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HomeMy WebLinkAbout2016-220 1 RESOLUTION NO. 2016-220 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING A VENDOR SERVICES AGREEMENT BETWEEN 3 THE CITY OF SAN BERNARDINO AND OVERLAND, PACIFIC & CUTLER, INC. FOR 4 RELOCATION SERVICES AND APPROVING CERTAIN RELATED ACTIONS 5 WHEREAS, consistent with the May 17, 2016 direction given by the California 6 Department of Finance, on August 16, 2016 the Successor Agency to the Redevelopment Agency 7 of the City of San Bernardino transferred its interest in the Carousel Mall property to the City of 8 San Bernardino (the "City"); and 9 WHEREAS, other than 18 small-scale shop tenants, the Carousel Mall is predominately 10 vacant; and 11 WHEREAS, due to its high vacancy rate, the Carousel Mall is now financially insolvent in 12 that its limited rental income is insufficient to fund its operating expenses; and 13 WHEREAS, due to its financial insolvency, it has become necessary to close the Carousel 14 Mall in the future; and 15 WHEREAS, the ultimate closure of the Carousel Mall will require that the existing tenants 16 vacate the property; and 17 WHEREAS, on September 19, 2016, the Mayor and Common Council adopted Resolution 18 No. 2016-199 approving rules and regulations for relocation assistance consistent with applicable 19 State and Federal laws for persons and/or businesses displaced by a City Project; and 20 WHEREAS, prior to closing the Carousel Mall it is necessary to engage a relocation 21 consultant to work with the affected tenants, staff and legal counsel to ensure compliance with the 22 policies established by Resolution No. 2016-199; and 23 WHEREAS, consistent with the foregoing, on September 1, 2016 a request for proposals 24 (the "RFP") for relocation services was issued to those relocation consultants listed on the approved 25 list of relocation consultants promulgated by the California Department of Housing and Community 26 Development that have a Southern California office; and 27 WHEREAS, in response to the RFP three (3) proposals were received from qualified 28 relocation consultants; and 1 I WHEREAS, subsequent to the review of the proposals received and an interview with each 2 applicant it was determined that Overland, Pacific & Cutler, Inc. (the "OPC") was the most 3 responsive to the RFP and the most cost competitive applicant; and 4 WHEREAS, the City has determined that it is advantageous and in the best interest of the 5 City to contract for professional relocation services from OPC pursuant to the Vendor Services 6 Agreement attached to this Resolution as Exhibit"A"; and 7 WHEREAS, this Resolution has been reviewed with respect to applicability of the 8 California Environmental Quality Act ("CEQA"), the State CEQA Guidelines (California Code of 9 Regulations, Title 14, § 15000 et seq., hereafter the "CEQA Guidelines"), and the City's 10 environmental guidelines; and 11 WHEREAS, this Resolution does not constitute a "project" for purposes of CEQA, as that 12 term is defined by CEQA Guidelines § 15378, because this Resolution constitutes general policy 13 and procedure making and organizational or administrative activity that will not result in a direct 14 or indirect physical change in the environment, per § 15378 (b) (2) and (5) of the CEQA 15 Guidelines; and 16 WHEREAS, all of the prerequisites with respect to the approval of this Resolution have 17 been met. 18 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON 19 COUNCIL OF THE CITY OF SAN BERNARDINO, AS FOLLOWS: 20 SECTION 1. The foregoing recitals are true and correct and are a substantive part of this 21 Resolution. 22 SECTION 2. The Vendor Services Agreement with Overland, Pacific & Cutler, Inc. for 23 relocation services, which is attached hereto as Exhibit"A", is hereby approved. 24 SECTION 3. The City Manager, or designee, is authorized to sign the Vendor Services 25 Agreement with Overland, Pacific & Cutler, Inc. for relocation services on behalf of the City and to 26 take such actions and execute such documents as are necessary to effectuate the intent of this 27 Resolution. 28 2 1 SECTION 4. This Resolution is not a "project" for purposes of CEQA, as that 2 term is defined by CEQA Guidelines § 15378, because this Resolution constitutes general policy 3 and procedure making and is an organizational or administrative activity that will not result in a 4 direct or indirect physical change in the environment, per § 15378 (b) (2) and (5) of the CEQA 5 Guidelines. 6 SECTION 5. This resolution shall take effect upon its adoption and execution in the 7 manner as required by the City Charter. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING A VENDOR SERVICES AGREEMENT BETWEEN 2 THE CITY OF SAN BERNARDINO AND OVERLAND, PACIFIC & CUTLER, INC. FOR 3 RELOCATION SERVICES AND APPROVING CERTAIN RELATED ACTIONS 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common 5 Council of the City of San Bernardino, at a joint regular meeting thereof, held on the 17th day of 6 October, 2016, by the following vote, to wit: 7 Council Members Ayes Nays Abstain Absent 8 MARQUEZ X 9 BARRIOS X 10 VALDIVIA X 11 SHORETT X 12 NICKEL X 13 RICHARD X 14 MULVIHILL X 15 16 Georgea anna, CMC,City Clerk 17 M/ 18 The foregoing Resolution is hereby approved this / day of October 2016. 19 20 2 21 R. Carey Davis/A4ayor City of San B rnardino 22 Approved as to Form: 23 Gary D. Saenz, City Attorney 24 25 By: ��(o A a r-A 26 27 28 4 1 EXHIBIT "A" 2 VENDOR SERVICES AGREEMENT 3 BETWEEN THE 4 CITY OF SAN BERNARDINO AND OVERLAND, PACIFIC & CUTLER, INC. FOR 5 RELOCATION SERVICES 6 (See Attachment) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 2016-220 VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND OVERLAND, PACIFIC & CUTLER, INC. FOR RELOCATION SERVICES This Vendor Service Agreement (the "Agreement") is entered into this 17,' day of October, 2016 (the "Effective Date") by and between Overland, Pacific & Cutler, Inc., a California corporation (the "VENDOR") and the City of San Bernardino, a municipal corporation and charter city (the "CITY"). Individually, VENDOR or CITY may herein be referred to as a Party and collectively,the VENDOR and the CITY may herein be referred to as the Parties. WITNESSETH: WHEREAS, consistent with the May 17, 2016 direction given by the California Department of Finance, on August 16, 2016 the Successor Agency to the Redevelopment Agency of the City of San Bernardino transferred its interest in the Carousel Mall property to the CITY; and WHEREAS, other than 18 small-scale shop tenants, the Carousel Mall is predominately vacant; and WHEREAS, due to its high vacancy rate, the Carousel Mall is now financially insolvent in that its limited rental income is insufficient to fund its operating expenses; and WHEREAS, due to its financial insolvency, it has become necessary to close the Carousel Mall in the future; and WHEREAS, the ultimate closure of the Carousel Mall will require that the existing tenants vacate the property; and WHEREAS, on September 19, 2016, the Mayor and Common Council adopted Resolution No. 2016-199 approving rules and regulations for relocation assistance consistent with applicable State and Federal laws for persons and/or businesses displaced by a City Project; and WHEREAS, prior to closing the Carousel Mall it is necessary to engage a relocation consultant to work with the affected tenants, staff and legal counsel to ensure compliance with the policies established by Resolution No. 2016-199; and WHEREAS, consistent with the foregoing, on September 1, 2016 a request for proposals (the "RFP") for relocation services was issued to those relocation consultants listed on the approved list of relocation consultants promulgated by the California Department of Housing and Community Development that have a Southern California office; and VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND OVERLAND,PACIFIC&CUTLER,INC. Page 2 2016-220 WHEREAS, in response to the RFP three (3) proposals were received from qualified relocation consultants; and WHEREAS, subsequent to the review of the proposals received and an interview with each applicant it was determined that VENDOR was the most responsive to the RFP and the most cost competitive applicant; and WHEREAS, the CITY has determined that it is advantageous and in the best interest of the CITY to contract for professional relocation services from VENDOR; and WHEREAS, VENDOR confirms that it is ready and capable of providing professional relocation services to CITY pursuant to this Agreement. NOW, THEREFORE,the Parties hereto agree as follows: 1. SCOPE OF SERVICES. For the remuneration stipulated, the CITY hereby engages the services of VENDOR to provide those services set forth on Exhibit"A", 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 aggregate amount of$104,000 for the services and expenses set forth in Exhibit "A", attached hereto and incorporated herein. The foregoing amount is exclusive of third party expenses that may be required to effectuate the relocation program. Invoices shall be presented not less frequently than monthly, unless no services were performed within the preceding month. b. No other expenditures by VENDOR shall be reimbursed by the CITY. 3. TERM; TERMINATION. The term of this Agreement shall commence as of the Effective Date and shall continue for a period not to exceed June 30, 2018. This Agreement may be terminated at any time for any reason or no reason by thirty (30) days' written notice by either Party. The terms of this Agreement shall remain in force unless mutually amended in a written amendment signed by both parties. 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 damage to tangible or intangible property, 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 VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF THE CITY OF SAN BERNARDINO AND OVERLAND,PACIFIC&CUTLER,INC. Page 3 2016-220 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 or willful conduct 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 indemnity obligations set forth in Section 4 of this Agreement, 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 and its elected officials, employees, agents or representatives shall be set forth as additional named insureds in each policy of liability insurance provided hereunder. The Certificate of Insurance furnished to the CITY shall require the insurer to provide CITY with 30 days' advance notice of any change or termination in the policy. Each policy of insurance required hereunder shall provide that the insurer waives subrogation against the CITY, its elected officials, employees, agents or representatives. 6. NON-DISCRIMINATION. In performing services under of this Agreement, 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 licenses, if any are required, in connection with the services to be performed hereunder. VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF THE CITY OF SAN BERNARDINO AND OVERLAND,PACIFIC&CUTLER,INC. Page 4 2016- 220 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 City of San Bernardino Municipal Code, and any other licenses, permits, qualifications, insurance and approvals 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: Mark Scott, City Manager Michele Folk, Managing Director City of San Bernardino Overland, Pacific & Cutler, Inc. 300 North D Street, 6th Floor 1 Jenner, Suite 200 San Bernardino CA 92418 Irvine, CA 92818 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 office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this paragraph. Reasonable attorneys' fees shall be determined by multiplying the number of hours reasonably necessary for the legal services necessarily provided by the reasonable prevailing hourly rates for attorneys of comparable skill and experience in San Bernardino County. 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 the 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. VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF THE CITY OF SAN BERNARDINO AND OVERLAND,PACIFIC&CUTLER,INC. Page 5 2016- 220 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, unless the enforcement of the remaining provisions under the circumstances would materially prejudice the rights of either Party. 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 supersedes 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. (Signatures on Following Page) VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF THE CITY OF SAN BERNARDINO AND OVERLAND,PACIFIC&CUTLER,INC. Page 6 2016- 220 IN WITNESS THEREOF, the Parties hereto have executed this Agreement on the day and date set forth below. Dated: , 2016 VENDOR BY: Michele Folk,Managing Director Dated: , 2016 CITY OF SAN BERNARDINO BY: Mark Scott, City Manager Approved as to Form: Gary D. Saenz, City Attorney By: 7�1 6z VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF THE CITY OF SAN BERNARDINO AND OVERLAND,PACIFIC&CUTLER,INC. Page 7 2016-220 EXHIBIT "A" (See Attached Proposal) VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF THE CITY OF SAN BERNARDINO AND OVERLAND,PACIFIC&CUTLER,INC. 2016-220 VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND OVERLAND, PACIFIC & CUTLER, INC. FOR RELOCATION SERVICES This Vendor Service Agreement (the "Agreement") is entered into this 17th day of October, 2016 (the "Effective Date") by and between Overland, Pacific & Cutler, Inc., a California corporation (the "VENDOR") and the City of San Bernardino, a municipal corporation and charter city (the "CITY"). Individually, VENDOR or CITY may herein be referred to as a Party and collectively,the VENDOR and the CITY may herein be referred to as the Parties. WITNESSETH: WHEREAS, consistent with the May 17, 2016 direction given by the California Department of Finance, on August 16, 2016 the Successor Agency to the Redevelopment Agency of the City of San Bernardino transferred its interest in the Carousel Mall property to the CITY; and WHEREAS, other than 18 small-scale shop tenants, the Carousel Mall is predominately vacant; and WHEREAS, due to its high vacancy rate, the Carousel Mall is now financially insolvent in that its limited rental income is insufficient to fund its operating expenses; and WHEREAS, due to its financial insolvency, it has become necessary to close the Carousel Mall in the future; and WHEREAS, the ultimate closure of the Carousel Mall will require that the existing tenants vacate the property; and WHEREAS, on September 19, 2016, the Mayor and Common Council adopted Resolution No. 2016-199 approving rules and regulations for relocation assistance consistent with applicable State and Federal laws for persons and/or businesses displaced by a City Project; and WHEREAS, prior to closing the Carousel Mall it is necessary to engage a relocation consultant to work with the affected tenants, staff and legal counsel to ensure compliance with the policies established by Resolution No. 2016-199; and WHEREAS, consistent with the foregoing, on September 1, 2016 a request for proposals (the "RFP") for relocation services was issued to those relocation consultants listed on the approved list of relocation consultants promulgated by the California Department of Housing and Community Development that have a Southern California office; and VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND OVERLAND,PACIFIC&CUTLER,INC. Page 2 2016-220 WHEREAS, in response to the RFP three (3) proposals were received from qualified relocation consultants; and WHEREAS, subsequent to the review of the proposals received and an interview with each applicant it was determined that VENDOR was the most responsive to the RFP and the most cost competitive applicant; and WHEREAS, the CITY has determined that it is advantageous and in the best interest of the CITY to contract for professional relocation services from VENDOR; and WHEREAS, VENDOR confirms that it is ready and capable of providing professional relocation services to CITY pursuant to this Agreement. NOW, THEREFORE,the Parties hereto agree as follows: 1. SCOPE OF SERVICES. For the remuneration stipulated, the CITY hereby engages the services of VENDOR to provide those services set forth on Exhibit"A", 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 aggregate amount of$104,000 for the services and expenses set forth in Exhibit "A", attached hereto and incorporated herein. The foregoing amount is exclusive of third party expenses that may be required to effectuate the relocation program. Invoices shall be presented not less frequently than monthly, unless no services were performed within the preceding month. b. No other expenditures by VENDOR shall be reimbursed by the CITY. 3. TERM; TERMINATION. The term of this Agreement shall commence as of the Effective Date and shall continue for a period not to exceed June 30, 2018. This Agreement may be terminated at any time for any reason or no reason by thirty (30) days' written notice by either Party. The terms of this Agreement shall remain in force unless mutually amended in a written amendment signed by both parties. 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 damage to tangible or intangible property, 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 VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF THE CITY OF SAN BERNARDINO AND OVERLAND,PACIFIC&CUTLER,INC. Page 3 2016-220 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 or willful conduct 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 indemnity obligations set forth in Section 4 of this Agreement, 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 and its elected officials, employees, agents or representatives shall be set forth as additional named insureds in each policy of liability insurance provided hereunder. The Certificate of Insurance furnished to the CITY shall require the insurer to provide CITY with 30 days' advance notice of any change or termination in the policy. Each policy of insurance required hereunder shall provide that the insurer waives subrogation against the CITY, its elected officials, employees, agents or representatives. 6. NON-DISCRIMINATION. In performing services under of this Agreement, 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 licenses, if any are required, in connection with the services to be performed hereunder. VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF THE CITY OF SAN BERNARDINO AND OVERLAND,PACIFIC&CUTLER,INC. Page 4 2016- 220 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 City of San Bernardino Municipal Code, and any other licenses, permits, qualifications, insurance and approvals 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: Mark Scott, City Manager Michele Folk, Managing Director City of San Bernardino Overland, Pacific & Cutler, Inc. 300 North D Street, 6th Floor 1 Jenner, Suite 200 San Bernardino CA 92418 Irvine, CA 92818 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 office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this paragraph. Reasonable attorneys' fees shall be determined by multiplying the number of hours reasonably necessary for the legal services necessarily provided by the reasonable prevailing hourly rates for attorneys of comparable skill and experience in San Bernardino County. 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 the 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. VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF THE CITY OF SAN BERNARDINO AND OVERLAND,PACIFIC&CUTLER,INC. Page 5 2016- 220 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, unless the enforcement of the remaining provisions under the circumstances would materially prejudice the rights of either Party. 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 supersedes 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. (Signatures on Following Page) VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF THE CITY OF SAN BERNARDINO AND OVERLAND,PACIFIC&CUTLER,INC. Page 6 2016- 220 IN WITNESS THEREOF, the Parties hereto have executed this Agreement on the day and date set forth below. Dated: 2016 VENDOR L BY: W4 Michele Folk,Managing Director Dated: ® C- " ' � , 2016 CITY OF SAN BERNARDINO BY: —/�� A1`4� Mark Scott, City Manager Approved as to Form: Gary D. Saenz, City Attorney By: VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF THE CITY OF SAN BERNARDINO AND OVERLAND,PACIFIC&CUTLER,INC.