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HomeMy WebLinkAbout2011-295 1 RESOLUTION NO. 2011-295 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND ISSUANCE OF AN ANNUAL PURCHASE ORDER WITH ONE ONE-YEAR EXTENSION AT THE CITY'S OPTION TO WILLDAN TO EXECUTE AND ADMINISTER THE CONTRACT WITH SOUTHERN CALIFORNIA EDISON CONCERNING THE USE OF FUNDS FROM THE FLIGHT 5.6 STRATEGIC PLAN: LOCAL GOVERNMENT STRATEGIES. 3 4 5 6 7 WHEREAS, Willdan submitted the lowest qualified bid concerning the use of 8 funds from the Southern California Edison Flight 5.6 Strategic Plan: Local Government 9 Strategies per RFQ F -12-01 ; 10 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 11 12 SECTION 1. The City Manager of the City of San Bernardino IS hereby 13 authorized to execute on behalf of said City an Agreement between the City of San 14 Bernardino and Willdan, a copy of which is attached hereto, marked as Exhibit "A", and 15 incorporated herein by this reference as fully as though set forth at length. 16 SECTION 2. That pursuant to this determination the Director of Finance or her 17 18 designee is hereby authorized to issue an Annual Purchase Order to Willdan not to 19 exceed $291,700. 20 SECTION 3. The Purchase Order shall reference this Resolution Number and 21 shall read, "Willdan - Southern California Edison Concerning the use of funds from the 22 Flight 5.6 Strategic Plan" Agreement not to exceed $291,700" and shall incorporate the 23 terms and conditions of the agreement. 24 SECTION 4. The authorization to execute the above referenced Purchase Order 25 26 and Agreement is rescinded if it is not executed by both parties within sixty (60) days of 27 the passage of this resolution. 28 III 2011-295 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND ISSUANCE OF AN ANNUAL PURCHASE ORDER WITH ONE ONE-YEAR EXTENSION AT THE CITY'S OPTION TO WILLDAN TO EXECUTE AND ADMINISTER THE CONTRACT WITH SOUTHERN CALIFORNIA EDISON CONCERNING THE USE OF FUNDS FROM THE FLIGHT 5.6 STRATEGIC PLAN: LOCAL GOVERNMENT STRATEGIES. 2 3 4 5 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the 7 Mayor and Common Council of the City of San Bernardino at a Regular meeting 8 thereof, held on the 7th 9 to wit: 10 11 Council Members: 12 MARQUEZ 13 14 JENKINS 15 BRINKER 16 SHORETT 17 KELLEY 18 JOHNSON 19 MCCAMMACK 20 21 22 23 day of November , 2011, by the following vote, AYES NAYS ABSTAIN ABSENT x x x x x x x rR~/~.~ . '--' Rachel G. Clark, City Clerk The foregoing resolution IS hereby approved this / t1 Y;J;' day of 24 November ,2011. 26 ~~~ City of San Bernardino 25 27 Approved as to Form: '- ~ ~: ~ James F. Penman, City Attorney 2011-295 EXHIBIT A VENDOR SERVICE AGREEMENT This Vendor Service Agreement is entered into this 7th day ofNovember2011, by and between Willdan ("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 Professional Consulting Services for the Implementation ofthe City's Energy Efficiency Strategic Plan.; and WHEREAS, the City of San Bernardino did solicit and accept bids from available vendors for Professional Consulting Services for the Implementation of the City's Energy Efficiency Strategic Plan per RFQ F-12-01; and, WHEREAS, Willdan is the lowest qualified bidder to provide said services to City; NOW, THEREFORE, the parties hereto agree as follows: 1. SCOPE OF SERVICES. For the remuneration stipulated, San Bernardino hereby engages the services of VENDOR to provide those products and services as set forth in RFQ F-12-01 and Addendum, a copy of which is on file in the Public Works Department and a copy of the Bid Summary Sheet. This contract shall not exceed $291,700 and billing shall be monthly and shall correspond to the table in the RFP. 2. COMPENSATION AND EXPENSES. Page 1 2011-295 a. For the services delineated above, the CITY, upon presentation of an invoice, the VENDOR in compliance with Billing Table listed in the RFP for Professional Consulting Services for the Implementation of the City's Energy Efficiency Strategic Plan for FY 2011-12 and FY 2012-13. The City retains the right to withhold 10% ofthe fee proposal amount upon receiving and mutually agreeing on the Final Report and services thereof. b. No other expenditures made by VENDOR shall be reimbursed by CITY. 3. TERM; TERMINATION. The term of this Agreement shall be from October 17,2011 through June 30, 2013. This Agreement may be terminated at any time by thirty (30) days' written notice by either party for any reason. The terms of this Agreement shall remain in force unless amended by written agreement of the parties executed on or before the date of expiration of the current term of the Agreement. 4. CONTRACTOR NON-COMPLIANCE A. If the Director of Public Works, or his designee, determines that there are deficiencies in the performance of this Agreement, the Director of Public Works, or his designee, will provide a written notice to the vendor stating the deficiencies and specifying a time frame to correct the specified deficiencies. This time frame shall be reasonable, as determined by the Director of Public Works, or his designee, to correct the specified deficiencies. B. Should the VENDOR fail to correct any deficiencies within the stated time frame, the Director of Public Works, or designee, may exercise the following measures: Page 2 2011-295 1. Deduct from the VENDOR'S payment the amount necessary to correct the deficiency, including City overhead costs and impose a deficiency deduction. 2. Withhold the entire or partial payment. 3. Terminate the contract and award to second bidder. 4. INDEMNITY. Vendor shall defend, indemnify, and hold harmless the City, its officers, employees and agents from any claims, demands, lawsuits, liabilities, judgments, or expenses, including attorney's fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims, to the extent arising out of, pertaining to, or related to the negligence, recklessness, or willful misconduct of Vendor, its employees, agents or subcontractors in the performance of this Agreement, except that such duty to defend, indemnify, and hold harmless shall not apply to the extent where injury to person or property is caused by City's negligence, recklessness or willful misconduct. Vendor hereby waives any and all rights to any types of express or implied indemnity from 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 Page 3 2011-295 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 30 days' notice prior to 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. 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 Page 4 2011-295 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. 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 Works Director 300 North "D" Street San Bernardino, CA 92418 Telephone: (909) 384-5140 TO THE VENDOR: Willdan 650 E. Hospitality Lane, Suite 400 San Bernardino, CA 92408-3317 Telephone: (909) 386-0200 9. 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, and/or any retained counsel, shall be considered as Page 5 2011-295 "attorneys' fees" for the purposes of this paragraph. 10. 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. 11. 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, Eastern Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 12. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. 13. 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. 14. HEADINGS. The subject headings ofthe 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 Page 6 2011-295 prOVISIons. 15. 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. 16. 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 of this Agreement. This Agreement may be modified or amended only by a written instrument executed by all parties to this Agreement. Page 7 2011-~295 VENDOR SERVICE AGREEMENT VENDOR WILLDAN IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated: ,2011 By: EXHIBIT COPY Name: Title: ,2011 CITY OF SAN BERNARDINO By: EXHIBIT COPY Charles E. McNeely, City Manager Dated Approved as to Form: By: EXHIBIT COPY James F. Penman, City Attorney Page 8 . . 2011-295 VENDOR SERVICE AGREEMENT This Vendor Service Agreement is entered into this th day ofNovember2011, by and between Willdan ("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 Professional Consulting Services for the Implementation ofthe City's Energy Efficiency Strategic Plan.; and WHEREAS, the City of San Bernardino did solicit and accept bids from available vendors for Professional Consulting Services for the Implementation of the City's Energy Efficiency Strategic Plan per RFQ F ~ 12~0 1 ; and, WHEREAS, WiIldan is the lowest qualified bidder to provide said services to City; NOW, THEREFORE, the parties hereto agree as follows: 1. SCOPE OF SERVICES. For the remuneration stipulated, San Bernardino hereby engages the services of VENDOR to provide those products and services as set forth in RFQ F-12-0l and Addendum, a copy of which is on file in the Public Works Department and a copy of the Bid Summary Sheet. This contract shall not exceed $291,700 and billing shall be monthly and shall correspond to the table in the RFP. 2. COMPENSATION AND EXPENSES. Page 1 H .,.11I1) J4!Il "J.....,.4.~ 2011-295 a. For the services delineated above, the CITY, upon presentation of an invoice, the VENDOR in compliance with Billing Table listed in the RFP for Professional Consulting Services for the Implementation of the City's Energy Efficiency Strategic Plan for FY 2011-12 and FY 2012-13. The City retains the right to withhold 10% of the fee proposal amount upon receiving and mutually agreeing on the Final Report and services thereof. b. No other expenditures made by VENDOR shall be reimbursed by CITY. 3. TERM; TERMINATION. The term of this Agreement shall be from October 17,2011 through June 30, 2013. This Agreement may be terminated at any time by thirty (30) days' written notice by either party for any reason. The terms of this Agreement shall remain in force unless amended by written agreement of the parties executed on or before the date of expiration of the current term of the Agreement. 4. CONTRACTOR NON-COMPLIANCE A. If the Director of Public Works, or his designee, determines that there are deficiencies in the performance of this Agreement, the Director of Public Works, or his designee, will provide a written notice to the vendor stating the deficiencies and specifying a time frame to correct the specified deficiencies. This time frame shall be reasonable, as detel1nined by the Director of Public Works, or his designee, to correct the specified deficiencies. B. Should the VENDOR fail to correct any deficiencies within the stated time frame, the Director of Public Works, or designee, may exercise the following measures: Page 2 '1..1.. '"ij. .....i'.......,... II 4('__. .J WE,' 2011-295 1. Deduct from the VENDOR'S payment the amount necessary to correct the deficiency, including City overhead costs and impose a deficiency deduction. 2. Withhold the entire or partial payment. 3. Terminate the contract and award to second bidder. Page 3 2011-295 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 30 days' notice prior to 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. 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 pelformed hereunder. 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. VENDOR warrants that it possesses or shall obtain, and maintain a business Page 4 2011-295 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. 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 Works Director 300 North "D" Street San Bernardino, CA 92418 Telephone: (909) 384-5140 TO THE VENDOR: W illd an 650 E. Hospitality Lane, Suite 400 San Bernardino, CA 92408-3317 Telephone: (909) 386-0200 9. 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 palty 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, and/or any retained counsel, shall be considered as Page 5 ",'''''-.......~v~'W'.''t.~ ~f',lij_"",.,' r.' ,,~A: '""i,U j~,_,-~ ~~ ~,. r. -',-_~""''''''-^ 2011-295 "attorneys' fees" for the purposes of this paragraph. 10. 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 ofClTY'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. 11. 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, Eastern Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 12. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. 13. 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. 14. 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 Page 6 2011-295 provisions. 15. SEVERABILITY. If any provision of this Agreement is determined by a COUlt of competent jurisdiction to be invalid or unenforceable for any reason, such detennination 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. 16. 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 of this Agreement. This Agreement may be modified or amended only by a written instrument executed by all parties to this Agreement. Page 7 . ., 2011-295 VENDOR SERVICE AGREEMENT WILLDAN IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated~~t'm'# 7 , 2011 BY:~~ Name: ---,;; IV! T Ccu:uvc c:... Title: _Vice ?re~ ,J.etv+ Dated ~/ZI.HI1~d 9'1011 Approved as to Form: " ,.,..."~.~._--_........,,....~-- By: James F. Penman, City Attorney - -------.... Page 8