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HomeMy WebLinkAbout2009-345 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. 2009-345 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AGREEMENTS AND ISSUANCE OF ANNUAL PURCHASE ORDERS TO ALLSTAR FIRE EQUIPMENT IN THE AMOUNT OF $5,000, FISHER SCIENTIFIC COMPANY IN THE AMOUNT OF $45,000, L.N. CURTIS & SONS IN THE AMOUNT OF $5,000, AND MALLORY COMPANY IN THE AMOUNT OF $10,000 FOR REPLACEMENT OF PROTECTIVE CLOTHING AND EQUIPMENT FOR STRUCTURAL FIREFIGHTING. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That Allstar Fire Equipment, Fisher Scientific Company, L.N. Curtis & Sons, and Mallory Company are the lowest responsible bidders for the replacement of fire safety clothing, for a total amount not-to-exceed $5,000, $45,000, $5,000, and $10,000, respectively, in accordance with Bid Specification F 10-01, and, as such the Director of Finance or her designee is authorized to issue annual purchase orders to Allstar Fire Equipment, Fisher Scientific Company, L.N. Curtis & Sons, and Mallory Company. The annual purchase orders are for one year with the option of two one-year extensions. All other bids are hereby rejected; and SECTION 2. The City Manager is hereby authorized and directed to execute on behalf of the City Purchase Agreements with Allstar Fire Equipment, Fisher Scientific Company, L.N. Curtis & Sons, and Mallory Company, a copy of which is attached hereto, marked Attachment "B", "C", "D", and "E", respectively, and incorporated herein by reference as fully as thought set forth at length; and SECTION 3. That Allstar Fire Equipment, Fisher Scientific Company, L.N. Curtis & Sons, and Mallory Company Annual Purchase Orders shall incorporate by reference this Resolution and Bid Specification F 10-01; 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 2009-345 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF"THE CITY OF SAN BERNARDINO AUTHORIZING 'THE EXECUTION OF AGREEMENTS AND ISSUANCE OF ANNUAL PURCHASE ORDERS TO ALLSTAR FIRE EQUIPMENT IN THE AMOUNT OF $5,000, FISHER SCIENTIFIC COMPANY IN THE AMOUNT OF $45,000, L.N. CURTIS & SONS IN THE AMOUNT OF $5,000, AND MALLORY COMPANY IN THE AMOUNT OF $10,000 FOR REPLACEMENT OF PROTECTIVE CLOTHING AND EQUIPMENT FOR STRUCTURAL FIREFIGHTING. SECTION 4. The authorization to execute the above referenced Annual Purchase Orders are rescinded if they are not issued within sixty (60) days of the passage of this Resolution. IIII IIII IIII IIII IIII IIII IIII IIII IIII IIII IIII IIII IIII IIII IIII IIII IIII IIII IIII IIII 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 2009-345 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF "THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AGREEMENTS AND ISSUANCE OF ANNUAL PURCHASE ORDERS TO ALLSTAR FIRE EQUIPMENT IN THE AMOUNT OF $5,000, FISHER SCIENTIFIC COMPANY IN THE AMOUNT OF $45,000, L.N. CURTIS & SONS IN THE AMOUNT OF $5,000, AND MALLORY COMPANY IN THE AMOUNT OF $10,000 FOR REPLACEMENT OF PROTECTIVE CLOTHING AND EQUIPMENT FOR STRUCTURAL FIREFIGHTING. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a i oint regular meeting thereof, held on the 2nd day of November , 2009, by the following vote, to wit: COUNCIL MEMBERS: AYES NAYS ABST AIN ABSENT ESTRADA X BAXTER X BRINKER x SHORETT X KELLEY X JOHNSON X X MCCAMMACK Q~.h.~ -.. . Rachel G. Clark, CIty Clerk City of San Bernardino The foregoing Resolution is hereby approved this ~ay of November, 2009. Approved as to form: :F~'.reY 3 2009-345 ATTACHMENT "B" PURCHASE AGREEMENT Allstar Fire Equipment This Purchase Agreement is entered into this 2nd day of November , 2009, by and between Allstar Fire Equipment ("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 contract for the purchase of hoods; and WHEREAS, the City of San Bernardino did solicit and accept quotes from available Vendors for the purchase of protective clothing and equipment for structural firefighting; and WHEREAS, the Vendor submitted the lowest and best bid for hoods. NOW, THEREFORE, the parties hereto agree as follows: 1. SCOPE OF SERVICES. For the remuneration stipulated, San Bernardino hereby engages Vendor to provide hoods. 2. COMPENSATION AND EXPENSES. a. For the products and/or services delineated above, the City, upon presentation of an invoice, shall pay the Vendor up to the amount of $5.000 for hoods. b. No other expenditures made by Vendor shall be reimbursed by City, 3. TERM; TERMINATION. This purchase shall be completed within, FY 09/10, September 1,2009 through June 30, 2010, plus two single year options. Actual option year pricing shall be negotiated with the successful bidder prior to exercising any given option year. The negotiated price upon the exercise of an option shall not exceed the price set forth herein. Option year shall become effective only upon issuance by the City of a duly authorized Purchase Order. 1 2009-345 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. 4. WARRANTY Vendor expressly warrants that all products and services supplied to City by Vendor under this Agreement shall conform to the specifications, drawings or other description upon which this PURCHASE is based, shall be fit and sufficient for the purpose intended, merchantable, of good material and workmanship, free from defects and free and clear of all liens or encumbrances. Inspection, testing, acceptance or use of the goods by the City shall not affect Vendor's obligations under this warranty, and such warranty shall survive inspection, testing, acceptance and use. Vendor agrees to replace or correct promptly defects of any goods or services not conforming to the foregoing warranty without expense to the City, when notified of such non-conformity by City. If Vendor fails to correct the defects in or replace non-conforming goods or services promptly, City may, after reasonable notice to Vendor, make such corrections or effect cover, or cure, at Vendor's expense. "Reasonable notice" for purposes of this section shall not be deemed to require more than 60 calendars days notice before commencement of efforts by the City to effect cover or a cure except upon written agreement of the Parties. 5. INDEMNITY. City agrees to indemnify and hold harmless Vendor, its officers, agents and volunteers from any and all claims, actions, losses, damages and/or liability resulting from City's negligent acts or omissions arising from the City's performance of its obligations under the Agreement. Vendor agrees to indemnify and hold harmless the City, its officers, agents, and volunteers from any and all claim, actions, losses, damages and/or liability resulting from 2 2009-345 Vendor's negligent acts or omissions arising from the Vendor's performance of its obligations under the Agreement. In the event the City and/or the Vendor is found to be comparatively at fault for any claim, action, loss, or damage which results from their respective obligations under the Agreement, the City and/or Vendor shall indemnify the other to the extent of this comparative fault. 6. 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 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. 7. 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. 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. Vendor warrants that it possesses or shall obtain, and maintain a business registration certificate as required under Chapter 5 of the Municipal Code, and any other license, permits, 3 2009-345 qualifications, insurance and approval of whatever nature that are legally required of Vendor to practice its business or profession. 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: Fire Department 200 East Third Street San Bernardino, CA 92410 Telephone: (909) 384-5286 TO THE Vendor: Allstar Fire Equipment 12328 Lower Azusa Rd. Arcadia, CA 91006 Telephone: (800) 425-5787 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. V endor 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 4 2009-345 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 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. 5 2009-345 17. 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 subj ect manner 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: ~ jlf , 2009 ALLSTARFIREp By: c;a Its: ,1~~ Dated 1N 3" , 2009 CITY OF SAN BERNARDINO Approved as to Form: James F. Penman, City Attorney 6 2009-345 ATTACHMENT "c" PURCHASE AGREEMENT Fisher Scientific Company This Purchase Agreement is entered into this 2nd day of November , 2009 , by and between Fisher Scientific Company ("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 contract for the purchase of turnout jackets, turnout pants, wildland gloves, goggles, and truck turnout boots; and WHEREAS, the City of San Bernardino did solicit and accept quotes from available Vendors for the purchase of protective clothing and equipment for structural firefighting; and WHEREAS, the Vendor submitted the lowest and best bid for turnout jackets, turnout pants, wildland gloves, goggles, and truck turnout boots. NOW, THEREFORE, the parties hereto agree as follows: 1. SCOPE OF SERVICES. F or the remuneration stipulated, San Bernardino hereby engages Vendor to provide turnout jackets, turnout pants, wildland gloves, goggles, and truck turnout boots. 2. COMPENSATION AND EXPENSES. a. For the products and/or services delineated above, the City, upon presentation of an invoice, shall pay the Vendor up to the amount of $45.000 for turnout jackets, turnout pants, wildland gloves, goggles, and truck turnout boots. b. No other expenditures made by Vendor shall be reimbursed by City, 3. TERM; TERMINATION. This purchase shall be completed within, FY 09/10, September 1,2009 through June 30, 2010, plus two single year options. Actual option year pricing shall be negotiated with the 1 2009-345 successful bidder prior to exercising any given option year. The negotiated price upon the exercise of an option shall not exceed the price set forth herein. Option year shall become effective only upon issuance by the City of a duly authorized Purchase Order. 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. 4. WARRANTY Vendor expressly warrants that all products and services supplied to City by Vendor under this Agreement shall conform to the specifications, drawings or other description upon which this PURCHASE is based, shall be fit and sufficient for the purpose intended, merchantable, of good material and workmanship, free from defects and free and clear of all liens or encumbrances. Inspection, testing, acceptance or use of the goods by the City shall not affect Vendor's obligations under this warranty, and such warranty shall survive inspection, testing, acceptance and use. Vendor agrees to replace or correct promptly defects of any goods or services not conforming to the foregoing warranty without expense to the City, when notified of such non-conformity by City. If Vendor fails to correct the defects in or replace non-conforming goods or services promptly, City may, after reasonable notice to Vendor, make such corrections or effect cover, or cure, at Vendor's expense. "Reasonable notice" for purposes of this section shall not be deemed to require more than 60 calendars days notice before commencement of efforts by the City to effect cover or a cure except upon written agreement of the Parties. 5. INDEMNITY. City agrees to indemnify and hold harmless Vendor, its officers, agents and 2 2009-345 volunteers from any and all claims, actions, losses, damages and/or liability resulting from City's negligent acts or omissions arising from the City's performance of its obligations under the Agreement. Vendor agrees to indemnify and hold harmless the City, its officers, agents, and volunteers from any and all claim, actions, losses, damages and/or liability resulting from Vendor's negligent acts or omissions arising from the Vendor's performance of its obligations under the Agreement. In the event the City and/or the Vendor is found to be comparatively at fault for any claim, action, loss, or damage which results from their respective obligations under the Agreement, the City and/or Vendor shall indemnify the other to the extent of this comparative fault. 6. 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 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. 7. 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, 3 2009-345 ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. Vendor warrants that it possesses or shall obtain, and maintain a business registration certificate as required under Chapter 5 of the Municipal Code, and any other license, permits, qualifications, insurance and approval of whatever nature that are legally required of Vendor to practice its business or profession. 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: Fire Department 200 East Third Street San Bernardino, CA 92410 Telephone: (909) 384-5286 TO THE Vendor: Fisher Scientific Company Attn: Michael Vernier 2000 Park Lane Drive Pittsburgh, P A 15275 Telephone: (412) 490-8300 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. 4 2009-345 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. 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. 5 2009-345 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 supercedes any prior agreements and understandings relating to the subj ect manner of this Agreement. This Agreement may be modified 9r 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: fl./2.- ,2009 :~oANY Its: Dated ~) 5'" ,2009 CITY OF SAN BERNARDINO By. Charles McNeely, City Approved as to Form: James F. Penman, City Attorney ~r~ 6 2009-345 ATTACHMENT "n" PURCHASE AGREEMENT L.N. Curtis & Sons This Purchase Agreement is entered into this 2nd day of November , 2009 , by and between L.N. Curtis & Sons ("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 contract for the purchase of structural gloves; and WHEREAS, the City of San Bernardino did solicit and accept quotes from available Vendors for the purchase of protective clothing and equipment for structural firefighting; and WHEREAS, the Vendor submitted the lowest and best bid for structural gloves. NOW, THEREFORE, the parties hereto agree as follows: 1. SCOPE OF SERVICES. F or the remuneration stipulated, San Bernardino hereby engages Vendor to provide structural gloves. 2. COMPENSATION AND EXPENSES. a. For the products and/or services delineated above, the City, upon presentation of an invoice, shall pay the Vendor up to the amount of $5.000 for structural gloves. b. No other expenditures made by Vendor shall be reimbursed by City, 3. TERM; TERMINATION. This purchase shall be completed within, FY 09/10, September 1,2009 through June 30,2010, plus two single year options. Actual option year pricing shall be negotiated with the successful bidder prior to exercising any given option year. The negotiated price upon the exercise of an option shall not exceed the price set forth herein. Option year shall become effective only upon issuance by the City of a duly authorized Purchase Order. 1 2009-345 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. 4. WARRANTY Vendor expressly warrants that all products and services supplied to City by Vendor under this Agreement shall conform to the specifications, drawings or other description upon which this PURCHASE is based, shall be fit and sufficient for the purpose intended, merchantable, of good material and workmanship, free from defects and free and clear of all liens or encumbrances. Inspection, testing, acceptance or use of the goods by the City shall not affect Vendor's obligations under this warranty, and such warranty shall survive inspection, testing, acceptance and use. Vendor agrees to replace or correct promptly defects of any goods or services not conforming to the foregoing warranty without expense to the City, when notified of such non-conformity by City. If Vendor fails to correct the defects in or replace non-conforming goods or services promptly, City may, after reasonable notice to Vendor, make such corrections or effect cover, or cure, at Vendor's expense. "Reasonable notice" for purposes of this section shall not be deemed to require more than 60 calendars days notice before commencement of efforts by the City to effect cover or a cure except upon written agreement of the Parties. 5. INDEMNITY. City agrees to indemnify and hold harmless Vendor, its officers, agents and volunteers from any and all claims, actions, losses, damages and/or liability resulting from City's negligent acts or omissions arising from the City's performance of its obligations under the Agreement. Vendor agrees to indemnify and hold harmless the City, its officers, agents, and volunteers from any and all claim, actions, losses, damages and/or liability resulting from 2 2009-345 Vendor's negligent acts or omissions arising from the Vendor's performance of its obligations under the Agreement. In the event the City and/or the Vendor is found to be comparatively at fault for any claim, action, loss, or damage which results from their respective obligations under the Agreement, the City and/or Vendor shall indemnify the other to the extent of this comparative fault. 6. 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 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. 7. 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. 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. Vendor warrants that it possesses or shall obtain, and maintain a business registration certificate as required under Chapter 5 of the Municipal Code, and any other license, permits, 3 2009-345 qualifications, insurance and approval of whatever nature that are legally required of Vendor to practice its business or profession. 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: Fire Department 200 East Third Street San Bernardino, CA 92410 Telephone: (909) 384-5286 TO THE Vendor: L.N. Curtis & Sons Attn: Brent Fletcher 2600 E. 8th Street Los Angeles, CA 90023 Telephone: (323) 780-0254 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. V endor 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. 4 2009-345 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 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. 5 2009-345 17. 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 subj ect manner 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: No~ ~1:) , 2009 ~:~ Its: {2.e6e~ IN. UAfZ:YL) Otv-lSlfN KAPAcrt'<<- Dated If 5' ,2009 CITY OF SAN BERNARDINO By: Charles McNeely, City Approved as to Form: James F. Penman, City Attorney ~~ 6 , . 2009-345 ATTACHMENT "E" PURCHASE AGREEMENT Mallory Fire This Purchase Agreement is entered into this 2nd day of November , 2009, by and between Mallorv Fire ("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 contract for the purchase of brush jackets, brush pants, and turnout boots; and WHEREAS, the City of San Bernardino did solicit and accept quotes from available Vendors for the purchase of protective clothing and equipment for structural firefighting; and WHEREAS, the Vendor submitted the lowest and best bid for brush jackets, brush pants, and turnout boots. NOW, THEREFORE, the parties hereto agree as follows: 1. SCOPE OF SERVICES. For the remuneration stipulated, San Bernardino hereby engages Vendor to provide brush jackets, brush pants, and turnout boots. 2. COMPENSATION AND EXPENSES. a. For the products and/or services delineated above, the City, upon presentation of an invoice, shall pay the Vendor up to the amount of$10.000 for of brush jackets, brush pants, and turnout boots. b. No other expenditures made by Vendor shall be reimbursed by City. 1 . . 2009-345 3. TERM; TERMINATION. This purchase shall be completed within, FY 09/10, September 1,2009 through June 30, 2010, plus two single year options. Actual option year pricing shall be negotiated with the successful bidder prior to exercising any given option year. The negotiated price upon the exercise of an option shall not exceed the price set forth herein. Option year shall become effective only upon issuance by the City of a duly authorized Purchase Order. 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. 4. WARRANTY Vendor expressly warrants that all products and services supplied to City by Vendor under this Agreement shall conform to the specifications, drawings or other description upon which this PURCHASE is based, shall be fit and sufficient for the purpose intended, merchantable, of good material and workmanship, free from defects and free and clear of all liens or encumbrances. Inspection, testing, acceptance or use of the goods by the City shall not affect Vendor's obligations under this warranty, and such warranty shall survive inspection, testing, acceptance and use. Vendor agrees to replace or correct promptly defects of any goods or services not conforming to the foregoing warranty without expense to the City, when notified of such non-conformity by City. If Vendor fails to correct the defects in or replace non-conforming goods or services promptly, City may, after reasonable notice to Vendor, make such corrections or effect cover, or cure, at Vendor's expense. "Reasonable notice" for purposes of this section shall not be deemed to require more than 60 calendars days notice before commencement of efforts by the City to effect cover or a cure except upon written agreement of the Parties. 2 , .. \ 2009-345 5. INDEMNITY. City agrees to indemnify and hold harmless Vendor, its officers, agents and volunteers from any and all claims, actions, losses, damages and/or liability resulting from City's negligent acts or omissions arising from the City's performance of its obligations under the Agreement. Vendor agrees to indemnify and hold harmless the City, its officers, agents, and volunteers from any and all claim, actions, losses, damages and/or liability resulting from Vendor's negligent acts or omissions arising from the Vendor's performance of its obligations under the Agreement. In the event the City and/or the Vendor is found to be comparatively at fault for any claim, action, loss, or damage which results from their respective obligations under the Agreement, the City and/or Vendor shall indemnify the other to the extent of this comparative fault. 6. 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 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. 7. 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, 3 I . 2009-345 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. 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. Vendor warrants that it possesses or shall obtain, and maintain a business registration certificate as required under Chapter 5 of the Municipal Code, and any other license, permits, qualifications, insurance and approval of whatever nature that are legally required of Vendor to practice its business or profession. 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: Fire Department 200 East Third Street San Bernardino, CA 92410 Telephone: (909) 384-5286 TO THE Vendor: Mallory Fire 236 W. Orange Show Road #103 San Bernardino, CA 92408 Telephone: (909) 383-0147 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. 4 2009-345 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. 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. 5 2009-345 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 supercedes any prior agreements and understandings relating to the subj ect manner 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: }J"" Ib-tYt, 2009 MALLORY FIRE BY:~~ .~~ Its: -i!ff Dated #hJ:=: , 2009 CITY OF SAN BERNARDINO Approved as to Form: James F. Penman, City Attorney 6