREFORE, the parties hereto agree as follows: 1. SCOPE OF SERVICES. For the remuneration stipulated in paragraph 2, San Bernardino hereby engages the services of VENDOR to provide those products and services as set forth in its proposal dated September 12, 2008, attached hereto, marked Attachment "1" and incorporated herein by this reference as fully as though set forth at length. 2. COMPENSATION AND EXPENSES. a. For the services delineated above, the CITY, upon presentation of an invoice, shall pay the VENDOR up to the amount of $73,248.61 to provide and perform those products and services described in Section 1 above. b. No other expenditures made by VENDOR shall be reimbursed by CITY. 3. TERM. The term of this agreement shall be for a period of one (1) year. Exhibit "A" 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 This Agreement may be terminated at any time by thirty (30) days prior written notice by either party. The terms of this Agreement shall remain in force unless amended by written agreement of the parties executed on or before date of expiration of current term of the agreement. 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 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 service under this Agreement, unless the bodily injury or property damage was actually 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 Exhibit "A" 2 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 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. Insurer shall give CITY 30 days notice prior to enactment and any change or termination of policy. 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 conditions, 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 shail obtain, and maintain a business registration certificate pursuant to Chapter 5 of the MU11icipal Code, and any other license, permits, Exhibit "}\" 3 1 qualifications, insurance and approval of whatever nature that are legally required of VENDOR 2 to practice its business or profession. 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 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: Public Services Director 300 North "D" Street San Bernardino, CA 92418 Telephone: (909) 384-5140 TO THE VENDOR: Cook Equipment Company 1748 Container Circle Riverside, CA 92509 Telephone: (951) 538-2875 Contact: Eddie Smith 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 Exhibit "A" 4 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 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. 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 Connty 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 the 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 convemence only and shall not affect the construction or the interpretation of any of its provIsIOns. 16. ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the entire agreement and the understanding between the parties, and supercedes any prior agreements and understandings relating to the subject manner of this Agreement. This Agreement may be modified or amended only by a written instrument executed by all parties to this Agreement. III Exhibit "A" 5 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 VENDOR SERVICE AGREEMENT COOK EQUIPMENT COMPANY IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. ,2008 VENDOR Dated: By: Its: ,2008 CITY OF SAN BERNARDINO Dated By: City Manager Approved as to Form: By: James F. Penman, City Attorney Exhibit "A" 6