Loading...
HomeMy WebLinkAbout16- Public Services CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACH I GINA L From: Randy Kuettle, Acting Director Subject: Resolution of the Mayor and Dept: Public Services Common Council of the City of San Bernardino authorizing the execution of Date: September 15, 2009 an Agreement and issuance of a Contract Purchase Order in the amount of $2,544,397 with four (4) one-year extensions at the City's option to Matich Corporation for street paving services for mill and overlay projects. Meeting Date: September 21, 2009 Synopsis of Previous Council Action: Recommended Motion: 1) Adopt Resolution. 2) Authorize the Director of Finance to amend the FY 09-10 CIP Budget as outlined in the staff report. Signature Contact person: Randy Kuettle, Acting Director Phone: 5140 Supporting data attached: Ward: 1 , 2, 3, 4, 5 and 6 Staff Report, Resolution, Vendor Service Agreement and Attachment 1" and "2" FUNDING REQUIREMENTS: Amount: $2,544,397 Source: FY 09-10 CIP (See Attachment "I") Finance: Council Notes: sD `�aO9 T Agenda Item No. /to . • CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION Staff Report Subject: Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of an Agreement and issuance of a Contract Purchase Order in the amount of $2,544,397 with four (4) one-year extensions at the City's option to Matich Corporation for street paving services for mill and overlay projects. Background: The Public Services Department, Streets Division is responsible for street repair and maintenance activities. The Department also oversees mill and overlay projects as part of the Capital Improvement Projects (CIP) of City streets. The projects are selected segments of streets throughout the City. On May 7, 2009 a formal bid process was initiated to solicit bids for mill and overlay services. Notices of bids were e-mailed, posted to the web, printed on the newspaper and sent to the Chamber of Commerce and the nine (9) vendors (two local vendors, and seven non-local vendors). Six (6) vendors responded to RFQ- F-09-13. The vendor, business location, and bid quote for all categories are listed below: Vendor Location Bid Quote Matich Corporation San Bernardino, CA $85,308 (after 5% local preference) Hardy & Harper Santa Ana, CA $87, 880 NPG Incorporated Perris, CA $93,615 IPS San Bernardino $93,960 Pave West Incorporated La Habra, CA $124, 550 All American Corona, CA $143,000 Matich Corporation is the lowest bid for mill and overlay services when the 5 percent local preference is applied to their $89,798 bid. The $89,798 amount represents the actual contract price for the combined mill and overlay categories (i.e. units of measure for every 100,000 square feet of asphalt, mobilization per location, traffic control per day, etc.) as indicated in the bid summary sheet (See Attachment "2"). The actual total of$2,544,397 is based on the total cost of mill and overlay for all 17 projects that are anticipated by the pages on the bid documents entitled "Price Form — Annual Purchase Order". Staff recommends awarding Matich Corporation the contract for all projects (See Attachment "1"). The Matich Corporation has provided satisfactory paving and traffic control services in support of our mill and overlay maintenance program. Attached is a listing of the capital improvement project numbers, wards, account numbers, physical project locations and dollar amounts (that are included in the proposed budget amendment) to be spent on street paving services (Attachment "1") for the initial quantities as recently bid by the vendors noted above. Approval will allow these projects to be scheduled for completion this fiscal year. 1 CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report- Continued Two projects that were included in the FY 09-10 CIP Budget (SS 06-11 Rialto Ave. from Waterman to Arrowhead and SS 08-30 Mountain Ave. from Marshall to 39th St.) were actually completed at the end of FY 08-09 as part of two other CIP projects. Therefore, the $160,000 and $262,500 for SS 06-11 and SS 08-30 respectively can be re-budgeted to other CIP projects that have been identified to have funding shortfalls. Staff recommends the following actions and/or transfers in order to complete the FY 09-10 CIP projects: 1. Transfer $100,000 from Project SS 06-11 Account Number 135-378-5504-7873 (Rialto Ave. Pavement Rehabilitation from Waterman Ave. to Arrowhead Dr.) into SS 10-02 Account Number 135-378-5504-7879 (Chestnut from Irvington to Southerly Terminus). Due to recent pavement failure, additional funding is needed to complete this project. 2. Transfer $60,500 from Project SS 08-30 Account Number 135-378-5504-7875 (Mountain Ave. from Marshall Blvd. to 39th St.) to SS 06-31 (Mountain from Hill to Northpark) Account Number 135-378-5504-7887. In order to complete the full scope of the project, additional funds are needed. 3. Transfer $30,000 from Project SS 08-30 Account Number 135-378-5504-7875 (Mountain Ave. from Marshall Blvd. to 39th St.) into SS 09-18 (Hill from Western to G) Account Number 135-378-5504-7877. In order to complete the full scope of the project, additional funds are needed. 4. Transfer $172,000 from Project SS 08-30 Account Number 135-378-5504-7875 (Mountain Ave. from Marshall Blvd. to 391h St.) to SS 09-14 (Northpark from Sierra to Campus) Account Number 135-378-5504-7823. Since the Prop IB funds originally allocated for this project have been frozen by the State, at this time, this project is going to be switched to Prop 42 funding. Financial Impact: With approval of the above detailed budget amendments, all projects listed on Attachment "1" will have sufficient funding to cover all work to be done by Matich. Recommendation: 1) Adopt Resolution. 21 Authorize the Director of Finance to amend the FY 09-10 CIP Budget as outlined in the staff report. 2 I RESOLUTION NO. COPY 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND 3 ISSUANCE OF A CONTRACT PURCHASE ORDER IN THE AMOUNT OF 4 $2,544,397 WITH FOUR (4) ONE-YEAR EXTENSIONS AT THE CITY'S OPTION TO MATICH CORPORATION FOR STREET PAVING SERVICES FOR MILL AND 5 OVERLAY PROJECTS. 6 WHEREAS, Matich Corporation submitted the lowest bid for street paving 7 services for mill and overlay projects per RFQ F-09-13; 8 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 9 OF SAN BERNARDINO AS FOLLOWS: 10 SECTION 1. The City Manager of the City of San Bernardino is hereby 11 authorized to execute on behalf of said "City an Agreement between the Cit y of San 12 Bernardino and Matich Corporation, a copy of which is attached hereto, marked as 13 Exhibit "A", and incorporated herein by this reference as fully as though set forth at 14 15 length. The bid from Matich Corporation is hereby accepted as the lowest responsible 16 bid after applying the "Local Vendor Preference" as set forth in Section J of the 17 Instructions to Bidders, for a bid price equal to $89,798 and the lowest responsible bid 18 amount of$85,308 after applying the 5% Local Vendor Preference. 19 SECTION 2. That, in accordance with the Bid Documents for RFQ F-09-13, and 20 pursuant to this determination the Director of Finance or her designee is hereby 21 authorized to issue a Contract Purchase Order to Matich Corporation in the amount of 22 23 $2,544,397 for FY 09-10. 24 SECTION 3. The Contract Purchase Order shall reference this Resolution 25 Number and shall read, "Matich Corporation for street paving services for mill and 26 overlay projects. Agreement not to exceed $2,544,397" and shall incorporate the 27 terms and conditions of the agreement. 28 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND 2 ISSUANCE OF A CONTRACT PURCHASE ORDER IN THE AMOUNT OF $2,544,397 WITH FOUR (4) ONE-YEAR EXTENSIONS AT THE CITY'S OPTION TO 3 MATICH CORPORATION FOR STREET PAVING SERVICES FOR MILL AND OVERLAY PROJECTS. 4 5 SECTION 4. The authorization to execute the above referenced Contract 6 Purchase Order and Agreement shall be automatically rescinded if it is not executed 7 by both parties within sixty (60) days after the passage of this Resolution. 8 Ill 9 10 z, . 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /// 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND 2 ISSUANCE OF A CONTRACT PURCHASE ORDER IN THE AMOUNT OF $2,544,397 WITH FOUR (4) ONE-YEAR EXTENSIONS AT THE CITY'S OPTION TO 3 MATICH CORPORATION FOR STREET PAVING SERVICES FOR MILL AND OVERLAY PROJECTS. 4 5 1 HEREBY CERTIFY that the foregoing Resolution was duly adopted by the 6 Mayor and Common Council of the City of San Bernardino at a 7 meeting thereof, held on the day of 2009, by the 8 following vote, to wit: 9 Council Members: AYES NAYS ABSTAIN ABSENT 10 ESTRADA 11 12 BAXTER 13 BRINKER 14 SHORETT 15 KELLEY 16 JOHNSON 17 MCCAMMACK 18 19 20 Rachel G. Clark, City Clerk 21 The foregoing resolution is hereby approved this day of 22 , 2009. 23 24 Patrick J. Morris, Mayor City of San Bernardino 25 Approved as to Form: 26 By. (' 27 Tim Sabo Special Counsel 28 1 VENDOR SERVICE AGREEMENT 2 This Vendor Service Agreement is entered into this 2151 day of September 2009, by 3 and between Matich Corporation ("VENDOR") and the City of San Bernardino ("CITY" or 4 "San Bernardino"). 5 WITNESSETH: 6 7 WHEREAS, the Mayor and Common Council has determined that it is advantageous 8 and in the best interest of the CITY to contract for mill and overlay services; and 9 WHEREAS, the City of San Bernardino did solicit and accept proposals and bids from 10 a number of vendors for mill and overlay services per RFQ F-09-13. 11 NOW, THEREFORE,the parties hereto agree as follows: 12 1. SCOPE OF SERVICES. 13 14 For the remuneration stipulated, San Bernardino hereby engages the services of 15 VENDOR to provide those products and services as set forth in RFQ F-09-13, for mill and 1611 overlay services, dated June 4, 2009, attached hereto as Attachment "2" and incorporated 17 herein by this reference. 18 Z. COMPENSATION AND EXPENSES. 19 a. For the services delineated above, the CITY, upon presentation of an invoice, shall 20 21 pay the VENDOR pursuant to the bid summary sheet for vendor attached hereto as 22 Attachment "2" and made a part hereto the not to exceed amount of$2,544,397 for 23 street paving services. 24 b. No other expenditures made by VENDOR shall be reimbursed by CITY. 25 3. TERM; SEVERABILITY. 26 The term of this agreement shall be from September 8, 2009 through June 30, 2010, 27 with four (4) one-year extensions at the City's option. Option year one, if exercised, shall be 28 Exhibit"A" 1 1 effective July 1, 2010 through June 30, 2011. Option year two, if exercised, shall be effective 2 July 1, 2011 through June 30, 2012. Option year three, if exercised, shall be effective July 1, 3 2012 through June 30, 2013. Option year four, if exercised, shall be effective July 1, 2013 4 through June 30, 2014. Each option shall be exercised by written agreement of the parties 5 executed on or before expiration of the current term. 6 7 This Agreement may be terminated at any time by thirty (30) days,prior written notice 8 by either party. The terms of this Agreement shall remain in force unless amended by written 9 agreement of the parties executed on or before date of expiration of current term of the 10 agreement. 4 INDEMNITY. 12 Vendor agrees to and shall indemnify and hold the City, its elected officials, employees, 13 agents or representatives, free and harmless from all claims, actions, damages and liabilities of 14 15II any kind and nature arising from bodily injury, including death, or property damage, based on 16II asserted upon any or alleged act or omission of Vendor, its employees, agents, or 17 relating to or in any way connected with the accomplishment of the work or 18 performance of service under this Agreement, unless the bodily injuy or property damage was 19 actually caused by the sole negligence of the City, its elected officials, employees, agents or 20 representatives. As part of the foregoing indemnity, Vendor agrees to protect and defend at its 21 22 own expense, including attorney's fees the City, its elected officials, employees, agents or 23 representatives from any and all legal actions based upon such actual or alleged acts or 24 omissions. Vendor hereby waives any and all rights to any types of express or implied 25 indemnity against the City, its elected officials, employees, agents or representatives, with 26 respect to third party claims against the Vendor relating to or in any way connected with the 27 accomplishment of the work or performance of services under this Agreement. 28 Exhibit"A" 2 1 5. INSURANCE. C2 While not restricting or limiting the foregoing, during the term of this Agreement, S VENDOR shall maintain in effect policies .of comprehensive public, general and automobile 4 liability insurance, in the amount of $1,000,000.00 combined single limit, and statutory 5 worker's compensation coverage, and shall file copies of said policies with the CITY's Risk 6 7 Manager prior to undertaking any work under this Agreement. CITY shall be set forth as an 8 additional named insured in each policy of insurance provided hereunder. The Certificate of 9 Insurance furnished to the CITY shall require the insurer to notify'CITY of any change or 10 termination in the policy. 11 6. NON-DISCRIMINATION. 12 In the performance of this Agreement and in the hiring and recruitment of employees, 13 14 VENDOR shall not engage in, nor permit its officers, employees or agents to engage in, 15 discrimination in employment of persons because of their race, religion, color, national origin, 161 ancestry, age, mental or physical disability, medical conditions, marital status, sexual gender or 17 sexual orientation, or any other status protected by law, except as permitted pursuant to Section 18 12940 of the California Government Code. 19 INDEPENDENT CONTRACTOR 20 VENDOR shall perform work tasks provided by this Agreement, but for all intents and 21 22 purposes VENDOR shall be an independent contractor and not an agent or employee of the 23 CITY. VENDOR shall secure, at its expense, and be responsible for any and all payment of 24 Income Tax, Social Security, State Disability Insurance Compensation, Unemployment 25 Compensation, and other payroll deductions for VENDOR and its officers, agents, and 26 employees, and all business license, if any are required, in connection with the services to be 27 performed hereunder. 28 Exhibit"A" 3 1 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. 2 VENDOR warrants that it possesses or shall obtain, and maintain a business registration 3 certificate pursuant to Chapter 5 of the Municipal Code, and any other license, permits, 4 qualifications, insurance and approval of whatever nature that are legally required of VENDOR 5 to practice its business or profession. 6 9. NOTICES. 7 8 Any notices to be given pursuant to this Agreement shall be deposited with the United 9 States Postal Service,postage prepaid and addressed as follows: 10 TO THE CITY: Public Services Director 300 North"D" Street San Bernardino, CA 92418 12 Telephone: (909) 384-5140 13 TO THE VENDOR: Matich Corporation 1596 Harry Sheppard Blvd: 14 San Bernardino, CA 92408 15 Telephone: (909) 382-7423 Contact: Patrick Matich 1611 10. ATTORNEYS' FEES 17 18 In the event that litigation is brought by any party in connection with this Agreement, 19 the prevailing party shall be entitled to recover from the opposing party all costs and expenses, 20 including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of 21 its rights or remedies hereunder or the enforcement of any of the terms, conditions or 22 provisions hereof. The costs, salary and expenses of the City Attorney and members of his 23 office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' 24 fees" for the purposes of this paragraph. 25 26 27 28 Exhibit"A" 4 1 11. ASSIGNMENT. 2 VENDOR shall not voluntarily or by operation of law assign, transfer, sublet or 3 encumber all or any part of the VENDOR's interest in this Agreement without CITY's prior 4 written consent. An attempted assi Any p gnment, transfer, subletting or encumbrance shall be void 5 and shall constitute a breach of this Agreement and cause for the termination of this 6 7 Agreement. Regardless of CITY'S consent,no subletting or assignment shall release VENDOR 8 of VENDOR's obligation to perform all other obligations to be performed by VENDOR 9 hereunder for the term of this Agreement. 10 12. VENUE. 1 i The parties hereto agree that all actions or proceedings arising in connection with this 12 Agreement shall be tried and litigated either in the State courts located in the County of San 13 14 Bernardino, State of Califon is or the U.S. District Court for the Central District of California, 15 Riverside Division. The aforementioned choice of venue is intended by the parties to be the 161 mandatory and not permissive in nature. 17 13. GOVERNING LAW. 18 This Agreement shall be governed by the laws of the State of California. 19 14. SUCCESSORS AND ASSIGNS. 20 This Agreement shall be binding on and inure to the benefit of the parties to this 21 22 Agreement and their respective heirs,representatives, successors, and assigns. 23 15. HEADINGS. 24 The subject headings of the sections of this Agreement are included for the purposes of 25 convenience only and shall not affect the construction or the interpretation of any of its 26 provisions. E'1+ 27 fir► 28 Exhibit"A" 5 1 16. ENTIRE AGREEMENT; MODIFICATION. 2 This Agreement constitutes the entire agreement and the understanding between the 3 parties, and supercedes any prior agreements and understandings relating to the subject manner 4 of this Agreement. This Agreement may be modified or amended only by a written instrument 5 executed by all parties to this Agreement. 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit "A" 6 1 VENDOR SERVICE AGREEMENT MATICH CORPORATION 2 3 IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day 4 and date set forth below. 5 Dated: , 2009 VENDOR. 6 By: 7 8 Dated 2009 CITY OF SAN BERNARDINO 9 By: 10 Charles E.McNeely, City Manager 11 12 Approved as to Form: 13 14 By: 15 Tim Sabo Special Counsel 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit"A" 7 I VENDOR SERVICE AGREEMENT 2 This Vendor Service Agreement is entered into this 21st day of September 2009, by 3 and between Matich Corporation ("VENDOR") and the City of San Bernardino ("CITY" or 4 "San Bernardino"). 5 WITNESSETH: 6 7 WHEREAS,the Mayor and Common Council has determined that it is advantageous 8 and in the best interest of the CITY to contract for mill and overlay services; and 9 WHEREAS, the City of San Bernardino did solicit and accept proposals and bids from 10 a number of vendors for mill and overlay services per RFQ F-09-13. 11 NOW, THEREFORE, the parties hereto agree as follows: 12 1. SCOPE OF SERVICES. 13 14 For the remuneration stipulated, San Bernardino hereby engages the services of 15 VENDOR to provide those products and services as set forth in RFQ F-09-13, for mill and 16 overlay services, dated June 4, 2009, attached hereto as Attachment "2" and incorporated 17 herein by this reference. 18 2. COMPENSATION AND EXPENSES. 19 a. For the services delineated above, the CITY, upon presentation of an invoice, shall 20 pay the VENDOR pursuant to the bid summary sheet for vendor attached hereto as 21 22 Attachment "2" and made a part hereto the not to exceed amount of$2,544,397 for 23 street paving services. 24 b. No other expenditures made by VENDOR shall be reimbursed by CITY. 25 3. TERM; SEVERABILITY. 26 The term of this agreement shall be from September 8, 2009 through June 30, 2010, 27 with four (4) one-year extensions at the City's option. Option year one, if exercised, shall be 28 1 1 effective July 1, 2010 through June 30, 2011. Option year two, if exercised, shall be effective 2 July 1, 2011 through June 30, 2012. Option year three, if exercised, shall be effective July 1, 3 2012 through June 30, 2013. Option year four, if exercised, shall be effective July 1, 2013 4 through June 30, 2014. Each option shall be exercised by written agreement of the parties 5 executed on or before expiration of the current term. 6 7 This Agreement may be terminated at any time by thirty (30) days prior written notice 8 by either party. The terms of this Agreement shall remain in force unless amended by written 9 agreement of the parties executed on or before date of expiration of current term of the 10 agreement. 4. INDEMNITY. 12 Vendor agrees to and shall indemnify and hold the City, its elected officials, employees, 13 14 agents or representatives, free and harmless from all claims, actions, damages and liabilities of 15 any kind and nature arising from bodily injury, including death, or property damage, based on 16 asserted upon any or alleged act or omission of Vendor, its employees, agents, or 17 subcontractors, relating to or in any way connected with the accomplishment of the work or 18 performance of service under this Agreement, unless the bodily injury or property damage was 19 actually caused by the sole negligence of the City, its elected officials, employees, agents or 20 21 representatives. As part of the foregoing indemnity, Vendor agrees to protect and defend at its 22 own expense, including attorney's fees the City, its elected officials, employees, agents or 23 representatives from any and all legal actions based upon such actual or alleged acts or 24 omissions. Vendor hereby waives any and all rights to any types of express or implied 25 indemnity against the City, its elected officials, employees, agents or representatives, with 26 respect to third party claims against the Vendor relating to or in any way connected with the 27 28 accomplishment of the work or performance of services under this Agreement. 2 1 5. INSURANCE. 2 While not restricting or limiting the foregoing, during the term of this Agreement, 3 VENDOR shall maintain in effect policies of comprehensive public, general and automobile 4 liability insurance, in the amount of $1,000,000.00 combined single limit, and statutory 5 6 worker's compensation coverage, and shall file copies of said policies with the CTTYs Risk 7 Manager prior to undertaking any work under this Agreement. CITY shall be set forth as an 8 additional named insured in each policy of insurance provided hereunder. The Certificate of 9 Insurance furnished to the CITY shall require the insurer to notify CITY of any change or 10 termination in the policy. 11 6. NON-DISCRIMINATION. 12 13 In the performance of this Agreement and in the hiring and recruitment of employees, 14 VENDOR shall not engage in, nor permit its officers, employees or agents to engage in, © 15 discrimination in employment of persons because of their race, religion, color, national origin, 16 ancestry, age, mental or physical disability, medical conditions, marital status, sexual gender or 17 sexual orientation, or any other status protected by law, except as permitted pursuant to Section 18 12940 of the California Government Code. 19 INDEPENDENT CONTRACTOR 20 21 VENDOR shall perform work tasks provided by this Agreement, but for all intents and 22 purposes VENDOR shall be an independent contractor and not an agent or employee of the 23 CITY. VENDOR shall secure, at its expense, and be responsible for any and all payment of 24 Income Tax, Social Security, State Disability Insurance Compensation, Unemployment 25 Compensation, and other payroll deductions for VENDOR and its officers, agents, and 26 employees, and all business license, if any are required, in connection with the services to be © 27 performed hereunder. 28 3 1 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. 2 VENDOR warrants that it possesses or shall obtain, and maintain a business registration 3 certificate pursuant to Chapter 5 of the Municipal Code, and any other license, permits, 4 qualifications, insurance and approval of whatever nature that are legally required of VENDOR 5 to practice its business or profession. 6 7 9. NOTICES. 8 Any notices to be given pursuant to this Agreement shall be deposited with the United 9 States Postal Service,postage prepaid and addressed as follows: 10 TO THE CITY: Public Services Director 11 300 North"D" Street San Bernardino, CA 92418 12 Telephone: (909) 384-5140 13 TO THE VENDOR: Matich Corporation 1596 Harry Sheppard Blvd. 14 San Bernardino, CA 92408 ` 15 Telephone: (909) 382-7423 Contact: Patrick Matich 16 10. ATTORNEYS' FEES 17 18 In the event that litigation is brought by any party in connection with this Agreement, 19 the prevailing party shall be entitled to recover from the opposing party all costs and expenses, 20 including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of 21 its rights or remedies hereunder or the enforcement of any of the terms, conditions or 22 provisions hereof. The costs, salary and expenses of the City Attorney and members of his 23 office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' 24 25 fees" for the purposes of this paragraph. 26 © 27 28 4 1 11. ASSIGNMENT. 2 VENDOR shall not voluntarily or by operation of law assign, transfer, sublet or 3 encumber all or any part of the VENDOR's interest in this Agreement without CITY'S prior 4 written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void 5 and shall constitute a breach of this Agreement and cause for the termination of this 6 7 Agreement. Regardless of CITY's consent, no subletting or assignment shall release VENDOR 8 of 'VENDOR's obligation to perform all other obligations to—be performed by VENDOR 9 hereunder for the term of this Agreement. 10 12. VENUE. 11 The parties hereto agree that all actions or proceedings arising in connection with this 12 Agreement shall be tried and litigated either in the State courts located in the County of San 13 Bernardino, State of California or the U.S. District Court for the Central District of California, 14 15 Riverside Division. The aforementioned choice of venue is intended by the parties to be the 16 mandatory and not permissive in nature. 17 13. GOVERNING LAW. 18 This Agreement shall be governed by the laws of the State of California. 19 14. SUCCESSORS AND ASSIGNS. 20 This Agreement shall be binding on and inure to the benefit of the parties to this 21 22 Agreement and their respective heirs, representatives, successors, and assigns. 23 15. HEADINGS. 24 The subject headings of the sections of this Agreement are included for the purposes of 25 convenience only and shall not affect the construction or the interpretation of any of its 26 provisions. 27 28 5 1 16. ENTIRE AGREEMENT; MODIFICATION. 2 This Agreement constitutes the entire agreement and the understanding between the 3 parties, and supercedes any prior agreements and understandings relating to the subject manner 4 of this Agreement. This Agreement may be modified or amended only by a written instrument 5 executed by all parties to this Agreement. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Q 27 28 6 1 VENDOR SERVICE AGREEMENT MATICH CORPORATION 2 IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day 3 4 and date set forth below. 5 Dated: , 2009 VENDOR. 6 By: 7 8 Dated 2009 CITY OF SAN BERNARDINO 9 By: 10 Charles E. McNeely, City Manager 12 Approved as to Form: 13 14 By: 15 Tim Sabo ` f Special Coun 1% 16 17 18 19 20 21 22 23 24 25 26 t'* 27 �r 28 7