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HomeMy WebLinkAbout2015-008 1 RESOLUTION NO. 2015-8 2 3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 4 SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND ISSUANCE OF A PURCHASE ORDER TO TIME WARNER CABLE FOR 5 DIRECT INTERNET SERVICE. 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 7 8 SECTION 1: That Time Warner Internet Services is the selected source for the City's 9 Internet access services. Pursuant to this determination, the Director of Finance or his/her 10 Designee is hereby authorized to issue an Annual Purchase Order to Time Warner Cable for 11 the City's Internet access services in the amount not exceed $19,000.00 for fiscal year 12 13 2015/2016 for 100 megabit per second Ethernet Internet service with four one year renewal 14 options as long as funds are available and appropriated in the budget each fiscal year. The 15 Purchase Order shall reference the number of this resolution and shall read, "For 100 megabit 16 per second fiber Internet services". 17 SECTION 2: That the City Manager of the City of San Bernardino is hereby 18 authorized to execute on behalf of said City an Agreement between the City of San 19 20 Bernardino and Time Warner Cable, a copy of which is attached hereto, marked Exhibit "A", 21 and incorporated herein as if fully set forth at length. 22 SECTION 3: This purchase is exempt from the formal contract procedures of Section 23 3.04.010 of the Municipal Code, pursuant to Section 3.04.010. B.3 of said Code, "Purchases 24 approved by the Mayor and Common Council". 25 26 27 28 /// 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT 2 AND ISSUANCE OF A PURCHASE ORDER TO TIME WARNER CABLE FOR DIRECT INTERNET SERVICE. 3 4 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor 5 and Common Council of the City of San Bernardino at a joint regular meeting thereof, held on 6 7 the 20th day of January, 2015,by the following vote, to wit: 8 9 Council Members: AYES NAYS ABSTAIN ABSENT 10 MARQUEZ X 11 BARRIOS x 12 VALDIVIA x 13 14 SHORETT x 15 NICKEL x 16 JOHNSON x 17 MULVHILL X 18 19 20 Georgeapn anna, CW Clerk /-- 21 The foregoing resolution is hereby approved this day of January, 2015. 22 ( � 23 R. Carey DaviyMayor 24 City of San Bkmardino 25 Approved as to form: 26 Gary D. Saenz, City Attorney 27 By: 28 2015-8 Exhibit A VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND TIME WARNER CABLE FOR 100 MEGABIT FIBER INTERNET SERVICES This Vendor Services Agreement (the "Agreement") is entered into this 20tbday of January 2015, BY AND BETWEEN: the City of San Bernardino, a Charter City organized under the laws of the State of California, with an address of 300 N. "D" Street, San Bernardino, California(the "CITY"); AND, Time Warner Cable Enterprises, LLC, a telecommunications technology company, with a place of business at 17777 Center Court Drive, Suite 800 City of Cerritos, Ca. 90703 (the "VENDOR") (individually CITY and VENDOR may be referred to as a "PARTY" and collectively CITY and VENDOR may be referred to as the "PARTIES"). WITNESSETH : WHEREAS, the Mayor and Common Council of CITY have determined that it is advantageous and in the best interest of the CITY to contract for 100 megabit fiber Internet services, and, WHEREAS, CITY and VENDOR desire to contract for 100 megabit fiber Internet services and desire to set forth their rights, duties, and liabilities in connection with their performance; and, WHEREAS, no official or employee of the CITY has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the PARTIES hereby agree as follows: 1. SCOPE OF SERVICES. For the remuneration stipulated, CITY hereby engages the services of VENDOR to provide those products and services as set forth on Attachment"l," attached hereto and incorporated herein. 2. COMPENSATION AND EXPENSES. 2.1 Compensation. VENDOR shall be paid for the services set forth in Attachment "1" a total fixed sum of $93,075.00. No other amounts, except those expressly provided for in this Agreement, shall be paid by CITY. 2.2 Additional Services. VENDOR shall not receive compensation for any services provided outside the scope of services specified in this Agreement unless the CITY, prior to VENDOR VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND TIME WARNER CABLE FOR 100 MEGABIT INTERNET SERVICES Page 1 of 8 2015-8 performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 3.3 Method of Billing. VENDOR may submit invoices to CITY for approval at intervals no more often than monthly. Said invoice shall be based on the total of all VENDOR's products and services that have been supplied and performed to the CITY's sole satisfaction. CITY shall pay VENDOR's invoice within thirty (30) days from the date CITY receives said invoice. Each invoice shall describe in detail the products supplied, the services performed, and the associated time for completion. Any additional products or services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices. 3.4 Records and Audits. Records of VENDOR's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to CITY upon reasonable notice. 3. TERM; TERMINATION. The term of this Agreement shall be from 04/01/2015 until 03/28/2020, inclusive. This Agreement may be terminated at any time upon thirty (30) days written notice by either PARTY; provided, however, that in the event of termination by the CITY, the CITY shall promptly pay VENDOR the full amount of the remaining charges that the CITY would have been charged under the Agreement had it not been terminated early. The terms of this Agreement shall remain in force unless mutually amended in writing. 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 in part by the 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. 5.1 Minimum Scope and Limits of Insurance. VENDOR shall obtain and maintain during the life of this Agreement all of the following insurance coverage: VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND TIME WARNER CABLE FOR 100 MEGABIT INTERNET SERVICES Page 2 of 8 2015-8 (a) Comprehensive general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined singles limits, per occurrence and aggregate. (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (c) Worker's compensation insurance as required by the State of California. 5.2 Endorsements. The comprehensive general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City." (b) Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to City." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 5.3 Certificates of Insurance. VENDOR shall provide to CITY certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by CITY, prior to performing any services under this Agreement. 5.4 Non-limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained within this Agreement, or the extent to which VENDOR may be held responsible for payments of damages to persons or property. 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 condition, 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, VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND TIME WARNER CABLE FOR 100 MEGABIT INTERNET SERVICES Page 3 of 8 2015-8 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 prior to execution of this Agreement, 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, documents, correspondence, or other communication concerning this Agreement or the services provided hereunder may be provided by personal delivery or U.S. Mail. If personally delivered the notice shall be deemed delivered at the time of the personal delivery. If sent by U.S. Mail the notice shall be deemed delivered forty-eight(48) hours after deposit in the U.S. Mail as reflected by the official U.S. postmark. TO THE CITY: TO THE VENDOR: Larry R. Martin General Counsel Information Technologies Time Warner Cable 300 N. D st. 60 Columbus Circle San Bernardino, Ca. 92418 New York, New York 10023 Either PARTY may change the address for delivery of notices by sending notice of the change to the other PARTY in conformity with this Section. 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 Attorney and members of his/her 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. VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND TIME WARNER CABLE FOR 100 MEGABIT INTERNET SERVICES Page 4 of 8 2015-8 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 Superior Court of the State of California for the County of San Bernardino or the United States 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 and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. 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. 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 delay or failure of either PARTY to require performance or compliance of the other of any of its obligations under this Agreement shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless made in writing and signed by a duly authorized representative of the PARTY against whom it is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of such right or remedy with respect to any future occurrences or events and shall not be deemed a continuing waiver. VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND TIME WARNER CABLE FOR 100 MEGABIT INTERNET SERVICES Page 5 of 8 2015-8 18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and the understanding between the PARTIES, and supersedes any prior agreements and understandings relating to the subject matter of this Agreement. 19.COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a ".pdf' format data file, such signature shall create a valid and binding obligation of the PARTY executing (or on whose behalf such signature is execute) with the same force and effect as if such facsimile or".pdf' signature page were an original thereof. 20. AMENDMENT. No amendment to this Agreement will be effective unless it is in writing and signed by both PARTIES. 21. CORPORATE AUTHORITY. Each person executing this Agreement on behalf of the PARTIES hereto warrant that they are duly authorized to execute this Agreement on behalf of said PARTIES and that by doing so, the PARTIES hereto are formally bound to the provisions of this Agreement. 22. COMPLIANCE WITH LAW VENDOR agrees to abide by all applicable federal, state, and local laws, ordinances and regulations. 23. FORCE MAJEURE. A PARTY shall not be liable for any failure or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, governmental orders or any other force majeure event. 24. RESPONSIBILITY FOR ERRORS. VENDOR shall be responsible for its work and results under this Agreement. VENDOR, when requested by CITY, shall furnish clarification and/or explanation as may be required by CITY's representative, regarding any services rendered under this Agreement at no additional cost to CITY. In the event that an error or omission attributable to VENDOR occurs, then VENDOR shall, at no cost to CITY, provide all necessary services to rectify and correct the matter to the sole satisfaction of CITY and to participate in any meeting required with regard to the correction. VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND TIME WARNER CABLE FOR 100 MEGABIT INTERNET SERVICES Page 6 of 8 2015-8 25. ORDER OF PRECEDENCE. In the event of any inconsistency or conflict in this Agreement and any of the attached Exhibits or Attachments, the terms set forth in this Agreement shall prevail. 26. CONSTRUCTION. The PARTIES have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the PARTIES and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any Party by virtue of authorship of any of the provisions of this Agreement. 27. LIMITATION OF LIABILITY AND WARRANTY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER, OR ANY THIRD PARTY, FOR ANY INCIDENTAL, LIQUIDATED, PER DIEM, INDIRECT, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VENDOR'S AGGREGATE LIABILITY FOR ANY REASON AND ALL CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE AGREEMENT (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING NEGLIGENCE) AND STRICT PRODUCT LIABILITY) SHALL BE LIMITED TO THE FEES PAID OR OWED BY THE CITY IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM ARISES. THE CITY ASSUMES RESPONSIBILITY FOR USE OF THE SERVICE AND USES THE SAME AT ITS OWN RISK. VENDOR EXERCISES NO CONTROL OVER THE CONTENT TRANSMITTED OR ACCESSIBLE THROUGH THE SERVICE AND VENDOR EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR SUCH CONTENT. EXCEPT AS OTHERWISE AGREED IN WRITING BETWEEN VENDOR AND THE CITY, THE SERVICE AND VENDOR EQUIPMENT WILL BE PROVIDED "AS IS," WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND TIME WARNER CABLE FOR 100 MEGABIT INTERNET SERVICES Page 7 of 8 2015-8 VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND TIME WARNER CABLE FOR 100 MEGABIT FIBER INTERNET SERVICES IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated: 12015 VENDOR: Time Warner Cable Enterprises, LLC By: Its: Dated , 2015 CITY OF SAN BERNARDINO By: Allen Parker, City Manager APPROVED AS TO FORM: Gary D. Saenz, City Attorney B y•7 6 VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND TIME WARNER CABLE FOR 100 MEGABIT INTERNET SERVICES Page 8 of 8 2015-8 Exhibit A VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND TIME WARNER CABLE FOR 100 MEGABIT FIBER INTERNET SERVICES This Vendor Services Agreement (the "Agreement") is entered into this 20tbday of January 2015, BY AND BETWEEN: the City of San Bernardino, a Charter City organized under the laws of the State of California, with an address of 300 N. "D" Street, San Bernardino, California(the "CITY"); AND, Time Warner Cable Enterprises, LLC, a telecommunications technology company, with a place of business at 17777 Center Court Drive, Suite 800 City of Cerritos, Ca. 90703 (the "VENDOR") (individually CITY and VENDOR may be referred to as a "PARTY" and collectively CITY and VENDOR may be referred to as the "PARTIES"). WITNESSETH : WHEREAS, the Mayor and Common Council of CITY have determined that it is advantageous and in the best interest of the CITY to contract for 100 megabit fiber Internet services, and, WHEREAS, CITY and VENDOR desire to contract for 100 megabit fiber Internet services and desire to set forth their rights, duties, and liabilities in connection with their performance; and, WHEREAS, no official or employee of the CITY has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the PARTIES hereby agree as follows: 1. SCOPE OF SERVICES. For the remuneration stipulated, CITY hereby engages the services of VENDOR to provide those products and services as set forth on Attachment "1," attached hereto and incorporated herein. 2. COMPENSATION AND EXPENSES. 2.1 Compensation. VENDOR shall be paid for the services set forth in Attachment "1" a total fixed sum of $93,075.00. No other amounts, except those expressly provided for in this Agreement, shall be paid by CITY. 2.2 Additional Services. VENDOR shall not receive compensation for any services provided outside the scope of services specified in this Agreement unless the CITY, prior to VENDOR VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND TIME WARNER CABLE FOR 100 MEGABIT INTERNET SERVICES Page l of 8 2015-8 performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 3.3 Method of Billing. VENDOR may submit invoices to CITY for approval at intervals no more often than monthly. Said invoice shall be based on the total of all VENDOR's products and services that have been supplied and performed to the CITY's sole satisfaction. CITY shall pay VENDOR's invoice within thirty (30) days from the date CITY receives said invoice. Each invoice shall describe in detail the products supplied, the services performed, and the associated time for completion. Any additional products or services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices. 3.4 Records and Audits. Records of VENDOR's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to CITY upon reasonable notice. 3. TERM; TERMINATION. The term of this Agreement shall be from 04/01/2015 until 03/28/2020, inclusive. This Agreement may be terminated at any time upon thirty (30) days written notice by either PARTY; provided, however, that in the event of termination by the CITY, the CITY shall promptly pay VENDOR the full amount of the remaining charges that the CITY would have been charged under the Agreement had it not been terminated early. The terms of this Agreement shall remain in force unless mutually amended in writing. 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 in part by the 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. 5.1 Minimum Scope and Limits of Insurance. VENDOR shall obtain and maintain during the life of this Agreement all of the following insurance coverage: VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND TIME WARNER CABLE FOR 100 MEGABIT INTERNET SERVICES Page 2 of 8 2015-8 (a) Comprehensive general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined singles limits, per occurrence and aggregate. (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (c) Worker's compensation insurance as required by the State of California. 5.2 Endorsements. The comprehensive general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City." (b) Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to City." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 5.3 Certificates of Insurance. VENDOR shall provide to CITY certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by CITY, prior to performing any services under this Agreement. 5.4 Non-limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained within this Agreement, or the extent to which VENDOR may be held responsible for payments of damages to persons or property. 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 condition, 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, VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND TIME WARNER CABLE FOR 100 MEGABIT INTERNET SERVICES Page 3 of 8 2015-8 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 prior to execution of this Agreement, 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, documents, correspondence, or other communication concerning this Agreement or the services provided hereunder may be provided by personal delivery or U.S. Mail. If personally delivered the notice shall be deemed delivered at the time of the personal delivery. If sent by U.S. Mail the notice shall be deemed delivered forty-eight(48) hours after deposit in the U.S. Mail as reflected by the official U.S. postmark. TO THE CITY: TO THE VENDOR: Larry R. Martin General Counsel Information Technologies Time Warner Cable 300 N. D st. 60 Columbus Circle San Bernardino, Ca. 92418 New York, New York 10023 Either PARTY may change the address for delivery of notices by sending notice of the change to the other PARTY in conformity with this Section. 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 Attorney and members of his/her 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. VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND TIME WARNER CABLE FOR 100 MEGABIT INTERNET SERVICES Page 4 of 8 2015-8 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 Superior Court of the State of California for the County of San Bernardino or the United States 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 and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. 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. 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 delay or failure of either PARTY to require performance or compliance of the other of any of its obligations under this Agreement shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless made in writing and signed by a duly authorized representative of the PARTY against whom it is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of such right or remedy with respect to any future occurrences or events and shall not be deemed a continuing waiver. VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND TIME WARNER CABLE FOR 100 MEGABIT INTERNET SERVICES Page 5 of 8 2015-8 18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and the understanding between the PARTIES, and supersedes any prior agreements and understandings relating to the subject matter of this Agreement. 19.COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a ".pdf' format data file, such signature shall create a valid and binding obligation of the PARTY executing (or on whose behalf such signature is execute) with the same force and effect as if such facsimile or".pdf' signature page were an original thereof. 20. AMENDMENT. No amendment to this Agreement will be effective unless it is in writing and signed by both PARTIES. 21. CORPORATE AUTHORITY. Each person executing this Agreement on behalf of the PARTIES hereto warrant that they are duly authorized to execute this Agreement on behalf of said PARTIES and that by doing so, the PARTIES hereto are formally bound to the provisions of this Agreement. 22. COMPLIANCE WITH LAW VENDOR agrees to abide by all applicable federal, state, and local laws, ordinances and regulations. 23. FORCE MAJEURE. A PARTY shall not be liable for any failure or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, governmental orders or any other force majeure event. 24. RESPONSIBILITY FOR ERRORS. VENDOR shall be responsible for its work and results under this Agreement. VENDOR, when requested by CITY, shall furnish clarification and/or explanation as may be required by CITY's representative, regarding any services rendered under this Agreement at no additional cost to CITY. In the event that an error or omission attributable to VENDOR occurs, then VENDOR shall, at no cost to CITY, provide all necessary services to rectify and correct the matter to the sole satisfaction of CITY and to participate in any meeting required with regard to the correction. VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND TIME WARNER CABLE FOR 100 MEGABIT INTERNET SERVICES Page 6 of 8 2015-8 25. ORDER OF PRECEDENCE. In the event of any inconsistency or conflict in this Agreement and any of the attached Exhibits or Attachments, the terms set forth in this Agreement shall prevail. 26. CONSTRUCTION. The PARTIES have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the PARTIES and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any Party by virtue of authorship of any of the provisions of this Agreement. 27. LIMITATION OF LIABILITY AND WARRANTY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER, OR ANY THIRD PARTY, FOR ANY INCIDENTAL, LIQUIDATED, PER DIEM, INDIRECT, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VENDOR'S AGGREGATE LIABILITY FOR ANY REASON AND ALL CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE AGREEMENT (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING NEGLIGENCE) AND STRICT PRODUCT LIABILITY) SHALL BE LIMITED TO THE FEES PAID OR OWED BY THE CITY IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM ARISES. THE CITY ASSUMES RESPONSIBILITY FOR USE OF THE SERVICE AND USES THE SAME AT ITS OWN RISK. VENDOR EXERCISES NO CONTROL OVER THE CONTENT TRANSMITTED OR ACCESSIBLE THROUGH THE SERVICE AND VENDOR EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR SUCH CONTENT. EXCEPT AS OTHERWISE AGREED IN WRITING BETWEEN VENDOR AND THE CITY, THE SERVICE AND VENDOR EQUIPMENT WILL BE PROVIDED "AS IS," WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND TIME WARNER CABLE FOR 100 MEGABIT INTERNET SERVICES Page 7 of 8 2015-8 VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND TIME WARNER CABLE FOR 100 MEGABIT FIBER INTERNET SERVICES IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated: 3 , 2015 VENDOR: Time Warner Cable Enterprises, LLC By: Its: P Dated -7 ' 2015 CITY OF SAN BERNARDINO By: Al n Parker, City Manager APPROVED AS TO FORM: Gary D. Saenz, City Attorney By. VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND TIME WARNER CABLE FOR 100 MEGABIT INTERNET SERVICES Page 8 of 8