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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Ken Fischer, Director
Subject: Resolution of the Mayor and
Common Council of the City of San
Bernardino authorizing the execution of
an agreement and purchase order in the
amount of $350,000.00 with one one-
year extension at the City's option,
between the City of San Bernardino and
Nelson Paving and Grading Corporation
(NPG) for miscellaneous street repairs
throughout the City of San Bernardino.
Dept: Public Services
Date: June 12, 2007
Meeting Date: July 2, 2007
Synopsis of Previous Council Action:
December 4,2006- Resolution No. 2006-431- Council authorized execution of an
Agreement with NPG Corporation in the amount of $207,435.00.
Recommended Motion:
Adopt Resolution
~~/
Signature
Contact person: Ken Fischer, Director
Supporting data attached:
Staff Report, Resolution,
Vendor Service Agreement
FUNDING REQUIREMENTS:
5140
All
Phone:
Ward:
Amount:
$ 350,000.00
FY 07-08 Account Number
001-402-5502 in the
amount of $250,000.00;
126-369-5504-7362 for
$50,000.00; and 126-369-
5504-7380 for $50,000.00
Source:
Finance:
Council Notes:
Agenda Item No. 3(P
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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Staff Report
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino authorizing
the execution of an agreement and purchase order in the amount of $350,000.00 with
one one-year extension at the City's option, between the City of San Bernardino and
Nelson Paving and Grading Corporation (NPG), for miscellaneous street repairs
throughout the City of San Bernardino.
Background:
A formal process was initiated to solicit bids for repairs of damaged asphalt and asphalt
berms. Notices inviting bids for Bid Specification RFQ F-07-14 Asphalt Paving Repair
were sent to ten (10) contractors. On December 4, 2006, the Mayor and City Council
awarded a contract and purchase order in the amount of $207,435.00 to NPG
Corporation to repair miscellaneous streets throughout the City of San Bernardino.
The current contract allows for renewals of up to two years in one-year increments at
the City's option. Public Services would like to exercise the first year option of the
contract to NPG for the amount of $350,000.00. Moreover, NPG has agreed to hold
their current pricing for the next year contract.
Financial Impact:
Funding for this is contained in FY 07-08 Account Number 001-402-5502 in the amount
of $250,000.00; 126-369-5504-7362 in the amount of $50,000.00, and 126-369-5504-
7380 in the amount of $50,000.00.
Recommendation:
Adopt resolution.
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RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND
PURCHASE ORDER IN THE AMOUNT OF $350,000.00 WITH ONE ONE-YEAR
EXTENSION AT THE CITY'S OPTION, BETWEEN THE CITY OF SAN
BERNARDINO AND NELSON PAVING AND GRADING CORPORATION (NPG),
FOR MISCELLANEOUS STREET REPAIRS THROUGHOUT THE CITY OF SAN
BERNARDINO.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. That NPG Corporation was awarded a contract with two one year
extensions as the lowest responsible bidder by Resolution No. 2006-431 on December
4, 2006 and the City is hereby accepting the first year option.
SECTION 2. That the NPG Corporation shall enter into a Vendor Services
Agreement in the form attached hereto in the total amount of $350,000.00 and the
Purchasing Manager may issue a purchase order for said amount to process the
required payments to NPG Corporation.
SECTION 3. The Purchase Order shall reference this Resolution No.
2006 and shall read, " NPG Corporation for miscellaneous street repairs.
Agreement not to exceed $350,000.00 and shall incorporate the terms and conditions
of this agreement."
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND
PURCHASE ORDER IN THE AMOUNT OF $350,000.00 WITH ONE ONE-YEAR
EXTENSION AT THE CITY'S OPTION, BETWEEN THE CITY OF SAN
BERNARDINO AND NELSON PAVING AND GRADING CORPORATION (NPG),
FOR MISCELLANEOUS STREET REPAIRS THROUGHOUT THE CITY OF SAN
BERNARDINO.
SECTION 4. The authorization to execute the above-referenced Agreement is
rescinded if not issued within sixty (60) days of the passage of this resolution.
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND
PURCHASE ORDER IN THE AMOUNT OF $350,000.00 WITH ONE ONE-YEAR
EXTENSION AT THE CITY'S OPTION, BETWEEN THE CITY OF SAN
BERNARDINO AND NELSON PAVING AND GRADING CORPORATION (NPG),
FOR MISCELLANEOUS STREET REPAIRS THROUGHOUT THE CITY OF SAN
BERNARDINO.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
Mayor and Common Council of the City of San Bernardino at a
8 meeting thereof, held on the
day of
, 2007, by the
9 following vote, to wit:
10 Council Members:
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AYES
NAYS ABSTAIN ABSENT
ESTRADA
BAXTER
BRINKER
DERRY
KELLEY
JOHNSON
MCCAMMACK
Rachel G. Clark, City Clerk
is hereby approved this
day of
The foregoing resolution
,2007.
Patrick J. Morris, Mayor
City of San Bernardino
24 Approved as to Form:
: By: If/ir,'<10 1-, P t/i/,~~
/'/ James F. Penman
27 L/ City Attorney
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VENDOR SERVICE AGREEMENT
This Vendor Service Agreement is entered into this 2nd day of July
2007, by and between Nelson Paving and Grading (NPG) ("VENDOR") and the City of San
Bernardino ("CITY" or "San Bernardino").
WITNESSETH:
WHEREAS, the Mayor and Common Council has determined that it is advantageous
and in the best interest of the CITY to contract for asphalt paving repair; and
WHEREAS, the City of San Bernardino did solicit and accept proposals and bids from
a number of vendors for the asphalt paving repair.
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 in this purchase agreement.
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 $350,000.00 for providing asphalt-paving
repalT .
b. No other expenditures made by VENDOR shall be reimbursed by CITY,
3. . TERM; SEVERABILITY.
The term of this Agreement shall be for a period of one year.
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.
EXHIBIT "A"
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4. INDEMNITY.
CITY agrees to indemnify and hold harmless VENDOR, its officers, agents and
volunteers from any and all claims, actions, or losses, damages and/or liability resulting from
CITY's negligent acts or omissions arising from the CITY's performance of its obligations
under the Agreement.
VENDOR agrees to indemnify and hold harmless the CITY, its officers, agents, and
volunteers from any and all claim, actions, or losses, damages and/or liability resulting from
VENDOR's negligent acts or omissions arising from the VENDOR's performance of its
obligations under the Agreement.
In the event the CITY and/or the VENDOR is found to be comparatively at fault for any
claim, action, loss, or damage which results from their respective obligations under the
Agreement, the CITY and/or VENDOR shall indemnify the other to the extent of this
comparative fault.
5. INSURANCE.
While not restricting or limiting the forgoing, 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.
EXHIBIT "A"
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6. NON-DISCRIMINATION.
In the performance of this Agreement and in the hiring and recruitment of employees,
VENDOR shall not discriminate on the basis of race, creed, color, religion, sex, physical
handicap, ethnic background or country of origin.
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 license, 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:
Public Services Director
300 North "D" Street
San Bernardino, CA 924 I 8
Telephone: (909) 384-5140
TO THE VENDOR:
NPG Corporation
1354 Jet Way
EXHIBIT "A"
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Perris, CA 92571
Telephone: (951) 940-0200
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.
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 the
mandatory and not permissive in nature.
13. GOVERNING LAW.
EXHIBIT "A"
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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
convemence only and shall not affect the construction or the interpretation of any of its
provIsIons.
16. 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.
IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day
and date set forth below.
Dated:
,2007
VENDOR.
By:
Its:
Dated
,2007
CITY OF SAN BERNARDINO
By:
Fred Wilson, City Manager
Approved as to Form:
By:
James F. Penman, City Attorney
EXHIBIT "A"
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VENDOR SERVICE AGREEMENT
This Vendor Service Agreement is entered into this 2nd day of July
2007, by and between Nelson Paving and Grading (NPG) ("VENDOR") and the City of San
Bernardino ("CITY" or "San Bernardino").
WITNESSETH:
WHEREAS, the Mayor and Common Council has determined that it is advantageous
and in the best interest of the CITY to contract for asphalt paving repair; and
WHEREAS, the City of San Bernardino did solicit and accept proposals and bids from
a number of vendors for the asphalt paving repair.
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 in this purchase agreement.
2. COMPENSA nON AND EXPENSES.
a. For the services delineated above, the CITY, upon presentation of an invoice, shall
pay the VENDOR up to the amount of $350,000.00 for providing asphalt-paving
repaIr.
b. No other expenditures made by VENDOR shall be reimbursed by CITY,
3. TERM; SEVERABILITY.
The term of this Agreement shall be for a period of one year.
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.
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4. INDEMNITY.
CITY agrees to indemnifY and hold harmless VENDOR, its officers, agents and
volunteers from any and all claims, actions, or losses, damages and/or liability resulting from
CITY's negligent acts or omissions arising from the CITY's performance of its obligations
under the Agreement.
VENDOR agrees to indemnify and hold harmless the CITY, its officers, agents, and
volunteers from any and all claim, actions, or losses, damages and/or liability resulting from
VENDOR's negligent acts or omissions arising from the VENDOR's performance of its
obligations under the Agreement.
In the event the CITY and/or the VENDOR is found to be comparatively at fault for any
claim, action, loss, or damage which results from their respective obligations under the
Agreement, the CITY and/or VENDOR shall indemnify the other to the extent of this
comparative fault.
5. INSURANCE.
While not restricting or limiting the forgoing, 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.
24 TO THE CITY:
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27 TO THE VENDOR:
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NON-DISCRIMINATION.
In the performance of this Agreement and in the hiring and recruitment of employees,
VENDOR shall not discriminate on the basis of race, creed, color, religion, sex, physical
handicap, ethnic background or country of origin.
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 license, 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:
Public Services Director
300 North "D" Street
San Bernardino, CA 92418
Telephone: (909) 384-5140
NPG Corporation
1354 Jet Way
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Perris, CA 92571
Telephone: (951) 940-0200
10. A TTORNEYS' 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.
II. 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 the
mandatory and not permissive in nature.
13. GOVERNING LAW.
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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. 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.
IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day
and date set forth below.
Dated:
Dated
,2007
VENDOR.
By:
Its:
,2007
CITY OF SAN BERNARDINO
By:
Approved as to Form:
Fred Wilson, City Manager
By:
Ja7,
U
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/. Vr.--"./ ~. [/i//....0"._
. Penman," City Attorney