HomeMy WebLinkAbout2010-348
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RESOLUTION NO. 2010-348
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AMENDMENT
TO THE AGREEMENT WITH NELSON PAVING AND GRADING CORPORATION
IN ORDER TO INCLUDE ASPHALT PAVING AND REPAIR SERVICES AT
MEDICAL CENTER DR. FROM 9TH ST. TO 16TH ST.
WHEREAS, on March 1, 2010 per Resolution 2010-38, the Mayor and Common
Council authorized an Agreement with Nelson Paving and Grading Corporation; and
WHEREAS, the current Purchase Order of $550,900 needs to be increased by
$100,000 for a total Purchase Order amount of$650,900; and
NOW, THEREFORE, BE IT RESOLVED THAT THE MAYOR AND COMMON
COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. That the City Manager is hereby authorized to execute on behalf of the
City of San Bernardino an Amendment to the Agreement between said City and Nelson Paving
and Grading Corporation, a copy of which is attached hereto, marked Exhibit "A" and
incorporated herein by this reference as fully as though set forth at length.
SECTION 2. That pursuant to this determination the Director of Finance or her
designee is hereby authorized to increase purchase order 211425 to Nelson Paving and Grading
Corporation for a total amount of $650,900.
SECTION 3. The Purchase Order shall reference this Resolution Number and shall
read, "Nelson Paving and Grading Corporation in order to include asphalt paving and repair
services at Medical Center Dr. from 9th St. to 16th St." Purchase Order not to exceed $650,900
and shall incorporate the terms and conditions of the Agreement.
SECTION 4. The authorization to execute the above referenced Amendment is
rescinded if it is not executed by both parties within sixty (60) days of the passage of this
resolution.
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2010-348
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AMENDMENT
TO THE AGREEMENT WITH NELSON PAVING AND GRADING CORPORATION
IN ORDER TO INCLUDE ASPHALT PAVING AND REPAIR SERVICES AT
MEDICAL CENTER DR. FROM 9TH ST. TO 16TH ST.
I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor
5 and Common Council of the City of San Bernardino at a j oint regular meeting thereof,
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9 MARQUEZ
held on the 18th
day of October
, 2010 by the following vote, to wit:
Council Members:
Ayes
Nays
Abstain
Absent
x
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x
DESJARDINS
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BRINKER
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SHORETT
KELLEY
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JOHNSON
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MCCAMMACK
a~ k. ~
'- City Clerk
"f"l~
The foregoing resolution is hereby approved this OLe ~
day of
October
,2010.
~
a es F. Penman, City Attorney
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2010-348
AMENDMENT NO.1 TO VENDOR SERVICES AGREEMENT
NELSON PAVING AND GRADING CORPORATION
This Amendment No. 1 ("Amendment 1") is entered into this 18th day of
October 2010, by and between Nelson Paving and Grading Corporation
("VENDOR") and the City of San Bernardino ("CITY" or "San Bernardino").
RECIT ALS
A. On March 1, 2010, per Resolution 2010-38, the Mayor and Common Council of
the City of San Bernardino authorized the execution of an Agreement and
issuance of a Purchase Order in the amount of $603,900 with four one-year
extensions at the City's option to Nelson Paving and Grading Corporation for
asphalt paving and repair services throughout the City of San Bernardino, a copy
of which is attached hereto as "Attachment 1" and incorporated by this reference.
B. The CITY and VENDOR now desire to amend the Agreement to increase the
amount of the Agreement by $47,000 for a total not-to-exceed purchase price of
$650,900 for asphalt paving and repair services throughout the City of San
Bernardino.
AGREEMENT
In consideration of the mutual promises contained in the Vendor Services
Agreement, the parties agree as follows:
1. Section 2 (a) of the Agreement is amended by striking $603,900 and adding
the term $650,900.
2. The other provisions of the written contract are reaffirmed as originally stated.
EXHIBIT "A"
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2010-348
AMENDMENT NO.1 TO VENDOR SERVICES AGREEMENT
NELSON PAVING AND GRADING CORPORATION
IN WITNESS THEREOF, the parties hereto have executed the Agreement on the day
and date first above written.
Dated: 1/-/0 -10 ,2010
By:
Dated:
,2010
ATTEST:
a~ /~. ~
"-
Rachel Clark, City Clerk
Approved as to form:
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2010-348
Attachment "I"
VENDOR SERVICE AGREEMENT
This Vendor Service Agreement is entered into this 1st day of March 2010, by and
between Nelson Paving and Grading Corporation (NPG) ("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 asphalt paving and repair services; and
WHEREAS, the City of San Bernardino did solicit and accept bids from available
vendors for asphalt paving and repair services per RFQ F-10-04; and,
WHEREAS, Nelson Paving and Grading Corporation (NPG) submitted the lowest best
bid.
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 RFQ F-10-04, a
copy of which is attached hereto as Attachment "1" and incorporated by this reference.
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 $603,900 for asphalt paving and repair
services. Purchase Order not to exceed the total amount of$603,900.
b. No other expenditures made by VENDOR shall be reimbursed by CITY.
3. TERM; TERMINATION.
The term of this agreement shall be from March 1, 2010 through June 30, 2010, with
four (4) one-year extensions at the City's option. Option year one, if exercised, shall be
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2010-348
effective July 1, 2010 through June 30, 2011. Option year two, if exercised, shall be effective
July 1, 2011 through June 30, 2012. Option year three, if exercised, shall be effective July I,
2012 through June 30, 2013. Option year four, if exercised, shall be effective July 1, 2013
through June 30, 2014.
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. Price in any option year shall be as negotiated by the parties at the time of exercise
of the option. In no option year shall the price exceed that set forth herein.
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 fee 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
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2010-348
before commencement of efforts by the City to effect cover or a cure except upon written
agreement ofthe Parties.
5. 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 ofthe 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.
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 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
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2010-348
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.
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 conditions, marital status, sexual gender or
sexual orientation, or any other status protected by law.
8. 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.
9. 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.
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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:
Nelson Paving and Grading Corporation (NPG)
1354 Jet Way
Perris, CA 92571
Telephone: (951) 940-0200
Contact:
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
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2010-348
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 ofthis 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 ofthis 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 ofthe offending provision in any
other circumstance, and the remaining provisions of this Agreement shall remain in full force
and effect.
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17. REMEDIES; WAIVER. -
All remedies available to either party for one or more breaches by the other party are
and shall be deemed cumulative and may be exercised separately or concurrently without
waiver of any other remedies. The failure of either party to act in the event of a breach of this
Agreement by the other shall not be deemed a waiver of such breach or a waiver of future
breaches, unless such waiver shall be in writing and signed by the party against whom
enforcement is sought.
18. 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.
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2010-348
VENDOR SERVICE AGREEMENT
NELSON PAVING AND GRADING CORPORATION (NPG)
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IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and
date set forth below.
Dated: ?:J/2-S ,2010
Dated~,2010
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