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HomeMy WebLinkAbout16B- Fire CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION From: Michael J. Conrad, Fire Chief Subject: Resolution amending the purchase agreement with DHS Systems LLC in the amount of$63,384.83 for a DRASH MX5 rapid deployment shelter and Dept: Fire environmental control unit. Date: June 3, 2010 Meeting Date: June 7, 2010 Synopsis of Previous Council Action: 08/18/08 Resolution#2008-328 ratifying the submittal of the budget detail worksheet for the FY 2008 Metropolitan Medical Response System Grant Program to the San Bernardino County Fire Department, Office of Emergency Services. 4/5/10 Resolution #2010-58 authorizing the execution of an agreement and issuance of a purchase order to DHS Systems LLC for a DRASH MX5 rapid deployment shelter and environmental control unit. RECOMMENDATION: Adopt resolution. Signature Contact Person: Don Feser, Emergency Services Manager Phone: (909) 384-5286 Supporting data attached: Staff Report, Resolution, and Agreement Ward: Citywide FUNDING REQUIREMENTS: Amount: Source: (Acct. No.) (Acct Descr.) Finance: Council Notes: a6S0 ZOLO , 133 Agenda Item No. ��� STAFF REPORT SUBJECT Resolution amending 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. BACKGROUND On April 5, 2010, the Mayor and Common Council approved resolution #2010-58 authorizing the execution of an agreement and issuance of a purchase order to DHS Systems LLC in the amount of$63,384.83 for a DRASH MX5 rapid deployment shelter and environmental control unit communication equipment. This is a sole source purchase from DHS Systems LLC for the DRASH MX5 rapid deployment shelter system, a proprietary product of DHS Technologies LLC. The basis for the sole source request was to enable the City to deploy the shelter in a stand-alone configuration, or to integrate the shelter with like units owned by the Inland Counties Emergency Medical Agency and local hospitals. The integration of shelters enables seamless medical surge capability and a mobile hospital configuration in the event of a mass casualty incident. 1n processing the purchase agreement to obtain the necessary signature, the vendor notified the Fire Department staff that they would not agree to the terms and conditions of the city's agreement. Therefore, Fire staff referred the issue to the City Attorney's Office for resolution. The vendor has requested new terms and conditions that require Mayor and Common Council approval. The changes to the previous contract consist of the following: • Section 2(b) requires the City to reimburse the Vendor for applicable late charges owed to the Vendor as a result of the Agreement or for additional amounts arising from freight charges. • Section 6 allows the Vendor to submit Certificates of Insurance to Risk Management in lieu of filing copies of its insurance policies. • Section 8 removes the requirement that the Vendor obtain a business registration certificate since they are a New York company with no offices in San Bernardino. • Section 12 was changed to reflect the Vendor's requirement that the venue for any litigation be in New York. FINANCIAL IMPACT There is no financial impact to the General Fund. Purchase order number 303374 has been issued to DHS Systems LLCS for the rapid deployment shelter and environmental control unit is not-to-exceed $63,384.83. The 2008 Metropolitan Medical Response System Grant funds, account #123-804-5704, has been encumbered for the procurement of the communication equipment. RECOMMENDATION Adopt resolution. t I RESOLUTION NO. COPY 3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE AMENDMENT TO THE PURCHASE 4 AGREEMENT WITH DHS SYSTEMS LLC IN THE AMOUNT OF $63,384.83 FOR 5 A DRASH MX5 RAPID DEPLOYMENT SHELTER AND ENVIRONMENTAL CONTROL UNIT. 6 7 WHEREAS, the Mayor and Common Council previously adopted Resolution 8 #2010-58, approving the execution of an agreement (the `original')and issuance of a 9 purchase order to DHS Systems LLC in the amount of$63,384.83 for the a DRASH MX5 10 rapid deployment shelter and environmental control unit; and WHEREAS, Purchase-Order Number 303374-has the purchase of .-12_ 13 the DRASH MX5 rapid deployment shelter and environmental control unit; and 14 WHEREAS, the authority granted by Resolution No. 2010-58 was rescinded, as 15 provided therein, on June 5, 2010, because the agreement approved therein had not been 16 executed by that date; and 17 WHEREAS, it is the desire of the City of San Bernardino and DHDS Systems LLC 18 19 to enter into an agreement that contains amendments to the original. 20 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 21 22 SECTION 1. That the City Manager of the City of San Bernardino is hereby 23 authorized to execute on behalf of said City an Amendment to the Agreement between the 24 25 City of San Bernardino and DHS Systems LLC, a copy of which is attached hereto, marked 26 27 28 1 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY 2 OF SAN BERNARDINO AUTHORIZING THE AMENDMENT TO THE PURCHASE AGREEMENT WITH DHS SYSTEMS LLC IN THE AMOUNT OF 3 $63,384.83 FOR A DRASH MX5 RAPID DEPLOYMENT SHELTER AND ENVIRONMENTAL CONTROL UNIT. 4 5 Exhibit "A" and incorporated herein by this reference as fully as though set forth at 6 7 length; and 8 SECTION 2. The authorization to execute the above reference Agreement is 9 rescinded if not fully executed/issued within sixty(60) days of the passage of this 10 resolution. 1 12 _ 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 M 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY 2 OF SAN BERNARDINO AUTHORIZING THE AMENDMENT TO THE PURCHASE AGREEMENT WITH DHS SYSTEMS LLC IN THE AMOUNT OF 3 $63,384.83 FOR A DRASH MX5 RAPID DEPLOYMENT SHELTER AND ENVIRONMENTAL CONTROL UNIT. 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 6 and Common Council of the City of San Bernardino at a meeting thereof, 7 8 held on the day of 2010,by the following vote, to wit: 9 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 10 MARQUEZ DESJARDINS - - 12 — BRINKER 13 14 SHORETT 15 KELLEY 16 JOHNSON 17 MCCAMMACK 18 19 20 Rachel G. Clark, City Clerk City of San Bernardino 21 The foregoing Resolution is hereby approved this day of ' 2010. 22 23 24 Patrick J. Morris,Mayor City of San Bernardino 25 Approved as to form: 26 JAMES F. PENMAN, City Attorney 27 By: o - CL -4— Ate'.. 28 4 �� 3 Exhibit "A" PURCHASE AGREEMENT This Purchase Agreement is entered into this day of 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: Forth -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 wan-ants 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 1 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 land 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 indemnity ,insi-t e::City, its elected-officials,-employees,_agents-:OTrelsresentatives, with -- respect to-third party-claims against the Vendor relating.to or in anyway-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 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 --- terms, — -- - 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 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 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 - -- enforcementis 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: Its: Dated , 2010 CITY OF SAN BERNARDINO By: Charles McNeely, City Manager Approved as to Form: James F. Penman, City Attorney By: 4 i PURCHASE AGREEMENT This Purchase Agreement is entered into this day of 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: I. SCOPE OF SERVICIES. -- won ding hereby-engages Vendor-to provide a DRASH-MXS-rapid-deplo onmentalzuntrol unit-pertheir-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 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 1 9 { i . 3 1 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 I representatives from any and all legal actions based upon such actual or alleged acts or any an a po n i - so exss ee - - indemnity-agamstrthe-City,-rts-eiected �s,tmpt ees, ens r represen atives,-wnttii _- respect to-third-party claims agal?rst-thy Veedor 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 famished 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 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 as ri or re dies a -- - -provisionKhwmf-The-cos s-ofthe-City Attorney-md-members of his- -offirce-m—enforcing this AgreementDwbehalfof 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 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 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 I - - --E - -- 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: Its: Dated 2010 CITY OF SAN BERNARDINO By: Charles McNeely, City Manager Approved as to Form: James F. Penman, City Attorney By: e n— _ 4 , X'4 PFf 4 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 3 SAN BERNARDINO AUTHORIZING THE AMENDMENT TO THE PURCHASE AGREEMENT WITH DHS SYSTEMS LLC IN THE AMOUNT OF $63,384.83 FOR 4 A DRASH MX5 RAPID DEPLOYMENT SHELTER AND ENVIRONMENTAL CONTROL UNIT. 5 6 WHEREAS, the Mayor and Common Council previously adopted Resolution 7 #2010-58, approving the execution of an agreement and issuance of a purchase order to 8 9 DHS Systems LLC in the amount of$63,384.83 for the a DRASH MX5 rapid deployment 10 shelter and environmental control unit; and 11 WHEREAS, Purchase Order Number 303374 has been issued for the purchase of 12 the DRASH MX5 rapid deployment shelter and environmental control unit. 13 14 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 15 16 SECTION 1. That the City Manager of the City of San Bernardino is hereby 17 authorized to execute on behalf of said City an Amendment to the Agreement between the 18 City of San Bernardino and DHS Systems LLC, a copy of which is attached hereto, marked 19 20 Exhibit "A" and incorporated herein by this reference as fully as though set forth at length; and 21 22 SECTION 2. The authorization to execute the above reference Agreement is 23 rescinded if not fully executed/issued within sixty (60) days of the passage of this 24 resolution. 25 //// L tfl� 2; 1 28 N I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE AMENDMENT TO THE PURCHASE 2 AGREEMENT WITH DHS SYSTEMS LLC IN THE AMOUNT OF $63,384.83 FOR 3 A DRASH MX5 RAPID DEPLOYMENT SHELTER AND ENVIRONMENTAL CONTROL UNIT. 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 5 6 and Common Council of the City of San Bernardino at a meeting thereof, 7 held on the day of 2010,by the following vote, to wit: g COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 9 10 MARQUEZ 11 DESJARDINS 12 BRINKER 13 SHORETT 14 KELLEY 15 JOHNSON 16 17 MCCAMMACK 18 Rachel G. Clark, City Clerk 19 City of San Bernardino 20 21 The foregoing Resolution is hereby approved this day of 12010. 22 23 Patrick J. Morris, Mayor 24 City of San Bernardino 25 Approved as to form: 26 JAMES F. PENMAN, City Attorney 27 By: 2 28 PURCHASE AGREEMENT This Purchase Agreement is entered into this day of 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 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 worlunanship, 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 1 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 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 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 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 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. SEVERABII.ITY. 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: Its: Dated 2010 CITY OF SAN BERNARDINO By: Charles McNeely, City Manager Approved as to Form: James F. Penman, City Attorney By: 4