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HomeMy WebLinkAbout26-Parks and Recreation ORIGINAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Kevin Hawkins, Director Subject: Resolution authorizing execution of Amendment No. I to the Vendor Service Agreement with Golden West Landscape Contractor, and an increase to Purchase Order No. 302251 in the amount of $34,944 for landscape and irrigation maintenance services for specific sites, and ratifying any action taken between October I, 2008 and the date that the Resolution is adopted. MICC Meeting Date: October 6, 2008 Dept: Parks, Recreation & Community Services Dept. Date: September 22, 2008 Synopsis of Previous Council Action: July 7, 2008 - Council adopted Resolution No. 2008-264, authorizing execution of an Agreement for landscape and irrigation maintenance services for specific sites for three-months, and the issuance of a Purchase Order (No. 302251) in the amount of $46,416. Recommended Motion: Adopt Resolution. / ~/ 7 / . \ . ii"' ,'. Signature I I Contact person: Ramon Mata Phone: 5233 Supporting data attached: yes Ward: All Wards FUNDING REQUIREMENTS: Amount: $34,944 Source: Ac"t Nn nn1_<\R?_5'inR Acct. Description: Parks Landscape Contracts Council Notes: Finance: /f?:.so 2..ooB -.:589 Agenda Item No. Z~ IO..CtJ....Oe 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 execution of Amendment No.1 to Vendor Service Agreement with Golden West Landscape Contractor, and an increase to Purchase Order No. 302251 in the amount of $34,944 for landscape and irrigation maintenance services for downtown facilities, parking lots, north site facilities, south site facilities, central facilities, Carousel Mall, medians, Arrowhead Credit Union Park and library facilities for the period October I, 2008 through November 30, 2008, pursuant to Section 3.04.0IOB3 of the Municipal Code, and ratifying any action taken between October I, 2008 and the date that this resolution is adopted. Background: The Parks, Recreation and Community Services Department has contracted out the landscape and irrigation maintenance of fifty-seven (57) park sites. Two vendors have contracted with the Department for the last three years; those contracts expired June 30, 2008. In order to provide uninterrupted landscape and irrigation maintenance service at those park locations, Council authorized a Purchase Order to Golden West Landscape Contractor for a three-month term at the July 7, 2008 Council meeting. Golden West Landscape Contractor has performed satisfactorily during the three-month extension. Staff is requesting authorization to issue an additional two-month interim purchase order to Golden West Landscape Contractor, at the same monthly cost as previous agreement ($15,472 per month); however, staff is requesting an additional $4,000 for the contractor to procure additional materials and supplies, at the direction ofthe Parks Division Manager, that are outside of the scope of the agreement. This extension of time is being requested in order to finalize the transition from contracted personnel to in-house personnel with the desired goal of improved service delivery and budget savings. Financial Impact: Funding in the amount of$34,944 is available in account no. 001-382-5506 (Parks Landscape Contracts) to fund these services. Recommendation: Adopt Resolution. t(Q)~V 1 2 3 4 5 6 7 8 9 10 RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AMENDMENT NO.1 TO VENDOR SERVICE AGREEMENT WITH GOLDEN WEST LANDSCAPE CONTRACTOR, AND AN INCREASE TO PURCHASE ORDER NO. 302251 IN THE AMOUNT OF $34,944 FOR LANDSCAPE AND IRRIGATION MAINTENANCE SERVICES FOR DOWNTOWN FACILITIES, PARKING LOTS, NORTH SITE FACILITIES, SOUTH SITE FACILITIES, CENTRAL FACILITIES, CAROUSEL MALL, MEDIANS, ARROWHEAD CREDIT UNION PARK AND LIBRARY FACILITIES FOR THE PERIOD OCTOBER 1, 2008 THROUGH NOVEMBER 30, 2008, PURSUANT TO SECTION 3.04.010 B-3 OF THE MUNICIPAL CODE, AND RATIFYING ANY ACTION TAKEN BETWEEN OCTOBER 1, 2008 AND THE DATE THAT THIS RESOLUTION IS ADOPTED. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 11 SECTION 1. That the Acting City Manager is hereby authorized to execute 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Amendment No.1 to Vendor Service Agreement with Golden West Landscape Contractor, attached hereto and marked Exhibit "A", for landscape and irrigation maintenance services for Downtown Facilities, Parking Lots, North Site Facilities, South Site Facilities, Central Facilities, Carousel Mall, Medians, Arrowhead Credit Union Park and Library Facilities for the period October 1, 2008 through November 30, 2008; and SECTION 2. That the Director of Finance is authorized to increase Purchase Order No. 302251 to Golden West Landscape Contractor in the amount of $34,944, for a total amount not-to-exceed $81,360; and SECTION 3. That this purchase is exempt from the formal contract procedures of Section 3.04.010 of the Municipal Code, pursuant to Section 3.04.010 8-3 of said Code "Purchases approved by the Mayor and Common Council"; and SECTION 4. That the implementation date is October 1,2008; therefore, any action taken between October 1, 2008 and the date that this Resolution is adopted is hereby ratified; and /0 -6-0 ~ .JJ :;10 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 COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AMENDMENT NO. I TO VENDOR SERVICE AGREEMENT WITH GOLDEN WEST LANDSCAPE CONTRACTOR, AND AN INCREASE TO PURCHASE ORDER NO. 302251 IN THE AMOUNT OF $34,944 FOR LANDSCAPE AND IRRIGATION MAINTENANCE SERVICES FOR DOWNTOWN FACILITIES, PARKING LOTS, NORTH SITE FACILITIES, SOUTH SITE FACILITIES, CENTRAL FACILITIES, CAROUSEL MALL, MEDIANS, ARROWHEAD CREDIT UNION PARK AND LIBRARY FACILITIES FOR THE PERIOD OCTOBER I, 2008 THROUGH NOVEMBER 30, 2008, PURSUANT TO SECTION 3.04.010 B-3 OF THE MUNICIPAL CODE, AND RATIFYING ANY ACTION TAKEN BETWEEN OCTOBER 1,2008 AND THE DATE THAT THIS RESOLUTION IS ADOPTED. SECTION 5. That the authorization granted hereunder shall expire and be void and of no further effect if the Agreement is not executed by both parties and returned to the Office of the City Clerk within thirty (30) days following effective date ofthe Resolution. III III III III 1/1 1/1 III 1/1 III III /II III III 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 COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AMENDMENT NO. I TO VENDOR SERVICE AGREEMENT WITH GOLDEN WEST LANDSCAPE CONTRACTOR, AND AN INCREASE TO PURCHASE ORDER NO. 302251 IN THE AMOUNT OF $34,944 FOR LANDSCAPE AND IRRIGATION MAINTENANCE SERVICES FOR DOWNTOWN FACILITIES, PARKING LOTS, NORTH SITE FACILITIES, SOUTH SITE FACILITIES, CENTRAL FACILITIES, CAROUSEL MALL, MEDIANS, ARROWHEAD CREDIT UNION PARK AND LIBRARY FACILITIES FOR THE PERIOD OCTOBER 1,2008 THROUGH NOVEMBER 30, 2008, PURSUANT TO SECTION 3.04.010 B-3 OF THE MUNICIPAL CODE, AND RATIFYING ANY ACTION TAKEN BETWEEN OCTOBER 1, 2008 AND THE DATE THAT THIS RESOLUTION IS ADOPTED. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the day of , 2008, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA BAXTER BRINKER DERRY KELLEY JOHNSON MCCAMMACK Rachel G. Clark, City Clerk day of The foregoing resolution is hereby approved this 2008. Patrick J. Morris, Mayor City of San Bernardino Approved as to form: James F. Penman, City Attorney -Ii Exhibit A AMENDMENT NO.1 TO VENDOR SERVICE AGREEMENT WITH GOLDEN WEST LANDSCAPE CONTRACTOR This Agreement is entered into on this _ day of , 2008 by and between Golden West Landscape Contractor ("VENDOR") and the City of San Bernardino ("CITY" or "San Bernardino"). RECITALS A. On July 7, 2008, Golden West Landscape Contractor and the City of San Bernardino entered into a Vendor Service Agreement for the landscape and irrigation maintenance services for Downtown Facilities, Parking Lots, North Site Facilities, South Site Facilities, Central Facilities, Carousel Mall, Medians, Arrowhead Credit Union Park and Library Facilities for the period July I, 2008 through September 30, 2008, a copy of which is attached hereto as "Attachment I" and incorporated by this reference. Purchase Order No. 302251 was issued to Golden West Landscape Contractor in the amount of $46,416 to cover the cost of this service. B. The CITY and the VENDOR now desire to alter the Agreement to increase the amount of the Agreement by $30,944 for an additional two months of landscape and irrigation maintenance service at those locations, with an additional $4,000 for the procurement of additional materials and supplies, at the direction of the Parks Division Manager, at those locations that are outside the scope of the agreement, for a total not-to-exceed cost of$81,360. AGREEMENT In consideration of the mutual promises contained in the Vendor Service Agreement, the parties agree as follows: 1. The total Agreement price shall be increased by $34,944, to a not-to-exceed amount of $81 ,360. 2. The other provisions of the Vendor Service Agreement are reaffirmed as originally stated. AMENDMENT NO.1 TO VENDOR SERVICE AGREEMENT WITH CREATIVE CONTRACTORS IN WITNESS THEREOF, the parties hereto have executed the Agreement on the day and date first above written. GOLDEN WEST LANDSCAPE CONTRACTOR Accepted By: CITY OF SAN BERNARDINO Approved By: Title: Lori Sassoon Acting City Manager Date: Date: Approved by Mayor and Common Council Date: Item No. Approved as to form: James F. Penman, City Attorney By: :WUtl-264 Attachment 1 VENDOR SERVICE AGREEMENT This Vendor Service Agreement is entered into this 7th day of July 2008, by and between Golden West Landscape Contractor ("VENDOR") and the City of San Bernardino ("CITY" or "San Bernardino"). WITNESSETH: WHEREAS, the Mayor and Common Council have determined that it is advantageous and in the best interest of the CITY to acquire the services of a professional landscape maintenance contractor to maintain the landscaping and irrigation at Downtown Facilities, Parking Lots, North Site Facilities, South Site Facilities, Central Facilities, Carousel Mall, Medians, Arrowhead Credit Union Park and Library Facilities for the period July 1, 2008 through September 30, 2008, and WHEREAS, Golden West Landscape Contractor has provided satisfactory landscape and irrigation maintenance services to the City; and 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 maintenance of landscaping and irrigation services at Downtown Facilities, Parking Lots, North Site Facilities, South Site Facilities, Central Facilities, Carousel Mall, Medians, Arrowhead Credit Union Park and Library Facilities. 2. COMPENSATION AND EXPENSES. For the services delineated above, the CITY, upon presentation of invoices, shall pay the VENDOR the amount of $15,472 per month, not to exceed $46,416 for the three month term of the Agreement for landscape and irrigation maintenance services at the above referenced City sites. I LUUll-Lb4 3. TERM; TERMINATION. The tenn of this Agreement is from July I, 2008 through September 30, 2008. This Agreement may be tenninated at any time by thirty (30) days written notice by either party. The tenns of this Agreement shall remain in force unless mutually amended. 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 caused by the sole negligence of the City, its elected officials, employees, agents or representatives. As part of the foregoing indemnity, Vendor agrees to protect and defend at its own expense, including attorney's fees, the City, its elected officials, employees, agents or representatives from any and all legal actions based upon such actual or alleged acts or omissions. Vendor hereby waives any and all rights to any types of express or implied indemnity against the City, its elected officials, employees, agents or representatives, with respect to third party claims against the Vendor relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement. 5. INSURANCE. While not restricting or limiting the foregoing, during the tenn 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 2 LUUll-Lb4 prior to undertaking any work under this Agreement. CITY shall be set forth as an additional named insured in each policy of insurance provided hereunder. The Certificate of Insurance furnished to the CITY shall require the insurer to notify CITY of any change or termination in the policy. 6. NON-DISCRIMINATION. In the performance of this Agreement and in the hiring and recruitment of employees, 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. 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. VENDOR warrants that it possesses or shall obtain, and maintain a business registration certificate pursuant to Chapter 5 of the Municipal Code, and any other licenses, permits, qualifications, insurance and approval of whatever nature that are legally required of VENDOR to practice its business or profession. 3 LUUl:l-Lb4 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: Director of Parks, Recreation and Community Services 201-A North "E" Street, Suite #103 San Bernardino, CA 92401 Telephone: (909)384-5233 TO THE VENDOR: Golden West Landscape Contractor 2160 Kern Street San Bernardino, CA 92407-6211 Telephone: (909}887-6263 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. n. 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. 4 LUUtl-Lb4 12. VENUE. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State Courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 13. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. 14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the parties to this Agreement and their respective heirs, representatives, successors, and assigns. 15. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions. 16. SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. III III 5 lUUll-lb4 17. 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. IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated "7 _ !)./) - , 2008 Golden West Landscape Contractor By: Its: I, ; '" '2.c:',,,O --{A J...~(/tJ.-.c~ j~'" //7 , . - Dated /uAy 7' ,2008 By: Approved as to Form: James F. Penman, City Attorney 6 AMENDMENT NO.1 TO VENDOR SERVICE AGREEMENT WITH GOLDEN WEST LANDSCAPE CONTRACTOR This Agreement is entered into on this _ day of , 2008 by and between Golden West Landscape Contractor ("VENDOR") and the City of San Bernardino ("CITY" or "San Bernardino"). RECITALS A. On July 7, 2008, Golden West Landscape Contractor and the City of San Bernardino entered into a Vendor Service Agreement for the landscape and irrigation maintenance services for Downtown Facilities, Parking Lots, North Site Facilities, South Site Facilities, Central Facilities, Carousel Mall, Medians, Arrowhead Credit Union Park and Library Facilities for the period July 1,2008 through September 30, 2008, a copy of which is attached hereto as "Attachment I" and incorporated by this reference. Purchase Order No. 302251 was issued to Golden West Landscape Contractor in the amount of $46,416 to cover the cost of this service. B. The CITY and the VENDOR now desire to alter the Agreement to increase the amount of the Agreement by $30,944 for an additional two months of landscape and irrigation maintenance service at those locations, with an additional $4,000 for the procurement of additional materials and supplies, at the direction of the Parks Division Manager, at those locations that are outside the scope of the agreement, for a total not-to-exceed cost of$81,360. AGREEMENT In consideration of the mutual promises contained in the Vendor Service Agreement, the parties agree as follows: 1. The total Agreement price shall be increased by $34,944, to a not-to-exceed amount of$81,360. 2. The other provisions of the Vendor Service Agreement are reaffirmed as originally stated. AMENDMENT NO.1 TO VENDOR SERVICE AGREEMENT WITH CREATIVE CONTRACTORS IN WITNESS THEREOF, the parties hereto have executed the Agreement on the day and date first above written. GOLDEN WEST LANDSCAPE CONTRACTOR Accepted By: CITY OF SAN BERNARDINO Approved By: Lori Sassoon Acting City Manager Title: Date: Date: Approved by Mayor and Common Council Date: Item No. Approved as to form: James F. Penman, City Attorney 2UU8-264 Attachment 1 VENDOR SERVICE AGREEMENT This Vendor Service Agreement is entered into this7th day of July 2008, by and between Golden West Landscape Contractor ("VENDOR") and the City of San Bernardino ("CITY" or "San Bernardino"). WITNESSETH: WHEREAS, the Mayor and Common Council have detennined that it is advantageous and in the best interest of the CITY to acquire the services of a professional landscape maintenance contractor to maintain the landscaping and irrigation at Downtown Facilities, Parking Lots, North Site Facilities, South Site Facilities, Central Facilities, Carousel Mall, Medians, Arrowhead Credit Union Park and Library Facilities for the period July I, 2008 through September 30, 2008, and WHEREAS, Golden West Landscape Contractor has provided satisfactory landscape and irrigation maintenance services to the City; and 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 maintenance of landscaping and irrigation services at Downtown Facilities, Parking Lots, North Site Facilities, South Site Facilities, Central Facilities, Carousel Mall, Medians, Arrowhead Credit Union Park and Library Facilities. 2. COMPENSATION AND EXPENSES. For the services delineated above, the CITY, upon presentation of invoices, shall pay the VENDOR the amount of $15,472 per month, not to exceed $46,416 for the three month term of the Agreement for landscape and irrigation maintenance services at the above referenced City sites. 1 lUUll-lb4 3. TERM; TERMINATION. The tenn of this Agreement is from July 1, 2008 through September 30, 2008. This Agreement may be tenninated at any time by thirty (30) days written notice by either party. The tenns of this Agreement shall remain in force unless mutually amended. 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 perfonnance of services under this Agreement, unless the bodily injury or property damage was caused by the sole negligence of the City, its elected officials, employees, agents or representatives. As part of the foregoing indemnity, Vendor agrees to protect and defend at its own expense, including attorney's fees, the City, its elected officials, employees, agents or representatives from any and all legal actions based upon such actual or alleged acts or omissions. Vendor hereby waives any and all rights to any types of express or implied indemnity against the City, its elected officials, employees, agents or representatives, with respect to third party claims against the Vendor relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement. 5. INSURANCE. While not restricting or limiting the foregoing, during the term of this Agreement, VENDOR shall maintain in effect policies of comprehensive public, general and automobile liability insurance, in the amount 0[$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 2 lUUtl-lb4 prior to undertaking any work under this Agreement. CITY shall be set forth as an additional named insured in each policy of insurance provided hereunder. The Certificate of Insurance furnished to the CITY shall require the insurer to notify CITY of any change or termination in the policy. 6. NON-DISCRIMINATION. In the performance of this Agreement and in the hiring and recruitment of employees, 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. 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. VENDOR warrants that it possesses or shall obtain, and maintain a business registration certificate pursuant to Chapter 5 of the Municipal Code, and any other licenses, permits, qualifications, insurance and approval of whatever nature that are legally required of VENDOR to practice its business or profession. 3 lUUll-lb4 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: Director of Parks, Recreation and Community Services 20 I-A North "E" Street, Suite # 1 03 San Bernardino, CA 92401 Telephone: (909)384-5233 TO THE VENDOR: Golden West Landscape Contractor 2160 Kern Street San Bernardino, CA 92407-6211 Telephone: (909) 887-6263 Iii. 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. 4 LUUll-Lb4 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 pennissive in nature. 13. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. 14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the parties to this Agreement and their respective heirs, representatives, successors, and assigns. 15. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions. 16. SEVERABILITY. If any provision of this Agreement is detennined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such detennination shall not affect the validity or enforceability of the remaining tenns 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. 11/ III 5 :LUUll-:Lb4 17. 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 ail parties to this Agreement. IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated "7 _ ::J../) - , 2008 Golden West Landscape Contractor By: A J "Q.C:.lI,Cl "'I A '-.{)c3UtJ....c~ Its: J-2 r //7 _ , . Dated~. 2008 By: iIson, City Manager Approved as to Form: James F. Penman, City Attorney 6