HomeMy WebLinkAboutS4- Mayor's Office N
CITY-OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION
From: Mayor Tom Minor Subject: Resolution approving agreement between the
City of San Bernardino and Our Town
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Dept: Mayor's Office O relating to retail sale of City
surplus goods.
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Date: March 18, 1996
Synopsis of Previous Council action:
None
Recommended motion:
Adopt Resolution
and
That further reading of the ordinances be waived and that they be laid
over for final adoption.
ignature
Contact person: Mayor Tom Minor Phone: 5133
Supporting data attached: Staff report and Ordinances Ward:
FUNDING REQUIREMENTS: Amount: None
Source: (Acct. No.) -0-
(Acct. Description) -0-
Finance:
Council Notes:
/7 RIZ
75-0262 Agenda Item No.�"� Q�;6,C.
1 AGREEMENT
2 THIS AGREEMENT is made and entered this day of , 1996, by and
3 between the City of San Bernardino, a Charter City of the State of California ("CITY") and Vivian and
4 Ed Foster, doing business as Our Town ("OUR TOWN") with respect to the following facts:
5 WHEREAS, OUR TOWN desires to market surplus goods of the CITY in its retail store to
6 be located within the Carousel Mall in the City of San Bernardino.
7 WHEREAS, the parties hereto wish to enter into an Agreement pursuant to which the CITY
8 will make available to OUR TOWN surplus goods as permitted by the San Bernardino Municipal Code.
9 WHEREAS, OUR TOWN desires to utilize the CITY Seal or insignia on merchandise to be
10 sold within its retail store within the Carousel Mall in the City of San Bernardino.
11 WHEREAS, the sale of surplus items relating to and connected to the CITY and the retail use
12 of the CITY Seal or insignia benefits the public by increasing public pride for the community as well
13 as promoting positive publicity for the CITY.
14 NOW, THEREFORE, in consideration of the above premises and of the covenants and
15 representations herein contained, the parties covenant and represent as follows:
16 1. CITY agrees to allow OUR TOWN to obtain from the CITY, when available, surplus
17 goods with an estimated value of$1,000 or less as allowed under San Bernardino Municipal Code
18 Section 3.04.105. Parties further agree that the CITY has the right to withhold certain surplus items
19 that may have some historical value to the CITY.
20 2. OUR TOWN agrees that all surplus goods obtained from the CITY will be sold in its
21 retail store located in the Carousel Mall in the City of San Bernardino at a price predetermined by OUR
22 TOWN and the CITY. It is further agreed that the predetermined price may be discounted by OUR
23 TOWN from time to time in keeping with retail practices. Any items not sold within a reasonable time
24 shall be returned to the Purchasing Agent for the CITY for disposal according to normal procedures
25 as provided in the applicable sections of the San Bernardino Municipal Code.
26 3. OUR TOWN agrees to sell CITY's surplus goods to the public "as is" and "with all
27 faults," along with disclaimers as to warranties of merchantability and fitness for a particular purpose.
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1 EXHIBIT "A"
1 4. OUR TOWN further agrees to post a sign in its retail store informing the public that
2 OUR TOWN is not owned by, operated by, or affiliated with the CITY.
3 5. The risk of loss or damage to the surplus goods shall pass to OUR TOWN upon its
4 receipt of physical possession of such goods from the CITY and shall remain with OUR TOWN until
5 the goods are sold or returned to the physical possession of the CITY.
6 6. The parties agree that OUR TOWN will retain forty percent (40%) of all amounts
7 received in the marketing and sale of CITY surplus goods. The remaining sixty percent (60%) of the
8 proceeds from the sale of CITY surplus shall be the property of, and held in trust for, the CITY and
9 shall be remitted to the CITY by the 5th of each month, not to exceed thirty (30) calendar days from
10 the sale of such goods, by check drawn on an account established in a bank located within the CITY.
11 7. OUR TOWN shall maintain records, in such form and in such detail as CITY shall
12 request, with respect to 1) CITY surplus goods received, 2) sales made of such surplus goods, and 3)
13 inventories from time to time on hand. OUR TOWN shall furnish CITY from time to time as requested
14 by CITY, detailed reports concerning such receipts, sales and inventories and CITY shall have the right
15 to inspect and audit the records, accounts and inventories of CITY surplus goods in the possession of
16 OUR TOWN at any time during the term of the Agreement or within ninety (90) days after termination
17 thereof.
18 8. OUR TOWN shall submit payments of the CITY's percentage of the proceeds received
19 by OUR TOWN by the sale of CITY surplus goods, as well as any notices to the CITY under this
20 Agreement, by personal service or by depositing with the United States Postal Service, postage prepaid
21 and addressed as follows:
22 CITY OF SAN BERNARDINO
FINANCE DEPARTMENT
23 300 NORTH"D" STREET
24 SAN BERNARDINO, CA 92418
25 ED AND VIVIAN FOSTER
OUR TOWN
26
27 SAN BERNARDINO, CA
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2
1 9. Parties further agree that there are no oral written understandings, agreements or
2 representations, express or implied, not specified herein respecting this agreement, and this instrument
3 contains the entire agreement between the parties, and is binding on both parties. Parties further agree
4 that this Agreement may only be amended or modified by a formal amendment in writing approved by
5 the Mayor and Common Council of the City of San Bernardino.
6 10. OUR TOWN agrees to defend, indemnify, save and hold CITY, its officers, agents and
7 employees harmless from any claims or suits that may be brought by third persons on account of
8 personal injury, death, or damage to property, or a property or business or personal interest, arising
9 from its performance under this agreement.
10 11. In any action at law or in equity by OUR TOWN or CITY for recovery of any sum due
11 under this agreement, or to enforce any of the terms, covenants or conditions contained herein, the
12 prevailing party shall be entitled to reasonable attorney's fees in addition to costs and necessary
13 disbursements incurred in such action.
14 12. The number of original texts of the Agreement shall be equal to the number of the
15 parties hereto, one text being retained by each party. In the event of a conflict between the two original
16 texts, the copy maintained by the City Clerk of the City of San Bernardino shall control.
17 13. If any portion of the Agreement is held to be invalid by a court of law, such provisions
18 shall be considered severable, and the remainder of this Agreement or any provision hereof shall not
19 be affected.
20 14. Each party's performance hereunder shall comply with all applicable laws of the United
21 States of America, the State of California, and the CITY. This Agreement shall be enforced and
22 interpreted under the laws of the State of California and the CITY and any action brought to enforce
23 this Agreement or pursuant thereto shall be brought in the Superior Court of the County of San
24 Bernardino or in a competent Municipal Court located in said county.
25 15. Except for excusable delays, if any party fails to perform, in whole or in part, any
26 promise, covenant, or agreement set forth herein, or should any representation made by it be untrue,
27 an aggrieved party may avail itself of all rights and remedies, at law or equity, in the courts of law.
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1 16. The provisions of this Agreement shall be binding upon and inure to the benefit of the
2 heirs, executors, administrators, successors and assigns of the parties hereto. OUR TOWN shall not
3 assign, transfer or in any manner hypothecate any or all of its rights and obligations under this
4 agreement without the prior written approval and consent of the Mayor and Common Council of the
5 City of San Bernardino.
6 17. The terms of this Agreement shall commence on its effective date. The effective date
7 is the date this Agreement is approved by the Mayor and Common Council of the City of San
8 Bernardino as indicated on the first page.
9 18. Parties to the agreement shall have the right to terminate this Agreement, for any
10 reason, at any time, by giving thirty (30) days written notice.
11
12 IN WITNESS WHEREOF, the parties have executed this agreement, on the day and date first
13 above shown.
14
15 OUR TOWN CITY OF SAN BERNARDINO
16
17 Ed Foster, Owner Tom Minor, Mayor
18
Vivian Foster, Owner
19
20 Approved as to form ATTEST:
and legal content:
21
JAMES F. PENMAN,
22 City Attorney
23 By:
Rachel Clark, City Clerk
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1 ORDINANCE NO.
i
2 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SECTION
3.04.105 TO THE SAN BERNARDINO MUNICIPAL CODE RELATING TO THE SALE
3 OF SURPLUS CITY PROPERTY
d 4 THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
DO ORDAIN AS FOLLOWS:
5
e
6 SECTION 1. Section 3.04.105 is hereby added to the San Bernardino Municipal Code
7 to read as follows:
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9 "Notwithstanding anything in this Chapter to the contrary, the Purchasing
10 Agent shall select appropriate items with an estimated value of$1,000 or
11 less, and shall make them available for retail sale by private parties pursuant
12 to written agreements approved by the Mayor and Common Council, or by
13 direct retail sale by the City. Such items need not be sold to the highest
14 bidder, and may be sold at a predetermined price and may be discounted
15 from time to time in keeping with retail practices. Any items not sold
16 within a reasonable time shall be returned to the Purchasing Agent for
17 disposal according to normal procedures as provided in this Chapter. The
18 private party may be authorized to retain a percentage of the sales price in
19 an amount authorized by such written agreements."
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1
1 AN ORDINANCE . . . ADDING SECTION 3.04.105 TO THE SAN BERNARDINO
2 MUNICIPAL CODE RELATING TO THE SALE OF SURPLUS CITY PROPERTY
TY
3 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and
4
Common Council of the City of San Bernardino at a meeting thereof, held on the day 5 —
of , 1996, by the following vote, to wit:
6 Council Members: AYES NAYS ABSTAIN ABSENT
NEGRETE
7
CLTRLIN
8
ARIAS
9
10 OBERHELMAN
DEVLIN
11
ANDERSON
12
MILLER
13
14
15 City Clerk
16 The foregoing Ordinance is hereby approved this— day of , 1996.
17
18 Tom Minor, Mayor
19 City of San Bernardino
Approved as to form
20 and legal content:
21 JAMES F. PENMAN,
City Attorney
22
23 By: -�2 '
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1 ORDINANCE NO.
2 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SECTION
9.04.025 TO THE SAN BERNARDINO MUNICIPAL CODE RELATING TO USE OF THE
3 CITY SEAL
4 THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
DO ORDAIN AS FOLLOWS:
5
6 SECTION 1. Section 9.04.025 is hereby added to the San Bernardino Municipal Code
7 to read as follows:
8
9 "The Mayor and Common Council may, by written agreement, authorize
10 the private use of the City Seal or other City insignia when it is determined
11 to be in the best interests of the City, and when it is determined that the
12 public will not be misled thereby."
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1
1 AN ORDINANCE . . . ADDING SECTION 9.04.025 TO THE SAN BERNARDINO
MUNICIPAL CODE RELATING TO USE OF THE CITY SEAL
2
3 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and
4 Common Council of the City of San Bernardino at a meeting thereof, held on the_ day
of , 1996, by the following vote, to wit:
5
Council Members: AYES NAYS ABSTAIN ABSENT
6
NEGRETE
7
CURLIN
8
ARIAS
9
OBERHELMAN
10
DEVLIN
11
ANDERSON
12
MILLER
13
14
City Clerk
15
16 The foregoing Ordinance is hereby approved this_day of , 1996.
17
18 Tom Minor, Mayor
19 City of San Bernardino
Approved as to form
20 and legal content:
21 JAMES F. PENMAN,
City Attorney
22
23 By: - G
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