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HomeMy WebLinkAboutE-12 Staff Report - Evidence LockersCONSENT ITEM E-12 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL VIA: SERGIO GONZALEZ, CITY MANAGER FROM: MIKE BERTELSEN, CHIEF OF POLICE DATE: JANUARY 18, 2022 SUBJECT: APPROVE PURCHASE AND INSTALLATION OF NEW TEMPORARY EVIDENCE LOCKERS BACKGROUND: As part of the 2021/2022 fiscal year budget, the City Council approved funding for the purchase and installation of new temporary evidence lockers to replace the existing temporary evidence lockers and storage devices currently in use by the Police Department. These temporary lockers are utilized by Police personnel to store items of evidentiary value or items that are being retained as safekeeping for citizens to claim at a future date and time. They allow Police personnel to securely and safely store items temporarily until the items can be removed for long-term storage and/or transportation to a criminal laboratory for investigative analysis as it relates to crimes that have occurred. These lockers and storage devices have been in use since 1998 and have not been updated, changed, or altered in over 20 years. The proposed action replaces these items with new temporary lockers and storage devices that are up to date with today’s needs and best practices in regards to securely storing evidence and property. RECOMMENDATION: Staff recommends the City Council take the following actions: 1)Approve the quotation for products and services of $98,086.28 with McMurray Stern for the delivery and installation of Spacesaver pass through evidence lockers, two Mystaire SecureDry forensic evidence drying cabinets, and a stainless steel countertop for packaging and documenting evidence prior to temporary storage in the pass through lockers. APPROVED CITY COUNCIL 1/18/2022 Temporary Evidence Lockers January 18, 2022 Page 3 ANALYSIS: The temporary storage evidence lockers play a vital role in securely storing evidence and property retained by the Police Department. The current lockers are over 20 years old and have begun to deteriorate in appearance and function. As a result, this could possibly affect the prosecution of criminal cases because of cross-contamination or some other reason such as locking mechanisms becoming faulty. There is currently one drying cabinet that is used for storing biohazard evidentiary items as well as large property. The current cabinet material is not ideal for regular sanitation and has thus eroded over time. Additionally, two small stand-alone refrigerator units with small lock boxes are currently being used as temporary storage lockers for evidence related to sexual assault cases. Given the small size of the lock boxes, it is not ideal to store any evidence in these stand-alone units given the possibility that items may be improperly accessed at any given time prior to long term storage or analysis by a criminal laboratory. With these issues in mind, new temporary storage lockers would bring the Police Department up to date with current best-practice procedures and equipment. Several attempts were made to contact vendors that supply and install pass through locker combinations that are used for temporary evidence storage. The only two companies to respond back were Spacesaver Corporation and McMurray Stern. Through contact with both of these companies, it was learned that Spacesaver manufactures pass through lockers but does not handle the installation. McMurray Stern handles installation of these pass through lockers and is a sole source provider of Spacesaver locker configurations in the Los Angeles County Area. Through several meetings with McMurray Stern, a new configuration of lockers was drafted to include a configuration of lockers similar to the current lockers but with upgraded security features and enhanced design. The new lockers have state-of-the-art locking mechanisms that are an upgrade over the current lockers, which use latches and hooks. A built in refrigeration unit for evidence items requiring refrigerated temporary storage would be added to the rest of the temporary lockers, adding a new level of security to evidentiary items that does not currently exist. This eliminates the need for the two small stand-alone refrigerator units currently being used. A power source option has also been included in the new locker configuration to allow Police personnel to preserve forensic electronic and digital evidence from electronic devices. Finally, two large drying cabinets will be added to allow Police personnel to properly handle, dry and preserve biological evidence in a matter that corresponds with best practices. These units are manufactured in a way that also allows Police personnel to properly clean and maintain units without damage to the units themselves or future evidentiary items. FISCAL IMPACT: New storage lockers to replace existing, older storage lockers was included in the FY 2021/22 adopted Police Department budget in the amount of $121,275.00. The quotation for products and services provided by McMurray Stern in the amount of $98,086.28 falls within this budgeted amount. Temporary Evidence Lockers January 18, 2022 Page 3 Prepared by: Reviewed and Approved: Mike Bertelsen Sergio Gonzalez Chief of Police City Manager Attachment: 1) Quotation for Products and Services McMurray Stern #28712 2) Preliminary Plan View McMurray Stern #28712 3) Sole Source Letter from Spacesaver Corporation McMurray Stern Confidential – Randy Hacker Page 1 11/11/2021 QUOTATION FOR PRODUCTS AND SERVICES Presented by: Randy Hacker Quote #: 28712 Date: November 11, 2021 15511 Carmenita Road - Santa Fe Springs, CA 90670 C: 805.404.3302 | O: 805.532.0189 | F: 562.623.3039 e: rhacker@mcstern.com | www.mcmurraystern.com Attention: Installation Address: Tami Patlogar Steven Rodriguez Azusa PD 725 N. Alameda Ave Azusa, CA 91702 Description McMurray Stern is pleased to present this quote for the implementation of the Azusa Police Department evidence project Delivery and installation of the following Spacesaver pass through evidence lockers: Each locker module is 24”/36” wide x 24” deep x 82” high • ED3-P-86 with 2 doors at 14.594” wide x 18.594” high, 1 door at 14.594” wide x 37.313 ” high and 1 door 32.594” wide x 37.188” high • ED3-P42 with 3 door refrigerator and 3 doors at 14.594” wide x 37.313 high. Refrigerator doors will be 2 @ 3 3/8” H, 15 ½” D, 7” W and 1 door at 7-7/8” high x 15-1/2” high x 7” wide. • ED3-P12 with 2 doors at 8.894” wide x 18.594” high and 2 doors 8.594” wide x 56.031” high • ED3-P12 with 2 doors at 8.894” wide x 18.594” high and 2 doors 8.594” wide x 56.031” high • ED3-P13 with 2 doors at 8.594” wide x 37.313” high and 4 doors at 8.594” wide x 18.594” high Delivery and set in place of (2) 32” wide Mystaire SecureDry Forensic Evidence Drying Cabinets Delivery and installation of (1) stainless steel countertop 65” wide x 37” deep with 4” integrated backsplash on left and rear sides. 1-7-8” marine edge with ½” return on front and right sides. Integrated single bowl sink (16” long x 17” wide x 9” deep) placed 6” from left and 4” from front. Includes 4 faucet holes. *Installation includes all trim pieces for the evidence lockers. Removal and disposal of existing laminate lockers included. Total: $89,576.51 + $8,509.77 tax Grand Total: $98,086.28 Inclusions/Terms • Freight: Included. • Installation: Included. • Sales tax: Plus tax • Payment Terms: 40% deposit/progress payment; balance due upon completion. McMurray Stern Confidential – Randy Hacker Page 2 11/11/2021 • Remit Payment to: McMurray Stern, Inc., 15511 Carmenita Road, Santa Fe Springs, CA 90670. • Standard color: To be selected. • Quote is valid for: 30 days. • Lead time: 16 to 20 weeks ARO. Exclusions • Wall backing. • Stair carry. • Modification to existing equipment or to the building. • Structural/anchorage engineering Calculations. • Permit costs. • Floor covering. Accepted and approved. By signature, the Customer certifies that the terms and conditions set forth are corr ect and reflect the mutual agreement between McMurray Stern and the Customer. McMurray Stern is hereby duly authorized to provide product and/or services as outlined above. Selected Option: ______________________________________________ Customer Signature:___________________________________________ Amount:_________________________ Name/Title - Printed:___________________________________________ Date: _________________________ STANDARD FEATURES: • Unattended evidence drop-off (no keys required). • 82” height is the largest in the industry for extra capacity. • Modular construction, units shipped fully assembled. • Self-closing doors, rubber doorstops and recessed nickel-plated pull handle. • 14 and 18 gauge cold rolled steel construction. • Pre-drilled mounting holes in base and sides of locker. • Instruction and number tags installed at the factory. • Adjustable floor levelers. • Finished with high quality powder coat paint. • Attached sturdy base with toe space. • Installation hardware is included. • All doors include inside steel liner. • Fully welded double door construction. • Multi point locking systems on all doors. • Stainless steel, full door length hinges. • Concealed fasteners throughout. • Lifetime warranty on the frame, 5-year limited warranty on moving parts. • Standard DSM push button locks on front doors, keyed different with master key for evidence retrieval. E 1 E 3E 5 E 2 E 4 20 26 12 15 20 26 12 15 19 25 16 11 10 29 19 25 16 11 10 29 14 18 09 08 28 24 14 18 09 08 28 2407 27 1713 23 07 27 1713 23 22 06 22 06 21 05 04 21 05 04 03 02 03 02 0101 E 4E 3E 1E 5 E 2 Revision 18 15/32" 15'0" 36" 82" 4. Surveys, permits, and regulations: Buyer shall procure and pay for all permits and/or inspections required by any governmental authority for any part of the work performed by McMurray-Stern, except as otherwise stated. By 37 3/16" - 00/00/00 FILLER - 00/00/00 - 9 7/32" - 00/00/00 - 9 7/32" 37 3/16" General Notes: 18 15/32" - 00/00/00 - FILLER 7. Shelving type: EVID LOCKERS 3. Owner/General Contractor is responsible for coordinating floor covering installation after McMurray-Stern installs system rail & floor. 8. Due to individual customer preferences and requirements, if adjustable dividers are ordered, they will be supplied in bulk and installed on shelves by end user. - - - 15511 Carmenita Road Santa Fe Springs, CA. 90670 phone (562) 623-3000 fax (562) 623-3039 www.mcmurraystern.com Drawn By: M Job No: xxxxxx 1 of 1 83" 1. Customer approval to proceed with work as shown hereon: Name: Date: - Date: 11/10/21 Project No: 28712 Consultant: RH Date: 55 29/32" 24" 37 3/16" 18 15/32" NOTE: ALL ROOM DIMENSIONS MUST BE FIELD VERIFIED. - 00/00/00 37 3/16" PRELIMINARY - ELEVATIONS - Scale: 1/4" = 1'-0" 18 15/32" 37 3/16" 1. McMurray - Stern, agrees to install in a free and clear area as defined on approved drawings. Adequate unloading facilities with unlimited access to the installation area. Building elevator and unloading dock shall be provided by customer. Sheet: 9. Client is responsible for the load bearing capacity of the floor upon which the proposed installation shall be constructed. A floor loading evaluation by a licensed structural engineer can be provided for an additional fee. 24" 5. Testing: All material and equipment for testing the installation or anchors shall be provided at the buyers expense. These drawings and design concepts are the property and copyright of McMurray-Stern and shall not be copied, used or reproduced in whole or in part except by written and compensated agreement with McMurray-Stern. -00/00/00 36"24" 2. All systems and/or shelving sold by McMurray-Stern require the use of anchors by pre-drilling into the existing floor. It is the users responsibility to supply a copy of this drawing to whomever takes responsibility for the building and any wiring, plumbing, etc. which could possibly be damaged by this process. Any information pertaining to such concerns must be provided to McMurray-Stern prior to the start of work. Contact your Design Consultant in regards to any questions which may arise. Azusa Police Department 725 N. Alameda Ave Azusa, CA 91702 6. Floor construction: Slab on grade - 9 7/32" FILLERFILLER 9 7/32" - PRELIMINARY - PLAN VIEW 36" APPROVALS: 36" Please note critical dimensions. McMurray-Stern is not responsible for deviations from critical dimensions shown. Customer and/or contractor to adhere to critical dimensions. All dimensions within DIM symbol are critical Dimensions. - - 37 3/16" No. 35 13/16" 36" - 18 15/32" Confid e n t i a l © 2021 McMu r r a y - S t e r n , Inc. October 18, 2021 Tamara Patlogar Administrative Services Manager City of Azusa, Police Department 725 N. Alameda Avenue Azusa, CA 91702 RE: Spacesaver Authorized Dealer Dear Ms. Patlogar: Spacesaver distributes its products through a network of Area Contractors. Each Spacesaver Area Contractor under obligation and contract is required to sell, service and install Spacesaver High Density Mobile Storage Systems, compact shelving, and storage products in their given Primary Area of Responsibility. Gatehouse MSI LLC DBA McMurray Stern has sole authority of these responsibilities in the Los Angeles, California area, which includes Azusa. Spacesaver specifies that all installations must be performed by factory trained and certified technicians. I confirm that Gatehouse MSI LLC DBA McMurray Stern is the only Spacesaver authorized installation / service technicians certified to install, service, move or add on to any new or existing Spacesaver system in their primary area of responsibility. Any existing Spacesaver system must be moved by a factory trained and certified Spacesaver installer in order to maintain its warranty and the availability of parts. No other party other than Gatehouse MSI LLC DBA McMurray Stern is authorized, trained or certified (which is contingent on activating and maintaining warranty) to conduct Spacesaver work in this territory. Please also note that the warranty is void if work is done by others and no other company can purchase replacement or upgrade parts for the Spacesaver systems. We are pleased to have this firm represent Spacesaver and to have their experienced staff available locally to address your product and service needs. Spacesaver Corporation thanks you for your interest in our products and services. Sincerely, SPACESAVER CORPORATION Laurel Harrison Vice President Sales & Marketing Terms and Conditions The purchase order, proposal and sales or service agreement (collectively, the “Proposal”) provided by McMurray Stern, LLC, a Delaware limited liability company (“Company”), specifically incorporate the following Terms and Conditions. The Proposal and these Terms and Conditions are collectively referred to as the “Agreement” between Company and Purchaser, and exclusively govern and control the parties’ respective rights and obligations. In the event of a conflict between these Terms and Conditions and the Proposal, these Terms and Conditions will control, exce pt for terms relating to price, quantity, and specifications, in which case the Proposal will control. 1. TAXES: The price does not include any sales, use, excise, or similar taxes, surcharges, tariffs and duties, and Purchaser shall be responsible for all such items, however designated or levied, and whether or not invoiced by Company. If taxes are included as part of the price and the rate or base of the tax is increased or decreased, Purchaser will pay any increased taxes, and Company will give credit for any tax decrease. 2. WARRANTY FOR GOODS AND SERVICES: a. Company warrants (the “Goods Warranty”) that the Goods as set forth in the Proposal will be, on the date of the start of the Warranty Period, free from material defects in material and workmanship. “Goods” for purposes of this Agreement means any goods, products, machinery, equipment, parts, materials, computer hardware and other items to be provided by the Company as set forth in the Proposal. b. Company warrants (the “Services Warranty”) that the Services (as defined below) will be performed in a professional and workmanlike manner. “Services” for purposes of this Agreement means the installation, commissioning or other services to be performed by the Company as set forth in the Proposal. c. Any failure of the Goods to conform to the Goods Warranty, or the Services to conform to the Services Warranty, is referred to herein as a “Warranty Defect”. d. Company’s obligations under the Goods Warranty and the Services Warranty are conditioned upon full and timely payment of all amounts owed by Purchaser and receipt by Company of prompt written notice from Purchaser of the claimed Warranty Defect, including a description of the Warranty Defect and its discovery, and the opportunity for Company to validate and inspect in Purchaser’s facility the Goods or Services claimed to be defective. e. The Goods Warranty and the Services Warranty shall terminate, and any claim of a Warranty Defect shall be deemed waived and extinguished, upon the expiration of the Warranty Period (as defined below), except as to any Warranty Defect for which Purchaser has given Company written notice in accordance with Section 2.d prior to the expiration of the Warranty Period. f. The “Warranty Period” shall be one (1) year from Acceptance; provided that, where no Services are included in the Proposal or sale, the Warranty Period is one year from shipment of the Goods. As used herein, “Acceptance” shall mean substantial completion of the Services to be provided by the Company. If the Purchaser shall use any Goods which require Services, such use shall also be deemed to be “Acceptance”. g. In the event of a Warranty Defect for which Purchaser has timely and properly given notice pursuant to Section 2.d, Company shall be responsible, (i) in the case of Goods, to repair or replace the defective Goods, delivered F.O.B. Company’s manufacturing plant, as determined by the Company in its sole discretion , and (ii) in the case of Services, to re-perform the Services that were not performed in accordance with the Services Warranty. The Warranty Defect obligation does not include costs of labor or other charges incurred in removing or installing parts (which shall be paid by Purchaser), and does not apply to Goods damaged by Purchaser, or its agents, representatives, employees, contractors, licensees or invitees, or by overloading, exposure to corrosive or abrasive substances or abnormal dampness, misuse, abuse, neglect or accident, or to Goods which have been improperly applied, installed, adjusted, operated, maintained, repaired, modified, changed or altered by persons other than Company, or to parts subject to wear and tear and replacement in ordinary course (such as, but not limited to: belts, chains, fuses, light bulbs, bushings, or similar items), or to other ordinary wear and tear. Company’s Goods Warranty with respect to any repaired or replaced Goods, or Services Warranty with respect to any re-performed Services, shall terminate on the date that the warranty would terminate under Section 2.e and 2.f as to any Goods or Services not subject to a claim of a Warranty Defect. h. Company makes no warranties or representations, nor assumes any obligations with regard to, Purchaser’s existing equipment or facilities or for any equipment supplied by Purchaser or any third-party and used in the Company system, and Purchaser assumes full responsibility for the use and operation of such equipment. i. If Company fails to repair or replace within thirty (30) days the defective Goods for which Purchaser has timely and properly given notice of a Warranty Defect pursuant to Section 2.d, then provided that Purchaser has given Company thirty (30) days prior written notice after such failure to repair or replace, and Company has not made such repair or replacement within such thirty (30) day notice period (or if the nature of such repair or replacement is not capable of being completed within such 30-day period, the Company has not commenced such repair or replacement), Purchaser may obtain repair or replacement of the defective goods from a third-party, and in such event Company shall be liable to Purchaser for the lesser of (i) the reasonable costs of such repair or replacement by a third -party or (ii) that part of the purchase price of the defective part of the Goods that has already been paid by Purchaser. j. EXCEPT AS SET FORTH IN THIS SECTION 2, THE GOODS AND SERVICES ARE BEING SOLD “AS IS”, AND COMPANY MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE GOODS OR SERVICES OTHER THAN THE EXPRESS WARRANTIES CONTAINED IN SECTION 2. COMPANY HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY REPRESENTATION OR WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. 3. PRICE AND PAYMENT: Purchaser shall make all payments due to the Company upon the terms set forth on the Proposal in immediately available funds. If any payment due from Purchaser shall not be received by the Company within five (5) days after the due date, then Purchaser shall pay to the Company a late charge equal to five percent (5%) of the overdue amount. In addition, Purchaser shall pay interest on all late payments at the lesser of the rate of 10% per annum or the highest rate permissible under applicable law, calculated daily. Purchaser shall reimburse the Company for all costs incurred in collecting any late payments, including, without limitation, reasonable attorneys’ fees. Goods are sold on a firm sale basis. Orders cannot be canceled once placed. Purchaser shall have no right under these Terms and Conditions, or any other agreement, document or law, to withhold, offset, recoup or debit any amounts owed to the Company against any other amount owed to it by the Company. A surcharge will be assessed on any credit card payments by Purchaser in the amount equal to three percent (3%) of the transaction amount, but in no event shall the surcharge be greater than the amount actually paid by the Company to its payment processor for processing the transaction. 4. INSURANCE BY COMPANY: Company will maintain insurance covering its operations as follows: a. Worker’s Compensation Insurance as required by the state having jurisdiction over Company and Employer’s Liability with limit of $1,000,000. b. Commercial General Liability Insurance with combined single limit for bodily injuries and property damage of $2,000,000. c. Automotive Liability Insurance for bodily injuries, including death and property damage with combined single limit of $1,000,000. d. Umbrella and/or excess coverage with a limit of $5,000,000. Company may, at its sole option, satisfy these requirements with commercial insurance or through a program of combined self- insurance, self-insured retention, and excess insurance. Certificates of insurance will be furnished upon request. 5. INSURANCE BY PURCHASER: Purchaser assumes all risk of loss from damage and destruction of the Goods and any applicable installation charges thereof. Such risk of loss will transfer to Purchaser at the F.O.B. point pursuant to the shipping terms of the Agreement, or if not specified, F.O.B. Origin. Purchaser does not assume any risk o f loss that is due to the actions of Company employees, contractors or subcontractors. Purchaser agrees to acquire and maintain all risk insurance covering damage and destruction of the Goods at replacement value and in no event less than the purchase price including any increases by Change Order(s). The insurance policy or policies shall name the Company as an additional insured, shall provide for thirty (30) days prior notification to Company if the insurance coverage is terminated, reduced, or otherwise materially modified, shall provide that the insurance proceeds shall be payable to Company and Purchaser as their interests may appear, and shall provide for a waiver of subrogation in favor of Company. Payments made by an insurance carrier to Company as a result of such damage or destruction of the Goods will be applied against the purchase price and any other amounts owed by Purchaser under the Agreement. Purchaser shall furnish Company with certificates evidencing such insurance. 6. INDEMNIFICATION: The Goods furnished hereunder will be manufactured with Company safety features and furnished with user safety instructions. The operation of the Goods with safety features removed or modified and/or the disregard of the user safety instructions is outside of Company’s control and is the responsibility of Purchaser. Therefore, Purchaser agrees to indemnify, defend and hold Company harmless from any and all claims, demands, liabilities, causes of action, suits, costs, and expenses of any kind or nature (including attorney’s fees) for loss or damage which may be suffered by Company as a result of injury to persons arising from such removal or modification to Company-furnished safety features and/or the disregard of Company- furnished user safety instructions, including any person injured while riding, sitting, stepping, walking, or climbing on the Goods furnished hereunder. 7. CHANGE ORDER: The parties may agree at any time prior to final payment of the Agreement to make additions, deletions, or other revisions by Change Order or Work Order (as defined below) without invalidating the Agreement. No such change will be performed by Company until an approved Change Order or Work Order is executed as provided below. a. When the price, schedule and other conditions relating to the change can be determined prior to the start of work under the change, a document describing this change (“Change Order”) will be issued for execution by the parties. b. When the change requires immediate action and the issuance of an executed Change Order with firm price would unreasonably delay the change, Purchaser shall place its signature upon a document authorizing Company to proceed with the change (“Work Order”). After the change under the Work Order has been completed, Company will calculate the firm price for the change using actual costs (including overhead and reasonable profit) current at time of performance of the work. Completed Work Order(s) will be incorporated into a Change Order for execution by the parties. Unless expressly modified by a Change Order or Work Order, the provisions of the Agreement and these Terms and Conditions will govern all work performed under such Change Order or Work Order. 8. DELIVERIES: The Company will use commercially reasonable efforts to deliver Goods on any estimated delivery date set forth on the Proposal. The Company shall not be liable for any delays, loss or damage in transit, including any delays as set forth in Section 12 below. If for any reason Purchaser fails to accept delivery of any Goods, or if the Company is unable to deliver Goods because Purchaser has not provided appropriate instructions, documents, licenses, or authorizations: (i) risk of loss to Goods shall pass to Purchaser; (ii) Goods shall be deemed to have been delivered; (iii) the Company, at its option, may store Goods until Purchaser picks it up, whereupon Purchaser shall be liable for all related costs and expenses (including, without limitation, storage and insurance); and (iv) Purchaser will compensate the Company for any other associated loss, damage, and additional expense suffered or incurred by the Company as a result of such delay. Except as otherwise set forth above, title and risk of loss passes to Purchaser as set forth in Section 5. As collateral security for the payment of the purchase price of Goods, Purchaser hereby grants to the Company a lien on and security interest in and to all of the right, title, and interest of Purchaser in, to and under Gods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the UCC. 9. REMEDIES: a. Purchaser’s Remedies Prior to Acceptance. Prior to Acceptance, if Company defaults in the performance of any of its material obligations under the Agreement, Company shall have thirty (30) days following written notice from Purchaser advising Company of the default, in which to (i) cure the default or, (ii) if the default is not reasonably curable within such thirty (30) day period, to implement a plan to cure the default in a diligent manner. If Company fails to effect such cure within such thirty (30) day period, or fails to implement a plan to cure the default within such thirty (30) day period and thereafter prosecute such cure diligently to completion, then Purchaser shall have the right to terminate the Agreement upon written notice to Company. In the event of such termination, Purchaser shall either (i) pay to Company the value of the Goods and Services already provided to Purchaser, or (ii) complete the work specified in the Agreement. If Purchaser elects to complete the work specified in the Agreement and the reasonable costs of completion exceed the unpaid balance of the Proposal price, Company shall pay the difference to Purchaser upon submission of reasonable evidence of the costs thereof. b. Purchaser’s Remedies After Acceptance. After Acceptance, Purchaser’s remedies set forth in Section 2.g (with respect to Warranty Defects) are Purchaser’s sole and exclusive remedies for any claim that Purchaser may have related to the Agreement or the Goods or Services, in connection with the design, manufacture, sale, handling, transportation, delivery, installation, performance or otherwise of the Goods or the Services. c. Company’s Remedies: In addition to any remedies that may be provided in the Agreement, the Company may terminate this Agreement with immediate effect upon written notice to Purchaser, if Purchaser: (i) fails to pay any amount when due under the Agreement; (ii) has not otherwise performed or complied with the Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. In such event, the Company shall have the right to (i) suspend performance of its obligations under the Agreement until the default is cured, (ii) terminate the Agreement, and/or (iii) exercise any other right or remedy provided for in the Agreement, or available to Company under applicable law. d. LIMITATION OF REMEDIES. THE AGREEMENT SETS FORTH PURCHASER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY DEFECT IN OR NON-CONFORMITY OF ANY GOODS OR SERVICES, FOR ANY NEGLIGENT DESIGN, MANUFACTURE, OR INSTALLATION OF THE GOODS, FOR ANY DELAY IN DELIVERY, AND FOR ANY BREACH OF THE AGREEMENT BY COMPANY. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, THE GOODS OR SERVICES, OR IN CONNECTION WITH ANY BREACH UNDER A PROPOSAL OR THESE TERMS AND CONDITIONS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. THE COMPANY’S MAXIMUM CUMULATIVE LIABILITY UNDER THE AGREEMENT FOR ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES OR THE LIKE OF ANY KIND, WHETHER RELATING TO THE GOODS OR SERVICES, THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO THE COMPANY UNDER THE PROPOSAL WHICH IS THE SUBJECT OF THE CLAIM. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PURCHASER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF GOODS AND SERVICES, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY THE COMPANY, OR OTHERWISE, RELATED TO USE OF THE GOODS AND/OR SERVICES. PURCHASER AND COMPANY AGREE THAT THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS PARAGRAPH ARE SEPARATE AND INDEPENDENT FROM ANY REMEDIES WHICH PURCHASER MAY HAVE IN THE AGREEMENT AND SHALL BE GIVEN FULL FORCE AND EFFECT WHETHER OR NOT ANY OR ALL SUCH REMEDIES SHALL BE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. 10. COMPLIANCE WITH LAW. Purchaser shall comply with all applicable laws, regulations, and ordinances. Purchaser has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to own and operate the Goods and carry out its obligations under these Terms and Conditions. 11. INTELLECTUAL PROPERTY: The Company shall retain all right, title and interest to its own intellectual property, formulas, software and designs, including, without limitation, trademark, copyright, and any and all renewals, extensions, revivals and resuscitations thereof, throughout the universe in perpetuity in all media now known or hereafter devised. 12. DELAYS: If Company’s performance is delayed or prevented by Purchaser or other any cause uncontrolled or unforeseen by Company (including but not limited to acts of God, pandemics (including COVID- 19 or any variants thereof), casualty, labor disturbance, strikes, riots, civil disturbance, inability to obtain supplies or transportation, explosion, flood, fire, power failure, embargos, boycotts, governmental or military action, war, terrorism, or any order modification by Purchaser): (i) except as set forth in the Proposal, Purchaser agrees to pay Company invoices upon notification that the Goods are ready for shipment in accordance with the shipping schedule and to reimburse Company for expenses incident to such delay including, without limitation, the cost of engineering, the cost of Goods and labor escalations; maintaining, repairing, refurbishing and replacing Goods; and storage, demurrage, and pullout charges from installation site; and (ii) the time for delivery of the Goods and performance of the Services will be extended for a period at least equal to the time lost by reason of the delay, and Company will not be liable for any damages caused by the delay and such delay shall not be considered a breach or default by the Company. No obligation of a party to pay money otherwise due is subject to any delay condition. 13. PATENT INDEMNITY: Company agrees to indemnify and hold Purchaser harmless from any damages that may be awarded against Purchaser in any final appealable judgment based upon a claim that the Goods or its use infringes any currently existing United States patents owned by third parties, provided that Purchaser notifies Company in writing, within ten (10) days of Purchaser’s knowledge of any such claim, and gives Company the exclusive control of the defense and settlement of any claim, including at Company’s option, the right to: (i) make changes in the Goods; (ii) replace the Goods; and/or (iii) obtain a license; to avoid any alleged infringement. Company shall have no obligation hereunder with respect to claims, suits or proceedings, resulting or related, in whole or in part, from: (i) any modifications or alterations of the Goods by Purchaser; (ii) any combining by Purchaser of the Goods with other equipment not furnished by Company; (iii) compliance by Company with Purchaser’s specifications; or (iv) incorporating a design or modification at Purchaser’s request. 14. ASSIGNMENT/SUBCONTRACTS: Neither Party shall delegate the performance of any obligation hereunder, nor assign any rights arising under the Agreement, to any third person without the prior written consent of the other Party; provided, however, each party shall have the right to assign this Agreement to an entity which purchases all or substantially all of the assets of such party. The Parties agree that consent shall not be unreasonably withheld. Company reserves the right to use subcontractors in the performance of any services to be performed by Company. 15. CONFIDENTIALITY: The Agreement, any information marked as confidential and any other information (written/electronic/oral) which is of the nature that a reasonable person would understand its owner would not want it disclosed to the public will be considered to be “Confidential Information” of Company. Further, Confidential Information of Company shall also include (i) any document or data transaction between the parties, (ii) matters of a technical nature such as trade secret processes or devices, know-how, drawings, specifications, proposals, data, formulas, software, inventions (whether or not patentable or copyrighted), specifications and characteristics of products or services planned or being developed, and research subjects, methods and results, (iii) matters of a business nature such as information about costs, profits, pricing, policies, markets, sales, suppliers, customers, product plans, and marketing concepts, plans or strategies, (iv) matters relating to project initiatives and designs, (v) matters of a human resources nature such as employment policies and practices, personnel, including individual names, address, and telephone numbers, compensation and employee benefits, and/or (vi) other information of a similar nature not generally disclosed to the public. Purchaser shall not use or disclose Confidential Information except to its employees subject to a similar confidentiality agreement, who have a need to know to perform their responsibilities. The obligations set forth herein to maintain confidentiality shall not apply to Confidential Information that: (i) Purchaser can document was rightfully in the public domain prior to disclosure or becomes publicly known through no fault of the Purchaser; (ii) Purchaser can document through written evidence dated prior to the date of disclosure, was rightfully known to the Purchaser prior to disclosure; (iii) is disclosed to Purchaser by a third-party, rightfully in possession of the Confidential Information and not in violation of a confidentiality agreement with Company or other restriction on use; or (iv) was independently developed by Purchaser without the use of or reference to the Confidential Information. Any separate confidentiality agreement executed between the parties shall continue to remain in full force and effect. 16. CHANGES IN LAWS AND REGULATIONS: Company’s prices and timely performance are based on all applicable laws, rules, regulations, orders, codes, standards or requirements of governmental authorities effective on the date of Company’s Proposal. Any change to any law, rule, regulation, order, code, standard or requirement which requires any change hereunder shall entitle Company to an equitable adjustment in the prices and any time of performance. 17. MISCELLANEOUS: a. Entire Agreement. The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior agreement, understanding, discussions, representations or proposals made between the parties. The terms of this sale are expressly limited to the terms and conditions set forth in the Agreement. Any changes, modifications, or additions to the Agreement are binding and enforceable only if made in writing and signed by the respective parties. Any and all terms set forth on Purchaser’s purchase order or otherwise proposed by Purchaser are hereby objected to and shall be void unless expressly agreed to in a written document signed by both parties. b. Governing Law. The Agreement shall be interpreted and enforced in accordance with the substantive laws of the State of California without regard to its conflicts of law principles. Any legal suit, action or proceeding arising out of or related to this Agreement, or the matters contemplated this Agreement, shall be instituted exclusively in the federal or state courts located in Los Angeles, California, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. c. Severability. The invalidity or unenforceability of any provision of the Agreement shall not affect the enforceability or validity of the remaining provisions, and the Agreement shall be construed in all respects as if any invalid or unenforceable provision were omitted. d. Nonwaiver. Failure of either party to require performance of any provision shall not affect its right to thereafter require full performance of that provision. The waiver by either party of a breach of any provision shall not constitute a waiver of any subsequent breach or nullify the effectiveness of such provision. e. Captions. Captions preceding Articles are for convenience only and are not to be construed as part of the Agreement or as a limitation of the scope of the Article to which they refer. f. Third Party Beneficiaries. Except as provided for in Section 5, no provision of these Terms and Conditions is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any person other than the parties and their respective successors and permitted assigns. g. Ambiguities. Each party and its counsel have participated fully in the review and revision of the Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting the Agreement. h. Data Destruction. At the termination of this Agreement, Customer will provide Company with a list of all confidential Customer data it wishes to have Company destroy. Company will destroy all confidential Customer data and provide confirmation of such destruction sixty (60) days after receipt of such list. i. Independent Contractor. Each party shall be considered to be an independent contractor under the Agreement. The relationship between the parties shall not be construed to be that of employer and employee, nor to constitute a partnership, joint venture, or agency of any kind. Neither party shall have the right to bind the other party to any contract or other commitment. h. Survival. All indemnity provisions contained in this Agreement will survive the expiration or sooner termination of this Agreement.