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HomeMy WebLinkAbout2015-004 1 RESOLUTION NO. 2015-4 2 3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND 4 ISSUANCE OF AN ANNUAL PURCHASE ORDER IN AN AMOUNT NOT TO EXCEED 5 $701,864 TO NBI GENERAL CONTRACTORS,INC. FOR THE DESIGN AND CONSTRUCTION OF TWO (2) BASKETBALL COURTS VARIOUS OTHER PARK 6 IMPROVEMENTS AT NUNEZ PARK LOCATED AT 1717 WEST FIFTH STREET. 7 8 WHEREAS, NBI General Contractors Inc. submitted the lowest bid for the design and 9 construction of two (2)basketball courts and various other park improvements at Nunez Park to located at 1717 West Fifth Street; 11 NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON 12 13 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 14 SECTION 1. The City Manager is hereby authorized and directed to execute on behalf of 15 said City, a Vendor Service Agreement between the City of San Bernardino and NBI General 16 Contractors, Inc. a copy of which is attached hereto, marked Exhibit "A", and incorporated 17 18 herein by reference as fully as though set forth at length. 19 SECTION 2. That pursuant to this determination the Director of Finance, or designee, is 2 o hereby authorized and directed to amend the budget to reflect an appropriation of the necessary 21 funds, once received from the State of California, to issue an annual purchase order to NBI 22 General Contractors, Inc. in an amount not to exceed $701,864. 23 24 SECTION 3. The Purchase Order shall reference this Resolution Number and shall read, 25 "NBI General Contractors, Inc. for design and construction of two (2) basketball courts and 26 various other park improvements at Nunez Park located at 1717 West Fifth Street. Agreement 27 not to exceed $701,864" and shall incorporate the terms and conditions of the agreement. 28 1 1 SECTION 4. The authorization to execute the above referenced Purchase Order and 2 Agreement is rescinded if it is not executed by both parties within sixty (60) days of the passage 3 of this resolution. 4 5 /// 6 7 8 9 10 11 12 13 14 /// 15 16 17 18 19 20 21 22 /// 23 24 25 26 27 28 /// 2 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND 2 ISSUANCE OF AN ANNUAL PURCHASE ORDER IN AN AMOUNT NOT TO EXCEED 3 $701,864 TO NBI GENERAL CONTRACTORS,INC. FOR THE DESIGN AND CONSTRUCTION OF TWO (2) BASKETBALL COURTS AND VARIOUS OTHER 4 PARK IMPROVEMENTS AT NUNEZ PARK LOCATED AT 1717 WEST FIFTH STREET. 5 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a joint regular meeting thereof, held on the 8 9 5th day of January, 2015, by the following vote, to wit: 10 Council Members: AYES NAYS ABSTAIN ABSENT 11 MARQUEZ X 12 BARRIOS X 13 VALDIVIA X 14 15 SHORETT X 16 NICKEL X 17 JOHNSON x- 18 MULVIHILL x- 19 20 GeQrgeanrAianna, City Clerk 21 The foregoing resolution is hereby approved this _ ay £Januar 5 22 ✓ 23 R. Carey D is, Mayor 24 City of Sa Bernardino Approved as to Form: 25 Gary D. Saenz, City Attorney 26 27 By; rva 6t;L-�— 28 3 2015-4 VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND NBI GENERAL CONTRACTORS INC. FOR THE NUNEZ PARK IMPROVEMENTS PROJECT. This Vendor Service Agreement is entered into this 5th day of January, 2015 by and between NBI General Contractors, Inc., ("VENDOR") and the City of San Bernardino ("CITY" or "San Bernardino"). WITNESSETH: WHEREAS, the Mayor and Common Council have determined that it is advantageous and in the best interest of the CITY to contract for the construction of two (2) basketball courts and various other park improvements at Nunez Park; and WHEREAS, NBI General Contractors, Inc., asserts that it is ready and capable of completing the Nunez Park Improvements Project by March 31,2015; and WHEREAS, NBI General Contractor, Inc., was the lowest responsible bidder to the CITY's bid process. 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 on Attachment "I," attached hereto and incorporated herein. 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 $701,864 for the and services set forth in Attachment" L" b. VENDOR understands and agrees that VENDOR will not receive payment from the CITY until the CITY receives advance payment from the State of California. VENDOR further agrees that payment for services is contingent upon the CITY receiving money from the State of California for this project. c. No other expenditures by VENDOR shall be reimbursed by the CITY. Page I of 6 VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND NBI GENERAL CONTRACTORS, INC. 2015-4 3. TERM; TERMINATION. The term of this Agreement shall commence as of the Effective Date above and shall continue for a period not to exceed March 31,2015. This Agreement may be terminated at any time by thirty (30) days' written notice by either party. The terms of this Agreement shall remain in force unless mutually amended. The duration of this Agreement may be extended with the written consent of both parties. 4. 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 actual 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 services 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. 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 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. 6. NON-DISCRIMINATION. In the performance of this Agreement and in the hiring and recruitment of employees, Page 2 of 6 VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND NBI GENERAL CONTRACTORS INC. 2015-4 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 condition, marital status, sexual gender or sexual orientation, or any other status protected by law, except as permitted pursuant to Section 12940 of the California Government Code. 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 license, 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 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: TO THE VENDOR: Director of Parks, Recreation& NBI General Contractors, Inc. Community Services 1770 Howard Place 201 North E Street, Suite 301 Redlands, CA 92373 San Bernardino CA 92401 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 Page 3 of 6 VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND NBI GENERAL CONTRACTORS,INC. 2015-4 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 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 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. 16. 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. Page 4 of 6 VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND NBI GENERAL CONTRACTORS INC. 2015-4 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. HI HI HI HI Page 5 of 6 VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND NBI GENERAL CONTRACTORS, INC. 2015-4 VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND NBI GENERAL CONTRACTORS INC. FOR THE NUNEZ PARK IMPROVEMENTS PROJECT. IN WITNESS THEREOF,the parties hereto have executed this Agreement on the day and date set forth below. Dated: f r 2015 VENDO R r (2C4 BY: ITS: Dated: 12015 CITY OF SAN BERNARD BY: Allen J.P rker,City Manager Approved as to Form: Gary D. Saenz, City Attorney BY: \ Page 6 of 6 VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND NBI GENERAL CONTRACTORS INC.