Loading...
HomeMy WebLinkAboutD-2 Staff Report - LifeArk purchaseSCHEDULED ITEM D-2 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL VIA: SERGIO GONZALEZ, CITY MANAGER FROM: LUCY DEMIRJIAN, PROJECT MANAGER DATE: NOVEMBER 20, 2023 SUBJECT: AWARD CONTRACT TO LIFEARK FOR $1,578,343 FOR THE PURCHASE, DELIVERY, AND INSTALLATION OF PRE-FABRICATED HOUSING UNITS, AND $250,000 FOR THE INCLUSTION OF A DECK FOR THE AZUSA RESOURCE CENTER BACKGROUND: The City of Azusa has experienced an exponential increase in homeless population over the last decade. Since the opening of the Gold Line in 2016, and Metro’s end of line policy, the number of individuals experiencing homelessness have significantly increased, as evidenced by the annual point in time count conducted by the Los Angeles Homeless Services Authority (LAHSA). The City adopted Resolution 2023-C27 on June 5, 2023, declaring the existence of a local emergency and has continued the declaration as it expeditiously works toward locally viable solutions. On June 26, 2023, the City Council received a report on the continuing homeless crisis and the need for a local interim housing project. City-owned property at 975 W. Foothill Blvd. was determined to be the most appropriate for development of a temporary navigation center based on an assessment of access to basic needs, availability of utilities, on-site parking, and neighborhood context. On September 18, 2023, the City Council was presented with conceptual design and estimated costs for an emergency non-congregate shelter project. The Council provided input and authorized staff to move forward with design and development of the project. Approved City Council November 20, 2023 Approval of Contract to Procure Homeless Housing Modules November 20, 2023 Page 2 RECOMMENDATIONS: Staff recommends that the City Council take the following actions: 1) Approval sole source acquisition per the Azusa Municipal Code Section Sec. 2-520 for the procurement of unique commodities or services under the City’s current declaration of local emergency; and 2) Authorize City Manager to enter into agreement with LifeArk for the procurement of prefabricated modular units, delivery, on-site installation and assembly; and ANALYSIS: The interim housing facility, Azusa Resource Center or “ARC,” is intended to serve as a bridge between residents experiencing street homelessness and placement in permanent supportive housing. In collaboration with the San Gabriel Valley Council of Governments (SGVCOG) and technical assistance from SRK Architects, a design was created to include a total of 25 units. The Resource Center will also provide 24/7 secured housing for local unsheltered individuals and case management support services, including specialists in mental health and substance use disorders and employment assistance. The local emergency declaration allows the City to take necessary action in response to impacts of the escalating homelessness crisis and provides greater ability to waive standard procurement procedures to contract for specialized services, material and labor. LifeArk is a Los-Angeles based manufacturer that creates modular structures made of post- consumer recycled plastic and HCD-approved for use as shelter, interim or permanent housing. Each 8 ft X 8 ft module can be used as a shelter or multiple modules can be configured together to create larger living spaces, community or meeting spaces. There will be 20 single units and 5 ADA units to serve 25 individuals. Each single unit will include a bed, shelves, HVAC, door, and an outlet. An administration module will include offices for support service staff, an area for prepping meals, and a security office. Sanitation units will include restrooms, showers and laundry facilities. The units are capable of providing weather resistant shelter that could be built on site, easily moved, and includes HVAC and outlet for charging devices. Additional consideration was given to the site preparation necessary for quick implementation and, as this location is temporary, minimal impact to the property for future development. Alternative emergency dwelling units were explored, however, considering spacing required per fire safety codes and challenges with incremental whether, an investment in more durable material is recommended. The site work is minimal as the structures are raised to allow for utilities, reducing costs for undergrounding utilities. A decking option has been included in the attached quote. The deck will connect all units without the need for additional stairs or ramps. The City may opt to Approval of Contract to Procure Homeless Housing Modules November 20, 2023 Page 3 seek a different vendor for the construction of the deck, or include this as part of the full built out in this contract. With the LifeArk modular structures, the City would be able to extend the Program, move the units to another site, or store the units for use at a later date. In order to utilize federal funds for a single source purchase, a justification is needed to provide a detailed explanation of why the chosen vendor or provider is uniquely qualified to deliver the required services. This includes factors such as their specialized knowledge, track record of successfully implementing similar projects, unique resources or technology, or cost- effectiveness. Additionally, the local emergency declaration requires immediate procurement. In adherence to the standards set forth in 2 CFR § 200.320(c) in the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, the City would like to move forward with procurement and contracting without the delay of competitive solicitation under the public exigency or emergency. 2 CFR 200.320(c)(3) allows noncompetitive procurement when “[t]he public exigency or emergency for the requirement will not permit a delay resulting from publicizing a competitive solicitation.” Under the City’s local emergency declaration, procurement procedures may be waived by the City Council for expedited delivery of the project. Moreover, 2 CFR 200.320(c)(2) allows noncompetitive procurement when “[t]he item is available only from a single source.” The City has identified a manufacturer of emergency housing that is justifiably sole source as it provides an innovative, unique and proprietary product and services. Additional consideration was given to the minimal site preparation necessary for quick implementation. LifeArk is a Los-Angeles based manufacturer that creates modular structures made of post- consumer recycled plastic and HCD-approved for use as shelter, interim or permanent housing. Each 8 ft X 8 ft module can be used as a shelter or multiple modules can be configured together to create larger living spaces, community or meeting spaces. Modules can also be used for bathroom, shower, and laundry facilities. The units are capable of providing weather resistant shelter that could be built on site, easily moved, and includes HVAC and outlet for charging devices. Unlike other products being used for emergency shelter, LifeArk units are approved as Factory- Built Housing by California Department of Housing & Community Development (HCD). This HCD approval provides the following benefits: •Factory-Built housing units bearing the insignia of approval of HCD are designed and built to be permanent structures in complete compliance with California Building Code, thus there is no question on the quality of the product as a high-quality housing. •HCD approval provides the local enforcing agency assurance of compliance with all necessary life safety standards. •Simplifies local enforcing agency's task of plan checking process and allows for quicker project development timelines. •Structures built on site has to go thorough much more rigorous and lengthy inspection process with the local enforcing agency causing longer construction schedule. •Less impact to the local community, traffic etc. since the most of the construction is completed in the remote factory rather than on the site. Approval of Contract to Procure Homeless Housing Modules November 20, 2023 Page 4 NEXT STEPS: The City of Azusa endeavors to complete the ARC project by January 2024 and begin operations in February 2024. This is in line with the Housing First approach to serving people experiencing homelessness, which recognizes a homeless person must first be able to access a decent, safe place to live before stabilizing, improving health, reducing harmful behaviors, or increasing income. The site work will require asphalt foundation, utility connections, light landscaping, and fencing for privacy and security. When the prefabricated modules are delivered, a portion of assembly will be done on site. Interior finishes and hook-ups will follow. Furniture and equipment will also be installed. Public outreach meetings have been scheduled to respond to community concerns, solicit input, and provide details on the project design. FISCAL IMPACT: The total cost for the contract, including the purchase of goods and delivery and installation, is $1,578,343. An option to for decking is estimated at $250,000. Staff will utilize FY 2023/24 account 54-00-000-000 in project #11024A upon Council approval of the recommended actions. The fund includes $1,954,843 from the American Recovery Plan Act (ARPA) State and Local Fiscal Recovery Funds previously earmarked by the City Council for a local resource center. These funds must be designated by December 2024 and fully expended by December 2026. Prepared by: Review by: Lucy Demirjian Talika M. Johnson Senior Project Manager Administrative Services Director Reviewed and Approved by: Sergio Gonzalez City Manager Attachment 1. LifeArk Modular Housing Pricing Quote OUTDOOR EATING DOG RUNSECURITY 11 212223 ST O R A G E LO C K E R S BI C Y C L E PA R K I N G LAUNDRY OUTDOOR EATING OFFICE OFFICE OFFICE OFFICE WARMING KITCHEN 1 2 3 4 5 6 7 8 9 15 14 13 10 12 16171819202425 SECURITY INTAKE T E M P O R A R Y S H E L T E R AZ U S A , C A 2254 South Figueroa Street Los Angeles, CA. 90007 Tel. (213) 747-1199 www.srkarchtectsinc.com ©© 23008.01 C-11258 RB E T A T S RENEWAL DATE: OF 08/31/25 CFO ILA NR AI AI NECIL E HCRADES A.N T I K I T C E T NOT FOR CONSTRUCTION JH HC PAVING DETAIL A-0.2 1/16" = 1'-0" TRUE NORTH SITE PLAN KEYNOTES SITE PLAN LEGEND 1SITE PLAN 3/32" = 1'-0" 88.42.82.Emergency Shelters. A.Purpose. Consistent with Government Code § 65582, 65583(a) and 65589.5, all California cities are required identify a zone in which to permit emergency shelters as a matter of right. The purpose of regulating the siting of emergency shelters is to ensure the development of emergency shelters do not adversely impact adjacent parcels or the surrounding neighborhood, and shall be developed in a manner which protects the health, safety, and general welfare of nearby residents and businesses while providing for the housing needs of the homeless. B.Use Standards.   1.The emergency shelter shall contain a maximum of 30 beds and shall serve no more than 30 homeless persons at any one time. 2.Occupancy by an individual or family may not exceed 180 consecutive days unless the management plan provides for longer residency by those enrolled and regularly participating in a training or rehabilitation program. Services shall be provided to assist residents to obtain permanent shelter, income, and services. No individual or household may be denied emergency shelter because of an inability to pay. 3.Adequate external lighting shall be provided for security purposes. The lighting shall be stationary and directed away from adjacent properties and public rights-of-way. The intensity shall comply with standard city performance standards for outdoor lighting. 4.Onsite management of the facility shall be required during all open hours of operation. 5.The emergency shelter provider/operator shall have a written management plan including, as applicable, provisions for staff training, neighborhood outreach, transportation issues, security, screening to ensure compatibility with services provided at the facility, and for training, counseling, and treatment programs for residents. 6.The emergency shelter facility shall demonstrate that it is in and maintains in good standing with County and/or State licenses, if required by these agencies for the owner(s), operator(s), and/or staff on the proposed facility. C.Development Standards. The development standards set forth Article 3 for the zone in which the emergency shelter is located shall apply, unless otherwise specified here. 1.No more than one emergency shelter shall be permitted within a radius of 300 feet of another such facility. 2.Interior on-site waiting and client intake areas must be at least 200 square feet. Outdoor onsite waiting areas may be a maximum of 100 square feet, and must be located within 50 feet of the public right-of-way. 3.Parking and outdoor facilities shall be designed to provide security for residents, visitors, and employees. 4.The development may provide one or more of the following specific common facilities for the exclusive use of the residents: a.Central cooking and dining room(s) b.Recreation room c.Counseling center d.Child care facilities e.Other support services 5.On-site parking for emergency shelters shall be provided as set forth in Chapter 88.36. (Ord. No. 11-O4, § 2, 4-18-11) 88.36.30.General Parking Regulations. A.Parking and Loading Spaces to be Permanent. Each parking and loading space shall be permanently and continuously paved, available, marked and maintained for parking and loading purposes for the use it is intended to serve. Parking and/or vehicle storage is not permitted on unpaved commercial or residential lots. B.Location of Parking on a Site. Parking and loading spaces shall be located on a site as required by Article 2 (Urban Standards) for the applicable neighborhood, district, or corridor. C.Parking and Loading to be Unrestricted. An owner, lessee, tenant, or other person having control of the operation of a premises for which parking or loading spaces are required by this chapter shall not prevent, prohibit, or restrict authorized persons from using the spaces without the prior approval of the director. D.Vehicles for Sale. No motor vehicle or other personal property shall be parked on private property for the purpose of displaying the vehicle or other personal property for sale, hire, or rental, unless the property is appropriately zoned, approved by the city for that use, and the person or business at that location is licensed to sell vehicles or other personal property. However, one automobile or truck, not exceeding one-ton capacity, owned by the owner, renter, or lessee of the property may be displayed for the purpose of sale for a maximum of one month. E.Reserved.   (Ord. No. 08-O7, § 2, 6-16-08; Ord. No. 2015-O1, § 1, 1-20-15) 88.36.50.Number of Parking Spaces Required. Each use shall provide off-street parking in compliance with this section, except as otherwise provided by Section 88.36.080 (Reduction of Parking Requirements). E.Excessive Parking. The city discourages providing more off-street parking spaces than required by this chapter, to avoid the inefficient use of land, unnecessary pavement, and excessive storm water runoff from paved surfaces. The provision of off-street parking spaces for nonresidential land uses in excess of the requirements in Article 2 is allowed only with use permit approval, and only when additional landscaping and pedestrian amenities are also provided to the satisfaction of the review authority. 3.Waiver by Commission. The commission may waive covered parking requirements when a nonconforming structure is proposed for rehabilitation if the commission determines, in compliance with Section 88.51.040 (Use Permits and Minor Use Permits), that the existing structure location, lot size, or topography renders the requirement unreasonable. Emergency shelter 1 space for each 5 beds and 2 additional spaces. 88.36.60.Disabled Parking Requirements. A.Accessibility Requirements. Special provisions for access by the physically handicapped from public rights-of-way, across intervening spaces, and into structures, including parking facilities specifically designed and located for the use of the disabled/handicapped, shall be required. Standards for the facilities shall be based on the standards of the American Standards Association and/or other applicable guidelines. B.Number of Spaces Required. Parking spaces for the disabled shall be provided in compliance with the California Building Standards Code, the Federal Accessibility Guidelines, and/or California Code of Regulations Title 24, as applicable. Parking spaces required for the disabled shall count toward compliance with the number of off-street parking spaces required by Section 88.36.050 (Number of Parking Spaces Required). ZONING CODE 88.36.70.Bicycle and Motorcycle Parking. A.Bicycle Parking. Each multi-family project and nonresidential land use shall provide bicycle parking in compliance with this section. 1.Number of Bicycle Spaces Required. Multi-family, retail commercial, and office uses shall provide bicycle parking spaces equal to a minimum of one bicycle space for every 20 motor vehicle spaces up to 100 spaces. One additional bicycle space shall be provided of each additional 100 spaces or fraction. A minimum of two bicycle spaces shall be provided in all cases. Required bicycle spaces shall distributed in locations convenient to building entrances, to serve residents, customers, and employees of the project. 2.Bicycle Space Design and Devices. Each bicycle parking space shall include a stationary parking device to adequately secure the bicycle, shall be a minimum of two feet in width and six feet in length, with a minimum of seven feet of overhead clearance, installed and maintained in compliance with city standards, and shall be conveniently located and generally within close proximity to the primary entrance of the structure it is designed to serve. 88.36.80.Reduction of Parking Requirements. A.Shared On-Site Parking. Where two or more adjacent nonresidential uses have distinct and differing peak parking usage periods, (e.g. a theater and a bank), a reduction in the required number of parking spaces may be allowed through use permit approval. Approval shall also require a covenant running with the land, recorded by the owner of the parking lot, guaranteeing that the required parking will be maintained exclusively for the use or activity served for the duration of the use or activity, in compliance with Section 88.36.120 (Designation of Off-Street Parking and Loading Spaces). B.Reduction by Variance. The review authority may reduce the number of parking spaces required by Section 88.36.050 (Number of Parking Spaces Required) through a variance approval, based on quantitative information provided by the applicant that documents the need for fewer spaces (e.g., sales receipts, documentation of customer frequency, information on parking standards required for the proposed land use by other cities, etc.). C.Reduced Parking for Restricted Senior Housing Projects. The review authority may reduce the number of parking spaces required by Section 88.36.040 (Number of Parking Spaces Required) for senior housing projects, for persons aged 55 and over, based on quantitative information provided by the applicant that documents the need for fewer spaces for these types of residential development projects. D.Waiver of Covered Parking Requirement for Affordable Housing Units. The review authority may waive the requirement that parking be covered for affordable housing units in compliance with Section 88.32.030 (Types of Bonuses and Incentives Allowed). E.Reduced Parking for Mixed Use Projects. The review authority may reduce the number of parking spaces required by Section 88.36.050 (Number of Parking Spaces Required) for a mixed use project developed in compliance with Section 88.42.120, based on quantitative information provided by the applicant that documents the need for fewer spaces for these types of residential development projects. F.Alternative Parking Arrangements for the Park Once Districts. Alternative parking may be approved by the review authority for a project located in the TOD Specific Plan District that participates in a city park once program (Refer to the City of Azusa TOD Specific Plan), or in another park once district established by the city. ;KƌĚ͘EŽ͘ϭϭͲKϭϲ͕Αϰ͕ϭϬͲϮϰͲϭϭ͖KƌĚ͘EŽ͘ϮϬϭϳͲϬϱ͕Αϰ͕ϳͲϭϳͲϭϳͿ 1 Buyer’s initial EXHIBIT “C” LIFEARK, SPC STANDARD TERMS AND CONDITIONS These Standard Terms and Conditions (“Terms and Conditions”) are entered into by the undersigned buyer (“Buyer”) and LifeArk, SPC (“LifeArk”). In consideration of the premises and undertakings of LifeArk herein, it is hereby agreed as follows: 1. Sales of Goods. Buyer may purchase from LifeArk and LifeArk may sell to Buyer from time to time certain goods and products (“goods”) pursuant to one or more purchase orders submitted by Buyer in writing, by email. Acceptance of any purchase order and sale of any goods to Buyer by LifeArk shall be conditioned upon (i) execution by Buyer of a Sales Confirmation in the form provided by LifeArk (a “Sales Confirmation”), and/or (ii) acceptance by LifeArk of Buyer Purchase Order, and (iii) Buyer’s assent to these Terms and Conditions which shall be automatically incorporated into, supplement and govern each Sales Confirmation or Purchase Order and the performance of LifeArk and Buyer thereunder. To the extent any terms set forth in a Sales Confirmation conflict with the Terms and Conditions, the conflicting terms set forth in the Sales Confirmation shall be controlling. Modifications by Buyer of any Sales Confirmation or any of these Terms and Conditions shall be without force and effect unless approved in writing by an authorized representative of LifeArk. 2. Terms of Payment/Effect of Governmental Action. The purchase price for goods as set forth in a Sales Confirmation shall be, unless otherwise agreed in writing, (a) F.O.B. LifeArk’s facility in Madera, California or such other shipping point as LifeArk shall designate (“shipping point”), (b) exclusive of applicable federal, state and local taxes (including sales and use taxes), excises, duties and import fees, which Buyer shall pay or reimburse to LifeArk, and (c) exclusive of freight and delivery charges and insurance, all of which Buyer shall pay. Unless otherwise provided in the Sales Confirmation, Buyer’s payment for all goods, applicable taxes and transportation costs shall be net 25 days from the date of the applicable invoice (“invoice date”). All late payments shall bear interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate allowed by law. Final payment will be due at the time of shipping or 30 days after final inspection is passed, whichever comes first. If after the issuance by LifeArk of a Sales Confirmation a Governmental Action (as herein defined) is issued or enacted, and the effect of such Governmental Action is to require that the applicable goods include additional equipment or comply with new standards, the direct costs associated with conforming the goods to the requirements of the Governmental Action will be added to the applicable invoice and paid by Buyer. As used herein, the term “Governmental Action” means any order, decree, directive, law or regulation promulgated, issued or enacted by any legislative body or agency having jurisdiction, that pertains to the manufacture, operation or sale of any goods. LifeArk’s acceptance of purchase orders and shipment of goods pursuant thereto shall at all times be subject to LifeArk’s approval of Buyer’s credit. Buyer agrees that it shall provide to LifeArk from time to time any and all financial information, which LifeArk reasonably requests to 2 Buyer’s initial establish and maintain LifeArk’s credit approval. Notwithstanding anything in any agreement between the parties to the contrary, LifeArk reserves the right to (a) change Buyer’s credit authorization or require different credit terms (any such change in payment terms will be based upon the standard credit underwriting criteria then in effect at LifeArk), (b) require Buyer to provide security or credit enhancements acceptable to LifeArk and/or (c) require payment in advance as a condition of accepting purchase orders or completing shipments of goods pursuant to accepted purchase orders. LifeArk shall use commercially reasonable efforts to provide Buyer with as much advance notice as practicable of any change in payment terms. 3. Price Escalation. In the event of a product or material cost increase or imposition of additional costs, such as adherence to prevailing wage requirements, an escalation request will be submitted in writing to the Buyer for review on a case by case basis. This measure is not intended to allow any increase in profit margin, but is solely intended to allow compensation for actual cost increases directly related to bid items. 4. Shipment. Delivery of goods under a Sales Confirmation shall be F.O.B. shipping point. LifeArk will make arrangements to ship the goods by common or contract carrier, with Buyer as the consignee, to such destination. LifeArk will make a good faith effort to honor Buyer’s shipping instructions and ship goods on or before any stated shipping date; however, such shipping date is an estimate only and LifeArk shall not be liable for any delays in shipment and a delay in shipment shall not relieve Buyer of its obligation to accept the goods. Buyer agrees that it shall be Buyer’s responsibility to ensure that the carrier delivering goods to Buyer has adequate insurance in full force and effect to cover any and all loss or damage to any goods, which may result from delivery or transport of the goods. Risk of loss and damage to goods shall pass to Buyer upon delivery of the goods by LifeArk to the carrier at the shipping point. Claims for any goods lost or damaged during shipment shall be filed by Buyer directly with the carrier, and Buyer is advised to note loss or damage to goods on the freight bill when signing for receipt. 5. Storage. If the Buyer is not ready to accept the delivery of ordered products within 30 days of the delivery date as originally indicated by the Buyer, then, at LifeArk's option, LifeArk may store the finished containers and a monthly storage fee will apply. The amount of this fee will be determined by LifeArk based on the size and number of ordered products to be stored, and Buyer agrees to pay such fee. If at any time LifeArk determines that it cannot store the finished ordered products, LifeArk shall give Buyer fifteen (15) days written notice that the Buyer must accept delivery of the ordered products, or make arrangements with LifeArk to have the ordered products shipped, at Buyer's expense, to another location for storage. 6. Warranty. LifeArk provides the following warranty to Buyer for LifeArk modular units. LifeArk warrants to Buyer that all modular units shall be free from defects in material and workmanship for a period of 12 months from the date of shipment when properly maintained and used in normal service. The parties understand and acknowledge that this Warranty excludes the following: (a) parts, components or accessories manufactured by others (LifeArk hereby assigns to Buyer any warranties in favor of LifeArk with respect to any such parts, components or accessories that are incorporated into any modular units purchased by the Buyer and which may be legally assigned by LifeArk); (b) parts that are not defective at time of delivery but which become defective by virtue of usage, including but not limited to normal wear, tear, and replacement; (c) normal maintenance; (d) products or parts that have been repaired or altered by 3 Buyer’s initial anyone other than LifeArk’s service representatives; and (e) damage due to improper installation, installation of the modular units in an unsuitable application, damage due to misuse, negligence, mishandling, accident, mechanical abuse, or other casualty not caused by a manufacturing defect. Proper anchoring of the modular units to the Buyer-provided level concrete pad and connection to utilities are responsibilities of LifeArk. THE FOREGOING WARRANTY IS INTENDED SOLELY FOR THE BENEFIT OF BUYER AND IS NON-ASSIGNABLE AND NON- TRANSFERABLE, INCLUDING TO ANY SUBSEQUENT PURCHASERS, LESSEES, OR OTHER PARTY WHO OBTAINS THE MODULAR UNITS AND PARTS FROM BUYER OR ANY SUBSEQUENT PURCHASER. LIFEARK SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANT OF MERCHANTABILITY, ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY OF TITLE AND AGAINST INFRINGEMENT. 7. BUYER’S REMEDIES. In the event that LifeArk breaches any warranty or other material provision of these Terms and Conditions, any Sales Confirmation or any other agreement respecting the purchase or sale of goods from LifeArk (collectively, “Agreement”), and such breach is not cured within thirty (30) days of Buyer's written notice specifying the nature of the breach, Buyer’s exclusive remedy shall be the repair or replacement at LifeArk’s option, of any defective goods. Under no circumstances shall LifeArk be liable for any reimbursement of labor costs incurred by the Buyer whether as a result of warranty under Section 4 herein or circumstances shall the liability of LifeArk whether in contract, tort, and warranty or otherwise exceed the purchase price of the goods. Buyer must notify LifeArk in writing of any claim regarding defective or nonconforming goods (a) within ten (10) days after receipt of the goods with respect to any claim not covered by the warranty set forth in Section 4 herein, or (b) within ten (10) days after a defect is or should have been discovered with respect to any claim covered by such warranty. If Buyer fails to notify LifeArk timely of a claim, the goods shall be deemed accepted by Buyer without objection and any such claim by Buyer shall be waived. Buyer acknowledges and agrees that it will not assert a right of offset or recoupment against LifeArk or any affiliate thereof or its directors, officers or employees, or any affiliate thereof with respect to any future, present or prior sales transactions involving any new or used goods or any other obligation of LifeArk to Buyer. The rights and remedies provided to Buyer herein shall be the SOLE and EXCLUSIVE rights and remedies of Buyer and Buyer hereby waives all other rights and remedies provided by applicable law or equity, including without limitation, INDIRECT, incidental, consequential, liquidated, punitive or any other damages. LIFEARK SHALL NOT BE LIABLE TO BUYER FOR ANY LOST PROFITS, ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR SIMILAR DAMAGES (INCLUDING LOSS OF CARGO, LOSS OF OTHER PROPERTY OR EQUIPMENT, LOSS OF PROFITS OR REVENUES, COST OF CAPITAL, COST OF BUSINESS INTERRUPTION, OR ANY OTHER DAMAGES), OR ANY CLAIMS OR DEMANDS BROUGHT BY OR AGAINST BUYER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, LIFEARK'S NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF WARRANTY. LIFEARK SHALL HAVE NO OBLIGATION TO REPLACE OR REPAIR ANY GOODS WHICH ARE LOST OR STOLEN OR DESTROYED OR DAMAGED BY FIRE OR ANY OTHER PERIL. IN NO EVENT SHALL LIFEARK'S AGGREGATE LIABILITY TO 4 Buyer’s initial BUYER ARISING OUT OF, RELATED TO OR IN CONNECTION WITH THE SALE OF ANY GOODS UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID TO LIFEARK BY BUYER FOR SUCH GOODS. ANY ACTION AGAINST LIFEARK MUST BE BROUGHT WITHIN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. THE EXCLUSION OF INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, PUNITIVE, AND OTHER DAMAGES IS INDEPENDENT OF AND SHALL SURVIVE ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 8. LifeArk’s Remedies. In the event of a default by Buyer, or if LifeArk reasonably deems itself insecure, LifeArk may suspend all performance until all delinquencies and defaults are cured and adequate assurances of performance by Buyer are given to LifeArk. In the event that Buyer fails to cure any default or delinquency within thirty (30) days of LifeArk's written notice to Buyer thereof, LifeArk may terminate this Agreement without further obligation to Buyer or right of refund. BUYER SHALL BE LIABLE TO LIFEARK FOR AND SHALL PAY TO LIFEARK ALL COSTS AND EXPENSES, INCLUDING REASONABLE ATTORNEYS' FEES, INCURRED BY LIFEARK TO COLLECT THE PURCHASE PRICE FROM BUYER OR OTHERWISE TO ENFORCE THIS AGREEMENT IN THE EVENT OF BUYER'S BREACH. In the event of a default by Buyer, LifeArk shall have all remedies available under applicable law and in equity. 9. Indemnification. Buyer shall hold harmless, defend and indemnify LifeArk, its principals, corporate affiliates and any employees or agents thereof (collectively "LifeArk Indemnified Party"), against all liability to third parties (other than liability solely the fault of the LifeArk Indemnified Party) from any and all claims, including but not limited to claims for violations of any statute or regulation, for personal injury, property damage, patent infringement or appropriation of proprietary technology arising out of any equipment, materials, designs or specifications furnished by Buyer. LifeArk shall hold harmless, defend and indemnify Buyer, its principals, corporate affiliates and any employees or agents thereof (collectively "Buyer Indemnified Party"), against all liability to third parties (other than liability solely the fault of the Buyer Indemnified Party) from any and all claims, including but not limited to claims for violations of any statute or regulation, for personal injury, property damage, patent infringement or appropriation of proprietary technology arising out of any equipment, materials, designs or specifications furnished by LifeArk. 10. Waiver/Severability. Failure by LifeArk to insist upon strict compliance with any of the terms or conditions of any Agreement (including, without limitation, these Terms and Conditions) shall not be deemed a waiver of such terms or conditions, nor shall any waiver or relinquishment of any right or power hereunder at anyone or more times be deemed a waiver or relinquishment of such right or power at any other time or times. In case anyone or more of the provisions contained in any Agreement shall be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained therein shall not in any way be affected or impaired thereby. 11. Governing Law. The laws of the State of California shall govern any Agreement in all aspects, including execution, interpretation, performance and enforcement, without regard to principles 5 Buyer’s initial of conflicts of law. LIFEARK AND BUYER AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH ANY AGREEMENT, WHETHER BASED UPON CONTRACT OR OTHERWISE, SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND FEDERAL COURTS LOCATED IN THE STATE OF CALIFORNIA. 12. Effective Date/Modification/Entire Agreement. These Terms and Conditions shall become effective upon execution hereof as to all existing, in-process and future transactions between Buyer and LifeArk. Except as provided for herein, no modification, amendment, extension or alleged waiver of these Terms and Conditions or any Sales Confirmation will be binding on either party unless in writing and signed by the party sought to be bound. THESE TERMS AND CONDITIONS, TOGETHER WITH ANY APPLICABLE SALES CONFIRMATION, CONSTITUTE THE FINAL WRITTEN EXPRESSION OF THE PARTIES WITH RESPECT TO BUYER'S PURCHASE OF GOODS FROM LIFEARK, and this Agreement supersedes and replaces all prior agreements and understandings, written or oral. These Terms and Conditions shall be binding upon and shall inure to the benefit of LifeArk and Buyer and their respective successors, assigns and legal representatives. ANY AND ALL REPRESENTATIONS, PROMISES, WARRANTIES OR STATEMENTS MADE OR GIVEN TO BUYER THAT DIFFER IN ANY WAY FROM THE TERMS OF THESE TERMS AND CONDITIONS SHALL BE WITHOUT FORCE AND EFFECT. By signing below, Buyer expressly agrees to the terms above. IN WITNESS WHEREOF, these Terms and Conditions have been executed as of this day of , 20__. Signed by the BUYER _________________________ Name: Date: Signed by LIFEARK, SPC _________________________ Name: Date: