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HomeMy WebLinkAbout2010-133 19 20 21 22 23 24 25 26 27 28 1 RESOLUTION NO. 2010-133 2 3 4 5 6 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE AMENDMENT TO THE PURCHASE AGREEMENT WITH DHS SYSTEMS LLC IN THE AMOUNT OF $63,384.83 FOR A DRASH MX5 RAPID DEPLOYMENT SHELTER AND ENVIRONMENTAL CONTROL UNIT. 7 WHEREAS, the Mayor and Common Council previously adopted Resolution 8 9 10 #2010-58, approving the execution of an agreement (the "original")and issuance of a purchase order to DHS Systems LLC in the amount of $63,384.83 for the a DRASH MX5 rapid deployment shelter and environmental control unit; and 11 12 WHEREAS, Purchase Order Number 303374 has been issued for the purchase of 13 14 15 16 the DRASH MX5 rapid deployment shelter and environmental control unit; and WHEREAS, the authority granted by Resolution No. 2010-58 was rescinded, as provided therein, on June 5, 2010, because the agreement approved therein had not been executed by that date; and 17 WHEREAS, it is the desire ofthe City of San Bernardino and DHDS Systems LLC 18 to enter into an agreement that contains amendments to the original. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That the City Manager of the City of San Bernardino is hereby authorized to execute on behalf of said City an Amendment to the Agreement between the City of San Bernardino and DHS Systems LLC, a copy of which is attached hereto, marked III /II 1 10 11 12 13 14 20 21 22 23 24 2010-133 1 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE AMENDMENT TO THE PURCHASE AGREEMENT WITH DHS SYSTEMS LLC IN THE AMOUNT OF $63,384.83 FOR A DRASH MX5 RAPID DEPLOYMENT SHELTER AND ENVIRONMENTAL CONTROL UNIT. 3 4 5 6 Exhibit "A" and incorporated herein by this reference as fully as though set forth at 7 length; and 8 9 SECTION 2. The authorization to execute the above reference Agreement is rescinded if not fully executed/issued within sixty (60) days of the passage of this resolution. III !II III 15 16 17 18 19 25 26 27 28 2 8 9 10 11 12 13 14 15 16 17 18 19 20 21 2010-133 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE AMENDMENT TO THE PURCHASE AGREEMENT WITH DHS SYSTEMS LLC IN THE AMOUNT OF $63,384.83 FOR A DRASH MX5 RAPID DEPLOYMENT SHELTER AND ENVIRONMENTAL CONTROL UNIT. 2 3 4 5 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a j oint regular meeting thereof, 7 held on the 7th day of June COUNCIL MEMBERS: AYES MARQUEZ X DESJARDINS X BRINKER X X SHORETT KELLEY X JOHNSON X MCCAMMACK X , 2010, by the following vote, to wit: NAYS ABSTAIN ABSENT 22 f2~~.~ RacherG. Clark, City Clerk City of San Bernardino The foregoing Resolution is hereby approved this qP' day of June ,2010. 23 24 ~MOrri~ City of San Bernardino 25 Approved as to form: JAMES F. PENMAN, City Attorney 26 27 By: ~ 6-~ ~ ~ ).Ie...... r".vl /;~ ) 11' 28 3 JUL 0 7 2010 D 2010-133 PURCHASE AGREEMENT S.B.M.W.D. 7th J 2010 PURCHASING (ljilB<mlrchase Agreement is entered into this day of une by and between DHS Systems LLC ("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 a DRASH MX5 rapid deployment shelter system and environmental control unit; and WHEREAS, the City of San Bernardino accepts the quote from available Vendor for the purchase of a DRASH MX5 rapid deployment shelter and environmental control unit. NOW, THEREFORE, the parties hereto agree as follows: 1. SCOPE OF SERVICES. For the remuneration stipulated, San Bernardino hereby engages Vendor to provide a DRASH MX5 rapid deployment shelter and environmental control unit per their MACOLA Quote No. 17682 attached hereto and incorporated herein. 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$58,283.00 for the DRASH MX5 rapid deployment shelter and environmental control unit. b. No other expenditures made by Vendor shall be reimbursed by City, other than applicable late charges owed to Vendor as a result of this Agreement or additional amounts arising from freight charges. 3. TERM; TERMINATION. This purchase shall be completed within ninety (90) days after receipt of accepted purchase order. 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 service; 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 I 2010-133 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 submit Certificates of Insurance 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 Certificates of Insurance furnished to the City shall require the insurers 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. 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. Vendor warrants that it possesses or shall obtain any other licenses, permits, qualifications, insurance and/or 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: 2 2010-133 TO THE City: Fire Department Attn: Don Feser, Emergency Services Manager 200 East 3rd Street San Bernardino, CA 92410 Telephone: (909) 384-5115 TO THE Vendor: DHS Systems LLC Headquarters Attn: Barbara Brodie 33 Kings Highway Orangeburg, NY 10962 Telephone: (845) 359-6066 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 ofthis 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 in the U.S. District Court for the District of New York. 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. 3 2010-133 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: ,2010 VENDOR By: t~Ah1 :4/1fP!t~ Its:_O H S Dated~, 2010 Approved as to Form: James F. Penman, City Attorney By: ~ {- ~ d.. -t h.w-. Y..-A ~ t1'f 4 2010-133 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 coneurrently 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: ~ 1)",,9:. 2010 VENDOR BY~~ ~ Its: V r--:. ;, Dated~20l0 By' Approved as to Form: James F. Penman, City Attorney ... ,~ < j , ~..L "IA By: ~ ~ ~ a.... (.. h+,..- {j..A <.~ __n nn------}1'-1 ~ 4 r .... . .,~ , .. i,.:,l;. c, ..n ~FJ y:""[,< ,;' ~,.