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HomeMy WebLinkAbout09 - Police Station Locker Room Remodel — Approval of PA for Locker Room LockersQ SEW Pp�T CITY OF z NEWPORT BEACH c�<,FORN'P City Council Staff Report February 9, 2021 Agenda Item No. 9 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: David A. Webb, Public Works Director - 949-644-3311, dawebb@newportbeachca.gov PREPARED BY: Peter Tauscher, Senior Civil Engineer, PTauscher@newportbeachca.gov PHONE: 949-644-3316 TITLE: Police Station Locker Room Remodel — Approval of Purchase Agreement for Locker Room Lockers ABSTRACT: Staff is requesting approval to purchase locker room lockers for the Newport Beach Police Department through Sourcewell, a government purchasing cooperative alliance. Staff has determined that the most cost-effective method of construction of the Police Department Locker Room Remodel Project would be to utilize a cooperative purchasing program to separately purchase the lockers and provide them to the awarded contractor for installation. Authorization is being requested to approve a purchase agreement with Gatehouse MSI, LLC dba McMurray Stern, under Sourcewell Contract #010920 -SPC. RECOMMENDATION: a) Determine that this purchase is exempt from the California Environmental Quality Act ("CEQA") pursuant to Section 15302 (replacement of existing facilities involving negligible expansion of capacity) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment; b) Approve a Purchase Agreement with Gatehouse MSI, LLC dba McMurray Stern for the purchase of Spacesaver Corporation brand lockers at a not -to -exceed price of $344,546.13, and authorize the Mayor and City Clerk to execute the Agreement; and c) Approve Budget Amendment No. 21-029 appropriating $336,964.43 in increased expenditures in Account Nos. 1050063-911024; 1050061-911024; and 1050062- 911024 from Asset Forfeiture Fund unappropriated fund balance. FUNDING REQUIREMENTS: Upon approval of the proposed budget amendment (Attachment C), sufficient funding is available in the current budget for this purchase. The budget amendment appropriates $336,964.43 in increased expenditures in the Police Department, Asset Forfeiture, Equipment NOC accounts. The remaining funds are included in the adopted FY 2020-21 Capital Improvement Program budget, Facilities Maintenance Master Plan (FMMP). 9-1 Police Station Locker Room Remodel — Approval of Purchase Agreement for Locker Room Lockers February 9, 2021 Page 2 The following funds will be expensed: Account Description Fed/Treasury Dept. — Equip. NOC Fed/Dept. of Justice — Equip. NOC Fed/DOJ Enforcement — Equip NOC Facilities Maintenance (FMMP) DISCUSSION: Account Number Amount 1050063-911024 $ 133,770.76 1050061-911024 $ 158,900.51 1050062-911024 $ 44,293.16 57101-980000-19F02 $ 7,581.70 Total: $ 344, 546.13 Staff from Public Works and the Newport Beach Police Department held several meetings to discuss providing sufficient locker room storage for the modern equipment used by the Police Department's sworn officers. Several locker products were evaluated, and Spacesaver Corporation's (Spacesaver) lockers were identified as the best product for the project. Staff research found Spacesaver lockers to be a proven, durable, high performance product recommended by various local municipalities. Instead of the traditional design -bid -build project delivery approach, staff determined that the most cost-effective method of construction for the locker rooms would be to purchase the lockers separately through a government purchasing cooperative. Formerly known as the National Joint Powers Alliance, Sourcewell is a State of Minnesota local government agency and service cooperative that offers cooperative procurement solutions to participating agencies. Sourcewell establishes costs for purchases using competitive bid and offer processes from various vendors and product manufacturers. Participating agencies are then able to purchase products or services directly from awarded vendors (and its dealers and distributors) without undertaking a separate bid process. The large pool of public agencies participating in Sourcewell creates a larger economy of scale, allowing manufacturers, contractors or vendors to sell in greater volume and pass the savings onto participating agencies via reduced pricing. As a participating agency, the City of Newport Beach (City) has previously used Sourcewell and other national cooperative alliances to purchase products and goods at lower costs. Spacesaver was awarded Contract #010920 -SPC following a Sourcewell Request for Proposals (RFP) issued in November 2019. Staff recommends utilizing the Sourcewell Contract to separately purchase the required lockers and to provide the units to the contractor for installation in the remodeled locker room. The award of contract for contractor services is also on the February 9, 2021 City Council agenda. Staff requests authorization to enter into a Purchase Agreement (Attachment B) with an authorized Spacesaver distributer, Gatehouse MSI, LLC, dba McMurray Stern, for a not -to -exceed cost of $344,546.13 including taxes, freight and, and warranty. Approval of this agreement would ensure that the City receives a quality product at a pre -negotiated price without any additional contractor mark-up. 9-2 Police Station Locker Room Remodel — Approval of Purchase Agreement for Locker Room Lockers February 9, 2021 Page 3 ENVIRONMENTAL REVIEW: Staff recommends the City Council find this purchase exempt from the California Environmental Quality Act ("CEQA") pursuant to Section 15302 (replacement of existing facilities involving negligible expansion of capacity) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Attachment A — Location Map Attachment B — Purchase Agreement with Gatehouse MSI, LLC, dba McMurray Stern Attachment C — Budget Amendment No. 21-029 9-3 ATTACHMENT A NEWPORT BEACH POLICE DEPARTMENT LOCKER ROOM REMODEL • _ •► 1 A_9 NOT TO SCALE CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT C-7872-1 1/26/2021 ATTACHMENT B PURCHASE AGREEMENT WITH GATEHOUSE MSI, LLC DBA MCMURRAY STERN FOR SPACESAVER FREESTYLE LOCKERS THIS PURCHASE AGREEMENT ("Agreement") is made and entered into as of this 9th day of February, 2021 ("Effective Date") by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and GATEHOUSE MSI, LLC, a Delaware limited liability company, doing business as ("DBA") MCMURRAY STERN, ("Vendor"), whose principal place of business is 70 S. Lake Avenue, Suite 750, Pasadena, CA 91101, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Vendor to provide Spacesaver Freestyle Lockers as detailed in the Scope of Work and Schedule of Billing Rates attached hereto as Exhibit "A" ("Products" or "Project"). C. Vendor has examined the location of all proposed work, carefully reviewed and evaluated the specifications set forth by the City for the Project, is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price specified in this Agreement. D. Vendor is a supplier of Spacesaver and is awarded this Agreement via Sourcewell Contract #010920 -SPC. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. SCOPE OF WORK 1.1 Vendor shall provide all tangible items described in the Scope of Work attached hereto as Exhibit "A" and incorporated herein by reference. As a material inducement to the City entering into this Agreement, Vendor represents and warrants that Vendor is a provider of first class work and services and Vendor is experienced in performing the work and services contemplated herein and, in light of such status and experience, Vendor covenants that it will perform all work in a manner commensurate with community professional standards and with the ordinary degree of skill and care that would be used under reasonably competent practitioners of the same discipline under similar circumstances and that all materials will be of good quality. 1.2 Vendor shall fulfill all requirements of performance, and shall provide and furnish all the labor, materials, necessary tools, expendable equipment and all utility and transportation services necessary for the Project. Gatehouse MSI, LLC DBA McMurray Stern Page 1 9-5 1.3 In consideration of the payment of the purchase price and subject to all the terms and conditions hereof, Vendor shall: provide Spacesaver Freestyle Lockers, previously defined as "Products" or "Project", as listed and set forth in the Scope of Work attached hereto as Exhibit "A" and incorporated in full by this reference. 2. TIME OF PERFORMANCE 2.1 Time is of the essence in the performance of services under this Agreement. City reserves the right to refuse the Products, or part thereof, and to cancel all or any part of the Products not conforming to applicable specifications, samples or descriptions. City shall receive a pro -rata refund for the Products, or part thereof, cancelled under this Agreement, within thirty (30) calendar days of City's cancellation. Acceptance of any part of the order for Products shall not bind City to accept future shipments nor deprive City of the right to return Products already accepted at Vendor's expense. Over shipments and under shipments of Products shall be only as agreed to in writing by City. Delivery shall not be deemed to be complete until all Products have actually been received and accepted in writing by the City, as stated in Section 4. The failure by Vendor to meet this schedule may result in termination of this Agreement by City as outlined in Section 17 below. 2.2 Force Majeure. The time period(s) for delivery of Products pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Vendor, including but not restricted to acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, and/or acts of any governmental agency, including the City, if Vendor shall within ten (10) days of the commencement of such delay notify City in writing of the cause of the delay. City shall ascertain the facts and extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the City such delay is justified. City's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Vendor be entitled to recover damages against City for any delay in performance of this Agreement, however caused, Vendor's sole remedy being extension of the Agreement pursuant to this Section. 3. ACCEPTANCE/ PAYMENT Unless otherwise agreed to in writing by City, acceptance of the Products shall not be deemed complete unless in writing and until all of the Products, including each part thereof, has actually been received, inspected and tested to the satisfaction of City. C!111]=1Ikyj=1el 4.1 Delivery to City of the Products shall be made within two -hundred twenty-five days (225) calendar days from the execution of the Agreement. 4.2 Delivery shall be made to the Newport Beach Police Department at 870 Santa Barbara, Newport Beach, CA 92660, or such other location as may be designated by City in writing. Time of delivery is of the essence in this Agreement. City reserves the right to refuse the Equipment, or part thereof, and to cancel all or any part of the Equipment not conforming to applicable specifications, samples or descriptions. City shall receive a pro - Gatehouse MSI, LLC DBA McMurray Stern Page 2 am rata refund for the Equipment, or part thereof, cancelled under this Agreement, within thirty (30) calendar days of City's cancellation. Acceptance of any part of the order for Equipment shall not bind City to accept future shipments nor deprive City of the right to return Equipment already accepted at Vendor's expense. Over shipments and under shipments of Equipment shall be only as agreed to in writing by City. Delivery shall not be deemed to be complete until all Equipment have actually been received and accepted in writing by the City. 4.3 Vendor shall submit all requests for extensions of time for delivery in writing to the City Purchase Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Purchase Administrator shall review all such requests and may, at his/her sole discretion, grant reasonable time extensions for unforeseeable delays that are beyond Vendor's control. 4.4 The Parties agree that it is extremely difficult and impractical to determine and fix the actual damages that City will sustain should the Vendor fail to complete the delivery as called for in this Agreement. Should Vendor fail to complete the delivery as called for in this Agreement, Vendor agrees to the deduction of liquidated damages in the sum of One Hundred Dollars and 00/100 ($100.00) per day, for every day beyond the date scheduled for delivery provided in Section 4.1. Execution of this Agreement shall constitute agreement by the City and Vendor that the sum of One Hundred Dollars and 00/100 ($100.00) per day, is the minimum value of costs and actual damages caused by the failure of Vendor to deliver the Equipment within the allotted time. All liquidated damages shall be paid within ten (10) calendar days of City's written request for payment. Such sum is liquidated damages and shall not be construed as a penalty, and may be deducted from payments due the Vendor, or recovered from Vendor, as applicable, if such delay occurs. 5. TERM Unless earlier terminated in accordance with Section 17 of this Agreement, this Agreement shall continue in full force and effect until completion of the services agreed to herein or until June 30, 2022, whichever occurs first. 6. COMPENSATION City shall pay Vendor for the Products in accordance with the provisions of this Section and Exhibit "A" and incorporated herein by reference. The purchase price for the Products shall not exceed Three Hundred Forty Four Thousand Five Hundred Forty Six Dollars and 13/100 ($344,546.13) ("Purchase Price"). City shall pay Vendor one-half (1/2) of the Purchase Price within (30) days of execution of the Agreement in the amount not -to - exceed One Hundred Seventy Two Thousand Two Hundred Seventy Three Dollars and 07/100 ($172,273.07). City shall pay one-half (1/2) of the Purchase Price within (30) days of receipt of Equipment in the amount to exceed One Hundred Seventy Two Thousand Two Hundred Seventy Three Dollars and 06/100 ($172,273.06). Vendor shall provide City with a minimum fourteen (14) days' notice of its dates of delivery to enable the City to prepare the delivery sites for the Products in accordance with the instructions of Vendor. The City shall complete site preparation prior to the date of delivery of the Products, and the site shall thereafter be available for inspection and approval. All costs and expenses related to the site preparation shall be at the sole expense of City. Gatehouse MSI, LLC DBA McMurray Stern Page 3 9-7 7. PROJECT MANAGER Vendor shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the term of the Agreement. Vendor has designated Laura Borda to be its Project Manager. Vendor shall not remove or reassign the Project Manager without the prior written consent of City. City's approval shall not be unreasonably withheld. 8. ADMINISTRATION This Agreement will be administered by the Public Works Department. City's Public Works Director or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. 9. TYPE OF MATERIALS/STANDARD OF CARE 9.1 Vendor shall use only the materials described in Exhibit "A" in providing Products under this Agreement. Any deviation from the materials described in Exhibit "A" shall not be delivered unless approved in advance by the City Project Administrator. 10. RESPONSIBILITY FOR DAMAGES OR INJURY 10.1 To the fullest extent permitted bylaw, Vendor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any work performed or services or equipment provided under this Agreement including, without limitation, defects in workmanship or materials (including the negligent and/or willful acts, errors and/or omissions of Vendor, its principals, officers, agents, employees, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). 10.2 Notwithstanding any other provision of this Agreement to the contrary Vendor shall not be required to indemnify the Indemnified Parties from any and all Claims (a) arising from the sole or partial negligence (including, without limitation, active and pass negligence) or willful misconduct of the Indemnified Parties or their boards and commissions, officers, agents, volunteers, representatives, contractors, and employees, as well as any third parties, or (b) that are filed in court or any other administrative agency or asserted (in writing) against Indemnified Parties more than one (1) calendar year after the project and/or services contemplated by this Agreement are completed. The "active and passive negligence or willful misconduct" in the preceding sentence shall mean, without limitation or affecting the statutory and common law legal definition, Indemnified Parties failing to promptly follow written recommendations of Vendor arising out of or relating to the Products provided. Gatehouse MSI, LLC DBA McMurray Stern Page 4 Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Vendor; provided however, that Vendor shall be reimbursed for any indemnification provided to Indemnified Parties from insurance policy benefits paid to Indemnified Parties arising out of or relating to the Claim. 11. COOPERATION Vendor agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Vendor on the Project. 12. INSURANCE Without limiting Vendor's indemnification of City, and prior to commencement of work, Vendor shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit B, and incorporated herein by reference. 13. SUBCONTRACTING No subcontractors are currently authorized by City to perform work on this Project. Except as specifically authorized herein, the services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 14. WITHHOLDINGS City may withhold payment to Vendor of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Vendor shall not discontinue work as a result of such withholding. Vendor shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Vendor shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 15. CONFLICTS OF INTEREST 15.1 The Vendor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et seq., which (1) require such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibit such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. Gatehouse MSI, LLC DBA McMurray Stern Page 5 15.2 If subject to the Act and/or Government Code §§ 1090 et seq., Vendor shall conform to all requirements therein. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Vendor shall indemnify and hold harmless City for any and all claims for damages resulting from Vendor's violation of this Section. 16. NOTICES 16.1 All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Vendor and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Vendor to City shall be addressed to City at: Attention: Public Works Director Public Work Department City of Newport Beach 100 Civic Center Drive P.O. Box 1768 Newport Beach, CA 92658 16.2 All notices, demands, requests or approvals from City to Vendor shall be addressed to Vendor at: Attention: Laura Borda Gatehouse MSI, LLC dba McMurray Stern 15511 Carmenita Road Santa Fe Springs, CA 90670 17. TERMINATION 17.1 Termination With Cause - In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of five (5) calendar days, or if more than five (5) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within five (5) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 17.2 Termination Without Cause. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Vendor. In the event of termination under this Section, City shall pay Vendor for all Products delivered to City site under this Agreement that City deems usable in its sole discretion. Gatehouse MSI, LLC DBA McMurray Stern Page 6 9-10 18. WARRANTY 18.1 Vendor warrants to City that all Products to be delivered hereunder will be free from defects in material or workmanship and will be of the kind and quality designated or specified by Vendor in Exhibit "A". The warranty shall apply only to defects appearing within two years from the date of final acceptance by City for hardware products not manufactured by the Vendor, and two years from the date of final acceptance by City for hardware products manufactured by Vendor. If Vendor installs the Products and associated hardware and materials, or supplies technical directions of installation by Agreement, the warranty period shall run from the date of final acceptance of installation by City, provided same is not unreasonably delayed by City. 18.2 If Vendor -manufactured equipment delivered hereunder does not meet the above warranty, and if City promptly notifies Vendor in writing, Vendor shall thereupon correct any defect, including non-conformance with the specifications, either (at its option) by repairing any defective or damaged parts of the equipment, or by making available any necessary replacement parts, delivered and installed without additional charge to City within seven (7) working days. City will return the defective product to Vendor, at Vendor's expense. Vendor shall repair or replace the defective item and return it to City, shipping costs prepaid. Vendor shall perform any necessary testing, hardware and equipment removal, repair, replacement, certification, and installation at no cost to the City during the warranty period, using Vendor's equipment. 18.3 The foregoing warranty is exclusive and in lieu of all other warranties, whether written, oral, implied or statutory. Vendor does not warrant any equipment of other manufacture designated by City. 19. REPRESENTATIONS 19.1 Non-infrin . eq ment. Vendor represents that to the best of its knowledge the technology embodied in the products sold herein does not infringe upon a United States patent or United States copyright in effect as of the Effective Date. 19.2 Authori . Each party represents as follows: (a) that it has full power and authority to execute, deliver and perform its obligations under this Agreement; (b) that there are no actions, proceedings or investigations, pending or, to the best of each party's knowledge, threatened against such party which may in any manner whatsoever materially affect the enforceability of this Agreement or the rights, duties and obligations of the parties hereunder; and (c) that the execution, delivery and performance of this Agreement will not constitute a breach or default under any agreement, law or court order under which such party is a party or may be bound or affected by or which may affect the rights, duties and obligations hereunder. 19.3 No Other Representations. Each party acknowledges and agrees that it is relying on no representation of the other party except as expressly set forth herein. Gatehouse MSI, LLC DBA McMurray Stern Page 7 9-11 20. CONFIDENTIAL INFORMATION. Vendor agrees to maintain the confidentiality of all City and City -related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Vendor and Vendor's staff, agents, employees and subcontractors. 21. ASSIGNMENT This Agreement shall not be assigned by any party, or any party substituted, without prior written consent of the City and the Vendor. 22. STANDARD PROVISIONS 22.1 Recitals. City and Vendor acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 22.2 Compliance with all Laws. Vendor shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Vendor shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 22.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 22.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 22.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 22.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 22.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Vendor and City and approved as to form by the City Attorney. Gatehouse MSI, LLC DBA McMurray Stern Page 8 9-12 22.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 22.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 22.10 Equal Opportunity Employment. Vendor represents that it is an equal opportunity employer and it shall not discriminate against any subVendor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. 22.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 22.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Gatehouse MSI, LLC DBA McMurray Stern Page 9 9-13 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY AT ORNEY'S OFFICE Date: 2 G 2. By- ct�' C - A ron C. Harp City Attorney ATTEST: Date: 11 Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Brad Avery Mayor VENDOR: GATEHOUSE MSI, LLC, a Delaware limited liability company, doing business as ("DBA") MCMURRAY STERN Date: By.. Kenny DeAngelis Manager Date: By: Scott Stevens Manager [END OF SIGNATURES] Attachments: Exhibit A — Scope of Work and Schedule of Billing Rates Exhibit B — Insurance Requirements Exhibit C -- Faithful Performance Bond Gatehouse MSI, LLC DBA McMurray Stern Page 10 9-14 EXHIBIT A SCOPE OF WORK AND SCHEDULE OF BILLING RATES Gatehouse MSI, LLC DBA McMurray Stern Page A-1 9.15 EXHIBIT B INSURANCE REQUIREMENTS 1. Provision of Insurance. Without limiting Vendor's indemnification of City, and prior to commencement of Work, Vendor shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Vendor agrees to provide insurance in accordance with requirements set forth here. If Vendor uses existing coverage to comply and that coverage does not meet these requirements, Vendor agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Vendor shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Vendor shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. B. General Liability Insurance. Vendor shall maintain commercial general liability insurance and, if necessary, umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, products -completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. C. Automobile Liability Insurance. Vendor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Vendor arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. Gatehouse MSI, LLC DBA McMurray Stern Page B-1 9.16 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Vendor or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Vendor hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Vendor shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Vendor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance Gatehouse MSI, LLC DBA McMurray Stern Page B-2 9.17 required by giving Vendor sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Vendor, City and Vendor may renegotiate Vendor's compensation. C. Right to Review Subcontracts. Vendor agrees that upon request, all agreements with subVendors or others with whom Vendor enters into contracts with on behalf of City will be submitted to City for review. Failure of City to request copies of such agreements will not impose any liability on City, or its employees. D. Enforcement of Agreement Provisions. Vendor acknowledges and agrees that any actual or alleged failure on the part of City to inform Vendor of non- compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. E. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. F. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these requirements unless approved by City. G. City Remedies for Non -Compliance If Vendor or any subVendor fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Vendor's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Vendor or reimbursed by Vendor upon demand. H. Timely Notice of Claims. Vendor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Vendor's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. Vendor's Insurance. Vendor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. Gatehouse MSI, LLC DBA McMurray Stern Page B-3 9.18 EXHIBIT C CITY OF NEWPORT BEACH BOND NO. FAITHFUL PERFORMANCE BOND The premium charges on this Bond is $ rate of $ , being at the thousand of the Agreement price. WHEREAS, the City of Newport Beach, State of California, has awarded to GATEHOUSE MSI, LLC, a Delaware limited liability company, doing business as ("DBA") MCMURRAY STERN, hereinafter designated as the "Principal," an Agreement to provide Spacesaver Freestyle Lockers, in the City of Newport Beach, in strict conformity with the Agreement on file with the office of the City Clerk of the City of Newport Beach, which is incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute the Agreement and the terms thereof require the furnishing of a Bond for the faithful performance of the Agreement. NOW, THEREFORE, we, the Principal, and , duly authorized to transact business under the laws of the State of California as Surety (hereinafter "Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of Three Hundred Forty Four Thousand Five Hundred Forty Six Dollars and 131100 ($344,546.13), lawful money of the United States of America, said sum being equal to 100% of the estimated amount of the Agreement, to be paid to the City of Newport Beach, its successors, and assigns, for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and well and truly keep and perform any or all the Work, covenants, conditions, and agreements in the Agreement Documents and any alteration thereof made as therein provided on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to its true intent and meaning, or fails to indemnify, defend, and save harmless the City of Newport Beach, its officers, employees and agents, as therein stipulated, then, Surety will faithfully perform the same, in an amount not exceeding the sum specified in this Bond; otherwise this obligation shall become null and void. As a part of the obligation secured hereby, and in addition to the face amount specified in this Performance Bond, there shall be included costs and reasonable expenses and fees, including reasonable attorneys fees, incurred by City, only in the event City is required to bring an action in law or equity against Surety to enforce the obligations of this Bond. Surety, for value received, stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Agreement or to the Work to be performed thereunder shall in any way affect its obligations on this Bond, and it does hereby waive Gatehouse MSI, LLC DBA McMurray Stern Page D-1 MLO notice of any such change, extension of time, alterations or additions of the Agreement or to the Work or to the specifications. This Faithful Performance Bond shall be extended and maintained by the Principal in full force and effect for one (1) year following the date of formal acceptance of the Project by City. In the event that the Principal executed this bond as an individual, it is agreed that the death of any such Principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on the day of , 20 Name of Vendor (Principal) Name of Surety Authorized Signature/Title Authorized Agent Signature Address of Surety Print Name and Title Telephone NOTARY ACKNOWLEDGMENTS OF VENDOR AND SURETY MUST BE ATTACHED Gatehouse MSI, LLC DBA McMurray Stern Page D-2 9-20 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of }ss. On 20 before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of }ss. On 20 before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) Gatehouse MSI, LLC DBA McMurray Stern Page 9-21 SEW PART o`` is C,O FOO"' Department: Police Requestor: Jonathan Stafford City of Newport Beach ATTACHMENT C BUDGET AMENDMENT 2020-21 BA#: 21-029 ONE TIME: ❑Q Yes ❑ No Approvals Prepared by: Shannon Es inoza ❑ CITY MANAGER'S APPROVAL ONLY Finance Director: Date ' COUNCIL APPROVAL REQUIRED City Clerk: Date EXPLANATION FOR REQUEST: To increase expenditure appropriations out of existing Asset Forfeiture fund balance for the purchase of locker room ❑ from existing budget appropriations lockers for the Police Station Locker Room Remodel project. ❑ from additional estimated revenues ❑✓ from unappropriated fund balance REVENUES Fund # Orq Object Pro ect _ _ _ Description —_ _ Increase or (DecreaseL, ------------------- - - - ----- ---- -- -- -- — -- — —------------------ --- Subtotal j EXPENDITURES Fund # 1051050063 105 Ori_ Object 1911024 1050061 1911024 Description —__ Increase orDecreaseZ$ - FedTreasunyDept _Equipment N.O.C. _ _$133,770.76 Federal Deet Of Justice - Equipment N.O C $158,900.51 105 1050062 911024 Fed/Dol Enforcemnt_ E uq ipment N.O_C_ _— . $44,293.16 - I -------'---------- -- --.l -- -- -- ---' ------------ ...... ........ .------_._..— ..... — ... .... Subtotal $336,964.43 FUND BALANCE Fund It Object Increase or (Decrease) $ 1105 1300000 Asset Forfeiture Fund Balance -+Description -- - - - - - S'336.'W)4 43 f . _ .... i. .........i -- 1... ..... ...... .__ .. T. ._ ...-_._.__.... ....__ ..... + Subtotal 1. Fund Balance Change Required 9-22