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HomeMy WebLinkAbout2014-308 (IMPORTANT NOTE: Resolution is Null and Void because the Agreement was not executed within the time specified.) RESOLUTION NO. 2014-308 1 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A VENDOR 3 SERVICE AGREEMENT AND ISSUANCE OF AN ANNUAL PURCHASE ORDER 4 NOT TO EXCEED $35,000 WITH TWO ONE-YEAR EXTENSIONS AT THE CITY'S OPTION TO CUMMINS PACIFIC FOR SERVICE AND PARTS FOR CUMMINS 5 ENGINES. 6 NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 7 8 SECTION 1. The City Manager is hereby authorized and directed to execute on 9 behalf of said City an Agreement between the City of San Bernardino and Cummins Pacific, a 10 copy of which is attached hereto marked Exhibit "A" and incorporated herein by reference as 11 fully as though set forth at length. 12 SECTION 2. This purchase is exempt from the formal contract procedure of Sections 13 14 3.04.010 of the Municipal Code, pursuant to Sections 3.04.010 13.3 of said Code "Purchases 15 approved by the Mayor and Common Council." 16 SECTION 3. That pursuant to this determination, the Director of Finance or designee 17 is hereby authorized to issue an Annual Purchase Order to Cummins Pacific in the amount not 18 to exceed $35,000 with two (2) one-year extensions at the City's option. 19 20 SECTION 4. The Purchase Order shall reference this Resolution Number and shall 21 read, "Cummins Pacific for Cummins engine repair service and parts. Agreement not to 22 exceed $35,000" and shall incorporate the terms and conditions of the Agreement. 23 SECTION 5. The authorization to execute the above-referenced Agreement is 24 rescinded if it is not executed by both parties within sixty (60) days of the passage of this 25 Resolution. 26 27 28 2014-308 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A VENDOR 2 SERVICE AGREEMENT AND ISSUANCE OF AN ANNUAL PURCHASE ORDER NOT TO EXCEED $35,000 WITH TWO ONE-YEAR EXTENSIONS AT THE CITY'S 3 OPTION TO CUMMINS PACIFIC FOR SERVICE AND PARTS FOR CUMMINS 4 ENGINES. 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 6 and Common Council of the City of San Bernardino at a j oint regular meeting 7 thereof, held on the 4th day of August , 2014, by the following vote, to wit: 8 9 Council Members: AYES NAYS ABSTAIN ABSENT 10 MARQUEZ x 11 BARRIOS x 12 VALDIVIA x 13 SHORETT x 14 NICKEL x 15 16 JOHNSON 17 MULVIHILL x 18 19 Geor: 'nn Hann , City Clerk 20 The foregoing resolution is hereby approved this -day of August , 2014. 21 22 23 R. Carey P avis, ayor City of San B- ardino 24 Approved as to form: 25 Gary D. Saenz, City Attorney 26 By: •_A t C_v 27 28 2014-308 VENDOR SERVICE AGREEMENT BETWEEEN THE CITY OF SAN BERNARDINO AND CUMMINS PACIFIC FOR SERVICE AND PARTS FOR CUMMINS ENGINES This Vendor Service Agreement is entered into this 4th day of Augusi0l4, by and between Cummins Pacific ("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 Cummins engine repairs including purchase of various related parts; and WHEREAS, the Vendor is the only manufacturer of commercial alternative fuel engines and are a distributor of Cummins engines , parts and service; and, WHEREAS, this new Agreement supersedes all previous Agreements with the VENDOR; NOW, THEREFORE, the parties hereto agree as follows: 1. SCOPE OF SERVICES. For the remuneration stipulated in Section 2, the City of San Bernardino hereby engages the services of VENDOR to provide repairs, services on Cummins engines and supply certified Cummins parts. 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$35,000 for specific Cummins manufactured parts and service for the City's commercial alternative fuel engines. b. No other expenditures made by VENDOR shall be reimbursed by CITY. /// Exhibit"A" 1 2014-308 3. TERM; TERMINATION. The term of this agreement shall be from August 8, 2014 through June 30, 2015, with two one-year extensions at the City's option. Option year one, if exercised, shall be effective July 1, 2015 through June 30, 2016. Option year two, if exercised, shall be effective July 1, 2016 through June 30, 2017. This Agreement may be terminated at any time by thirty (30) days prior written notice by either party. The terms of this Agreement shall remain in force unless amended by written agreement of the parties executed on or before date of expiration of current term of the agreement. 4. 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 Exhibit"A" 2 2014-308 before commencement of efforts by the City to effect cover or a cure except upon written agreement of the 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 of the foregoing indemnity, Vendor agrees to protect and defend at its own expense, including attorney's fees the City, its elected officials, employees, agents or representatives from any and all legal actions based upon such actual or alleged acts or omissions. Vendor hereby waives any and all rights to any types of express or implied indemnity against the City, its elected officials, employees, agents or representatives, with respect to third party claims against the Vendor relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement. 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 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 Exhibit"A" 3 2014-308 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 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. 10. 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: Exhibit"A" 4 2014-308 TO THE CITY: Public Works Director 300 North"D" Street San Bernardino, CA 92418 Telephone: (909) 384-5140 TO THE VENDOR: Cummins Pacific 3061 S. Riverside Bloomington CA 92316 Telephone: (909) 877-0433 Contact: 11. 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. 12. 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. /// /// Exhibit"A" 5 2014-308 13. 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. 14. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. 15. 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. 16. 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. 17. 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. 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 Exhibit"A" 6 2014-308 of this Agreement. This Agreement may be modified or amended only by a written instrument executed by all parties to this Agreement. /// /// /// Exhibit"A" 7 2014-308 VENDOR SERVICE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND CUMMINS PACIFIC FOR SERVICE AND PARTS FOR CUMMINS ENGINES IN WITNESS THEREOF,the parties hereto have executed this Agreement on the day and date set forth below. Dated: , 2014 CUMMINS PACIFIC By: Dated , 2014 CITY OF SAN BERNARDINO By: Allen J. Parker, City Manager Approved as to Form: Gary D. Saenz, City Attorney By: A, • Exhibit"A" 8