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2008 CON CDC Motivational Systems, Inc. - Signage MLK, Police Dept.
AGREEMENT BY AND BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND MOTIVATIONAL SYSTEMS, INC. THIS AGREEMENT is entered into this 18th day of November, 2008, by and between the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a community development commission (the "CDC"), and MOTIVATIONAL SYSTEMS, INC, (CONTRACTOR"). RECITALS WHEREAS, the CDC desires to employ a CONTRACTOR to install new wayfinding and identification signage for the civic center campus; WHEREAS, the CDC has determined that the CONTRACTOR is a sign designer and is qualified by experience and ability to perform the services desired by the CDC, and the CONTRACTOR is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONTRACTOR. The CDC hereby agrees to engage the CONTRACTOR and the CONTRACTOR hereby agrees to perform the services hereinafter set forth in accordance with all terms and conditions contained herein. The CONTRACTOR represents that all services required hereunder will be performed directly by the CONTRACTOR or under direct supervision of the CONTRACTOR. 2. SCOPE OF SERVICES. The CONTRACTOR will perform services as set forth in the attached Exhibit "A". The CONTRACTOR shall be responsible for all research and reviews related to the work and shall not rely on personnel of the CDC for such services, except as authorized in advance by the CDC. The CONTRACTOR shall appear at meetings cited in Exhibit "A"to keep staff and City Council advised of the progress on the project. 3. PROJECT COORDINATION AND SUPERVISION. Patricia Beard hereby is designated as the Project Coordinator for the CDC and will monitor the progress and execution of this Agreement. The CONTRACTOR shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONTRACTOR. Bruce Heinzel thereby is designated as the Project Director for the CONTRACTOR. 4. COMPENSATION AND PAYMENT. The compensation for the CONTRACTOR shall be based on monthly billings covering actual work performed. Billings shall include labor classifications, respective rates, hours worked and also materials, if any. The total cost for all work described in Exhibit "A"shall not exceed $5,000. Monthly invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with Exhibit "A"as determined by the CDC. The CONTRACTOR shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement, for inspection by the CDC and for furnishing of copies to the CDC, if requested. 5. ACCEPTABILITY OF WORK. The CDC shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement and the amount of compensation due. In the event the CONTRACTOR and the CDC cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONTRACTOR in this Agreement, the CDC or the CONTRACTOR shall give to the other written notice. Within ten (10) business days, the CONTRACTOR and the CDC shall each prepare a report which supports their position and file the same with the other party. The CDC shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONTRACTOR. 6. LENGTH OF AGREEMENT. The project defined in Exhibit "A" is to be completed no later that January 29, 2009 at 6:00 p.m. 7. DISPOSITION AND OWNERSHIP OF DOCUMENTS. The Memoranda, Reports, Maps, Drawings, Plans, Specifications, Models, Architectural Renderings, Studies and other documents prepared by the CONTRACTOR for this Project, both paper and electronic, shall become the property of the CDC for use with respect to this Project, and shall be turned over to the CDC upon completion of the Project, or any phase thereof, as contemplated by this Agreement. Contemporaneously with the transfer of documents, the CONTRACTOR hereby assigns to the CDC and CONTRACTOR thereby expressly waives and disclaims, any copyright in, and the right to reproduce, all written material, drawings, plans, specifications or other work prepared under this agreement, except upon the CDC's prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. The CONTRACTOR shall, upon request of the CDC, execute any further document(s) necessary to further effectuate this waiver and disclaimer. The CONTRACTOR agrees that the CDC may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium or method utilize the CONTRACTOR's written work product for the CDC's purposes, and the CONTRACTOR expressly waives and disclaims any residual rights granted to it by Civil Code Sections 980 through 989 relating to intellectual property and artistic works. Any modification or reuse by the CDC of documents, drawings or specifications prepared by the CONTRACTOR shall relieve the CONTRACTOR from liability under Section 14 but only with respect to the effect of the modification or reuse by the CDC, or for any liability to the CDC should the documents be used by the CDC for some project other than what was expressly agreed upon within the Scope of this project, unless otherwise mutually agreed. 2 CDC's Standard Agreement — June 2008 revision 8. INDEPENDENT CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners or joint venturers with one another. Neither the CONTRACTOR nor the CONTRACTOR'S employees are employee of the CDC and are not entitled to any of the rights, benefits, or privileges of the CDC's employees, including but not limited to retirement, medical, unemployment, or workers' compensation insurance. This Agreement contemplates the personal services of the CONTRACTOR and the CONTRACTOR's employees, and it is recognized by the parties that a substantial inducement to the CDC for entering into this Agreement was, and is, the professional reputation and competence of the CONTRACTOR and its employees. Neither this Agreement nor any interest herein may be assigned by the CONTRACTOR without the prior written consent of the CDC. Nothing herein contained is intended to prevent the CONTRACTOR from employing or hiring as many employees, or subCONTRACTORs, as the CONTRACTOR may deem necessary for the proper and efficient performance of this Agreement. All agreements by CONTRACTOR with its subCONTRACTOR(s) shall require the subCONTRACTOR to adhere to the applicable terms of this Agreement. 9. CONTROL. Neither the CDC nor its officers, agents or employees shall have any control over the conduct of the CONTRACTOR or any of the CONTRACTOR's employees except as herein set forth, and the CONTRACTOR expressly agrees not to represent that the CONTRACTOR or the CONTRACTOR's agents, servants, or employees are in any manner agents, servants or employees of the CDC, it being understood that the CONTRACTOR, its agents, servants, and employees are as to the CDC wholly independent CONTRACTORs and that the CONTRACTOR's obligations to the CDC are solely such as are prescribed by this Agreement. 10. COMPLIANCE WITH APPLICABLE LAW. The CONTRACTOR, in the performance of the services to be provided herein, shall comply with all applicable State and Federal statutes and regulations, and all applicable ordinances, rules and regulations of the City of National City, whether now in force or subsequently enacted. The CONTRACTOR, and each of its subCONTRACTORs, shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 11. LICENSES, PERMITS, ETC. The CONTRACTOR represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. The CONTRACTOR represents and covenants that the CONTRACTOR shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for the CONTRACTOR to practice its profession. 12. STANDARD OF CARE. A. The CONTRACTOR, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONTRACTOR'S trade or profession currently practicing under similar conditions and in similar locations. The CONTRACTOR shall take all special precautions necessary to protect the CONTRACTOR's employees and members of the public from risk of harm arising out of the nature of the work and/or the conditions of the work site. B. Unless disclosed in writing prior to the date of this agreement, the CONTRACTOR warrants to the CDC that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or 3 CDC's Standard Agreement — June 2008 revision litigation proceedings concerning the CONTRACTOR's professional performance or the furnishing of materials or services relating thereto. C. The CONTRACTOR is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project the CONTRACTOR has been retained to perform, within the time requirements of the CDC, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONTRACTOR has notified the CDC otherwise, the CONTRACTOR warrants that all products, materials, processes or treatments identified in the project documents prepared for the CDC are reasonably commercially available. Any failure by the CONTRACTOR to use due diligence under this sub -paragraph will render the CONTRACTOR liable to the CDC for any increased costs that result from the CDC's later inability to obtain the specified items or any reasonable substitute within a price range that allows for project completion in the time frame specified or, when not specified, then within a commercially reasonable time. 13. NON-DISCRIMINATION PROVISIONS. The CONTRACTOR shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The CONTRACTOR will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The CONTRACTOR agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CDC setting forth the provisions of this non-discrimination clause. 14. CONFIDENTIAL INFORMATION. The CDC may from time to time communicate to the CONTRACTOR certain confidential information to enable the CONTRACTOR to effectively perform the services to be provided herein. The CONTRACTOR shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CDC. The CONTRACTOR shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 13, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONTRACTOR, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONTRACTOR without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONTRACTOR by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. The CONTRACTOR shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the CDC. In its performance hereunder, the CONTRACTOR shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. CONTRACTOR shall be liable to CDC for any damages caused by breach of this condition, pursuant to the provisions of Section 14. 15. INDEMNIFICATION AND HOLD HARMLESS. The CONTRACTOR agrees to defend, indemnify, and hold harmless the Community Development Commission of 4 CDC's Standard Agreement — June 2008 revision the City of National City, its officers and employees, against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the CONTRACTOR's negligent performance of this Agreement. 16. WORKERS' COMPENSATION. The CONTRACTOR shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto; and all similar state or Federal acts or laws applicable; and shall indemnify, and hold harmless the CDC and its officers, and employees from and against all claims, demands, payments, suits, actions, proceedings and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CDC or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the CONTRACTOR/CONSULTANT [CHOOSE ONE] under this Agreement. 17. INSURANCE. The CONTRACTOR, at its sole cost and expense, shall purchase and maintain, and shall require its subCONTRACTOR's, when applicable, to purchase and maintain throughout the term of this agreement, the following insurance policies: ❑ A. If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non - owned, and hired vehicles ("any auto"). C. Commercial general liability insurance, with minimum limits of $1,000,000 per occurrence/$2,000,000 aggregate, covering all bodily injury and property damage arising out of its operations under this Agreement. D. Workers' compensation insurance in an amount sufficient to meet statutory requirements covering all of CONTRACTOR'S employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the CDC. Said endorsement shall be provided prior to commencement of work under this Agreement. E. The aforesaid policies shall constitute primary insurance as to the CDC, its officers, employees, and volunteers, so that any other policies held by the CDC shall not contribute to any Toss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CDC of cancellation or material change. F. Said policies, except for the professional liability and workers' compensation policies, shall name the CDC and its officers, agents and employees as additional insureds, and separate additional insured endorsements shall be provided. G. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONTRACTOR shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. H. Any aggregate insurance limits must apply solely to this Agreement. I. Insurance shall be written with only California admitted companies which hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the National City Risk Manager. In the event coverage is provided by non -admitted 5 City's Standard Agreement -,June 2008 revision "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. J. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the National City Risk Manager. If the CONTRACTOR does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the CDC may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. K. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CDC. 18. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of -court settlement, shall be entitled to have and recover of and from the other party all costs and expenses of suit, including attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CDC shall, in addition, be limited to the amount of attorney's fees incurred by the CDC in its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing party. 19. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of, or relating to, this Agreement, or breach thereof, which is not resolved by mediation shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a judgment thereon may be entered in any court having jurisdiction over the subject matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award. 20. TERMINATION. A. This Agreement may be terminated with or without cause by the CDC. Termination without cause shall be effective only upon 60-day's written notice to the CONTRACTOR. During said 60-day period the CONTRACTOR shall perform all services in accordance with this Agreement. B. This Agreement may also be terminated immediately by the CDC for cause in the event of a material breach of this Agreement, misrepresentation by the CONTRACTOR in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CDC. C. Termination with or without cause shall be effected by delivery of written Notice of Termination to the CONTRACTOR as provided for herein. D. In the event of termination, all finished or unfinished Memoranda Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the CONTRACTOR, 6 CDC's Standard Agreement — June 2008 revision whether paper or electronic, shall immediately become the property of and be delivered to the CDC, and the CONTRACTOR shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the CDC by the CONTRACTOR's breach, if any. Thereafter, ownership of said written material shall vest in the CDC all rights set forth in Section 6. E. The CDC further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONTRACTOR; (2) a reorganization of the CONTRACTOR for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONTRACTOR. 21. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To CDC: To CONTRACTOR: Brad Raulston Executive Director Community Development Commission of the City of National City 1243 National City Boulevard National City, CA 91950-4301 Bruce Heinsel Motivational Systems, Inc. 2200 Cleveland Avenue National City CA 91950 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-eight (48) hours by letter mailed or delivered as specified in this Section. 22. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. During the term of this Agreement, the CONTRACTOR shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the CDC. The CONTRACTOR also agrees not to specify any product, treatment, process or 7 CDC's Standard Agreement — June 2008 revision material for the project in which the CONTRACTOR has a material financial interest, either direct or indirect, without first notifying the CDC of that fact. The ONTRACTOR shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. The CONTRACTOR shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CDC in which the CONTRACTOR has a financial interest as defined in Government Code Section 87103. The CONTRACTOR represents that it has no knowledge of any financial interests that would require it to disqualify itself from any matter on which it might perform services for the CDC. ❑ If checked, the CONTRACTOR shall comply with all of the reporting requirements of the Political Reform Act and the National City Conflict of Interest Code. Specifically, the CONTRACTOR shall file a Statement of Economic Interests with the City Clerk of the City of National City in a timely manner on forms which the CONTRACTOR shall obtain from the City Clerk. The CONTRACTOR shall be strictly liable to the CDC for all damages, costs or expenses the CDC may suffer by virtue of any violation of this Paragraph 21 by the CONTRACTOR. 23. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state or legal holiday. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. I. Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. J. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. 8 CDC's Standard Agreement — June 2008 revision K. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. COMMUNITY DEVELOPMENT COMMISSION MOTIVATIONAL SYSTEMS, INC. (Corporation — signatures of two corporate officers) (Partnership — one signature) (Sole proprietorship — one signature) OF THE CITY OF NATIONAL CITY By: Brad R ecutive Director APPROVED AS TO FORM: George H. Eiser, III Legal Counsel By: (Title) V t • ') ✓S/ °A- P 4 2_ By: (Name) / (Title) 9 CDC's Standard Agreement — June 2008 revision EXHIBIT "A" Motivational tl �i Systems Inc 2200 Cleveland Ave. National City, CA, 91950 Phone (619) 474-8246 Fax (619) 474-3638 Account # 1COM124 Master Order # 00124276 Client Name COMMUNITY DEV. COMMISSION OF Address NATIONAL CITY 1243 NATIONAL CITY BLVD NATIONAL CITY, CA 91950 Contract # 00046076 Conditional Sales Contract #00046076 Date Project Name Location 11/07/2008 CITY OF NATIONAL CITY 1243 NATIONAL CITY BLVD NATIONAL CITY, CA 91950 Salesperson BRUCE IIEINZEL Page 1 of 3 This agreement is made between Motivational Systems, Inc. hereinafter referred to as "MSI" and COMMUNITY DEV. COMMISSION OF hereinafter referred to as "Client". Client Agrees to Purchase the Following: COI 1. •'ill _. INSTALLATION INSTALLATION OF SIGNAGE FOR MLK, JR. COMMUNITY CENTER SIGNAGE AND POLICE ADMINISTRATION BUILDING SIGNAGE ON ADDENDUM CONTRACT 44158. $ 0.00 Sri, a}_►:,- 11r_- $ 5,000.00 TAXABLE SUBTOTAL SALES TAX @ 7.75 % NON-TAXABLE TOTAL $ 0.00 $ 0.00 $ 5,000.00 $ 5,000.00 Jnvoice from MSI will read as follows: INSTALLATION OF SIGNAGE FOR MLK, JR. COMMUNITY CENTER SIGNAGE AND POLICE ADMINISTRATION BUILDING SIGNAGE ON ADDENDUM CONTRACT 44158. Clause(s): 1. Terms are 50% Deposit with Contract, 40% progress payment due before delivery and 10% due upon completion and approval. 2. The prices quoted do not include permits or permitting fees. 3. The Client is responsible for any fines or fees that may be incurred. 4. Additional installation trips that are required to complete a scheduled installation due to client changes that result in our inability to complete installation as contracted will be billed at our current hourly rate. 5. ADDITONAL CONDITIONS CLAUSE (Part 1 of 3) The completeness and correctness of the information provided with the Conditional Sales Contract shall be verified by MSI before the earlier of (1) execution of the Contract by MSI or (2) commencement of Work. MSI shall not proceed with the Work if any error or disagreement appears to exist on the Drawings or in the Specifications, but shall immediately submit a written request for an explanation or decision to the Owner's Representative. 6. ADDITIONAL CONDITIONS CLAUSE (Part 2 of 3) Should MSI proceed without a written response by the Owners Representative they shall he so doing at their own risk and expense. In cases where conflicts arise, the following priorities shall prevail: 7. ADDITIONAL CONDITIONS CLAUSE (Part 3 of 3) 1. Structural Drawings and Owner/Architect-approved shop drawings shall have priority over all other Drawings. 2. Large scale Drawings and details shall have priority over small scale Drawings and details. 3. Detail Drawings shall have priority over other Drawings. 4. The Specifications shall govern and take precedence over all Drawings. By Initials Date Contract # 00046076 Page 3 of 3 STANDARD TERMS & CONDITIONS 1. MSI agrees to sell services and/or install products or materials in accordance with plans as specified on the front side hereof. 2. MSI agrees, where permits and /or bonds are required by any Governmental authorities, to assist the Client in obtaining same in Client's name and at Client's cost. 3. It is agreed that the terms of payment shall be on receipt from the date of invoice. In the event that any amount payable under this contract or any portion thereof is not paid when due then such amount then any amount payable under this contract or any portion thereof is not paid when due then such amount then unpaid hereunder shall bear interest at the rate of 18% per annum, or maximum allowed by law. If default is made in any payment due under this contract, at option of MSI, the total balance due shall immediately become due and payable, together with a reasonable charge for attorney's fees (provided attorney service is required to obtain payment). 4. Should any dispute between the parties hereto arise, it is agreed by and between Client and MSI that the laws of the State in which the contract is signed shall be applied thereto. It is further agreed that this agreement is considered to have been executed in the County, City and State in which it was signed, for purposes of venue. 5. If MSI is unable to deliver any portion of the service called in for this contract, MSI reserves the right to eliminate it from this contract or to issue credit to Client for that portion of the service not delivered. 6. Client and/or its agency agrees to defend, indemnify, and save MSI harm from any and all loss, liability, claims and demands arising out of the character, contents or subject matter of any copy displayed as a result of this contract. MSI reserves the right at any time (either before or after production) to censor, reject or withdraw any copy under this contract. 7. Delay in the execution of this contract resulting from Acts of God, or any cause beyond the control of MSI, such as strike, work stoppage, picketing, damage or concerted action by an employee or any labor organization, shall not constitute grounds for cancellation. In the event of loss of service occasioned by any such cause, Client shall be granted suitable credit in the form of extended service which shall be of a value equal to the credit due and considered full compensation. 8. This agreement is not intended as a legally phrased document, but rather expresses a meeting of minds between the parties whose signatures appear thereon. 9. It is hereby acknowledged and agreed that this agreement contains the entire agreement between the parties hereto and that no representatives of MSI has any authority to change or modify any of the provisions hereof nor to substitute or add any additional provisions. 10. Time involved drilling through unforeseen obstructions, rock, man-made fills, or natural soils delay due to no fault of MSI will be charged for at MSI's current hourly drill rig rates in addition to contract prices. 11. If through no fault of MSI work cannot be completed, MSI may terminate agreement by written notice and Client shall pay for the percentage of work completed. If applicable sales tax rate increases or decreases during the life of this contract, the sales tax rate effective at the time of billing shall be applied to the amount due. 12. The prices in this contract are effective for ninety (90) days from the Contract Date. AMOUNT (TAX INCLUDED) $ 5,000.00 DEPOSIT (Due prior to job starting) $ 2,000.00 PROGRESS PAYMENT $ 2,000.00 BALANCE $ 1,000.00 Client has read and understood the terms and conditions as set forth herein, and agrees to be bound thereby upon the acceptance of this Agreement to be effective upon receipt of signature from authorized representative. MOTIVATIONAL SYSTEMS INC. COMMUNITY DEV. COMMISSION OF By By NAME: Bruce IIeinzel NAME: TITLE: S. A. E. TITLE: Date: 11/5/08rev Date: CA Contractor's Lic. #482116(C61/D4.C45); NV Contractor's Lic. #0031497 (C6A,D), AZ Contractor's Lic. #090213(L-38); WA Contractor's Lic. #MOTIVSl011 K6; UT Contractor's Lic. #444860 (S440) ACM CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) 12/27/2007 PRODUCER (858)268-9400 FAX (858)268-9773 C. LEE WILLIAMS & ASSOC. #0503722 P. 0. BOX 23638 a"45 MURPHY CANYON RD. #202 DIEGO, CA 92193 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERT FICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # IN- -.RED Motivational Systems, Inc. & Ryan Young Interic 2200 Cleveland Ave. National City, CA 91950 INSURER Hartford Fire Insurance Company INSURERB: American States Insurance Company INSURER C: Zenith Insurance Company INSURER 0: INSURER E COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTRJNSRp ADD'L TYPE OF INSURANCE POLICY NUMBER POUCY EFFECTIVE DATE (MM/DD/YY) POUCY EXPIRATION DATE (MM/DD/YY1 LIMITS GENERAL LIABILITY 72CESOA2 7 71 01/01/2008 01/01/2009 EACH OCCURRENCE $ 1,000,000 X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED PREMISES (Fa nccu enre) $ 300,000 CLAIMS MADE X OCCUR MED EXP (Any one person) $ 5,000 A X Broadform Prop Dmg PERSONAL 8 ADV INJURY $ 1,000,000 X Contractual Liab. GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER. PRODUCTS - COMP/OP AGG $ 2,000,000 POLICY n jE n LOC AUTOMOBILE UABILITY ANY AUTO 01CG11441270 01/01/2008 01/01/2009 COMBINED SINGLE LIMIT (Ea accident) $ 1,000,000 X ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY (Per person) $ B X X HIRED AUTOS NON -OWNED AUTOS BODILY INJURY (Per accident) $ PROPERTY DAMAGE $ (Per accident) GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ ANY AUTO NONE PROVIDED OTHER THAN EA ACC $ AUTO ONLY. AGG $ EXCESS/UMBRELLA LIABIUTY 72HUSL7185 01/01/2008 01/01/2009 EACH OCCURRENCE $ 2,000,000 X OCCUR CLAIMS MADE AGGREGATE $ 2,000,000 A $ DEDUCTIBLE $ X RETENTION $ 10,000 $ WORKERS COMPENSATION AND ATU- �( I TORY IMITS OTH- ER R E EMPLOYERS' UABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE E.L. EACH ACCIDENT $ 1,000,000 c OFFICER/MEMBER EXCLUDED? Z046748308 01/01/2008 01/01/2009 E.L. DISEASE - EA EMPLOYEE $ 1,000,000 If yes, describe under SPECIAL PROVISIONS below E.L. DISEA$F.� QGL}CYjdM1Td , 000 , 000 OTHER NONE PROVIDED 1C,itL��IV'C \Yl LF�_ D1 DEC 3 1 2007 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS L, RE: All Operations Commuf+ Certificate Holder is added as Additional Insured with respects to the General IaSd ap!'IG t M1 per the attached Waiver of Subrogation is included under the Workers Compensation coverage. *10 days notice for nonpayment of premium. CERTIFICATE HOLDER Community Development Commision of National City 1243 National City Blvd. National City, CA 91950 CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL I XAJWA MAIL 30'° DAYS WRITTEN NOTIC{TO THE'.CERTIFIC AUTHORIZED REPRESENTA TE HOLDER NAMED TO THE LEFT, XXXX • •. X XXXXXXXX XXXXXXXX ACORD 25 (2001108) ©ACORD CORPORATION 1988 MOTIVATIONAL SYSTEMS, INC. & RYAN YOUNG INTERIyORS, INC POLICY NUMBER: 72 CES 0A.2771 EFFECTIVE 1/1/2008 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED BY CONTRACT OR AGREEMENT - OPTION III This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Designated Project(s) or Location(s) Or Organization(s): Of Covered Operations Any entity requiring Primary Wording in a Written Contract. ALL OPERATIONS' Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section 11 - Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule above with whom you agreed in a written contract or written agreement to provide insurance such as is afforded under this policy, but only to the extent that such person or organization is liable for "bodily injury", "property damage" or "personal and advertising injury" caused by your acts or omissions or the acts or omissions of those acting on your behalf: 1. In the performance of your ongoing operations for such additional insured at the project(s) or location(s) designated in the Schedule; 2. In connection with your premises owned by or rented to you and shown in the Schedule; or 3. In connection with "your work" for the additional insured at the project(s) or location(s) designated in the Schedule and included within the "products -completed operations hazard", but only if: Form HS 24 82 06 05 a. The written contract or agreement requires you to provide such coverage to such additional insured at the project(s) or location(s) designated in the Schedule; and b. This Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products -completed operations hazard". B. The insurance afforded to these additional insureds applies only: 1. If the "occurrence" or offense takes place subsequent to the execution of such written contract or written agreement; and 2 While such written contract or written agreement is in force, or until the end of the "policy period," whichever is earlier. C. With respect to the insurance afforded to these additional insureds under this endorsement, the following additional exclusion applies: (c) 2005, The Hartford (Includes copyrighted material of Insurance Services Office, Inc. with its permission.) Page 1 of 3 This insurance does not apply to "bodily injury", "property damage" or. "personal and advertising injury" arising out of the rendering of or the failure to render any professional architectural, engineering or surveying services by or for you, including: 1. The preparing, approving, or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or specifications; and 2. Supervisory, inspection, architectural or engineering activities. D. How Limits Apply To Additional Insureds The most we will pay on behalf of the additional insured shown in the Schedule is the lesser of:. 1. The limits of insurance specified in the written contract or written agreement; or 2. The Limits of Insurance shown in the Declarations. Such amount shall be a part of and not in addition to Limits of Insurance shown in the Declarations and described in this Section. E. Duties Of Additional Insureds In The Event Of Occurrence,Offense, Claim Or Suit The Duties Condition in Section N - Conditions. is replaced by the following and applies to the additional insured shown in the Schedule: 1. Notice Of Occurrence Or Offense The additional insured must see to it that we are notified as soon as practicable of an "occurrence" or an offense which may result in a claim. To the extent possible, notice should include: a. How, when and where the "occurrence or offense took place; b. The names and addresses of any injured persons and witnesses; and c. The nature and location of any injury or damage arising outof the "occurrence" or offense. 2. Notice Of Claim If a claim is made or "suit" is brought against the additional insured, the additional insured must: a. Immediately record the specifics of the claim or "suit" and the date received; and b. Notify us as soon as practicable. The additional insured must see to it that we receive written notice of the claim or "suit" as soon as practicable. 3. Assistance And Cooperation Of The Insured The additional insured must: a. immediately send us copies of any demands, notices, summonses or legal papers received in connection with the claim or "suit"; b. Authorize us to obtain records and other information; c. Cooperate with us in the investigation or settlement of the claim or defense against the "suit"; and d. Assist us, upon our request, in the enforcement of any right against any person or organization which may be liable to the insured because of injury or damage to which this insurance may also apply. 4. Obligations At The Additional Insureds Own Cost No additional insured will, except at that insured's own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent. 5. Additional Insureds Other Insurance If we cover a claim or "suit" under this Coverage Part that may also be covered by other insurance available to the additional insured, such additional insured must submit such claim or "suit" to the other insurer for defense and indemnity. However, this provision does not apply to the extent that you have agreed in a written contract or written agreement that this insurance is primary and non-contributory with the additional insured's own insurance. 6. Knowledge Of An Occurrence, Offense, Claim Or Suit Paragraphs 1. and 2. applies to the additional insured only when such "occurrence", offense, claim or "suit" is known to: a. The additional insured that is an individual; b. Any partner, if the additional insured is a partnership; c. Any manager, if the additional insured is a limited liability company; d. Any "executive officer" or insurance manager, if the additional insured is a corporation; e. Any trustee, if the additional insured is a trust; or f. Any elected or appointed official, if the additional insured is a political subdivision or public entity. Page2of3 Form HS 24 62 06 05 F. Other insurance With respect to insurance provided to the additional insured shown in the Schedule, the Other Insurance Condition Section IV Conditions is replaced by the following: 1. Primary Insurance a. Primary Insurance When Required By Contract This insurance is primary if you have agreed in a written contract or written agreement that this insurance be primary. 1f other insurance is also primary, we will share with all that other insurance by the method described in 3. below. b. Primary And Non -Contributory To Other Insurance When Required By Contract If you have agreed in a written contract or written agreement that this insurance is primary and non-contributory with the additional insured's own insurance, this insurance is primary and we will not seek contribution from that other insurance. Paragraphs a. and b. do not apply to other insurance to which the additional insured has been added as an additional insured or to other insurance described in paragraph 2. below. 2. Excess Insurance This insurance is excess over any of the other insurance, whether primary, excess, contingent or on any other basis: a. Your Work That is Fire, Extended Coverage, Builder's Risk, Installation Risk or similar coverage for "your work"; b. Premises Rented To You That is fire, lightning or explosion insurance for premises rented to you or temporarily occupied by you with permission of the owner; c. Tenant Liability That is insurance purchased by you to cover your liability as a tenant for "property damage" to premises rented to you or temporarily occupied by you with permission of the owner; d. Aircraft, Auto Or Watercraft If the Toss arises out of the maintenance or use of aircraft, "autos" or watercraft to the extent not subject to Exclusion g. of Section 1 - Coverage A - Bodily Injury And Property Damage Liability; e. Property Damage to Borrowed Equipment Or Use Of Elevators If the loss arises out of "property damage" to borrowed equipment or the use of elevators to the extent not subject to Exclusion j. of Section I - Coverage A - Bodily Injury And Property Damage Liability; or f. When You Are Added As An Additional Insured To Other Insurance That is any other insurance available to you covering liability for damages arising out of the premises or operations, or products and completed operations, for which you have been added as an additional insured by that insurance. When this insurance is excess, we will have no duty under Coverages A or B to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit". If no other insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those other insurers. When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: a. The total amount that all such other insurance would pay for the loss in the absence of this insurance; and b. The total of all deductible and self -insured amounts under all that other insurance. We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. 3. Method Of Sharing If all of the other insurance permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first. If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. Form HS 24 82 06 05 Page 3 of 3 C.LEE WILLIAMS & ASSOC Fax 18582689773 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY Dec 1 2008 02.28pm PO02/002 TheZenith BLANKET WAIVER OF OIJR.RIGHT TO RECOVER FROM OTHERS ENDORSEMENT - CALIFORNEA We have the right to recover our payments from anyoneliable for an injury covered by this policy. We will not enforce our right against the -person or organization for whom you perform work under a written contract that requires you to obtain this agreement from us. The additional premium for this eudorsement shall be 2% of the California workers compensation premium othenwise due_ Mi litnum Premium: $50 This endorsement changes the policyto which it is attached and is effective on the date issuedunless otherwise stated_ Endorsement Effective 01/01/08 Insured MOTIVATIONAL SYSTEMS, INC. Policy No. Z046748308 Policy Period 01/01/08 To 01/01/09 Issued On 01/31/08 WC-99-04-25 Md. 12-06) At San Diego, CA - AGENT COPY ZENITH INSURANCE COMPANY PRESIDENT Endorsement No. 66 City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Dalla, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 December 8, 2008 Mr. Bruce Heinzel Motivational Sytems, Inc. 2200 Cleveland Avenue National City, CA 91950 Dear Mr. Heinzel, On November 18th, 2008 an Agreement was entered between the Community Development Commission of the City of National City and Motivational Systems, Inc. We are enclosing for your records a fully executed original agreement. Sincerely, Michael R. Dalla, CMC City Clerk Enclosure cc: Community Development Commission ® Recycled Paper