Loading...
HomeMy WebLinkAbout2018-0521 2 3 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 RESOLUTION NO. 2018-52 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A VENDOR SERVICE AGREEMENT WITH USA SHADE FOR THE DESIGN, ENGINEERING AND INSTALLATON OF A SHADE STRUCTURE AT THE JERRY LEWIS FAMILY SWIM CENTER WHEREAS, on January 17, 2018, $195,000.00 in Community Development Block Grant (CDBG) funding was awarded to the Parks, Recreation and Community Services Department for the design, engineering and installation of a Shade Structure at the Jerry Lewis Family Swim Center, through the approval of the substantial amendment of the FY 2017/18 HUD Annual Action Plan; and, WHEREAS, on January 2, 2018, a formal bid was solicited by Parks, Recreation and Community Services Department and notices were posted on the City's website and printed in the San Bernardino County Sun Newspaper; and, WHEREAS, the bids were opened publicly on January 31, 2018 at 3:00 p.m.; and, WHEREAS, USA Shade located at 1085 N. Main Street, Suite C, Orange, California 92867, was determined to have submitted the lowest and most responsive bid for the design, engineering and installation of a Shade Structure at the Jerry Lewis Family Swim Center pursuant to RFQ F-17-40. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. A contract is hereby awarded to USA Shade in an amount not to exceed $148,631.56, which includes a 10% contingency amount of $13,511.96. SECTION 2. All other bids, therefore, are hereby rejected. SECTION 3. The City Manager, or her designee, is hereby authorized and directed to execute a Vendor Service Agreement with USA Shade, a copy of which is attached hereto and incorporated herein by reference as though set forth at length and marked as Exhibit "A". SECTION 4. The Director of Finance, or his designee, is directed to issue a Purchase order to USA Shade for a total amount not to exceed $148,631.56, which includes a contingency amount of $13,511.96. The Purchase Order shall reference this Resolution, state 1 1 3 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 that it is for the design, engineering and installation of a Shade Structure at the Jerry Lewis Family Swim Center, and incorporate the terms and conditions of the Agreement. SECTION 5. This contract and any amendment or modifications thereto shall not take effect or become operative until fully signed and executed by the parties and no party shall be obligated hereunder until the time of such full execution. No oral agreements, amendments, modifications, or waivers are intended or authorized and shall not be implied from any course of conduct of any party. SECTION 6. The authorization to execute this contract is rescinded if the parties to the contract fail to execute it within sixty (60) days of passage of this Resolution. 2 1 2 3 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 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A VENDOR SERVICE AGREEMENT WITH USA SHADE FOR THE DESIGN, ENGINEERING AND INSTALLATON OF A SHADE STRUCTURE AT THE JERRY LEWIS FAMILY SWIM CENTER I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and City Council of the City of San Bernardino at a Joint Regular Meeting thereof, held on the 7'h day of March 2018, by the following vote, to wit: Council Members: AYES MARQUEZ BARRIOS X VALDIVIA xC�� SHORETT k NICKEL X RICHARD MULVIHILL Cm I NAYS ABSTAIN ABSENT Georgeann 44anna, CMC, City Clerk The foregoing Resolution is hereby approved this 7t" day of March 2018. / ( 6 t 'I., a,, R. Carey Davis ayor City of San B ardino Approved as to form: Gary D. Saenz, City Attorney By: � <, (25 3 VENDOR SERVICE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO, CALIFORNIA AND USA SHADE FOR THE DESIGN, ENGINEERING AND INSTALLATION OF A SHADE STRUCTURE AT THE JERRY LEWIS FAMILY SWIM CENTER This Vendor Service agreement is entered into this 7* day of March 2018 ("Effective Date"), by and between USA Shade ("VENDOR") and the City of San Bernardino, a charter city and municipal corporation ("CITY"). WITNESSETH: WHEREAS, the City operates an aquatics facility at Perris Hill Park, also known as the Jerry Lewis Family Swim Center, Imated at 831 E. Highland Ave, San Bernardino, California 92404 (hereafter referred to as "the Swim Center"); and WHEREAS, the Swim Center is in need of a shade structure, and the Mayor and City Council of the CITY have determined that it is advantageous and in the best interest of the City to contract for the construction of the shade structure at the Swim Center, and WHEREAS, after soliciting the formal bid process for the design, engineering and installation of the shade structure from available vendors, CITY has determined that VENDOR can best meet CITY's needs; and WHEREAS, no official or employee of the CITY has a financial interest, within the provision of California Government Code § 1090-1092, in the subject matter of this Agreement. NOW, THEREFORE, the parties hereto agree as follows: 1. SCOPE OF SERVICES. For the remuneration stipulated, City hereby engages the services of Vendor to construct a shade structure at the Swim Center as set forth in CITY's RFQ F-17-40 (dated January 2, 2018), attached hereto, and incorporated herein as Exhibit `B" ("Services"). Services will not be deemed complete until CITY confirms, in writing, that all products and services are in place. VENDOR shall remove and dispose of all rubbish, debris, waste, dust:, or surplus materials that accumulate through the course of this Agreement. CITY may elect if required, upon written notice to VENDOR, to perform cleanup, the cost for which will be deducted from the Agreement amount. 2. COMPENSATION AND EXPENSES. 2.1 For the services delineated above, the CITY, upon presentation of an invoice, shall pay VENDOR an amount of $135,119.60, pursuant to the rates set forth in VENDOR's response to RFQ 17-40, attached hereto and incorporated herein as Exhibit `B". 2.2 No other expenditures made by VENDOR shall be reimbursed by CITY. 3. TERM; TERMINATION. The Term of this Agreement shall begin on the Effective Date through December 31, 2018, or the completion of the Services defined in Section 1 of this Agreement. Services pursuant to this Agreement shall begin upon execution of the Agreement, and must be fully completed within 120 days, but no later than December 31, 2018. 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 amended by written agreement of the parties prior to the expiration of the Agreement. 4. INDEMNITY. To the fullest extent permitted by law, VENDOR, shall defend (with legal counsel reasonably acceptable to CITY), indemnify, protect, and hold harmless CITY and its elected officials, officers, employees, agents, and representatives (Indemnified Parties) from and against any and all claims, losses, costs, damages, injuries including, without limitation, injury to or death of an employee of VENDOR or its subcontractors), expense, and liability of every kind, nature and description (including, without limitation, incidental and consequential damages, court costs, and litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith and cost of investigation) that arise out of, pertain to, or relate to, directly or indirectly, in whole or in part, any goods provided or performance of services under this Agreement by VENDOR, any subcontractor, anyone directly or indirectly employed by either of them, or anyone that either of them control. VENDOR's duties to defend, indemnify, protect, and hold harmless shall not include any claims or liabilities arising from the sole negligence or willful misconduct of the Indemnified Parties. The VENDOR's indemnification obligation applies to the CITY's "active" as well as "passive" negligence, but does not apply to the CITY's "sole negligence" or "willful misconduct" within the meaning of Civil Code Section 2782. 5. INSURANCE. 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 commencing the Services provided by 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. 5.1 Minimum Scope and Limits of Insurance. VENDOR shall obtain and maintain during the term of this Agreement all of the following insurance coverages: (a) Commercial general liability, including premises -operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combines single 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) Workers compensation insurance as required by the State of California. 5.2 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 the CITY, prior to performing any services under this Agreement. 5.3 Non -Limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which VENDOR may be held responsible for payments of damages to persons or property_ 6. INCONSISTENT OR CONFLICTING TERMS. This scope of the entire agreement between the parties is described in the agreement Documents. The Agreement Documents are comprised of the RFQ F-17-40 and any other solicitation document (Solicitation); the successful bid or proposal; the letter awarding the Agreement to VENDOR; the CITY'S written acceptance of exceptions or clarifications to the Solicitation, if any; and this Agreement including any exhibits hereto. In resolving conflicts resulting from errors or discrepancies in any of the Agreement Documents, the terms of this Agreement shall prevail over any inconsistent or conflicting provision in any other Agreement Document, including exhibits to this Agreement. 7. NON-DISCR M]NATION. 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. 8. INDEPENDENT CONTRACTOR. VENDOR, its officers, agents, and employees, while performing Services pursuant to this Agreement will be acting as independent contractors and not agents or employees of the CITY. VENDOR is responsible for and must secure, at its own expense, 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 a business license, if any are required, in connection with the services to be performed hereunder. This Agreement does not create an agency, employee partnership, or joint venture between the CITY and VENDOR. 9. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. Any company doing business within the CITY is required to obtain a Business Registration Certificate pursuant to Title 5 of the Municipal Code and must provide a copy of its Business Registration Certificate to the CITY before commencing the Services to be provided by this Agreement. VENDOR warrants that it possesses or shall obtain, and maintain a Business Registration and any other licenses, permits, qualifications, insurance, or any other requirement legally required of VENDOR to conduct its business in the CITY. 10. PREVAILING WAGE AND LABOR CODE REQUIREMENTS. VENDOR is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California code of Regulations, Title 8, Section 16000, et seq., (Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and maintenance" projects. If the Services under this Agreement are performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $ 1,000 or more, VENDOR agrees to comply fully with such prevailing Wage Laws. 11. 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: Parks, Recreation & Community Services Department 290 N. D Street San Bernardino, CA 92401 Telephone: (909) 384-5233 12. ATTORNEYS' FEES. TO THE VENDOR: USA Shade 1085 N. Main St., Suite C Orange, CA 92867 Telephone: (949) 470-0152 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 attorney's fees, incurred by prevailing parry 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 LICENSEE shall be considered as "attorneys' fees" for the purposes of this Agreement. 13. NO TB HW PARTY BENEFICIARIES. Except as may be specifically set forth in this Agreement, none of the provisions of this Agreements are intended to benefit any third party not specifically referenced herein. No party other than CITY and VENDOR shall have the right to enforce any of the provisions of this Agreement. 14. 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 with 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. WIM"A DIU$] 04 The venue for any suit concerning solicitations or the Agreement, the interpretation of application of any of its terms and conditions, or any related disputes shall be in the Superior Court for the State of California, County of San Bernardino. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 16. SUCCESSORS AND ASSIGNS. This Agreement and all rights and obligations created by this Agreement shall be in force and effect whether or not any parties to the Agreement have been succeeded by another entity, and all rights and obligations created by this Agreement shall be vested and binding on any party's successor in interest. 17. 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. 18. SEVERABILITY. The unenforceability, invalidity, or illegality of any provision of this Agreement shall not render any other provision of this Agreement unenforceable, invalid, or illegal. FWAXTEY"', No failure of either CITY or VENDOR to insist upon the strict performance by the other of any covenant, term or condition of this Agreement, nor any failure to exercise any right or remedy consequent upon a breach of such covenant, term, or condition of this Agreement, shall constitute a waiver of any such breach of such covenant, term, or condition. No waiver of any breach shall affect or alter this Agreement, and each and every covenant, term, or condition. No waiver of any breach shall affect or alter this Agreement, and each and every covenant, condition, and term hereof shall continue in full force and effect without respect to any existing or subsequent breach. 20. PUBLIC RECORDS DISCLOSURE; CONFIDENTIALITY 20.1 All information received by the CITY from the VENDOR or any source concerning this Agreement, including the Agreement itself, may be treated by the CITY as public information subject to disclosure under the provisions of the California Public Records Act, Government Code Section 6250 et seq. (the "Public Records Act"). VENDOR understands that although all materials received by the CITY in connection with this Agreement are intended for the exclusive use of the CITY, they are potentially subject to disclosure under the provisions of the Public Records Act. In the event a request for disclosure of any, part, or all of any information with the VENDOR has reasonably requested CITY to hold in confidence is made to the CITY, the CITY shall notify the VENDOR of the request and shall thereafter disclose the requested information unless the VENDOR within five (5) days of receiving notice of the disclosure request, requests nondisclosure, provides CITY a legally sound basis for the nondisclosure, and agrees to indemnify, defend, and hold the CITY harmless in any/all actions brought to require disclosure. VENDOR waives any and all claims for damages, lost profits, or other injuries of any and all kinds in the event CITY fails to notify VENDOR of any such disclosure request and/or release any information concerning this Agreement received from the VENDOR or any other source. 20.2 Confidentiality. VENDOR acknowledges that the premises will be used by CITY for the processing and storage of confidential information protected from unlawful access and disclosure by federal, state, and local laws. CITY and its officers, agents, volunteers, and employees agree to comply with relevant federal, state, and local laws pertaining to the security and protection of such confidential information while on the premises. VENDOR agrees that it will prevent any unlawful access to or disclosure of the confidential information by VENDOR, its officers, agents, volunteers, employees, and contractors. VENDOR agrees that all entities with which VENDOR contracts to provide services on the premises will prevent any unlawful access or disclosure of the confidential information, and that said entities will agree to the same in writing. VENDOR acknowledges that any unlawful access to or disclosure of confidential information may result in the imposition of civil and criminal sanctions. 21. ENTIRE AGREEMENT; MODIFICATION. This Agreement contains all the agreements of the parties hereto with respect to any matter covered in this Agreement, and no prior agreement or understanding pertaining to such matter shall be effective for any purpose. This Agreement specifically supersedes any prior agreement between the parties related to the Property or Premises and the Parties hereby release each other from any and all claims or obligations arising thereunder. This Agreement may be modified or amended only by a written instrument executed by all parties to this Agreement. IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. CITY OF SAN BERNARDINO By: Andrea . Miller, C. ity Manager Date: Approved as to Legal Form: GARY D. SAENZ, City Attorney City of San Bernardino ATTEST` �y �' � J eo ann Ha a, CMC, Cit erk by: (Name) � Dhh S fgj*j"S Title: P r �(� I Date: 19