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HomeMy WebLinkAbout29-Fire Department CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACT nuIGINAL From: Mat Fratus, Deputy Chief Subject:Resolution authorizing the execution of Dept: Fire agreements and issuance of annual purchase orders to Allstar Fire Equipment in Date: 07/25/2011 the amount of $60,000 and Fisher Scientific Company L.L.C. in the amount of $10,000 for replacement of protective clothing and equipment for structural firefighting. Council Date: 08/01/2011 Synopsis of Previous Council Action: 11/02/09 Resolution No. 2009-345 authorizing the Director of Finance to issue annual purchase orders to Allstar Fire Equipment in the amount of$5,000, Fisher Scientific Company in the amount of$45,000, L.N. Curtis & Sons in the amount of$5,000, and Mallory Company in the amount of$10,000 for replacement of protective clothing and equipment for structural firefighting. 08/20/07 Resolution No. 2007-341 authorizing the Director of Finance to issue an annual purchase order to Fisher Scientific Company in the amount of$15,000, L.N. Curtis & Sons in the amount of$50,000, and Mallory Company in the amount of $10,000 for replacement of protective clothing and equipment for structural firefighting. 07/19/04 Resolution No. 2004-231 authorizing the Purchasing Manager to issue an annual purchase order to Allstar Fire Equipment and Mallory Company for replacement of protective clothing and equipment for structural firefighting. Recommended Motion: Adopt resolution Signat re Contact person: Dan Harker-Fire Captain Phone* (909) 385-5207 Supporting data attached: Resolution and Exhibit Ward: City Wide FUNDING REQUIREMENTS: Amount: $70,000.00 Source: (Acct No ) 001-200-5111-0000-0001 (A GCripfion) Materials R S Po ies Finance: Council Notes: J Agenda Item No. CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report Subiect Resolution authorizing the execution of agreements and issuance of annual purchase orders to Allstar Fire Equipment in the amount of$60,000 and Fisher Scientific Company L.L.C. in the amount of $10,000 for replacement of protective clothing and equipment for structural firefighting. Backparound On May 10, 2011, a Request for Quote (RFQ) #F-11-20 was issued to solicit formal bids for protective clothing and equipment for structural firefighting. Notices inviting bids from qualified vendors for protective clothing and equipment for structural firefighting were distributed to the San Bernardino Area Chamber of Commerce, posted on the City's Web Site, and advertised in The San Bernardino County Sun Newspaper. The RFQ #F-11-20 packages were mailed to eight (8)vendors which included four(4) local vendors within the City limits. On June 7, 2011, the City received and reviewed five (5)bid responses. Attached is the bid summary sheet listing all the categories and quotes (Attachment A). All vendors were requested to bid on each of the items listed in the bid specification #F-11-20 (Attachment A). Vendors were not required to bid on face shields (Item 91). Face shields were excluded from the bid because they were purchased as a sole source item through Allstar Fire Equipment. The face shields are specific for the type of structure helmet the Fire Department uses and Allstar Fire Equipment is the only vendor that can supply our structure helmets. The Fire Department is requesting that annual purchase orders be issued to Allstar Fire Equipment and Thermo Fisher Scientific Company L.L.C. based on the lowest unit cost for safety equipment. Allstar Fire Equipment has the lowest unit cost for most of the protective clothing for structural firefighting and meets our technical specifications. Therefore, it is recommended that an annual purchase order be awarded to Allstar Fire Equipment in the amount of $60,000 under RFQ #F-11-20. Fisher Scientific Company L.L.C. has the lowest unit cost for an optional truck turnout boot, gloves, and goggles. However, the wildland gloves are not designed to comfortably fit fire personnel and the quality is less than the Fire Guard Ranger gloves provided by Allstar Fire Equipment. Also, the goggles were not available to be tested to determine the quality and safety for personnel. The Fire Department is requesting to award the gloves and goggles to Allstar Fire Equipment. Therefore, it is recommended that an annual purchase order be awarded to Thermo Fisher Scientific in the amount of $10,000 under RFQ #F-11-20 for the optional truck turnout boot. i Mallory Company is a local vendor and had lower bids for brush jacket and brush pants which did not meet the specifications under RFQ #F-11-20. After reviewing the bids and discussing the brush sets with the vendor it was determined that the pricing would increase to meet our specifications. The Fire Department is requesting authorization to purchase the wildland brush gear as a set from Allstar Fire Equipment for $327.10. A lower cost could be recognized by purchasing the brush pants and brush jackets separately through different vendors; however, due to variations by manufacturers and technical specifications this is not preferred. L.N. Curtis & Sons had the lowest bid for turnout pants and coats, but the outer shell materials on the turnouts do not meet our specifications. The next lowest bid was tested by the Safety Committee and deemed non-compliant with our specifications. Therefore, the Fire Department is selecting Allstar Fire Equipment to provide the turnout pants and turnout coats. Pursuant to the City's bidding process, it is recommended that the City award an annual purchase order to Allstar Fire Equipment and Thermo Fisher Scientific Company L.L.C. Vendors recommended are qualified and meet or exceed all items called for in the specifications. The annual purchase orders, which are included as attachment B and C, are for one (1) year with the option, at the City's discretion to renew the contract annually for up to two(2) additional years. Financial Impact Funding for these annual purchase orders for protective clothing and equipment for structural firefighting is included in the Fire Department's FY 2011-12 adopted budget, account for materials and supplies(no. 001-200-5111-0000-0001). Account Number: 001-200-5111-0000-0001 Budgeted Amount: $131,100 Balance as of July 13, 2011: $109,600 Balance after approval of this item: $39,600 Please note this balance does not indicate available funding. It does not include non- encumbered reoccurring expenses or expenses incurred but not yet processed Recommendations Adopt resolution. RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AGREEMENTS AND ISSUANCE OF ANNUAL PURCHASE ORDERS TO ALL-STAR FIRE EQUIPMENT IN THE AMOUNT OF $60,000 AND FISHER SCIENTIFIC COMPANY IN THE AMOUNT OF $5,000 FOR REPLACEMENT OF PROTECTIVE CLOTHING AND EQUIPMENT FOR STRUCTURAL FIREFIGHTING. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That All-star Fire Equipment and Fisher Scientific Company are the best responsible bidders for the replacement of fire safety clothing, for a total amount not-to- exceed $60,000 and $10,000, respectively, in accordance with Bid Specification F-11-20, and, as such the Director of Finance or her designee is authorized to issue annual purchase orders to All-star Fire Equipment and Fisher Scientific Company. The annual purchase orders are for one year with the option of two one-year extensions. All other bids are hereby rejected; and SECTION 2. The City Manager is he--' lirected to execute on behalf of the City Purchase Agreements ind Fisher Scientific Company, a co py of which is attached here \ " " , respectively, and incorporated herein by reference as fully i Length; and SECTION 3. That All-star Fire Equip. _., and Fisher Scientific Company Annual Purchase Orders shall incorporate by reference this Resolution and Bid Specification F-11- 20; SECTION 4. The authorization to execute the above referenced Annual Purchase Orders are rescinded if they are not issued within thirty (30) days of the passage of this Resolution. 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AGREEMENTS AND ISSUANCE OF ANNUAL PURCHASE ORDERS TO ALL-STAR FIRE EQUIPMENT IN THE AMOUNT OF $60,000 AND FISHER SCIENTIFIC COMPANY IN THE AMOUNT OF $5,000 FOR REPLACEMENT OF PROTECTIVE CLOTHING AND EQUIPMENT FOR STRUCTURAL FIREFIGHTING. 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 , 2011, by the following vote,to wit: COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT MARQUEZ JENKINS BRINKER SHORETT KELLEY JOHNSON MCCAMMACK Rachel G. Clark, City Clerk City of San Bernardino The foregoing Resolution is hereby approved this day of 52011. Patrick J. Morris, Mayor City of San Bernardino Approved as to form: JAMES F. PENMAN, City Attorney By: 2 A.t.tachmeat H c CL IL 0 0 Cl) 0 0 >- U Q 2 r- (O T O N N r p tt) 04 CA Ln N 11 co pti p lY Z aj O Z � ti 00 N CC)m (O N r- V- r- O (fl N N N Z Lo Cn C7 of U Z O 0 D �_ 0 to 0 �_ �_ D �_ Ln OJ z J m coo 0o m m OR coo• coo, 00 m m m n Z U) DJ O o O O O o 0 0 0 0 O O M Cl) Q Q Z Z co Z Z — N N Z Z Z Z (O tD c Lu m > Q Q U O LO o O O 00 O0 00 O0 0 N r- Op0 OR Q O N 00 O O r r c- O N O Z N C7 (fn- W > cfl O O 0 L- �M J U N D � O LLJ ' r N N � = Q U) L W Q 2 U o_ ti U' c- O O ti R Q � � � � O O M � � � O � O O cn U) N p w N rn t U') Z Cd 0 00 °m O N M 00 N pco D Z N Z Cl N B (n ° W C/) F- 0 H o_ m Q U NCl) W CO to � CF) � O O N N [C d7 N N T Z w m o t N O co M 0 0 O O N M 1• O O N 0) r O N �t O O 07 O N Z M (=j O Z Z d' M N w N Z r r c0 U-) N N LL J O J 4cc-1 Z t t�4 C4 O F- U C c �- J , .6 N = Q cc Q O L D Z Q) � r a� Z a c F- j. .> Q) + O L L O �- U = V C/) Q)Q, m U o 0 0 W p C7 a� cc w a Ur Z > F- L U C Q� c N U M (n In N N .. L j (C W O V Cl) a m a) -a o 0 o L L ca c o -o U H U L H- W m m Q a O c z (1) - y a -o -a a) o c WO LL a L N c 0 w c c O c c c m C/) (L) (1) o o T u 1 o 0 o a. J D O o Z H C5 5 M o I Id, U') (fl C70 O Attachment"B' PURCHASE AGREEMENT CITY OF SAN BERNARDINO—ALLSTAR FIRE EQUIPMENT This Purchase Agreement is entered into this 1 st day of August, 2011,by and between Allstar Fire Equipment("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 the purchase of face shields, goggles, hoods, structure gloves, wildland gloves, turnout boots, leather turnout boots, wildland boots, wildland brush pants, wildland brush jackets,turnout coat and turnout pants; and, WHEREAS,the City of San Bernardino did solicit and accept quotes from available Vendors for the purchase of face shields, goggles, hoods, structure gloves, wildland gloves,turnout boots, leather turnout boots, wildland boots, wildland brush pants, wildland brush jackets, turnout coat and turnout pants; and, WHEREAS, Allstar Fire Equipment, submitted the lowest and best quote, which met requested specs for the purchase of face shields, goggles, hoods, structure gloves, wildland gloves, turnout boots, leather turnout boots, wildland boots, wildland brush pants, wildland brush jackets, turnout coat and turnout pants; NOW, THEREFORE, the parties hereto agree as follows: 1. SCOPE OF SERVICES. For the remuneration stipulated, San Bernardino hereby engages Vendor to provide face shields, goggles,hoods, structure gloves, wildland gloves,turnout boots, leather turnout boots, wildland boots, wildland brush pants,wildland brush jackets, turnout coat and turnout pants, per bid summary sheet RFQ #F-11-20, attached hereto and incorporated herein as Exhibit"A." 2. COMPENSATION AND EXPENSES. a. For the products and/or services delineated above, the City, upon presentation of an invoice, shall pay the Vendor up to the amount of$60,000 for face shields, goggles, hoods, structure gloves, wildland gloves, turnout boots, leather turnout boots, wildland boots, wildland brush pants, wildland brush jackets, turnout coat and turnout pants, as set forth on Exhibit "A.". b. No other expenditures made by Vendor shall be reimbursed by City. 3. TERM; TERMINATION. a. This purchase shall be completed within, FY 11/12, July 1, 2011 through June 30, 2012, plus two single year options. Actual option year pricing shall be negotiated with the successful bidder prior to exercising any given option year. The negotiated price upon the exercise of an option shall not exceed the price set forth herein. Option year shall become effective only upon issuance by the City of a duly authorized Purchase Order. CITY OF SAN BERNARDINO-ALLSTAR FIRE EQUIPMENT PURCHASE AGREEMENT i b. 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. 4. WARRANTY Vendor expressly warrants that all products and services supplied to City by Vendor under this Agreement shall conform to the specifications, drawings or other description,upon which this PURCHASE is based, shall be fit and sufficient for the purpose intended,merchantable, of good material and workmanship, free from defects and free and clear of all liens or encumbrances. Inspection, testing, acceptance or use of the goods by the City shall not affect Vendor's obligations under this warranty, and such warranty shall survive inspection, testing, acceptance and use. Vendor agrees to replace or correct promptly defects of any goods or services not conforming to the foregoing warranty without expense to the City, when notified of such non-conformity by City. If Vendor fails to correct the defects in or replace non-conforming goods or services promptly, City may, after reasonable notice to Vendor, make such corrections or effect cover, or cure, at Vendor's expense. "Reasonable notice" for purposes of this section shall not be deemed to require more than 60 calendars days notice before commencement of efforts by the City to effect cover or a cure except upon written agreement of the Parties. 5. INDEMNITY. Vendor agrees to and shall indemnify and hold the City, its elected officials, employees, agents or representatives, free and harmless from all claims, actions, damages and liabilities of any kind and nature arising from bodily injury, including death, or property damage, based or asserted upon any actual or alleged act or omission of Vendor, its employees, agents, or subcontractors, relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement, unless the bodily injury or property damage was actually caused 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. 6. 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 of$1,000,000.00 combined single limit, 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. 7. 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. 2 i 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. Vendor warrants that it possesses or shall obtain, and maintain a business registration certificate as required under 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: City of San Bernardino Fire Department 200 East Third Street San Bernardino, CA 92410 Attention: Fire Chief Telephone: (909) 384-5286 TO THE Vendor: Allstar Fire Equipment 12328 Lower Azusa Rd. Arcadia, CA 91006 Telephone: (800) 425-5787 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. Attorneys' fees for the City Attorney and members of his office shall be calculated based on the market rate for comparable services. 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 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. 13. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. 3 14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the parties to this Agreement and their respective heirs, representatives, successors, and assigns. 15. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions. 16. SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 17. REMEDIES; WAIVER. All remedies available to either party for one or more breaches by the other party are and shall be deemed cumulative and may be exercised separately or concurrently without waiver of any other remedies. The 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. IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated: , 2011 Dated , 2011 ALLSTAR FIRE EQUIPMENT CITY OF SAN BERNARDINO By: By: Charles McNeely, City Manager Its: Approved as to Form: James F. Penman, City Attorney By: 4 Attachment"C" PURCHASE AGREEMENT CITY OF SAN BERNARDINO —FISHER SCIENTIFIC COMPANY L.L.C. This Purchase Agreement is entered into this 1 st day of August, 2011, by and between Fisher Scientific Company L.L.C. ("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 the purchase of an optional leather turnout boot; Warrington Pro Models 4132 and 5006; and, WHEREAS,the City of San Bernardino did solicit and accept quotes from available Vendors for the purchase of an optional leather turnout boot; Warrington Pro Models 4132 and 5006 ; and, WHEREAS, Fisher Scientific Company L.L.C., submitted an optional leather turnout boot; Warrington Pro Models 4132 and 5006 which has a superior comfort, safety, control and durability designed specifically to mitigate firefighter fatigue and, the most common of all fireground injuries, sprains and strains. NOW, THEREFORE,the parties hereto agree as follows: 1. SCOPE OF SERVICES. For the remuneration stipulated, San Bernardino hereby engages Vendor to provide an optional leather turnout boot; Warrington Pro Models 4132 and 5006, per bid summary sheet RFQ #F-11-20, attached hereto and incorporated herein as Exhibit"A." 2. COMPENSATION AND EXPENSES. a. For the products and/or services delineated above,the City,upon presentation of an invoice, shall pay the Vendor up to the amount of$10,000 for optional leather turnout boots (Warrington Pro Models 4132 and 5006), as set forth on Exhibit"A." b. No other expenditures made by Vendor shall be reimbursed by City. 3. TERM; TERMINATION. a. This purchase shall be completed within, FY 11/12, July 1, 2011 through June 30, 2012, plus two single year options. Actual option year pricing shall be negotiated with the successful bidder prior to exercising any given option year. The negotiated price upon the exercise of an option shall not exceed the price set forth herein. Option year shall become effective only upon issuance by the City of a duly authorized Purchase Order. b. 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. CITY OF SAN BERNARDINO-FISHER SCIENTIFIC COMPANY PURCHASE AGREEMENT 4. WARRANTY Vendor expressly warrants that all products and services supplied to City by Vendor under this Agreement shall conform to the specifications, drawings or other description, upon which this PURCHASE is based, shall be fit and sufficient for the purpose intended, merchantable, of good material and workmanship, free from defects and free and clear of all liens or encumbrances. Inspection, testing, acceptance or use of the goods by the City shall not affect Vendor's obligations under this warranty, and such warranty shall survive inspection, testing, acceptance and use. Vendor agrees to replace or correct promptly defects of any goods or services not conforming to the foregoing warranty without expense to the City, when notified of such non-conformity by City. If Vendor fails to correct the defects in or replace non-conforming goods or services promptly, City may, after reasonable notice to Vendor,make such corrections or effect cover, or cure, at Vendor's expense. "Reasonable notice"for purposes of this section shall not be deemed to require more than 60 calendars days notice before commencement of efforts by the City to effect cover or a cure except upon written agreement of the Parties. 5. INDEMNITY. Vendor agrees to and shall indemnify and hold the City, its elected officials, employees, agents or representatives, free and harmless from all claims, actions, damages and liabilities of any kind and nature arising from bodily injury, including death, or property damage, based or asserted upon any actual or alleged act or omission of Vendor, its employees, agents, or subcontractors, relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement, unless the bodily injury or property damage was actually caused 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. 6. 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 of$1,000,000.00 combined single limit, 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. 7. 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. 2 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. Vendor warrants that it possesses or shall obtain, and maintain a business registration certificate as required under 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: City of San Bernardino Fire Department 200 East Third Street San Bernardino, CA 92410 Attention: Fire Chief Telephone: (909) 384-5286 TO THE Vendor: Fisher Scientific Company L.L.C. 300 Industrial Dr. Pittsburgh, PA 15275 Telephone: (724) 517-1500 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. Attorneys' fees for the City Attorney and members of his office shall be calculated based on the market rate for comparable services. 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 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. 13. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. 3 14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the parties to this Agreement and their respective heirs, representatives, successors, and assigns. 15. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions. 16. SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 17. REMEDIES; WAIVER. All remedies available to either party for one or more breaches by the other party are and shall be deemed cumulative and may be exercised separately or concurrently without waiver of any other remedies. The 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. IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated: , 2011 Dated , 2011 FISHER SCIENTIFIC COMPANY L.L.C. CITY OF SAN BERNARDINO By: By: Charles McNeely, City Manager Its: Approved as to Form: James F. Penman, City Attorney By: 4